Swans Commentary » swans.com September 21, 2009  



Africa And The International Criminal Court Of [In]justice


by Femi Akomolafe





"Until the philosophy that holds one race superior and another inferior is finally and permanently discredited and abandoned, there will always be war."
—Emperor Haile Sellassie
"The ICC is not a court set up to bring to book prime ministers of the United Kingdom or presidents of the United States."
—Robin Cook, former British Minister.


(Swans - September 21, 2009)   Angered by the callous disrespect shown it by the UN Security Council (UNSC), the African Union (AU) at its last summit in Sitre, Libya, (July 1-3, 2009) decided to withdraw cooperation with the International Criminal Court (ICC).

What seems to have made the AU angry was the decision by the ICC to indict Sudanese president Omar al-Bashir and issue an arrest warrant against him. The AU had asked the UNSC to suspend the indictment against al-Bashir for a year because it [AU] was involved in very delicate negotiations over the Darfur case, which the AU believed could be derailed by any indictment.

The AU had established a High Level Panel on Darfur chaired by former South African president Thabo Mbeki. The panel is tasked to look comprehensively into the Darfur crisis and make a holistic recommendation on how it could be resolved, taking into recognition the AU position that there is a complementary relationship between peace and justice, and that neither should be pursued at the expense of the other.

The UNSC decided to ignore the pleas of the African leaders. And as though to rub salt to the collective wounds of the African leaders, the ICC decided to issue its warrant a few days before they (African leaders) gathered for their annual summit; hence their fury.

It must have meant a great deal for these leaders to take that significant decision. It looks like this time the ire of Africans has been provoked beyond the threshold of tolerance. Except for NGOs and their local supporters (who know where their bread is buttered), Africans across the length and breadth of the continent are hopping mad. They are angry, very angry. They are indignant.

Having been taken for granted for so long by the West, they are protesting the latest insult from the hypocritical countries. They are angry at the West's latest assault on their collective psyches. They are fuming over the sickening double-standards of the West in dealing with black people. Their anger is well justified when we look closely at the issue at stake.

On March 4, 2009, the ICC issued an arrest warrant against the president of Sudan, Omar al-Bashir. The ICC was created on July 1, 2002, by virtue of the Treaty of Rome to try four categories of crimes: war crimes, crimes of genocide, crimes of aggression, and crimes against humanity. One hundred eight of the world's 192 countries are members of the court. The U.S., Russia, India, and China are among the countries that have refused to join. Sudan is also not a member!

As usual, the USA is busy playing the hypocrite. The most-influential country in the world, which refused to recognize the ICC, has suddenly become its most vociferous heavyweight champion. The U.S. is widely believed to have arm-twisted several African countries into signing the Treaty of Rome.

Under heavy pressure from the U.S. and its sidekick, Britain, the Security Council of the UN (minus China) voted to refer charges of indictment against president al-Bashir to the ICC, unlike in previous cases whereby countries have done the referring. This was necessary because Sudan, like the U.S., has not ratified the Rome Statute that founded the ICC. However, Sudan is, like most countries, bound by decisions of the UNSC.

The ICC charges against al-Bashir list five counts of "individual criminal responsibility" for crimes against humanity -- murder, extermination, forcibly transfer, torture, and rape. There are also two additional counts for war crimes. One of the twists in the Sudan drama and the engulfing crises was that in January 2005, Judge Antoni Cassese, the first president of International Criminal Tribunal, headed the United Nations International Commission of Inquiry on Darfur. The commission dismissed genocide charges against the Sudanese president, Omar al-Bashir. Four years later, the UN (albeit its Security Council) yielded to heavy pressure to issue an indictment against a man who had been cleared by a commission of the same UN!

The London-based New African magazine is currently airing views on the ICC-Sudan saga and it is evident that many Africans are clearly angry by the decision to indict. And this should also be understandable when we look closely at the [apparent] racial bias of the ICC.

As Courtenay Griffiths, the lead counsel for former Liberian leader Charles Taylor, pointed out on a Ghana's Joy FM interview: "[...] By October 2007, the ICC prosecutor, Luis Moreno-Ocampo had received 2,889 communications about alleged war crimes and crimes against humanity in at least 139 countries, and yet by March 2009, the prosecutor had opened investigations into just four cases: Uganda, DRCongo, the Central African Republic, and Sudan Darfur. All of them in Africa! Thirteen public warrants of arrest have been issued, all against Africans."

From here, Griffiths, a Jamaican-born British Queen's Counsel (QC) went thermo-nuclear: "The spectacle of an African president being led in chains to Europe makes my blood boil with rage!" He thundered. "It is slavery time, all again." He went on to lament the seeming apathy of the African Union and Africans generally to this humiliation. He queried why the AU has not deemed it fit to sort itself out so that Africa can start to solve its own problems. "Why did this trial not take place in Africa? Why has the African Union not established its own court to deal with issues that affect Africans in Africa? If a corporal in the American Army cannot be tried in the International Criminal Court for war crimes and crimes against humanity, how come an African president can?"

Among the things that leave Africans fuming about the ICC is the inherent racism involved. To them the international law (as advocated by the West) is just another Western ploy to maintain its hegemony over their lives. Both Tony Blair and George Bush, Jr. committed more heinous crimes than either Taylor or al-Bashir; their non-prosecution by the "international community" smacks of rank racism. To many Africans the so-called international justice is being exercised on racial basis. Both Bush and Blair are clearly indictable under several articles of the Rome Statute. By any definition both men are war criminals (even if unindicted). Their crimes include but are not limited to murder, torture, and forcible transfer of prisoners (rendition). But since both the U.S. and the U.K. enjoy veto power at the UNSC, no one realistically expect either Bush or Blair to be referred anytime soon to the ICC for criminal prosecution. This is what's getting the Africans goat and no amount of rationalization can wish these feelings away.

Another reason has to do with Africans' definition of justice. In the West justice is equated with punishment; this is not so in Africa. The traditional African system always emphasizes harmony over retribution. Africans generally do not confuse justice with vengeance as Westerners do. That explains why former colonialists who had behaved like predatory beasts were allowed to go away scot-free. That was also the only reason why the Bothas and the Ian Smiths of Africa were allowed to keep their heads. We also witness how Rwanda was able to heal the traumas of the recent genocide by employing purely traditional system of justice.

Africans also believe that there can be no peace wherever justice is lacking. We can glean some of the Africans attitude towards the notion of justice by some of the proverbs they use. My Yoruba people say:

i.  Omo ale ni iri inu ti ki nbi; omo ale la si nbe ti ko ki ngba. It is only a bastard who does not get angry when provoked; it is equally a bastard who refuses to be appeased.

ii.  Ti a ko ba gbagbe oro ana, a ko ni ri eni ba sere. If we do not forget yesterday's quarrel, we will have no one to play with.

We can contrast this with the Western notion of heavily punishing the slightest transgression even as they preach forgiveness when the criminals happen to be white -- like the colonialists in Africa. The duplicitous nature of the West is best revealed in their sending missionaries all over the world to teach the rest of us a so-called Lord's Prayer which says, inter alia: "Forgive us our trespasses, as we forgive those that trespass against us."

Where in the wide, wide world have Westerners forgiven those that trespassed against them? Where it has been impossible to hunt down and kill foes -- real or imaginary -- the West has slapped punitive sanctions on those that transgressed against them? Cuba, pre-invasion Iraq, Iran, Zimbabawe, and North Korea are some of the countries that are under one form of sanction or the other for offending the all-powerful West.

We all witnessed George Bush proclamation of wanting his enemies dead or alive. And the recent hullabaloo over the Scottish government's decision to release the jailed Libyan, Abdel Basset Ali al-Megrahi, on compassionate grounds is another case in point. What manner of people are Americans when they cannot find it within their hearts to forgive a terminally ill felon? Even Barack (the change we can no longer believe in) Obama waded in to condemn the release. That was after US senators and officials, with FBI director Robert Mueller leading them, had nastily berated the Scottish Minister of Justice.

The essential differences between the Western notion of justice (actually revenge) that seek "an eye-for-an-eye" and the African belief in reconciliation is best summed up in a brilliant article written by Nigeria's former Minister of Foreign Affairs, Professor Bolaji Akinyemi from which I quote:

The issue at stake [in Charles Taylor's arrest in Nigeria] should not be perceived as a conflict between the US and Nigeria. It is much more serious than that. That competing versions of the strategic doctrine of the regional enforcer as played out in the Liberian case are in fact an illustration of clash of civilizations. African civilization does not emphasise revenge. It emphasizes conciliation and forgiveness. This has been amply demonstrated in post-colonial attitudes towards former colonizers and in the most dramatic case, in the attitude of Nelson Mandela towards his persecutors.

Western civilization, on the other hand, with its roots in the "eye-for-an-eye syndrome" emphasizes vengeance in the name of justice. While few African societies have blood feud going back centuries, European culture is noted for such blood feuds. Getting this distinction right is important as Africa and the rest of the world square of over Darfur and whatever African conflict may be in the pipeline.

Africans were baffled [by Taylor's arrest], and quite a lot of people (puzzled at the timing of the arrest warrant) wondered at the motive of the chief prosecutor of the Special Court for Sierra Leone, who also happened to be an American... At this juncture, one must wonder at how American domestic opinion and an administration that are basically hostile to their citizens being tried by an international tribunal, and who have gone to a considerable extent, both legal and illegal, to undermine the credibility of the international judicial system, would now be the arrowhead of the firestorm driving Taylor. It simply shows the capacity for hypocrisy.

There are also geostrategic considerations that are not mentioned in the Western media which, as usual, offer simplistic explanations for very complex issues. Sudan, with some 2.5 million square kilometers is Africa's largest country, and at 17 people per sq km, is one of the lowest population density countries in the world.

And (don't mention this to Western journalists) Sudan is rich, very rich in oil, among other minerals. The trouble is that Sudan has fallen out with the West (or is it the West that has fallen out with Sudan?) This leaves Asian companies -- Malaysia's Petronas and China's China National Petroleum Corporation (CNPC) holding the bulk of Sudan's oil concessions. And the twist is getting knottier; the bulk of Sudan's oil is located in the southern part of the country -- just like in Nigeria. Darfur (much beloved by Western busy-bodies) is in southern region of Sudan. But contrary to the simplistic interpretations offered by Western commentators, Darfur is multi-ethnic as is the rest of Sudan (and one might say much of Africa).

Like in most of the colonial inventions called countries in Africa, the colonialists deliberately left no strong institutions to equitably allocate the vast resources at the disposal of these nascent nations. As soon as the colonialists with their heavy artillery and rapacious police apparatuses pulled out, the pot-pourri of ethnic and national groups, thrown together by the colonialists to satisfy imperialist ambitions, are soon at loggerhead on how to share the resources. It was never in the interest of the colonialists to build viable nation-states to begin with. So, people occupy the same geographic space called countries, but they share absolutely nothing further in common. The divide-and-rule tactics adopted by the colonialists also ensure that the various ethnic groups have enough acrimony and historic animosity to be at each other's throats long after the colonialists have left the scene. It was so the Congo (which has been fighting since the 1960s to date); it was so in Kenya (which conflagrated into tribal hell in 2008); it happened in Nigeria (which experienced a most horrible 30-month long civil war from 1967-70). It is exactly what is happening in the Sudan.

Western media pretend not to know all this and they do their best to confuse an already confusing issue. They tell us that the struggle in Sudan is between an Arab and Africans or between Muslims and Africans practicing their traditional religious beliefs, which were further reduced into animism. Kindly look up the picture of Sudan's president al-Bashir and tell me whether you see an Arab or a pure Bantu African.

The struggle in the Sudan is multi-dimensional and it has at its heart the clash over resource allocation. It isn't (never was) a straightforward fight between Northern Arabs and Southern Africans. Even among themselves, Southern Sudanese have enough factions to give headache to a demographer. Yet, Western ANALysts continually tell stupid lies that it was a straightforward fight between Arab Janjaweed (horse-borne fighters) and Africans. By definition, every human being that is a native of the geographical space call Africa ought to be an African. Yet, when it comes to Africa, Euro-American commentators continue to draw arbitrary dividing lines in order to continue to divide an already over-divided continent! We do not see them do this in Europe where the blondest, blue-eyed Swede is simply called a European as is the darkest, curly-haired Portuguese. We never heard of a Sub-Arctic or a Sub-Mediterranean Europe!

The cry about Darfur has little to do with humanitarian concerns and much to do with the naked pursuit of strategic interests. As usual the West is masking its true intentions with humanitarian halo. The calculations are either to split oil-rich South Sudan (including Darfur) from Sudan or to promote a regime change, which will see a West-friendly government installed in Khartoum.

Through the efforts of the UN and the AU, the government of Sudan and the Southern Sudan military group, the Sudan People's Liberation Army (SPLA) signed a Comprehensive Peace Agreement in 2005 under which a referendum will take place in 2011 about secession, for which some Southern Sudanese clamour. The SPLA is sponsored and heavily supported by the West. Under this agreement, the SPLA provides the vice president of Sudan. The current vice president of Sudan and president of South Sudan is Salva Kiir, a US-trained officer.

Were South Sudan to secede, the Asian countries viz: China, Malaysia, and India would be the losers. The West will be the biggest winner. According to reports, the SPLA has already signed unilateral oil contracts with some Western oil companies. And were the ICC to successfully prosecute al-Bashir, pro-West Vice President Salva Kiir, who has never hidden his presidential ambitions, will emerge as Sudan's president. So, heads or tails, the West wins.

Can you spell REGIME CHANGE?


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About the Author

Femi Akomolafe is a computer consultant, a writer and social commentator, an avid reader, and a passionate Pan-Africanist who lives in Kasoa, Ghana. Femi is known to hold strong opinions and to express them in the strongest terms possible. As he likes to remind his readers: "As my Yoruba people say: Oju orun teye fo, lai fara gbara. It means that the sky is big enough for all the birds to fly without touching wings." Femi Akomolafe's views, opinions, and thoughts can be accessed on the blog he maintains: http://ekitiparapo.blogspot.com/.



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Published September 21, 2009