Is The Hague being used only against continent’s leaders?

The decision by the International Criminal Court to issue an arrest warrant against Sudanese President Omar al-Bashir has heightened the debate over whether the global body is targeting African leaders.

A number of Africans are either in the hands of the ICC or have been indicted for war crimes ranging from genocide to rape and recruitment of young children into their rebel outfits.

Former Liberian president Charles Taylor, former Congo rebel leaders Jean Pierre Bemba, Germain Katanga, Thomas Lubanga and Mathieu Ngudjolo Chui are already in ICC custody.
Uganda’s Lord’s Resistance Army leader Joseph Kony and Congolese rebels Laurent Nkunda, Bosco Ntaganda have been indicted by the court for war crimes.

In Kenya, politicians suspected of funding the 2007 post-election violence are headed to The Hague after parliament voted last week against the creation of a local tribunal.

At the recent African Union Summit in Addis Ababa, there was heated debate over whether the ICC is targeting African leaders and whether the continental body has the power to influence the court or is shielding African leaders who commit atrocities.

The chairman of the AU Commission, Jean Ping, said, “The AU will not accept double standards, even though we are fighting impunity in Africa and those who are guilty must face justice. We have asked the Sudan government to apply justice, but international law should not be used as a stick in the hands of the powerful to hit the weak.”

Sudanese Foreign Minister Deng Alor Kuol said his government agrees with the AU decision to ask for the suspension of the arrest warrant of his president for 12 months for the sake of peace in Sudan.

“The AU understands that the ICC is directly targeting Sudan. But we believe that it is better to give Sudan a chance to look at the problem of Darfur and other related issues,” he said.

In the Kenyan case, where the MPs believe that only The Hague that can provide justice to the victims of post-election violence, the question arises whether part of the trial can be conducted in The Hague while the other goes on in the country from which the alleged crimes were committed.

The experience of the Democratic Republic of Congo — which that has the highest number of nationals indicted by or in the hands of ICC — is that local trials have the potential of sparking fresh violence, while at the same time, full co-operation of the governments is a major factor in the success of the trials.

While Sudan has adamantly refused to co-operate with the ICC, Congo has been more than willing to do so, even handing over those who have been indicted.

The focus now is on how the Kenyan government is going to co-operate with the ICC, given that the government unsuccessfully fought for a local tribunal.

There have been strong arguments that local trials will provide a forum for victim participation and bring justice closer to the victims.

There is concern also that only the big fish will face trial, while their lieutenants who actually executed the killings and rape go scot-free.

But it was a different scenario for Congo suspects Germain Katanga and Mathieu Ngudjolo Chui when the possibility of holding part of the trial in the DRC was suggested.

A detailed feasibility study by the ICC identified a suitable location in Ituri and concluded that holding at least part of the trial was possible.

However, the Congolese government informed the court that the location identified was inappropriate, citing security reasons.

Katanga, the alleged former commander of the Patriotic Resistance Force in Ituri, surrendered and was transferred to the ICC custody in 2007, after the court issued a warrant of arrest.

Chui, former leader of the National Integrationist Front, was arrested by the Congolese authorities and transferred to the ICC in February 2008.

Both Katanga and Chui are being prosecuted for their roles in crimes allegedly committed during and after the joint attack on the village of Bogoro in 2003.

While Thomas Lubanga and Katanga were already in detention in the DRC prior to the ICC requests for their surrender to the court, Chui was a free man, who was involved in the disarmament and demobilisation process and himself a beneficiary of the amnesty offer.

His subsequent arrest and transfer to the ICC was the first arrest as a result of a request by the court.