The International Criminal Court on an African Safari? By Professor Alemayehu G. Mariam

By IndepthAfrica
In East Africa
Sep 30th, 2013
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ICC African Race Hunting, the Race Card and Racing After African Thugs?

Hailemariam Desalegn, the titular prime minister of Ethiopia, says the International Criminal Court (ICC) is on African safari. In May 2013, according to the BBC, Desalegn said, “African leaders were concerned that out of those indicted by the ICC, 99% are Africans. This shows something is flawed within the system of the ICC and we object to that. The process has degenerated into some kind of race hunting.” Last week a spokesman for the ruling regime in Ethiopia chimed in. “We never appreciated what the ICC has been doing, particularly when it comes African leaders, and its belittling and it’s disparaging the African leadership.”

Earlier this month, Hailemariam reportedly sent a letter to “the ICC copying the UN Security Council (UNSC) formally demanding that the charges against both president Uhuru Kenyatta and his vice president William Ruto be dropped.” African leaders are going ballistic and threatening a mass withdrawal from The Rome Statute of the International Criminal Court (the treaty that established the international crimes of genocide, crimes against humanity, war crimes and the crime of aggression). They have scheduled an extraordinary summit in Addis Ababa on October 13, 2013 for that purpose.

The ICC’s chief prosecutor, Gambian international lawyer Fatou Bensouda, has stated repeatedly that most ICC cases are opened in cooperation with African countries. She has rejected the idea that the ICC is engaged in selective prosecution of Africans.

The specific reason for the mass withdrawal of African countries from the ICC treaty is “race hunting”. I have heard of race baiting, race discrimination, the race card and even the rat race. But never “race hunting”. Is Hailemariam, in his provocatively dramatic phrase, trying to suggest that the ICC is on an African safari hunting down and prosecuting innocent black Africans? Does he mean the ICC has “degenerated” into a white racist lynch mob using legal institution to chase, capture and hang crimeless and guiltless African leaders? Is he saying that the ICC was established to selectively prosecute African because “99%” of its  indictees are Africans? Is he saying that the West is using the ICC to neutralize and punish African leaders who have an axe to grind with the West?  Who are the 99% of Africans being “race hunted” (indicted) by the ICC”?

Last week, the vicious African warlord and ex-Liberian president Charles Taylor lost his appeal in his criminal conviction by the U.N. Special Court for Sierra Leone (SCSL). Taylor was found guilty of murder, rape, mutilating civilians, conscription of  child soldiers, sexual slavery and other acts of terrorism in in Sierra Leone over an 11 year period beginning in the mid-1990s. Over 50,000 people died in that conflict. Taylor’s trial took nearly four years; and he testified on his own behalf for seven months. The Taylor trial cost USD$250 million! A total of 22 other suspects were indicted by the SCSL on similar charges. Fourteen were convicted and nine are now serving long prison terms. The rest died before trial or were released following a short imprisonment.

When Taylor was convicted in May 2012, I wrote a commentary titled, “Justice for Sierra Leone! No Justice for Ethiopia?” I argued that the Taylor “verdict is undoubtedly a giant step forward in ending the culture of official impunity and criminality in Africa. African dictators and tyrants may no longer assume automatic impunity for their criminal actions.” David Crane, the chief prosecutor of the SCSL correctly pointed out, “This is a bell that has been rung and clearly rings throughout the world. If you are a head of state and you are killing your own people, you could be next.” U.N. Secretary General Ban Ki-moon described the Taylor verdict as “a significant milestone for international criminal justice” that “sends a strong signal to all leaders that they are and will be held accountable for their actions.”

Who has been “game” in the ICC’s African Safari?

The system of accountability established in the ICC and the U.N. Special Courts is now coming under fire by African “leaders” who are pulling out the old race card (it used to be the old colonial, imperialist card) to evade responsibility and perpetuate their crimes and culture of impunity and lawlessness. The question is whether there is any factual basis for Desalegn’s thinly veiled provocatively inflammatory charge that the ICC has “degenerated” into a racist international legal institution arbitrarily chasing after African leaders. Or is the real reason for Hailemariam’s complaint a gnawing and foreboding fear of  David Crane’s warning, “If you are a head of state and you are killing your own people, you could be next.”

Since the Rome Statue was entered into force in 2002, the ICC has issued indictments against two sitting heads of state (Sudan’s president Omar Al-Bashir and the late Libyan supreme leader Moamar Gadhafi), two individuals who became heads of state after they were indicted (Kenya’s president Uhuru Kenyatta and his vice president William Ruto), one former head of state (Liberia’s Charles Taylor) and another leader who refused to leave office after losing an election (Cote d’Ivoire’s Laurent Gbagbo).  The ICC has also returned indictments against dozens of African rebel and opposition leaders.

The ICC indicted Kenyatta and Ruto on charges of crimes against humanity in connection with the communal post-election violence between supporters of presidential candidates Raila Odinga and Mwai Kibaki in 2008. The U.N. estimated some 1,200 people died in Kenya in weeks of unrest between December 2007 and February 2008, and 600,000 people were forcibly displaced.

Beginning in 2003, Bashir pursued a policy of genocide in the Darfur region which by U.N. estimate claimed 400,000 lives and displaced over 2.5 million people. Bashir sneered at the ICC when he was indicted in 2009. “Tell them all, the ICC prosecutor, the members of the court and everyone who supports this court that they are under my shoe.”

In 2010, Gbagbo refused to leave office after his opponent was declared the winner in a runoff vote. The U.N. estimated that 3,000 people were killed in the postelection conflict.

In 2011, Gadhafi ordered and organized the arrest, imprisonment, and killing of hundreds of civilians opposed to his regime in the initial days of the Libyan uprising.  At one point, he urged, “I want provocation. People should take to the streets. Smash those dogs, and tell them: ‘you traitors will bring us the British.’”

The expanded list of suspects indicted by the ICC includes the names of some of the most ruthless and vicious criminals of the 21st Century. In Uganda, the ICC indicted senior leaders of the “Lord’s Resistance Army” including the notorious Joseph Kony who abducted children for decades and forced them to become child soldiers. His top commanders including Vincent Otti, Raska Lukwiya, Dominic Ongwen, Okot Odhiambo were also been indicted. In the DR Congo, the ICC indicted various rebel and militia leaders, Congolese military officers and politicians who committed war crimes and crimes against humanity including Thomas Lubanga Dyilo (the first person ever convicted by the ICC), Germain Katanga, Jean-Pierre Bemba Gombo, Bosco Ntaganda, Mathieu Ngudjolo Chui, Callixte Mbarushimana and Sylvestre Mudacumura. In the Sudan, Ahmed Haroun who coordinated the operations of Sudanese military and Janjaweed forces along with interior minister Abdel Rahim Mohammed Hussein were indicted by the ICC for their roles in the Darfur conflict. Saleh Jerbo and Ali Kushayb, Sudanese rebel leaders, were also indicted for, among other crimes, the killing of peace keepers of the African Union Mission in Sudan.

The ICC indicted Moammar Gaddafi’s son Saif al-Islam and Libyan intelligence chief Abdullah al-Senussi for violent oppression of popular uprisings in the early weeks of the Libyan civil war. Mohammed Hussein Ali, Commissioner of the Kenya Police was indicted by the ICC for acts and omissions following the 2007 elections along with Cabinet Secretary Francis Muthaura, radio station manager Joshua Sang and government minister Henry Kosgey.  Simone Gbagbo, wife of Laurent Gbagbo,  was indicted for her role in the systematic attacks against civilians when her husband refused to leave office after he was defeated in the 2010 election.

ICC indictment has not meant certain conviction. In a number of instances, ICC indictments have been  withdrawn, dismissed  or not confirmed. Among indictees the ICC declared nolle prosequi (case dropped) Francis Muthaura, Mohammed Ali, Callixte Mbarushimana and Bahr Abu Garda.

Unringing the ICC Bell in Africa

SCSL special prosecutor David Crane warned that “If you are a head of state and you are killing your own people, you could be next.” All of the inflammatory race baiting and race laced rhetoric and temper tantrums by African “leaders” is intended to “unring the ICC bell”.  The African “leaders” who are racializing, demonizing, scandalizing, disparaging and damning the ICC are the ones feeling the ICC heat is getting too close for their comfort. These “leaders” are not interested in prosecuting human rights violators because they are the prime human rights violators. In fact, the only African leader on record who directly requested ICC prosecution of  suspects in Africa was Cote d’Ivoire’s president is Alisane Ouattara who in 2011 wrote a letter to ICC prosecutor Luis Moreno-Ocampo emphatically urging him to bring the “people who bear the greatest responsibility for the most serious crimes before the International Criminal Court.”

The African Union’s (AU) has been openly contemptuous of the ICC. In 2010, the AU thumbed its nose at the ICC stating: “The AU Member States shall not cooperate pursuant to the provisions of Article 98 of the Rome Statute of the ICC relating to immunities, for the arrest and surrender of President Omar El Bashir of the Sudan”. The AU officially took a stand to protect and shelter the Butcher of Darfur from facing justice!

Why are there no ICC indictments in Ethiopia?

Is Desalegn concerned that he and his crew maybe next on the ICC prosecution list? Do members of the ruling regime in Ethiopia have reasonable cause for concern that the ICC may one day come knocking on their door? Let the evidence speak for itself.

An official Inquiry Commission appointed by the late leader of the regime in Ethiopia in its 2006 report documented the extrajudicial killing of at least 193 unarmed protesters, wounding of 763 others and arbitrary imprisonment of nearly 30,000 persons in the post-2005 election period in Ethiopia. (That’s the singular reason I got involved in Ethiopian and African human rights advocacy.) That Commission was limited to investigating the “violence  that occurred on June 8, 2005 in Addis Ababa and violence that occurred from November 1 to 10, 2005 and from November 14 to 16, 2005” in other parts of the country. (The Commission has evidence on extrajudicial killings by security forces for dates other than those indicated; and had those casualties been included in the official Commission report the numbers would have increased several fold.) The killings investigated by the Commission occurred after the late leader of the ruling regime publicly declared that all of the country’s security and military forces were under his direct, exclusive and personal command and control.

The Commission’s evidence further showed that nearly all of the 193 unarmed protesters died from gunshot wounds to their heads or upper torso. The Commission found substantial evidence that professional sharpshooters were used in the indiscriminate and wanton attack on the unarmed protesters. The Commission further documented that on November 3, 2005, during an alleged disturbance at the infamous Kality prison near Addis Ababa, guards sprayed more than 1,500 bullets into inmate cells in 15 minutes, killing 17 and severely wounding 53. These and many other shocking facts were meticulously documented by the Commission which examined 16,990 documents, received testimony from 1,300 witnesses and undertook months of investigation in the field. There is also documentary evidence to show that there are at least 237 named police and security officials directly implicated in these crimes who were subsequently dismissed from their positions. No person has even been criminally investigated, arrested, charged or prosecuted or in any way held accountable for any of these crimes.

In December 2003, in the Gambella region of Ethiopia, 424 individuals died in extrajudicial killings by security forces of the ruling regime in Ethiopia.  A report by the International Human Rights Clinic of Harvard Law School’s Human Rights Program corroborated the extrajudicial killings.

In 2008, in the Ogaden region of Ethiopia, reprisal “executions of 150 individuals” and 37 others by regime soldiers were documented by Human Rights Watch:

Ethiopian military personnel who ordered or participated in attacks on civilians should be held responsible for war crimes. Senior military and civilian officials who knew or should have known of such crimes but took no action may be criminally liable as a matter of command responsibility. The widespread and apparently systematic nature of the attacks on villages throughout Somali Region is strong evidence that the killings, torture, rape, and forced displacement are also crimes against humanity for which the Ethiopian government bears ultimate responsibility.”

In 2010, Human Rights Watch made a submission to the U.N. Committee Against Torture “regarding serious patterns of torture and other cruel, inhuman, and degrading treatment in Ethiopia.” Human Rights Watch reported, “Torture and ill-treatment have been used by Ethiopia’s police, military, and other members of the security forces to punish a spectrum of perceived dissenters, including university students, members of the political opposition, and alleged supporters of insurgent groups, as well as alleged terrorist suspects.”

Suffice it to say that what is good enough for the Sudan, Kenya, Uganda and the DR Congo MUST be good enough for Ethiopia because what is good for the goose is good for the gander. The available evidence of crimes against humanity is compelling and substantial. I believe the ICC has a legal duty and a moral obligation to at least open an investigation into war crimes and crimes against humanity committed in Ethiopia since 2002. (But I will revisit that issue another day.)

Race hunting the ICC

It looks like hunting season on the ICC will open on October 13, 2013 at the AU summit. I have no doubts that African “leaders” will bring out their long sharp knives, scoped hunting rifles, lures and whistles and wrap up the ICC in straight jacket with a bull’s eye. They will surround the ICC like a cackle of hyenas ringing around a lone lion patrolling the African savanna. They will take turns and froth at the mouth delivering self-righteous, self-congratulatory and self-aggrandizing speeches. They will preach fire and brimstone about the old colonial masters and imperialists, the not-so-old neocolonialists and neoliberalists and the new globalists and the invisible members of the of the invisible New World Order that secretly dominate the world and scheme to keep Africa in permanent bondage and servitude. 

On October 13, 2013, African “leaders” will gather at the African Union and collectively growl, howl and call foul. They will take turns to demonize, criminalize, scandalize, criticize, anathematize, racialize, ideologize, stigmatize, bestialize, politicize, ostracize and trivialize the ICC. We need not wait; we have already heard it. Thabo Mbeki, the former South African president, delivered it a few weeks ago in his speech, “The West’s contempt for Africa must end!”. Mbeki defended Robert Mugabe, Zimbabawe’s 89 year old president who has been in power since 1980, to show the West’s contempt for Africa. Mbeki said, “one of the strange things is that you have [in] the entire continent [of Africa] in terms of its credible and legitimate institutions” is that the  “will of the people of Zimbabwe” and Africans is disregarded. “You have an alternative voice in Washington, London and Brussels which says, ‘No, you Africans are wrong’”. Mbeki said the last election in Zimbabwe was free and fair, and the reason it lacks credibility is because “Washington and London and Brussels have [said] the elections were not credible. In reality, the only reason they were not credible is because Robert Mugabe got elected. That’s all.” Simply stated, if Mugabe was a dictator “Washington, London and Brussels” liked, his election would be sanctified by them. Does that mean the ICC indicts African “leaders” disliked by the West? (That is an important issue I have addressed on numerous occasions, most recently in April.)

All the talk about “contempt” by African “leaders” is just chaff thrown over real issues of crimes against humanity, war crimes, genocide and rigged and stolen elections in Africa. African “leaders” want to define the issue as Western disrespect and contempt for Africans instead of their own contempt and disrespect for the basic human rights of Africans. 

If African “leaders” really want to stick it to the West and get the West’s respect, the way to do it is not by moaning, groaning, griping, grousing, bellyaching and teeth gnashing. The best way is to put their money where their mouth is: Establish the equivalent of the ICC or even an institution much better than the ICC in Africa. Instead of windbagging and badmouthing the ICC, let them show the world that African leaders can take care of their own criminals against humanity, war criminals and perpetrators of genocide. How beautiful the sound of “The African Criminal Court”! How proud I would be to see such an institution founded on the African continent. But I am not hopeful. The African Union could not afford to build its own building for its gabfest so it got a USD$200 million building “donation” from China. Charles Taylor’s trial at the ICC cost USD$250 million! 

In his recent speech Mbeki called on “African intellectuals, to demand with one voice that the West’s contempt for the African people and African thought must end!” I call on African intellectuals worldwide to demand in one voice that African “leaders” stop showing contempt for the human rights of African peoples.  Standing up for the International Criminal Court is standing up against African war criminals, criminals against humanity and perpetrators of genocide! The time to defend the ICC is NOW!

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

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