The ICC’s docket points to a serious problem -- but not the one that African leaders are complaining about.
- By Rebecca HamiltonRebecca Hamilton teaches at Columbia Law School and is the author of Fighting for Darfur. Follow her on Twitter @bechamilton.
This weekend, officials from 34 African nations are convening in Addis Ababa to discuss whether or not to withdraw from the International Criminal Court (ICC). The problem with the Hague-based court, according to African Union (AU) Chairperson Hailemariam Desalegn, is that it is "race-hunting" Africans.
It is true that the 32 people charged by the court to date are all from the African continent. But the problem this reflects is not racism by the ICC chief prosecutor. (Currently, the prosecutor is Fatou Bensouda of The Gambia who has faced her fair share of criticism from fellow Africans for the composition of the court’s caseload.) Rather, there is a more systemic driver behind the court’s docket: the debilitated state of the judiciary in so many African nations.
The ICC was created by states, including many in Africa, which wanted to ensure that, when the worst crimes in the world — genocide, crimes against humanity, war crimes — were committed, there would be a backstop against impunity. The vision was for a court of last resort, ready to step in when states failed to prosecute those responsible for a future Holocaust, Rwanda, or Srebrenica. This idea was enshrined in the ICC’s statute under the legal principle of complementarity, meaning that the court can only prosecute when states themselves are unable or unwilling to do so.
In other words, in an ideal world, the ICC wouldn’t exist. States would handle their own cases fully and fairly. As former U.N. Secretary General Kofi Annan said earlier this week, "If African victims can get justice at home, and we have credible courts and they do take action, there’ll be no need for [the] ICC."
However, this remains only wishful thinking. And so, whether African leaders want to admit it or not, a court of last resort is exactly the part the ICC is playing.
Consider, as an example, the ongoing trial of Kenyan Deputy President William Ruto for his alleged role in the mass violence that followed Kenya’s 2007 election. Kenya was given every opportunity to prosecute those responsible for the violence that left over 1,000 dead and an estimated 600,000 displaced. A 2008 commission, headed by Kenyan Appeals Court Judge Philip Waki, recommended that the government establish a special tribunal to handle the most important cases. The so-called Waki Report also advised that, if a special tribunal was not created, the situation should be referred to the ICC.
After initially accepting the report’s recommendation, the Kenyan government stalled — and then stalled some more — before eventually rejecting the establishment of a tribunal. Thus, it was only in the face of the Kenyan government’s unwillingness to seek domestic accountability for the violence against its own citizens that the ICC finally stepped in. (In addition to Ruto, the court is set to try President Uhuru Kenyatta in November; on Thursday, Kenyatta requested that the trial be held via video link.)
The remaining seven countries in which the ICC is involved — through investigations, indictments, or ongoing trials — present different manifestations of the same problem. The governments of Uganda, the Democratic Republic of the Congo (DRC), Central African Republic, Côte d’Ivoire, and Mali all asked for the ICC’s involvement, responding to the court’s overtures to prosecute crimes that the countries themselves were unwilling or unable to pursue. The U.N. Security Council, meanwhile, requested the court’s involvement in Sudan and Libya, where genuine domestic accountability for the victims of mass atrocities was nowhere to be seen. (A Libyan court is currently trying Saif al-Qaddafi in the town of Zintan, amid concerns about its fitness and Qaddafi’s civil rights.)
A more detailed snapshot of the justice deficit in these countries helps illustrate further why the ICC is necessary. The World Justice Project’s 2012-2013 Rule of Law Index places Sub-Saharan Africa at the bottom of its global list. A recent report on the rule of law in the DRC explains that, with "near-humiliating working conditions… [c]orruption, bribery and denial of justice are common practices within the judiciary." In scores of interviews I have conducted with Darfuri survivors of atrocities either perpetrated or facilitated by the Sudanese government, after the basic necessities of safety, food, and shelter, their demands are for justice. But they don’t believe it can come from the Sudanese judiciary while the current government of ICC indictee Omar al-Bashir remains in power.
ICC Chief Prosecutor Bensouda may have put it best: "What offends me the most when I hear criticisms about this so-called Africa bias," she said in an interview last year, "is how quick we are to focus on the words and propaganda of a few powerful, influential individuals, and to forget about the millions of anonymous people who suffer from their crimes." This week, over 160 international groups and civil society organizations across Africa have sought to give voice to those anonymous people with a letter to African foreign ministers, urging them not to withdraw from the ICC. "As organizations working within Africa, some on behalf of or alongside victims of international crimes, we see every day the importance of ensuring access to justice," the letter states.
Justice, however, is not something that survivors of atrocities should have to travel to a foreign land to access.
The court’s all-African line-up is not an ICC problem; it is an African problem, for which there is an African solution. That solution — doing the hard work of strengthening of domestic accountability mechanisms in nations across the continent — is what African leaders should be discussing this weekend. Unfortunately, they will instead rail against, and possibly abandon, the only recourse for justice that African victims of major international crimes currently have.