Saturday, October 29, 2016

‘Africa Can Handle Its Own Human Rights Cases’
October 29, 2016
Opinion & Analysis
Zimbabwe Herald

The world’s attention has of late turned to Africa following the withdrawal of three countries from the International Criminal Court. The three, Burundi, South Africa and The Gambia have been citing inconsistencies in the way the court, based at The Hague, the Netherlands, have been handling issues with an apparent bias against African leaders. President Mugabe has on numerous occasions denounced the ICC, calling on the continent to withdraw from what the Gambia described as the International Caucasian Court. Our Political Editor Tichaona Zindoga (TZ) spoke to international policy, diplomacy and human rights law expert Mr Itayi Garande (IG) on this issue and its implications for the continent.

TZ: The topical issue this week has been the pullout from the ICC by African countries lately South Africa and The Gambia. It’s something that resonate with sentiments expressed even by President Mugabe. Can you first of all locate for us the angst of African countries towards this supposedly international institution?
IG: Since the inception of the ICC in 2002, the Court has had approximately 23 cases, most of them against Africa. It has delivered four guilty verdicts on Africans only, including those of Thomas Lubanga Dyilo and Bosco Ntaganda of the DRC. Africa feels that the court has been inefficient, given the resources expended, but most importantly, it has targeted the continent and has been preoccupying itself with Africa, failing to investigate human rights abuses elsewhere. These are legitimate concerns as the evidence is there of cases that the ICC Prosecutor has not considered. There are cases outside Africa that could as well interest the ICC, but the court has chosen to look the other way.

TZ: But does it really matter where a crime is committed, some would argue that African countries are seeking to wriggle away from obligations under international law?
IG: It does not matter where a crime is committed, but the most important issue here is impartiality. Africans are not arguing that human rights cases should go unpunished, but they are saying international legal institutions in any other international institutions, for that matter, should not be used as a pretext for strategic interests of the rich powers.

The United States has refused to sign the Rome Treaty which established the ICC because of fears that its soldiers or government officials could be subjected to politically-motivated prosecutions by the ICC. Interestingly and ironically, it has used the ICC as a tool to further its foreign policy objectives. This is the argument President Mugabe advanced in respect of the UN Security Council in many of his speeches at the UN General Assembly.

TZ: We are going to come to what this means for Zimbabwe. But, what does the departure of three African states mean for the ICC and the Rome Statute? Is a domino effect afoot and what will this imply?
IG: The departure of Burundi, South Africa and The Gambia may open floodgates for the exit of other African states. Remember there has been talk of exiting the ICC for some time now and unless the ICC changes considerably, we may see the end of it very soon. Uganda’s President Yoweri Museveni has called it “useless” and in Kenya a bill was tabled for withdrawal from the court. Namibia is also considering exiting.

TZ: Does Africa have the capacity to set up its own courts and more importantly will there be enough incentive for Africans to prosecute such matters since there are accusations that African leaders tend to over protect each other?
The arguments for withdrawal from the ICC, however, go beyond just the ineffectiveness of the court and the focus of indictments. Africa feels it has now matured enough and can handle its own human rights cases. This is the argument advanced by South Africa. It does not need a supra-governing body like the ICC. The African Union earlier this year said they are mulling a mass withdrawal of member states from the court because there is capacity in Africa to handle such prosecutions.

TZ: Does Africa have the capacity to set up its own courts and more importantly will there be enough incentive for Africans to prosecute such matters since there are accusations that African leaders tend to over protect each other?
IG: Remember the ICC works on the principle of “complementarity”. It can only act when national court systems fail or are unwilling to take action against perpetrators of such crimes. The court should only be used as a “court of last resort” so in fact there are prosecutions already taking place in Africa.

The current ICC Prosecutor is from The Gambia. She is evidence that the continent has capacity. There are many international criminal lawyers in African countries who can handle such cases.

The argument that Africa has no capacity to prosecute human rights cases is a weak one. African courts everywhere handle many complex cases, human rights or otherwise. What is needed in every country, not just in Africa, but the world over is the willingness to bring perpetrators of international crimes to book.

Human rights organisations have reported many human rights cases on all continents, not just Africa. The case of (former Serbian leader Slobodan) Milosevic showed us that some of the worst cases have been on the European continent. To date, no cases in Iraq and Afghanistan have been opened at the ICC despite compelling evidence of war crimes and crimes against humanity.

As for protecting each other, I do not think supra-governance is the answer. National and regional courts have a better understanding of crimes committed on their territories. I do not see how and why the ICC can solve domestic crimes better than the countries themselves or the regional courts.

TZ: Now at home, this topic has been burning. What are the implications for Zimbabwe and how are people supposed to read into all this?
IG: Zimbabwe has never been a state party to the Rome Statute, meaning that it has never ratified the treaty. It is not subjected to the jurisdiction of the court unless there is a UN Security Council resolution to that effect. So there’s not much the country can do as its position has been clear from the start.

What I think should happen is that there should be more national and regional effort to prosecute perpetrators of such crimes as covered by the ICC. The ICC should only be a final appellate court in complex cases only.

This allows capacity building on the continent, allows sovereignty to be exercised and stop powerful states from using supra-governance structures like the ICC to further geopolitical and foreign political interests.

If the ICC, even as a final appellate court, continues to disregard crimes elsewhere, we may see the end of it within this current decade. As a member of the African Union, Zimbabwe will stick with or even influence continental resolutions as regards membership of the ICC.

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