Africa and Its Accused: Growing Challenges to the ICC in Africa

On August 27, 2010, as Kenya celebrated the passing of its new constitution with a grand ceremony in Nairobi, the world watched in shock and revulsion as standing there on stage alongside the Kenyan President and his entourage was international fugitive and newly ‘re-elected’ President of Sudan, Omar al-Bashir. Bashir, who is wanted by the International Criminal Court (ICC) for war crimes, was apparently there under personal invitation of President Mwai Kibaki. The international community responded with outrage at the invitation, which rather ironically seemed only to undermine the adoption of a new constitution meant to advance human and civil rights in Kenya. Kenya’s refusal to arrest Bashir, a man accused of facilitating the murder of hundreds of thousands, has immense implications for the ICC and its ability to seek justice in Africa for African victims. With Kenyan leaders facing possible charges themselves for their involvement in the 2007-08 post-election violence, the move implies a deeper collusion amongst Africa’s accused: recognition that unity could perhaps provide protection, a sort of political reciprocity, in the future if needed. And Kenya is not alone in its challenge to the ICC, for it was a recent decision by the African Union (AU)—which instructed AU members not to arrest Bashir—that provided the mandate for AU members to defy ICC authority and ultimately set a dangerous precedent for future ICC cases and the pursuit of justice in Africa.

The ICC came into existence in 2002 after the international community recognized the need for a legitimate and independent outlet for trying individuals accused of the most horrific of crimes and whose victims have no other means of seeking justice. Thus far, it has launched investigations in Northern Uganda, the Democratic Republic of Congo, the Central African Republic, Darfur (Sudan) and most recently Kenya—the cases of Rwanda (ICTR) and the former Yugoslavia (ICTY) are being tried in special tribunals, as the ICC cannot prosecute crimes committed prior to its formation in 2002. The ICC’s issuance of a warrant for Sudanese President Omar al-Bashir in March 2009 was the first time the Court had issued a warrant for a sitting head of state, and it came at a time of marked political strife. Because the Sudanese government’s cooperation was needed to achieve political stability in the region, particularly with the upcoming referendum on Southern Sudanese independence, many argued that the warrant’s issuance would threaten an already fragile peace process in Sudan. Thus spawned the larger debate between the importance of achieving peace and obtaining justice. Arguably, the two concepts should be inseparable; the resolution of conflict requires that both parties feel as though major injustices have been addressed. However, the case of Sudan unfortunately pitted the two normally concurrent forces against one another, and subsequently placed all parties involved in a rather precarious position.

Although the issuance of the warrant for Bashir was an independent decision made by the ICC as a result of its Darfur investigation, its political implications are considerable, and thus, it was met with swift resistance from the Sudanese government. The warrant resulted in a serious loss of political credibility for Bashir, who was now an international fugitive. Although the regional peace process was ongoing and Bashir’s support was needed, Bashir’s travel was now restricted; he now risked arrest if he traveled outside of Sudan. ICC member states are obligated under the Rome Statute to arrest individuals charged by the court. If any member were to refuse, it would face immeasurable political embarrassment, international condemnation and possible referral to the UN Security Council. Realizing the implications of the warrant, Sudanese officials immediately responded with thinly veiled and irresponsible threats against UN peacekeepers and humanitarian workers operating inside the country, claiming Sudan could not be held responsible if anything were to happen to the workers. In addition, Sudanese officials outright denied the legitimacy of the ICC’s claims, and denounced the ICC’s decision to issue the warrant as purely political. In fact, prior to the warrant’s issuance, Sudan had been offered a deal by France that in exchange for handing over fugitive Ahmad Harun, who is Sudan’s State Minister of Humanitarian Affairs and who the ICC issued for in 2007, the ICC would defer its investigation of Bashir.

Although Sudan’s failure to prosecute Harun nationally or hand him over to the ICC is reproachful, the existence of such a deal by the French only worked to undermine the ICC’s legitimacy. Unfortunately, by demonstrating that it had the power to intervene in court matters, France opened the ICC up to future accusations of political bias and misuse of authority. Of course, the court itself, particularly Chief Prosecutor Luis Moreno-Ocampo, was not free from criticism with regards to the Bashir case. Ocampo’s public declaration that he was seeking an indictment for the Sudanese leader created space for political wrangling on both ends. Because it would take months before ICC judges could make a decision on the indictment, this left a significant window for some states to levy threats against Bashir’s government and ultimately try to use the possible indictment as political leverage. It also allowed Bashir time to rally the support of his people by proclaiming his indictment an insult to all Sudanese, and to garner the backing of the AU by convincing other African leaders that they too could be subject to an ICC indictment as well. In essence, many were left to wonder whether the move wasn’t entirely contrived, particularly since it was the first time an indictment was made public. However, the decision to seek indictment of Bashir and the court’s issuance of the warrant are undeniably the product of evidence collected as a result of the ICC’s investigation in Darfur. In addition, perhaps the very fact that the ICC moved forward with the case proves its impartiality. For even with the foreknowledge that such a decision would have major consequences and perhaps present the greatest challenge to the international pursuit of justice as of yet, the ICC did exactly what should be expected of it: its job.

Calls for the ICC to suspend its investigation and warrant of Bashir by both the African Union (AU) and the Arab League, due to concerns that the warrant would disrupt the peace process, seemed unwarranted after only a few months, as the uproar surrounding the warrant actually did the opposite: it reinvigorated the stagnated peace process. If anything, the existence of the warrant placed significantly more pressure on all parties, including Bashir, to execute the peace agreement, and although violence continues in parts of the South and Darfur, significant progress has been made with regards to achieving peace. Rather ironically, this progress, coupled with a victory in the recent presidential election, has emboldened Bashir and unfortunately enhanced his position, decreasing the likelihood of his arrest. For instance, just this past July, Bashir traveled to Chad, an ICC member, for an international summit. Chad refused to arrest the leader and instead presented him with a key to city upon his arrival in N’Djamena: a move that once again shocked much of the globe. Bashir was apparently reaping the benefits of increased cooperation with Chad in ending regional hostilities (Chad and Sudan had signed a new accord in which both sides agreed to stop supporting rebel groups). So although pressure surrounding the Bashir warrant forced African leaders and the larger international community to intensify peace efforts, it also allowed Bashir to use his political leverage to garner protection from former rivals. Bashir told reporters, “Chad and Sudan had a problem in the past. Now this problem is solved. We are brothers.” Bashir’s trip to Chad marked a dangerous turn in policy for ICC member states and was soon followed by an even more audacious decision by the AU, which instructed its members to not arrest Bashir.

The AU’s criticism of the ICC warrant against Bashir only increased after charges of genocide were added earlier this year, and at an AU summit in Kampala in July, African leaders decided to make AU non-cooperation with the ICC official by passing a resolution, stating that the AU would not arrest Bashir and even more troubling, urging AU members to balance their obligations to the ICC with their obligations to the AU. The resolution was reached only after major debate amongst African leaders; some of which have still vowed to arrest Bashir if he were to attempt entry into their countries. Other AU leaders advocated for a stronger response to the ICC; some even claimed that the ICC was biased and that it purposefully targeted only African leaders. However, such statements denied the fact that the majority of the ICC’s cases in Africa were referred to the ICC by African nations and that some of the most heinous crimes against humanity have been committed by Africans against other Africans. Not to mention that the main goal of prosecuting such cases is to attain justice for African victims, whose tragedies seem to have been forgotten by the AU.

The AU’s resolution constitutes a serious challenge to the ICC. By instructing its members not to arrest Bashir, the AU has set a dangerous precedent that is likely to affect future attempts to prosecute not only African leaders, but any individual around the world who commits war crimes. In the case of Kenya, it is anticipated that sitting politicians will be indicted for their role in orchestrating the 2007-08 post-election violence, leading some to wonder whether Kibaki’s invitation to Bashir wasn’t somehow symbolic of his support for his accused cronies. It is not quite clear whether other AU member states will seek to intervene in the ICC’s case in Kenya, as the circumstances are markedly different from that of Sudan. Regardless, this challenge to the ICC and to the greater pursuit of justice will inevitably have consequences that are far-reaching. Ideally, justice should never be side-swept or delayed for political purposes. The argument that the warrant would threaten the peace process, result in more violence and thus create new victims was not without some legitimacy; however, the decision to pursue justice, a key ingredient to peace, can never be negotiable. It boils down to a very basic ethical obligation for the court: it cannot ignore evidence uncovered as a result of an investigation. In this case, it would be entirely immoral, not just for the ICC, but for all parties involved, to merely overlook such serious charges. Ironically, peace will never truly be achieved in Sudan unless these charges are answered. The hope is that the AU’s disregard of the court’s warrant will not jeopardize the ICC’s ability to speak on behalf of the voiceless; however, if the AU does not take immediate steps to rectify the situation, it will only destroy the progress that has taken decades to achieve in bringing the guiltiest to justice.


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