ICC elects first African President- good for ICC Africa relationship?

Published 16th March 2018

On 11 March the International Criminal Court judges elected, by majority vote, Nigerian Judge Chile Eboe-Osuji as president for a three-year term. He is the first African to hold the position. Could his election assuage African leaders who remain convinced that the ICC is an institution led by westerners’ hell bent on targeting Africans leaders?

The current climate in which the ICC is forced to operate is arguably one of the toughest since the Courts inception. The ICC has come under attack including accusations of inefficiency, ineptitude, targeting Africans and being governed purely by the Western interests. The Court also lost a state party, Burundi, in 2017 and continues to face threats of withdrawal from other states.

Former Gambian President Jammeh called it the “International Caucasian Court.” In 2009 President Bashir who is wanted by the ICC stated that the ICC is a “tool to terrorize countries that the West thinks are disobedient.” Former Ethiopia Foreign Minister Ghebreyesus remarked that, “the court has transformed itself into a political instrument targeting Africa and Africans.” In 2015 the ANC’s Gwede Mantashe said that “it is a tool in the hands of the powerful to destroy the weak and it is a court that is focusing on Africa…” These are just a few examples from a long list of anti-ICC statements from African leaders.

Whilst the ICC’s current docket is the source of much criticism, the perception that the Court is led, operated and controlled by westerners has also played a role. The ICC comprises of four organs- the Registry, led by the Registrar, the Presidency and the Judicial Division, led by the President, and the Office of the Prosecutor (OTP), led by the Prosecutor.

The current prosecutor, Fatou Bensouda is Gambian and is the first black woman to hold this position. Not bad at all considering she is only the second person to fill this role.

The first president was Canadian Philippe Kirsch. He was followed by South Korea’s Sang-Hyun Song and then Argentina’s Silvia Fernández de Gurmendi who was the first female president.

The Presidency also includes a first and second vice president. Thus far, four African women have been first vice presidents: Joyce Aluoch; Sanji Mmasenono Monageng;Fatoumata Dembele Diarra and; Akua Kuenyehia.

The first registrar of the Court was French judge Bruno Cathala and he was succeeded by Italian Silvana Arbia. The current registrar is Dutch national Herman von Hebel.

Indeed the primary concern in the appointment of the leaders should be their qualifications and ability but the optics, gender balance and geographical representation should also be kept in mind. The election of the first African president, coupled with the fact that there is already an African prosecutor may help shift the perception that westerners dominate the ICC.

The perception of bias has also been linked to the geography of the ICC’s docket and its limited jurisdictional reach. All situations under investigation are African, except the investigation in Georgia. There are non-African situations under preliminary examination (the step before a fully-fledged investigation is opened) but at face value this gives rise to the claim that the Court “targets” Africa. However, a closer evaluation debunks this simplistic falsehood.

Four of the nine countries- Uganda, Mali, Central African Republic, the Democratic Republic of Congo invited the ICC to intervene. Two situations, Darfur Sudan and Libya were United Nations Security Council (UNSC) referrals, and only in Kenya, Burundi and Ivory Coast did the prosecutor’s office act of its own volition. Thus it is more a case of Africans making use of the court they helped establish. Gabon is the latest African country to ask for the ICC’s intervention having referred itself in September 2016.

Of the 54 recognised countries in Africa, 33 have signed and ratified the Rome Statute willingly subjecting themselves to the Court’s jurisdiction and making themselves the biggest regional block of signatories. In addition to being instrumental in the very creation of the ICC, they also fought for important fundamental principles including the independence of the OTP.

Several nations remain outside the ICC’s reach yet are in dire need of justice- this too must be acknowledged. The call for the universal application of international justice should be championed and sustained advocacy in this regard must continue. This includes encouraging other nations to sign and ratify the Rome Statute, and emboldening the UNSC to make justice-oriented use their referral power.

The ICC has many shortcomings and remains in need of constructive criticism, sustained engagement, and support from all of member states. The president, mandated to coordinate judicial matters and conduct external relations, has a crucial role to play. Ebou-Osuji will have to work to ensure that African states remain engaged without marginalising the rest of the state parties. He will have to wade through the high expectations, scrutiny, praise and condemnation.

** This article first appeared in the Star Newspaper on 15 March 2018

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