Hypocrisy reigns in International Criminal Court debates

October 20, 2013
Kenyan President Uhuru Kenyatta.

An “extraordinary summit” of the African Union in the Ethiopian capital, Addis Ababa, on October 11 and 12 took place without a threatened mass withdrawal of AU member nations from the International Criminal Court (ICC).

The mass withdrawal threat was in response to the ongoing prosecution by the ICC of Kenyan President Uhuru Kenyatta and Vice-President William Ruto. They were elected in March this year while already facing charges for political violence after Kenya’s previous elections in 2007.

The AU summit passed a resolution calling for the suspension of ICC cases against African leaders now in office. As well as Kenyatta and Ruto, this includes Sudanese President Omar al-Bashir. The ICC issued an arrest warrant for al-Bashir in March 2009 for war crimes and crimes against humanity in Darfur.

Like the US, but unlike Kenya, Sudan is not a signatory to the ICC but is subject to a 2005 UN Security Council resolution granting the court jurisdiction. The AU resolution called on the UN Security Council to use its power to regulate the ICC’s jurisdiction to suspend the cases against Kenyatta, Ruto and Bashir and foreshadowed another “extraordinary summit” in November.

A mass withdrawal of AU members from the ICC was not ruled out if the UN Security Council had not responded favourably to the AU request before the November AU assembly.

Kenyan politicians have spun the AU resolution as a victory in their leaders’ campaign against ICC prosecution.

The October 15 Kenyan Star quoted foreign secretary Amina Mohammed: “It was also decided that the President should not appear before the court until the concerns raised by the AU have been adequately addressed by the Security Council and the ICC ...

“The AU made requests to the Security Council … for a suspension of the proceedings until the end of the terms in office of the President and his Deputy.”

Ethiopian leaders described the outcome of the summit in similar terms. Reuters reported on October 12 that Prime Minister Hailemariam Desalegn told the closing session: “We have agreed that no charges shall be commenced or continued before any international court or tribunal against any serving head of state or government, or anybody acting or entitled to act in such capacity during his or her term of office.”

However, the October 12 Sudan Tribune said the government of the indicted Sudanese president was less satisfied with the summit. Foreign minister Ali Karti said that the campaign for immediate withdrawal from the ICC by AU members that were signatories was “generally weakened” by unspecified AU countries.

But he added that in his “overall assessment, the meetings affirmed previous positions on not dealing with the International Criminal Court regarding any head of state,” the Sudan Tribune said.

Before the summit, the most vocal advocates for withdrawal from the ICC were Ethiopia, Eritrea, Uganda and Rwanda, a paradoxical alliance given the long running rivalry between Ethiopia and Eritrea and between Rwanda and Uganda.

In both cases, the rivalry has mainly played out through violent conflicts in neighbouring countries with the involvement of local proxies, an extremely violent border war between Ethiopia and Eritrea in the late 1990s notwithstanding. The conflict between Ethiopia and Eritrea has been largely fought in Somalia while that between Uganda and Rwanda has been fought in the Democratic Republic of Congo.

This unlikely alliance reflects a cynical agenda: each of the four governments has accumulated a large catalogue of indictable human rights abuses in their conflicts with each other and with other enemies.


The African governments have argued their case against the ICC in anti-imperialist terms, pointing out that the largely European Union-funded court has only ever indicted Africans and that this is done selectively to promote Western foreign policy objectives.

The ICC is a UN-created body that is part of an international order where mechanisms such as the veto of permanent members of the UN Security Council, and the definitions of war crimes under international law, make it structurally impossible for the leaders of the big powers to be held accountable for the millions killed in wars they start.

African leaders denouncing the ICC made frequent reference to the impunity of former US President George W Bush and British PM Tony Blair despite the public record tshowing they used forged documents and false confessions extracted under torture to launch a war in Iraq in 2003. that war killed more than a million people, mainly civilians.

Kenyatta told the AU summit that “bias and race-hunting” by the ICC had “reduced [justice] into a painfully farcical pantomime, a travesty that adds insult to the injury of victims”, AFP said on October 12.

Kenyatta said: “It stopped being the home of justice the day it became the toy of declining imperial powers. It is the fact that this court performs on the cue of European and American governments against the sovereignty of African states. Africa is not a third-rate territory of second-class people. We are not a project, or experiment of outsiders.”

But the AU stance has been criticised not only by pro-Western NGOs such as Human Rights Watch and Amnesty International, but by grassroots human rights and civil society groups throughout the continent.

It has also been opposed by individuals known for their opposition to imperialist crimes, such as South Africa’s Archbishop Desmond Tutu.

African critics have pointed out that the same AU leaders condemning the ICC for its selective pursuit of justice have themselves collaborated with Western powers to use the court against their opponents. In March, the Rwandan government facilitated the surrender to the ICC of a former proxy, turned rival, Congolese warlord Bosco Ntaganda.

In Uganda, the ICC’s attention has been focussed exclusively on the Lord’s Resistance Army of Joseph Kony, the basis of the indictment being a 2004 referral from the Ugandan government of Yoweri Museveni.

While Kony’s cult is extremely violent, it has been militarily defeated, is no longer active inside Uganda, and there are other equally serious human rights abusers in Uganda, including the Museveni regime.

Museveni is a close ally of the US (despite his selective “anti-imperialist” opposition to the ICC) and bringing Kony to justice has been the main pretext for an escalating US military presence in Uganda.

However, while this complicity may undermine the anti-imperialist credentials of African leaders opposing the ICC, the involvement of the court’s backers in many of the crimes that African leaders are indicted for means that greater damage is done to the ICC’s credentials as an instrument of justice.

Warnings by visiting US politicians such as former Secretary of State Hilary Clinton before the March elections to Kenyans not to vote for ICC-indicted candidates backfired and contributed to Kenyatta and Ruto’s victory.

Kenya's pro-Western role

Ironically, Kenyatta and Ruto may get their ICC indictments suspended or dropped by the UN Security Council because the September 21 terrorist attack on the Westgate Shopping Mall in Nairobi by the Somali Islamist al-Shabaab militia has re-emphasised the importance of Kenya as a Western proxy in Somalia.

Kenya has troops in Somalia fighting alongside pro-Western militias against al-Shabaab, as do Uganda, Burundi, Sierra Leone and Nigeria.

Britain’s Daily Telegraph quoted an unnamed “senior European diplomat” on October 14 saying: “Uhuru is not an indicted figure who is defying the court like Sudan’s president Bashir. He is someone who is working closely with the West in a region in chaos that needs to tackle a very worrying terrorist situation.

“A solution must be found that avoids a breakdown in relations with Kenyatta or the court’s authority.”

Britain, the US and Israel have been assisting Kenyan security forces in their hunt for the perpetrators of the Westgate attack. Despite mass roundups of ethnically Somali Kenyans and Somali residents of Kenya, the assassination of four ethnic Somalis in Mombasa by a police death and the shooting of four more by police in protests that followed, the actual terrorists have not been found ― dead or alive.


The dilemma facing Africans is that while the crimes the ICC indicts African politicians and warlords for are real, the Western-controlled international justice system prevents these crimes being linked to their ultimate authors.

Behind 2007-2008 Kenyan post-election violence was the use of ethnic conflict as a diversion of popular anger at neoliberal policies. These policies have left Kenya’s rural and urban poor majority destitution. The country’s land and water is used to make disposal products for the European consumer market: cut flowers.

The worst human rights situation in Africa is in the east of the Democratic Republic of Congo where foreign intervention and civil war since 1997 has a bodycount well higher than 10 million and steadily rising.

Beneath the bewildering array of militias and their shifting alliances with each other and with the governments of Uganda, Rwanda and the DR Congo, is a struggle for control of the production using forced labour of coltan and other rare earths used in computers, mobile phones and tablets.

The money trail of war crimes in DR Congo leads directly to Silicon Valley’s entrepreneurs and corporations.

Throughout the resource-rich African continent, Western (and to a lesser but increasing degree Chinese) corporations ― particularly mining, agribusiness, energy and finance corporations ― are profiting from the crimes that the ICC indicts Africans for.

Moreover, in Africa and throughout the Third World, the number of people killed in war and political violence is dwarfed by the number killed through lack of food, clean water and access to health care.

Under the international law reflected in global trade regulations imposed by institutions such as the International Monetary Fund and World Bank it is not illegal to deprive people of these necessities but it can be illegal for Third World governments to provide them, as this would unfairly restrict Western corporations’ profits.

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