Fahamu (Oxford)

8 March 2012

Africa: Pan Africanists and the International Criminal Court

analysis

Photo: Mirjam van den Berg/RNW
The ICC building in The Hague, The Netherlands.

Pan Africanists must take the lead to ensure that those who commit genocidal violence and crimes against humanity are tried in the court of public opinion and isolated in every way.

The recent news of the prayer meetings being held across Kenya by aspiring presidential candidates and the genocidal language being used in these political rallies are so morally repulsive that decent human beings in all parts of the world must pay attention. If abusing the idea of prayer and spiritual reflection was not bad enough, the inflammatory language is coming from individuals who have been ordered to stand trial at the International Criminal Court in The Hague on charges of crimes against humanity. These charges stem from the crimes committed against the peoples of Kenya after the 2007 elections and fraud when more than 1,100 people are believed to have been killed in organised attacks and more than 300,000 were driven from their homes or fled in the violence.

The violence in Kenya was only one manifestation of the wider economic terrorism against the people committed by a cabal that has been associated with numerous forms of primitive accumulation since the peoples of Kenya fought for their independence. There is a 'mafia-like cartel' that has become rich in Kenya and these forces see themselves as above the law. Numerous reports exist on the relationship between fraud, money laundering, drug trafficking, violence, phony pharmaceutical products and a deformed financial sector. Kenyans are conscious of these crimes and the struggles against impunity reached a high point in 2010 when Kenyans ratified a new constitution. Kenyans understood that there must be an end to impunity and that the Kenyan judicial system had to be cleaned up in order to shut down the cartel of accumulators who use violence to stay in power. These Kenyans who want peace and social justice must be supported by progressive Pan Africanists everywhere.

That the judicial system in Africa and the African Union has been unable to prosecute those who carry out crimes against humanity is one of the weaknesses of the AU at this historical moment; but, as I will argue this week, Pan Africanists ought to be at the forefront at the prosecution of crimes against humanity. Pan Africanists from the grassroots cannot await the legal processes of the International Criminal Court (ICC) to organize against criminality and genocide in Africa. Justifiably, there are voices in Africa who have pointed out how the ICC has been used against Africa at present. I will maintain in this contribution that peace and justice activists must take the lead to ensure that those who commit genocidal violence and crimes against humanity must be tried in the court of public opinion and isolated in every way. In this way all of the resources available within the Pan African Movement must be deployed to ensure that the members of criminal syndicates involved in drug running, gun running and money laundering cannot use these resources to corrupt the political processes. I will argue that the form and content of the discussions of Pan Africanists and the International Criminal Court cannot distract peace and social justice forces from the need to develop networks of peace, justice and social solidarity.

We will draw attention to the origins of the International Criminal Court and the reality that it was from the Caribbean where the call came for the establishment of the International Criminal Court. The former Prime Minister of Trinidad and Tobago, A.N. R. Robinson had spent his life fighting for the establishment of the ICC. The Caribbean could not fight on its own against the international drug cartels, and although the questions of international drug cartels and money laundering were excluded from the Rome Statutes, the Pan African Movement must wage battles at every front to strengthen the pressures from below leading to the day when the African strength in the international system will be so overwhelming that there can be no politician who offer themselves up for leadership who have a criminal past.

FALSE DEBATES BETWEEN PEACE AND JUSTICE

In revolutionary moments the clarity of the tasks of those who yearn for change emerge with such force that old conceptions and divisions are exposed very quickly. Africa has seen this clearly in Egypt where the rapidity of the fall of the Hosni Mubarak regime has set in process a crisis for those who trumpeted Egypt as a base for 'reform' and 'good governance.' One of the byproducts of the clarity has been the writings of Samir Amin, who has been most lucid in clarifying the essence of corruption while calling for audacity in the process of socialising the means of production. Far from moralising about corruption, Samir Amin has exposed corruption as an 'organic and necessary component in the formation of the bourgeoisie.' It is not by accident that Samir Amin was discussing the question of corruption in his analysis of the ways in which Africa and the Middle East are caught in a storm zone against capitalism. That is to say the understanding of state violence and corruption within the exploited countries must be located within the global system of accumulation. As he maintained,

'If a comprador bourgeoisie is to be formed the sole way for that to take place is in association with the state apparatus. I maintain that at the stage of generalized monopoly capitalism corruption has become a basic organic component in the reproduction of its accumulation model: rent-seeking monopolies require the active complicity of the State. Its ideological discourse (the "liberal virus") proclaims "state hands off the economy" while its practice is "state in service to the monopolies.' [1]

This is to say that the violence and crimes being committed in most parts of the world cannot be separated from the criminal activities of the international financial oligarchy. So-called corruption watchers such as Transparency International never implicate the bankers at the head of corruption internationally. However, in this period of financial crisis, books such as '13 bankers : The Wall Street Takeover and the Next Financial Meltdown' have exposed the epicenter of corruption and the most corrupt aspect, the belief system of contemporary capitalism. This is the belief that free markets and the unbridled operations of big financial systems are best for society.' Michael Hudson has gone further than Simon Johnson in outlining the corruption of the belief systems. Hudson has detailed the crimes of the Banks and has written that 'Big American banks are Crime Gangs.'

Pan Africanists from the period of slavery have always associated banks such as Barclays bank and Lloyds bank with the most heinous crimes against humanity. This was the spirit in which Eric Williams wrote the book, 'Capitalism and Slavery'. Today the same financial institutions that were born in the period of slavery are integrated into the financialisation of the global economy. Most recently there has been information on how one US bank laundered billions of dollars for Mexican cartels. This is why Samir Amin has maintained that in societies such as Egypt, the local comprador bourgeoisie 'make up the active support for Egypt's placement in contemporary imperialist globalization as an unconditional ally of the United States. Within its ranks this bourgeoisie counts numerous military and police generals, "civilians" with connections to the state and to the dominant National Democratic Party.'

If we replace the word Egypt for Nigeria, Kenya, Morocco or Angola, then we can understand corruption as stemming from Wall Street, the international financial institutions and numerous political and security personnel in a vast criminal enterprise. Just as Egypt in North Africa was an unconditional ally of the United States, so in East Africa, Kenya is such an ally. As in Egypt, the youths and cultural artists are working hard to end all forms of divisions and manipulations. In this revolutionary moment, the challenge for the progressives must be to break the vast criminal enterprise in Kenya which has been well documented in the pages of the Kenya Law Review. Evidence and stories of corrupt accumulation of wealth has become so common place in Kenya that the poor are now immune to the revelations. However, those activists who have been exposing the thieves cannot rest because the ill gotten gains are channeled into the political process. For the past forty years forced removals, ethnic hatred and disenfranchisement through political fraud have worked like hand in glove. After the hard work by sincere activists for peace in Kenya, it is absolutely clear that the crimes of genocidal violence are not crimes of passion or associated with 'ethnic' or 'religious' differences, but are mobilized as one component of dividing working peoples. This is a case of Kenya.

The issues of the mafia style cartel that dominate the state apparatus, including the organs of information, are overlooked by some and the institutions of higher learning churn out reams of information on 'inter-ethnic conflict.' Some sections of the peace and justice NGO's are then deployed in 'conflict resolution' exercises that divert the poor from organising against state violence. Organized self activity of the working people are disparaged and when the people take industrial action to defend their rights the manipulators enter the political stage to undermine the political actions of working peoples. Millions are spent in by some international mischief makers in Kenya on organizations whose sole task is to ensure the demobilization of the Kenyan working people, especially the youth. These international 'humanitarianism' are called upon to remove themselves from those NGOs who do not have the interest of peace and justice at heart.

There are local social groups who struggle to do good work in communities in Kenya. These have been nurtured in societies where the potential of the working people are very high and it is no accident that Kenya boasts one of the largest concentrations of international non-governmental organizations in Africa. It is from among some of these NGOs where we hear of the false dichotomy between peace and justice and whether politicians associated with genocidal economics and genocidal politics should be isolated. Some intellectuals who start from a Pan Africanist position also add to the false distinctions by drawing attention to the imperialist moorings of organs such as the International Criminal Court. In most cases, the arguments against the ICC are spot on, but as revolutionary Pan Africanists our task is not to stop at critiquing the ICC, we must be even clearer in our opposition to crimes against humanity in Africa with multi-pronged strategies. Progressives must bring out the information on formations such as Boka Al Aram, gun running, the drug trade and money laundering. When the idea of the ICC was first presented, the issues of the international drug cartels was upper most in the minds of those who wanted an international body that could clean up the international drug trade. This task is even more urgent as the storms of revolution sweep Africa. Those with the financial and military resources for these forms of accumulation will do everything to divide working people who want better social conditions.

Pan Africanists must oppose criminal cartels. In this way we will be able to build solidarity with those forces that were at the forefront of the call for the establishment of the International Criminal Court. Many in Africa do not know that it was Caribbean Jurists who were at the forefront of the call for the establishment of the International Criminal Court.

THE CARIBBEAN AND THE ESTABLISHMENT OF THE INTERNATIONAL CRIMINAL COURT

A.N R. Robinson, from Tobago in the Caribbean, was a student in Oxford when he met Robert Kurt Woetzel. Tobago is a twin island of the state of Trinidad and Tobago. It is a homogenous African society and the people are passionate about the crimes of enslavement, past and present. Robinson worked most of his life for the establishment of the International Criminal Court and had taken the lead to place this issue before the General Assembly of the United Nations in 1989 when he became the Prime Minister of Trinidad and Tobago. Robert Kurt Woetzel whose background was German and Jewish had written his doctoral dissertation on the Nuremberg Trials and had published a book, 'The Nuremberg Trials in International Criminal Law'. Operating from New York, Woetzel had founded the International Criminal Law Commission and wrote extensively on the feasibility of the establishment of an International Criminal Court. For more than 30 years both Robinson and Woetzel collaborated in pushing for peace and law. Woetzel wanted a court that would prevent war and criminalize aggressive states and Robinson wanted a Court that could stamp out the international narcotics trade in the Caribbean. A.N.R. Robinson was involved with the more than 300 international grassroots organizations that were part of the peace movement and called for an International Criminal Court.

The urgency of an international body to deal with issues of the banks and the drug trade became clear during the decades of the eighties when the Reagan White House was using the Caribbean as a transit point for the transshipment of large amounts of narcotics. The role of the White House in this drug trade has been fully established in the U.S. Senate Committees investigating the Iran-Contra Scandal. The distortion of economic activities throughout the region reached its high point when the international banks organized the Caribbean offshore banks as the centers for international money laundering. Today, these offshore banks are depositaries of trillions of dollars from the illicit narcotics trade.

Caribbean jurists were aware that an international body was needed to control these banks and the drug dealers from Wall Street. At the 1987 meeting of CARICOM Heads of Government, they passed a resolution,

'That the International Community should cooperate in the establishment of a multi-lateral strike force, and an International Criminal Court to deal with the question of narcotics interdiction and adjudication , very often beyond the capabilities of Island States.'

When Robinson became the Prime Minister of Trinidad and Tobago in 1989 he used the resources of the state to place the matter of the international narcotics trade before the General Assembly of the United Nations. Together with Michael Manley, who was then the prime Minister of Jamaica, these Caribbean societies took the lead in the pressure for the establishment of an international Criminal Court. David Kreiger in his citation of the work of A.N.R. Robinson and the Power of One noted,

'I believe in the Power of One, the capacity of a single individual to make an important difference in our world. In many ways, this may seem like an article of faith, rooted in hope. But, in fact, it is more than an article of faith, for there are indeed individuals whose lives have made a significant difference in improving our world. One such individual is Arthur N.R. Robinson, who has served as both Prime Minister and President of his country. He has had a remarkable and charmed life, and he has altered the course of history by his extraordinary leadership in the creation of an International Criminal Court'.

When the court was finally established, the banking forces made sure that the question of money laundering and narcotics interdiction did not come under the jurisdiction of the court. Today the Caribbean has been crippled by the criminal cartels that dominate the drug trade and individuals are still fighting the battles against drug lords and their financial supporters in Wall Street. It is now very clear to most progressives in the Caribbean and Latin America that the question of the narcotics trade is not a matter of corruption but that this trade form an organic part of the international capitalist system.

THE INTERNATIONAL CRIMINAL COURT AND ITS JURISDICTION

Prior to the coming into force of the Rome Statute, in the submissions within the United Nations about the jurisdiction and mandate of the international criminal court, the question of the interdiction of narcotics trafficking was a subject of heated debates. During these debates there had been general consensus that the ICC's jurisdiction should extend to genocide, crimes against humanity, and crimes, against the laws and customs of war. The definition of crimes against humanity primarily is based on the Nuremberg precedent and includes the widespread or systematic commission of acts such as murder, extermination, enslavement, torture, and rape or other sexual abuse. The definition of war crimes specifically would include such offenses as willful killing, torture, or inhuman treatment including biological experiments, unlawful deportation or confinement, and the taking of hostages.

The contentious issues were whether crimes of aggression should be included, whether the manufacture of certain biological agents should be included, whether terrorism should be included and whether trafficking in narcotics should be included. It is important to revisit the debates about the establishment of the ICC just as today it is important to revisit the Freedom Charter that gave birth to the new South Africa. That the present political leaders of South Africa have not lived up to the spirit of the Freedom Charter should not in any way diminish the importance of the struggles against apartheid. So it is with the ICC: The fact that the same forces that undermined the victory over apartheid is undermining the ICC should not deter peace and justice forces from working harder for the realization of an international body that can and will fight against crimes against humanity and genocide.

The International Criminal Court is a today a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression. The ICC came into being on 1 July 2002 -- the date its founding treaty, the Rome Statute of the International Criminal Court, entered into force -- and it can only prosecute crimes committed on or after that date. The Court's official seat is in The Hague, Netherlands, but its proceedings may take place anywhere. It is important to note that while 120 states are state parties to the Statutes of the court, states such as Israel, Sudan and the United States have 'unsigned' the Rome Statute, indicating that they no longer intend to become states parties and, as such, they have no legal obligations arising from their former representatives' signature of the Statute. There are about 32 countries which have signed but not ratified the Rome Statute.

One important development of the ICC was that at the Review Conference in Kampala, Uganda in 2010. The Review Conference adopted a definition of the crime of aggression, thereby allowing the ICC to exercise jurisdiction over the crime for the first time. It also adopted an expansion of the list of war crimes. Although the application of this crime of aggression does not come into force until 2017, it marks an important step in international law.

The United States has been the main opponent of the International Criminal Court. During the time of the discussions on the inclusion of terrorism as a crime against humanity, the United States objected on the grounds that this would compromise information gathered by its law enforcement agencies. Today there is no international agreement on what constitutes terrorism. Yet, the USA wants the entire international community to accept its definition of terrorism. Similarly, when the United Nations wanted to enforce strict control over international narcotics trade and money laundering, it was the banking sector of the United States that objected. These financial barons did not want any control over offshore banking because these offshore institutions are at the center of the new forms of global capitalism. One year after the United States launched its Global War on Terror, the US government withdrew from the International Criminal Court Treaty. It is this same US government which is not a member of the ICC which will use its position in the Security Council of the United Nations to call for the indictment of leaders in Africa.

The Court has received complaints about alleged crimes in at least 139 countries, but, currently, the Prosecutor of the Court has opened investigations into seven situations in Africa: the Democratic Republic of the Congo; Uganda; the Central African Republic; Darfur, Sudan; the Republic of Kenya; the Libyan Arab Jamahiriya and the Republic of Côte d'Ivoire. Of these seven, three were referred to the Court by the states parties (Uganda, Democratic Republic of the Congo and the Central African Republic), two were referred by the United Nations Security Council (Darfur and Libya) and two were begun proprio motu by the Prosecutor (Kenya and Côte d'Ivoire).

The style and substance of the operations of the present prosecutor of the ICC has offended many Pan Africanists and there has been a heated and necessary debate within Africa on the indictments handed down in Africa by the ICC. After the President of the Sudan was indicted, this debate intensified with the majority opinion among progressive Pan Africanists that the Court was now a tool of international imperialism against Africa. This position gained even more credence after the case of Gaddafi was referred to the ICC. This referral was explicitly designed to undermine the negotiations of the African Union and to diminish the AU Roadmap for Peace in Libya. When the former President of Côte d'Ivoire was packed off to The Hague, the clarity of the arbitrary nature of the ICC engaged numerous Pan Africanists. The questions were many:

Why African leaders and not George W. Bush or Donald Rumsfeld?

Why should Laurent Gbagbo be tried in The Hague, not Côte d'Ivoire?

Why is the Kenyan judicial system not adequate for the prosecution of those who orchestrated the 2007-2008 post- election violence?

In the face of these challenges from Africa, the ICC has chosen an African judge as the new Chief Prosecutor of the ICC, replacing Luis Moreno-Ocampo. By choosing Fatou Bensouda from the Gambia as the first African to hold a top post at the ICC, the western handlers of the ICC were hoping to limit the criticisms that the Court has been biased in going after Africans.

I am at one with the argument that the ICC has been biased but this evidence of bias should not dissuade progressives from exposing criminals in our societies. The questions on the ICC persist even with the appointment of Fatou Bensouda. As the history of African faces at the helm of western capitalist organizations proved, Africanizing the face of an institution does not automatically alter its mission. However, in the case of the ICC because Pan Africanists were working for its foundation, there must be ways to engage this body to engage Fatou Bensouda.

From the point of view of this writer, one should oppose both imperialism and those who commit war crimes in Africa. I remember during the days of Idi Amin Dada of Uganda when he was committing crimes against the people of Uganda and East Africa, his supporters in parts of the Pan African world argued that whenever the imperialist oppose a 'brother' then this brother is worthy of support. Walter Rodney and I agreed that progressive Pan Africanists must take the lead in opposing Idi Amin, this regardless of whether he was opposed by imperialists or not. Our argument was that Amin was doing the work of imperialism in destabilizing Africa.

Today, we are faced with the need for similar clarity. If there are elements in Kenya or Côte d'Ivoire who carried out crimes against humanity, it devolves to the Pan African movement to be at the forefront of exposing these elements. This is with the understanding that these crimes are part of the crimes of capital against the people. The political game of elections and competition for control over the state apparatus is now intertwined with the relationships to the mafia like cartels that dominate African societies. The so called 'ethnic card' is readily available to manipulate the youth to perpetuate the control of the political spaces by the criminal cartels. It is for this reason that those who are associated with wrong doing can harness millions of dollars to'rent a crowd' to appear at prayer meetings intended to sow divisions and confusion.

PAN AFRICANISM AND THE COURT OF PUBLIC OPINION.

From my understanding of the case of the Kenyans referred to the ICC, these Kenyans have been tried in the Court of Public Opinion. This court is seeking new platforms to be able to cleanse Kenyan society. The struggles over the constitution in 2010 were one such struggle to strengthen the platform to create a new base for social justice and democratic participation. The new Chief Justice of Kenya has the task of mobilising the residual verdict of the Court of Public Opinion in Kenya to work in the long process of cleaning up the judicial system in Kenya. Religious institutions, the media, the universities, cultural institutions and political organs will then be affected positively with this clean up and end to impunity. It was the British who started this tradition of impunity and the same forces instilled the ideas of gangs and counter gangs to derail the true independence of Kenya. Gangs and counter gangs are now unleashed in the name of defending ethnic enclaves, which are in reality fronts for massive theft.

Pan Africanists in every area of social interaction have a duty to work to end impunity by criminal cartels in all parts of Africa, including Kenya.

I would use the case of Guyana to demonstrate the fact that individuals and organizations must not shrink from championing the cause of Justice. In Guyana, the society had been taken over by drug barons. One particular baron was in cahoots with the government. Elder Eusi Kwayana gave himself the task of exposing the linkages between the barons, the cartels and the different forces that were drawn into this war that destroyed communities in Guyana. Singlehandedly at the age of 80 Kwayana undertook an investigation of the networks and wrote a book to expose these syndicates. The book was called, 'The Morning After'.

This book did a lot to undermine the plans of those who wanted to weaken the people by painting the wars in Guyana as a war between Indians and Africans. After the publication of this book, the revelations were so embarrassing for the United States that one of the leading barons was intercepted in Trinidad and extradited to the United States. He was later tried and convicted in New York. Kwayana was demonstrating that while Michael Manley and A.N.R. Robinson argued that the interdiction of drugs and money laundering was above the capability of any small island state, there was a lot that individuals and groups can do.

Similarly in Jamaica, the recent case of the extradition of Dudus Coke exposed the complicity of political leaders at the highest levels. When the information on the international linkages had become too clear, the USA called for the extradition of Coke to stand trial in New York. The very same pro-imperialist politicians who are from the political formation that was at the forefront of the alliance with Ronald Reagan to invade Grenada, started to reel off anti-imperial statements about national sovereignty. . Individual and groups in Jamaica continue to write and expose the linkages between the state and these nefarious forces that work to cripple the ability of the working poor to organize to better their conditions.

The third case was that of the role of Allen Sanford in Antigua. For close to twenty years this person who presented himself as a Texas financier sought to dominate the Eastern Caribbean. This week R. Allen Stanford was convicted on 13 of 14 counts relating to a Ponzi scheme where he was bilking investors out of more than $7 billion in one of the largest Ponzi schemes in U.S. history. Caribbean progressives had for years opposed Stanford who had established an airline in the Caribbean island of Antigua. From the loud opposition of Caribbean radicals, writers such as John La Carre wrote a novel, 'Our Kind of Traitor', about Antigua as a base for money laundering. Is it possible that his conviction on this Ponzi scheme is part of a wider effort to cover the real role he was playing in the Caribbean?

THE AFRICAN UNION AND THE INTERNATIONAL CRIMINAL COURT

The best case for Africa is for the present storm to blow away the comprador elements that form the organic part of the international system. Whether in Angola, Ghana, Kenya or other parts of Africa the financial institutions have been corrupted by the drug dealers. The African Union was established to be able to better the conditions of Africans. The core principles of the AU repeat the call for the end of genocide, crimes against humanity and other related crimes. Thus far the AU established the Committee of Eminent African Jurists (CEAJ), but this Committee will be as strong as the democratic movement in Africa.

Africans must in the short run work for the end of exploitation in their societies. While this process is underway, the progressive Africans must denounce politicians who use the façade of [prayer meetings to divide the working peoples and preach the politics of hate. Progressive Pan Africanists do not have to wait for the indictments of the International Criminal Court. Those who commit crimes must be exposed, marginalized and be excluded from spaces of social interaction. The opposition to crimes against humanity must take legal, social, economic and cultural forms. Our cultural artists must fashinon songs to render these forces as social outcasts.

This author will agree with Mahmoud Mamdani that, 'There is no doubt that the perpetrators of violence should be held accountable, but when and how is a political decision that cannot belong to the ICC prosecutor. More than the innocence or guilt of the president of Sudan, it is the relationship between law and politics, including the politicization of the ICC, which poses a wider issue, one of greatest concern to African governments and peoples.'

Mamdani was writing in relation to the indictment of President Bashir of the Sudan. The West has exposed their duplicity because while indicting Bashir, they cooperated with the same Bashir and joined with him in the illegal war to change the government of Libya.

Progressive Pan Africanists must oppose crimes against humanity; depoliticize the ICC at the present and work for the unity of Africa so that the African block in the international community will be a force to enforce the Rome Statutes in relation to wars of aggression and the international narcotics trade. Far from weakening the ICC, the Rome Statute must be brought up to the realities of the 21st century. The crimes against humanity must now include the crimes against nature. In less than ten years the ICC can become irrelevant if the forces of peace and justice internationally do not work to clean up the real criminals. As an arm of the United Nations, the future of the ICC is bound up with the democratization of the United Nations. Far from opposing the ICC, Africans must strengthen social justice movements in their societies so that it becomes a moot question as to where to put on trial those who orchestrate the deaths of thousands. This work must proceed so that by the time Africa is united and the Africans and indigenous peoples democratize Latin America, especially Brazil, there will be a new platform for the enforcement for international law.

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