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The International Criminal Court is struggling to justify itself amid accusations of bias against Africa

By the Economists

 

EXPECT righteous indignation, laced with racial animosity, at the week-long annual deliberations of the International Criminal Court (ICC) that kick off in New York on December 8th. A growing number of African leaders say they have lost faith in the court because all those it is currently trying are African. Some blame a “cabal” of wicked Western powers. A few have even threatened to walk away.

They are unlikely to go so far. But if they did, it would badly weaken the court’s raison d’être, which is to strip impunity from those who commit war crimes, genocide and crimes against humanity. Irrespective of charges of anti-African bias, detractors say it has not repaid the effort of creating it 12 years ago, or the cost of running it. At next week’s meeting its administrators will ask for a budget for 2015 of €135.4m ($167m), 11% higher than this year’s figure. So far it has convicted just two villains, both Congolese warlords.

African leaders, anguished by the Rwandan genocide in 1994 and the unpunished evils of apartheid, were originally among those keenest on the ICC. Of the 139 countries that have signed its founding Rome statute, 34 are African. But Africa’s support began to waver in 2006, when the court looked into atrocities in Sudan’s Darfur region and, three years later, issued a warrant for the arrest of Sudan’s president, Omar al-Bashir, charging him with genocide, among other crimes.

The case against Uhuru Kenyatta, Kenya’s president, has resulted in support wobbling still more. Mr Kenyatta was accused, with others, of orchestrating post-election violence in 2007 which left at least 1,300 people dead and perhaps half a million homeless. His trial, years in preparation, has been postponed at the request of the chief prosecutor, Fatou Bensouda. Kenya’s government has been accused of failing to co-operate, allowing witnesses to be bribed and intimidated, and refusing to provide tax returns, bank statements and mobile-phone records which could support allegations that the president paid people to clobber followers of a rival party after the poll.

But on December 3rd the court’s judges told Ms Bensouda that unless she finds harder evidence within a week, she must drop the charges. Her request for an indefinite postponement is now unlikely to be granted. Nor, it seems, will a definitive finding of “non-compliance” be issued against the Kenyan government. The case has plainly dented the court’s credibility.

Still, South Africa and Nigeria have not wavered in their general support. Nor have African human-rights lobbies or lawyers’ groups. But Mr Kenyatta has stirred up an array of fellow African leaders, some of whom insist that sitting rulers should have immunity. He has dubbed the court a “toy of declining imperialist powers”, pointing jeeringly at Britain, which once locked up his late father Jomo, Kenya’s founding president. It “must unshackle itself from a pernicious group of countries that have hijacked its operational mandate” with an agenda that has been “shameless, disruptive and unrelenting”, says Kenya’s man at the UN.

The fact that all the cases being tried before the ICC are African is bound to lay it open to the charge of bias. “Kenya’s case has overshadowed everything,” says a Nordic diplomat involved in trying to make the court more credible and effective. “[The court’s] biggest challenge is how to get out of Africa,” says Guénaël Mettraux, a Swiss defence lawyer in several big cases.

But not all the court’s problems are African. The refusal of many of the world’s beefiest countries to sign up also damages its reputation. Although all of Europe and South America have joined, America, China, India and Russia have not—though Barack Obama is not as hostile as was his predecessor, George Bush.

Ms Bensouda and her colleagues are fighting back against the court’s critics. They point out that, although all eight sets of cases in progress are African, five were initiated by African governments themselves, and two (concerning Sudan and Libya) were referred to the court by the UN Security Council. The Kenyan cases were agreed to by Kenya’s government of the day, at the urging of the UN’s former head, Kofi Annan, a Ghanaian, who had mediated an end to Kenya’s post-election chaos. As for the charge that the court is run by white imperialists, its president is South Korean. The chief prosecutor is Gambian. The main director in her office is from Lesotho. And Sidiki Kaba, who is to be endorsed as president of the assembly of member countries that will gather on December 8th, is Senegal’s justice minister.

Several investigations are under way outside Africa, too. They include cases in Afghanistan, Colombia, Georgia and Honduras, as well as Iraq, where allegations against British soldiers are being examined with the co-operation of the British government. It seems increasingly likely that Palestine, thanks to its advance towards statehood within the UN, will refer Israel’s settlements on the West Bank and military actions in Gaza to the court—which could mean that Hamas, the Palestinian Islamist movement, also comes under scrutiny for firing rockets indiscriminately at Israeli civilians. And Ukraine, though not a signatory, has accepted the court’s jurisdiction to investigate crimes alleged to have been committed on its territory.

Tortoise beats hare

What the court most needs are patience and more realistic expectations. Ms Bensouda may provide both. Whereas her predecessor, Luis Moreno Ocampo, put the court on the map but was accused of rushing into cases too fast, she builds diplomatic bridges and gathers hard evidence before issuing warrants, now tallying around 30 since the court’s inception. “People never believed we’d get [Radovan] Karadzic,” says a judge on the special tribunal for former Yugoslavia which preceded the ICC (and has secured 74 convictions). The Bosnian Serb was caught and brought to The Hague 13 years after his indictment; the verdict against him is expected soon.

But the old argument between those who think justice should supersede peace and those who fret that an insistence on justice can impede peace is unresolved. The UN Security Council can ask the court to halt proceedings for a year, which can be extended, if it thinks peace negotiations may be ruined by a party being summoned to the dock. Talks between Colombia’s government and the FARC, a guerrilla group, are a case in point. And the ICC is a court of last resort. If a signatory state—for instance, Britain in the case of Iraq—is willing and able to bring its own people (including members of its government) to book, the court will step aside after a preliminary investigation.

The ICC may have been guilty of idealistic overreach in its first decade. Perhaps it was naive to expect the likes of Mr Kenyatta to co-operate by putting their own heads on the block. And ugly bargains between bloodstained leaders may be deemed necessary to end strife. “Justice does not lead, it follows,” writes Jack Snyder, a professor at Columbia University who has been skeptical about the ICC.

Nonetheless, the notion that no perpetrator of mass atrocities can count on perpetual impunity surely deserves a cheer. Special tribunals for Yugoslavia, Rwanda and Sierra Leone paved the way. As a work in progress, the ICC has been moving glacially—but in the right direction.

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