The ICC needs to enter the real world and embrace realpolitik

This weekend African heads of state will meet at the African Union  headquarters in Addis Ababa for an extraordinary session to discuss the way forward vis a vis the International Criminal Court (ICC) With over 30 of their countries being signatories to the Rome Statue, which instituted the court, finding a way forward has quickly become an urgent issue; especially when one looks at the manner in which Kenya’s political leadership is being jerked to and fro.
Sunny Ntayombya
Sunny Ntayombya

This weekend African heads of state will meet at the African Union  headquarters in Addis Ababa for an extraordinary session to discuss the way forward vis a vis the International Criminal Court (ICC) With over 30 of their countries being signatories to the Rome Statue, which instituted the court, finding a way forward has quickly become an urgent issue; especially when one looks at the manner in which Kenya’s political leadership is being jerked to and fro.

According to a Reuters interview with an AU official, while a complete walk-out of Rome Statute might or might not occur, “other requests might be made”. What exactly those requests will be is anyones guess. After all, the ICC has already refused to transfer the hearings from The Hague to Nairobi, never mind  handing the cases against President Uhuru Kenyatta and Vice President William Ruto to Kenyan judicial authorities. So, what else could the AU do, barring upping sticks and leaving?

Formerly I had very little sympathy for the people screaming bloody murder because, if we are to be honest, no one put a gun to anyone’s head, forcing them to sign the Rome Statute. Rwanda refused to thankfully. I can imagine why we refused to. Why would anyone think its a good idea to sign a document that took away state sovereignty in matters as serious as legal procedures? As I wrote in May when the AU almost unanimously supported a resolution tabled by Uganda asking the ICC to drop the crimes against humanity charges against Uhuru Kenyatta and William Ruto, ‘the only reason that the ICC is still a player in African affairs is because we let it. We are the ones who signed in and ratified it [the Rome Statute]. Now is the time we sign out. We cannot have our cake and eat it. We need to get out now. If we don’t we can’t complain about the manner in which it operates’.

Legally, I don’t think that Africans have a reason to complain about the ICC’s conduct. I disagree with President Yoweri Museveni when he told journalists, “we supported the ICC until recently when it has completely been distorted”. I don’t think it’s ever been distorted, we are the ones giving it legitimacy, either by sending our citizens to The Hague (as Ivory Coast did with former president Laurent Gbagbo), or asking it to meddle in our domestic imbroglios (as Kenya actually did after the post-election violence). We cannot complain about its ‘unfairness’ regarding its prosecutions, because, truth be told, we wouldn’t have a legal leg to stand on.  I think that the issue we are having is that we want to mix legal issues with realpolitik. No one can argue that the horrendous post-election violence didnt affect thousands of Kenyans. No one can argue that the victims did not deserve to get some form of justice. That is what the ICC is asked to do. Prosecute those it thought were responsible for the violence. A
nd thats what it is doing.

However, the two main alleged protagonists (Kenyatta and Ruto) of the violence threw a spanner in the works by actually finding common ground and reconciling their communities. And in doing so, ensuring peace and stability.  President Museveni put it eloquently. “You cannot solve tribalistic problems with law.  And fortunately the leaders themselves realised this and quickly formed an alliance. How now do you come in to prosecute them?”

Political expediency, nay good sense, dictates that if something is working, don’t tamper with it. What’s happening today in Kenya proves this point. It is stable, strong and peaceful (bar a terrorist attack or two, of course). The positive direction our East African  Community partner is going is proof that realpolitik has a major place in political life. I find it even more significant than ‘justice’. Especially here in Africa where political disagreements quickly become deadly.

The problem with the proponents of the ICC as an instrument of international justice is that they often refuse to get off their high horses and wade into the murkier waters. To them I ask, ‘what is the point of getting a few convictions if those convictions lead to even more violence and instability’? That is the issue that I feel the ICC and its supporters have failed to grasp.

Sunny Ntayombya is a New Times journalist currently pursuing a post-graduate degree in China


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