From Top: Jacob Zuma, Omar Al Bashir, Pierre Nkurunziza, Yahya Jammeh , Fatou Bensouda, Uhuru Kenyatta.
By Jonathan Power
Many African leaders have been angry for a number of years that the International Criminal Court and the affiliated Rwanda and Sierra Leone war crimes courts appear to have focused exclusively on alleged African war criminals – in Rwanda, Liberia, Sierra Leone, Congo, Ivory Coast, Uganda, Kenya and Somalia.
Last month the South African government announced its intention to withdraw from the ICC. Burundi said it had already made such a decision. Then, after those two, came Gambia and now observers are saying there may be others that will follow.
Yet over the years it is the African states themselves that have made most of the referrals to the ICC. An African woman is the Court’s chief prosecutor. Five of the 17 judges are African.
In the last few years there have been a number of self-referrals to the ICC by Uganda, the Democratic Republic of Congo, Cote d’Ivoire, Mali, Central African Republic (twice), the Comoros and, as recently as September, Gabon. They are countries that have been plagued by vicious, no-holds barred, insurgencies.
African governments were prompt in arresting suspect leaders of the genocide in Rwanda who had tried to hide away in nearby countries. African countries whilst complaining out of one side of their mouth have been out of the other side forcefully making use of the ICC for their own good purposes.
Today, if one looks at all the courts in the round, since the founding of the War Crimes Tribunal for ex-Yugoslavia in 1993 and then the creation of the international UN-supervised courts for East Timor and Cambodia, there have been a good number of ex-Yugoslavs, Cambodians, Indonesians, East Timorese tried and convicted. It is not just Africans.
Moreover, the ICC prosecutor is currently investigating war crimes in a number of other countries – Venezuela, Syria, Honduras, Georgia, Palestine and Iraq. The influential, Washington-based, Foreign Policy Magazine revealed yesterday that the ICC “is ready to initiate a full investigation of a range of possible war crimes and crimes against humanity in Afghanistan, including some by US personnel. The ICC move would mark the first time that a formal ICC investigation has scrutinized U.S. actions and sets up a possible collision with Washington.”
There is nothing to stop African countries referring an alleged atrocity crime to the ICC happening in some other part of the world. Why don’t they, for example, refer to the ICC the extra-judicial executions in the Philippines supposedly now being carried out at the behest of its president? Why not in Colombia since the peace agreement has collapsed? Why not in Mexico where the army has clearly engaged in extra-judicial killings?
If a country – say Tanzania – refers such a happening to the ICC this enables the ICC Prosecutor to initiate a formal investigation without waiting for any further authorization.
African states could also take the initiative, argues David Scheffer, the former American diplomat responsible for war crimes issues, to refer a non-African situation to the Court- for example if new atrocity crimes erupt in Afghanistan, if North Korea again attacks South Korea resulting in many casualties, if new atrocities occur amidst the political turmoil in Bosnia, in Syria on both sides of the conflict, or if the Syrian conflict spills over into Jordan.
African governments could be far more effective in pressing the UN Security Council to refer, under Chapter Seven of the Charter, present-day conflicts in Syria, Yemen and Iraq. The only Security Council activity pushed by the Africans is to try and persuade it – futilely – to shut down investigations of some of their own.
Africans have no good reason to think that the world is picking on them and that the West, in particular, thinks it is morally superior.
Look at it this way. It’s only 70 years ago since the German surrender and the arrest of Hitler’s 50 senior accomplices. Winston Churchill wanted them to be summarily shot. How “civilised” was that? It was the US president, Harry Truman and the Soviet leader, Joseph Stalin, who persuaded Churchill that a public trial (at Nuremberg) with the right of defence was necessary, both to educate public opinion and to make sure revanchist Germans could never use the argument that the allies didn’t believe in justice.
Most countries of the world are members of the ICC. The last thing we need is a “Brexit”-type movement of withdrawals. On the contrary what is needed is its strengthening- for the likes of US, Russia, Israel, China, Saudi Arabia, Sri Lanka and India (it has recently indicated it might well join) to sign up.
The number of wars and atrocities has gone down all over the world during the last 25 years, not least in Africa. The Africans should understand that the ICC will help them get this number down further. The ICC serves Africans’ interests. It is important that they should come to realise this.