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Controversy brews over ‘second term’ for Kaba as ICC political body’s boss

Tuesday July 04 2017
kaba

Senegalese Justice minister Sidiki Kaba was elected in 2015 as president of the Assembly of the States Parties to the International Criminal Court. PHOTO | FILE

A major controversy is brewing behind the scenes in The Hague over whether Sidiki Kaba, the Senegalese Justice Minister, should serve an unprecedented second term as president of the Assembly of the States Parties (ASP) to the International Criminal Court.

Several diplomats have pointed to the ongoing African Union summit in Addis Ababa as the time and place where the issue of a possible second term for Kaba should be resolved, but others are vehemently opposed to the idea.

AU summits, like the ASP, can be occasions of controversy around the ICC. Previously, some states tried to use the AU to push for a collective withdrawal of African states from the ICC.

An e-mail enquiry to Kaba’s office about his possible candidacy had not received a response by the time of going to press.

Although the established tradition since the Rome Statute — which created the ICC — came into force in 2002 is for a single term, the Treaty and ASP rules are silent on the possibility of a second term.

The proposal for a second Kaba term has been launched by a few states, but envoys for and against the idea declined to speak on the record, citing the sensitivity of diplomatic relations.

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During the first two years of his tenure after his election in New York in 2015, Kaba was often criticised for not being available enough; for running away from ASP meetings for business in Dakar; and for not fulfilling the oversight function over the organs of the court properly.

“ReVision”

Some African ambassadors to The Hague criticise him for not caring about Africans dismissed during the “ReVision” project that restructured the ICC registry.

Perceptions changed dramatically during last year’s ASP session in The Hague, when many feared that the announced withdrawal of Burundi, the Gambia and South Africa from the ICC would create a momentum; and that other African states would follow, leading to a “mass withdrawal.”

READ: Claims of ICC bias and double standards at state parties meet

Kaba kick-started dialogue to rebuild trust between African states on the one hand and the ICC organs and European states on the other.

That relationship had been strained by a number of conflicts over the years, some linked to the Kenyan cases — in which the country’s current President Uhuru Kenyatta and his deputy William Ruto had been accused of crimes against humanity linked to the 2007/8 general election — as well as the earlier indictment of Sudanese President Omar al Bashir.

Kenya, South Africa cases

President Uhuru Kenyatta and his deputy William Ruto argued that their daily presence in The Hague during trial, as prescribed by the Rome Statute, should not be required because of their official duties back home.

There were also issues about recanted evidence — a matter related to witness interference that posed a big problem for the Office of the Prosecutor in the Kenya cases.

More recently, in 2015, South Africa got into trouble with the ICC after it failed to arrest al Bashir when he attended an AU summit in Johannesburg.

Confronted with the Kenyan request for “leave of absence” for political leaders, European diplomats argued that “the rules of the game should not be changed while the game has already started”.

Civil society representatives also found it inappropriate that the ASP, the political body within the Rome Statute system, intervened while an issue was subjudice.

European diplomats were also critical of African demands to exempt sitting heads of state from the ICC’s jurisdiction. Plans to give criminal jurisdiction to the African Court on Human and Peoples’ Rights were sometimes seen as an attempt to shield African leaders from prosecution at the ICC.

For Kaba, one principle is not negotiable — a fundamental principle that all state parties to the Rome Statute have subscribed to: There is no immunity for the highest political and military leaders.

'Selfish issues'

Some European diplomats believed the Africans made the ASP lose a lot of time with their “selfish” issues. On the other hand, many Africans felt that their continent was “targeted” by the ICC as all trials till now have placed African suspects in the dock.

Many Africans feel “not listened to and humiliated” by the ICC, which they perceive as “discriminatory and serving up selective justice,” Kaba told Journalists For Justice in an interview last year. “Many Africans perceive the ICC as justice by the white,” said Kaba.

The atmosphere needed to be improved, among other things, through a special session on AU-ICC relations at last year’s ASP session where frank discussions took place during a meeting from which the media were excluded at the very last moment. After that, quiet diplomacy was adopted and continued.

READ: 'Don't go!' ICC officials appeal to African defectors

Kaba created a multilateral “dialogue committee” within the ASP to this end, and encouraged states supporting the Court to use all their influence in bilateral contacts.

Since last year, the Gambia and South Africa have retracted their planned withdrawal — Gambia following a change of guard through peaceful presidential elections and South Africa after domestic legal proceedings.

One Hague-based diplomat said: “Kaba has done a lot, a lot, a lot, through patient talking, the African way, without showing off. He should be allowed to complete this process to avoid getting the court into confusion” again. But another diplomat, an ambassador of an African country, said: “Kaba has done nothing for Africa and he is the worst president the ASP ever had.”

France seeking influence?

One angry ambassador suspects France of “being behind this” because Paris wants to secure its influence at the ICC.

Kaba has walked a diplomatic tightrope in defusing tensions in ICC-AU relations, especially given his previous role as a former President of the Fédération internationale des ligues des droits de l’homme, which led some to expect him to take a more public pro-ICC stance.

Although Kaba released a statement in 2015 urging states to fulfil their obligations around the time President al Bashir was visiting South Africa, he did not offer any visible support when the ICC Prosecutor issued a statement calling for the arrest of Sudan’s head of state while attending the inauguration of Ugandan President Yoweri Museveni in 2016.

As recently as March 2017, his failure to speak out when President al Bashir attended the Arab League Summit in Jordan, a state party to the ICC, meant that the arrest warrant in force against him did not occupy the attention of state parties.

'Came late, left early'

Kaba, who speaks flawless French and never converses in English, confounded friend and foe by insisting on the presence of a translator in every meeting he held with state parties. The presence of an advisor, who acted as a translator even in highly confidential bilateral meetings frustrated any attempts to cut high-level personal deals.

A civil society leader in Africa said Kaba, “Unlike his predecessors, came late and left early to the ASP in 2016,” and in 2015, he arrived late for the meeting and appeared pressed for time.

Kaba has retained his ministerial position even after election as ASP president, raising questions about his availability and commitment. There are additional anxieties about France’s influence and growing resentment of small states wielding undue influence on the international stage.

The Senegalese are considered a mafia that takes up strategic international positions to push the interests of the French. This perception reportedly undermined the candidacy of Senegal’s Abdoulaye Bathily for the African Union chairmanship, which went to Chad’s Moussa Mahamat Faki.

“He has done nothing so outstanding as to warrant a second term,” the civil society leader added.

Africa-ICC relations

Kaba took over as ASP president pledging to prioritise relations between Africa and the ICC, co-operation with the court, complementarity, and universality of the Rome Statute. Since his ascension to the ASP presidency, only Palestine and El Salvador have ratified the Rome Statute.

A second term at the ASP presidency would be unprecedented. Until now, the position has been rotating among the UN regional groups: ASP presidents have come from Asia, Latin America, Western Europe, Eastern Europe and Africa.

Now it would be Asia’s turn again, and the Asian member states have unanimously proposed a veteran of international criminal justice: Kwon O-gon of South Korea, who has been a judge at the International Criminal Tribunal for the former Yugoslavia for many years, sitting on high-profile trials, like the case of the former president of Serbia, Slobodan Milosevic.

Kwon would be the first ASP president with years of practice at international criminal courts and tribunals. He has the reputation of being committed to the cause of international criminal justice and is conscientious on facts and law.

The Bureau of the ASP has not decided yet whether to formally endorse the Asian proposal and to recommend Kwon’s election to the plenary in December. Some diplomats argue, though not doubting Kwon’s capacities, that Kaba would be better placed to bring the healing process between AU and ICC to a good end.

“We need this Court,” Kaba told Journalists For Justice last year.

Thomas Verfuss and Rosemary Tollo work for Journalists for Justice, which promotes balanced discourses on international criminal justice.

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