An Africa-centred campaign to discredit the International Criminal Court (ICC) could have repercussions for a potential move to bring before the court the cases of Kenyans accused of orchestrating the 2008 post-election violence.
The strongest critics of the ICC argue that it is biased against Africa. Led by Libya, the critics depict the court as a tool of Western powers intent on exercising neo-colonial control over African states.
The ICC’s indictment of Sudanese leader Omar al-Bashir for war crimes in Darfur has been depicted as an egregious example of politically motivated persecution on the part of the Hague-based court.
President al-Bashir’s case was referred to the ICC by the United Nations Security Council, even though — as critics point out — the court’s jurisdiction is not recognised by three of the council’s five permanent members: China, Russia and the United States.
The charges against al-Bashir are disputed by some African leaders who contend that the conflict in Darfur does not warrant the unprecedented arrest warrant issued against a sitting head of state.
Rodolphe Adada, head of the joint African Union-United Nations mission in Darfur, told the Security Council in April that the death toll in Darfur now amounts to no more than 150 a month — compared to ICC chief prosecutor Luis Moreno-Ocampo’s contention that 5,000 people were dying each month from conflict-related causes in Darfur.
An official in the Barack Obama administration has also stoked doubts as to whether mass killings are currently occurring in Darfur.
J. Scott Gration, President Obama’s special envoy to Sudan, said last month that al-Bashir’s government is no longer engaging in a co-ordinated campaign of slaughter in Darfur.
A State Department official subsequently sought to clarify the Obama administration’s view, saying, “We continue to characterise the circumstances in Darfur as genocide.”
Critics of the court, including a few human rights advocates in the West, have singled out Moreno-Ocampo’s performance.
And that tactic may be proving at least partly successful.
A Washington Post report last week on the perception of the ICC in Africa noted, “Today, Moreno-Ocampo appears to be the one on trial, with even some of his early supporters questioning his prosecutorial strategy, his use of facts and his personal conduct.”
These challenges to the world’s first permanent tribunal on genocide, war crimes and crimes against humanity has prompted a concerted counter-attack by ICC defenders.
Writing last week in The New York Times, former UN secretary-general Kofi Annan defended the ICC against the claim that it is an instrument in a Western plot against Africa. Annan characterised that view as an “outcry against justice” that “demeans the yearning for human dignity that resides in every African heart.”
The attempt by a few African Union member-states to undercut the court’s legitimacy “represents a step backward in the battle against impunity,” Annan added.
Africans and people everywhere have supported creation of “a court to bring to justice anyone in a government hierarchy or military chain of command who was responsible” for atrocities, he wrote. “That principle would be applied without exception, whether to the lowliest soldier or the loftiest ruler.”
Annan’s defence of the ICC is particularly notable because of his insistence on ensuring that charges be brought against Kenyans said to have organised the killings that followed the disputed 2007 presidential election.
Annan has threatened to refer the names of accused ringleaders to the ICC in August unless Kenya sets up its own tribunal to hear their cases.
Annan’s warning to Kenya will probably not be weakened as a result of the campaign to discredit the ICC, says William Pace, director of the Coalition for the ICC. He predicts that moves within the African Union to undermine the court will not succeed.
Moreno-Ocampo himself, also writing last week in The New York Times, cited Kenya as an indicator of the court’s effectiveness.
He argued that the possibility of charging Kenyans at the Hague has spurred “discussions on accountability for crimes committed during the last elections. Impunity is no longer an option.”
Three African Nobel Prize laureates — Nigerian writer Wole Soyinka, South African peace advocate Desmond Tutu and Kenyan environmentalist Wangari Maathai — have also defended the ICC.
“We support the role of the International Criminal Court in bringing justice and accountability for the peoples of Sudan,” the three jointly declared last month.
Pace points out that 30 black African countries have ratified the treaty that authorises the court.
These countries, including Kenya, represent the largest regional bloc among the 109 nations that have formally recognised the ICC, Price adds.
The Libyan-led campaign against the court has been joined by Senegal, Djibouti and the Comoros islands as well as by Sudan. Richard Dicker, an analyst with Human Rights Watch, refers to their call for repudiation of the court as “an effort by a handful of countries to foist on others their regressive view that there should be no accountability for mass slaughter of civilians.”
Annan pointed out in his Times commentary that Uganda, the Democratic Republic of Congo and the Central African Republic each sought ICC intervention on the grounds that justice for atrocities could not be delivered by the countries themselves.
A total of 13 individuals from those countries, as well as from Sudan, have so far been charged by the ICC.
Pace argues that the indictment of Sudan’s leader for war crimes is not really what’s troubling the court’s African critics. “Many leaders aren’t worried about al-Bashir,” Pace suggests. “They’re worried about themselves.”
But Pace nonetheless views the Libyan-led assault on the ICC as the most serious threat to the court since the United States, under President George W. Bush, refused to endorse the treaty establishing the ICC.
President Obama has taken a less hostile stance toward the court, Pace notes.
The coalition leader adds, however, “I don’t think there is any likelihood” that the US will move to ratify the ICC treaty in the foreseeable future.