The International Criminal Court, United Nations, Member-States, And The African Union (AU): The Case For Democracy Under Law

By Bai M. Gbala, Sr.

The Perspective
Atlanta, Georgia
February 13, 2017



The International Criminal Court (ICC) is an inter-governmental agency and International Tribunal established by the United Nations (UN) domiciled at The Hague in the Netherlands. The ICC has jurisdiction and authority to prosecute individuals, including Heads of State and other prominent political personalities for international war crimes of  genocide and war crimes against humanity.

The Court is designed to complement existing national judicial systems and may, therefore, only exercise jurisdiction where and when national courts are unwilling or unable to prosecute suspects, when the UN Security Council or individual states refer cases to the Court. The Court began operations on July 1, 2002, the date on which the Rome Statute, a multilateral treaty which serves as the ICC's legal authority and governing document,came into force. States become supporters and, therefore, members of the International Criminal Court by ratification of the Rome Statute. Presently, there are 124 states which are signatories to the Rome Statute and, therefore, members of the ICC.

History of the Court & the United Nations
Resolution No. 260 of December 9, 1948 by the United Nations General Assembly (Convention on the Prevention and Punishment of the Crime of Genocide) was the first step towards the establishment of an international, permanent criminal tribunal with jurisdiction on crimes yet to be defined in international treaties. There was the hope in this Resolution for an effort from the Legal UN commission in that direction. After the considerations expressed from the commission, the General Assembly established a committee to draft a statute and study the related legal issues. In 1951 a first draft was presented; a second followed in 1955, but there were a number of delays, officially due to the difficulties in the definition of the aggression that were only solved with diplomatic assemblies in the years following the statute's coming into force. The geopolitical tensions of the Cold Waralso contributed to the delays. (Wikipedia, Free Encyclopedia, online)

The Rome Statute is the result of several, serious attempts for the creation of a supra-national and international tribunal. At the end of 19th century, the international community took the first steps towards the institution of permanent courts with supranational jurisdiction. With the Hague (The Netherlands) International Peace Conferences, representatives of the most powerful nations made an attempt to harmonize laws of war and to limit the use of technologically-advanced weapons of mass destruction. After World War I and more after the heinous crimes committed during World War II, it became a priority to prosecute individuals responsible for crimes so serious that needed to be called "against humanity". In order to re-affirm basic principles of modern democracy under law, with socio-cultural reforms and transformation such that alleged criminals were, and are, not executed in public squares or sent to torture camps, but treated as suspects by regular trial, with right to defense and the presumption of innocence until proven guilty. The Nuremberg trials marked a crucial moment in legal history, and after that, some treaties, including the Rome Statute, were signed by representatives of member-states of the United Nations. Thus, this action by the UN provided the legal basis for the operation of the ICC within the reformed democratic process under law. The United Nations has supported the world court consistently, persistently since its founding and establishment.

Opposition to the Court
However, there is fierce opposition to the Court with threat of withdrawal, en-mass, by some UN member-states who are, also, signatories to the Rome Statute. The Statute established four core international crimes - genocide, crimes against humanity, war crimes, and crime of aggression  The Statute was adopted on July 17, 1998 by a vote of 120 to 7, with 21 countries abstaining.  Because the manner in which each delegation voted was officially unrecorded, there had been, and is, dispute about the identity of the seven countries that voted against the Statute. But, it is certain that the People's Republic of China, Israel, and the United States were three of the seven because they have publicly confirmed their negative votes; India, Indonesia, Iraq, Libya, Qatar, Russia, Saudi Arabia, Sudan, and Yemen have been identified by various observers and commentators as possible sources for the other four negative votes, with Iraq, Libya, Qatar, and Yemen being the four most commonly identified. 

African Union (AU) and withdrawal Movement
The decision to leave the ICC began with the indictment of the Kenyan President, Mr. Uhuru Kenyatta and his deputy, William Ruto for Crimes against Humanity allegedlycommittedafter the disputed 2007 elections. Although they were indicted before they became president and vice president, respectively, but they used their positions not only to win the election, but also, to campaign against the ICC with the claim that “it is demeaning for a sitting head of state to appear before a foreign court”. Is the ICC a foreign court?

President Kenyatta found an ally, an acidic critic of the ICC, in Uganda’s Yoweri Museveni who was vocal supporter of the ICC because Uganda was one of the original signatories of the Rome statute at the height of LRA insurgency in Uganda. Yoweri Museveni or Uganda referred several LRA members to the ICC. But, since becoming President, Museveni has become anti-ICC.

The ICC on Trial before the African Union (AU)
On October 12, 2013 at the Extraordinary Summit, the African Union  says that the “ICC should not prosecute sitting African leaders . . . 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 a threat 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.” Therefore, urged the ICC to defer trial of Kenyan president and deputy amid claims that the ICC unfairly targets Africa. The Kenyan president is facing ICC charges for allegedly orchestrating a killing spree.  

The Summit called for cases against sitting leaders in the International Criminal Court (ICC) to be deferred, until the politicians leave office. Foreign ministers in the 54-member States of African Union called for the cases of the Kenyan president, Uhuru Kenyatta, and his deputy, William Ruto, to be delayed amid claims that the court unfairly targets African countries.

The proposal by the African nations to withdraw from the ICC criticized by the former UN Secretary General, Kofi Annan, did not gain support at the Summit in the Ethiopian capital, Addis Ababa. Kofi Annan said that “Withdrawing from the court would be a ‘badge of shame’”, while Archbishop Desmond Tutu voiced support for the court. Amnesty International urged African nations meeting in the Ethiopian capital not to cut ties with the court, saying victims of crimes deserved justice. But, according to Tedros Adhanom Ghebreyesus, Ethiopian Foreign Minister, "Sitting Heads of State and Government should not be prosecuted while in office. We have resolved to speak with one voice to make sure that our concerns are heard loud and clear. The ICC was condescending towards the continent and has transformed itself into a political instrument, targeting Africa and Africans. This unfair and unjust treatment is totally unacceptable".  He said further that the “AU will ask for the trials of the Kenyan president and his deputy as well as Sudan's president, Omar al-Bashir, to be deferred”.

Group of African Nations urge Withdrawal
Recently, a group of African nations, UN- and ICC-member-states, bolstered by the AU action, announced withdrawal from and questioning the “relevance of the International Criminal Court”. This tiny group of three nations – The Gambia, Burundi and the Republic of South Africa - was led by former President of the tiny Republic of The Gambia, Excellency Yahya Jammeh. 

The Gambia
Leading the exit movement was former President Yahya Jammeh who was in the fourth term of his 22-year rule as President of the Gambia. The belief of the Gambians, like the AU, is that the ICC targets only African Heads of State. But the decision to withdraw, according to the Gambian Information Minister, “is that the ICC has been used for the persecution of Africans and especially their leaders, while ignoring (war) crimes committed by the West. There are many western countries, at least 30, that have committed heinous war crimes against independent . . . states and their citizens since the creation of the ICC and not a single western war criminal has been indicted. The ICC, despite being called International Criminal Court, is in fact, an ‘International Caucasian Court’ for persecution and humiliation of people of color, especially Africans”.

On the Events and Elections that brought Mr. Alassane Ouattara to power as President of La Cote d’Ivoire in 2010, the fiercely anti-Western Colonial Powers, then President of the Gambia, issued the statement profoundly critical not only of the Western Powers, but also, and particularly, of the Republic of France for its involvement in La Cote d’Ivoire, and declared:

“The Gambian Government will not recognize any President or government in Africa that has been imposed by forces outside of the African Continent for whatever reasons . . . They (outside forces) loot African resources on behalf of the (Western) powers that brought them to power . . . We will not recognize your (such) African puppets . . .”.

“The events in La Cote d’Ivoire have vindicated us on our earlier assertion that Western, neo-colonialist-sponsored agents in Africa that owe allegiance only to themselves and their Western masters are ready to walk on thousands of dead bodies to the Presidency. That is what is happening in La Cote d’Ivoire . . . What is really sinister and dangerous about the neo-colonialist threat is that they (Western colonialist Powers) are ready to use brute force or carry out outrageous massacres to neutralize any form of resistance to Western Powers-selected President, as has happened in La Cote d’Ivoire”.

“ . . . The former (Ivorian) colonial power (the Republic of France) . . . outside of UN mandate . . . bombarded the (Ivorian) Presidential Palace for days and, eventually, stormed the Palace . . . Entire villages . . . were wiped out by . . . (French) Republican Forces fighting for Ouattara”.

“Our position is very clear. The case of Gbagbo is replica of the case of Patrice Lumumba who, as a freedom fighter for the dignity and independence of not only the Congolese people, but the entire black race, was over-thrown by Western Powers, including the UN, and handed over to his enemies almost 50 years ago, are the same (Western neo-colonialist) forces involved in the Ivory Coast . . .”.

“If justice is to done (in Africa) . . . Africans should not only wake up, but (also) should stand up to the new attempts to re-colonize Africa through so-called elections that are organized just to fool the people, since the true verdict of the people would not be respected, if it does not go in favor of the Western-backed candidates, as has happened in La Cote d’Ivoire” (Africawatch, May 2011).

The Facts, Basic Motivations
For establishment of ICC
Firstly, World History tell us that men & women in society are born free but were and are held in chains of human servitude, injustice, degradation and debasement everywhere, characterized by racism, ethnic/tribal bigotry, religious, economic and political jealousy/rivalry; war, destruction, human suffering and death; and that these historic conditions motivated or were the causes of ancient and modern Revolutions, notably, the American (1775); the French (17890; and the Chinese (1946); and Secondly, after World War II, the United Nation’s Convention on Prevention and Punishment of the Crime of genocide, and Decided:

1. To harmonize the Laws of War and limit the use of technologically-developed weapons of mass-destruction. It became a compelling, serious priority and obligation in a  democracy under law to prosecute individuals, in a court of law, suspected of committing heinous crimes, after the experience WW 1 & 2 at Nuremburg;

 2. To affirm/re-affirm basic principles required of and in modern democracy under Law with socio-cultural reforms and transformation, such that suspected or alleged criminals are not sent to torture camps or executed at public squares, but treated as suspects with regular trials and the right to defense counsel, presumed innocent until proven guilty; and

3. All socio-cultural, economic, political and legal safeguards have been, and are, clearly articulated and provided by the UN Rome Statute, one of the major documents of the United Nations Organization.

 Moreover, that Africa has a serious, deadly political problem of the profound abuse of political power, with particular respect to human rights violations that requires serious political treatment is so self-evident that it needs no elaborate discussion, but emphasis. Simply put, Africa’s serious political problem is that African presidents, having acquired political power and the “benefits” thereof, do not want to leave the “Presidential Palace”, consistent with lawful rules of peaceful, periodic transfer of power or succession. They use all sorts of treachery designed to hold on to political power at all costs indefinitely bribes, threats, arrests, detentions, kangaroo courts and imprisonment, including international war, local civil war, war crimes, ethnic-cleansing, genocide, crimes against humanity, etc., against their own people.

Given this condition and its widespread impact, the UN World Body came up with the notion of the International Criminal Court, designed “to help Africans help themselves” with reasonable conditionalities.  It is well-known that in every undertaking, no matter how successful, there is room for improvement that comes with “costs & benefits”.

Our Response to the Withdrawal Movement
Our argument is against withdrawal, but 100% in agreement with the African nation’s stand against the powerful western nations that have been involved in war crimes and crimes against humanity. For examples, the USA in South America, Iraq,  Afghanistan and North Africa; France in North, West and all over Africa; and the UK in the Falklands, North Africa, etc.  There are, also, non-African, powerful states that are only vocal supporters of the ICC, but who have not ratified the Rome Statute and, therefore,  non-members of the ICC, but powerful members of United Nations Security Council with authority to refer cases to the ICC. These states are the USA, Russia, the UK, China, France. 

Their failure or refusal to act in accordance with UN, Rome Statute and ICC rules questions their commitment to international peace stability, socio-cultural, economic justice, the judicial system and, particularly, democracy under law, when their troops were and are accused of war crimes, genocide, crimes against humanity in such places as Iraq, Afghanistan, north Africa, the Falklands, etc., with none referred to the ICC.

However, in this legal domain, hopefully free of “politics”, but eclipsed by “political considerations”, Africa must accept and minimize the inherent, painful costs - holding African leaders accountable for wholesale human rights violations in exchange for the necessary benefits of security, peace, justice, freedom, equality, the pursuit of happiness, because these “stakes are enormously high”, in the case of the absence of the ICC and these benefits.

Withdrawal from the ICC by the African states is highly unlikely to resolve the critical socio-cultural, political-economic and legal issues raised by the African States, including the African condition of systematic abuse of political power - civil, political, and human rights violations, with genocide, war crimes and crimes against humanity of our own, African Peoples.

We believe, reasonably, as stated elsewhere and repeated hereunder, that the contrary - retaining, maintaining and increasing massive membership in the ICC - is the rational, productive answer to resolution of the issues raised by the African States, for the following reasons:   

1. “That in the light of the fact that today’s modern, 21st century World Community is committed to liberal, progressive democracy dedicated to informed decisions by the majority and, also, the fact that non-white or non-Caucasian states effectively outnumber white or Caucasian states at the UN and other world bodies (including world population), it is reasonable and highly likely that the issues raised by the African states will be resolved by active participation by the informed majority of the non-white states; that the proper, reasonable approach is retaining, increasing membership and using the Rome Statue to expose the hypocrisy of the western and other states and demand Change/Reforms of the ICC; and that the ICC is, indeed, not “a foreign court”, since ratification of the Rome Statute automatically concedes membership and jurisdiction of the ICC, including those who are not members but willingly refer cases to the ICC.  Therefore, withdrawal is counter-productive”;

2. “That the Withdrawal Movement is barking at the wrong tree; for, the ICC is a court of law that adjudicates conflicts or disagreements brought before it by parties to the conflicts or disagreements. Courts of law do not go out seeking for litigants. The cause(s) of the issues raised are found not in the trial chambers of the ICC, but in the New York, UN Plaza Halls. Consequently, the non-white states must use its majority not only the issues concerned with the ICC, but the UN systems, itself. Packing bags and leaving the ICC is profound cop-out at the expense of the poor, hungry and sick Africans”.

It is in this respect that we note that it is very, very important that African and other non-white states get on the offensive by use of their majority for change.     

Finally, we argue, Law is derived from and based, fundamentally, on human Reason, socio-cultural principles, beliefs, values and moral rectitude, from which it draws its powerful punch.

Although independent of and barred from discriminatory application by and in many of our important institutions – the courts (interpretation), police (enforcement), political party organization and management, politics ( management/controlled of group dynamics), etc., etc.,   Law, is indispensable for the conduct of every aspect of human activity –  promotes, guides, directs, protect, defend and instructs every human action. In all of this, Law does not only protect, defend and safeguard society’s vital interests, but also protects the week from the strong; the disadvantaged poor from the advantaged wealthy; and the racial, gender and aged minorities from the majority.

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