The Herald (Harare)

12 October 2013

Africa: D-Day for African Union, ICC Relations

PRESIDENT Mugabe arrived here last night to attend an Extraordinary Summit of the African Union General Assembly today called to discuss future relations between Africa and the International Criminal Court.

He was welcomed at Bole International Airport by Ethiopia's Minister Responsible for Customs and Revenue Mr Bhukar Shale, Zimbabwe's ambassador to Ethiopia Dr Andrew Hama Mtetwa, his deputy Mrs Sienzeni Mateta, embassy staff and Foreign Affairs Minister Cde Simbarashe Mumbengegwi, who arrived earlier for an executive council meeting.

The President was seen off at Harare International Airport by Vice President Joice Mujuru, Defence Minister Sydney Sekeramayi, Presidential Affairs Minister Didymus Mutasa, Information, Media and Broadcasting Services Minister Professor Jonathan Moyo and service chiefs.

Also seeing him off were Chief Secretary to the President and Cabinet Dr Misheck Sibanda and Secretary for Transport and Infrastructural Development Mr Munesushe Munodawafa.

A possible collective pullout of the 34 African countries that ratified the Rome Statute -- the ICC founding charter -- would likely emerge among the most contentious points of debate.

Zimbabwe has not ratified the treaty on the strength of its deep-rooted belief in domestic legal systems.

It is, however, expected to support nations with a similar perspective on the ICC.

The summit is being convened at the request of East African countries after The Hague-based court charged Kenyan President Uhuru Kenyatta and his deputy Mr William Ruto with alleged crimes against humanity.

The two are accused of instigating post-election violence that left more than 1 200 dead between 2007 and early 2008.

Since its inception 11 years ago, the ICC has launched investigations into just seven countries, all of them African - Uganda, DRC, Central African Republic, Sudan, Kenya, Guinea, Côte d'Ivoire, and Libya - and has indicted 27 people, again all of them Africans despite receiving over 8 137 communications from more than 130 countries as of 2009.

Because of this, the ICC has been accused of targeting Africans for prosecution.

According to a draft agenda made available this week, the Extraordinary Session would be preceded by the opening of the Executive Council.

Ethiopian Prime Minister and AU chairperson Mr Hailemariam Dessalegn is expected to present a statement after which summit will consider a progress report on the implementation of resolutions regarding international jurisdiction, justice, and the ICC passed in May this year.

Summit will also consider the election and subsequent appointment of a new Commissioner for Peace and Security following the appointment of Ambassador Ramtane Lamamra as Algeria's Foreign Affairs Secretary.

In May, Heads of State and Government resolved to seriously look into the ICC's apparent bias against Africa and the misuse of indictments against its leaders. Cases in point include those involving Sudanese President Omar al-Bashir and the two Kenyan leaders.

President Al Bashir, who became the first sitting head of state to be indicted by the court, is facing five counts of alleged crimes against humanity, two counts of war crimes and three counts of genocide. The ICC alleges he perpetrated the crimes "indirectly" during an armed conflict in Darfur between March 2003 and July 2008 and has since issued two arrest warrants.

He, however, denies the charges.

An AU request to the United Nations Security Council to defer proceedings against him is yet to be acted upon. Last week, Mr Ruto was back at the ICC after returning to his country to deal with the attack on a shopping mall in the capital, Nairobi.

Mr Kenyatta is due at the court next month.

Regarding Kenya, leaders at the summit said the indictment of the two was likely to impede ongoing efforts to promote peace, national healing and reconciliation.

They also stressed the need for international justice to be conducted transparently and fairly to avoid any perception of double standards.

In addition, the AU Commission was requested to report regularly on the implementation of the various Assembly decisions regarding the ICC.

A section of the report to be considered today reads: "Assembly deeply regrets that the request by the African Union (AU) to the United Nations (UN) Security Council to defer the proceedings initiated against President Omar al-Bashir of The Sudan and Senior State Officials of Kenya, in accordance with Article 16 of the Rome Statute of the International Criminal Court (ICC) on deferral of cases by the UN Security Council, has not been acted upon;

"Expresses concern at the threat that the indictment of H.E Uhuru Muigai Kenyatta and H.E William Samoei Ruto, the President and Deputy President of the Republic of Kenya respectively, may pose to the on-going efforts in the promotion of peace, national healing and reconciliation, as well as the rule of law and stability, not only in Kenya, but also in the region;

"Recalls that, pursuant to the principle of complementarity enshrined in the Rome Statute of the ICC, Kenya has primary jurisdiction over the investigations and prosecutions of crimes in relation to the 2007 post-election violence, in this regard,

"Supports and endorses the Eastern Africa Region's request for a referral of the ICC investigations and prosecutions in relation to the 2007 post-election violence 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, in support of the on-going peace building and national reconciliation processes, in order to prevent the resumption of conflict and violence in Kenya."

Today's interface was scheduled to take place in January. However, deeply concerned by the indictment of Kenya's leaders, East African states proposed a special summit to tackle the matter expeditiously.

Indications are summit will witness divided opinion between nations advocating pulling out of the ICC and those backing it. Reports suggest some Western countries have threatened to stop aid to particular nations that pull out.

In an interview last Wednesday, Foreign Affairs Secretary Ambassador Joey Bimha said Zimbabwe would support views that resonate with its perspective.

"We have never been part of it (the ICC). So, we will listen to those who want to pull out.

"Our going there is to lend our support to those who are now seeing things in the way that we have already seen them."

The ICC was established in 2002 following the signing of the Cotonou Agreement between the European Union and the African, Caribbean and Pacific Group of States. The treaty seeks to reduce and eventually eradicate poverty "while contributing to sustainable development". It also aims to gradually integrate ACP countries into the world economy.

An underlying component of the agreement is to "fight against impunity and promote criminal justice through the International Criminal Court". Member states were encouraged to also sign the Rome Statute after entering the Agreement.

Countries not covered by the treaty were also free to sign the ICC founding charter.

Zimbabwe did not, however, become party to the Rome Statute on the basis of its efficient domestic legal system that is capable of dealing with various crimes.

In 2000, the United States signed the statute ostensibly to influence the court's decisions. It, however, "unsigned" two years later and threatened to use military force if its nationals were held at The Hague.

The ICC essentially focuses on genocide, crimes against humanity, war crimes and the crime of aggression. It can only investigate and prosecute these violations where states are "unable" or "unwilling" to do so themselves.

While the court has jurisdiction over state parties, its jurisdiction over crimes can also be authorised by the United Nations Security Council. Since the Rome Statute came into force in 2002, there has been a strong conviction across Africa that the ICC was specifically tailored to settle political scores with leaders of the continent.

So far, the court has indicted two sitting heads of state - President Al Bashir and Libyan leader Colonel Muammar Gaddafi. Former Liberian President Charles Taylor and Cote d'Ivoire's former leader, Mr Laurent Gbagbo have also appeared.

The court alleged that Colonel Gaddafi ordered the killing of civilians in the preliminary stages of the Libyan uprising in 2011, a claim that continues to be challenged.

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