African countries’ oft-stated stated wish to resist prosecution in “foreign courts” will not be all smooth sailing as the majority of countries (34) have ratified the Rome Statute, giving jurisdiction to the International Criminal Court (ICC).
It will be difficult for the countries to take a common position to deter enforcement of the principle of international judicial jurisdiction, thanks to existing supplementary bilateral agreements. Prominent among these are bilateral non-surrender agreements with the US.
“I think the point is objectivity, impartiality and sovereign equality. If traces of politics in the court appear to everybody else except the court, legitimacy falters,” argued Johnston Busingye, Rwandan Minister of Justice and Attorney-General.
Mr Busingye said that the controversy surrounding universal jurisdiction is not whether the concept validly exists but rather the manner of its application.
“The fact that states are entitled to give their own courts universal jurisdiction over certain crimes as a result of a national decision and not of a rule or principle of international law, renders its application subjective in many ways,” he said, adding that the contested application of the principle has created the perception that it is used by the powerful to paralyse or punish the weak.
“Obviously, this has threatened state sovereignty, international security and stability,” he said.
Specifically, Article 98 of the Rome Statute states that the ICC “may not proceed with a request for surrender which would require the requested state to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending state is required to surrender a person of that state to the Court, unless the Court can first obtain the cooperation of the sending state for the giving of consent for the surrender.”
Yet some global powers, in particular the United States, which is not a signatory to the ICC, has exploited this clause in signing agreements with individual states, thereby putting US personnel present in their territories out of the reach of the ICC.
For instance, the Coalition for the International Criminal Court, a pool of civil society in 150 countries advocating a fair, effective and independent ICC, lists more than 100 agreements in its factsheet on the “Status of US Bilateral Immunity Agreements,” including those entered into by 38 African countries, both parties and non-parties to the Rome Statute.
Analysts say the intent of the agreements championed by the George Bush administration was to ensure Americans would not be handed over to the ICC without the permission of the US.
A common article to all US bilateral non-surrender agreements lists protected persons to include current or former government officials, employees including contractors, military personnel or nationals.
Legal experts doubt the validity of immunity agreements signed after the Rome Statute to “defeat its raison d’etre,” but also question African countries stand of condemning agreements they are party to instead of acting.
The only option available to African countries is to pull out of these agreements.
“There is always an exit clause for any parties in these agreements,” said Innocent Musonera, a law university lecturer based in Kigali.
However, analysts say, it is unlikely that African countries will withdraw from these agreements due to the political and diplomatic pressure that is likely to follow.
The 2002 American Service Members’ Protection Act (ASPA) prohibits the US from providing military assistance to a government that is a party to the ICC, unless that government is a Nato or a major non-Nato ally, or unless it agrees to shelter US personnel against the ICC.
Though some doubt the sincerity of African concerns on immunity agreements, a plea by African intelligence chief meeting in Rwanda recently will strengthen the continent's anti-ICC rhetoric and portray it further as a court against Africa.
“The laws that were formulated to serve the international good, are being used as tools to enhance national interests and foreign policies of some countries,” the intelligence chiefs underscored in their communiqué.
Following the failure of a motion of collective withdrawal from the court, African intelligence chiefs have asked that arrest warrants and all pending legal proceedings against elected leaders from Africa be suspended. They have asked for talks to define the future relationship between the continent and the court and importantly resolve what they term as “the current stalemate.”
Among such cases before the ICC are those against Sudanese President Omar Al Bashir and his former Minister of National Defence Raheem Muhammad Hussein.
Cases against Kenya’s President Uhuru Kenyatta and Deputy President William Ruto are considered closed following withdrawal and vacation of charges respectively. However, both cases can be revived if the prosecutor submits new evidence.