I
write these words not to defend the Rome Statute (which created and
authorized the International Criminal Court (ICC) to investigate and
prosecute crimes against humanity, war crimes and genocide) or fend off
attacks on the integrity and professionalism of the ICC and the Office
of the Prosecutor [OTP] (a branch of the ICC that investigates, and
prosecutes such crimes). I have attempted to do just that over the past
two weeks. As a defense lawyer, I know all too well that there is no
possible defense against ghostly lies and malicious falsehoods. I know
there is no antidote to the poisonous accusation of racism leveled
against those who seek to expose the truth and challenge those who abuse
their powers. There is no defense when unfounded allegations of racism
are used as gaudy wrappers for crimes against humanity, war crimes and
genocide.
I
take a stand today as a witness for the ICC not because it is
infallible or an unimpeachable institution but because it is a vital
handiwork of imperfect and fallible human beings that must be nurtured,
improved and cherished. The flaws of the ICC reflect the flaws of its
human makers; both the ICC and its makers can be vastly improved. There
is no justice system in the world that is perfect, but all justice
systems in the world can be perfected. Perfection is an aspiration not a
goal in itself; and the ICC and OTP can use all the help they can get
to improve and perfect themselves.
I write these words in the eleventh hour of the scheduled summit of the AU to abandon the Rome Statute en masse.
Some say the die is cast and the AU has crossed the River Rubicon, the
point of no return. If indeed they have, they would have crossed the
point of no return from the rule of law to the rule of men. Others say
nothing can be said or done to change that foreordained mad dash of
African countries from the Rome Statute. None of that will stop me from
testifying on behalf of the ICC, not as a perfect institution but as one
that has flaws that can be corrected with the support and backing of
the community of nations. So here is my testimony before the AU even
though I understand they could not care less about what I have to say.
Call off the showdown at high noon on October 11-12, 2013.
Call
of the threatened showdown with the ICC on October 11. It puts the AU
in a very bad light. It makes the AU look like a gang of outlaws
plotting against the town’s sheriff and judge. It gives the impression
that AU leaders are not really preparing a showdown -- a fight that
finally settles their dispute with the ICC and OTP in a fair fight --
but devising a cowardly ambush in the hallowed halls of the AU where the
ICC and OTP do not have a chance to draw and defend themselves. The
special summit makes the AU look like a gang of outlaws who plotting a
comeback from their hideouts while an ICC/OTP posse is hot on their
trail. African leaders should call off the showdown and really think about they are doing after the sun goes down.
Fight (not flight from) the power in the courtroom.
The
threatened mass withdrawal from the Rome Statute is proof that the AU
would rather put itself to flight than stand up and fight the good
fight. With all the talk about “race hunting”, the October 11-12 summit
creates the impression that African leaders are fleeing a stalking
predator and gathering like panicked prey seeking safety in numbers.
There was a time when colonial troops hunted down African resistance
fighters. Africa has its honored place in the world today; and African
leaders must purge the idea of being prey from their consciousness. The
AU should project an image of confident African truth fighters, not
cowering African prey fleeing from the “Great White Race Hunter”. The
AU has to roll its sleeves and roll with the punches, stand up for its
rights and fight the power in the courtroom. Who’s afraid of the
ICC/OTP?
Show the world African leaders can handle the truth, not run away from it.
African
leaders must show their mettle. It has been said African leaders can’t
handle the truth. They say when confronted with evidence of criminal
wrongdoing, African leaders duck and take cover. They barricade
themselves behind bogus arguments of sovereignty and accusations of
interference in the internal affairs of their countries. They create
distractions to dodge the truth and invent a convenient “straw white
court” bent on “race hunting” them like game on the African savannah.
The
world needs to see self-confident African leaders who come out, stand
tall and confront serious accusations leveled against them. African
leaders must stand tall and be seen welcoming, embracing and defend the
truth. Above all, itt is high time for African leaders to stand up and
prove to the world that they are not afraid of the truth. When the truth
hits the fan, we want to see African leaders who don’t run and hide
under the AU’s skirt. African leaders must not be seen as a bunch of
crooks who are constantly engaged in a plot to subvert and pervert the
truth. African leaders must show the world they have guts to stand up
and face the music inside a courtroom, any courtroom, and clear their
names against vile accusations. Running from the ICC dock to the AU
skirt faintly hints to consciousness of guilt. African leaders must show the world that they can handle the truth, not run away from it.
African leaders should “man up!”
African
leaders should make good on their word. Nearly two-thirds of them
signed the Rome Statute and agreed to uphold it in the past ten years.
African leaders had no problems cooperating and helping the ICC and OTP
track down rebel and militia leaders accused of crimes by the OTP/ICC.
Now that members in their leadership rank are fingered and snagged, they
want to backslide. It is time for “macho men” African leaders to man up
and take responsibility for their actions and omissions. They must
acknowledge that there maybe, just maybe, some bad apples in their
ranks. The rotten apples who are accused of the most serious crimes
known to the human race must not be sheltered behind the fortified walls
of the AU. African leaders must man up and ensure accountability for the wrongdoing of their brethren.
African leaders must stand their ground and fight in the ICC.
African
leaders accused of crimes under the Rome Statute have every right to
defend themselves using the vast arsenal of legal tools readily
available to them. Certain African leaders have complained that heads of
state in their ranks (not rebel, militia leaders who have been charged
by the ICC) have been denied pretrial due process and a fair trial in
court. They have accused the OTP of engaging in prosecutorial misconduct
by obtaining and using “false, manufactured and corruptly obtained
evidence” and “coaching witnesses” to give perjured testimony against
particular defendants. They have accused the ICC and OTP of “abusing”
and exercising “unchecked powers” and for being “accountable to no one”.
If
these accusations against the ICC and OTP are true, African leaders
have the moral, legal and political obligation to challenge and expose
them. They can use the procedural avenues provided to states by the ICC
to bring their evidence, concerns and challenges to the Court itself.
They can present their complaints to the Assembly of States Parties, the
ICC’s management oversight and legislative body. They also have the
right to bring their evidence before the U.N. Security Council. Above
all, they have the right and duty to bring their evidence of abuse of
power and misconduct before the court of world opinion. African leaders must stand their ground and fight in the ICC.
Don’t throw out the baby with the bathwater, and don’t cut your nose in spite of your face.
The
AU should be careful “not to throw out the baby with the bathwater” or
“cut their noses in spite of their faces”. The AU maybe be unhappy or
even angry at the ICC and the OTP because of the indictment of sitting
heads of states or because of alleged failures to do effective
investigations before bringing charges. No doubt there may be legitimate
criticisms of the ICC and OTP.
But
the AU should keep things in perspective and not “throw stones” so
casually. Truth be told, there are many who throw stones at the AU
itself. The AU has been criticized for being a “dictators’ club”. A
well-known and highly regarded African economist once called the AU
“that useless continental organization” which cannot “even define
‘democracy.’”. In a moment of frustration and disgust upon learning that
the new African Union building in Addis Ababa was a “donation” from the
Chinese Government, I succumbed to the use of colorful language calling
AU, “African Beggars Union”. Does that mean AU’s critics would like to
see the AU dissolve and vanish into oblivion? Of course not! We want to
see a stronger, more efficient, more energetic, more self-confident and
self-reliant continental organization. For all its imperfections, we
support unreservedly the basic mission and goals of the AU as stated in
its Constitutive Act. We may not praise the AU under its present
leadership but we would not urge its burial because it has flaws. The AU
should have the same attitude towards its sister international
organization, the ICC. Sure, criticize the ICC, if need be even
unfairly, but at the end of the day, the AU should work like the dickens to make the ICC better, stronger and more just and fair.
Don’t pick your marbles and go home because the ICC does not want to play by your rules.
The recent secret letter by Kenya’s U.N. Ambassador to the President of the Security Council for the Month of May 2013 is
not only sad but also deeply embarrassing. It reads like an extortion
note. The very last paragraph of the letter in boldfaced text boldly
demands, “What this delegation is asking for is not deferral. What this
delegation is asking for is the immediate termination of the case in the
Hague without much further ado.” Of course, if there is no immediate
termination, the alternative is use of the “nuclear option”, mobilize
African countries to withdraw from the Rome Statute en masse. The fact
of the matter is that the “extortion” scheme has been known for a long
time. Beginning at least in 2011, Kenya has been laying groundwork “for a
motion to be tabled at the African Union Summit in Ethiopia that could
trigger withdrawal of African states from the Rome Statute that founded
the International Criminal Court.” The details of that strategy were
revealed in January 2011 in the Standard, one of the largest circulation
papers in Kenya, in an investigative piece titled “Kenya's secret plot against ICC” in January 2011.
For
the AU to now threaten mass withdrawal from the Rome Statute as an act
of moral indignation and outrage or a reaction to offensive racist acts
by the ICC/OTP is neither persuasive nor convincing. The AU had been
planning all along, with the aid of Kenyan officials, to scuttle the
Rome Statute unless the ICC was willing to give Kenyatta and Ruto a get
out of jail free card and exempt all sitting African leaders from
investigations and prosecutions. The problem is that when the ICC
charged Kenyatta and Ruto, they were just government ministers. The ICC
is required by the terms of the Rome Statute (Art. 27) not to make
exemptions because the suspect is a “head of state”. It is conduct
unbecoming for AU leaders to threaten the ICC that they will go home
with their marbles if the ICC refuses to play by their rules. Of course,
rules are made by men and women and can be changed. But rules cannot be
retroactively changed to adopt a double standard of justice – one for
sitting heads of state, another for everybody else.
The
AU should use the Rome Statute as a transitional bridge until it can
establish an institution equal to or much better than the ICC.
African
leaders should not get angry; they should get even. If they truly
believe the ICC/OTP are racist institutions, they should stay in the
Rome Statute until they can establish in Africa the equivalent of the
ICC or an institution much better than the ICC. The AU can establish an
African Criminal Court (ACC) and show the world that it can take care of
its own criminals against humanity, war criminals and perpetrators of
genocide. Establishing an ACC should not be an extraordinarily difficult
task. The African Charter on Human and Peoples' Rights (Banjul Charter)
provides the legal principles for a robust system of human rights
protections and guarantees of basic freedoms to all Africans. The
African Commission on Human and Peoples’ Rights could be molded, if need
be, to serve as an ACC. Alternatively, the Constitutive Act of the
African Union under Articles 5 (d) and 18 (2), with appropriate
“protocols”, could provide the structural foundation for the
establishment of an ACC. There is a large body of African lawyers and
jurists in Africa and elsewhere who could be recruited (and many who
would serve free of charge) to staff the ACC.
The
AU can establish an ACC in a heartbeat; the only thing lacking is
political will and a genuine commitment to the rule of law. How beautiful the sound and sight of an “African Criminal Court”!
African
leaders’ accusations that the ICC and OTP are racist institutions
manipulated by “race hunters” and “dark forces” and other baseless
charges perpetuate the stereotype of Africa as a continent of helpless
victims.
When
Sudan’s Omar al-Bashir was indicted in March 2009, Sudan’s Information
Ministry issued a statement declaring: “There will be no recognition of
or dealing with the white man’s court.” In May of this year, Hailemariam
Desalegn in Ethiopia claimed the ICC is “race hunting in Africa.” In
August, Thabo Mbeki of South Africa called on “African intellectuals, to
demand with one voice that the West’s contempt for the African people
and African thought must end!”
If
there is real racism in the ICC/OTP, the proper response of African
leaders should not be to huddle together and circle the wagons at the AU
and threaten mass withdrawal from the Rome Statute. The proper response
is to stand up and fight to make the ICC/OTP fair, humane and just. The
proper response is to use the collective political will of African
peoples and leaders and enlist the intellectual firepower of Africans
the world over to make the ICC an institution that is owned and serves
the interests of not only Africans, but all people who belong to the
“black”, “white”, “brown” and “yellow” “races”. The truth is that
standing before the scales of Lady Justice there is only one race that
matters, The Human Race.
African
leaders should be careful when they accuse the ICC and OTP of racism.
The ICC judges and members of the OTP are at a distinct disadvantage in
defending themselves against accusations of racism and misconduct
because of strict ethical codes and professional rules. Precisely
because the ICC/OTP are limited in defending themselves, African leaders
must be fair just as they demand fairness for themselves.
Prosecutor
Luis Moreno Ocampo, the first ICC prosecutor, has been accused of
racism. The fact of the matter is that Mr. Ocampo was appointed because
of his impeccable credentials as a prosecutor in his native Argentina.
Ocampo was a prosecutor in the “Trial of the Juntas” in Argentina which
brought to justice senior military commanders for mass killings that
occurred between 1984 and 1992. Ocampo played a key role in the
prosecution of the biggest public corruption cases involving judges,
government minsters and heads of public companies in Argentina.
The
current prosecutor, Fatou B. Bensouda, is an experienced Gambian lawyer
who served as Deputy Prosecutor in charge of the Prosecutions Division
since 2004. She is one of the handful of African women to have achieved
international recognition for her expertise in international law. The
ICC judges handling some of the cases of the Kenyan defendants included
Christine Van Den Wyngaert of Belgium, Kuniko Ozaki of Japan, and Chile
Eboe-Osuji of Nigeria. There is not a scintilla of evidence that these
judges, or any other ICC judges, are racist or have any racial bias. In
fact, Van Den Wyngaert resigned in April and was replaced by Robert
Fremr of the Czech Republic, after expressing “serious questions as to
whether the prosecution conducted a full and thorough investigation”.
The allegations of a racist ICC/OTP simply do not hold water. Whining
about a “white court” “race hunting” in Africa is not only undignified
and unbecoming of heads of state but also a self-demeaning act that
shames all Africans. African leaders should strive to make the ICC the international tribunal for the human race.
African leaders should wake up and smell the coffee. The ICC and the AU are on the same team – Team Justice!
There
is not an ICC for people of the black, white, brown or yellow races.
There is an ICC for the human race. African leaders should wake up and
embrace that truth. The fact that 122 countries -- 34 African, 18
Asia-Pacific, 18 Eastern European, 27 Latin American and Caribbean and
25 Western European and other States-- signed the Rome Statute is
irrefutable and incontrovertible proof that the ICC is a court for the
human race. The fact that the UN Security Council has never doubted the
legality of the Rome Statute nor tolerated a presumptuous encroachment
on its powers and breach of the supremacy of the U.N. Charter is further
proof that the ICC stands as an institution that serves the interests
of justice for signatory states and as a powerful symbol of
accountability to those who have refused to become part of it.
The
fact of the matter is that the interests of the ICC and the AU are one
and the same. One of the core principles of the Constitutive Act of the
African Union is to “promote and protect human and peoples’ rights in
accordance with the African Charter on Human and Peoples’ Rights and
other relevant human rights instruments.” Among the essential
“functions” of the African Commission on Human and Peoples’ Rights is to
“co-operate with other African and international institutions concerned
with the promotion and protection of human and peoples’ rights.” The
ICC was established as “complementary to national criminal
jurisdictions” (not in competition) with a focus on only four categories
of crimes: genocide, crimes against humanity, war crimes and crimes of
aggression”.
It
is worth noting that the ICC and the AU were on “Team Justice” until
the OTP and ICC turned their attention to sitting African heads of state
beginning with Bashir of Sudan. When former Liberian president Charles
Taylor stood trial before the ICC for nearly 4 years, no African leader
shed a tear. When former Ivorian president Laurent Gbagbo was flown to
the Hague, no African leader called to have the plane transporting him
intercepted. When the notorious Joseph Kony and senior leaders of the
“Lord’s Resistance Army” in Uganda were indicted, African leaders
applauded the OTP and ICC. No African leader objected when Thomas
Lubanga Dyilo was convicted by the ICC or came to the rescue of Bosco
Ntaganda, the notorious militia leader in the DR Congo. But when Kenya’s
president Uhuru Kenyatta and his vice president William Ruto are held
to account before the ICC all hell broke loose. The world is told the
African skies will fall and the River Nile will dry up and shrivel
unless the ICC on its own or the U.N. Security Council by intervention
“immediately terminates” the proceedings against Kenyatta and Ruto and
lets them go. Why does the AU fight tooth and nail to create a
double standard of justice in Africa, one for the leaders and another
for everybody else?
People who throw in glass houses should not throw stones.
When
African leaders today wag an accusatory finger at the ICC and call it a
“white man’s court”, they should come forward with clean hands or at
least be mindful that three fingers are pointing at them. Tomorrow,
their political opponents, rivals and adversaries will flip and use the
same arguments they are using today to discredit the ICC/OTP. African
leaders tell their domestic adversaries to work within the system and
bring about positive changes. But they are not willing to get involved
in the ICC and change it from within to make it non-discriminatory. Just
as they demand of their opponents to respect the domestic
constitutions, laws and courts, African leaders must show the same
respect to the ICC and the Rome Statute.
African
leaders should carefully think about the logic of their accusations
against the ICC/OTP. It is not unforeseeable that their adversaries will
now have precedent to claim they are not bound by the authority or
judgment of a “Kikuyu court/constitution”, “Tutsi court/constitution”
“Banyankole court/constitution”, “Zulu court/constitution” “Nubian
court/constitution”, “Tigrean court/constitution” or whichever elites
from whatever ethnic group happen to be in power in Africa. It is best
to practice what one preaches.
African leaders need not fear the ICC; the truth shall make them free.
I
do not for a moment doubt the innocence of Uhuru Kenyatta, William Ruto
and even Omar Bashir of the crimes of which they have been accused. I
fully subscribe to the universally accepted principle of civilized
societies that a person is presumed to be innocent until the person’s
guilt is proven beyond a reasonable doubt. Just because the OTP
indicted Kenyatta, Ruto or any other suspects, it does not mean they are
guilty of any crime. Indeed, ICC indictments have been withdrawn,
dismissed or not confirmed in a number of including Cabinet Secretary
Francis Muthaura, a co-defendant of Kenyatta and Ruto. The fact is that
Kenyatta and Ruto have been accused and have voluntarily appeared before
the Court. They must now take the opportunity to vigorously defend
themselves and clear their good names and reputations. If they withdraw
from the ICC now, there will always be lingering doubts about their
innocence. Some will believe they escaped the clutches of justice
because of political interference. Other will believe they “extorted”
their way out of a legal jam. But history will remember that they had
every opportunity to defend themselves and clear their names but chose
to pervert the course of justice and escape accountability. If they
fail to confront the charges in the ICC, they would effectively be
proclaiming their own guilt and invite the judgment of history. Future
generations of Kenyans will forever remember them as fugitives from
international justice and very little else.
Mass
withdrawal from the Rome Statute will be a badge of shame not only for
the accused but also for all African leaders. Leave a legacy of honor,
not shame.
A
few days ago former U.N. Secretary General Kofi Anan speaking at the
annual Desmond Tutu peace lecture in Cape Town, South Africa said, “We
believe any withdrawal from the ICC would send the wrong signal about
Africa’s commitment to protect and promote human rights and reject
impunity. On a continent that has experienced deadly conflict, gross
violations of human rights, even genocide, I am surprised to hear
critics ask whether the pursuit of justice might obstruct the search for
peace. If they [AU] fight the ICC, vote against the ICC, withdraw their
cases, it will be a badge of shame for each and every one of them and
for their countries.”
Archbishop
Desond Tutu pled for global unity in preventing the mass withdrawal of
African countries from the Rome Statute: “In my years of work, life and
travel, the fight for justice has been a long and arduous one. I have
seen the very worst in Darfur and Rwanda, but also the very best with
the reconciliation in South Africa. During this journey, I have seen
great gains made that protect the weak from the strong and give us all
hope. The ICC is one of these beacons of hope.”
I
plead with African leaders to look at the big picture, the things the
matter most. The fates of two individuals must not be allowed to
outweigh the fate of three-quarters of a billion Africans. The present
predicament of two individuals should not cripple the yearning for
justice of millions of Africans. The pride and dignity of Africa and
Africans should not be bartered to rescue a few individuals accused of
heinous and shameful crimes. Leave a legacy of honor, dignity and pride
for future generations of Africans.
Human rights matters in Africa.
By
withdrawing from the Rome Statute, the AU is saying that human rights
in Africa do not matter. Human rights violations in Africa today are
more widespread than malaria infections. Today government troops, police
and security officials, rebels and militiamen all over conflict-ridden
Africa torture, jail, rape and murder innocent civilians and pillage and
plunder their villages and homes. There are 1.4 million Somalis who
have become refugees and are unable to return home fearing abuse and
reprisals. A few days ago, the United Nations reported “the number of
refugees fleeing the war in the Democratic Republic of Congo has swelled
by more than 350,000 in just the past few months as fighting
escalated.” Journalists, dissidents, opposition and civil society
leaders languish in African prisons despite protests by international
human rights groups. Human rights matters in Africa.
Don’t fight the ICC; fight to make the ICC better and stronger.
The
ICC is a court of last resort. The ICC was established as
“complementary to national criminal jurisdictions”; it does not seek to
compete, undermine or thwart the criminal process in any country. The
ICC will not investigate or prosecute a case in Africa unless African
governments are unable or unwilling to investigate and prosecute
suspects for the specific crimes of genocide, war crimes, crimes against
humanity and aggression. Simply put, the ICC is that last outpost of
justice on the frontiers of international lawlessness. Fight for the ICC
not against it.
Show Africa is a continent of hope and not a dark planet of despair.
Nelson
Mandela, the first Son of Africa, said, “I dream of an Africa which is
in peace with itself.” In his inauguration speech he told his fellow
South Africans to come together and build one nation. “We enter into a
covenant that we shall build a society in which all South Africans, both
black and white, will be able to walk tall, without and fear in their
hearts, assured of their inalienable right to human dignity – a rainbow
nation at peace with itself and the world.” One Africa should be the
dream of all African leaders.
But
there can be neither peace nor unity in Africa if there is no justice.
It was H.I.M. Haile Selassie, the first Chairman of the Organization of
African Unity (predecessor of African Union) who said in 1963, that
“until the philosophy which holds one race superior and another inferior
is finally and permanently discredited and abandoned; until there are
no longer first-class and second class citizens of any nation; until the
color of a man's skin is of no more significance than the color of his
eyes; until the basic human rights are equally guaranteed to all without
regard to race; until bigotry and prejudice and malicious and inhuman
self-interest have been replaced by understanding and tolerance and
good-will, the African continent will not know peace.” The ICC is one
beacon of hope that Africa shall come to know peace because those who
threaten its peace by committing genocide, war crimes, crimes against
humanity and aggression will know for certain they will be held
accountable before the bar of justice.
Do not make October 11-12, 2013 dates which will live in infamy.
Do
not make Africa the burial place of the ICC; make the African
savannahs, deserts and jungles the re-birthplace of the ICC. Make Africa
the land where the ICC was transformed from an alleged sword of racism
and injustice to a shield of justice and fairness. Beat the drums and
sound the trumpets that on October 11-12, 2013, the ICC became a
stronger, fairer and much better institution because African countries
came together, deliberated together and reinvigorated and re-inspired
the ICC to greater heights.
African leaders: Do the right thing or “God and history will remember your judgment.”
I
plead with the AU to embrace the Rome Statute, not scrap it. In the
volatile politics of Africa, no one knows who will be the hunter and the
hunted tomorrow, next month or next year. The hunters in power today
will be the hunted out of power tomorrow. In the absence of the ICC, who
will protect the hunters of today when they are hunted tomorrow?
In
the end, I can only hope the AU will learn from history. H.I.M. Haile
Selassie appealed to the League of Nations after Ethiopia was invaded by
fascist Italy in 1935 and the League was unable to guarantee collective
security to its weakest members. I paraphrase his warning to the League
as a history lesson to the AU: “Apart from the Kingdom of the Lord
there is not on this earth any nation that is superior to any other.
Should it happen that strong leaders find they may with impunity destroy
a weak people upon whom crimes against humanity, war crimes and
genocide are committed, then the hour strikes for that weak people to
appeal to the International Criminal Court to give its judgment in
fairness and justice. If you scrap the Rome Statute, God and history
will remember your judgment!”
So, here I stand on October 11, 2013 as a witness for the International Criminal Court!
The time to defend the ICC is NOW!
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