The ICC's selective justice that seeks to primarily punish African leaders is ineffective and unjust. The only way for African nations to get out from under the court's impunity is to build their mechanisms for accountability.

On 15 January 2019, the ICC Trial Chamber I, on a 2-1 majority, issued an oral judgement acquitting former Ivorian President Laurent Gbagbo and co-defendant Charles Ble Goude from all charges of crimes against humanity allegedly committed in the Ivory Coast in 2010 and 2011.

The Trial found that the prosecutor was unable to prove that the accused had a ‘common plan’ and ‘policy to attack civilian populations,’ as part of the crimes against humanity.

The acquittal of Gbabgo and Goude is but one among many from the Congolese Jean-Pierre Bemba Gombo, leader of a rebel group operating in the Democratic Republic of the Congo and the Central African Republic, to Congolese military commander Mathieu Ngudjolo and Sudanese rebel leader Abu Garda.

The acquittals have to be seen within the longstanding issues of credibility on the ICC's prosecutorial policy and its capability. A prosecutorial function can be measured by first, its impartiality and fairness in initiating cases and bringing charges; second, by the quality of charges - mainly the evidence collected and conviction rates; and third, efficiency and cost-effectiveness the case brings. 

Partial prosecution

 The ICC has 11 situations under investigation, of which ten are in Africa. It has 45 total indictments so far; 15 defendants are at large including Sudanese President Omar Al Bashir. Only six sentences, 13 acquittals, dismissals or withdrawn charges.

Many Africans have several questions: is the ICC is only prosecuting Africans? Did the prosecutorial policy and selective prosecution put ICC in political knots and is issuing selective justice? Are Africans the only ones committing crimes proscribed by the Rome Statute? Do the undemocratic nature of the United Nations Security Council and longstanding demands for its reform affect the standing of the ICC in the eyes of the weakest countries?

Observers, as well as the African Union, have voiced their misgivings and taken official positions with regards to all these questions.

The unholy alliance of the ICC and UNSC

Some of the questions posed above are about the relationship between the ICC and UNSC. The UNSC’s referral power enables ICC to exercise jurisdiction when a state is not a party to the Rome Statute. The same council can also defer cases for several years. The paradox here is that the majority of the UNSC members (USA, China, and Russia) are not state parties to the ICC.

This is merely an imposition of the will of the few on the rest of the world, and these members of the UNSC apply rules that do not apply to them.

Many Africans and non-Africans alike argue that the referral and deferral power of the UNSC undermine the credibility and independence of the ICC. Underlining the undemocratic nature of the veto powers within the UNSC, such powers of referral and deferral put the ICC under the influence of dominant global powers.

These powers of the UNSC bring the quintessential problem of international politics to the ICC; those power politics determines the fate of being indicted and reduces international justice to the selective justice of the powerful on the powerless. It politicises the ICC.

All are equal, but some more than equal than others

In other words and to use an Orwellian saying, ‘all are equal in the face of ICC, but some are more equal than others because they have veto power in the UNSC.'

Russia, China, and other permanent members of the UNSC are yet to face any investigation on their citizens or officials. The US refers cases to ICC through UNSC even though through bilateral agreements and the American Service-Members’ Protection Act, US citizens are shielded from prosecution at ICC.

This puts ICC in a grave crisis in two ways. The first has to do with the diminished credibility and public reputation of ICC. With such arrangement for UNSC, ICC could be easily accused of double standards and discriminatory justice. The second relates to the long-term negative effect on the legitimacy of the ICC and the UN Security Council. This has to be seen within the long-standing debate on the reform of the UN.

But more gravely, the ICC's inability to bring any case against the non-African and powerful countries raises severe doubts for its independence and capability to prosecute human rights violations. Partly this is attributable to the Prosecutorial policy of ICC.

Started on the wrong foot

Most of the ongoing cases in ICC were instituted by the former ICC Prosecutor, Louis Moreno Ocampo. Ocampo never exercised his immense prosecutorial discretionary power to enhance the ICC’s image and legitimacy. As the first Chief Prosecutor of the global court, wisdom and patience should have been the mantra to his, but he disregarded self-restraint in his prosecutorial role.

Ocampo was determined to make use of any means to achieve his end including through controversial alliances, sources of information and media smearing campaign (as released in Wikileaks) in futile attempts to change national politics.

He was a super-activist, and his prosecutorial approach has seriously damaged the ICC.

Many arrest warrants, few convictions

For a prosecutor, conviction rates and justice for victims are a better measure of success than indictments. More so, for a prosecutor of the first and newly constituted permanent international court, in particular, the quality of indictments and quantity of convictions are essential for building credibility.

The performances of ICC prosecutors in this regard is dismal depressingly low at less than 15 percent. Many of those indicted and against whom arrest warrants have been issued such, as President Al Bashir, Harun, Ali Kushaby and Joseph Kony are still at large.

During his term, Ocampo indicted 27 persons but failed to register even a single conviction. The Court has since dismissed two of his charges. The Pre-Trial Chamber dropped the charge brought against and ordered the release of, Callixte Mbarushimana from the DRC on the basis that the evidence submitted by Ocampo was not sufficiently substantiated.

Similarly, of 18 arrest warrants issued, no country is willing to arrest and hand over the fugitives. Such a lack of cooperation is not limited to African countries but also other countries like Qatar and Turkey.

Cooperation matters to the prosecutor and even more to ICC, a fledgeling international court banking on the will of the states’ to enforce its decisions.

The ICC Prosecutor needs to exercise his/her mandate in a manner that exudes confidence and thus, good relations with states and non-state actors.

Like any institution, courts operate within a political and public space. There is no special vacuum created for them, even if relatively speaking they could be insulated from overtly unwarranted political and public opinions.

By not investigating crimes committed in Afghanistan and Iraq, and focusing only on leaders of countries that have serious political rows with dominant Western powers like Sudan, Libya, and the Ivory Coast, the ICC prosecutor and UNSC has put the ICC project in jeopardy. 

In January, the AU Commission again expressed its concern regarding the ICC’s involvement and treatment of African countries. The ICC in December 2011 decided that Malawi and Chad had failed to respect the mandate of the ICC and the decisions of the UN Security Council about the arrest and surrender of President Omar Al Bashir of the Republic of Sudan.

Now, as the widespread protest against Bashir gains momentum, he will fight tooth and nail as giving up power might mean that his opponents hand him over to the ICC. The ICC, in a way, makes the situation in Sudan more intractable than it might otherwise be.

There is no legal solution to the conflicts in Africa, but certainly, there is no solution without justice, particularly through judicial accountability.  To be sure, in addressing impunity, Africa needs support from global institutions to ensure political and judicial accountability, but not by politicised, low quality and inefficient prosecution. 

To keep the ICC at bay and to effectively remove the fear of misuse of ICC by dominant powers and its focus on Africa, African states must first totally reject impunity and establish national and regional mechanisms that ensure accountability at the highest level of office. 

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