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Is ICC Racist? Reviewing The Docket for Crimes Against Humanity

Tadias Magazine
By Tadias Staff

Published: Friday, October 4th, 2013

New York (TADIAS) – When Ghanian Judge Akua Kuenheyia, Vice-President of the International Criminal Court since 2003, spoke last November at Duke University about ICC and its impact on law and democracy in Africa, she could not have imagined that less than a year later a group of African politicians would stage a threat of mass withdrawal from the court in protest that the majority of those listed in the dockets hail from the continent. Some heads of state have even gone as far as describing the court as being on a “racist” witch hunt against black people.

A quick review of the 20 cases in 8 situations that have been brought before the International Criminal Court since its inception ten years ago on March 11th, 2003 indeed reveal that most of the indictments stem from the African continent — including the senseless violence that took place in Darfur, Sudan; Libya, Uganda, the Democratic Republic of the Congo, the Central African Republic, Mali and the 2007-08 post-election violence in Kenya. One of the most notorious fugitives on the list include Joseph Kony of Uganda, who is wanted on multiple counts of crimes against humanity in regards to his role as the head of the Lord’s Resistance Army (LRA) that is accused of mass killing, torture and enslavement of people including children. The current President of Sudan, Lieutenant General Omar Hassan Ahmad Al-Bashir, was also indicted on March 4th, 2009 on five counts of crimes against humanity and two counts of war crimes for his parts related to the Darfur conflict.

It’s fair to note, however, that the ICC, which is an independent entity financed by member states and voluntary contributions, came to existence in the past decade on the heels of the Rwandan genocide that in the mid-nineties had taken the lives of more than half a million people in a matter of 100 days. In its recent compilation of frequently asked questions about the legal institution, the Council on Foreign Relations highlights that the International Criminal Court is based on a principle of complementarity: “This means that the ICC can only act when a national court is unable or unwilling to carry out a prosecution itself because the ICC was not created to supplant the authority of the national courts. However, when a state’s legal system collapses or when a government is a perpetrator of heinous crimes, the ICC can exercise jurisdiction.”

Furthermore, based on the statute established at the United Nations conference in Rome on July 17, 1998, the prosecutor “can initiate an investigation on the basis of a referral from any State Party or from the United Nations Security Council. In addition, the Prosecutor can initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court received from individuals or organizations (“communications”).”

Below is a list of pending cases before the international court courtesy of ICC.

Situation in Uganda

The case The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen is currently being heard before Pre-Trial Chamber II. In this case, five warrants of arrest have been issued against [the] five top members of the Lords Resistance Army (LRA). Following the confirmation of the death of Mr Lukwiya, the proceedings against him have been terminated. The four remaining suspects are still at large.

Situation in the Democratic Republic of the Congo

In this situation, five cases have been brought before the relevant Chambers: The Prosecutor v. Thomas Lubanga Dyilo; The Prosecutor v. Bosco Ntaganda; The Prosecutor v. Germain Katanga; The Prosecutor v. Mathieu Ngudjolo Chui; The Prosecutor v. Callixte Mbarushimana; and The Prosecutor v. Sylvestre Mudacumura. Thomas Lubanga Dyilo, Germain Katanga and Bosco Ntaganda are currently in the custody of the ICC. Sylvestre Mudacumura remains at large.

Trial Chamber I convicted Mr Lubanga Dyilo on 14 March 2012. The trial in this case, The Prosecutor v. Thomas Lubanga Dyilo, had started on 26 January 2009. On 10 July 2012, he was sentenced to a total period of 14 years of imprisonment. The time he spent in the ICC’s custody will be deducted from this total sentence. On 7 August 2012, Trial Chamber I issued a decision on the principles and the process to be implemented for reparations to victims in the case. All three decisions are currently subject to appeal.

The trial in the case of The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui started on 24 November 2009. Closing statements in the case were heard from 15 to 23 May 2012. On 21 November 2012, Trial Chamber II decided to sever the charges against Mathieu Ngudjolo Chui and Germain Katanga. On 18 December 2012, Trial Chamber II acquitted Mathieu Ngudjolo Chui of the charges of war crimes and crimes against humanity and ordered his immediate release. On 21 December 2012, Mathieu Ngudjolo Chui was released from custody. The Office of the Prosecutor has appealed the verdict.

The verdict regarding German Katanga will be delivered at a later stage.

The confirmation of charges hearing in the case The Prosecutor v. Callixte Mbarushimana took place from 16 to 21 September 2011. On 16 December 2011, Pre-Trial Chamber I decided by Majority to decline to confirm the charges against Mr Mbarushimana. Mr Mbarushimana was released from the ICC’s custody on 23 December 2011, upon the completion of the necessary arrangements, as ordered by Pre-Trial Chamber I.

On 22 March 2013, Bosco Ntaganda surrendered himself voluntarily and is now in the ICC’s custody. His initial appearance hearing took place before Pre-Trial Chamber II on 26 March 2013. The confirmation of charges hearing in the case is scheduled to start on 10 February 2014.

Situation in Darfur, Sudan

There are five cases in the situation in Darfur, Sudan: The Prosecutor v. Ahmad Muhammad Harun (”Ahmad Harun”) and Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”); The Prosecutor v. Omar Hassan Ahmad Al Bashir; The Prosecutor v. Bahar Idriss Abu Garda; The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus; and The Prosecutor v. Abdel Raheem Muhammad Hussein.

Warrants of arrest have been issued by Pre-Trial Chamber I for Messrs Harun, Kushayb, Al Bashir and Hussein. The four suspects remain at large.

A summons to appear was issued for Mr Abu Garda, who appeared voluntarily before the Chamber on 18 May 2009. After the hearing of confirmation of charges, on February 2010, Pre-Trial Chamber I declined to confirm the charges. Mr Abu Garda is not in the custody of the ICC.

Two other summonses to appear were issued for Mr Banda and Mr Jerbo who appeared voluntarily on 17 June 2010; the confirmation of charges hearing took place on 8 December 2010. On 7 March 2011, Pre- Trial Chamber I unanimously decided to confirm the charges of war crimes brought by the ICC’s Prosecutor against Mr Banda and Mr Jerbo, and committed them to trial. The trial in the case The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus is scheduled to start on 5 May 2014.

Situation in the Central African Republic

The situation was referred to the Court by the Government of the Central African Republic in December 2004. The Prosecutor opened an investigation in May 2007. In the only case in this situation, The Prosecutor v. Jean-Pierre Bemba Gombo, Pre-Trial Chamber II confirmed, on 15 June 2009, two charges of crimes against humanity and three charges of war crimes, and committed the accused to trial before Trial Chamber III. The trial started on 22 November 2010.

Situation in the Republic of Kenya

On 31 March 2010, Pre-Trial Chamber II granted the Prosecutor’s request to open an investigation proprio motu in the situation in Kenya, State Party since 2005. Following summonses to appear issued on 8 March 2011, six Kenyan citizens voluntarily appeared before Pre-Trial Chamber II on 7 and 8 April 2011. The confirmation of charges hearing in the case The Prosecutor v. William Samoei Ruto and Joshua Arap Sang were held from 1 to 8 September 2011. The confirmation of charges hearing in the case The Prosecutor v. Uhuru Muigai Kenyatta took place from 21 September to 5 October 2011. On 23 January 2012, the judges declined to confirm the charges against Henry Kiprono Kosgey and Mohammed Hussein Ali. Pre-Trial Chamber II confirmed the charges against William Samoei Ruto, Joshua Arap Sang, Francis Kirimi Muthaura and Uhuru Muigai Kenyatta and committed them to trial. On 18 March 2013, the charges against Francis Kirimi Muthaura were withdrawn. The trial of William Samoei Ruto and Joshua Arap is started on 10 September 2013 and the trial of Uhuru Muigai Kenyatta is scheduled to start on 12 November 2013.

On 2 October 2013, Pre-Trial Chamber II unsealed an arrest warrant against Walter Osapiri Barasa, initially issued on 2 August 2013, for several offences against the administration of justice consisting in corruptly or attempting to corruptly influencing ICC witnesses.

Situation in Libya

On 26 February 2011, the United Nations Security Council decided unanimously to refer the situation in Libya since 15 February 2011 to the ICC Prosecutor. On 3 March 2011, the ICC Prosecutor announced his decision to open an investigation in the situation in Libya, which was assigned by the Presidency to Pre-Trial Chamber I. On 27 June 2011, Pre-Trial Chamber I issued three warrants of arrest respectively for Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi for crimes against humanity (murder and persecution) allegedly committed across Libya from 15 until at least 28 February 2011, through the State apparatus and Security Forces. On 22 November 2011, Pre-Trial Chamber I formally terminated the case against Muammar Gaddafi due to his death. The two other suspects are not in the custody of the Court. On 31 May 2013, Pre-Trial Chamber I rejected Libya’s challenge to the admissibility of the case against Saif Al Islam Gaddafi and reminded Libya of its obligation to surrender the suspect to the Court.

Situation in Côte d’Ivoire

Côte d’Ivoire, was not party to the Rome Statute at the time, had accepted the jurisdiction of the ICC on 18 April 2003; more recently, and on both 14 December 2010 and 3 May 2011, the Presidency of Côte d’Ivoire reconfirmed the country’s acceptance of this jurisdiction. On 15 February 2013, Côte d’Ivoire ratified the Rome Statute.

On 3 October 2011, Pre-Trial Chamber III granted the Prosecutor’s request for authorisation to open investigations proprio motu into the situation in Côte d’Ivoire with respect to alleged crimes within the jurisdiction of the Court, committed since 28 November 2010, as well as with regard to crimes that may be committed in the future in the context of this situation. On 22 February 2012, Pre-Trial Chamber III decided to expand its authorisation for the investigation in Côte d’Ivoire to include crimes within the jurisdiction of the Court allegedly committed between 19 September 2002 and 28 November 2010.

On 23 November 2011, Pre-Trial Chamber III issued a warrant of arrest under seal in the case The Prosecutor v. Laurent Gbagbo for four counts of crimes against humanity. The arrest warrant against Mr Gbagbo was unsealed on 30 November 2011, when the suspect was transferred to the ICC detention centre at The Hague, by the Ivorian authorities. On 5 December 2011, Pre-Trial Chamber III held an initial appearance hearing. The confirmation of charges hearing took place between 19 and 28 February 2013. On 3 June 2013, Pre-Trial Chamber I adjourned the hearing on the confirmation of charges and requested the Prosecutor to consider providing further evidence or conducting further investigation with respect to the charges presented against Laurent Gbagbo.

On 22 November 2012, Pre-Trial Chamber I decided to unseal a warrant of arrest issued initially on 29 February 2012 against Simone Gbagbo​ for four counts of crimes against humanity allegedly committed in the territory of Côte d’Ivoire between 16 December 2010 and 12 April 2011. Mrs. Gbagbo is not in the custody of the Court.

On 30 September 2013, Pre-Trial Chamber I unsealed an arrest warrant against Charles Blé Goudé initially issued on 21 December 2011 for four counts of crimes against humanity allegedly committed in the territory of Côte d’Ivoire between 16 December 2010 and 12 April 2011. Mr Blé Goudé is not in the custody of the Court.

Situation in Mali

On 16 January 2013, the Office of the Prosecutor opened an investigation into alleged crimes committed on the territory of Mali since January 2012.

The situation in Mali was referred to the Court by the Government of Mali on 13 July 2012. After conducting a preliminary examination of the situation, including an assessment of admissibility of potential cases, the OTP determined that there was a reasonable basis to proceed with an investigation.

The situation in Mali is assigned to Pre-Trial Chamber II.
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Related:
Kofi Annan Urges African Leaders to Stand by International Criminal Court (LA Times)
Ethiopia Criticises ICC Policy against Africa (Sudan Tribune)
African Leaders to Hold Summit in Ethiopia on Kenya’s International Court Cases (VOA)
Ethiopia Supports Campaign Against International Court (VOA News)

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Events, History, News

Photos: United Nations Marks OAU-AU 50th Anniversary

Tadias Magazine
By Tseday Alehegn

Published: Thursday, June 27th, 2013

New York (TADIAS) – The African Union Permanent Observer Mission to the United Nations in New York hosted a “High level Panel Discussion and Workshop” on Wednesday June 26th inside the UN building marking the 50th anniversary of the Organization of African Unity (OAU), the predecessor to the African Union (AU), headquartered in Addis Ababa, Ethiopia.

The event opened with a remark by Ambassador Tete Antonio of the Permanent Observer of the AU to the UN, who delivered an introductory message from Dr. Nkosazana Dlamini-Zuma, Chairperson of the AU Commission and the first woman to lead the organization. Statements were also made by the head of the African Group for the month of June 2013, Mr. Roble Olhaye, Permanent Representative of Djibouti to the United Nations.

The keynote speaker was Dr. Ali A. Mazrui, the famed academic and political writer on African and Islamic studies as well as North-South relations. During his speech Professor Mazrui, who turned 80 last year, proposed that the AU, which currently has no real authority to make binding decisions for all of Africa’s 54 states, perhaps should establish a permanent member council similar to the U.N. with a rotating chairmanship. He suggested the body should be made up of 4 or five countries, one from each region based on size of population: “Nigeria from the West, Egypt from the North, Ethiopia from the East and South Africa from the South.”

Mazuri also recalled Nelson Mandela’s memorable interview with Ted Koppel on ABC’s Nightline on February 15th, 1990, soon after he was released from his 27-year imprisonment. “Most people would look at the last 27 years of your life or at the life of someone who has spent the last 27 years in prison and say to themselves “what a waste.” What about you?,” the ABC host had asked. “That is true, to spend 27 years at the prime of your life is a tragedy and I regret those years that I have wasted in prison,” Mandela had responded. “But there are very positive aspects too because I had the opportunity to think about problems and to reflect on my mistakes.” Mandela added: “I also had the opportunity of reading very widely and especially biographies and I could see what men sometimes from very humble beginnings were able to lift themselves with boot strings and become international figures and men that are useful to society in their own community and to the world.”

The gathering also included screenings of a short documentary focusing on the history of the founding of the OAU in Addis Ababa on May 25th, 1963 as well as a trailer of a film highlighting the organization’s 50th anniversary celebrations .

Below is a slideshow of images from the panel discussion:

Watch: Feb. 15, 1990: Nelson Mandela Interview with Ted Koppel on ABC’s Nighline

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Related:
Yadesa Bojia Reflects on African Union Flag on 50th Anniversary (TADIAS)
The African Union Turns 50: Voices From Ethiopia — Past and Present (TADIAS)

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Featured, History

The African Union Turns 50: Voices From Ethiopia — Past and Present

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Tadias Magazine
By Nuhamin Daniel and Benno Muechler

Updated: Saturday, May 25th, 2013

Addis Ababa (TADIAS) – It must have been some time around 1970. Solomon Kurabachew doesn’t remember exactly when he met his future wife, but at the time he was employed as an accountant at the OAU, where Lakatch, now his wife of 40 years, also worked as a secretary. In a recent interview at their home here in Addis Ababa, the couple shared with us their memories of how they met each other because of their work at the Organization of African Unity, which is the predecessor to the African Union (AU). On Saturday, May 25th the AU celebrated its 50th anniversary.

Each day after work, Solomon said, he drove home with two colleagues past the Emperor’s palace. And on the way once he spotted Lakatch and two of her friends waiting for a taxi. “So, one day when the three of us saw them again, we thought: ‘Oh, these girls are always standing here,'” Solomon recalled. “Why not give them a lift?” At first, Mr. Solomon said, the connection started out as “Selam and ciao.”

“Then lastly, me and one of my friends decided to talk to them so my friend and I stepped out of the car –one of the guys stayed in the car –and we said hello to the women and offered to give them a lift,” he remembered. “They said ‘No.'” But that was before Lakatch relented in giving him her phone number.

When Solomon began working at OAU in 1968, Mobutu Sese Seko was the chairman and the OAU’s nickname was the ‘Dictators’ Club.’ The heavily criticized institution is still a work in progress, but over the past five decades it has also been source of job security for many professionals like Solomon and Lakatch. And in recent years the newly inaugurated state-of-the-art conference center and office complex — a $200 million gift from the government of China — has added to the local economic boom.

For Fantahun Haile Michael, AU’s current project coordinator, the entity is not perfect, but “It’s the the only continental forum we do have.”

In an interview at his office inside the new building, Mr. Fantahun, who previously served as Ethiopia’s ambassador to North Korea and Zimbabwe, said the AU has no power to make binding decisions for all of Africa’s 54 states, but it does its best given all the constraints.

“Ultimately we’re trying to change the continent in order to better, for good, the lives of African citizens,” he said. As to his own employment at the AU: “It’s not about thinking about our own life, our well-being because we’re paid well,” he said. “That’s not something that should give us ultimate happiness. Ultimate happiness is how much we’re trying to change Africa.”

There sat another gentleman under a tree in the morning sun, dressed in a worn-out gray sweater, outside the AU compound, away from the basketball court, where from Mr. Fantahun’s office window view a few women played dribble. Teshome Kinfe Woldegiorgis, 24, is waiting for customers. Teshome washes cars and makes about 100 Birr a day, that’s before he quit his job at the AU that paid less.

“When I started at the AU, I was really excited,” said Teshome who made 400 Birr a month. “But that changed when I saw how conditions were.

Teshome grew up in the neighborhood around AU. After finishing grade 10 at school, he tried to make ends meet as a shoe shiner. One of his customers worked at the AU and got him a job as a waiter. Teshome served top officials like UN Secretary General Ban Ki Moon. After two years, he left his job.

“I remember that my feet were bleeding one day because I had to walk so much. And all that for only 400 Birr a month. I applied for other jobs that were better paid, but I never got a reply. You spend the whole day with top officials like the AU chairperson, Jean Ping. But you can’t even afford a new pair of pants with the money you earn every month.“

Kebede Assefa is one of those city residents who had to move to make way for the construction of the new AU building. He works as a barber some hundred meters down the street in a district of huts made of mud and iron sheet. A smelly river with yellow foam on the surface meanders under a bridge. The area will be demolished soon. Fortunately, this time, the city gave those losing their properties at least new housing. It was different when his old dwelling was demolished some years ago, he said. He is still waiting for compensation. Nevertheless, Mr. Kebede, who has only one leg since his car accident and now cuts hair while leaning on a crutch, thinks positively of the AU. “What can you say if the area here is to be developed?” he asked. “This district is really ugly. We need to grow. Why should it remain like this?”

At Solomon and Lakatch’s living room, “It was love at first sight,” Lakatch said, after Solomon noted that she had given him her phone number on his second try. Like the AU, the family of Solomon and Lakatch has grown since the early 1970s. The pictures of their four married children and five grandchildren hang on the walls of their living room. Also, just like the AU, the couple moved to a new home. While this one is much smaller and was not built by the Chinese, the old house next door accommodates a Taiwanese and a German who would probably have never come to Addis if the AU had not made the city become a regional center for aid agencies and the international media.

Mr. Solomon left the OAU in 1986 and worked at the delegation of the European Union in Addis until his retirement age. Maybe the AU will become an EU one day, he said. “Yes, working at the EU was more comfortable, but having double the number of EU member states makes life also more difficult for the AU.”

“At the African Union, on the other hand, there are so many different characters,” Mr. Solomon said while Lakatch boiled coffee in a pot placed on charcoal in the background. “It’s not a small organization. There are the French, the English-speaking, the Arabs. There are a lot of communication gaps between us. But at the EU, there are only two languages — French and English. You can communicate, you can understand each other.”
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Nuhamin Daniel is a journalist based in Addis Ababa. Benno Muechler is a freelance correspondent for German Public Radio (Deutschlandfunk) from Ethiopia.
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Related:
Photos: United Nations Marks OAU-AU 50th Anniversary (TADIAS)
AU Celebrates At Landmark Summit in Ethiopia (Video)
Ketema Yifru: The Architect Behind the OAU (The Ethiopian Reporter)
The OAU: Fifty years on (BBC News)
African Union Celebrates 50th Year (AP)
Watch: AU anniversary video spotlight (Economist)
Yadesa Bojia Reflects on African Union Flag on 50th Anniversary (TADIAS)
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