If a court had a track record of only prosecuting people of one colour or one religion, there would be predictable and justifiable outrage.
The International Criminal Court (ICC), the international institution set up specifically for the prosecution of crimes against humanity, genocide and war crimes, is under pressure from African nations furious at justifiably perceived bias against Africa.
There are already movements that could imperil the legitimacy and continued functioning of the International Criminal Court. African nations are currently planning to replace the African Court on Human and Peoples’ rights with the African Court of Justice and Human Rights, which would assume an expanded role on the continent and represent a challenge to the ICC. This month leaders of the African Union granted immunity to any serving heads of state in the proposed new court.
Of the eight cases currently under trial proceedings at the ICC, 100 per cent are against Africans.
They include current presidents Omar al-Bashir of Sudan and Uhuru Kenyatta of Kenya.
Four out of the eight – Uganda, the Democratic Republic of Congo, the Central African Republic and Mali – are cases that have been referred to the court by the countries themselves.
That is one defence against charges that the court is biased, but it is not a sufficient defence.
Atrocities have been occurring against civilians outside of the continent of Africa, and these have not received adequate attention.
Rather, it must be said that the ICC, voluntarily comprising 122 nations, is so far burdened with an uneven slant in its selection of cases to prosecute. In light of that shortcoming, efforts should be put into developing concrete cases against suspects from around the world to demonstrate to African nations that their contributions to the ICC thus far and the dignity of their people are respected. Africa should give the ICC some more time to prove itself, and in the meantime continue to support the court.
In the article “(African Union) hits back at ‘skewed’ world justice with African court,” AFP cites an unnamed diplomat asking why “no action has been taken on Syria, Sri Lanka or on the invasion of Iraq, yet African leaders are the ones who have to get lawyers”.
“There’s absolutely no reason why Africa should put up with it ... The ICC is not serving Africa, it’s punishing Africa, so we’re better off finding our own solutions,” the diplomat is reported as angrily saying.
Some notable cases of daring against powerful nations do exist. The China Post reported in February on a Spanish court’s issuance of arrest warrants against former People’s Republic of China President Jiang Zemin and Premier Li Peng for crimes against the people of Tibet. Though there is currently no chance that any of China’s leaders will report to Spain, the ruling is a model for a firm adherence to principles of justice.
“He promoted and actively implemented policies whose objective was to populate the Autonomous Region of Tibet with a majority from the Han ethnic group, detain thousands of Tibetans during lengthy periods, torture the detained and submit them to other illegal abuses,” Judge Ismael Moreno wrote.
In the world today outside of Africa, horrifying violence against civilian populations abounds. The Sri Lankan government is accused of killing and raping civilians in the civil war against the Tamil Tigers.
Syria’s president Bashar al-Assad launched a crackdown on protesters that has led to more than 150,000 dead and his country in flames.
The United States invaded Iraq in 2003 telling the world that Saddam Hussein had weapons of mass destruction, yet aside from some bits of aged chemical agents none were found.
That invasion has cost Iraq upwards of a hundred thousand, maybe as many as half a million dead in violence since.
Questions on why powerful nations have seemingly escaped the justice of international courts have been raised by people outside Africa.
Archbishop Desmond Tutu said in 2012 that former US president George W Bush as well as former British prime minister Tony Blair should be tried for war crimes for their orchestration of the 2003 invasion of Iraq.
Africa’s anger is understandable and justified to a large extent. But the movement to provide an alternative to the ICC will unfortunately weaken the prospects of strengthening the ICC to a truly global institution that is equipped and empowered to take on not just the weak, but the powerful among nations.
Those from strong nations need to be held accountable. But Africa should continue to support and participate in the ICC precisely because international justice is a project that is fraught with practical pressures from power politics.
The goal should be to improve, not undermine.