Prof. Emmanuel Yenshu, lecturer, University of Buea, on Africa’s possible pullout from the court.

Why are relations between Africa and the International Criminal Court, ICC often difficult?

Initially, African countries were enthusiastic subscribers to the ICC in some sort of blind mimicry. Little did they think that this court will turn out to be an international political court that will not be criminal in any way, but will target political violence. This court’s actions are inscribed in new philosophies that have broken off from the post-World War II thinking that most African governments are accustomed to.

First, the ideas of universal competence and crimes against humanity are a radical departure from the older principle of non-interference in the internal affairs of states which used to shield African countries from international overseer action. Thus, some of the repressive abuses on the continent have come to be styled “crimes against humanity” and are subject to judgement by the court. Some African leaders have been wise to democratize, soften coercion by resorting to civil modes of interaction with their peoples, thus minimising resort to violent repression. Such countries have no problems with the ICC.

Not every country however is in the same situation. Even within the same country, factions of the political class may hold different views on the subject. The majority of African countries that have subscribed to the ICC do not have difficult relations with it. The difficult cases are rather few, isolated and controversial.

The AU has called an emergency summit on October 13, 2013 to discuss a possible mass withdrawal from the Rome Statute setting up the ICC. What impact will such a move have on the work of ICC and crimes against humanity on the continent?

To discuss withdrawal does not mean that all countries will withdraw. Will collective withdrawal mean that African countries support abuses that impinge on human dignity or will it be a case of blind solidarity with leaders with doubtful governance records? Will withdrawal be in the name of the AU or will each individual country go ahead to withdraw from the Rome Statute which is ratified by individual countries?

Be sure too that Côte d’Ivoire will likely not vote for withdrawal, having handed over its former President, Laurent Gbagbo for trial by this court. Withdrawal will not affect the work of the ICC itself because it is not an African court, except for the fact that the court will not be able to pursue African leaders. In that case, Africans will have to substitute that court with theirs. Even then, that may only be wishful thinking. For instance, the case against former Chadian leader, Hissène Habré, has taken too long to be judged. Any withdrawal may spell a return to the reign of impunity.

What future do you see for ICC, given the growing resistance to its work?

That court was not set up for Africans. It has so far judged war criminals from the Bosnian conflict. It may refuse to accept the idea of African withdrawal and continue to base its action on the principle of universal competence. In that case, it will continue to issue international warrants of arrest for suspects, creating de facto fugitives of African Heads of State who think they can commit crimes and hide behind the immunity of their countries. It will not be wise for African countries to withdraw. It may even give the impression of guilt and reinforce the credibility of the ICC.

That body has come to act as a world court with prospects for injecting some objective moral order. It will be difficult for it to leave the scene.  One way may be to extend its actions once more beyond Africa and request countries that have contentious cases to bring suspects to its jurisdiction. For instance, America’s terror suspects interned at Guantanamo may have better hearing at ICC than where they are now. ICC’s future lies in its becoming a real international tribunal.