Above the Law: Cameroon’s faceoff with the International Criminal Court.

By Honoré A. NGAM* & edited by Innocent Chia
(honorengam@yahoo.com)

Cameroon has ratified most of the core international human rights treaties such as the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the African Charter on Human and Peoples’ Rights. Cameroon, like much of Africa actively participated in the deliberations and negotiations leading to the creation of the ICC and featured among the first countries to sign the Rome Statute on the International Criminal Court on the 17 July, 1998. Ironically, this early enthusiasm towards the ICC has been blighted by a prolonged reluctance to ratify the ICC statute earning Cameroon the status of an ‘ICC hesitant’ country.

In retrospect, the Rome Statute of the International Criminal Court was adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the 17 July 1998 and it entered into force on the 1 July 2002 following the 60th ratification. The court is a permanent institution with seat at The Hague, Netherlands and endowed with powers to exercise its jurisdiction over persons for the most serious crimes of international concern, to wit; the crime of genocide, crimes against humanity, war crimes and the crime of aggression. So far, the crime of aggression is yet to be defined and the conditions under which the court may exercise jurisdiction over the crime are yet to be laid out.

The adoption of the Rome Statute on the International Criminal Court on the 17 July, 1998 represents the acknowledgment of the emergence of international criminal justice as a core and inseparable principle of international law. Every society has an obligation to protect itself from the cult of violence and impunity. The international community has embraced this obligation by addressing the most serious crimes of concern to the said community through ad hoc tribunals and now the ICC.

Following the Nuremberg Trials in the wake of the Nazi atrocities of the 1930s and 1940s, the practice of imposing individual criminal responsibility for core crimes and criminal prosecutions in ad hoc tribunals and the permanent International Criminal Court has developed into a rapidly growing international criminal justice system.

The emergence of international criminal justice has significantly supplemented existing forms of human rights protection in boosting accountability mechanisms and ensuring universal recognition and respect for human rights. The creation of the ICC has significantly increased progress towards a new era of international criminal order where prosecution for international crimes has become a reality. Within the last ten years following its creation, the ICC has progressively emerged as a key actor in the maintenance of international peace and security.
As at 19th May, 2011, 115 countries had ratified the Rome Statute with about 31 state parties from the continent of Africa, making Africa the most widely represented region of the world at the ICC. 

Within the CEMAC region, only Cameroon and Equatorial Guinea are yet to ratify the ICC statute. Following Cameroon’s signature of the ICC statute, incumbent President Paul Biya signed a decree on the 4th December 2000 creating an inter-ministerial committee with mandate to prepare a draft ratification bill and to consider the domestication bill of the statute. On the 30 June 2001, this committee submitted a draft ratification bill to the Head of State and to the Speaker of the National Assembly. Further action is yet to be taken with regards to the ratification of the statute by Cameroon.

The factors that account for Cameroon’s volte-face from ICC justice may not be too difficult to discern. As a budding democracy with an ailing economy faced with serious challenges to execute concrete economic and democratic reforms, the country’s leadership may be keen to avoid criminal responsibility for possible human rights atrocities resulting from the brutal suppression of public demonstrations. For example, in the wake of the February 2008 unrests that resulted in so many deaths, no one was held accountable for the killings of armless civilians by the security forces that were deployed to quell the protests. Conversely, many civilians were arrested, tried and imprisoned across the country for less severe offences such as obstruction of the highway, non possession of national identity cards, destruction and stealing.
 
Given that the ICC focuses its attention mainly on high level officials who bear responsibility of core crimes of international concern, the Cameroon officials may be wary of ICC ratification that may potentially lead to ICC probes and prosecutions, should human rights atrocities be committed in the future. This wariness is further compounded by a common criticism that the ICC unfairly targets Africans, a criticism which has led to disputes between the African Union and the International criminal Court. This conflict gained prominence during the Sudan conflict following the issuance of an arrest warrant against Sudan’s president, Omar Al-Bashir. The African Union in this case, actually called on member states not to cooperate with the ICC with regards to the arrest and handover of the Sudanese president. This open defiance of the ICC by the AU in these circumstances might have significantly watered down the legitimacy of the ICC and support for it within the continent of Africa. The corollary of this effect would be to dissuade potential member states such as Cameroon from ratification.

At this juncture it is relevant to take a cursory look at the widespread notion that the ICC is biased against Africa as it only seems to focus on cases in Africa. This criticism mainly stems from the fact that all the seven situations presently before the court involve African states, namely, Central African Republic, DR Congo, Ivory Coast, Kenya, Libya, Sudan and Uganda. This has sparked a strongly held misconception that the ICC is biased against Africa.

 It is however important to point out that human rights atrocities and victimization of Africans have been rife across the continent. Within the last twenty years more armed conflicts have taken place in Africa than in any other continent. The quest for justice demands that the focus of the court should be the interest of victims and not the perpetrators, most of whom are well placed persons in society. Among the seven countries mentioned above, four of them, Central African Republic, DR Congo, Ivory Coast and Uganda requested ICC probes through self-referrals. In the case of Kenya, the ICC prosecutor, Luis Moreno-Ocampo sought a pre-trial chamber authorization for investigation into the 2007/2008 post election violence that resulted in the killings of over 1500 persons. This was after Kenya had been given ample time to avail herself of domestic mechanisms to hold those responsible for the post electoral violence and killings.  The prosecutor’s request was granted and this subsequently led to the ICC indictment of six high ranking personalities (the “Ocampo Six”) in Kenya. The cases of Sudan and Libya were referred to the ICC by the United Nations Security Council.

It is the case of Sudan that brought misgivings on the ICC’s mandate to the fore, especially from an African perspective. Despite the fact that Sudan has never been a state party of the ICC statute, the United Nations Security Council exercised its powers to forward the Darfur case to the ICC for investigations.

Germane at this juncture are the benefits of Cameroon’s accession to the statute. First and foremost, the establishment of the ICC reflects a strong resolve by the world community to stamp out impunity for the most serious crimes against mankind such as war crimes, crimes against humanity and genocide. In this effort, the ICC is a crucial court of last resort in bringing perpetrators of human rights atrocities to justice and at the same time deterring future occurrence of such atrocities. Therefore, acceding to the ICC Statute will enhance Cameroon’s commitment to the establishment of a strong human rights culture and the eradication of impunity for gross human rights violations.

Considering that at present, Cameroon is contemplating penal reforms and possible amendments of the Penal Code, ratification of the ICC Statute will provide a unique opportunity for Cameroon to upgrade its criminal justice system through the development of national capacity to address international crimes in domestic courts. It is noteworthy to mention here that under the Principle of Complementarity, the ICC merely supplements national criminal jurisdictions that have credible and independent judicial systems with capacity to address core international crimes that fall under the ICC’s ratione materiae competence. It does not assert primacy over national prosecutions. Rather, the ICC may only assume jurisdiction over cases where a state is unwilling or unable” to do so itself. For example it is only after Kenya failed to exercise domestic jurisdiction over those responsible for the December 2007 post electoral violence that the ICC probed into the Kenya situation.
It therefore follows that the ICC will likely refrain from assuming jurisdiction in a state that has a strong and credible domestic criminal justice system that has the willingness and capability to address core international crimes, especially those that fall within the competence of the ICC. The corollary of this principle of complementarity is that the Cameroon courts will enjoy local empowerment and significant national criminal justice reforms as a result of ratification and domestication of the ICC statute.

At the regional level, Cameroon is undoubtedly the giant of the CEMAC region and a key player on the continent of Africa on the social, economic and political pedestal. Ironically, every member state of the CEMAC region, with the exception of Equatorial Guinea and Cameroon, has ratified the treaty. About 30 African states are member states. Cameroon’s ratification of the ICC statute is therefore essential to boost the work of the court and lend more credence to its legitimacy and mandate. 

As a way forward, it is recommended that Cameroon should take positive steps towards the ratification and domestication of the statute. Undue delay in this regard only portrays Cameroon as a state seeking to eschew accountability and enjoy impunity in the event that gross human rights violations occur. Civil Society organizations, notably; human rights groups, political parties, the Cameroon Bar as well as rights activists and the media should place the clamour for Cameroon’s ratification of the Rome Statute as a priority on their agenda.

 *Barrister-At-Law, Executive Director, Cameroon Lawyers for Human Rights (CLHR).

Comments

[Mbang]

It is often a jigsaw puzzle comprehending why African states rush into some of these international organizations. Be it peer pressure, as in a neighboring state signing on, or pressure from the colonial master(s), their backpedaling in midstream is revealing.
Above all, it reveals that adherence to these organizations has nothing to do with the protection of the citizenry and everything to do with projecting and protecting the image and stature of the reigning elite.
With personality cults of gargantuan proportion, it is therefore no surprise that these heads of states, including Paul Biya of Cameroon, would ask their legal advisers to stall the process for as long as they are in power. After all, he would not want to be carried around in a cage like Mubarak of Egypt.
I wonder what is so difficult in respecting Presidential mandates and walking away at the end. It means fewer crimes committed during your tenure. But I guess the time tested proverb holds true - Power corrupts and absolute power corrupts absolutely.
I must thank the young barrister for this great writing and The Chia Report for publishing.

[Ntam Charles]

"First and foremost, the establishment of the ICC reflects a strong resolve by the world community to stamp out impunity for the most serious crimes against mankind such as war crimes, crimes against humanity and genocide." Under which of these categories does the savage killing of Gadhafi at a time when he was definitely no longer a danger to anyone falls? From every indication,and from the obviously false claims given by the NTC's as to how Gadhafi met his fate,the powers that be,have shown their unwillingness to determine and punish those who failed to show the world that they were any different from Gadhafi. Those who lynched the 69 year old man,had an opportunity to show Gadhafi and the the world that violence,and extra-judicial execution of suspects should not be the way to go. In lynching Gadhafi and his son who were already in captivity,the perpetrators acted just like the man they condemned and dreaded and precisely bc he acted like them. If the ICC wants to stand clean and upright,they should equally open up a file,to investigate and bring to justice,those who savagely killed the old man and his son just like they intended to do with Gadhafi and his son Saif. The NTC Claim that Gadhafi died from an apparently stray bullet is an open lie. We saw Gadhafi being tortured and shoved here and there in the midst of wild cries and punches. That scene on its own,is enough evidence that a crime was committed even if one were to go by the fallacious claim that he died from a stray bullet. My view is far from asserting that the international intervention in the Libyan crisis was wrong but rather a call for equitable justice. Until the ICC addresses all such leakages in its modus-operandi,countries like Cameroon may rightfully be reluctant to cooperate in fulfilling what is required of them to facilitate the smooth functioning of this organ.

Ntam Charles

[Nkwain Ngam]

I dont think that the ICC is biased against Africa per se. I think that Africans are just "softer targets". Thats a bit contradictory. But fact of the matter is that rich countries can always get away with Murder just like the rich continue perpetrate human rights abuses in Africa and never face the strong arm of the law. The solution is that citizens need to stand up more for themselves. Democracy is a violent affair, and thats the bottom line.

[Nkwain Ngam]

Follow up question: what are War Crimes? And who decides that a crime qualifies as a War Crime? Brazil has been complaining about Britain's involvement in the Falkands, Bush Jr certainly has to answer for his actions in Iraq, Afghanistan, etc and lets not even get started on the French! So like I said before, if you have got money, you can always get the law to side with you.