Presiding ICC Judge Bertram Schmitt, Judge Péter Kovács, and Judge Raul Cano Pangalangan.

African Resolve over Gambia – Lessons for the Pacific?

Last month I was in Senegal representing the NZ branch of Parliamentarians for Global Action (PGA).  The conference focused on the International Criminal Court (ICC). The ICC has had its tribulations since its birth 15 years ago, but it still represents a major step forward in the long human drama of securing global peace and security through the rule of law.

The latest tribulation for the ICC is the distemper from Africa over a perceived bias held by the Court.  It is alleged, with some factual accuracy though less explanatory insight, that the Court’s investigations and trials come disproportionately from Africa. Some high-profile charges have galvanised particular opposition – two against heads of state (Sudan and Kenya). Four countries have announced withdrawal, and there is call for all African member states to do the same.

Many African countries, however, remain committed to the ideal of the Court – the independent and impartial application of the rule of law at the international level, applicable to individuals including leaders.  In this, Africa ranges alongside Europe and South America in its commitment to the rule of international law, leaving the major powers which refuse to join the ICC (US, China, Russia, and India) displaying a narrow and self-centred worldview.

Just as the PGA conference got underway in Senegal, crisis erupted in neighbouring Gambia.  The incumbent president had just refused to acknowledge defeat in the election. This snub at democratic legitimacy undermines the values proclaimed by the African Union (AU), the regional body which has enshrined considerable vision in its Constitutive Act of 2000.

I know the personal flaws that can afflict those for whom political power is the only lodestar.  In 1994, I led a PGA crisis-management delegation of eight MPs from around the world, into Burundi.  Tensions there were high, just months after the Rwanda genocide next door.  Things mattered. Perhaps the most eloquent, and influential, member of the parliamentarian delegation on that mission was Laurent Gbagbo, then the main opposition leader in Cȏte d’Ivoire.  He made such a positive difference to the situation there – a natural leader.

Sixteen years later and 10 years into his own presidency, Gbagbo refused to acknowledge his defeat in a presidential election and clung to power.  He is now in The Hague before the ICC. That is where he should be. I say that with personal sadness – I used to like the guy, and he could have been great.

Africans, however, lead the world in one critical area of global political thought – constitutional integrity. While African countries have generally respected one another’s territorial borders, they have been afflicted by a pattern of internal coups.  So, in a remarkably bold step, they enshrined, in the AU Constitutive Act and its 2002 Protocol, a provision empowering the AU and its regional force structures to intervene in a member state in the event of ‘grave circumstances, namely, war crimes, genocide, and crimes against humanity’ (art. 4.h); and to condemn and reject unconstitutional changes of government (art. 4.p).

The critical point here is that this is to be decided by majority vote at head-of-government-level.  No state has a veto. This provision – intervention by majority vote – is not enshrined in any other international body (like the United Nations) or regional body (e.g. the EU, OAS, ASEAN, or the Arab League). The Africans are leading the way.

Are they true to their word?  Well they are today. The sub-regional body, ECOWAS, called upon The Gambia’s incumbent president Yahya Jammeh to respect the electoral outcome and stand down.  Jammeh refused.

  • 16 December: ECOWAS decided at summit level to ‘use all necessary means to ensure the respect of the will of the people of The Gambia.’ Three days later the AU endorsed the decision of the sub-regional body. Jammeh still refused to stand down.
  • 13 January: an ECOWAS mediation mission met with Jammeh. Nothing changed.
  • 19 January: ECOWAS organised the swearing in of the legitimately-elected new president, Adama Barrow, in the Gambian embassy in Senegal. The same day, it intervened in The Gambia with a regional armed force to remove Jammeh if necessary and install Barrow.
  • The same day the UN Security Council endorsed the move, under article 52 of the UN Charter (SCR 2337).
  • 20 January: the Inter-Parliamentary Union endorsed the move, with its Secretary-General Martin Chungong, commenting: “My hope is that reason will prevail and that President Barrow will be able to return to The Gambia and begin the work he was elected to do by the Gambian people”. At the time of his swearing in, Mr Barrow was unable to return to attend the funeral of his son, aged 7, who had just been mauled to death by a dog.

This use of force to remove the illegitimate incumbent is both legal and politically legitimate. Jammeh came to power through a military coup in 1994, and has incited ethnic division ever since, most recently threatening to eliminate the entire Mandinka ethnic group. The UN Special Adviser on the Prevention of Genocide believes this constitutes possible incitement to commit mass atrocities. Jammeh has previously threatened to ‘slit the throats’ of all gay men in the country. His rule, illegal in the first instance, has not been pretty. His refusal to step down may be due to fear of criminal prosecution, perhaps by the ICC in The Hague. In a supreme irony, the ICC’s current chief prosecutor is a woman lawyer from – The Gambia.

The African vision has relevance for New Zealand and our own region. Imagine how regional politics would be looking today if the Pacific Islands Forum (PIF) had something comparable.  Fiji’s third coup in 2006 would not have succeeded.  The military commander, Frank Bainimarama, would not have remained in power through armed force and internal repression, and would not have politically stage-managed his way to a predetermined electoral outcome that other regional states have come to accept, thereby giving a muted blessing to more coups by other neighbouring countries. It is not just Fiji; the Solomon Islands aped the Fiji coup effort in 2000; and other countries such as Papua New Guinea and Tonga have so far avoided an outright coup but have experienced internal convulsions redolent of such acts.

There is of course a difference between Africa and the Pacific in political-cultural terms. The two military powers in the Pacific, Australia and New Zealand, are dominantly settlor states, arranged within the PIF alongside Polynesian, Micronesian and Melanesian neighbours. It would be unacceptably post-colonial to have them lead a military intervention.  Bainimarama now calls for a regional body without the Tasman cousins.

But Australia and New Zealand need not have to do it.  The use of force could have come from outside – from Asian, Latin America or African states, at the request of the Forum, through the UN Security Council.  The critical issue is the political predisposition, within the regional or sub-regional body, that something is not to be tolerated since it violates a peremptory norm.  The Pacific could do the same. I wrote on this in two books a few years back: Regional Security and Global Governance (VUB, Brussels; 2006); and Models of Regional Governance for the Pacific (Canterbury UP, Christchurch; 2008).

Something perhaps for the next government in New Zealand to think about – along with a Pacific peace and security capability, through a regional crisis management unit and a peacekeeping force.

Post script: shortly after this blog was published, it looks like Jammeh has agreed to step down as Gambian president.