The AU’s Mass Treaty-cide Brinksmanship By Alemayehu G Mariam

By IndepthAfrica
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Oct 14th, 2013
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The African Union’s threatened “mass treaty-cide” (a phrase I am compelled to coin to describe the bizarre threatened walkout on the Rome Statute) fizzled out. Those who predicted the “extraordinary summit” on the “AU’s relation with the International Criminal Court” (ICC) would end in a big bang were pleasantly amused to see it wrap up with a whimper about “undertaking consultation with members of the UN Security Council” to seek “deferral of proceedings against the President and Deputy President of Kenya as well as the President of the Sudan in conformity with Article 16 of the Rome Statute.” After all, October 11-12, 2013 will not live in infamy as I had feared. The scheme to convince the 34 Rome Statute signatory African states to commit “mass treaty-cide” was a total flop.

The Sturm und Drang of a mass walkout on the Rome Statute proved to be nothing more than a tempest in a teapot. The tag team of Hailemariam Desalegn and Teodros Adhanom of the ruling regime in Ethiopia bleated out their stealthily cloaked message of a walkout but nobody was buying it. Adhanom broadsided the media for bearing bad news: “Some media reported earlier today that we are divided but we have seen no sign of any of that. We are not divided and we will not be divided. Unity is the only option.”

Adhanom was right in a way; the group of 34 signatory states were united in their refusal to dump the Rome Statute. Desalegn and Adhanom were the last two men standing alone flying the white flag of flight from the ICC. No signatory state stepped forward to dump the Rome Statute. African signatories understood the Statute may not be good for African heads of states and warlords who commit gross human rights abuses, but it is damn good for ordinary Africans. After all the huffing and puffing at the “extraordinary session”, the ICC proceedings will proceed and the trials of Ruto and a co-defendant will continue. Kenyatta’s trial is set to begin on November 12. Bashir will remain a fugitive from international justice with a hot warrant on his tail.

Brinksmanship of Mass Treaty-cide: Dangerous game of chicken

The significance of the African Union’s “extraordinary summit” on the ICC on October 11-12, 2013 should be neither underestimated nor ignored. It should be appreciated for what it is: A dangerous game of brinksmanship. Those AU leaders who insisted on having the summit on the ICC were playing a game of chicken with one of the most important international human rights institutions to emerge in the post WW II period. They hoped to load up the 34 signatories of the Rome Statute on a bus that was careening on a collision course with the ICC, certain in the knowledge the ICC will blink and swerve at the last second. Fortunately, the ICC stood its ground and the AU bus drivers did not have any passengers on board with whom to play a game of chicken. They limped away in dismay mumbling something about transforming the ICC from an institution that investigates and prosecutes perpetrators of crimes against humanity, war criminals and genocide to a mediation club that brings together victims of human rights abuses with their abusers to sing kumbaya.

Game plan to end-run the ICC

The Hailemariam/Adhanom game plan to end-run the ICC was based on an appeal aimed at strategically galvanizing the 34 African signatory states to turn their backs on the Rome Statute. In their speeches, Hailemariam and Adhanom laid out a number of propositions they hoped would appeal to the signatory states: 1) “Sitting Heads of State and Government should not be prosecuted while in office. 2) Let bygones be bygones. There is a need in the continent to “balance justice and reconciliation in complex conflict situations”. 3) The ICC is a “political instrument targeting Africa and Africans.” 4) The 34 African states that signed the Rome Statute were snookered because they “joined the ICC perhaps fully concerned that the organization would promote the cause of justice with a sense of impartiality and justice. The practice so far however leaves so much to be desired.” 5) The ICC prosecution of Kenyatta, Ruto and Bashir will upset the “reconciliation process.” 6) The ICC and the U.N. Security Council use a “double standard of justice”– a harsh and unfair one for African suspects and something else for others. 7) “We should not allow the ICC to continue to treat Africa and Africans in a condescending manner.”

It is ironic and the height of hypocrisy for “leaders” of a country that is not a signatory to the Rome Statute to pontificate and spearhead the effort to get other countries to abandon the Statute and the ICC. The only thing worse than a hypocrite is a cynical hypocrite!

Give sitting African heads of state get out of jail free card

Adhanom declared in his opening remarks that “the immunities of Heads of State cannot be taken lightly and our meeting should come out very clearly on this issue.” He demanded in his closing remarks, “sitting Heads of State and Government should not be prosecuted while in office.” Investigating and prosecuting heads of states “has wider ramifications for Kenya and Africa as a whole. We do not want this simplistic suspect/victim approach to destabilize Kenya and our region.” Adhanom argued the “search for justice should be pursued in a way that does not impede or jeopardize efforts aimed at promoting lasting peace.”

Adhanom is right in his contention that investigating and prosecuting heads of states “has wider ramifications for Kenya and Africa as a whole.” There is no question it will have a chilling effect on African leaders and warlords who commit crimes against humanity, war crimes and genocide with impunity. The certainty that the long arm of the International Criminal Court will snatch human rights violators in Africa will definitely cramp the styles of current dictators in power who abuse their citizens from their palaces and others who commit atrocities from their hideouts in the bush.

Of course, heads of states and other human rights violators in non-signatory states such as Ethiopia have nothing to fear or be concerned about. They can and will go on committing crimes against humanity, war crimes and genocide with impunity. They are accountable to no one. They do what they will and even feel free to set up a wrecking crew for the ICC by telling tall tales and rumors of an ICC boogeyman race hunting Africans.

Why shouldn’t sitting heads of states be investigated and prosecuted for war crimes, crimes against humanity and genocide? Adhanom provides no answer. It is ipsit dixit — Adhanom said therefore it is true. What Adhanom fails to understand (or is willfully ignorant about) is what is good for the goose is good for the gander. There are no good and bad criminals against humanity, war criminals and genociders. There is no moral or legal difference between a warlord and a head of state who commit such crimes. If one follows Adhanom’s warped logic in the context of Africa’s volatile politics, no one will ever be prosecuted. Rebel leaders and warlords who commit atrocities and seize power or are elected in rigged elections will remain free and at large for no reason other than Adhanom’s self-serving and preposterous maxim: “ Sitting Heads of State and Government should not be prosecuted while in office.” In fact, human rights violators in power will have great incentive to stay in power for decades committing more human rights violations because being a head of state makes them untouchable, above the law. On the other hand, what would keep rebel and militia leaders and warlords from demanding that they too be exempted from prosecution because they believe themselves to be the true leaders of a given country?

Justice delayed is justice denied, injustice prolonged

In his speech at the “extraordinary summit”, Hailemariam argued Bahsir’s prosecution at the ICC should be “deferred” because Bashir “has been demonstrating the necessary political leadership and commitment to resolve the Darfur issue and address outstanding issues with South Sudan.” Similarly, Kenyatta’s and Ruto’s prosecution should be “deferred” because of Kenya’s “adoption of the new Constitution, the reform of the judiciary and the holding of successful legislative and presidential elections [which] have opened a new chapter in the country’s political dispensation.” Moreover, because Kenyatta and Ruto “have played a critical role in reconciling the different communities and creating a peaceful condition for the smooth conduct of elections,” they deserve a break.

Simply stated, Hailemariam argues the ICC should let Bashir, Kenyatta and Ruto off the hook because they now see the error of their old ways. This argument is tantamount to saying that a criminal suspect should be immune from prosecution because he has abandoned his old evil ways and has reformed and rehabilitated himself by becoming a good family man who goes to church/mosque/synagogue/temple regularly, gives alms to the poor and no longer steals, cheats, robs and kills. Alternatively, a suspect who committed a crime during war time or political conflict should be exempted because the suspect’s prosecution could endanger the current peace.

Hailemariam’s notion of “deferred prosecution” by another name is known as delayed justice. Justice delayed is not only justice denied; it is injustice prolonged. Could there ever be a right time to prosecute an African head of state for crimes against humanity? How long must victims wait to get justice? How long should the ICC wait before it prosecutes a head of state accused of crimes against humanity?

Over four decades ago, Chief Justice Warren E. Burger of the United States Supreme Court noted: “A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people and three things could destroy that confidence and do incalculable damage to society: that people come to believe that inefficiency and delay will drain even a just judgment of its value; that people who have long been exploited in the smaller transactions of daily life come to believe that courts cannot vindicate their legal rights from fraud and over-reaching; that people come to believe the law – in the larger sense – cannot fulfill its primary function to protect them and their families in their homes, at their work, and on the public streets.” I believe justice delayed is injustice prolonged.

Let bygones be bygones

There is a need in the continent “to balance justice and reconciliation in complex conflict situations,” pontificated Adhanom in his speech. There is a strange historical irony in this assertion. Hailemariam’s and Adhanom’s “visionary” late political godfather and the chief architect of the ruling regime in Ethiopia for over two decades thrived and prospered by keeping justice and reconciliation out of kilter; he would not even deign to temper justice with simple mercy. After the “visionary” leader ordered the massacre of hundreds of unarmed demonstrators following the 2005 parliamentary election in Ethiopia in which 193 persons were killed and 763 suffered gunshot wounds, his way of balancing justice with reconciliation was to jail dozens of major opposition party leaders, civic society and human rights advocates and journalists on bogus charges of “treason.” That late “visionary” leader was so blinded by vengeance and retribution he threw Birtukan Midekssa, the first female political party leader in Ethiopian history in prison and in prolonged solitary confinement without so much as a court hearing. He later gloated, “There will never be an agreement with anybody to release Birtukan. Ever. Full stop. That’s a dead issue.” That same “visionary” leader jailed his opponents after he convicted them in a kangaroo court trial and later forced them to drop on their knees and publicly confess their “guilt” in a humiliating manner before he granted them a pardon. Now Hailemariam and Adhanom want to make the “Darfur issue” in the Sudan and the “post-2007 election violence issue” in Kenya a dead issue.

Hailemariam and Adhanom seem to conveniently forget (or lack the perspicuity) that one of the foremost causes of conflict in Africa is rooted in pre-election suppression of opposition parties and leaders, rigged elections and the refusal of incumbent leaders to accept elections outcomes or defeat. Inevitably, incumbent regimes who cannot win in a free and fair election almost always adopt a scorched earth policy against their opponents jailing, torturing and killing them. That happened in Ethiopia in 2005; in Kenya in 2007; in Zimbabwe in 2008; in Cote d’Ivoire in 201o; in the DR Congo in 2011 and in Mali in 2012 when a coup disrupted elections. There is indeed a need to balance justice with reconciliation; but first justice must be done without delay. Let Bashir, Kenyatta and Ruto go through their trial; and if they are convicted, they could be eligible for pardon, commutation of sentence or other alternatives.

The “condescending” ICC: Africans just don’t get no respect!

Adhanom asserted the ICC has ignored the African Union’s “active engagement in the resolution of the 2007 post-election violence in Kenya, and “scuttled” the work of the “mediation team established by the African Union composed of African Eminent Personalities.” The ICC and the U.N. Security Council have been so contemptuous of the AU that they have not even bothered to dignify AU’s simple requests with a response. “It is regrettable that our repeated call has fallen on deaf ears and our concerns have been completely ignored.” Specifically, the AU’s application to the U.N. Security council to defer the prosecution of Bashir, “has neither been heard nor acted upon.” The AU “has received no response to our request for a deferral of the ICC investigation and prosecutions of [Kenyatta and Ruto]”… In spite of Kenya’s full cooperation with the Court, it is unfortunate that the Court has neither been ready nor willing to even entertain simple requests made on technical issues of the proceedings…” To add insult to injury, Adhanom lamented, “The manner in which the Court has been operating particularly its unfair treatment of Africa and Africans leaves much to be desired. Far from promoting justice and reconciliation and contributing to the advancement of peace and stability in our continent, the Court has transformed itself into a political instrument targeting Africa and Africans.” Simply stated, Africans just don’t get no respect! He urged, “We should not allow the ICC to continue to treat Africa and Africans in a condescending manner.”

Adhanom “doth protest too much”, to paraphrase Shakespeare. Perhaps Adhanom has not read the Rome Statute. The ICC’s jurisdiction under Article 5 is “limited to the most serious crimes of concern to the international community as a whole… and [covers only] the crime of genocide; crimes against humanity; war crimes [and] the crime of aggression.” The ICC has no power to function as a truth and reconciliation commission or a mediation service for reconciliation. Adhanom is asking the ICC to do something the ICC has absolutely no power (and if it did act, it would be acing ultra vires [beyond its legal powers]) whatsoever to do even if it wanted! Adhanom can badger the ICC until he turns blue in the face, but the ICC cannot become a truth and reconciliation commission. The U.N. Security Council is also limited; it cannot tell the ICC what to do. The ICC is not a kangaroo court which politicians can manipulate and intimidate. It is Adhanom who is “condescending” to the ICC and the Security Council by insisting that they buckle down to his naïve and benighted demands. If the Security Council has turned a deaf ear to Adhanom’s repeated pleas, it is because Adhanom is talking loud and saying nothing!

Double talk on a double standard

Hailemariam claimed, “The double standard that both the United Nations Security Council and ICC have displayed with regards to the African Union’s request for deferral of prosecution… for the last seven years… in a number of cases, has been particularly worrisome…” In his “closing remarks”, Adhanom observed: The AU has “rejected the double standard that the ICC is applying in dispensing international justice” and has “expressed our serious disappointment against the ICC and its selective approach vis a vis Africa”. Prosecution of Kenyatta and Ruto “in an international court infringes on the sovereignty of Kenya and undermines the progress achieved thus far in the country’s reconciliations and reform process.”

It is remarkable how some African “leaders” could be so witless that they are unable to see glaring contradictions in their own positions. Hailemariam and Adhanom accuse the ICC and Security Council of a double standard but they are completely blinded to the duplicity of their own double standard by demanding a double standard of justice for African heads of states. When Hailemariam asks for deferral of prosecution for Bashir, Kenyatta and Ruto, he is asking that these suspects be brought to trial at some undetermined future time. But he is not demanding “deferred” prosecution for Joseph Kony, Bosco Ntganda or any of the others. How could one explain to Hailemariam and Adhanom that the ICC cannot establish one standard of justice for Bashir/Kenyatta and Ruto and another for Kony and Ntganda. The ICC cannot use two standards of justice, capish?!

Since Hailemariam and Adhanom are so incensed and bent out of shape about the alleged double standard of justice meted out by the ICC and U.N. Security Council, how come they practice a double standard of justice in their own country? For instance, they have not prosecuted a single policeman, security official, party leader or regime official for any human rights violations. In fact, for over two decades, they have been practicing their own brand of double standard called “Just Us” justice. Let the truth speak for itself.

The moment of truth has finally arrived!

In his speech Hailemariam said, “Africa has and never will support impunity of leaders who willfully murder their own people.” Adhanom chimed in: The AU has “unwavering commitment to fighting impunity and promoting democracy, rule of law and good governance throughout the continent” and AU has “ taken concrete actions to uphold these values..”

This is an amazing statement by “leaders” of a country that has sneeringly refused to sign the Rome Treaty since it opened for signature in 1999. Are they telling the truth about “taking concrete actions” in “fighting impunity and promoting democracy, rule of law and good governance throughout the continent? Let the facts speak for themselves!

Following the 2005 parliamentary elections in Ethiopia, the ruling regime established an Inquiry Commission to look into the post-election violence that had occurred. The Commission also investigated disturbances in Kality prison where the regime keeps most of its political prisoners. The Commission examined 16,990 documents, and received testimony form 1,300 witnesses. Commission members visited prisons and hospitals, and interviewed members of the regime’s officialdom over several months. In the end, the Commission determined that the police shot and killed 193 persons and wounded 763 others on specific dates and in specific locations. It also documented that prison guards fired more than 1500 bullets into inmate housing units in Kality prison leaving 17 dead, and 53 severely wounded.

Commission Chairman Judge Frehiwot Samuel noted: “Many people were killed arbitrarily. Old men were killed while in their homes, and children were also victims of the attack while playing in the garden.” Over 30,000 civilians were arrested without warrant and held in detention. By an 8-2 vote, the Commission made specific factual conclusions about the “disturbances”: 1) The persons killed or wounded during the violence were unarmed protesters. “There was not a single protester who was armed with a gun or a hand grenade (as reported by the government-controlled media that some of the protesters were armed with guns and bombs)”. 2) “No property was destroyed by the protesters.” 3) “The shots fired by government forces into crowds of protesters were not intended to disperse but to kill by targeting the head and chest of the protesters.” 4) There was no evidence that any security officers involved in the shootings were attacked or killed by the demonstrators: “Security forces which are alleged to be killed by demonstrators were not taken to autopsy, even there is no evidence of either photograph or death certificate showing the reason of death and couldn’t be produced for police as opposed to that of civilians.”

There is a Certified List of 237 Killers in the Massacres of 2005. In 2008, a “think tank that met regularly at the Ethiopian Embassy in London” commissioned an “internal security study” to counter criticism by various international human rights organizations following the 2005 elections. In a report entitled “Modernizing Internal Security in Ethiopia”, counterterrorism expert Col. Michael Dewar, British Army (Rtd.) revealed some shocking facts about the federal police, detention facilities and riot control capabilities and procedures in Ethiopia. One of the most surprising facts revealed by Col. Dewars was the existence of a certified list of policemen involved in the 2005 post-election massacres. Col. Dewars stated in his report that “after three hours of one to one conversation”, Werkneh Gebeyehu, the Director General of the Ethiopian Federal Police, told him that “As a direct result of the 2005 riots, he [had] sacked 237 policemen.” These officials who have manifestly committed crimes against humanity have yet to be brought to justice in Ethiopia.

Adhanom pontificated about “our principle of providing African solutions to African problems.” Some Ethiopian solution for an Ethiopian human rights problem!

The massacre of the innocent demonstrators is the singular reason I got involved in Ethiopian and African human rights advocacy. For the past seven years, every single week without fail, I have, in one form or another argued and called for legal accountability for the policemen who pulled the trigger, the invisible hands that pulled the fingers of the policemen who pulled the trigger and the masterminds who orchestrated the whole bloody carnage in 2005. I shall continue to call for justice to those who were massacred in 2005.

No justice no peace; no truth, no reconciliation

Hailemariam and Adhanom waxed eloquent about justice and reconciliation. Their definition of reconciliation is giving African heads of state accused of crimes against humanity a get out of jail free card, at least a card that will keep them out of the ICC dock for an undetermined amount of time. It is easy to sloganeer about reconciliation; but genuine reconciliation is a coin with two sides. On the other side of the coin is truth. There can be no reconciliation without bringing out the truth in the open. The crimes committed against victims in secret must be brought into the light of truth so that the truth can set the victim and victimizer free. The truth allows the victim to reconcile with the victimizer by creating a bridge of compassion, forgiveness and contrition in their hearts. It allows the victims to excavate their hurt and hate from their hearts and begin to heal themselves and their victimizers. Reconciliation allows the victimizers to look at the evil buried deep in their hearts and minds and permanently purge it. The practice of reconciliation, as seen in South Africa and elsewhere in Latin America, allowed victims to face their torturers and jailers and through a confrontation of love (not hate, revenge or vengeance) both victim and victimizer put the past behind them and kept moving forward to future where such crimes will never be repeated. How can there be reconciliation when those accused of crimes against humanity are given “deferrals” of prosecutions or when there is a double standard of justice for the powerful in the palaces and the out of power in the bushes?

Justice is like a train that is nearly always late.

Lady Justice “is like a train that is nearly always late”, but she has finally arrived at her African destination with a scale in one hand and a sword in the other, and without her blindfold to see the atrocities that continue to be committed in Africa. A new dawn is rising over the darkness of war crimes, crimes against humanity and genocide in Africa. I am glad to see the scales of justice insignia of the International Criminal Court rising over the African horizon. I know the ICC’s achievements during its decade-long existence are modest. I also appreciate the growing pains of the ICC. I do not believe for a nano second that the ICC or the Office of the Prosecutor are racist institutions with double standards of justice for Africans and everyone else. I have not seen a scintilla of evidence to support the claims of ICC critics and detractors. Of course, the racism and double standard accusations are red herrings. The burden of proving the ICC and OTP are racists who have contempt for Africa and use a double standard to mistreat Africans is on those who make their allegations. All I can say is: Put up or shut up!

Professor Alemayehu G. Mariam teaches political science at California State University, San Bernardino and is a practicing defense lawyer.

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