ICC must consider the security of war victims

At the conclusion of its Summit in Sirte, Libya, on July 1, 2009, the assembly of heads of state and government of the African Union (AU) decided that “AU member states shall not co-operate... in the arrest and surrender of President Omar al-Bashir of Sudan.”

In a press release issued two weeks later, on July 14, the organisation explained that this decision “bears testimony to the glaring reality that the situation in Darfur is too serious and complex an issue to be resolved without recourse to a harmonised approach to justice and peace, neither of which should be pursued at the expense of the other.”

This AU resolution responds to the decision of the judges of the International Criminal Court (ICC) in March 2009 to issue a warrant for the arrest of President Bashir in connection with alleged war crimes and crimes against humanity in Darfur, western Sudan. The AU’s decision has rightly been criticised on legal and policy grounds.

The AU Summit is not the place to decide issues about the ICC because 23 of the 53 members of the AU have not yet accepted the ICC and this decision is capable of giving the unintended impression that the AU tolerates impunity for mass atrocities in Africa.

hat it does, however, is provide an opportunity to acknowledge and confront the many challenges currently facing international justice in Africa.

THE GREATEST FEARS ABOUT THE role that international justice is playing in Africa arise not from crimes behind us but in connection with a mass atrocity that some informed people foresee and all must work to prevent — a disintegration of Sudan into a regional killing field.

I was born a refugee into the Nigerian civil war in which an estimated two million people were killed in 30 months. Most people in our continent are, like me, children of war, want, and deprivation caused mostly by bad government. Like the rest of the world, our needs are basic.

We desire a world in which our people, families and ourselves can harness our abilities in dignity, peace and justice under government that is for us and not against us.

In most of our countries, these basic expectations of citizenship are illusory. This is why most of us supported the establishment of the International Criminal Court (ICC). For us, justice for mass atrocities is intimately personal.

We believed the court would help to end high-level impunity for mass atrocities, enabling us to attain the best we are capable of.

Yet a little over five years since the Court received its first case from Uganda in 2003, the initial optimism from Africa that greeted it has been replaced by hardened scepticism from traditional opponents and, most worryingly, by fear among victims and host communities uncertain whether the court can help them.

THE ESTABLISHMENT OF THE ICC RE-presented a major breakthrough in international diplomacy: the creation of a mutually respectful consensus around the compelling idea of bringing to account those who bear the greatest responsibility for the worst crimes known to humanity.

But today mutual recrimination has replaced respectful dialogue, debates on the ICC often degenerate into epithets and supportive diplomacy is absent.

Criticism of the Court, no matter how constructive, risks being denounced as endorsing impunity; support for it, no matter how reasonable, is easily branded imperialism or its agent.

In authorising the arrest of Bashir, ICC judges agreed that he had a case to answer for his alleged role in war crimes and crimes against humanity committed in Darfur. But the execution of the warrant without an adequately managed transition could create a power vacuum in Khartoum, unleashing destabilising tremors beyond Sudan’s borders.