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The outrageous decision passed recently by the UNSC

By Amen Teferi
Tigrai Onlne December 09, 2013

The decision passed recently by the UNSC in connection with the case presented by the AU to defer the case being investigated by ICC on the Kenyan Presidents Ehuru Kenyata and his Vice was outrageous.

Abdul Mohammed of the AU has reflected on the decision which he finds as “outrageous” and interpreted it as a clear message representing a mockery of justice.  According to Abdul the decision of the UNSC simply transpire the aberration and insensitivity of international organizations that have become instrument of the powerful. It also transpired the truth some countries like India who deemed the ICC as an imperial and neo-colonial tool by which the powerful punish the poor and the weak -like the African governments. Moreover, the decision imputes a meaning to Africa people that UNSC is indifferent to their concerns and the member states.

Abdul Mohammed of Ethiopia has found the UNSC decision as unacceptable that would deflate the stated objectives and principle for which it stood. He strongly believes on the legitimacy of the AU case presented to UNSC. The legitimacy of AU case presented to UNSC. The case presented by AU to the UNSC mainly concerned with the deferral of the case being investigated by the ICC, based on the provision of the court as stipulated in the Rome statue that has entrusted with the power to decide on such case filed by member state of the ICC.

The appeal AU made to the UNSC relates to the pressing problems that Kenya currently faced with. And AU required the UNSC to decide on the deferral of Ehuru’s case for 16 months without dismissing the core principles of the ICC and its legal entity to investigate the case of gross human right violators.

In fact, Abdul Mohammed argued that ICC should be a last resort, as was intended originally, rather than acting as a first instance court as it is currently doing. He also indicated the underling need of consolidating national and continental level judiciaries in Africa.

Kenyan leaders have shown the commitment and comply to the instruction of the count. It is to be recalled that Ehuru Kenyata explicitly indicated his willingness to be abided by the requirement of the court. The vice- president has also appeared at the ICC court in Hague. However, the situation in Kenya at the moment needs their undivided attention and whole hearted engagement to successfully accomplish their official duties to the benefit of the Kenyan people. It is in the interest of the Kenyan public to relive the leaders from being distracted by devoting their energy to the litigation pending at ICC in Hague.

Abdul is questioning the wisdom of pushing the Kenyan case to court, while they have more pressing problem which involve the national interest of the Kenyan people. Moreover, the peaceful transition going on in Kenya and the development of a reconciliation process that set in following the last national election that has brought the accused leaders of Kenya to the supreme power of the nation. The collective wisdom of the African state is reflected through the appeal made to UNSC to defer the case for the next year. They expressed their concern by highlighting the current condition of Kenya. Thus, Abdul questioned the uncaring decision of UNSC and the wisdom of declining the case presented by AU on behalf of the African states, without which the UN could not be considered as a meaningful international body.

The decision passed by the UNSC, in fact, does not reflect the important status that should be accorded to AU as a continental organization, acting as a representative of 54 nations that would dispose UN as international agency potent to deal with global issues of common concerns of the world population. He boldly expressed his stand that Africa deserves a better treatment by the UN, more than what it currently is having in the eyes of the UN. Disregarding the collective and crucial needs of the African states would in turn undermine the power bases of the UN. If Africa withdrew itself from UN it would render this international body impotent.

It is the knowledge of everyone in the street that an organization without the consent and active support of its constituency is nothing but a dead horse. Hence, Africa deserves an attention that really worth its member. Numbers and justices should dictate the UN to take Africa seriously and give attention to it, which correspond to its status as a regional body representing the countries that would constitute significant majority of the UN member.

It would be much more puzzling to see members of the UNSC who failed to prescribe the core principles of ICC and refrain from ratifying the Rome Statue, took position that would create a situation where ICC manage to go unhindered and function as an international body to investigate and prosecute gross human right violators of states, which are not signatories to Rome statute. Members who stood against the ratification of the statue are now paving ways that would allow the ICC to see cases. They are in fact opting to refer cases to the institution they have avoided.

When African states questioned the probity of ICC, many resort to an argument that despise the morale disposition and political commitment of African states and imply a hideous interest on the part of African government to shy away from being accountable and enjoy impunity as a perpetrator of despicable gross human right violation.

In this regard, Abdul Mohammed argued that the commitment of African states cannot be questioned in reference to the queries the African states have raised in reaction with Ehuru Kenyata. As a matter of fact, 30% of ICC member states are from Africa. The impunity is not at stake in the cased raised here. What is at stake here is not impunity rather integrity of the ICC as an international organization adjucating legal matters being independent from any political influence whatsoever from third parties.

It is the knowledge of every one, that ICC has filed a case against Kenyan leaders in connection with atrocities perpetrated during the last national election in Kenya alleging Ehuru Kenyata and his vice are involved in the heinous crime that has caused the death of many Kenyans and resulted on the destruction of huge property.

Now, the question is whether ICC is insulated from abusing its mandate motivated by extra judicial matters that is influencing the dispensation of legal matters. The weary expressed by the African states was entertained by the US government, when it refrained itself from ratifying the Rome Statue at the meeting hold in Italy ten year ago. Thus, The USA should be willing enough to confer the benefit of doubt for African states and assume their position to be legitimate at face value.

Abdul Mohammed also contends that only 27% of the world states are members of the ICC and this does not represent the universal consensus of governments. ICC is not a universally acclaimed international body. And ICC is not the only agency to deal with atrocity that has resulted gross human Right violation. It is not the only modality of justice to cope with the despicable atrocity of civil war.

Abdul argued that various African countries have successfully dressed political grievances and civil war and atrocities before the birthing of ICC. One may take the course of reconciliation as the optimal modality of dispensing justice and redressing grievance that has grossly affected the respect of human Rights. The delivery of justice cannot be effected only through legal courses, but also by commendable political process that has a broad based consensus.

According to Abdul Mohammed civil war has often a political constituency and grievances which should be addressed through political means that would affect broad-based agreement among the warring parties. The optimal solution to cleverly execute problems related with civil war we need to look for political means rather than legal justice catered by an international organization such as ICC.

Taking the case of Kenya the civil war that was instigated following the national election defiled the political setting of Kenyan people. Abdul Mohammed has argued that the 2011 election in Kenya can be considered as a reconciliation effort of the people of Kenya “Voting is a political means that passed the way for reconciliation in Kenya” contended Abdul, Taking the case to ICC doesn’t necessarily bring reconciliation and bring grievances to an end. ICC is not the only solution to the problem in Kenya. There were many cases that had redressed political grievances and effect a lasting solution to atrocities the African people had suffered in the case of South Africa truth and reconciliation commission was proved to be amicable resolution for the suffering of the people in South Africa under the Apartheid regime. That was a collective wisdom of South African people that has resolved the persistent problem of civil war decisively. In other African countries like Mozambique civil war was ended through political means.

However, the current disposition of ICC the clearly proved the institutional bias that exclusively made poor Africa a victim. The message communicated recently through the decision of the UNSC is really enraging. The decision lacks modesty and civility and has revealed the stereotypical presumption held by the key members of the UNSC and the truth of the candid concern and interpretations of the skeptics who shy away from joining ICC. According to Abdul Mohammed of the AU, the ICC is an imperial organization or a neo-colonial institution to that was founded simply to quash the weak and the poor with a guise of morally acclaimed objectives.

The Africans have presented a modest demand –the deferral of the case filed against the Kenyan presidents that is being investigated by ICC. The UNSC has not rejected the reasons put forward by AU to demand the deferral of the case. They have not rejected the reasons per se. They just said “We are not listening to you.” By saying they are passing judgment on Africans credibility. The UNSC is saying “We do not trust you. And this is outrageous.” Therefore, the UNSC has rejected the African demand because they lack modesty.  The decision has really reflected the truth of “the views expressed by skeptic states including some key government like China, Russia and India that the ICC is an imperial institution or a neo-colonial instrument, which basically punish the weak and the poor. As it stands today, this is a very attractive narrative” said Abdul.

However, he believes that the current situation provide a good opportunity for African governments to look into themselves and clear the possibility of any conflict that would drag them into civil war and hence dispel the rancor the west is harboring and made a house cleaning. This situation requires the African government to double their effort and strengthen their judiciary and get their houses in order and also more importantly take more responsibilities. And he argued that efforts have been made in this regard.

There has been real commitment to change old ways doing things on the part of the African states. Thus he said “I think it is helpful to put Africa into three compartments. There are African countries that are really doing very well that could put them on a scale par with any country on the globe.  And there are those countries that are trying their level best. Actually, those who continue to perform badly, especially in this area are minority. ”

There is in Africa the political will and the new dispensation to get their houses in order, to condemn impunity and to deal with criminals. There is this effort in Africa which could be substantiated by the fact that 30 percent of the ICC members are African countries.  What African presented is a modest demand –deferral. Why modest?

Here are some reasons for their demand. For one thing, the UNSC did not reject the reasons per se. The UNSC has only rejected simply because it lack modesty. The Africans have a good case. The case they have brought to the UNSC is based on an existing instrument. Therefore, they must strengthen their position and their argument and legitimize more by having a broader discussion within Africa outside of government before they go back again to the Security Council.      

The ICC was not defended by ICC itself, but it was defended by the international human right organizations. They were the one who did the bidding on ICC’s behalf. However, African governments went on their own without bringing other views other than the position of governments. Abdul Mohammed absolutely believes that ICC is politically motivated in its actions.

Therefore, he suggested that the first step for the Africans after the resolution passed by the UNSC will be to reflect on the consequences of the decision. He pointed out that they will reflect on the consequences at the next AU summit. He also indicated the options Africans have:

African governments have joined ICC without proper debate in each of their countries.  They have just joined without broader agreement or consensus before they subscribe ICC. Again, they have gone to UNSC without consulting the broader African civil society and political community. Now, the first thing they should do before they contemplate the next step is to come up with a mechanism that would broaden the debate and involve various stakeholders other than governments and see the views of African public. This would give substance and legitimacy to whatever they say. The African governments should consult with their respective civil society and made strong effort to seek the views of their citizens to reinforce their position.

He also saw glaring discrimination against Africa. He asked “Are they saying that no atrocity was perpetrated in Iraq or Afghanistan?”

What are the options?

He also argued that one cannot carelessly lump the African states at present into one generalized category. In his opinion we can divide the current African state in to three groups. African countries that are working in a best manner, which can be put on par with other countries that have excellent record in respecting human rights. On the other hand we have those countries who are trying their level best to ensure the respect of human rights. Moreover we have countries that are working badly and these are the minorities at this time.

Abdul Mohammed also affirmed that African governments to ICC and UNSC. But their queries and concerns were received with unwelcoming response. Therefore, he urged the African countries to react strongly in unison by identifying the best option from among the options he proposed here. The following are the options Abdul Mohammed has proposed:

  1. On option would be mass withdrawal of African states from ICC. Infect, he stipulated that this would not happen, partly because the powerful west will not allow it. They would engage in dividing the African governments to discourage such a collective measures. They will use every instrument at their disposal to make it impossible for some African countries to go along this decision of African government. He has made it clear that the west would take every possible measure to abort such collective venture.
  2. They may also suspend their participation and this would have major political consequences. It may also ignite another debate in the SC.
  3. To ask the Kenyan government or the Kenyan presidents not to cooperate with ICC. And this is already embedded in the decision of the African Union extra ordinary submit. The Kenyan government may opt to refrain from co-operating with the ICC.

These are, according Abdul, the possible measures the African government may use in their fight against the discriminating tendency of the ICC. Africa has been a victim of this abhorrent inclination of discrimination exhibited by ICC. The world has seen such atrocious deeds at various juncture of its history at different corners of the globe, but unfortunately remained oblivious to the eyes of justice. It is not because no atrocity had been perpetrated by individuals or groups in the west that the ICC has so far brought only African politicians who are suspects of gross human right violations. In fact there was no shortage of such a atrocity in many parts of the globe other than Africa.