'Unacceptable allegations'

In The Hague, the International Criminal Court's (ICC) member states are mulling over a change to the Rome Statute. The African Union (AU) would like to exclude incumbent leaders from the prosecution process. They say, sending sitting presidents to the dock in The Hague could endanger the peace and stability of the continent. Moreover, they accuse the Court of pursuing only African cases and ignoring injustice elsewhere. The argument has been reignited by the indictment of Kenya's President Uhuru Kenyatta and his deputy William Ruto, who have been accused of inciting the 2007 post-election violence in the east African country. Speaking to DW, the advisor to German Chancellor Angela Merkel on African affairs, Gunter Nooke, decisively rejects the AU accusations.

DW: Africans are accusing the International Criminal Court of, among other things, racism, neo-colonialism or playing Russian roulette with the stability of Africa, saying that the Court has so far only indicted Africans. Are you surprised by the intensity of these allegations?

Günter Nooke: I find this wording inappropriate. That the Ethiopian Prime Minister Hailemariam Desalegn, speaking at the AU summit in May 2013, spoke of 'racial persecution' is is no way acceptable. And it is of course inappropriate to say something like that when an independent court like the Court of Justice in The Hague is just doing its job. Perhaps people should consider more carefully which documents they sign. 34 African countries have signed and ratified the Rome Statute. When they did so, they knew that there were no exceptions, that heads of state can also fall under its jurisdiction. I believe the stability issue in Africa is something to be taken very seriously. But in the case of Kenya, it is not true that heads of state have been indicted by the tribunal. Before Kenyatta became president, he used the fact of his indictment in his campaigning. Then in spring 2013, he was elected president. Now we hear the argument that presidents should not be charged! You see, there is a contradiction in the African argument, and it is obvious that the president simply does not want the charges against him to be dealt with publicly.

In this matter Kenya has the backing of many African countries as well as the African Union. Has the dispute about the International Criminal Court become a North-South crisis, i.e. between Europe and Africa?

Of course we are concerned that a large number of African states are now considering ending their membership of the International Criminal Court and thus weakening this indispensable and very successful form of international criminal justice. The debate in The Hague is a real threat that could lead to developments in Africa that none of us want. I think we are all well advised not to use the Court as a political tool against Africa. But we should also not weaken it or dilute its statutes so that not all people are equal before the Court and heads of state, for example, are excluded.

How do you want to do that? Avoid aggravating the situation while not opting for uneasy compromises at the Court's expense?

The Federal Republic of Germany is one of the member states and it is currently taking part in the discussion together with more than 100 other member states in The Hague. I hope that the meeting is not being used to stir up hostility towards Africa but rather to defend the Court's principles and its independence. We can argue about many things: for example whether it would not be better for the trials to be referred back to Kenya or whether the tribunal is able to deal with this case in a fair manner. But the Court must never give in to political pressure. The argument against the African accusations must be: The more pressure is put on the Court, the less able it will be to move in the direction of the pressure, because it would then lay itself open to the charge of being a political court. If we want to return to a discussion of the real issues, and if the Africans stop heating up the debate further, then we could talk about the real problems concerning stability in Africa in connection with the Court.

Are you afraid that this emotional, heated dispute could have a negative impact on relations between these countries and Germany, especially in the field of development cooperation?

There already is some impact. We don't know, for example, if our embassies in Tanzania and Kenya can be reoccupied. We cannot establish a direct connection but of course we are very concerned that this can have an effect on diplomatic relations with Germany. I think it is clear that Germany is defending its interests and that we do not accept this kind of pressure, against the backdrop of good cooperation we have, especially in the development sector.

You are referring to the fact that, for some months now, Kenya and Tanzania have been deferring the accreditation of new German ambassadors. That also applies to diplomats from other countries that strongly back the International Criminal Court. Is it possible that Germany could use development cooperation and decisions about financial aid to apply pressure in this dispute?

This is not the time to hold up the tools we have. What is most important now is to make it clear that we have an interest in seeing African countries adhere to the international agreements which they have signed.

Günter Nooke advises German Chancellor Angela Merkel on African affairs

Interview: Max Borowski