By Else keppler
When the International Criminal Court began operating a decade ago this July, controversy over its work should have been anticipated. After all, the court has an unprecedented authority to bring to trial government leaders and others allegedly responsible for the gravest crimes — genocide, war crimes and crimes against humanity.
Many governments in Africa were active in the establishment of the ICC and became ICC members. But nowhere has the ICC’s work been more debated and criticised than in Africa.
Claims that the court unfairly targets Africans abounded in the wake of ICC arrest warrants for President Omar al-Bashir of Sudan and the late Libyan leader Muammar Gaddafi. An increasing docket of African situations under ICC investigation has given fodder to the claims.
The critics often ignore the reality that most of the investigations before the ICC came about as a result of a request from an African government or a UN Security Council referral, and not at the initiative of the ICC prosecutor. The criticisms also ignore the thousands of victims served by the court’s efforts — from DR Congo to Darfur to Kenya.
Also, ICC operations have exposed significant challenges to seeing justice done for the worst crimes, especially in promoting accountability regardless of politics.
A major impediment is that some powerful nations have not joined the court. Moreover, several of these — namely USA, Russia, and China — have veto power at the UN Security Council, the only body that can refer situations to the court if crimes are committed in countries that are not ICC members.
At the heart of this problem is the need for governments to promote justice consistently, not only when it is politically convenient. Crimes against humanity and war crimes being committed in Syria should be punished, for example. The Security Council would have to refer the situation to the court for investigation since Syria is not an ICC member, and has not asked the ICC to get involved. But China and Russia have thus far opposed strong Security Council action on Syria.
Governments need to press for more consistent application of the rule of law, especially by Security Council members. This is critical to ensuring justice and promotes legitimacy and credibility of all efforts for accountability.
But the ICC also needs more support from countries. With all of its limitations, the ICC remains an essential alternative to impunity when domestic courts are unwilling or unable to prosecute the most serious crimes. It gives hope for justice when other avenues are closed and particularly when government leaders themselves are implicated.
Some Africa is pressing for an African Court that can prosecute genocide, war crimes, and crimes against humanity. As a practical matter, however, this initiative remains far off at best. There are also questions how such an effort could be adequately supported financially and insulated from the influence of government backers.
As the ICC begins its next ten years, African member states should raise their voices more consistently and strongly at African Union meetings and public debates to support the court. The new Malawi government took a very important step in June by indicating it could not host the AU summit if it meant welcoming President al-Bashir onto its territory given that he is an ICC suspect.
