International Criminal Court – does Africa need it?

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Sudanese president Omar al-Bashir visited South Africa last week to attend the African Union (AU) summit. Since South Africa has ratified the International Criminal Court (ICC) treaty, they were obliged to arrest Bashir once he entered the country. African Union, on the other hand, would provide him diplomatic immunity. Therefore the South African justice system had a dilemma to deal with. Bashir was given a notice of not being allowed to leave South Africa until a court decision is made whether South Africa can arrest him, but in the meantime Bashir fled the country. The ANC-led South African government vocally opposed arrest of Bashir. Why would they protect Bashir, who is being accused of rather serious crimes against humanity dating from Darfur crisis? Most African countries are against ICC nowadays even if the court was formed with the noble idea of bringing justice for the victims of genocide, war crimes and crimes against humanity. All investigations by ICC have been in Africa (only preliminary investigations have taken place in other continents). This has led to the popular opinion that ICC has an anti-African agenda.

The International Criminal Court logo
The International Criminal Court logo

So far only one ICC case has led to a conviction, the imprisonment DRC rebels Germain Katanga and Thomas Lubanga Dyilo. Several others have been indicted by ICC. Bosco Ntaganda from DRC (with also a record in Rwanda) is being detained and waiting for his trial, he surrendered to ICC voluntarily despite denying charges against him. Former Ivorian president Laurent Gbagbo was handed over to ICC when his government was overthrown in 2011, but the trial has been postponed due to his health issues, it is now scheduled to commence on July 7, 2015. Former Libyan president Muammar Gaddafi was also sought by the ICC, but was killed when he was ousted in 2011. Joseph Kony of Lord’s Resistance Army in Uganda is under arrest warrant by ICC, but is still at large. It was Yoweri Museveni‘s Ugandan government that asked ICC to investigate the case in 2003, though Musewani has since turned his back to ICC.

Another notable case is the one investigating the 2007-2008 post-election violence in Kenya. Initially Kenya supported ICC in going ahead with the case. This changed overnight when ICC released their list of suspects, which included high-profile politicians Uhuru Kenyatta and William Ruto. Kenyan government started immediately a campaign to stop these cases and pull Kenya out of the ICC (still not materialised). A wider campaign having similar intentions within the African Union was also set up. Kenyatta was elected as the President of Kenya at the next elections in 2012 with Ruto as his running mate. It is widely seen that they gained support by anti-western sentiment which was fueled by ICC case. Kenyatta and Ruto would still appear under ICC court even after being elected to the power. Kenyatta was later acquitted, Ruto case is still ongoing but unlikely to result in conviction. The Kenyan case was based on limited and partly false and politically motivated evidence and has damaged the reputation of ICC in Africa.

Crimes against humanity and war crimes and are too common in Africa, few would disagree that, but ICC the right body to deal with these cases? Ideally they should be handled locally, but then there would be allegations that these cases are politically motivated. Often those accused are state leaders, who will cling to power until their death, so only an international court system could bring the justice (if they only were able to arrest the suspects). ICC could be seen as a neutral international body, but unfortunately many Africans don’t see it that way.

Maybe a better solution could be creating an “African Criminal Court”. This would probably gain more support than ICC does among Africans and their state leaders (apart from some long-standing leaders who have reason to be afraid of such court). The court should be strong and bold enough to go ahead investigating cases and bring suspects before court, otherwise it would be a failure.

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