Africa’s Foreign Ministers gathered at the African Union (AU) headquarters in Addis Ababa on Friday, ahead of a meeting of heads of state, to consider a continent-wide withdrawal from the International Criminal Court (ICC) in the context of the ongoing trial against Kenyan President Uhuru Kenyatta and his Deputy William Ruto.
“The court has transformed itself into a political instrument targeting Africa and Africans,” said Tedros Ghebreyesus, Ethiopia’s Foreign Minister and chairperson of the executive council of the AU, in his inaugural address, “This unfair and unjust treatment is totally unacceptable.”
Despite the fighting talk, attendees said outright withdrawal from the ICC was unlikely, but delegates would seek immunity from prosecution for sitting heads of state like Mr. Kenyatta; demand a one-year deferment of Mr. Kenyatta’s case to allow him and his deputy to deal with the aftermath of the terrorist attack in Nairobi earlier this month; and recuse heads of state from attending court hearings in person.
On Thursday, Mr. Kenyatta’s lawyers had called for his case at the ICC to be dismissed on the basis of allegations of intimidation of defence witnesses. Mr. Kenyatta and Mr. Ruto are accused of orchestrating widespread post-election violence in 2007 in which over 1,200 people were killed and 600,000 displaced. Last month, the Kenyan Parliament voted to stop cooperation with the ICC.
Article 16 of Rome Statute allows the U.N. Security Council to defer the trial; Article 27 expressly rules out immunity for Heads of State, elected representatives and government officials; and Article 63 requires the trial be conducted in the presence of the accused.
Thirty-four countries from Africa and 122 nations in total, are ratified signatories to the Rome Statue, the framework that underpins the ICC. India, China, Israel and the United States have not signed on. Despite its global mandate, the court has opened only eight investigations thus far, all targeted at African nations: Uganda, the Central African Republic, Sudan, Kenya, Libya, Cote d’Ivoire, Mali and the Democratic Republic of Congo.
The AU has repeatedly called on the Security Council to defer Sudan President Mohammed al-Bashir’s prosecution for crimes against humanity in Sudan’s protracted conflict. The Security Council’s refusal to consider the request has hardened the AU’s stance on the ICC.
“The general feeling is that African member states would prefer ICC that would be responsive to our requests that would take on board legitimate concerns,” said Ramtane Lamamra, the outgoing Commissioner for Peace and Security of the African Union, “There is no reason why a head of state should not be interviewed in his office.”
Mr. Tedros proposed the establishment of a high-level observer group to examine the now-abandoned AU-led roadmap to promote national reconciliation in Kenya. He denounced the ICC’s apparently “simplistic suspect-victim” approach and said cases like Mr. Kenyatta’s required a comprehensive political and legal package incorporating elements of “truth telling, repentance, justice, healing and forgiveness”.