Stakes will be very high in the upcoming African Union (AU) extra-ordinary session which will take place in Addis Ababa from October 11 to 12.
While the AU warmly welcomed the election of Gambian born Fatou Bensouda as Prosecutor of the International Criminal Court (ICC) in December 2011, it has not changed its negative stance against the ICC. It is perhaps naïve to think that it would.
Be that as it may, 130 groups from 34 countries have not lost hope on changing the status quo about the AU stance towards the ICC.
These groups have come out to urge the member states to support the ICC as a crucial court of last resort, including for its current cases on crimes committed during Kenya’s post-election violence in 2007-2008.
In a letter addressed to the African leaders, the groups are aiming to block any attempts to withdraw from the ICC’s treaty (Rome Statute) by the member states. The groups said that Kenya has put governments in an awkward position by pressing for action to avoid the ICC’s cases while having failed to avail itself of the court’s procedures to authorise such a move based on credible domestic investigation and prosecution.
Transformation Resource Centre, Lesotho (TRC) is among these groups given its advocacy role in the promotion of human rights and democratic governance in Lesotho and at the African region.
Meanwhile in the Sadc region, Lesotho and Botswana have been major proponents of the ICC while most of other southern African countries have maintained a “silent diplomacy” on this issue.
Lesotho’s position was reiterated by Prime Minister Thomas Thabane in his statement to the UN General Assembly on September 26 2013 that: “We must use institutions such as the ICC and other international legal tribunals as a reflection of the international community’s increasing rejection of impunity . . .”.
Countries like Mauritius have even gone a step further by coming up with a specific piece of legislation in a move to domesticate the Rome statute.
Lesotho and these other countries which have vocally shown their support for the ICC are faced with a major role of being at the helm of the support for the court at the summit.
There is nothing new in urging a support for the ICC by African countries as these states have played a major role in the Rome Statute negotiation.
The result of this spear-heading by the African states was a comprehensive treaty establishing the first permanent, international court to investigate and prosecute the most serious crimes of international concern.
On the face of it, almost all the current situations/suspects before the ICC involve African nations — Uganda, Democratic Republic of Congo, Central African Republic, Côte d’Ivoire, Mali, Libya, Darfur, and Sudan.
This observation has subjected the court to accusations that it is biased against Africa.
At the same time it is widely acknowledged that victimisation of Africans has been widespread, and that these cases represent precisely the kinds of situations the court was established to address: the most serious crimes of concern to the international community.
Yet there is a lot of misconception and little understanding about the mandate and activities of the ICC in Africa.
The ICC is not targeting African countries; its focus on Africa is first a matter of jurisdiction: The scope of ICC jurisdiction is linked to accession by states parties.
Not only that, but most of these cases are as a result of referrals from the African leaders and governments.
At least five African states had requested the ICC to investigate crimes committed in their countries, namely Democratic Republic of Congo, Mali, Central African Republic, Uganda and Ivory Coast.
Any move to withdraw from the ICC would promote impunity and non-accountability for crimes committed against the victims in Africa.
In initiating the investigations which are currently ongoing, the Court is responding to the victims’ calls for justice.
The stories of those in Africa who have suffered as a result of crimes committed against them have been transformed into evidence to unveil the truth.
The function of the Court is to enforce accountability and, by involving victims meaningfully during the course of its work and taking their views into account, the Court seeks to position itself so that its work and methodology remain relevant to their interests and, to the largest extent possible, address their legitimate concerns.
The ICC is an imperative for all African nations, as it remains the only permanent institution that can prosecute genocide, war crimes and crimes against humanity when national courts are unable or unwilling to do so.
As such the ICC has a complementary role; it will only investigate or prosecute cases of the most serious crimes by individuals, and then, only when national judicial systems will not or cannot handle them.
Therefore, by reaffirming its support to the Court as it did during the UN General Assembly, Lesotho will be marching forward with the 130 groups and thereby acting as a role model to other African states who have been quiet on this issue.
This will in the long run ensure that Lesotho does not support impunity, be it at the national or regional level.
l Thuso Ramabolu is a Human Rights Officer at Transformation Resource Centre and also Commissioner for Democracy and Human Rights at the Lesotho Council of Ngos.