1 February 2016

Africa: Think Again - A Glimmer of Good News for the ICC in Africa

analysis

2015 was a difficult year for the International Criminal Court (ICC) in Africa. It began with the dropping of charges against Kenyan President Uhuru Kenyatta, who had been accused of crimes against humanity for his alleged role in Kenya's post-election violence in 2007/2008.

Prosecutors could not find enough evidence to make these charges stick. Although this was in large part due to Kenya's reluctance to cooperate with investigators, the decision to withdraw charges could be construed to vindicate, at least in part, Kenyatta's vocal criticism of the court.

In June, the ICC was again thrust into the headlines when Sudanese President al-Bashir - wanted in The Hague for genocide, war crimes and crimes against humanity in Darfur - visited Johannesburg for the 25th African Union (AU) Summit.

As one of the court's most enthusiastic supporters, South Africa was expected to arrest Bashir. Instead, he was greeted by South African President Jacob Zuma, cheered at the summit, and allowed to leave without impediment; defying a court-ordered travel ban in the process. Shortly after this, South Africa's ruling party, the African National Congress, announced that it planned to withdraw South Africa from the Rome Statute.

Finally, in November at the Assembly of States Parties to the Rome Statute in The Hague, tensions flared as the AU once again accused the ICC of unfairly targeting the continent.

'Our common resolve should not be tested, as the continent may be left with no other choice than to reserve its right to take any measures that may be necessary in the interest of preserving and safeguarding peace, security and stability, as well as the dignity, sovereignty and integrity of the continent,' said Ethiopian Foreign Minister Tedros Adhanom, speaking on behalf of the AU. This was widely interpreted as a veiled threat that African members might walk out of the ICC.

It is no wonder that commentators are questioning what future, if any, the ICC has in Africa. There is, however, at least one African country that seems to be swimming against the tide of anti-ICC sentiment.

In January, Democratic Republic of Congo (DRC) President Joseph Kabila officially passed the Implementation of the Rome Statute Act into law.

In theory, every country that signs the Rome Statute is supposed to do this to ensure that domestic legislation aligns with the country's international obligations. Not everyone does: according to the ICC, only 65 countries have enacted some form of implementing law, with the DRC the latest to do so.

The new law, which has been in the works for the more than a decade and was first passed by the DRC's national assembly and senate, explicitly criminalises serious crimes such as genocide, war crimes, and crimes against humanity. It also makes it an offense to interfere with the administration of justice in such cases, in an attempt to guarantee the independence of the judiciary.

'With the ICC's investigation focused on those most responsible for the worst crimes in the country, it is of utmost importance that the DRC's national courts be able to prosecute lower-level perpetrators of international crimes. This law is a first step in that direction,' said the Coalition for the International Criminal Court.

Above all, the new law reaffirms the DRC's commitment to the Rome Statute and the form of international justice offered by the ICC. It is not the only recent sign of this commitment, either. In mid December, former Congolese warlord Thomas Lubanga and militia chief Germain Katanga were transferred from prison in The Hague back to the DRC to serve out the remainder of their sentences.

Lubanga and Katanga were both convicted by the ICC: the former for using child soldiers, and Katanga for complicity in a massacre that left 200 people dead. That the ICC permitted Lubanga and Katanga to return home underscores a history of relatively close cooperation between the DRC and the ICC.

'Overall, the relationship between the DRC and ICC has been positive, although not entirely without hurdles. The DRC was the second country to make a referral to the ICC and has cooperated with the court. This includes arrests and surrender, cooperation in investigations and providing detention facilities for the enforcement of sentences,' said Ottilia Anna Maunganidze, a senior researcher at the Institute for Security Studies (ISS).

Maunganidze argues that the positive aspects of the relationship between the DRC and the ICC could be explained by the fact that the DRC, with its complex and often violent politics, needs international criminal justice more immediately than other African countries. 'Countries speak and act in their interests - at least government's interests. Countries that are affected by international crimes and that recognise the importance of international justice remain committed to the ICC,' she said.

It is important to note, however, that there may be ulterior motives for Kinshasa's perceived enthusiasm for the ICC. According to Stephanie Wolters, head of the Conflict Prevention and Risk Analysis Division at the ISS, the Kabila government's cooperation could be linked to wanting to remain in good standing with the ICC, possibly in an attempt to ward off investigations into government and the army.

Wolters argues that the long relationship between ICC and the DRC was an easy way for the Congolese government to score points with the international community in the early days of the ICC. 'None of those who were sent there between 2004 and 2007 had any national political importance and their arrests represented no threat to anyone close to Kabila, the senior ranks of the military or the government,' she said.

There is no doubt that challenges remain for the ICC in the DRC. Most importantly, it remains to be seen how the new implementation law will actually be applied. Will it be a genuine tool for justice, or simply another method for the government to control opponents?

But whatever the reasons for the DRC's continued cooperation with the court, it serves as a timely reminder that not all African countries are entirely opposed to international justice, and that the court still wields considerable influence in parts of the continent. In other words, although it may seem weakened, the ICC still has a significant role to play in Africa.

Simon Allison, ISS Consultant

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