The Ayaba Cho Affair: Why ICC Can Only Get Involved In An Affair Concerning Cameroon, With Authorization By UN Security Council

The International Criminal Court, ICC, is once more back as a topic on the table of public debate and discussion in Cameroon, following the arrest and detention of the leader of the Ambazonia Defense Forces, ADF, and AGoCV ,  Dr  Ayaba Cho Lucas, on September 25, 2024. He was arrested in Oslo, the Kingdom of Norway, where he has been a resident for many years, and charged in the Oslo District Court for,  Incitement To Crimes Against Humanity, Committed in Cameroon, and placed on pre-trial detention.

The ADF is one of the armed separatist groups fighting against Government Forces in the two Anglophone regions (Northwest and Southwest Regions), in the Republic of Cameroon.  Ayaba Cho was arrested in connection to the several atrocities allegedly committed by the ADF that he commands, against the civilian population, in the ongoing conflict in the two Anglophone regions. The conflict is an escalation of the Anglophone Crisis that sparked off in 2016.

Since the arrest of Ayaba Cho on September 25, there has been a running debate on both the social and traditional media, as to whether he could instead be sent to face trial at the International Criminal Court at The Hague, especially as the charge against him is crimes against humanity, which is one of the two specialties of the ICC, the other one being war crimes.

Barrister Nsahlai Files Complaint With The ICC

Another reason that has brought back ICC as a topic on the public debate and discussion table in Cameroon, is that US based Barrister Emmanuel Nsahlai, who filed the complaint with the judiciary in Norway against  the Norway based Ayaba Cho , had also filed a similar complaint  against Ayaba Cho  with  the ICC. He notified the Royal Norwegian Embassy in Washington, United State of America, in a correspondence dated March 3, 2024. Worthy of note that Barrister Emmanuel  Nsahlai  of the Nsahlai Law Firm , Los Angeles , California, USA,  is the lawyer of a number of civilian victims of the atrocities allegedly committed by ADF under the command of Ayaba Cho, in the ongoing conflict in the Northwest and Southwest Regions of Cameroon.

It should be noted that the Norwegian Embassy in Washington, USA, in a response to Barrister Nsahlai’s correspondence, wrote:

“Reference is made to your letter dated 3 March, 2024 to the Royal Norwegian Embassy in Washington, regarding a complaint filed with the International Criminal Court.

Your requests are duly noted. Please be informed that Norway signed the Rome Statute on 28 August 1998, and deposited its instrument of ratification of the Rome Statute on 16 February 2000. The Rome Statute is implemented in the Norwegian legislation. Norway is committed to fight impunity of perpetrators of the most serious crimes that affect the international community as a whole, and Norway cooperates closely with the ICC”.

The above except of the correspondence, also in a way provides ideas of the right responses to three questions that are being raised in the public debate and discussion about the ICC.  There is the question of the membership of ICC. Secondly, there is the question as to whether ICC can take over the Ayaba Cho Affair, or better still, whether he can be sent to ICC. Thirdly there is the question as to why the Norwegian judiciary is treating the charge against Ayaba Cho as a very issue, to the point of rejecting the option for bail, and insisting that he remains in pre-trial detention.

The Creation Of The ICC

Though there is often much talk about international institution, the International Criminal Court is not really an old institution. The ICC was created in 1998 in the Italian capital, Rome.  It should be noted that a total of 60 countries that are members of the UN, were required to sign the treaty for the creation of ICC.  Interestingly enough, Cameroon was among the 60 countries that signed what became known as the Rome Treaty, to create the ICC. It was called the Rome Treaty simply because the international meetings to create the ICC held in Rome, the capital of Italy. This is important to point out, because there are many Cameroonians that when they hear the name, Rome, they link it to the Catholic Church or the Vatican, whereas it is also the capital of Italy.

Meanwhile, after the creation of the ICC in 1998, with the signing of the Rome Treaty, then follow the call to deposit the instrument of the ratification of the Statute of the ICC. Like all international treaties, it needed that countries should independently ratify the instrument of the Rome Statute, to become member States of the ICC, or better still to become State Parties to the Rome Statute of the ICC.

The ratification of the instrument of the Rome Statute of the ICC by States, started the following year after the creation of the international Criminal Court. That is 1999. It was of course not surprising that Italy was among the countries that ratified the Rome Statute of the ICC in that 1999. Interestingly enough, an African country, Senegal, was among the countries that ratified the Rome Statute of the ICC in 1999.

The following year, 2000, six African countries came onboard the train by ratifying the instrument of the Rome Statute of the ICC. They included Botswana, Lesotho, Mali, Sierra Leone, South Africa and one of Cameroon’s neighbours, Gabon.  A total of 30 African countries ratified the Rome Statue within the first 10 years, that is, from 1999 – 2009. Today almost all African countries, South of the Sahara, have ratified the Rome Statute.

But as for Cameroon, the Biya government after signing the Rome for the ICC to be created, the Biya Government has persistently failed to deposit the instrument of ratification, to ratify the Rome Statute.   So till date, THE REPUBLIC OF CAMEROON IS NOT A MEMBER OF THE INTERNATIONAL CRIMINAL COURT.  Cameroon is not a State Party to the Rome Statute of the International Criminal Court.

  Cameroon Gov’t Cannot Report Any Matter To ICC

As a result of the failure by Cameroon to deposit its instrument of ratification of the Rome Statute of the ICC, even the Cameroon Government cannot report any matter to the ICC.  So even if for example the Cameroon Government today identifies some foreign money bags or groups as being the sponsors of the terrorist group, Boko Harm, that is slaughtering Cameroonians, looting and destroying properties in the Far North Region of the country; which are acts that constitute crimes against humanity, the Government cannot report the matter to the ICC since the country is not a member of the court.

Cameroon not having ratified the Rome Statute of the ICC also means that the ICC cannot take a decision or an initiative to intervene in Cameroon.

It is the same thing with the atrocities being committed by both sides in the ongoing conflict in the Northwest and Southwest Regions.   ICC cannot on its own decide to take up the Ayaba Cho Affair for example, though it has to do with crimes against humanity.  Barrister Emanuel Nsahlai certainly did not receive a positive response when he wrote to the ICC. Even though Ayaba Cho is based in Norway, the crimes he allegedly incited, took places in Cameroon.  ICC often sends investigators to the field, to check the veracity of a complaint of crimes against humanity or war crimes filed with the court.  But in a case like Cameroon which is not a member of the ICC, the court cannot send investigators to the country.

So the ICC cannot on its own open any investigation on alleged crimes against humanity or an alleged war crime committed in Cameroon. ICC cannot also ask Cameroon to arrest and handover anybody living or hiding in Cameroon. ICC cannot also ask the Cameroon Government to arrest a foreign personality, on a visit to Cameroon, that the court has issued a warrant for his or her arrest. Cameroon also cannot file a complaint with the ICC.

However ICC Can Still Intervene In Cameroon

Meanwhile, it is important to note that while International Criminal Court cannot on its own take the decision to intervene in a country like Cameroon that has not ratified the Rome Statute of the court, there is however a possibility by which it can open investigation in a country like Cameroon that has not ratified its Statute.  This can happen with the adoption of a resolution by the United Nations.   The United Nations Security Council, UNSC, to be precise, has the power to adopt a resolution to authorize the ICC to intervene in a State that has not ratified the Rome Statute of the court.

An example of such a case happened in 2011 concerning Libya, a State that was not a party to the Rome Statute of the ICC, and thus not a member county of the ICC.  The UN Security Council, UNSC, on February 26, 2011 adopted Resolution 1970 (2011) that referred the situation in Libya at that time, to the ICC.   On March 3, 2011, the ICC Prosecutor then, announced that the court was opening a formal investigation into the situation in Libya.

Veto Power In The UN Security Council

It should however be noted that the Libyan case was only the second time ever in the history of the UN Security Council to adopt such a resolution.  Thus such a situation is rare. It is not easy to get such a resolution adopted by the UN Security Council, where some members have veto power as well as opposing interests.  For example despite the atrocities that Israeli military often commits in neighbouring Palestine like with the ongoing conflict that has seen the dead of over 40,000 Palestinian civilians,  it is very difficult for the UN Security Council to adopt a resolution  just to only condemn Israel for the atrocious acts, because of the US veto. It will for example be very difficult, if not impossible to drag the Cameroon Government of Paul Biya to the ICC through the UN Security Council, when friendly countries like France, Russia and China, have veto power.

 A Cameroonian Cannot Judge At ICC

Meanwhile there quite a number of things that Cameroon and its citizens are losing because of the country’s non- ratification of the Rome Statute of the ICC. For example a Cameroonian cannot be employed by the ICC, especially to a top post like judge, because the country is not a party to the Rome Statute of the court, and thus is not a member country of the international court.  That was why for example Cameroonian born legal expert, Prof Maurice Kamto, missed a job at the ICC.  His CV was highly appreciated, but he was told that his country, Cameroon, was not a member of the ICC, and so a Cameroonian could not be employed at the top post the ICC.

  Cameroon And Equatorial Guinea

As regard the Central African Sub – Region, it is so ignominious that Cameroon is one of the only two countries in the sub –region that has till date been running away from ratifying the Rome Statute of the ICC.  On the other hand, it is not a surprise that the other country is Equatorial Guinea, whose President , Teodoro Obiang Nguema Mbasogo,  has been in power since 1979, and is the longest serving President in the world. President Paul Biya of Cameroon closely follows, having being power since 1982.

Worthy of note that Gabon ratified the Rome Statute of  the ICC on September 20, 2000, the Central African Republic (CAR) ratified the Rome Statute on October 3, 2001, Congo Brazzaville ratified it on May 3, 2004, and Chad did it on November 1, 2006.