In a somewhat eloquent address to the 66th Session of the United Nations General Assembly, the leader of Zimbabwe, President Robert Mugabe criticised the International Criminal Court for prosecuting only African states. He drew on the history of Africa and pointed to various atrocities committed by colonial powers which went unpunished on the continent. He also rightly criticised the invasion of Iraq and the detention facilities at Guantanamo, citing violations of international law that persist there and at other torture facilities such as Abu Ghraib. Correctly, he observed that regime change remains controversial, if illegal, under international law.
Of course, a lot of this is compelling.
But, even for a moment, Africans need to consider the context and content of some of the President’s claims. Most notably, the President asserted that “[w]e in Africa are also duly concerned about the activities of the International Criminal Court (ICC) which seems to exist only for alleged offenders of the developing world, the majority of them Africans. The leaders of the powerful Western States guilty of international crime, like Bush and Blair, are routinely given the blind eye. Such selective justice has eroded the credibility of the ICC on the African continent.”
The international criminal justice system, in The Hague and throughout the world, is a fairly recent development. It is a young, dynamic and growing body of the law. Undoubtedly, there are teething problems. Unlike other bodies of law such as contract law, criminal law or property law which have grown and developed over centuries, international criminal law can usefully be traced back to the Nuremburg and Tokyo trials after the Second World War, although some trace the language of crimes against humanity back to the Armenian genocide which occurred at the turn of the twentieth century. The international criminal justice system then resuscitated itself after the genocides in Rwanda and the former Yugoslavia in the 1990s. In the face of these atrocities, the international community came together to condemn the outrages upon humanity which these conflicts typified. A UN-assisted court was established to prosecute the perpetrators of the civil war in Sierra Leone. The world agreed that a more lasting solution was required to bring to account perpetrators of genocide, war crimes and crimes against humanity. The International Criminal Court was created in 1998.
Genocide, war crimes and crimes against humanity continue to bedevil Africa in the twenty-first century. Darfur, Northern Uganda, the DRC, Kenya, Somalia, Libya and the Central African Republic are key examples. Yet African governments, politicians, scholars and citizens have failed to protect each other. We all too often stand back as countless women are raped in Ituri – most Africans don’t even know that this is one of the most war-torn regions of the eastern Congo. One of the most complex conflicts in the world, the DRC has been forgotten by Africa while rebels, militia and government forces continue to ravage each other at will. Somalia now simulates an animal kingdom as Africans look on. Over 300,000 people died in Darfur, as Africa watched, silent. Post-election violence has been endemic in Kenya since the abolition of a one-party state in 1991. Africa has done nothing to condemn or curb the atrocities. The same Africa watched Kenya momentarily descend into chaos in 2007. Earlier this year, Gaddafi opened fire brazenly on his own people. Africans went on with their daily business, some more concerned with the oil dollars the brother leader had used to bank roll their governments than the protection of human life. Fact-finding – the African euphemism for doing nothing, is all we offered the Libyan people. The Lord’s Resistance Army unleashed terror in Nothern Uganda. Again, Africa did nothing. Joseph Kony continues to walk free, somewhere on the African continent – as does an alleged genocidaire al-Bashir.
The only organization that has been able to stand up to these and other enemies of humanity is the International Criminal Court, in certain instances with the assistance of the UN Security Council. Kenya finally has a new Constitution and because it is understood that perpetrators of international crime will be brought to account, one hopes election violence will be a phenomenon of the past. The International Criminal Court helped make this possible.
Moving on to more technical issues, three of the six (Uganda, DRC and Central African Republic) cases before the ICC were opened pursuant to referrals to the Court by African states themselves. In such circumstances, it would be difficult to allege that these states were targeted. Two (Libya and Darfur) were opened pursuant to referrals by the Security Council. One (Kenya) was initiated after an application by the Prosecutor to initiate an investigation. This being the case, the only state that has been ‘targeted by the ICC’ would be Kenya, yet this cannot be so given that the Waki Commission, led by African Kofi Annan, included in its recommendations prosecution of the alleged perpetrators by the ICC. The ICC ought to prosecute crimes everywhere. Examples such as Burma and Venezuela come to mind. However, with respect, and for the reasons set out, it is misconceived to suggest that the Court targets Africa in the cynical manner suggested by Mugabe.
Turning to the ‘Bush and Blair’ argument, advanced not only by Mugabe but by others throughout the world, the crime of aggression had not been defined in the Rome Statute at the time of the Iraq War and therefore would not have fallen within the jurisdiction of the Court. Further, the United States, like Zimbabwe, is not a signatory to the Rome Statute, a further impediment to the Court’s jurisdiction. It is therefore no answer to the atrocities committed in Africa to contend that the Iraq War was not prosecuted by the Court.
Africa needs to take ownership of international criminal justice system, not wage war against it. In spite of the Court’s development points, it exists for the protection of the victims of international crime, in Africa and throughout the world.