THE JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT IN

AFRICAN POLITIES: A REALITY OR A MYTH

WHYTE HABEEB IBIDAPO1

It is indeed a trite law that the jurisdiction of courts is radical and crucial. Where a

court lacks jurisdiction over a matter, it lacks the vires to entertain and deliberate on

it. A defect in competence is therefore fatal in that, it renders an entire proceedings,

trial or findings invalid, null and void abinitio however brilliantly they must have

been conducted and concluded2. The International Criminal Court is an independent

judicial institution with the power to try and punish individuals for the most serious

crimes of International concern such as genocide, crimes against humanity, crimes

of aggression, and war crimes.3 First approved in 1998 vide a treaty known as the

Rome Statute, the International Criminal Court came into being on the 1st July, 2002,

with its headquarters in The Hague. However, its proceeding may hold anywhere4.

The International Criminal Court has handled lots of cases, but the parties subject to

prosecution before the court raise questions of serious concern.

1 Student of the Nigerian Law School, Abuja Campus, whyte287@gmail.com2 EMEJE V POSITIVE (2010) 1 NWLR PT 1174 C.A 48@ 56; OKE V OKE (2006) 17

NWLR PT 10008 @ 224 ; EZENWOSU V NGONADI (1988) 3 NWLR PT 813 By the provisions of Article 5 (2) of the ICC Statute, the definition of

aggression to be adopted shall be consistent with the relevant provisions

of the charter of the United Nations. This with due respect affects the

independence and impartiality of the ICC as the term ‘aggression’ as

contemplated here is viewed using the subjective standard of the entire UN

member states as reflected in the UN Charter rather than the adoption of

the objective standard of the term from the perspective of those countries

who have not only signed as members, but have ratified their membership

locally. They are unduly made to knee before hose countries that are non –

ICC member states, but participate in the decision making of the Security

Council. 4 Article 3 of the ICC Statute

The objective of this paper is to analyze the jurisdiction situation of the International

Criminal Court vis – a- vis the reality of the existence of the court in the Africa

polities, the limitation it had set down for the inefficient operation of the African

Human Right Court, the usage of ICC as a witch hunting stage by Africans, the effect

of Article 12 (3) and Article 13 (b) and the general challenges of the African States,

with view to proffering recommendations to that effect.

THE ICC AND THE AFRICAN STATES’ CASES

THE INTERNATIONAL CRIMINAL COURT

The International Criminal Court (ICC) is the world's first

permanent international Criminal Court. The ICC was

established pursuant to the adoption and subsequent

ratification by the required legal minimum number of State

Parties to the Rome Statute on July 17, 1998. Senegal on

February 2, 1999, was the first country to ratify the Rome

Statute. The Czech Republic became the 110th country to ratify

the Statute in October, 2009. There is a growing momentum

globally by the Coalition for the International Criminal Court

(CICC) to up the number of ratifying countries through

advocacy, education, sensitization and the medium of civil

societies in over 150 countries worldwide. The ICC it appears,

has come to stay, despite the sticks and skepticism of some of

the world's global powers - the United States of America,

India and China.

The attempt by the international community to confront

impunity has had a chequered history. The League of Nations in

1937 did articulate a Draft Convention on International

Criminal Court before the imbroglio of the Second World War

and the demise of the League of Nations. Prior to the coming

into force of the ICC, the international community responded

to specific conscience shocking situations around the world

with the setting up of 'hybrid' courts. The earliest of these

tribunals were the Nuremberg and Tokyo Tribunals after the end

of the Second World War, to trial Nazi war criminals.

These hybrid courts were the precursor to the ICC. However,

they were constrained mainly because of the very limited

agenda that informed their existence, that is, to deal with

specific situations.

More recently, The International Criminal Tribunal for the

former Yugoslavia (ICTY); the International Criminal Tribunal

for Rwanda (ICTR); the Special Court for Sierra Leone (SCSL)

and the Special Tribunal in Lebanon and Cambodia were

established to confront the post war/conflict situations in

these countries. These tribunals were usually set up and/or

driven by the United Nations, or as in the case of Sierra

Leone, taken over by the United Nations for a variety of

reasons. These were all attempts by the comity of nations to

respond to specific egregious violations of international

human rights law, international humanitarian law, the laws of

war (the 4 Geneva Conventions of 1949 and 1950). These courts

were designed to confront the fallout of state impunity and

atrocious acts that shocked the conscience of the

international community. The Rwanda genocide was one such

situation, where it seemed that the world let down the

Rwandese people.

The ICC unlike these ad hoc tribunals is a permanent court. It

is headquartered in The Hague. Of the 110 countries that have

so far ratified the Rome Treaty, 30 are African State Parties.

Africa played a leading role in the years preceding the Rome

conference where the Statute was adopted. The Dakar and SADC

declarations respectively formed the kernel of African's input

into the Rome Statute.

Consequently, African countries were effectively in the thick

of the process and eventual formulation of the Rome Statute.

That active involvement, in a sense, was carried forward by

African countries with the refashioning of the Organisation of

African Unity (OAU) to become the African Union (AU) and the

fundamental changes that the transformation of the continental

body brought about.

This is clearly evident from the shift in watering down the

principle of state sovereignty and that of non-interference in

the territorial integrity of member states and the new

doctrine of non-indifference as opposed to non-interference in

the internal affairs of member-states. The 2000 Constitutive

Act of the AU was a major paradigm shift in international law.

The implication, therefore, was that African States could no

longer hoist the mantra of non-interference as excuse for the

continued dehumanization of its peoples. The African Union

commitment was, therefore, to say that impunity and gross

human rights violations would be collectively confronted, and

if need be, the AU would forcefully intervene in any member-

country where human rights violations reaches the threshold as

enunciated in Articles 4(h) of the 2000 Constitutive Act. In a

sense, this was taking the matter of confronting state

impunity to another level.

It has been argued that the AU could have stretched the logic

further to fully empower and confer criminal jurisdiction on

the African Court on Human and Peoples Rights to deal with

violations arising from breaches of the Constitutive Act as

envisaged. Thus, some African scholars are now calling for the

regionalisation of international criminal law as a way of

stemming what is perceived as the 'lopsided justice' of the

ICC. The argument is that the plank of that justice is to be

weaved around empowering individuals to be able to legally

bring personal applications before regional courts, as well as

extending the jurisdictions of these courts to include

personal criminal responsibility, as well as lifting the veil

of state immunity for state officials.

Although this proposition is yet to gain currency, the fact

that the ICC is essentially a court of last resort, it is not

impossible that in the near future, these and other

considerations will start to feature in the ICC jurisprudence.

The current ICC Prosecutor (Luis Moreno Ocampo) considers the

success of the ICC as the fewer number of situations that the

ICC would be called upon to deal with in the future,

consequently, giving credence to the principle of

complementarity as enunciated in Article 17 of the Rome

Statute5.

AFRICAN STATES’ CASES

5 Africa and the ICC : Which way forward? By Daniel Ehighalua

The International Criminal Court had at a time opened

investigations into situations in Africa: the Democratic

Republic of the Congo, Uganda, the Central African Republic ,

Darfur (Sudan),the Republic of Cote d’ Ivoire. Out of these

seven, three were referred to the court by the state parties

(Uganda, Democratic Republic of the Congo and the Central

African Republic), two were referred by the United Nations

Security Council (Darfur and Libya) and two were begun by the

Prosecutor (Kenya and Cote d’Ivoire)6.

The law is that jurisdiction of a court can only be determined

by the law establishing the court because it is a condition

precedent to institute an action. A condition precedent is

something that must be done or must happen in a particular

case, before one is entitled to institute an action. It is not

of the essence of such a cause of action, but it has been made

essential by law.7 In the light of the International Criminal

Court, jurisdiction is determined by the provisions of PART 2

of the ICC Act (Rome Statute). The jurisdiction of the Court

shall be limited to the most serious crimes of concern to the6 http:/en.wikipedia.org/wiki/international criminal court investigation;

Accessed on 12th December, 2011 However, it is the writer’s view that Moreno

Ocampo, ICC Prosecutor is used as a smoke’s screen to shield the selfish

interest of the Gbagbo’s successor, Alassane Ouattarra towards a by all

means success at the upcoming Parliamentary elections on the 11th December,

2011 by moving Gbagbo away, thereby initiating a one side justice better

described as a revenge, or ‘victor’s justice’, as one of Gbagbo’s advisors

described it. Infact. Outtarra took this decision, notwithstanding his

purported establishment of the Cote d’Ivoire Truth and Reconciliation

Commission for such purposes.7 Lawal v Oke (2001) 7 NWLR (PT 711) 88

international community as a whole.8 The court can exercise

jurisdiction in respect of the crimes of genocide, crimes

against humanity, war crimes and crimes of aggression.9 Due to

the debate on the inclusion of the crime of aggression, state

parties can exempt themselves from jurisdiction over the crime

of aggression by submitting a declaration of non-acceptance to

the court.10 By the provisions of Article 13 of the Rome

Statute, the ICC may exercise jurisdiction in the following

circumstances, where:

(a) … one or more of such crimes alleged to have been

committed is referred to the Prosecutor by a state party

in accordance with Article 14;

8 Article 5 of the ICC Statute9 There is a very strong opposition on the inclusion of the crime of

aggression in the Court’s jurisdiction, and there is support. Part of the

debate centers on finding an acceptable definition of the crime of

aggression. While arguments to include aggression centre on its extreme

gravity and international repercussions, arguments against its inclusion

centre on the lack of a sufficiently precise definition. However, as at 4th

June, 2010 – Member States of the International Criminal Court (ICC) have

agreed on what constitutes the crime of aggression, a long running source

of contention in international law, after nearly one decade of discussion.

Under the resolution adopted at the end of the two week long ICC review

conference in Kampala, Uganda, it was agreed that the amendment will be

reviewed by 1st January, 2017, as referred to in Article 15(3) of the Rome

Statute. See http://www.un.org/apps/news/story.asp?

NewsID=35018&Cr=international+criminal+court&Cr1;10 ICC nations define crime of aggression,

http://jurist.org/paperchase/2010/06/icc-nations-adopt-crime-of-

aggression.php,

(b) A situation in which one or more of such crimes

appears to have been committed is referred to the

Prosecutor by the Security Council acting under Chapter

VII of the Charter of the United Nations11.

(c) The Prosecutor has initiated an investigation in

respect of such a crime in accordance with article 15.

In the light of the above provision, the ICC, the United

Nations Security Council on 31st March, 2005 referred to the

Prosecutor the document archive of the International

Commission of Inquiry on Darfur12 since July 1st, 2002. The

Darfur situation involves the trial of Abdallah Banda and

Saleh Jerbo for war crimes committed in the Darfur region.

This referral of the Darfur situation to the ICC by the UN

Security Council and the prosecution investigations that

followed seemed ‘wrong to African culture’13. This, in the

opinion of the writer is because of the negative effects

that ICC arrest warrants could have had on the peace process

in Sudan, as it is expected that the issue of the arrest

warrants for rebel commanders would stir up violence from

their supporters. Three other people are wanted for war

crimes in Darfur: Sudanese government minister Ahmad Harun,11 Another debate focused on the role of the Security Council in this regard

.Pursuant to Article 39 of the UN Charter, the Security Council ‘shall

determine’ the existence of an ‘act of aggression’.12 This decision was taken despite the fact the Sudan is not a member state

with the International Criminal Court.13http://www.mw.nl/international-justice/article/iccs-darfur-trial-

%E2%80%93-court%E2%80%99s-mark-histoty;

Janjaweed militia leader Ali Kushayb are key suspects

accused of war crimes and crimes against humanity. Sudan’s

president Omar Al-Bashir,14 who prosecutors accuse of

genocide, crimes against humanity and war crimes in Darfur,

was also declared wanted.

We submit that Sudan is not a signatory to the ICC but

unfortunately a member state with the United Nations. This

therefore subjects them to the influence of the UN Security

Council by a subjective referral of their case to the ICC

prosecutors.

Similarly, the case of Muammar Mohammed Abu Minyar Gaddafi

(Muammar Gaddafi) and two others of Libya was referred to

the prosecutor by the UN Security Council, despite the fact

that Libya is not a state member of the ICC.

Not being a state party, and by the provisions of Article

12(3), a declaration is required to be lodged as a condition

precedent to the ICC’s exercise of jurisdiction in this

regard. It was to this that the outgoing prosecutor of the

ICC, the Argentine Luis-Moreno Ocampo15 has stated that the

decision to do justice in Libya should be taken by the

14 Omar was brought on a ten counts charge of genocide, crimes against

humanity and war crimes. see

http://www.rnw.nl/international-justice/article/iccs-darfur-trial-

%E2%80%93-court%E2%80%99s-mark-history; 15 Now replaced by one of his Gambian assistants, Ms. Fatou B. Bensuoda of

the Gambia, the first African to occupy this position, elected 12th

December, 2011 and to assume the post in 16th June, 2012. See

http://www.icc-cpi.int/Menus/ASP/Press+Releases+2011/ PR749.htm

Libyan people and that either Libya would need to become a

state party to the Rome Statute or the situation would have

to be referred from the UN Security Council in order for the

ICC to investigate. Recently, the Security Council did just

that this led to the assassination, rather than the

execution of the Late Muammar Ghadafi. The referral by the

UN Security Council is highly questionable. It is a

disguised continuation of colonial influence on Africans. By

this, Libya becomes the sixth situation under full

investigation by the ICC16.

It is surprising that almost all17 cases prosecuted by ICC

through its prosecution indict African and Africans only,

such that another condition for the exercise of jurisdiction

by the ICC over matters is surreptitiously smuggled into the

Court System without any formal codification to the effect

that, culprits must be Africans. This is because one wonders

why former president of the US, George W. Bush, after

directing the massacre in Iraq, was not taken there for

prosecution and ascertainment of his guilt beyond reasonable

doubt or innocence18 . USA was a member of the ICC but has

not ratified their membership locally before their

membership was withdrawn by President George Bush on 6th May,

16 http://justiceinconflict.org/2011/02/27/libya-referred-to -the-icc-

initial-thoughts/17 http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/Cases/18 Article 67 of Rome Statute

200219. The Israel-Gaza conflict was equally overlooked,

among others.

Similarly, the ICC interferes with such other cases which

ought to have been locally tried in courts of competent

jurisdiction in African States. A perfect example is the

case of Jean Pierre Bemba who was charged for murder and

Rape (among other offences)20 before ICC despite the fact

that these alleged offences were adequately provided for

under the Democratic Republic of Congo laws. This has been

the case despite the undertaking of the ICC in its preamble

of the Rome Statute thus: emphasizing that the International

Criminal Court established under the statute shall be

complementary to national jurisdictions21.

One wonders whether this undertaking was meant to be

effective. This is because, irrespective of the source of

the complaint, the ICC ought to have first considered the

local criminal laws of the state concerned, if it provides

for the prosecution of that crime; and where the state is

unwilling to prosecute it, as we have in case of Laurent

Koudou Gbagbo of Cote d’Ivoire, then it must indicate its

lack of interest and sufficient reasons for declining

jurisdiction in writing for the judges of the ICC to fairly19 The State parties to the Rome Statute;

http://www.icc-cpi.int/menus/APS/states+parties/The+States+Parties+to+the+R

ome+Statute.html20 http;//www.hrw.org/news/2010/11/22/icc-trial-opens-congo-s-ex-vice-

president Assessed on the 12th December, 2011; others charged for similar

offences are Germain Katanga and Mathieu Ngudjolo Chui, all of Congo DR.21 See preamble and Article 1 of the ICC Statute

consider. In this case, Alassane Ouatarra took this

decision, notwithstanding is purported establishment of the

Cote d’Ivoire Truth and Reconciliation Commission

established for such purpose.

THE LEGAL CAPACITY OF THE AU TO EXTEND ITS JURISDICTION IS

LIMITED BY THE REQUIRMENT THAT THE REVIEW MUST BE

SUBSTANTIVELY COMPATIBLE WITH BOTH THE UN CHARTER AND THE ROME

STATUTE OF THE ICC

The legal bases for the power of the AU to review the

jurisdiction of the Court can be located within the law of

treaties, including the Constitutive Act of the African Union

and the UN Charter. While the AU has legal capacity to review

or extend the jurisdiction of the African Court to cover

international crimes, any such review should fulfill at least

two clear criteria:

It must be compatible with the objects and purposes

of the United Nations (UN) Charter and, by

implication, the Rome Statute of the ICC; and

It must not compromise the objective of ensuring

accountability for grave crimes.

The Protocol establishing the African Court of Justice and

Human Rights omits any provisions on treaty review. In the

absence of any such provisions, the review or amendment of the

Protocol is governed by the general law of treaties which

recognizes that a treaty may be amended by agreement between

the parties thereto22. Substantively, the Constitutive Act of

the AU contains provisions requiring the organization to take

effective action against impunity for international crimes,

such as war crimes, crimes against humanity and genocide23.

These provisions may be read to empower the AU to review the

treaty provisions on the jurisdiction of the Court24.

Article 52(1) of the UN Charter authorizes the existence of

regional arrangements such as the AU “for dealing with such

matters relating to the maintenance of international peace and

security as are appropriate for regional action, provided such

arrangements or agencies and their activities are consistent

with the purposes and principles of the United Nations.”

Article 52 is an exception to the regime of universality that

underpins the UN Charter and remains subject to the

controlling objectives of the Charter.

The Preamble to the Rome Statute of the ICC acknowledges that

international “crimes threaten the peace, security and well-

being of the world” and enjoins that “effective prosecution

must be ensured by taking measures at the national level and

22 Article 39 of the Vienna Convention on the Law of Treaties (1969)23 Constitutive Act of the AU, Articles 3(h), 4(h), & (0), 5(1d), and 9

(1d)24 African Union Report of the commitment of Eminent Persons of the African

Union on the case of Hissene Habre, para 23, pg 4 (2006)

by enhancing international cooperation.” International co-

operation in this context could mean co-operation between two

or more countries and clearly includes regional or continental

co-operation. A major objective of the UN is the mobilization

of “effective collective measures for the prevention and

removal of threats to peace,”25such as international crimes.

Within this framework, regional instruments, such as the AU

Refugee Convention, preclude from the ambit of refugee

protection persons who have committed international crimes or

who are guilty of acts contrary to the principles of the

United Nations 26. Similarly, Article 58(1) of the African

Charter on Human and Peoples’ Rights empowers the institutions

of Africa’s regional human rights system to take measures with

respect to “serious or massive violations of human rights,” an

expression which arguably contemplates international crimes.

However, the UN Charter subjects the AU’s proposed review of

the jurisdiction of the African Court to a substantive

criterion of compatibility with the objectives and purposes of

the Charter27 and, in particular, the objective of ensuring

“effective collective measures” against international crimes.

This implies, firstly, that the outcome of the review must

demonstrably fulfil the Charter criterion of effectiveness.

The standards of effectiveness are not anywhere defined but it

25 UN Charter, Article 1(1)26 AU Convention Governing the specific Aspects of the Refugee Problems in

Africa (1969), Article 1 (5)27 Case concerning Military and Para-Military Activities in and Against

Nicarayua, Jurisdiction and Admissibility, (1984) ICJ Reps, 392, para 107

is reasonable to suggest that any review outcome that

diminishes or detracts from existing standards of

accountability for international crimes cannot be regarded as

effective. Secondly, therefore, to the extent that the Rome

Statute of the ICC is established “in relationship with the

United Nations system, with jurisdiction over the most serious

crimes of concern to the international community as a whole”28

as such a collective measure, the validity of the proposed

review is also necessarily dependent on its being compatible

with the principles and standards of the Rome Statute. On

current evidence, the AU member States are unlikely to meet

these standards in the nearest future.

THE WITCH HUNTING MENTALITY

It has been discovered that there is undue political and

tribal influences in referral of cases to the ICC by the

African States29. The Article 13 (a) of the Rome statute makes

the provision for state’s referral. African states have now

taken it as a habit to deal with their political oppositions

through referral of cases against them to the ICC. The most

obvious of this type of political referral is that against

Laurent Gbagbo by his immediate successor, Alassane Ouatarra,

making Ivory Coast the latest Playground for the International

Criminal Court30. Ouatarra, realizing his immediate incumbent,

Gbagbo, himself was too much for his fragile and newly found

administration, turned his case over to the International28 Rome Statute of the ICC, preamble, para.., 929 The ICC : The challenges of the African Region by Abubakar Yhaya Ndakene,

THE JURIST, Vol. 17, 2012 publication of Law Students’ Society, Unilorin30 http://english.peopledaily.com.cn/9077717661105.html

Criminal Court to take Gbagbo away from the line and ensure

outright success for him at the upcoming December 11th (2011)

Parliamentary elections in Cote-d’lvoire. This led to the

issue of a secret arrest warrant, which was executed to

perfection and the consequent appearance of Gbagbo before the

ICC on the 5th December, 2011. Gbagbo will be the first head of

state to be tried by the ICC31. This is one area where the ICC

is failing in its role to secure world peace and to achieve

its objective under the Rome statute. This is because, rather

than investigate the basis of every case they merely select

those they are interested in. Little wonder why the indictment

and complaint lodged against George Bush and five others32 by

one Francis A. Boyle33 for the commission of ICC statutory

crimes within the respective territories of many ICC member

states, including several in Europe was never mentioned or

investigated. Boyle concluded that the ICC has jurisdiction to

prosecute the accused persons for their ICC statutory crimes

under Rome statute34.

It should be noted that the case was neither opened for

investigation nor prosecution before the ICC, obviously

because US is not a signatory to the ICC statute, or because

the UN Security council is silent on the complaint or because

ICC prosecutors are not interested in prosecuting the case.

31 http://allafrica.com/stories/201112010788.html32 Richard Cheney, Donald Rumsfeld, George Tenet, condolezza Ricee; and

Alberto33 Prof at the University of Illinois College of law, champaign, USA34 HTTP://www.globalresearch.ca/index.php?context=va&aid=17091

Also, another sensitive example in this regard is the

situation in Kenya, where the likes of William Samoei Ruto,

Henry Kiprono Kosgey, Uhuru Muigai Kenyatta Mohammed Hussein

Ali and others were prosecuted.

This situation relates to the political tussle between

President Mwai Kibaki and Raila Odinga. A government spokesman

accused Odinga’s supporters of engaging in ethnic cleansing

while Odinga claimed that the President’s supporters were

guilty, directly, of genocide35 . Violence was mainly

perpetrated along tribal lines: Mwai Kibaki is part of the

Kikuyu tribe, the largest tribe in Kenya, while Odinga is a

Luo 36. Violence continued until a peace deal was agreed upon

between kibaki and Odinga under the mediation of former United

Nations Secretary General Kofi Annan, whereby Kibaki would

remain as President and Odinga would take over the newly-

created office of the Prime Minister. The duo then established

under their coalition government a Commission of inquiry into

the post-election violence, chaired by Kenyan judge Philip

Waki. It was the report of this commission that indicted the 6

men suspects, three from kibaki and three from Odinga’s camp.

The numerical divisional exactness of the ‘Ocampo six” (the

six suspects) into three men from kibaki’s camp and three from

Odinga’s is a clear manifestation of politicized justice, a

camouflage of injustice.

Also, the unanimous Security Council vote over Libyan

situation shows that the ICC is politically compromised.35 Africa ‘Kenya diplomatic push for peace’. BBC News, 2nd January, 2008.

http://en.wikipedia.org/wiki/international_criminal_court36 Gentleman, J. ‘DisputedVote Plunges Kenya into Blodshed, The New York

Unfortunately, Africa has more member states with the ICC than

any other region. Africans support for the court from the

beginning was because leaders believed it would be immune from

political influence 37. Since the reverse is the case at

present, the African Union (AU) is seriously calling for the

withdrawal of African states from the ICC. It was as a result

of AU moves that recently the Gambian Fatima Bensouda was

nominated to succeed Argentine Luis Moreno Ocampo, to be

formally elected chief prosecutor of the International

Criminal Court, stating that this is because the hunt for war

criminals and genocidal masterminds becomes increasingly

political38.

EFFECT OF ARTICLE 12(3) AND 13(B) OF THE ROME STATUTE

The strongest source of the challenge encountered by the

African region in the light of International Criminal Court is

the provisions of Article 12(3) and Article 13(b) of the Rome

statute. For the avoidance of doubt, the said provisions are

reproduced below:

Article 12 (3) provides:

If the acceptance of a State which is not a Party to this

Statute is required under paragraph 2, that State may, by

declaration lodged with the Registrar, accept the

exercise of jurisdiction by the Court with respect to the

crime in question. The accepting state shall cooperate

37 Corey-Boulet R. Wrestling over ICC’S role in Africa, in ESQ Legal

Practice, vol 3, issue 5, pg 11, 11th June, 2011.38 New ICC prosecutor faces tough political challenges,

http://www.capitalfm.co.ke/news/2011/12/new-icc-prosecutor-faces-tough-

political-challenges.

with the Court without any delay or exception in

accordance with Part 9.

Article 13 (b) provides:

A situation in which one or more of such crimes appears

to have been committed is referred to the Prosecutor by

the Security Council acting under Chapter VII of the

Charter of the United Nations

To start with, the first phrase of the preamble of the

preamble of the Rome Statute implies that, the ICC Statute is

made by state parties to the ICC and therefore, they have

agreed to be bound by what is contained therein. This means

that the court will have no jurisdiction over other states not

being parties to the ICC statute since they have not agreed

with the other states who subscribed to the Statute. This

position is strengthened by the provision of Article 12 (3)

which makes it clear the ICC shall respect the autonomy of

every non-state party, thereby requiring such non-state party

to lodge a declaration with the Registrar showing it accepts

the exercise of jurisdiction by the Court with respect to the

crime in question. This in fact is a pre-condition to the

exercise of jurisdiction for the ICC. This is what the law

ought to be. But if the law is left in this form, the world

power would not be able to continue to exercise their dominion

over Africans, after all Africans have given up during the

colonial period. We submit that as a result of the Article 13

(b) was included, providing that the UN Security Council can

refer any case to the ICC prosecutor, whether or not the state

concerned is a signatory to the ICC statute using their

membership with the United Nations as justification for such

referral.

The late Muammar Ghadafi was cautious enough not to join Libya

as signatory to the ICC statute. He was responsible for the

government of Libya, and therefore submission of the Libyan

government to the jurisdiction of the ICC has to be from his

government. Since the provisions of Article 12 (1) and (2)

cannot bring him before the court, and Ghadafi’s government

will not subscribe to the provision of Article 12 (3), the

United Nations held tight unto the provision of Article 13 (b)

to bring Muammar Ghadafi before the ICC by referring his case

to the ICC prosecutor 39 and subsequently an arrest warrant was

issued against him. This is also the basis for the arrest and

prosecution of Saif al islam Ghaddafi and Abdullah El-Senussi,

all of Libya. Siaf al-Islam Gaddafi and Abdullah El-Senussi,

apprehended on November 19, 2011 in southern Libya, is subject

to an ICC arrest warrant for crimes against humanity in an

investigation purportedly authorized by United Nations

Security Council Resolution 1970. The resolution requires the

cooperation of Libyan authorities with any ICC investigation

into serious crimes committed in Libya, including the

surrender of ICC suspects.

In Sudan, the referral of the Darfur situation to the ICC by

the UN Security Council in 2005 and the prosecution

investigations that followed seemed wrong in Law. Also, in

March 2009 the Sudanese leader, Omar al-Bashir, became the

first sitting head of State to be indicted by the court. The39 http://www.hrw.org/nes/2011/11/17/libya-surrender-saif-al-islam-gadaffi-

icc

situation in Libya and Sudan amounts to an imposition of the

ICC on a state which is not a member of the ICC, and in fact,

not being a member state to the ICC, they ought not to have

been bound by the provision of the ICC statute, including

Article 13 (b) of the Statute. The power of the UN Security

Council under the Article ought to have been restricted to the

member states that have subscribed to the ICC Statute only.

Therefore the invasion of Sudan and Libya by the UN through

the instrumentality of the ICC is unlawful.

Another issue of pressing concern is the purported

independence of the International Criminal Court. Article 2

establishes a relationship between the UN and the ICC, where

it provides that:

The Court shall be brought into relationship within the

United Nations through an agreement to be approved by the

Assembly of States Parties to this statute and thereafter

concluded by the President of the Court on its behalf.

This provision makes it clear that Rome Statute is intended

for ICC member states only. This provision, in addition to the

provision of Article 13 (b) makes dependence of the ICC

obvious. In fact, the ICC judges referred Sudan’s lack of

cooperation in failing to arrest the Omar Al-Bashir and other

indictees – including Ahmad Harun, a former national

government minister of the interior – to the Security Council

of the United Nations40.

The ICC depends on the United Nations Security Council for

referral of cases and decision making. This has been an issue

of concern. It is rather unfortunate that, instead of tackling40 http://www.un.org/apps/newstory.asp?NewsID=359293

the issue of independence and impartiality in the ICC bench,

the President of the Assembly of States parties to the Rome

Statute of the International Criminal Court, Ambassador

Christian Wenaweser rather calls for independence and

impartiality of the Libyan authorities they unlawfully

invaded. He said that it must be ensured trhat Saif Al-Islam

is tried in a court of law and in accordance with

international standards and should the Libyan authorities wish

to try him in Libya, they can make the case before the Court

that their national judicial system is willing and able to do

so in an independent and impartial manner41.

This therefore translates to mean that ICC is a tool used to

actualize the selfish interest of the permanent members of the

Security Council of the United Nations. Has anyone wondered

why USA, China, Russia and some other world power states have

refused to joined the ICC? 42 Has anyone wondered why the

Israel-Gaza conflict was not referred to the ICC by Security

Council of the UN?

Kenya’s Mwai Kibaki and Raila Odinga blindly referred three

each of their men to the ICC for prosecution. Later when they

realized what effect that action was likely to have on the

Kenyan State, they decided to withdraw the case and requested

for a deferral to Kenyan Courts for prosecution.

41 HTTP://www.icc-cpi.int/Menus/ASP/Press+Releases+2011/ICC-ASP-20111119-

PR744.htm.42 United States of America signed as a member state vof the ICCon 31st Dec,

2000 but their membership was promptly withdrawn by President Bush in 6th

May, 2002

However the deferral request was thrown out and the UN

Security Council insisted on prosecuting the case. In doing

so, the president of the UN Security Council, Nestor Osorio of

Colombia came out from their meeting on the subject matter

held behind closed doors to say that ‘members did not agree on

the matter” and that it would be shelved for the time being.

This is a clear disregard to the position of the state as a

member state to the UN, despite the moves by Kenyans to repeal

the International Crimes Act that ratifies the ICC statute43.

CONCLUSION

From the above explanation it can be deduced that the reality

of the jurisdiction of the ICC in Africa polity cannot be over

emphasized. It is real that Africans have submitted to the

Jurisdiction of the court. There are various challenges

encountered by the African Region in the administration of ICC

justice. All the trials before ICC so far involve Africans

only. Does this mean that only Africans commit the offences

mentioned under Part 2, Articles 6, 7, 8, and 9 of the Rome

Statute? This calls for immediate attention.

It should be noted that the establishment of the ICC and the

submission of cases therein by African states is a form of

Neo-colonialism. It’s threatening the sovereignty of the

African states and creating a lot of distractions for the

government of the day.

43 Okoitii Okiya Omtata, our continued membership of the ICC is against the

new constitution’. Daily Nation 24th December, 2010.

Though if the impartiality of the ICC can be guaranteed, the

story would change completely.