International Criminal Court’s (ICC) Schism in Africa

International Criminal Court

In July 1998 the international community reached a historic agreement when 120 states adopted the Rome Statute which was the legal basis for the establishment of the permanent International Criminal Court and entered into force in July 2002 after its ratification by member states.

The ICC is supposed to be “an independent international organization” seated in The Hague in the Netherlands although it may sit elsewhere. Funding for the court comes from states and voluntary contributions from international organizations, governments, corporations and individuals. The creation of the ICC is inspired by the Nuremberg and Tokyo trials of post second world war addressing the war crimes, crimes against peace and crimes against humanity.

The International Criminal Court is composed of the President, Judicial Divisions, Office of the Prosecutor and the Registry. There are semi-autonomous other offices like Office of Public Counsel for Victims and Office of Public Counsel for Defense. These offices fall under Registry for administration purposes but function independently. There is also the Trust Fund for benefit of crimes within court jurisdiction and families of these victims.

According to the Rome Statute investigations can be initiated on the basis of referral and Information on crimes within jurisdiction of the court from individuals or organizations. Current investigations and cases at the ICC are three party States of the Rome Statute Uganda, Democratic Republic of Congo (DRC) and the Central African Republic all have referred situations that occurred or occurring in their territories to the ICC. The UN Security Council (With some its members as non signatories to the Rome Statute) has also referred the Darfur, Sudan situation to the ICC. Last on 6 November, 2009 the president of the ICC issued a decision assigning the situation in the Republic of Kenya to the Pre-Trial Chamber Two. This Chamber granted the Prosecutor on March 2010 authorization to open an investigation in the situation of Kenya.

Kenya has become the epicenter of growing tension and antagonism between ICC in Africa. African Union has realized their folly and opted to support Kenya’s deferral to The Hague. This was legally weak inasmuch as the state remains obligated to cooperate with respect to ongoing proceeding (rt.127 (2).

To some in Africa the ICC is the panaceas but to others a contemptuous guise of justice to demean Africa and other developing countries and therefore oppressive. There is duplicity by some of those countries who openly recommend non deferral of Kenya to The Hague yet refused to join the ICC and are not signatories to the Rome statute. Besides Crimes against humanity have no statutory expiration date, why then has The Hague not investigated or prosecuted any colonial genocides in Africa and elsewhere? There is hypocrisy and appearance of discrimination as to who is investigated and prosecuted by the ICC with Africa as the sole bearer of all cases.

This creates a perception that only Africa commits crimes against humanity and genocide while the truth is different. ICC acts blind to recent and continuous crimes against humanity by some members of the United Nations and Security Council. Besides ICC and its sister the United Nations are undemocratic institutions and begs the question as to whose Interest they serve?

This is not in any way to demean or devalue the lives of those who were brutally killed or severely injured in the post election violence of 2007 and 2008 in Kenya. It is also not an attempt to exonerate any presumed perpetrators of the post election violence or any other form crime. They should be prosecuted to the fullest of the crimes they are accused to have perpetrated in Kenya or Africa.

Kenya didn’t get the deferral from the Security Council or the ICC and this should serve Africa to stop committing crimes against humanity. It is apparent that ICC was infiltrated by some Western governments through their various organizations in cognito as development agents. This has been the case in the Kenyan case as witness after witness testify in public as having be coached and some money exchanged hands. African States should henceforth pay close attention and read between the lines before signing any treaties or international obligations that threaten their sovereignty.

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