Kenya is canvassing support for a possible walkout by African states from the International Criminal Court (ICC), whose prosecution of elected Kenyan leaders has revived accusations on the continent that the court unfairly targets Africans.
The start last week of the trial for crimes against humanity of Kenyan Deputy President William Ruto, with Kenyan President Uhuru Kenyatta’s trial due in November, has stirred a growing backlash against the Hague-based court from some African governments, which see it as a biased tool of Western powers.
ICC prosecutors accuse Ruto and Kenyatta of fomenting ethnic bloodletting that killed about 1,200 people after a disputed election in Dec. 2007. They both deny the charge.
Kenya’s parliament voted on Sept. 5 to quit the ICC’s jurisdiction, and Nairobi is discussing with its neighbors and other governments a broad rejection by Africa of the ICC. This taps into African anger that the ICC has so far only prosecuted African accused — warlords, politicians and leaders — while ignoring alleged war crimes by global powers.
However, a lack of local alternatives, for which there is a shortage of both political will and financing, makes the ICC the only hope for many African victims seeking justice.
Some of Kenya’s east African neighbors are already backing calls by Ruto’s lawyers for him to be excused from attending all ICC hearings. Officials say suggestions are being made in the African Union (AU) for a pullout from the Hague court by the 34 African signatories to the Rome Statute that created it.
“There is a proposal in the African Union [AU], which will likely come in January, for all AU member countries to withdraw from the ICC because the court is seen to be targeting only African leaders,” Tanzania’s government spokesman Assah Mwambene said.
The walkout proposal could come even sooner, possibly at an extraordinary AU summit before the year end, following expected criticism of the ICC at the UN General Assembly this month.
Ugandan Foreign Affairs Minister Asuman Kiyingi said his country was unhappy about the way the ICC was “used by big powers to pursue certain selfish interests against African leaders.” He said Uganda could consider withdrawing.
However, such a move might not be unanimous. Officials from Ivory Coast, the Democratic Republic of Congo, Nigeria and South Africa, four of the AU’s biggest member states, said their governments had no plans so far to leave the ICC.
“It is clear the ICC needs to explore ways and means to fix its relationship with Africa, its biggest block of membership, otherwise many African states may follow the Kenyan move,” AU Political Commissioner Aisha Abdullahi said by e-mail.
ICC spokesman Fadi El-Abdallah said such pullouts would be a mistake.
“Withdrawals would not serve justice nor the interests of victims,” he said in a statement. He was confident African states would remain signatories to the Rome Statute.
When asked if he felt Kenya was garnering much support, a Western diplomat in Nairobi said: “A bit, but I am not convinced that we will see a mass walkout that they are talking about.”
Kenyatta and Ruto’s political alliance won Kenya’s March election, averting a repeat of the bloodshed six years ago. Some Kenyans fear the ICC process against their leaders could reignite violence and destabilize East Africa’s biggest economy.
If an African walkout does occur, the world’s least developed continent is far from having its own criminal court alternative to replace the ICC. Ratification by AU members for existing continental judicial structures has proceeded at a snail’s pace and there is a big question over funding.
“We don’t have a credible, regional alternative,” said Nicole Fritz, director of the Southern Africa Litigation Centre, a non-profit group which seeks to support human rights in Africa through court processes. “The political will is not there.”
The ICC Kenya cases brought against democratically elected leaders are a key test of the credibility of the decade-old court; its conviction record and methods are under fire.
Based on ideas developed at the Nuremberg and Tokyo trials after World War II, moves to establish the ICC accelerated in the 1990s, when atrocities in Yugoslavia and Rwanda saw ad hoc tribunals set up at The Hague and Arusha, Tanzania respectively.
In 1998, over 100 governments adopted the UN’s Rome Statute. The ICC gained legal powers on ratification of the statute in 2002 and judges were elected the following year.
Experts say the criticism caricaturing the ICC as delivering “white man’s justice” for Africa rings hollow, as the Rome Statute broadly requires the acquiescence of signatory parties to the prosecutions. Kenya, for example, had itself referred the case of its 2007-2008 post-election violence to the court.
“In Kenya, it was in the absence of the domestic initiative where the ICC stepped in,” Fritz said.
However, when the UN Security Council requested the ICC to investigate former Libyan leader Muammar Gaddafi’s crackdown against opponents in 2011, this was viewed suspiciously by some African leaders who saw it as Western powers misusing the court.
ICC chief prosecutor Fatou Bensouda rejects the accusations of anti-African bias, saying cases are prosecuted on merit and that the court is a big deterrent. Bensouda herself is from Gambia and five of the 21 serving judges, including the first vice-president, are also Africans. Nine of them are Europeans.
Fritz said the Hague court had not “done itself any favors by filling its dockets exclusively with African cases.”
All 18 cases so far before the ICC are against Africans, in eight countries. Most were either initiated or supported by the governments of those states.
The ICC has pursued cases against Sudanese President Omar Hassan al-Bashir, who defies a court indictment, as well as rebel and militia chiefs in the Democratic Republic of the Congo and Darfur and former Ivory Coast president Laurent Gbagbo. Its sole conviction to date is of Congolese warlord Thomas Lubanga.
The court has opened investigations into issues involving other countries, including Afghanistan, Georgia, Colombia, Honduras and South Korea, but these have not yet led to cases.
Fueling African resentment is the fact that major global powers like the US, China and Russia have shunned ICC membership. Nations like Israel, Pakistan, India and North Korea are also not among the 122 signatories.
The failure of ICC prosecutors to investigate the US, Britain or Israel over alleged crimes by troops in Iraq, Afghanistan and the Palestinian territories has increased the African feeling of victimization.
“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.”
Many Africans, especially victims of tyrannical rulers, doubt whether impartial and prompt justice can be found on their own continent after years of inaction or slow responses in the face of horrors like the 1994 genocide in Rwanda.
“For people to say that African crimes must be judged in Africa is a mistake,” said Clement Abaifouta, who spent four years in the 1980s as a political prisoner in the jails of former Chadian leader Hissene Habre, who is now facing charges in Senegal of war crimes, crimes against humanity and torture.
“The law has no color, no place, it must condemn those who have done evil,” said Abaifouta, who runs a victims’ association.
After a long exile in Senegal, Habre now faces trial there in a court backed by the AU and funded by foreign donors — an ad hoc solution, similar to the UN-backed war crimes court in Sierra Leone, which Akuffo called “better than nothing.”
Whatever the problems of location, victims want a hearing, said Human Rights Watch’s Brody: “In the end, this is not so much about where justice takes place, but whether it does.”