The International Criminal Court discriminatory against African leaders?

Although devised to deal with international crimes the Operations by the International Criminal Court can be attributed to be discriminatory against its indictment of African personalities such as Charles Taylor, Thomas Lubanga, Abdallah Banda, and Uhuru Kenyatta over international crimes. From its inception in July 2002 to current date the ICC has indicted 36 personnel, it has opened investigations in 8 countries of which all of them are African countries. International crimes are crimes that transcend sovereignty and attracts universal jurisdiction, and can be categorised as war crimes, genocide, crimes against humanity, torture aggression and terrorism. on the other hand the ICC in its operations is not discriminatory, rather it is abiding by its founding principles that of indicting and trial of cases referred to it by member states and United Nations Security Council as well as its jurisdiction of states that have ratified the Rome statute.

From its inception in 2002 the ICC has opened investigations in 8 countries. The 8 countries that the ICC is investigating on international crimes are namely DRC, Uganda, Central African Republic, Sudan, Kenya Libya, Ivory Coast and Mali, all of which are African countries. This clearly shows that the court in its operations is discriminatory in that wars are being fought globally and international crimes are being committed everywhere, for instance the war against terror by USA on Afghanistan were it is attributed that America is torturing the victims of war. Thus instead of indicting Bush and Blair of war crimes they have indicted African leaders such Omar AL Bashir and Muammar Gaddafi on war crimes.

The ICC came as a result of the ratification of the Rome statute thus the court has jurisdiction of member states. The ICC instead of being bound on indicting member states it has taken the privileged to indict African non-member states. The ICC has indicted African personnel from the countries that have not ratified the Statute for crimes against humanity hence they are not member states. The examples of the personnel include the indictment of Bahr Abu Garda in 2009, Abdallah Banda 2009 who are from Sudan and Charles Ble Goude 2011and Simone Gbagbo 2012 from Ivory Coast.

The ICC defines crimes against humanity as acts committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack and the definition also includes that these attacks are not isolated or sporadic events but are acts that form part of government policy, or a systematic practice of atrocities tolerated by the government. With this definition this lead to the indictment of African leaders such as former Libyan leader Muammar Gaddafi indicted in 2011 on 2 counts of crimes against humanity, Laurent Gbagbo in 2011 on 4 counts of crimes against humanity, Uhuru Kenyatta in 2011 on 5 counts and also some other personalities such as Joseph kony on 12 counts in 2005, Germain Katanga 3 counts in 2007, Thomas Lubanga on 3 counts in 2006, Abdallah banda on 3 counts to mention a few on crimes against humanity. This is discriminatory against the backdrop that American is using drones in attacking and killing civilians in Afghanistan and Pakistan each and every day and drone attacks has become part of the government policy, but the American leaders such as Bush and Obama have not been indicted on crimes against humanity.

Article II of Genocide convention defines a genocide as the killing of members of an ethnic, racial or religious group it also goes on to say that it entails deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part and this include subjecting a group of people to a subsistence diet, systematic expulsion from homes and the reduction of essential medical services below the minimum requirements (Dugard 2005; 180).  Using this definition one can alludes that genocide is being practiced in countries like Israel and Iraq were in Israel there has been the killing and displacement of Palestinians as well as the killings and displacement of the Muslims in Iraq by the United States. America is also using torture in its fight against terrorism; the torture in Guantanamo bay. According to Press TV (2014/ 04/30) the shelling of the Palestinians by Israel is genocide for it wants to cause an extinction of the Palestinians. On the contrary the ICC has already indicted Omar Al-Bashir for a 3 counts of genocide. He is alleged to have ordered the attack on the Fur, Masalit and Zaghawa populations that were perceived to be sympathetic with the rebels. This has been labelled as genocide for it was defined as causing serious bodily and mental harm and deliberately inflicting conditions of life calculated to bring about physical destruction of an ethic group.

War crimes are crimes committed in violation of international humanitarian law. War crimes are governed by the principle of jus in Bello can be categorised into crimes against civilians and combatants. In the indictment of personnel on war crimes the ICC is discriminatory to African personnel. War crimes are committed everywhere in the world, in the Syrian conflict there was the use of Chemical weapons on civilians, USA is torturing prisoners of wars in Guantanamo bay and is also attacking civilians using drones in Iraq and Pakistan. All these perpetrators of war crimes were not indicted by the ICC but rather African personnel such as Abdallah Banda, Omar Al-Bashir, Bahr Abu Garda, Jean-Pierre Bemba, Ahmed Haroun to mention a few.

Another imperative feature on the ICC on its operations is on its sponsorship and composition. Although America has not ratified the Roman statute it sponsors the operations of the ICC and it also has judges in the ICC. America has deployed its troops in the hunt for Joseph Kony and his generals. USA is part of the Nations Security Council that can refer cases to the ICC thus the USA cannot refer for the indictment of its leaders as well as its partners in crimes for instance Britain and France who are involved in the killing and displaced of Iraqis.

On the other hand the operations by the ICC on the indictment of African personnel cannot be articulated as discriminatory rather the exercise of its duties and obligations. Firstly the Roman statute has jurisdiction on member states; those that have ratified the statute.34 African countries have ratified the statute. Countries like Uganda, Kenya, DRC and Central African Republic have ratified the statute. Thus the indictment of personal such as Joseph kony, Raska Lukwinya, Okot Odhiambo, Bosco Ntaganda, Thomas Lubanga and Germain Katanga cannot be attributed as discriminatory but rather the exercise to bring to justice the perpetrators of International crimes. 

The UNSC may refer a situation to the ICC when it feels that there is a breach international peace in accordance with chapter VII of the UN charter, even if it involves a nation of a member state. These referrals saw the indictment of the Sudanese leader and that of Muammar Gaddafi and son on crimes and humanity as well as personalities like Bahr Abu Garda, Mohammed Ali, Abdallah Banda, and Walter Barassa. Thus the referral of these African leaders by the ICC cannot be painted discriminatory rather but rather an exercise of its mandate.  

The indictment of African personalities is as a result of the prevalence of wars in the continent. The creation of the ICC was inspired by the International Criminal Tribunals of Rwanda and the International Criminal Tribunal for the former Yugoslavia established in response to crimes committed in both countries. Thus the prevalence of wars in Africa as well as the influence of the Rwandan genocide leads to the focus in Africa for war crimes. The notion being that whenever there is a high prevalent of war , war crimes will follow, so this leads to the focus on Africa and as a result leads to the indictment of African personalities on war crimes and crimes against humanity.  

The ICC is a subsidiary or complementarity to national courts. By being a subsidiary or being complementary the ICC is devised to trial cases that are referred to it by states that have either failed to trial or cases or in which they feel the perpetrators can temper with judgement. This clearly shows that the indictment of African personalities is per African dictates thus the ICC is not discriminatory rather complimentary.

To conclude, although the court indicts and trials perpetrators of international crimes the court is discriminatory in its operations for since its inception it has indicted 36 African personalities, it has opened investigations to international crimes in 8 African countries as well as its extension to indict African personnel in states it does not have a jurisdiction over.