Fighting Impunity: African States and the International Criminal Court

Abstract

The African leaders behind the move to extract the continent from the jurisdiction of the International Criminal Court are eff ectively seeking a licence to kill, maim and oppress their people without consequences. – Desmond Tutu It is the culture of impunity and individuals who are put on trial at the ICC, but not Africa as a continent. – Kofi Annan INTRODUCTION In October 2013, the African Union (AU) called a special session to address the African position with relation to the International Criminal Court and particularly, the ongoing case against the President of the Republic of Kenya and his Deputy. At this meeting, it was inter alia , alleged that the ICC has been targeting African countries and exercising double standards by avoiding others who should be prosecuted as well. It was eventually resolved that no sitting African Head of State or Government should be arraigned in any court. The relevant authorities should wait until the ruler has completed his or her tenure. This is an interesting proposition because Africa does not only have feudal monarchs with life tenures, but also ‘democratically’ elected Presidents and ‘civilianised’ military rulers who have amended the Constitutions of their countries to allow them to rule forever. In such a situation, how long will ICC and victims of serious violations of human rights wait – forever? The aim of this work is to interrogate the love and hate relationship between the AU and The Hague based ICC and in particular the activities of this Court in the continent. Special focus however will be the Republic of Kenya where the current Head of State faced charges and his Deputy is facing charges before the Court in The Hague in connection with the post-election violence in that country of 2007–2008. However, this will be examined in the context of how the international community has addressed serious violations of human rights over the years without the existence of a permanent institution. THE INTERNATIONAL COMMUNITY AND SERIOUS HUMAN RIGHTS VIOLATIONS AD HOC MECHANISMS AND SERIOUS HUMAN RIGHTS VIOLATIONS One area in which international law has been weak is in the address of criminal law at international stage and particularly where the scale of the violation is high. Thus, for many years, no global mechanism could be established to address these situations.