Thursday, July 31, 2014

Africa: What will Africa make of its opportunity to lead the ICC?

Source: ISS
What will Africa make of its opportunity to lead the ICC?

Amid the debate on the increasingly tenuous relationship between the African Union (AU) and the International Criminal Court (ICC), 2014 presents a rare opportunity for Africa to take leadership of the main bodies established by the Rome Statute of the ICC.

Already, the Chief Prosecutor of the ICC, Fatou Bensouda, is Gambian. It is possible that ICC judge and First Vice-President of the Court, Sanji Monageng of Botswana, could be elected as the Court’s president in 2015. If an African is elected as president of the Assembly of States Parties (ASP) in December 2014, this would give Africans their best opportunity yet to change the perception of the ICC as ‘anti-Africa’.

Most individuals at the ICC serve in their personal capacity and do not represent their states. However, African leadership in ICC institutions could go a long way in fighting the perception that Africa is a victim of ICC imperialism. The presidency of the ASP is an overtly political office, and the president is directly accountable to his or her state and his or her regional grouping. It is thus no surprise that all presidents of the ASP have at the same time held ambassadorial positions of their respective countries in New York, and that the presidency rotates between different regional groups.

The presidency has previously been held by Prince Zeid Ra’ad Zeid Al Hussein of Jordan in the Middle East (who will soon assume the position of High Commissioner for Human Rights), Bruno Stagne Urgato of Costa Rica in Latin America, Christian Wenaweser of Liechtenstein, a member of the Western states group, and currently by Tiina Intelmann of Estonia.

Since the presidency rotates, the next president will now have to come from Africa. Politically, the only circumstance under which the president will not come from Africa is if all three candidates withdrew, and no other African candidate made him or herself available.

Given the political significance of the leadership position, it is important that Africa gets its selection right. There are currently three African candidates for the position, namely Athalia Molokomme of Botswana, Sidiki Kaba of Senegal and Vandi Chidi Minah of Sierra Leone. The normal practice is for the regional group to present a consensus candidate for the election, by acclamation, to the ASP.

Although the ASP elects the president, other regional groups are unlikely to oppose a candidate that enjoys consensus support of African states. Consensus within the African group is not likely to happen before the end of September. If consensus fails, this increases the likelihood of a potentially divisive vote at the ASP and the possibility for other regional groups to determine, based on their own political interests, the next (African) president of the ASP.

Likewise, a controversial candidate – for instance, someone who has previously made disparaging remarks against the ICC – could compel other groups to challenge a consensus candidate presented by Africa.

The qualities required for an ASP president are not listed in the Rome Statute. However, a few desired skills can be surmised from the functions of the presidency, as provided in the Rome Statute, and as performed by previous presidents over the past 12 years.

The president should have sound knowledge of the Rome Statute system and all its constituent documents, and must be able to provide diplomatic support for the Court, including in relation to non-cooperation. Should the AU adopt further non-cooperation decisions, or if an African state engages in acts of non-cooperation, the ASP president would have the responsibility of intervening on behalf of the ICC.

The president should also have the ability to lead the ASP and its bureau by providing guidance and facilitating consensus on complex issues. Very often, strong diplomatic skills are required. Lastly, the president must be aware of the various role players, their interests and policy positions.

Molokomme, who holds a doctorate from Leiden and master’s degree from Yale, is currently Botswana’s Attorney General. She has worked closely on ICC issues since 2009 and, together with the other candidate, Vandi Chidi Minah, has played a key leadership role in Africa’s participation during the ICC Review Conference in Kampala.

She has also participated in AU processes leading up to recent decisions on the ICC. Those who challenge her candidacy may base this on the perception that her views, and those of her government, are anti-African when it comes to the ICC. It will be recalled that Botswana has been the single most vocal supporter of the ICC within the AU; and the loudest critic of the AU decisions.

Vandi Chidi Minah, who holds a master’s degree from London School of Economics, is currently the permanent representative of Sierra Leone to the United Nations. He was previously the minister of transport in the government of Sierra Leone, and before that the deputy minister of foreign affairs.

Sierra Leone is currently the chair of the Committee of Ten (C10) of the AU states charged with leading Africa’s bid for the reform of the UN Security Council. This is a particularly burdensome task for the permanent representative of Sierra Leone in New York. Whether Minah would be able to lead the C10 and the ASP at the same time is an important question.

Sidiki Kaba, who holds an LLM degree from Dakar, is currently Minister of Justice and Attorney General in Senegal. Kaba also headed the Senegalese delegation to the Rome Conference in 1998, and he served as the chairman of the International Federation of Human Rights. If elected, Kaba would be the first francophone president of the ASP. An important consideration in Kaba’s candidature is whether he would relinquish his position as Minister of Justice in favour of the ASP presidency. Whether an individual could effectively manage the functions of both offices is a significant consideration.

Although Kaba was endorsed by the AU Summit in July, experience shows that AU endorsement is never decisive. It appears that notwithstanding the endorsement, consultations in New York are ongoing.

One striking feature of all candidates is that they are all high ranking. This shows the importance that African states parties attach to the ICC. It could also suggest a desire by African states to exercise greater political control over the ICC.

The individual candidates, however, have over the years showed leadership and independence – and this should certainly make the outcome consultations more palatable. There is a responsibility on African states parties to ensure that their participation in the facilitation process (and election, if necessary) is directed at securing a successful presidency, taking into account the competencies, skills and circumstances of the candidates.

The presidency of the ASP provides an opportunity for African leadership within the ICC. This responsibility begins with the process leading up to the election of the new president. It is hoped that the election of the new ASP president would further enhance the space for dialogue, not only between the ICC and the AU, but also globally. In addition, the ASP president could help to promote further cooperation towards resolving various challenges in international criminal justice.

Dire Tladi, Consultant, Transnational Threats and International Crime Division, ISS Pretoria