ICC, Al-Bashir and the Melanin Theory!, By Victoria Ohaeri
The “web of international law catches only weak, poorer countries, while overlooking the wrongdoings of richer, more powerful countries.”
Warrant after warrant issued for the arrest of Sudan’s President Omar Al Bashir demonstrates the International Criminal Court’s (ICC’s) determination to have him tried for an alleged number of crimes against humanity that contravene the Rome Statute. The latest foiled attempt to arrest Al Bashir in South Africa, where he was attending the African Union Summit of Heads of Government, adds to the list of failed efforts to supposedly bring Al Bashir to justice. ICC’s fixation on Al Bashir continues to generate robust commentary in the local and international media, including in discursive analysis of international law, human rights and the performance of supranational institutions of criminal accountability.
A dominant theme that runs through various analyses of ICC’s persistence to bring Al Bashir to justice is the outcry against the Court’s disproportionate targeting of African leaders. Particularly fueling this perception is the fact that the same ICC has no historical record of showing any passing interest, let alone conducting a serious inquiry into more grievous crimes against humanity involving other world leaders, especially those from advanced nations. For instance, the human rights atrocities that took place in Sudan are mere child’s play compared to the crimes against humanity that occurred during the Iraqi war – a needless war propelled by ingenious fabrication of stories about weapons of mass destruction. It was a conscienceless war constructed purely on false propaganda oiled by the machinery of the global media. Till this day, the world leaders who instigated that unparalleled humanitarian crisis which shocked global conscience roam about freely, without any single charge or warrant issued for their arrest. Instead, only leaders of African nations, and developing countries have been successfully nailed by the Court’s dragnet, reinforcing the perception that the “web of international law catches only weak, poorer countries, while overlooking the wrongdoings of richer, more powerful countries.”
Just the same way African leaders unashamedly crawl to the ICC begging for intervention, officials of elite African institutions, including non-governmental organisations (NGOs) have also been known to initiate calls and campaigns for ICC intervention in the internal affairs of their countries. The same personalities and organisations initiating these calls clearly have the resources to increase the capacity of their national legal systems, and make them more effective. But they chose to do otherwise.
One begging question to ask is: Why this excessive fixation on African leaders in particular? Chief Prosecutor of the International Criminal Tribunal Yugoslavia (ICTY), Serge Brammertz’ public lecture at a symposium on International Criminal Courts and Tribunals held at Harvard Law School in March 2015, coincided with the week I penned the article, “ICC, Africa and the Challenge of Bias.” That article frowned at the ICC Prosecutor, Ms. Fatou Bensouda’s hasty pre-Nigerian election commentary which seemed to validate accusations of “biases in the selection of countries and cases followed up by the court.” At the symposium, I seized the opportunity to express concern about ICC’s excessive focus on Africa, emphasising the need for the ICC to support the strengthening of domestic legal systems in “fragile states.”
Serge Brammertz’ response to my queries was quite revealing. He stated that the ICC has no special focus on Africa. In fact, most of the time, African leaders and heads of government have specifically sought their intervention! Whether it was the 1994 prosecution of genocidal activities in Rwanda or the 2003 inquiry into the Joseph Kony’s Lord Resistance Army-led insurgency in northern Uganda and neighbouring regions, or the 2004 investigation of the atrocities in the crisis that engulfed the Democratic Republic of Congo, African leaders themselves referred cases (often regarding the internal affairs of their countries) to them, but turn around later to antagonise the Court when they are indicted.
The indictment-turns-blame-game is not the part that is unsettling; rather, what is most appalling is African leaders’ unashamed expression of loss of confidence in the legal systems and judicial institutions they were elected to build and strengthen. The African leaders who rush to the ICC at the slightest crack in the wall are the same persons who swore to defend their country’s political and territorial integrity, and work towards installing effective investigative and accountability mechanisms capable of redressing injustices, whether perpetrated by state or non-state actors. Nothing is more disenchanting than the finding that no African leader has delivered on this promise.
An African Criminal Court offers enormous prospects for building an Africanised redressal mechanism that recognises and enforces the continent’s core traditional values and dispute resolution procedures which majority of its inhabitants are already familiar with.
Beyond the failings of African leaders, another appalling development is the collective dissonance and inertia among Africans themselves, especially the intelligentsia. It beggars belief that a continent that has produced the likes of Chinua Achebe, Kofi Annan, Wole Soyinka, Mo Ibrahim, Kwame Nkrumah, Nelson Mandela, Chimamanda Adichie and so forth cannot galvanise efforts to build a strong and effective institution that can investigate injustices of high magnitude and deliver justice to aggrieved people. Just the same way African leaders unashamedly crawl to the ICC begging for intervention, officials of elite African institutions, including non-governmental organisations (NGOs) have also been known to initiate calls and campaigns for ICC intervention in the internal affairs of their countries. The same personalities and organisations initiating these calls clearly have the resources to increase the capacity of their national legal systems, and make them more effective. But they chose to do otherwise.
The growing public consciousness that “everything-foreign-is-better” probably fuels the collective nonchalance towards establishing sustainable home-grown justice initiatives. Some others have attributed this trend to the melanin theory, meaning a melanin-induced incapability of people of certain colour to fix their justice sectors, their economy, their national securities or undertake any activity that would require vigorous thinking, intelligent planning and thorough execution. So, they’d prefer to have such “hardwork” outsourced to foreign ready-made bodies like the ICC. That is probably why many are amused by Robert Mugabe’s call for the establishment of an African Criminal Court (ACC). In fact, what Zimbabwe’s Mugabe is calling for is not out of place. An African Criminal Court offers enormous prospects for building an Africanised redressal mechanism that recognises and enforces the continent’s core traditional values and dispute resolution procedures which majority of its inhabitants are already familiar with.
To be clear, I am not opposed to efforts aimed at bringing Al Bashir to justice. But the integrity of the instrument for delivering justice must remain unimpeachable, so that justice may be manifestly and undoubtedly seen to be done.
It is easy to understand why many are pessimistic about the ACC idea. One possible reason is that a similar body, the African Commission on Human and Peoples Rights and the more recent the African Court have hardly lived up to their bidding as dependable mechanisms for delivering justice in Africa. But what is missing in the analysis is that building strong regional institutions requires sustained effort, interstate cooperation and dedicated human and financial resources. The European human rights mechanisms are the most effective in the world today. It took conscious cooperation among EU nations, dedicated planning and intelligent infusion of human resources to bring out the best in those EU institutions. If not for jurisdictional limitations, Africans and African organisations would be trooping to the EU Courts and institutions today to seek justice, while the judicial systems at their backyard continue to rot. Again, is this the melanin theory at work?
Another reason for the pessimistic perception of an ACC could be linked to the leadership of gerontocrats in Africa. From South Africa’s Jacob Zuma to Nigeria’s Muhammadu Buhari to Uganda’s Museveni to Zimbabwe’s Robert Mugabe, Africa is held down by yesterday’s men whose ideas and methods of governance no longer fit modern realities. Their aspirations for their countries, though probably well-intentioned, are not just grounded on contemporary models of exercising political authority and dominance in global affairs. Many are still stuck in a colonial mentality, which is why publishing photos of their participation in international meetings with other peer world leaders is disappointedly being viewed as an “achievement” in the 21st century! Melanin at work?
…ICC is only as powerful as its signatories allow it to be. It is African leaders and Africans generally that have given ICC the teeth with which it uses to bite them hard.
To be clear, I am not opposed to efforts aimed at bringing Al Bashir to justice. But the integrity of the instrument for delivering justice must remain unimpeachable, so that justice may be manifestly and undoubtedly seen to be done. As I warned previously, the duty now rests on ICC to regain the rapidly eroding public confidence in its operations by overturning the consistently demonstrated bias towards African countries.
Finally, it is important to underscore that ICC is only as powerful as its signatories allow it to be. It is African leaders and Africans generally that have given ICC the teeth with which it uses to bite them hard. Apart from using megaphones to render chants of marginalisation, there is no single African country that has unsigned from the Rome Statute, just like the US and Israel have done. In September 2012, Venezuela withdrew its signature from the InterAmerican Convention on Human Rights. Must African leaders sign on to every treaty that does not align with their interests and values? Is Sudan under any compulsion to remain bound by the Rome Statute? The answers are obvious. So, the claims of marginalisation, if true, have come to stay until Africa leaders and Africans mutually resolve to do the needful.
Victoria Ohaeri is the executive director of Spaces for Change (www.spacesforchange.org), a youth-development and policy advocacy organisation based in Lagos, Nigeria. She can be reached on firstname.lastname@example.org