Siphokazi Magadla
Siphokazi Magadla

The ICC is not Africa’s enemy

On New Year’s Eve in 1989 in Monrovia, Liberia, 17-year old Leymah Gbowee was finishing high school and looking forward to starting university to study to become a doctor. Like many middle class Liberians at the time she did not think that the coup by Charles Taylor on 24 December 1989 from the outskirts of the country would reach the capital Monrovia, let alone unseat Master Sergeant Samuel Doe and bring the country to a standstill.

Yet, within six months, the entire country was plunged into a bloody civil war that would last 14 years taking away not just dreams of a teenager but also claiming the lives of 200 000 Liberians. Luckily Gbowee would live to tell the tale and even win a Nobel Peace Prize in 2011 for forcing Taylor and other rebels into the peace table in 2003. In April 2012, the world would witness the sentencing of Taylor to fifty years imprisonment for terror, murder and rape incited in the neighbouring war in Sierra Leone. For many Liberians Taylor still needs to pay for horrors he impelled to their lives, but his sentencing was a glimmer of hope that justice is possible – even if attained through the system of international courts.

The recent Extraordinary Session of the Assembly of the African Union focused on Africa’s relationship with the International Criminal Court (ICC) and the broader issues of international jurisdiction and justice. This follows years of outcry that the ICC unfairly targets Africans, while people from powerful countries outside Africa who have committed genocide, crimes against humanity, war crimes and crimes of aggression have not been charged by the court. George Bush and Tony Blair, for instance, are popular examples of powerful men who are yet to be indicted by the ICC for the illegal invasion of Iraq. From the indictment and conviction of Thomas Lubanga Dyilo in the Democratic Republic of Congo, to the indictment of Joseph Kony in Uganda, to that of the two seating presidents in Africa – Omar al-Bashir of Sudan, Kenyan President Uhuru Kenyatta and Vice President William Ruto – all of the ICC’s cases currently are indictments for crimes committed by Africans.

The protest by some Africans, especially the leadership of the AU, is that the operation of the ICC is evidence to the dominance of realpolitik where those with power continue to evade responsibility while the weak, to quote Thucydides, “suffer what they must”. Yet what this victim narrative by these Africans forgets is that men like Kony, Bashir and Kenyatta are not weak in the sense that their “helplessness” can be equated to the thousands of faceless Africans who have lost their livelihoods in the violence that has taken place in the countries in which they belong. These are powerful men with economic capital who should feel confident to face the ICC and prove their innocence. Instead we are drawn to these binaries where we are forced to look at al-Bashir as an unsuspecting victim of the “West” while we know that there is a need to account for grievous atrocities in Darfur.

While it is true that conflicts are complicated and that the best courts to trial the perpetrators should be at the scene of the crime, the reality is that the fragility of state institutions in the aftermath of war or political violence, as was the case in Kenya, mean that many African countries simply do not have capable institutions that would ensure that this process happens fairly and transparently. This is precisely why the very same African countries have deferred these cases to the ICC in the first place, Kenya included. My point here is that there are reasons grounded in African realities that influenced the support that African countries offered to the founding of the ICC. Despite the AU’s impressive commitment to human rights in its founding Constitutive Act, it does not yet have the mechanisms to preside over such trials because the African Court of Justice and Human Rights does not have a mandate to consider cases of genocide, crimes against humanity and war crimes.

I agree with Horace Campbell that had the AU decided to withdraw in numbers from the Rome Statute, it would have been an exercise in “self-delegitimisation“. This would have undermined the very real context that saw the member states such as South Africa take leadership in ensuring the very founding of the ICC.

The final decision by the AU to rather support Kenya and Sudan in asking the ICC to defer their cases until al-Bashir, Kenyatta and Ruto are out of office does not engender much confidence about the seriousness of the African leaders when it comes to ensuring that Africans are not being served by leaders who do not uphold human rights. This suggestion for the court to defer also possesses the additional danger of not only setting a precarious precedent for future cases but also cultivating a human rights culture centred more on the interest of leaders than the people in these countries. If it is found that indeed these leaders are guilty, how much more damage are they potentially going to cause while in power? How many witnesses can be intimidated during this time?

It is true that Charles Taylor and Thomas Lubanga Dyilo should be joined by plenty other criminals at The Hague who have caused terror in parts of the world beyond Africa. But to admit the deficiency of the ICC in this regard should not in turn be taken to mean that Africans do not have real concerns of justice that cannot, at the moment, be addressed at the national and continental level. This is why the ICC, despite glaring limitations, remains one of the few choices that Africans have at attaining justice.

It is also true that if the ICC continues to ignore the crimes committed by other leaders, especially those from the rich north, it will do this to its own detriment because it will lose the little legitimacy it has garnered over the past decade. But Africans simply cannot afford to throw away the baby with bathwater if we want to make sure that Africa produces fewer Charles Taylors.

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