01/06/2012 02:59:04
Is Cameroon's Ratification of International Criminal Court Relevant?
All Africans especially jurists put hands on deck to condemn the bias openly manifested against Africa by the international justice system.Africans need to be treated fairly by the international justice system. It is time the international justice system modifies its modus operandi to instill confidence in Africans and regain its integrity...
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Introduction

The international Criminal Court is the first ever permanent court with international jurisdiction over individuals. It is a treaty based court given that the court has automatic jurisdiction over member states i.e. those countries that have ratified the Rome Statute of 1998 creating the court. It should be noted that some super powers including China, Russia, and The United States amongst others have not ratified the treaty. Amongst these countries is a multiplicity of African nations like Cameroon that have not ratified the 1998 Rome Statute instituting the International Criminal Court. The treaty came into effect on July 1 2002 with the ratification by sixty countries.
Jurisdiction of the Court

The International Criminal Court has jurisdiction in matters of war crimes, crimes of aggression, crimes against humanity etc. The jurisdiction of the court is exercised over individuals of member states and non-member states. The court has jurisdiction over crimes which are referred to the court by the prosecutor of a state party or referred by the Security Council of the United Nations under Chapter VII of the United Nations Charter or the prosecution of the International Criminal Court sui generis initiates investigation into alleged crimes.

Luis Moreno OcampoIt should be noted from the above that state parties to the Rome Statute have an automatic submission to the court. As for non-state parties to the Rome Statute, the United Nations Security Council can under Chapter VII of the Charter of the United Nations Charter refers cases to the International Criminal Court. While non-state parties can also bow to the jurisdiction of the court if the prosecutor orders investigations into crimes committed within non-states party to the International Criminal Court.

The limits on the jurisdiction of the International Criminal Court are applied in respect to retroactivity and complementarity. As it concerns retroactivity any act committed before the 1st of July 2002 do not fall within the jurisdiction of the court. The court has jurisdiction over crimes committed after the court came into force. Likewise, the court has no jurisdiction over crimes committed in a member state if and only if the crime was committed after the country became a member-state to the Rome Treaty.

The principle of complementarity is to the effect that when an internal criminal jurisdiction has expressed the desire to effectively prosecute an alleged crime, the International Criminal Court will lack the  jurisdiction to investigate and prosecute the crime. However, if the state does not express an effective interest in investigating and prosecuting the matter, the International Criminal Court will manifest jurisdiction in the matter. The International Criminal Court opted to investigate crimes in Cote d’Ivoire though the internal justice system was investigating the same offences. It was only after the manifest interest of the court that Alasanne Ouatarra opted to transfer Laurent Gbagbo to The Hague claiming the internal justice system was investigating Gbagbo for economic crimes.

Controversy Surrounding Africa at the International Criminal Court

According to the website of the International Criminal Court (last consulted June 18 2011) by 12 October 2010, 114 countries are states parties to the Rome Statute of the International Criminal Court. With 31 from Africa, 15 from Asia, 18 from Eastern Europe, 25 from Latin America and Caribbean states and 25 from Western Europe and other states. Based on continental figures Africa constitutes the majority.

The active cases at the International Criminal Court are solely from Africa and include cases against nationals of Sudan, the Democratic Republic of Congo, Uganda and Kenya and Cote d’Ivoire. As at now, the Security Council of the United Nations has requested the International Criminal Court to investigate Lybia for war crimes. It should be noted that Cote d’Ivoire and Libya are not state parties to the Rome Statute.

In application of Article 27 of the Rome Statute, state officials lack immunity in matters before the International Criminal Court. In this regard, the International Criminal Court issued a warrant of arrest against HE Omar El Bashir, the sitting President of Sudan. This caused a strain in the relationship between the African Union and the International Criminal Court.

Jean PingAt the time some African nations including Comoros, Djibouti and Senegal called on other African Union members to withdraw from the court claiming the court is targeting only nationals of Africa. The chairman of the African Union has accused the International Criminal Court of double standards. In an address at the 2010 African Union summit that approved Kenya’s deferral request Mr. Ping said ‘We Africans and the African Union are not against the International Criminal Court. We are against Ocampo (prosecutor) who is rendering justice with double standards.’

The International Criminal Court has expressed her interest in arresting and trying Saif Al Islam though Libyan authorities seem reluctant to hand him over to the court. The court has remained mute over the use of weapons by the NTC backed by NATO in Libya while there is gross abuse of human rights in Syria but no one hears of an arrest or an interest to issue an arrest warrant against any one in Syria.

International Criminal Justice and Bias within Africa

The verdict handed against Charles Taylor has been applauded by many including African jurists. No doubt such justice is commendable in the light of the atrocities practiced in Africa. Most of the crimes committed against humanity are committed in Africa and as such Africa deserves great attention from the international criminal justice system to right the wrongs and set a right path for the respect of human rights.

It is however intriguing when the international criminal justice system appears to be bias in the implementation or execution of justice. The arrest and arraignment of Laurent Gbagbo gives room for more questions than answers.

How could the court decide to investigate crimes only from November 2010? Why did the International Criminal Court cast a blind eye on the seven years of civil war preceding the November elections in the Ivory Coast? Why did the court not issue a warrant of arrest against Ouatarra who also used arms to fight against Laurent Gbagbo after the December elections? A plethora of questions can be generated from this act. Judge Fernandez De Gurmend one of the judges at the International Criminal Court gave a dissenting opinion as to the time frame within which the court needed to carry out investigations in the Ivory Coast requesting the time frame be extended from 2002 a view that never counted. But for the civil war in Ivory Coast that started in 2002, should have there been a post election conflict in the Ivory Coast? These questions and more are begging for answers.

While Charles Taylor has been judged guilty by the UN Backed Court for Sierra Leone, some are applauding the verdict as a relief for Sierra Leoneans. The question to ask is whether justice is about granting relief to a victim. In my opinion, justice is aimed at correcting wrongs and deterring the commission of crimes in society. Charles Taylor was directly involved in the assassination of Samuel Doe but was not dragged to the dock for his involvement in this particular crime. Can we suggest this case was deliberately ignored by the international justice system? Can we say that the Truth and Reconciliation Commission of Liberia was wrong when they adjudged that Helen Sirleaf aided and abetted Charles Taylor in the assassination of Samuel Doe? Why is the International Justice System quiet on her case?

Pro West Stance

In a letter dated February 9 2006, the prosecutor of the International Criminal Court acknowledged receipt of 240 letters alleging war crimes in connection with the invasion of Iraq in March 2003. He stated two sets of complaints were involved to wit; complaints concerning the legality of the invasion itself and the conduct of hostilities. Other members of the coalition are state parties to the Rome Statute but for the US. The International Criminal Court sought excuses to liberate the coalition forces.

Muhammar KhadafiNo criminal investigations have been opened so far though the facts are glaring that George Bush and his allies violated the territorial sovereignty of Iraq alongside committing some other war crimes in Iraq. While NATO is grossly flaunted United Nations resolution 1973 in Lybia, Ocampo opted to investigate Gaddaffi for war crimes though he was acting in self defence. While Gaddaffi’s private residence was being bombarded while attacking civilians in his household in the process, the International Criminal Court did not see it incumbent to investigate into the matter. The post arrest assassination of Ghadaffi by the NATO backed NTC has not generated any interest by the International Criminal Court while the mere act of killing a criminal of war amounts to war crimes.

Conclusion

The International Criminal Court is the first permanent institution of the international criminal justice system. It is but normal that every citizen of the world who hears of this court should applaud the founders of the court for attempting to curb crime against humanity.

However, Lord Hewart CJ said: It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The international Justice system should not only claim to be doing justice but should instill the confidence a justice system should instill in the minds and consciences of all who depend on those courts.

Lord Denning is of the learned opinion that: It is the perception of the people that matters; and the confidence of the people is destroyed when they go away thinking that he [the justice system] was biased – that he [justice system] had been influenced by the other party. The judge’s [justice system] reputation for fairness and justice has been shattered when they [people] go away thinking that he justice system] had been influenced by the other party. It does not matter whether he [justice system] did, in fact, favor one side unfairly. Suffice it that reasonable people might think that he did. The die is cast and we cannot put the clock back.

The international criminal justice system has left many citizens of the world with the impression that it practices selective justice and has succeeded in eroding the integrity of the international justice system leaving the impression that it does not practice what it preaches. It is therefore very likely that there are two camps of people in Africa. Either one is in the Gbagbo-Taylor-Bashir camp or in the Ouatarra-Soro-Sirleaf camp. In which camp then does Cameroon fall?

Cameroon was one of the first countries to sign the Rome Statute of 1998 but till date has not ratified the statute. It is evident from the above that Cameroon’s location in Africa makes it absolutely irrelevant for Cameroon to ratify the Rome Statute. The court from every indication has jurisdiction over Cameroon because Cameroon is an African nation. This has put the sovereignty of the Cameroonian nation and all other African nations at stake.

Nations that possess weapons and wealth have become the determinants of the governance of the world irrespective of the choice of the people of any country. The imposed jurisdiction of by a select-few violates the very fundamentals of international law which is the consent to adhere to any international jurisdiction. Whether Cameroon ratifies the Rome Statute or not, Cameroon’s nationals are subject to the International Criminal Justice System as practiced at the Hague.

It is my humble submission that all Africans especially jurists put hands on deck to condemn the bias openly manifested against Africa by the international justice system. Condoning the behavior of the international justice system for any reason whatsoever, is assisting in killing the international justice system and putting Africa at the backyard. Africans need to be treated fairly by the international justice system. It is time the international justice system modifies its modus operandi to instill confidence in Africans and regain its integrity.

Ngalim Bernard Yongabi
Masters Degree Student
International Law

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