By Mary Kimani
The indictment by the International Criminal Court of Sudanese President Omar Al-Bashir for war crimes and crimes against humanity allegedly committed by government forces in Darfur has provoked a crisis in relations between the court and the African Union (AU). It has added further heat to an often angry debate about the court's role in Africa. Simmering unhappiness with the ICC flared into a public break on 14 July, when the AU announced that it would not cooperate with the ICC warrant for Mr. Bashir's arrest. The African leaders said they were unhappy with the "manner in which the prosecution against President Bashir has been conducted, the publicity-seeking approach of the ICC prosecutor" and the UN Security Council's refusal of the AU request to defer the indictment while peace efforts continued.
The indictment is the latest evidence, critics argue, that the ICC, which to date has brought cases solely against Africans, is placing undue emphasis on the continent. Supporters of the ICC worry that such arguments diminish the seriousness of the charges and point out that some of the loudest critics are other African leaders who fear they might one day face similar charges.
The dispute is a far cry from the welcome the court received when it was established. Chidi Anselm Odinkalu, head of the Africa justice programme of the non-governmental Open Society Institute, explains why many Africans initially embraced the court. "Most people in our continent are, like me, children of war, want and deprivation, caused mostly by bad government," he noted in an article posted online by the African publisher Pambazuka. "This is why most of us supported the establishment of the ICC. We believed the court would help to end high-level impunity for mass atrocities."
Focus on Africa
The warrant for the Sudanese president brought concerns about the court's Africa focus to a head. In February 2009, the African Union argued that a legal process would undermine ongoing regional peace efforts in which Mr. Bashir was an active participant. "The search for justice should be pursued in a way that does not impede or jeopardize efforts aimed at promoting lasting peace," AU leaders stated. They also reiterated their concern about a possible "misuse of indictments against African leaders."
Other responses were angrier. Jean Ping, the president of the AU Commission, told the French radio network RFI that the "ICC always targets ... Africans. Does it mean that you have nothing on Gaza? Does it mean you have nothing [on the] Caucasus? Does it mean that you have nothing on the militants in Colombia? There is nothing on Iraq? We are raising this type of question because we don't want a double standard." The ICC "has been put in place only for African countries, only for poor countries," charged Rwandan President Paul Kagame, whose rebel movement ended genocide in that country in 1994. "Every year that passes, I am proved right... Rwanda cannot be part of colonialism, slavery and imperialism."
Responding to charges that the court is "targeting" Africa, Sylvia Steiner, an ICC judge from Brazil, notes that three of the four cases currently before the court were referred by African governments themselves. The Security Council's decision to refer the case of Darfur, she adds, followed an investigation by a UN commission.
Weak judicial systems
Human rights lawyers Olympia Bekou and Sangeeta Shah, who have written extensively on the court, observe that there would be less need for the ICC to engage in Africa if the continent's governments did a better job of bringing to justice those responsible for atrocities. That "should be the ultimate goal of every state," they argue.
Solomon Dersso, a senior researcher with the South African-based Institute of Security Studies, argues that the ICC's focus on Africa is the product of weak national judicial systems incapable of prosecuting the powerful. While donors have invested millions of dollars supporting international tribunals, he notes, they have not given much support to Africa's domestic judicial systems. This has prevented Africa's courts from developing the ability to try such crimes, in turn making it harder for a culture of human rights and respect for the rule of law to take root.
However, Richard Goldstone, a former prosecutor of the international tribunals for Rwanda and Yugoslavia, acknowledges perceptions that the indictments are regionally skewed. In an article published by the International Bar Association, Mr. Goldstone said that "the ICC has a responsibility to ensure that there is balance in the investigation and prosecution of cases ... in other parts of the world....Where there is sufficient evidence," such investigations should "lead to timely prosecutions."
Fighting impunity
For the many victims of atrocities in Africa, such considerations are beside the point, notes Kofi Annan, the Ghanaian former UN Secretary-General. In a newspaper article in June he wrote that, "the African opponents of the international court argue that it is fixated on Africa because its four cases so far all concern alleged crimes against African victims. One must begin by asking why African leaders shouldn't celebrate this focus on African victims....Is the court's failure to date to answer the calls of victims outside of Africa really a reason to leave the calls of African victims unheeded?"
Despite the controversy, public support for the ICC still seems strong. More than 130 civil society and human rights groups from 30 African countries have called on their governments to rethink their opposition to the Bashir indictment, and 77 per cent of Kenyans and 71 per cent of Nigerians surveyed in a recent poll approved of it.
Rather than opposing the court's warrants, argues the Open Society's Mr. Odinkalu, the AU should improve coordination among African governments, the ICC and the UN to address Africa's concerns. More importantly, he argues, "the African Union must translate its rhetoric against impunity into action, showing that...it will not issue a free pass to those - big or small - who violate Africans."
