When the International Criminal Court (ICC) began operating a decade ago this July, controversy over its work should have been anticipated. After all, the court has an unprecedented authority to bring to trial government leaders and others allegedly responsible for the gravest crimes – genocide, war crimes and crimes against humanity.
Many governments in Africa, including South Africa, were active in the establishment of the ICC and became ICC members. But nowhere has the ICC’s work been more debated and criticised than in Africa.
Claims that the court unfairly targets Africans have abounded in the wake of ICC arrest warrants for President Omar al-Bashir of Sudan and the late Libyan leader Muammar Gaddafi when he was still in power. An increasing docket of African situations under ICC investigation has given fodder to the claims.
The critics often ignore the reality that most of the investigations before the ICC came about as a result of a request from an African government or a United Nations Security Council referral, and not at the initiative of the ICC prosecutor. The criticisms also ignore the thousands of African victims served by the court’s efforts – from Democratic Republic of Congo to Darfur to Kenya.
At the same time, the ICC’s operations have exposed significant challenges to seeing justice done for the worst crimes, especially in promoting accountability regardless of politics.
One major impediment is that some of the most powerful nations have not joined the court. Moreover, several of these – namely the United States, Russia, and China – have veto authority at the UN Security Council, the only body that can refer situations to the court if crimes are committed in countries that are not ICC members.
At the heart of this problem is the need for governments to promote justice consistently, not only when it is politically convenient. Crimes against humanity and war crimes being committed in Syria should be punished, for example. The Security Council would have to refer the situation to the court for investigation since Syria is not an ICC member, and has not asked the ICC to get involved. But China and Russia have thus far opposed strong Security Council action on Syria.
Governments need to press for more consistent application of the rule of law, especially by Security Council members. This is critical to ensure justice and to promote the legitimacy and credibility of all efforts for accountability.
But the ICC also needs increasing cooperation and support from countries. With all of its limitations, the ICC remains an essential alternative to impunity when domestic courts are unwilling or unable to prosecute the most serious crimes. It gives hope for justice when other avenues are closed and particularly when government leaders themselves are implicated.
Some African officials are pressing for a regional African Court that can prosecute genocide, war crimes, and crimes against humanity. As a practical matter, however, this initiative remains far off at best. There are also questions how such an effort could be adequately supported financially and insulated from the influence of government backers.
As the ICC begins its next ten years, now led by the former Gambian justice minister Fatou Bensouda, African member states of the ICC – more than half the continent – should raise their voices more consistently and strongly at African Union meetings and public debates to support the court. The new Malawian government took a very important step in June by indicating it could not host the African Union summit if it meant welcoming President al-Bashir onto its territory given that he is an ICC suspect for crimes in Darfur.
More governments should build on the Malawian precedent. They should join states such as Botswana and South Africa, which have more regularly signalled that efforts to undercut the ICC’s ability to take suspects into custody are not acceptable.
Nkosazana Dlamini-Zuma, the former South African Home Affairs Minister, who was elected as the new AU Commission Chair at the July African Union Summit, will be an important player. In her first public comments on the ICC, she stated the AU’s position to date vis-à-vis the court’s investigation in Darfur without expressing her views. Going forward, she will have many opportunities to positively influence the AU-ICC relationship. Enabling the ICC to open an AU liaison office, which has been supported by many African states, would be a valuable first step to enhance understanding between the two institutions. Ensuring the AU does not obstruct efforts to promote justice for the worst crimes should be a longer-term goal.
African media can also play an important role in painting a more accurate picture of the ICC. Human rights activists throughout the continent have repeatedly pounded on the doors of the African Union and national capitals on the need for stronger African backing for the court, but their efforts need more coverage and editorial support by Africa’s newspapers. The victims of grave abuses put themselves at risk by telling their stories. Describing the energy and bravery of the court’s African supporters is no less newsworthy than African leaders’ attacks on the court.
Finally, the ICC’s opponents should take a harder look at what they hope to gain by seeking to undercut the institution, as opposed to working to make it stronger and more effective. More and better justice – not access to impunity for abuse – is what is needed.
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