AU - ICC stand-off: Justice and Peace Paradigms

A Speech by Dr Gorden Moyo made at the Bulawayo Agenda Dialogue Series-23 June 2015

The current stand-off between the African Union (AU) and the International Criminal Court (ICC) requires us to reflect on a number of epistemic questions from the side of subalterns and victims of impunity in Africa whose voices have been silenced and invisibilized by their own leaders in the name of juridical sovereignty, jaundiced nationalism, and African solidarity. Over the last few years, AU has been accusing the ICC for bias, skewed, and selective prosecution of African leaders. Thus, the crucial question before us today is whether or not the ICC is indeed a neocolonial court or the accusation is a guise deployed by some African leaders to evade the wrath of the law? Or it's the Imperial East versus Imperial West but both abusing the AU and ICC? These questions are screaming for answers. To be sure, this presentation seeks to expose the hypocrisies and posturings of some disfiguring African leaders who are responsible for genocide and mass atrocities against their own people and yet cry foul against the ICC.

To begin with, both AU and ICC were political products of the post cold war politics of the 1990s. Of course, each had its own complex gestation period. For instance, the ICC's biography is traceable to the Nuremberg trials of the end of World War II in 1945 while the AU's zygote is connected to the end of Apartheidism in South Africa in 1994 though its predecessor, the Organisation of African Unity (OAU) was conceived in 1963.

In many ways the 1990s was a lost decade in Africa. Its ugliest historical markers include among others; the internecine conflicts in Sudan, Somalia, Liberia, Sierra Leone, DRC, Rwanda and Uganda which collectively claimed millions of innocent lives, civilians, women and children. Most of these conflicts are still lingering on to this day. Clearly, the OAU was at the time inadequate to protect the victims of violence, arson and murder perpetrated by both state actors and non-state actors. No wonder why the signing of the AU Constitutive Act in Lome (2000) which transformed the OAU to AU was greeted with celebrations across Africa. The transformation was celebrated because it promised the end of an era of impunity in Africa. The provisions on promotion and protection of human and peoples' rights, and the right of AU to intervene in member states in respect of grave circumstances of gross violation of human rights gave hope to the long suffering victims of impunity.

Like the OAU, the United Nations Security Council failed , at critical times in history, to act decisively to protect the vulnerable against human rights and violent abuses not just in Africa but also in countries across the globe such as East Timor, Chechnya, Yugoslavia, Poland, Serbia, Sri Lanka, Kosovo, Lebanon, Bosnia and Israel/Palestine. It was within this backdrop that the ICC was established at the tail end of the 1990s to address the issues of impunity at international level. Thus, the ICC came into force in July 2002 four years after the signing of the Rome Statute in 1998. Currently 123 countries are State Parties to the Rome Statute. Out of them 34 are African States, 19 are Asia-Pacific States, 18 are from Eastern Europe, 27 are from Latin American and Caribbean States, and 25 are from Western European and other States. These figures demonstrate the popularity of the ICC in African, Latin American and Caribbean States a region which constitutes the bulk of the Global South.

 The key objective of the ICC is very specific. It is to prosecute executive leadership comprising of presidents, prime ministers, senior military officials, senior government officials and other top ranking officials charged for gross violation of human rights. Specifically, in terms of the Rome Statute, Article 5, ICC has jurisdiction over crimes against humanity, war crimes, genocide and aggression. The Rome statute article 26 reserves no immunity even for the seating Heads of States and Governments. Prior to ICC, these serious crimes were prosecuted through ad hoc International Criminal Tribunals such as the International Criminal Tribunal for former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR). ICC was not therefore meant to substitute the then existing international criminal justice system but to compliment it. To date, ICC has managed to prosecute, try and sentence two former heads of states that is, Liberia's Charles Taylor and the late Serbia's Slobodan Milosevic.

Currently, there are 32 cases before the ICC, all from eight African countries that is, DRC, Uganda, Cote d'voire, Sudan, Kenya, Libya, Central Africa Republic and Mali. This scenario has given reason to some members of the AU to claim that ICC is a neocolonial court or an ‘imperial master exercising imperial power over African subjects'. Subsequently, AU has passed a raft of resolutions from March 2009 to date which call upon all member states not to cooperate with the ICC regarding the arrest of the President of Sudan, Omar al Bashir who is accused of genocide and mass atrocities against his own people in the Darfur region.

 Furthermore, AU has in the past also called for the suspension of the ICC proceedings against the President of Kenya, Uhuru Kenyatta and his Deputy William Ruto who, along with five others were charged for crimes against humanity including murder, forceful removal of populations, mass rape and other sexual crimes in the aftermath of the 2007 general elections in Kenya. Besides calling for non-cooperation with ICC, AU has stopped the setting up of the ICC Liaison Office in Addis Ababa. Moreover, some leaders like the current chairman of the AU Mugabe and the African National Congress (ANC) leadership are now calling for the complete pull-out of all African States Parties (ASP) from Rome Statute. It should be noted that along with countries such as Sudan and Libya, Zimbabwe is not a State Part of the ICC.

There is no doubt that the ICC should concern itself with the gross violation of human rights in countries such as Israel/Palestine, Syria, Ukraine, and Iraq and others where there are gross violations of human rights. We argue that it is crucially important that all cases of impunity are stopped, be it in Africa, Asia or Europe. In that context, ICC should always remind itself that it was founded with the conviction that there should be no impunity for anybody anywhere in the world. We also believe that the fight against impunity and concern for well-being of the most vulnerable are values central to humanity irrespective of geography, history, race and position in global hierarchies of power. The failure to deal with cases outside Africa has given the blood thirsty African despots scapegoat to rationalise and justify their vampirical desires and negative escapades against their own people.

It cannot be doubted that ICC has many shortcomings but its characterisation as unfairly targeting Africans is not backed by facts. For instance, of the eight cases before ICC four were referred by Africa itself i.e. DRC, Uganda, Central Africa Republic and Mali. On the other hand, Sudan and Libya were referred by the United Nations Security Council in terms of the United Nations Charter, Chapter VII read together with Rome Statute, Article 16, while Kenya and Cote d'voire were referred in terms of the Rome Statute, Article 15 which stipulate that the prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the ICC.

Not surprisingly, only those governments which stood to benefit from referring their cases to ICC did so. In fact  they referred their political opponents for prosecution by ICC. On the other hand, where the seating government was the perpetrator no cases have been referred to ICC to date. It would be unrealistic to expect the perpetrating government to refer cases of impunity to ICC. In this regard, if the ICC was to rely on government referrals, then the ICC would degenerate into the justice of the powerful, hence the justification of referrals by the Security Council and the chief prosecutor's own initiative.  For the record, the current ICC chief prosecutor is a Gambian woman Fatou Bensouda who took over from Luis Moreno Ocampo from Agentina -both from the Global South and not from the imperial West.

While the ICC has not prosecuted cases in the Global North, it is clear that those that have been charged in Africa have a case to answer. Therefore the accusation that ICC is a selective, skewed, biased and even condescending court does not pass the evidence test. The truth of the matter is that some African presidents who are in the forefront of vilifying the ICC are themselves guilty of impunity, war crimes, crimes against humanity and genocide and they are looking for political and ideological sanctuaries to hide, prevent and escape justice. Oddly enough, in all the resolutions and decisions of the AU Assembly on ICC since the al Bashir indictment in 2009 there has not been a single mention of the rights of victims of impunity.

 Instead, all the decisions of the AU Assembly are couched around the issue of immunity of the seating Heads of States and Governments. In fact, the AU decisions are inscripted in what Enrique Dussell terms the ‘nationality of power' wedded with ‘coloniality of power' a situation where the ordinary masses are subalternised and peripherised into zones of non-being.  In the eyes of some leaders such as Sudan's al Bashir, Gambia's Yaya Jameh, Eritrea's Afwerki and Zimbabwe's Mugabe, killability and dispensability of human life are part of pan-Africanism. This abysmal thinking suggests that the rights of the victims of impunity must be silenced and disciplined in the name of faked stability and negative peace. Hence the people who complain about bias of the ICC are African dictators-the perpetrators and not the victims, who are relieved that at least ‘somebody in the ICC is paying attention to their plight'.

Evidently, the AU pull-out campaign headed by Mugabe seeks to disable the ICC from indicting more fraudsters running the African states. It is also meant to completely relegate the epistemic and ontological wounds inflicted on African people by their leaders to archival dustbins. More cynically, the perpetrators expect to be deified and iconised as heroes and victors against neocolonialism and neoimperialism. Mugabe is actually experienced in this art of political deception. After presiding over the Gukurahundi mass killings of approximately 20 000 innocent civilians of Ndebele ethnic group in Matabeleland and Midlands Provinces in the 1980s, Mugabe preached unity and peace as substitutes for justice and thought he had got away with it.

However, three decades after the scourge of Gukurahundi together with Murambatsvina crimes against humanity, the stubborn facts about Mugabe's impunity continue to haunt him and his lieutenants up to this day. No wonder why Mugabe gets livid about the idea of arresting seating presidents by the ICC. Chinua Achebe was right when he remarked that ‘an old woman is always uneasy when dry bones are mentioned in a proverb'. To avoid the possibilities if not reality of his own indictment, Mugabe has had to specifically assign one of his deputies Mr Report Phelekezela Mphoko to traverse the breadth and width of the country denying the truth of Gukurahundi. Sadly, Report Mphoko is not doing a very good job for Mugabe. Instead, he has angered the victims, survivors and the communities where mass atrocities actually took place. He has actually rekindled the memories of the torture survivors who are now exploring various ways of redress. Report Mphoko is better advised to read the recently declassified South African Foreign Affairs documents which reveal how some ‘high ranking' ZANU PF officials negotiated with Apartheid South African Defence Forces in 1983 to cooperate in their efforts to keep ZAPU from supporting the African National Congress (ANC) operatives in Zimbabwe. Never mind Mugabe's pretentions of pan-Africanism, he was an Apartheidist in nationalist aprons.

While the AU's idea that cases of gross violation of human rights in Africa should be prosecuted, tried and sentenced in Africa by either national criminal justice system or by the African Court of Justice (ACJ) in conjunction with the African Human and Peoples' Rights Court (AHPRC) may sound plausible, logical and pan-African, as mentioned earlier, it should never escape our minds that the perpetrators of these crimes are  almost invariably the seating Heads of States and Governments who enjoy immunity in their countries and have a tendency of long distance rulership. For this reason, it is near impossible that the victims will ever see justice if all serious cases were to be referred to internal or regional justice systems.

 Moreover, issues of solidarity between and among African governments also impede on justice. The case of the former president of Chad, Hissene Habre who is accused of the killings and torture of approximately 40 000 innocent citizens of that country is a classical one. To be sure, the victims of Habre's brutal killings have been fighting for more than two decades to bring him to justice but the Senegalese government which gave Habre asylum in 1990 protected him from internal criminal justice and from extradition. Until the new president of Senegal, Macky Sall elected in 2012 arrested Habre, the man was living a largely untroubled life in Dakar until then.

 Similarly, the former president of Ethiopia, Mengistu Haile Marrime who is in asylum in Zimbabwe for over two decades now is accused of Operation ‘Red Terror' which left thousands of people dead in his country. His victims are unlikely to find justice as the perpetrator is well protected by his comrade in blood. We should therefore excuse those who view the AU as a ‘Dictators Club' that is interested in protecting its own interests as opposed to protecting the interests of the vulnerable, the victims and the subalterns.

While the imperial claims by AU may invoke pan-African spirit and liberation struggle memories in Africa, it should be noted that the Security Council which referred both Libya and Sudan to the ICC consists of five permanent members that is, UK, France (signatories of the Rome Statute), Russia, China and USA (are not). Each of these countries has veto powers on all issues brought to the attention of the Security Council. In the African liberation lexicon and paradigm both China and Russia are not imperialists since they supported the liberation movements to decolonise Africa from the Western imperialists. Assuming China and Russia are anti-imperialists as Mugabe and company suggest, then this claim begs the question why either of the two countries did not veto the Security Council Resolution 1593 which compelled Sudan to cooperate with the ICC?

We submit here that both Russia and China are new economic imperialists. For instance, China like all imperialist powers imports cheap raw materials from Africa; exports finished products to Africa; exploits its own and other countries cheap labour; it invests and seeks to control infrastructure in Africa such as highways, airports, ports, and telecommunications; it is a creditor; and it uses its political clout to bribe political leaders to protect its economic interests. Just like the Western imperialists which pampered the Mobutus, Idi Aminis and Bokassas of this world, China has a weird reputation of protecting despots and perpetrators of gross violation of human rights. In Zimbabwe they have constructed a personal residence for Mugabe, a military defence college and a conference centre for the ruining party ZANU PF. Moreover, the Chinese have also invested heavily in the First Family businesses such as the Gushungo Dairy Estate and the Mazowe Business Hub but nothing for the ordinary citizens except the looting of their natural resources, destruction of the their textile and clothing industry leaving them unemployed and impoverished.

While the Chinese did not oppose the Security Council resolution, they have been working behind the scenes with some African leaders to undermine and defy the resolution to arrest al Bashir. For record, at the time of al Bashir's formal indictment by ICC in March 2009, Sudan was the third largest recipient of Chinese investment behind Angola and South Africa. China's business interests in Sudan include among others: dam construction (Merowe Dam where China's Exim- Bank is providing USD$530 million); power generation (El Galil Power Station); Railways (Railway connecting Port Sudan to Khartoum); and petroleum industry. Moreover, Sudan was one of the few countries to be visited by the then Chinese President Hu Jintau in February 2007. All this indicates the strategic value that Sudan is to China. While there is nothing inherently wrong with the above investments, it is worth noting that they are the very reasons why China is protecting al Bashir from ICC.  A good number of African Heads of States and Governments have been bribed to support the Sudanese president. In this context, the lives of the Darfurans do not matter as long as al Bashir continues to be the conveyor belt of African resources to feed the over a billion Chinese.

To this extent, the Mugabe-led faction of the AU should be thoroughly analysed and its pretentions and guises exposed. It is this component of the AU which is screaming about the neocolonial exigencies of the West while shielding the new imperialists from the East with impunity. The new economic imperialists of the East dine and wine with dictators to protect their excesses, and as a quid pro quo the imperialists loot African resources with impunity. They are no less worse than their Western counterparts.

In this regard, the 25th AU Summit in South Africa in June 2015 will be remembered in the annals of history as full of contradictions, ambiguities, dichotomies, and frictions. South Africa which for years was on the frontline fighting Apartheidism will have to extricate itself before the bar of history, the bar of public opinion and the bar of its own conscience how it found itself in defence of despotism and impunity if it hopes to regain its confidence from the victims of impunity; regain its former venerated place on matters of moral leadership; and African conscience inaugurated by its founding icon the late Mandela. That evil triumphed in the AU when a South African national was the chairperson of the AU Commission in a Summit hosted by South Africa flies on the face of South Africa's proud history against impunity. It should be known that the only benefactors of South Africa's inaction regarding the arrest of al Bashir when he was present on its territory is al Bashir himself along with all other African despots who have albatrosses of crimes hanging on their necks. Sadly, justice once again lost on the altar of impunity masquerading as peace project.

In concluding, we would like to call upon all peoples of conscience in Zimbabwe, Africa and Diaspora to denounce the Mugabe-led pull out campaign.  We also call upon all progressive African leaders to distance themselves from Mugabe-AU's paradigms of violence; neo-populism guised as pan-Africanism; and despotism disguised as Afro-radicalism. There is no need for countries and leaders without skeletons in their cupboards to be banded together with dictatorships by default. It is in this context, that we applaud Malawi, Botswana and others for resisting the posturings of dictatorships who ganged up against the victims of impunity by embracing the non-cooperation axiom of the Mugabe faction of the AU. Africa and the World should listen to the clarion call of the victims of gross violation of human rights who want both peace and justice in equal measures.

I thank you
Dr Gorden Moyo is the Secretary for International Affairs
Renewal Team -Zimbabwe
23 June 2015