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African Governments have made greatest use of the ICC

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Many observers and critics of the International Criminal Court (ICC) argue that the Court has focused entirely on Africa and needs to expand its investigations to other continents. Some critics even cast the ICC as a colonialist tool that is biased against Africans. But while it is true that each of the individuals charged by the Court have been Africans, these arguments overlook and overshadow the fact that African governments have been largely supportive of the ICC and were instrumental in its founding.

Is the ICC picking on Africa?

As many have noted, of the eight active formal investigations that the ICC has opened in it's over ten years of existence, all of them have been on the African continent. It is easy, then, with just that information, to conclude that the Court and its prosecutors have focused on Africa. But contrary to common perceptions, the ICC's interventions in Africa have in fact been called for and supported by African states. In four instances—in the Democratic Republic of Congo, Uganda, the Central African Republic and Mali—the situations were referred to the ICC prosecutor by those very states.

In those situations where investigations were opened on the volition of the prosecutor, there was also support from African governments. In Kenya, the prosecutor was given evidence of crimes allegedly committed during 2007-08 post-election violence by an international commission established by the Kenyan government. Even then, an investigation was only formally opened after the Kenyan government failed to meet an agreed upon deadline for starting its own prosecutions.

Likewise, the investigation in Cote d'Ivoire was supported by the Ivorian government, under the leadership of President Laurent Gbagbo which voluntarily accepted ICC jurisdiction in 2003 The remaining investigations—in Darfur and Libya—were referred to the ICC prosecutor by the United Nations (UN) Security Council, with both referrals receiving support from African states sitting on the Council at the time.
Rather than seeking out cases on the African continent, the ICC has opened investigations where it has been asked to, and where grave crimes are being committed. As ICC Prosecutor Fatou Bensouda has said: "The office of the prosecutor will go where the victims need us... [t]he world increasingly understands the role of the court and Africa understood it from the start. As Africans we know that impunity is not an academic, abstract notion."

African support for the ICC

"My largest constituency is Africa and its state parties. I make every effort to liaise with them and be truly attentive to their concerns, "remarked Ambassador Tiina Intelmann, President of the Assembly of States Parties to the Rome Statute (the ICC's founding treaty) recently. Her office has carried out exhaustive efforts to respond to any question from African states, whether they are ICC states parties or not.

African countries have long supported the idea of an international criminal court. Members of the Organization of African Unity (OAU) and later the African Union (AU) were actively involved in the ICC's creation. During the 1998 Rome Conference negotiations, OAU Legal Adviser Tiyanjana Maluwa gave two justifications for Africa's interest in the ICC: the continent's historical endurance of atrocities such as slavery and colonial wars, and the memory of the 1994 Rwandan genocide, where the international community failed to take preventative action.These experiences "strengthened Africa's resolve to support the idea of an independent, effective, international penal court that would punish and hopefully deter perpetrators of such heinous crimes," according to Maluwa

This resolve has carried through to the present. African states have routinely responded positively to requests for assistance by the ICC during the course of proceedings. They have facilitated investigations and provided crucial support to their conduct.

For example, just last month Rwanda, which is not a state party to the Rome Statute cooperated in facilitating the transfer of ICC suspect Bosco Ntaganda to the Court. Furthermore, in July 2012, six West African heads of state attending a meeting of the Economic Community of West African States (ECOWAS) in Burkina Faso called for the ICC to intervene and conduct investigations of alleged crimes in northern Mali.

The fact is that ordinary African citizens do not share the same views as some of their leaders on the ICC. While attending an expert roundtable meeting on the African Union, the ICC and the UN Security Council in Addis Ababa in March 2013, I was asked why heads of state and senior government officials feel they are entitled to immunity from prosecution?

The AU and the ICC: a shaky relationship?

The AU's relationship with the ICC is admittedly far from perfect. The AU has supported calls for UN Security Council deferrals of the investigations in Darfur and Kenya, and most notably instructed member states not to act on the arrest warrant for Sudanese President and ICC suspect Omar Al-Bashir, arguing that he has immunity as a sitting head of state.

But that is not the whole story. Institutional relations are complex and take time to develop. The relationship between the ICC and the UN was foreseen in the Rome Statute, but the negotiations of a draft relationship agreement as a basis for discussions between both organizations lasted for two years. No such provisions were foreseen for the relationship between the AU and the ICC, so some tension between the two may be expected.

The ICC Office of the Prosecutor has said that overall the relationship between the ICC and the AU has been very good. Between 80 and 90 percent of the ICC's requests for cooperation are directed to African states, including to non-states parties, and to date none have been refused. One could argue that the Court's current cases could not have proceeded without the support and cooperation of the AU's member states.

Crucially, members of the AU have also begun to assert the need to abide by their obligations as members of the ICC over their membership in the AU. Countries such as Botswana, South Africa, Burkina Faso and Niger have publicly affirmed the need to arrest ICC suspects on their territory. During preparations for the July 2012 AU summit in Malawi, President Joyce Banda announced that the arrest warrant against President al-Bashir would be acted upon if he were to attend, which led to the relocation of the meeting to Addis Ababa.

Where states have been reticent to cooperate with the Court, African civil society have reminded them of their Rome Statute responsibilities. In Kenya, for example, civil society groups worked through the Kenyan judicial system to assert the government's obligation to arrest Al-Bashir.

African support for justice

With 34 states parties and 43 signatories to the Rome Statute, Africa is one of the ICC's largest bases of support. With Egypt's recent expressions of interest in joining the Court, that support looks like it will continue to grow in the future. Likewise, the African continent is well-represented on the ICC's staff. Several Africans hold key positions in the Court, including chief prosecutor, 5 of the courts judges are African including the first vice president and deputy registrar. Out of a total of 658 permanent ICC staff, 144 are African nationals, representing 34 African nations.

Critics of the Court all too often discount this participation. When they do, they lose sight of the fact that Africans are not the victims of a biased ICC, but willful supporters of the Court's mission to end impunity for the crimes from which they have too frequently suffered.

Finally, the Rome Statute states the ICC should select the gravest situations under its jurisdiction. It is not about regional or geographic representation, and its not a subject of high politics, it's the law: where there are crimes falling within its jurisdiction that are not being addressed by national jurisdictions, under the new system of international justice, the Office of the Prosecutor should step in if the Court is to do what it was set up to do. Those who argue that the court is targeting Africans should stop and think for a moment: there are more than 5 million African victims displaced, more than 40.000 African victims killed, hundreds of thousands of African children transformed into killers and rapists, thousands of African victims raped. Should the ICC ignore these victims? It's not about focusing on Africa; it is about working for the victims, and the victims are African. That is why the Court is a solution; its impartiality, its independence ensures the legitimacy of its intervention.

By Stephen Lamony

Stephen Lamony is a Senior Adviser at the Coalition for the International Criminal Court. The views expressed here are mine and do not reflect the official position of the CICC.

Mali: French soldier killed fighting Islamists

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A French soldier has been killed fighting Islamist rebels in Mali, President Francois Hollande has said.

More than 20 militants also died in the clashes in a mountainous northern region, France's defence ministry said.

It is France's second fatality in Mali since it began its military intervention there last month.

French troops backed by helicopters and planes have helped restore government control of northern Mali, killing hundreds of suspected militants.

"There was a serious clash with many dead on the terrorist side but also a death on the French side," Mr Hollande said during a visit to Greece.

'Last phase'He said the soldier from the French Foreign Legion was killed as special forces hunted militants hiding in the Ifoghas Massif - a remote mountain region in the Sahara.

The continuing mission was aimed at capturing "the last terrorist groups and leaders," Mr Hollande added.

"We are now in the last phase of the operation in Mali," he said.

France intervened in Mali just over a month ago to stop Islamist militants who had taken control of northern Mali from advancing on the capital, Bamako.

French forces helped government troops recapture the main north cities and towns, and thousands of soldiers from African countries have also been deployed.

Previously the only French fatality was a helicopter pilot killed on the first day of the military intervention, 11 January.


Ivory Coast ex-President Laurent Gbagbo at ICC court

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Ivorian ex-President Laurent Gbagbo has appeared at the International Criminal Court to hear whether he could be tried on charges of crimes against humanity.

He is the first former head of state to have appeared at The Hague-based court.

He faces four charges, including murder and rape, in the wake of Ivory Coast's disputed presidential poll in 2010.

Some 3,000 people were killed in violence after Mr Gbagbo refused to accept defeat in the polls. The 67-year-old insists he is innocent.

'Inadmissible' caseTuesday saw presiding judge Silvia Fernandez de Gurmendi open the confirmation of charges hearing, which will decide whether there is enough evidence to try Mr Gbagbo.

The judge stressed that the hearing would not be ruling whether the former president was guilty or innocent.

Mr Gbagbo's defence lawyers argued that he was already under investigation in his own country and that the authorities there must be the ones to try him - not The Hague court.

They urged the judges to "declare this case inadmissible".

Mr Gbagbo, a former history professor, sat silently in the courtroom listening to the proceedings. He made no comments.

Outside the court, some 300 supporters of Mr Gbagbo held a rally, demanding his immediate release.

'French plot'The court earlier decided to hold shorter than usual sessions because of Mr Gbagbo's poor health. The hearings are scheduled to last until 28 February.

The charges against him relate to the violence after the 2010 election when he refused to accept defeat by current Ivorian President Alassane Ouattara.

Mr Gbagbo - who was arrested in Ivory Coast in April 2011 and later extradited to The Hague - accuses former colonial power France of plotting to topple him from power in the world's biggest cocoa producer.

The ICC began operating in 2002 to bring to justice those responsible for crimes against humanity and war crimes committed in countries that accept its jurisdiction, or when the UN Security Council refers a case to it.

Mr Gbagbo is the first former head of state to go on trial there, although Slobodan Milosevic of Yugoslavia and Liberia's Charles Taylor were tried by special courts in The Hague.


Chad Hosts Wanted Al-Bashir as Côte d’Ivoire Joins ICC

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As Côte d'Ivoire today takes a major step towards ensuring accountability for grave crimes by joining the International Criminal Court (ICC), Chad is once again failing to live up to its obligations as a member of the Court by hosting fugitive from international justice Sudanese President Omar Al-Bashir.

The Sudanese president is attending the summit of the Community of Sahel-Saharan (CEN-SAD) in the Chadian capital this weekend. He is expected to pay a further visit to Chad in mid-March.

Al-Bashir is no normal visiting foreign dignitary. He is the first sitting head of state wanted by the ICC for genocide, war crimes and crimes against humanity. Crimes allegedly committed against his own population in the Darfur region of western Sudan.

Chad is an ICC member state and under the Rome Statute—the Court's founding treaty—it has an obligation to arrest and surrender any ICC suspect. Authorities there have failed to comply with their treaty obligations on two previous occasions, in 2010 and in 2011, when they allowed Al-Bashir to be on Chadian territory without arresting him.

By repeatedly hosting Al-Bashir, Chad is casting its lot with a small group of states parties to have hosted an ICC fugitive. However, this group is diminishing. In 2012, not a single ICC state party hosted the Sudanese President.

In 2010, Al-Bashir attended the signing ceremony for the Kenya's new constitution. However, the following year, in response to a case brought by the International Commission of Jurists against Kenya's attorney general and internal security minster, the Kenyan High Court ruled that the Sudanese president must be arrested should he enter the country again.

In 2011, Al–Bashir attended the inauguration of Djibouti President Ismaïl Omar Guelleh,, while Malawi hosted him during the summit of the Common Market for Eastern and Southern Africa. However, neither has hosted Al-Bashir since.

Last year, newly-elected president of Malawi, Joyce Banda, reversed the position of her predecessor by refusing to host the 2012 African Union summit if Al-Bashir was to attend.

Chad's step backwards this weekend is in stark contrast to this positive trend, and will serve only to isolate it from other ICC states parties. African states are increasingly demonstrating their commitment to accountability by upholding their ICC obligations.

Three years after signing an agreement for the restoration of harmony between Chad and Sudan, Chad cannot continue to argue that arresting Al-Bashir would cause instability. Kenya's decision to restate its obligation to arrest the Sudanese President led him to threaten to cut diplomatic ties. But these threats went no further. Chad could always take grievances with Sudan to the International Court of Justice or the African Union which have mechanisms to deal with threats of aggression.

ICC states parties, United Nations Security Council members and the Assembly of States Parties—the ICC's governing body—should vehemently denounce Chad's hosting of Al-Bashir and determine measures to address its persistent lack of cooperation in arresting and surrendering ICC suspects

Suspected perpetrators cannot be allowed to run the show while sidelining the Court.

Côte d'Ivoire today officially joined the ICC by depositing its instrument of ratification of the Rome Statute at the UN in New York, the first state to do so in 2013.

As the 33rd African state party, Côte d'Ivoire has strengthened the continent's voice at the Court and will have the opportunity to further demonstrate its commitment to the fight against impunity in the years to come.

Meanwhile, a key hearing is to open in The Hague next Tuesday to determine whether former Côte d'Ivoire president Laurent Gbagbo will face trial at the ICC for alleged crimes against humanity that followed Côte d'Ivoire's disputed 2010 presidential elections, during which an estimated 3,000 people died. In April 2003, Côte d'Ivoire had accepted ICC jurisdiction as a non state-party.

Chad's non-compliance with its ICC obligations should not overshadow the fact that Côte d'Ivoire is now among the growing number of supporters of the Court. But it is a reminder that being a member of the ICC requires a state to demonstrate its support to the Court and its commitment to the fight against impunity even when the political impetus is to look the other way. Words must be followed by actions.

By Stephen Lamony, Senior Advisor at the Coalition for the International Criminal Court

ICC Launches War Crimes Probe in Mali

The International Criminal Court (ICC) has opened an investigation into alleged war crimes in Mali.

In a statement Wednesday, ICC prosecutor Fatou Bensouda said she has determined that some "deeds of brutality and destruction" committed in Mali may constitute war crimes.

She says there is reasonable basis to believe the crimes include murder, torture, attacking protected objects, illegal executions and rape.

The investigation comes after human rights groups voiced concern about alleged abuses in northern Mali, which is controlled by Islamist militant groups.

Corinne Dufka, West Africa researcher for Human Rights Watch, says the rights group has documented the recruitment and use of several hundred children by the Islamists since last April.

She says over the past week, witnesses have reported seeing children as young as 11 taking part in fighting between the militants and French and Malian forces.

"I have conducted numerous telephone interviews with residents, primarily in the Gao region who have described the presence of children at checkpoints, with the Islamist groups, as they have attacked some of the towns as well as children, wounded children, who have come in for treatment in Gao," said Dufka.

She says in some instances, the children appear to have been recruited along with older brothers or their parents.

Amnesty International notes that Islamist groups were previously accused of killing and brutalizing people who violated the militants' strict version of Islamic law.

The group's Salvatore Sagues told VOA that Islamist militants have carried out their own versions of law and justice.

"They imposed their own interpretation of Islam, flogging couples, for example, who had sexual relationships without being married," he said. "They stoned to death a couple, unmarried, who had a child. They amputated several people accused of theft without any trial. They destroyed cultural buildings."

The group says another problem is that Islamic armed groups are intermingled with civilians in the north, a development that puts civilians at risk during French bombing raids.

The ICC says based on information gathered to date, its investigation will focus on alleged crimes committed in three northern regions of Mali.