AFRICA: ICC Justice a Dream Deferred

  • by IPS Correspondent (addis ababa)
  • Inter Press Service

The naming of the six by the ICC in December 2010 caused a shock in Kenya; the accused included Deputy Prime Minister Uhuru Kenyatta, an ally of President Mwai Kibaki who is the son of the country's iconic first president, Jomo Kenyatta, and other prominent figures belonging to both sides of the unity government.

The violence that followed the disputed December 2007 elections came to an end when Kibaki agreed a deal with his challenger, Raila Odinga, which made Odinga prime minister - and provided for the perpetrators of the post-election violence to be tried.

Slow progress on naming and prosecuting any suspects led to the ICC Prosecutor Luis Moreno-Ocampo's investigation of the violence and request for summons of six prominent figures.

Neutering the threat of swift justice

Within a week of the naming of the suspects, Kenya's parliament had voted to withdraw Kenya from the International Criminal Court. As the AU Summit approached, Kenya actively sought support from other African countries to apply to the Security Council to defer action by the ICC for 12 months.

Kenya’s Vice President, Kalonzo Musyoka, said that his country wants to establish an independent local body to look into the case at home.

'The African Union supports the search for solutions and gives reference to local solutions,' Ben Kioko, the AU’s Legal Counsel told IPS, stressing that the continental body remains committed to fighting impunity, but would first allow Kenya a chance to address it within the country's own legal system.

As chair of the East African regional body IGAD, the Intergovernmental Authority for Development, Ethiopian Prime Minister Meles Zenawi said, 'We cannot allow the only country in our region that has enjoyed stability to be destabilized on the grounds of a technicality. All that the Kenyans are asking for is a 12 month period to be allowed to put in place a mechanism that will bring about justice and avoid a repeat of the post election violence.'

'If a crime is committed in your country and you are willing to judge it, no one can interfere,' said Jean Ping, AU Commission Chairperson.

'We Africans and African Union are not against ICC... we are against the way Ocampo is running justice,' Ping said, pointing to the well-worn fact that the five countries where the Court is investigating are all in Africa.

Too valuable to prosecute

Among the heads of state attending the Jan. 29-30 summit was Sudanese President Omar al-Bashir, himself the subject of an ICC arrest warrant. He too appears to be no closer to answering charges of genocide and war crimes at the ICC, as the African Union has asked the United Nations Security Council for a deferment of his case as well, though no internal process to put him on trial in Sudan has been promised.

'The African position is that critical issues in the Sudan, particularly those aimed at ensuring the peaceful implementation of the Comprehensive Peace Agreement as well as a peaceful resolution in Darfur,' need the involvement of Bashir, Kioko told IPS.

'Therefore, it has been felt that an indictment of a major player, someone who needs to negotiate, who needs to be able to provide direction, is not helpful.'

Stephen Lamony, the Outreach Liaison for the Coalition for the International Criminal Court (CICC) told IPS many African governments were uncomfortable attending the Summit alongside the indicted Bashir.

'While many of them did not want to associate or be seen with ICC Suspect Omar al-Bashir at the AU summit (because of the crimes Al-Bashir allegedly committed in Darfur), they could not alienate him because of his role in the Sudanese referendum and the manner in which it was conducted as he did not interfere in the elections. As such, African states parties could not ignore his contribution to the transition process in Sudan,' he told IPS via email.

But, Lamony added, neither the endorsement of Kenya's plan to seek deferment nor similar actions regarding Bashir should be construed as a waning of support by African governments for the International Criminal Court.

'The Court is investigating and prosecuting crimes committed against African victims only when the states where the crimes were committed have been unable or unwilling to do so. Following referrals by states and the United Nations Security Council and more recently on the Prosecutor’s initiative, the ICC Prosecutor has opened investigations in five situations.'

He called on African governments - as well as civil society and the public - to remain committed to the ICC and the rule of law.

'In the past decade alone, millions of Africans have lost their lives in conflicts and have been the target of war crimes, crimes against humanity, and, arguably, genocidal campaigns perpetrated against them. By attempting to punish those responsible for these crimes, the Court is standing up for African victims and attempting to prevent the future occurrence of atrocities. African governments, together with civil society, played an active role in establishing the International Criminal Court.'

As part of ensuring that active participation continues, the Coalition for the International Criminal Court is launching a worldwide campaign around the election of new judges, officials and a new chief prosecutor as scheduled in 2011.

A third of the ICC's 18 judges will be replaced in 2011, six new ones elected by the Assembly of State Parties of the Rome Statute; in addition, Moreno-Ocampo's term as Chief Prosecutor will end in June 2012, and his successor must also be elected this year.

The personnel chosen over the course of the year will have a significant effect on the direction of the Court for years to come.

© Inter Press Service (2011) — All Rights ReservedOriginal source: Inter Press Service