“I think Africa feels it’s being picked on and there’s no doubt there is a double standard in international justice,” said Reed Brody, New York-based Human Rights Watch’s counsel and spokesman who has spent a career campaigning for former dictators around the world to be brought to justice.
Brody said the solution was for African countries to ensure their own justice systems were functional and strong.
Bill Schabas, professor of international law at London’s Middlesex University, does not see the ICC’s location as a critical issue: “Frankly, the ICC looks like an African regional court,” he said. “It is just one that is located in Europe.”
The Kenyan parliament vote to quit the Rome Statute, while it does not halt the Ruto and Kenyatta trials, was sharply criticized by Human Rights Watch and Amnesty International. Amnesty called it a bid to “undermine and derail” the ICC, and urged Kenya to cooperate with the court.
Ugandan-born Africa political consultant David Nyekorach-
Matsanga, who is a scathing critic of ICC prosecutors, but says he respects the court itself, said the Ruto/Kenyatta cases could be a make-or-break issue for the Hague tribunal.
He says the ICC prosecutions against Kenya’s leaders are a “shoddy job,” riddled with flaws.
“If they go ahead, I don’t think there will be an ICC for the continent,” he said.
Nyekorach-Matsanga was previously chief negotiator for Uganda’s Lord’s Resistance Army (LRA), whose fugitive leader Joseph Kony has been charged with atrocities by the ICC.
Africa does have a judicial organ of its own with the nominal task of protecting human rights — the African Court on Human and People’s Rights. It also sits in Arusha. However, it is not a criminal tribunal and subsequent AU attempts after 2008 to strengthen the continent’s juridical arsenal by creating a unified African Court of Justice and Human Rights, with broader jurisdiction over civil matters, have stalled. With only five AU states ratifying it, that court does not yet exist.
“I don’t know if it’s lack of political will or a question of priorities,” said Sophia Akuffo, a judge from Ghana and president of the African Court on Human and People’s Rights in Arusha.
She said the AU has discussed creating a criminal court with even broader jurisdiction than the ICC, capable of handling not just war crimes and crimes against humanity, but also trade and environmental violations and even “unconstitutional changes of government” — diplomatic code for coups d’etat.
Akuffo, while welcoming such a step, said it should not be “counterposed” to the ICC in Europe: “Justice is justice,” she said. “I don’t think that whether the court is in Africa or elsewhere ought to make a difference to the delivery of justice. But it may make an emotional difference,” she added.
Funding an African criminal court with investigating and prosecuting powers could prove expensive, costing tens of millions of dollars. Schabas said Western donors were unlikely to “give that kind of money to a court they don’t control.”
Fritz said trying Africans in Africa should still be a priority, wherever a national system has the capacity to fairly handle big cases of war crimes or mass atrocities.
“Justice is best delivered closest to home,” she said. “Domestic tribunals first are the way to go.”