This week, the African Union (AU) will debate accountability for heads of state accused of genocide, war crimes and crimes against humanity. But instead of discussing how to bring such individuals to justice, it seems the AU’s debate will consider how to ensure some of the accused escape accountability, or at least avoid trial before the International Criminal Court (ICC).
The ICC is the world’s first permanent international criminal court. Since its inception in 2002, its cases have focused on African atrocities, of which there are an abundance. This African focus is not, however, entirely of the court’s own making.
There are three ways in which cases can come before the ICC, two of which are not in the control of the court. States can ask the ICC prosecutor to investigate a case, the prosecutor can initiate an investigation in a state that is a member of the ICC’s Rome Statute, or the United Nations (UN) Security Council can refer a case for investigation.
Despite the fact that most African cases before the ICC were referred by African states themselves, the court’s apparent focus on Africa has drawn the ire of African leaders and the AU. It has also raised legitimate concerns about the ICC’s commitment to seeking justice beyond Africa.
The AU’s relationship with the ICC first turned sour when, in 2008, the ICC prosecutor announced the court’s intention to seek an indictment of President Omar al-Bashir of Sudan for alleged genocide in Darfur. The relationship has hit rock bottom with the ICC’s recent efforts to hold Kenyan leaders responsible for crimes committed during Kenya’s postelection violence in 2007-08. That violence resulted in the killing of more than 1 100 people and the mass displacement of Kenyan citizens. In response, Kenya established a commission of inquiry to investigate and identify those responsible. Among others, then finance minister Uhuru Kenyatta and education minister William Ruto were implicated in the crimes.
The commission recommended that a local tribunal be established to deal with the charges against those who may bear responsibility. The Kenyan parliament failed to act on this recommendation, knowing that this would open the door for an ICC investigation. Kenya is a member of the ICC’s Rome Statute, the provisions of which allow the ICC to investigate crimes in a member state only when that state is unable or unwilling to do so itself. So, to be clear, Kenya itself paved the way for the ICC to carry out the prosecutions through its unwillingness to do the job at home.
Kenyatta and Ruto have since become president and deputy president of Kenya respectively. They find themselves facing a criminal prosecution at the ICC whilst shouldering the responsibility for running an important African country. With their ascension to their country’s leadership comes a dilemma for Kenya and the ICC, compounded by the Westgate terrorist attack in Nairobi last month, allowing Ruto (who was first to appear at the ICC) to return home during this time of crisis. With these developments, the ICC’s Kenya trial has in effect been put on ice.
And so we head towards the AU meeting in Addis Ababa at the end of this week. The meeting, scheduled during an extraordinary AU summit on the ICC, will include debate about African ICC states withdrawing from the Rome Statute. It follows efforts earlier this year by the AU at its May summit, at the initiative of Kenya and Uganda, to call for a referral of the ICC’s cases to a national mechanism in Kenya. That call was made despite the ICC’s judges rejecting the same request by the Kenyan government in 2011 due to a lack of genuine national investigations and prosecutions.
It is ironic and wrong, then that the debate should be pressured by Kenya when Kenya – and its supporters in the AU – appears to be intent on avoiding accountability for Kenyatta and Ruto. Their lack of appetite for ensuring justice in Kenya is matched only by their hunger to ensure that the ICC’s Kenya trial is undermined.
This is a trend that does Africa no honour. African leaders gathering in Addis Ababa should recall that public displays of justice are necessary to secure peace and to deter the commission of terror attacks such as those at the Westgate mall, or the masterminding of serious violence during elections.
Already Africans have failed themselves in southern Africa by collapsing the Southern African Development Community (SADC) Tribunal. The tribunal was shut down in August last year after a ruling handed down five years earlier on illegal land seizures that went against the Zimbabwean government. Zimbabwe refused to comply with the tribunal’s decision. After a protracted legal battle, the Zimbabwean government lobbied fellow SADC leaders to close the region’s only interstate mechanism for the protection of human rights and the rule of law.
The message to victims, investors and the world is that the continent’s leaders are allergic to institutions of accountability. That message is amplified if African leaders suggest withdrawing from the ICC. It was in establishing the AU that Africa decided that it would take action to protect people from atrocities. That commitment must not now be reversed. It may be expedient today to weaken the one institution that can deliver justice in Kenya or Darfur. But that expediency will come at a cost, not only to the dream of an Africa at peace with itself, but to stability and civility, which are the hallmarks of the rule of law.
It is worrying that South Africa’s government has not distanced itself from the AU’s efforts. On the contrary, President Jacob Zuma was reported last month to have urged the ICC prosecutor to compromise with Kenyan leaders and spare them the obligation of sitting through their trials. While Zuma has not declared South Africa’s official position, his remarks on the margins of the UN General Assembly were interpreted as being sympathetic to the Kenyatta-Ruto cause.
Zuma’s remarks are concerning because, up to now, South Africa has played a vital role in supporting the work of the ICC. South Africa led regional efforts to draft the Rome Statute, was the first African country to pass domestic legislation in line with Rome Statute provisions, has tasked specialised investigation and prosecution units with working on grave crimes, and has gone further than other African states by issuing an arrest warrant for al-Bashir should he enter the country. South Africa’s leadership in strengthening the ICC is needed now more than ever.
What the AU and South Africa must highlight is that the strongest disinfectant is sunlight. By trying those responsible, the world exposes the truth of the atrocities and deters future crimes – and helps to bring justice for the victims. Undermining the ICC’s trials ensures a failure of accountability. While powerful African elites may relish the notion of an accountability-free zone, such a notion would do further violence to the victims of the Westgate attack, the victims of the post-election violence and the victims of crimes against humanity and genocide in Darfur, Sudan and other African states.
These victims, all African, deserve justice. That will happen only by strengthening institutions of justice nationally and internationally. The ICC is central to this vision and must be strengthened to deliver justice everywhere. It should not be weakened by African withdrawals, which risk ensuring that it is unable to deliver justice anywhere.
This article was first published by Business Day.
Sivu Maqungo and Max du Plessis, Senior Research Consultants, Transnational Threats and International Crime Division ISS Pretoria
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