Written by Ambassador of the Republic of Sudan

H.E Mr. Abd Alrahim Alsiddig Mohamed Omer

REPUBLIKA.CO.ID, The ICC is facing the most serious challenges since its inception in 2002. Four African nations have announced that they will withdraw their membership from the tribunal, consolidating a long standing debate that the ICC is biased against Africa. Gambia, South Africa, Burundi and Kenya all announced their intention to pull out of the tribunal. Legislative procedures have already been taken in these countries to substantiate the withdrawal from the tribunal. Gambia is the home country of the recent prosecutor of the court, Fatua Ben Souba. The most damaging for the court is that South Africa, one of the biggest supporters to the ICC, declares clearly that it is going to withdraw because the ICC is incompatible with its ability to resolve political conflicts in Africa. President Yoweri Museveni of Uganda described the court as a group of useless people in his last inauguration as a President of Uganda attended by many African Leaders in Kampala. I will try in this Article to dig deep after the reasons why African countries are leaving the ICC.

There are always talk about how processes such as the International Criminal Court (ICC) that are modeled on the Nuremberg trials of prominent Nazis after World War II, can help to build unified political communities in Africa.

For any settlement on the African continent, this logic cannot work. Whites and blacks have to live in the same country in South Africa. Hutu and Tutsi have to live in the same country in Rwanda. Different tribes of Darfur are to live in the same region, there is very little if any difference in the region as regarding races and religion. We are looking for a process that will help to construct inclusive communities rather than separation. Wherever we have tried the judicial model on this continent, a solution has evaded us. Wherever we have had a modicum of a solution in Africa, the heart of it was a political and not a judicial process.

Look at Mozambique: Renamo now sits in government. Compare this to Uganda, where the LRA [Lord’s Resistance Army] is still viewed as having committed acts of terror and so on, and the LRA leadership is hunted. The Ugandan Parliament passed an amnesty Bill for the LRA, but the presidency, in cahoots with the ICC, ignored that and now the LRA leadership is on the ICC “wanted” list. This precludes a political solution. The same can be said about Darfur, where armed groups are encouraged to fight on by the ICC wanted list. They ignore all calls for negotiation and carry on fighting again here this preclude a political solution not ICC model. The same happened in Kenya where there was unanimity that they should go to court in Kenya rather than ICC.

What is wrong with the ICC is that it ignores the issues that led to the violence. But there’s no real way forward unless we take on the issues when we are dealing with cycles of violence and, when it comes to cycles of violence such as go into the making of a civil war, each side has a narrative of victimhood. The ICC has reduced mass violence to this simplicity, where there are these few perpetrators and more than hundred of thousands of victims.

ICC ignored the root causes of violence on the land question or pasture against Nomad. On the one hand, there is a colonial definition of tribal ownership, with an origin in colonial law — it belongs to me “as a native”. The other is a market-based claim: that land belongs to whoever holds the title to it.

Every society that has gone through colonisation has had to ask these questions: Who belongs? Who doesn’t belong? At the root of political violence is exclusion.

The International Criminal Court’s Africa Problem

All cases launched so far by the ICC involve Africans, throwing into question the court’s “International” nature. On May 27 2016, the African Union endorsed ‘the Eastern Africa Region’s request for a referral of the ICC investigations and prosecutions in Kenya, in line with the principle of complementarity, to allow for a National Mechanism to investigate and prosecute the cases under a reformed Judiciary provided for in the new constitutional dispensation. 

This is the latest in a series of decisions since 2008 including Darfur case in which the African Union expressed its displeasure of the ICC and requested to give a hand to solve African problems on the basis of the slogan then raised (African solution for African problems) but ICC supported by the Security Council ignored these calls, that lead to escalation of violence in Africa and the African political leaders widely believe that the the International Criminal Court is unfairly targeting Africans.

During the press conference at the conclusion of the AU summit, the chairperson of the Assembly - Ethiopia's Prime Minister Hailemariam Desalegn said: "African leaders came to a consensus that the ICC process conducted in Africa has a flaw. The intention was to avoid any kind of impunity but now the process has degenerated to some kind of race-hunting rather than the fight against impunity." While there is no doubt that these are strong views, in substance they are restatements of previously expressed views. For instance, in 2009, Benin's President Boni Yayi said that "[w]e have the feeling that this court (ICC) is chasing Africa".

 "A Western court to try African crimes'

The ICC's current list of cases puts into question the international character of the ICC, giving credence to descriptions of the court as being the "International Criminal Court for Africa". Echoing this sentiment, Professor Mahmood Mamdani of Columbia University wrote that "[i]ts name notwithstanding, the ICC is rapidly turning into a Western court to try African crimes against humanity".

What makes the ICC's focus on Africa particularly troubling, though, is that it remains blind to similar situations in other parts of the world. Accordingly, the question is, as Professor William Schabas wrote: "Why prosecute post-election violence in Kenya or recruitment of child soldiers in the Democratic Republic of the Congo, but not murder and torture of prisoners in Iraq or illegal settlements in the West Bank?" or killing of millions in Iraq, Afghanistan. Most big powers in the Security Council like US, China, Russia are not party to Rome Statue, ironically, the United State refused to refever the case of Darfur to ICC, only when incorporated a clause in the same resolution that prevent the ICC from prosecuting American soldiers worldwide. The ICC perception hold double standard and avoiding its instrumentalisation by global power politics.

The position of the AU Assembly against the court in part manifests a rejection of this apparently skewed application of the ICC process, which contradict the norms of International Law and consolidate the perception of double standard and prevent justice to be conducted in a transparent manner.

This seemingly selective application of ICC processes also relates to concerns that ICC is being turned into a political tool, used by big powers against small ones.

While legally speaking this position is largely true, the nature and structure of international politics is such that the application of international justice processes more often than not reflects the distribution of power within the international community. The ICC is not immune to this, and the way in which the ICC launched its case in Libya is a testimony. The speed with which and the way the ICC prosecutor launched this case also betrays the ICC's acquiescence to its instrumentalisation by UN Security Council politics.

Courts Can’t End Civil Wars

Mass violence is more a political than a criminal matter. Unlike criminal violence, political violence has a constituency and is driven by issues, not just perpetrators.

As Thabu Mbeki said the clearest alternative to the Nuremberg model since the trials ended in 1949 is the complex set of negotiations, known as the Convention for a Democratic South Africa (Codesa), which brought an end to apartheid in the 1990s. The Codesa negotiations involved the ruling National Party, the African National Congress and a variety of other political organizations. They succeeded in putting together a constitution that would inaugurate a new post-apartheid political order. The lesson of Codesa is that it is sometimes preferable to suspend the question of criminal responsibility until the underlying political problem has been addressed. The Africa’s whites and blacks did have to live together in a single country — just as Hutus and Tutsis had to live together after Rwanda’s genocide and just like Darfur people, they all live in harmony together, after Doha agreement.

The Doha agreement for Darfur was preceded by a political negotiation in Doha-Qatar. The political solution took the form of a power-sharing arrangement known as the “broad base,” which gave cabinet positions to opposition groups (that agreed to renounce violence

As Professor Mahmood Mamdani said, “To call simply for victims’ justice, as the I.C.C. does, is to risk a continuation of civil war and jeopardize peace process, instead there must be a political process that enables people to live together in peace and harmony”.

One of the most reasons, that Africa is abandoning ICC is the corruption of the ICC leaders. The London Evening Post on July 3 2016 reported that ICC President – Judge, Silvia Alejandra Fernandez de Gurmendi alleged to have received funds in her bank account to ‘buy witnesses for use against President Al Bashir’. The newspaper went on saying, information reaching The London Evening Post here say that between 2004 and 2015, Argentinean-born ICC President Judge Silvia Alejandra Fernandez de Gurmendi allegedly received into her private bank accounts at Banco Popular in the Virgin Islands, the First Carribean Bank in the Bahamas and the Congregation B’nai Israel unexplained funds mounting to over US$ 17 million that was allegedly used to bribe witnesses that enabled the ICC to indict the Sudanese leader many. Money were allegedly distributed by her to groups in Darfur including the Sudan Liberation Movement, formerly the Darfur Liberation Front founded by Abdul Wahid Al Nur and others in 2002.

The scandal has led the Pan African Forum Chief Dr. David Nyekorach Matsanga to call upon Judge de Gurmendi to resign from her position. He argued that it was improper for an ICC judge to receive unexplained colossal sums of money which outmatch her annual salary. He added that her resignation would allow proper investigations to take place.

Matsanga argued that the indictment against President Bashir now looks to have been carried out through the corrupting of senior ICC officials. “we thought ICC was created to catch dictators in Africa but instead its which hunting,” relented Matsanga.

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