See Kenneth Roth â€å“africa Attacks the Iccã¢â‚¬â the New York Review of Books February 6 2014

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A painting of Kenyan President Uhuru Kenyatta on display during his inauguration, ­Kasarani, Republic of kenya, April nine, 2013

What are nosotros to brand of the fact that in its eleven-yr history, the International Criminal Court (ICC) has prosecuted just Africans? Should the court exist condemned for discrimination—for taking advantage of Africa's weak global position—as some African leaders contend? Or should it be applauded for giving long-overdue attention to atrocities in Africa—a sign that finally someone is concerned about the endless ignored African victims, as many African activists contend? This debate is at the centre of ane of the most serious challenges the ICC has always faced. If the current attack on information technology succeeds, the court's futurity may be in doubt.

The ICC was founded in 2002, under a treaty negotiated at a global conference in Rome, as an contained judicial torso that would challenge impunity for the gravest international crimes—genocide, war crimes, and crimes against humanity. Unlike the International Courtroom of Justice, which is also based in The Hague but settles legal disputes betwixt states, the International Criminal Courtroom addresses mass atrocities committed by individuals. To avoid prosecution, ruthless national leaders too oft threaten, corrupt, or compromise judges and prosecutors at home, but those in The Hague should be across the achieve of such obstructionism. The ICC is meant as a courtroom of last resort for victims and survivors who cannot find justice in their own country and equally a deterrent to leaders who accept little to fear from domestic prosecution. The court has now been accepted by 122 states. The Usa has non joined it out of fearfulness that Americans might be prosecuted.

The outcome of the ICC's focus on Africa has gained prominence as information technology proceeds against its nigh powerful suspect and so far, President Uhuru Kenyatta of Republic of kenya. He is accused of directing some of the violence that shook his country in late 2007 and early on 2008 following vigorously contested elections. An estimated i,100 people were killed and as many as 650,000 were forced to flee their homes.

Kenyatta has appeared in The Hague voluntarily and has mounted a vigorous defence. But he has likewise used his position as head of state to turn every bachelor weapon against the court in an endeavor to avoid prosecution. The Kenyan regime has solicited demands from the African Union that he non exist required to appear at trial. Information technology has asked the United nations Security Council to delay the instance. It has pleaded with the governments that are members of the ICC to modify the rules, and information technology has sent diplomats around Africa with the apparent aim of orchestrating a mass withdrawal from the courtroom. None of these efforts so far has stopped the case from proceeding.

The ICC is hardly an institution that looks anti-African. Its largest block of members—34 of its 122 states—is from Africa, and they were central in negotiating the Rome treaty that established the court. Those thirty-4 states—including Kenya—represent a solid bulk of Africa's l-four nations. The ICC's chief prosecutor is an African—Fatou Bensouda of The gambia. She assumed the postal service in 2012 later on having served for viii years as the deputy prosecutor. Africans serve among the court'south judges and the prosecutor's staff.

Moreover, the ICC'south focus on Africa is largely non of its own doing. In five of the 8 countries where information technology is actively prosecuting suspects—Uganda, Mali, Ivory Coast, the Primal African Republic, and the Autonomous Republic of Congo—the African state in question asked the court to intervene, often with significant encouragement from victims and local rights groups. In two other countries—Sudan and Great socialist people's libyan arab jamahiriya—the Un Security Quango asked that the ICC become involved. Merely in the case of Kenya did the ICC deed entirely on its ain initiative.

In fact the focus on Africa largely reflects electric current limits on the reach of international justice. The court tin exercise jurisdiction only when the criminal offence was committed by a denizen of a fellow member state or on the territory of a member state, or if the situation is referred to the courtroom by the United nations Security Quango. Certain obvious non-African candidates for prosecution are from states that take never joined the court, such as Sri Lanka, Northward Korea, Uzbekistan, State of israel, Palestine, Syrian arab republic, or Republic of iraq. The Security Council could have given the ICC jurisdiction over crimes in these cases, only the council's permanent members take tended to shield nations they favor from the courtroom'southward attention. The United nations Full general Assembly, where no state has a veto, lacks the ability to grant the courtroom jurisdiction.

Until the ICC began investigating African presidents, it had broad support from African governments. President Joseph Kabila of the Autonomous Republic of Congo, for example, applauded the court's pursuit of several militia leaders from eastern Congo who committed many abuses confronting civilians. His regime has surrendered four suspects to the court, including Thomas Lubanga Dyilo, the courtroom'south i conviction to date, and Mathieu Ngudjolo Chui, its 1 acquittal. Another Congolese suspect, the rebel commander Bosco Ntaganda, surrendered, apparently fearing for his life. The ICC'south charges contributed to his loss of power, every bit he became too much of a liability even for his own insubordinate group and his Rwandan backers.

Though withal in its early years, with few prosecutions to its proper name, the ICC gains support from human rights groups and many ordinary citizens because of its promise of justice for the victims of mass atrocities. Its very being can have a deterrent event. Laurent Nkunda, the once loftier-profile leader of another vicious Rwandan-backed rebel grouping in eastern Congo, illustrates how the ICC might assist to prevent atrocities. In 2007 and 2008, he regularly called Human Rights Watch'due south Congo researcher, Anneke Van Woudenberg, to discuss his concern that the ICC might target him because of abuses committed by his troops. The ICC never seriously investigated him or Rwandan leaders, only his fear that information technology might do then is an example of how the court can discourage atrocities. He has been under house arrest in Rwanda since 2009.

For some African leaders, the court'due south involvement in their country has engendered more mixed feelings. President Yoweri Museveni of Uganda, who has become ane of the primary backers of Kenyatta's campaign against the ICC, initially invited the court to prosecute leaders of the Lord's Resistance Army, a ruthless rebel group that was formed in Uganda two decades ago and operates by kidnapping children and forcing them to fight. Just several years afterwards the court issued arrest warrants for the LRA's notorious leader, Joseph Kony, and four of his deputies, Museveni's mental attitude shifted. It seems he feared both that prosecution might complicate his efforts to negotiate peace with the LRA and that the ICC might someday turn its attending to him and his government.

Similarly the president of the Republic of cote d'ivoire, Alassane Ouattara, seemed content when his rival, former president Laurent Gbagbo, was sent to The Hague to face charges of crimes against humanity. But Ouattara now does not like the prospect that the ICC might pursue atrocities committed by forces that supported him during the ceremonious war that broke out after contested elections in 2010.

Some of the ICC's bug are of its own making. The master prosecutor for its first nine years, Luis Moreno Ocampo of Argentina, seemed more interested in issuing arrest warrants than undertaking the tough, less glamorous work of conducting rigorous criminal investigations. And then far 6 of the thirty-ane prosecutions he launched—three in Kenya, ii in Congo, and i in Sudan—accept been withdrawn, dismissed, or led to acquittal due to lack of show. (The acquittal is still under appeal.) The new prosecutor, Fatou Bensouda, has been building up her office's investigative capacity. In addition, there are a few member states exterior Africa where the ICC prosecutor has considered interim, but the issue has been under review for years without a decision on whether to open formal investigations. For example, in the instance of Transitional islamic state of afghanistan—which theoretically could implicate U.s. and other foreign troops there—the ICC prosecutor has cited difficulties due to security considerations and a lack of cooperation past primal sources. In the example of Colombia, the existence of some domestic prosecutorial efforts has been a significant consideration, though the new chief prosecutor is concerned nigh Bogotá's willingness to run into justice washed.

In its initial years, perhaps in an endeavor to institute itself and build political support, the ICC seemed to focus on widely despised figures who lacked a powerful constituency—people like the child-kidnapping Kony or the warlords of eastern Congo. That inverse in 2009, when the court sought to abort President Omar al-Bashir of Sudan for atrocities committed as he tried to quell the rebellion in the state'southward western region of Darfur. Yet even Bashir is widely loathed because he presided over a series of scorched-world animus efforts—not simply in Darfur but likewise in southern Sudan, where he fought against an ultimately successful secessionist motility, and confronting a separate rebellion in the south-fundamental Nuba Mountains.

Today, although the ICC has issued an lodge for his arrest, Bashir is still in power in Khartoum. He has been trying to regain his legitimacy and pollex his nose at the court by traveling to diverse countries that promise not to abort him. Oftentimes under force per unit area from local rights activists and media, amongst others, almost ICC members have refused to play along, or accept washed so only halfheartedly, even later on the African Marriage (AU) asked its member states non to surrender him. For case, this by July, Nigeria admitted Bashir to an AU tiptop just Bashir, apparently fearing arrest every bit Nigerian groups filed a court activity, fled within xx-4 hours of arrival without speaking at the summit. In contempo years, South Africa threatened him with abort if he attended the inauguration of President Jacob Zuma, Malawi refused him entrance to an AU summit, Republic of kenya blocked him from attention a regional summit, and he canceled trips to Zambia and the Central African Republic.

A handful of African states have been willing to receive Bashir, as has China. Simply since the ICC called for his arrest, his movements have been severely restricted and his international stature diminished. The United nations Security Quango never took upwardly Sudan's request to defer his prosecution. This by September, Bashir floated the idea of attending the opening of the Un Full general Assembly in New York. But amid calls for his abort he canceled the trip when protests broke out in Sudan well-nigh local economic problems.

Fred Ernst/AP Images

Luis Moreno Ocampo, then primary prosecutor of the International Criminal Courtroom, and his successor, Fatou Bensouda, The Hague, July 2008

In prosecuting Kenyatta and his deputy president, William Ruto, the ICC has taken on more than formidable opponents. In 2007–2008, Kenyatta and Ruto were senior members of opposing political parties in Republic of kenya, Kenyatta's grounded in the Kikuyu ethnic group and Ruto's in the Kalenjin. Large-scale violence broke out between the two groups and others when allegations of fraud followed a closely fought election. Kenya has a long history of politicians who try to secure ability by whipping up ethnic violence—and never face criminal charges. An emergency mediation attempt established past the African Union and led by Kofi Annan negotiated an end to the violence. And for the first time, many nations, as well as the AU, pressed for prosecution of those responsible for the killings and other violence that took place during the election.

Considering Kenya'south regular courts had a poor record of dealing with electoral violence, Kenya was asked by Annan and others to set up a special tribunal that would include international judges. Merely twice a bill to create the tribunal was voted downwards by the Kenyan parliament. Not only Kenyatta's allies just Ruto himself led the opposition to the bill. They must accept calculated that a Kenyan special tribunal posed a greater threat than what at the time seemed the distant prospect of prosecution by the ICC. They bet incorrect.

In 2008, a Kenyan commission of inquiry handed to Kofi Annan a confidential list of people behind the violence. It asked him to give the listing to the ICC if the authorities did not establish a tribunal. When it did not, Annan reluctantly handed the list to the ICC in 2009. Kenya's president at the fourth dimension, Mwai Kibaki, encouraged him to do so and promised his government's back up. In 2011 the ICC, in turn, summoned vi Kenyans in connection with violent acts: Kenyatta and two alleged accomplices from one side and Ruto and two alleged coconspirators from the other.

All of a sudden facing prosecution, Kenyatta and Ruto buried their political differences and formed the Jubilee Alliance—sometimes mockingly chosen the Coalition of the Accused. In a hard-fought election in March amid widespread allegations of fraud, the brotherhood was ruled to have prevailed with 50.07 pct of the vote, just above the majority needed to avoid a runoff.

Ominously, the brotherhood campaigned in role by denouncing the court, turning the charges against its leaders into a nationalist protest against interference in Kenya's affairs. Kenyatta conveniently interpreted his narrow victory equally a mandate to ignore the legitimate demands for justice of the victims and survivors of the 2007–2008 violence. That dispensation continues to exist a source of tension in Kenya'southward Rift Valley, the heart of the violence.

As a politician, Kenyatta is imposing. The son of Kenya's founding president whose family unit has amassed an enormous fortune, educated at Amherst, he is savvy, articulate, and capable of deploying substantial resources in his defense. Now, as the elected president of one of Africa's most advanced economies, he has used his new position to open up an offensive confronting the court.

The prosecution, for its office, had already encountered issues with its case. The judges dismissed the charges against two of the six suspects charged by the former chief prosecutor. The new principal prosecutor, Bensouda, dropped charges against a tertiary subsequently a key witness proved unreliable. Seven potential witnesses have been killed and others have apparently recanted their testimony. In October, the ICC unsealed an arrest warrant for a Kenyan accused of being part of a network "devised past a circle of officials within the Kenyan administration" that was bribing witnesses to withdraw from the Ruto instance. In addition, Bensouda said in a court filing in Nov that she has a telephone recording of an associate of Kenyatta attempting to ransom an important witness to withdraw testimony. The defendants, for their part, take defendant people working on behalf of the prosecution of manipulating witnesses and interfering with their drove of prove.

Meanwhile, Kenyatta has mounted a major political attack on the court. Both he and Ruto take made a point of officially cooperating with it, showing up in The Hague when required. Ruto's trial began in September, and Kenyatta'south is scheduled for February, although the prosecutor has requested a delay of the Kenyatta case because of witness problems, suggesting the breadth of the challenges she faces. Aside from this, the ii are doing everything they tin to finish the prosecution.

A special African Union tiptop was convened in October amid speculation that African states might withdraw en masse from the court. When that fizzled—no one withdrew—Republic of kenya was able to get the AU to ask the UN Security Quango to defer the proceedings confronting Kenyatta, on grounds that he is a sitting caput of state.

Rwanda, currently a nonpermanent fellow member of the Security Quango, led the effort in that location on Kenya'south behalf. Such African celebrities as Kofi Annan and Desmond Tutu, too equally Kenyan rights groups and many others, opposed the AU's request. Information technology failed when the Kenyans could not secure even a bulk of the quango's fifteen votes, permit alone the ix votes that would have required the Us, Uk, or French republic to utilise its veto, as at least 1 of them nigh certainly would take.

Rwanda's background illustrates some of the motives behind Kenyatta'south supporters. Its president, Paul Kagame, has been one of the about outspoken opponents of the courtroom. Rwanda's showtime run across with international justice was with the International Criminal Tribunal for Rwanda, a separate court established past the Security Council in the backwash of the Rwandan genocide. The Rwandan government'south relations with that tribunal have been frosty. Its judges did not trust Rwandan courts to deliver fair trials until 2011 and and then insisted on trying genocide suspects themselves. The tribunal also threatened to prosecute members of Kagame's own forces, the Rwandan Patriotic Front, for the murder of thousands of people during and after the genocide that the RPF halted. Since the RPF defeated the genocidal government, Kagame, initially as vice-president and defense government minister and now every bit president, has run the country for the last two decades. There accept been very few prosecutions of RPF members, most of those from lower ranks.

More recently, still, Rwanda may accept come to fear prosecution by the ICC over its back up of a series of violent rebel groups in eastern Congo. Rwanda never joined the ICC, but Congo has, then the court would have jurisdiction over Rwandan officials if information technology could be shown that they aided and abetted mass atrocities on Congo territory. That is the crime for which nonetheless another internationally established tribunal convicted Liberia's old president Charles Taylor in 2012 for his direct support of the rebel grouping Revolutionary United Front, in neighboring Sierra Leone. That group was notorious for cutting off limbs.

Kenya has been making two main arguments in its defense, and it is increasingly backed by the African Union, which is acting more like its predecessor, the Organization of African Unity—often dubbed a Dictators' Society—than an organization committed to the democratic and human rights principles on which it was founded in 2000.

Kickoff, Kenya contends that the court's so-far exclusive focus on African crimes is unfair, a modern-24-hour interval form of colonialism. As Kenyatta put information technology in a voice communication at the AU summit in October, the ICC "stopped being the dwelling of justice the twenty-four hours information technology became the toy of failing imperial powers." African leaders, many of whom have their own reasons to dislike a precedent of belongings heads of country to account for their crimes, have been particularly receptive to that view. It is hardly surprising that the strongest backers of Kenya have been Ethiopia and Rwanda—which accept never joined the ICC and have a history of dispensation for serious crimes—and Uganda, whose President Museveni has go increasingly autocratic in his twenty-eight-year reign and whose ain forces take a long history of violent abuses.

That war criminals still run costless where the court cannot human action is inappreciably reason to refrain from prosecution where information technology can. Yet on a continent whose people have suffered under colonialism, the accuse that they are subject to an international standard of justice that no one else actively faces—non in Afghanistan or Iraq, not in Sri Lanka or Israel—resonates amidst African leaders and some of their constituents. And while most European governments accept accustomed the court'due south jurisdiction, it doesn't help that some of the world'southward most powerful nations—the Us, China, Russia, and India, to name a few—take not.

The charge of selective prosecution receives less support among the African people who are the victims of ruthless leaders. Members of African civil lodge have been quick to signal out that the ICC, which under its statute must defer to genuine national prosecutorial efforts, is merely responding to Africa's failure to prosecute its ain mass atrocities. The culling to ICC prosecution in the cases it has taken on would be no prosecution at all—no justice for the countless Africans who have been murdered, tortured, raped, or forced to become child soldiers. To this 24-hour interval, Kenya has not fabricated skilful on its promises to launch its own prosecutions. Instead, its current leaders want the consequence but to go away.

A second statement put forward by Kenya—and strongly supported past some members of the African Union—is that a caput of land should be exempt from prosecution for the duration of his term. Kenya has used the September set on of the Islamist armed group al-Shabaab on the Westgate shopping mall in Nairobi to back up this argument. Kenyatta contends that he should not have to be diverted by an ongoing prosecution in The Hague from his important duties combating terrorism at domicile. His argument besides contains an implicit bribery—Western nations should not count on Republic of kenya's aid in containing al-Shabaab if they proceed to support bringing Kenya's leaders to justice.

However, a central purpose of the ICC is to prosecute government leaders who might otherwise apply their positions of ability to secure impunity for their crimes. In line with international police and exercise since the Nuremberg Trials, the ICC'south governing statute—the Rome treaty, which all members including Kenya have ratified—provides that "official capacity as a Head of State or Regime…shall in no instance exempt a person from criminal responsibility."

Kenya's ain constitution, while granting other limited forms of presidential immunity, denies such amnesty for crimes under an international treaty similar the ICC'southward. Other heads of country have been pursued by international tribunals, including Bashir, Taylor, Great socialist people's libyan arab jamahiriya's Muammar Qaddafi, and the onetime Yugoslavia's Slobodan Milošević. Moreover, a policy of refusing to prosecute sitting heads of state could hands get an incentive for leaders facing criminal charges to do whatever it takes to remain in part, including committing more than of the mass atrocities that the ICC is supposed to be helping to preclude.

The standoff betwixt Republic of kenya and the ICC remains unresolved. Kenyatta and Ruto go on to make a show of cooperating with the courtroom in order to avoid the issuance of arrest warrants and the ensuing pariah status now faced by Sudan's Bashir. Legislation in the Kenyan parliament urging Kenya to withdraw from the ICC has not been acted upon. Yet that sparse veil of cooperation barely masks the frontal attack that Kenyatta and Ruto have launched on the court. And so far all that Kenyatta and Ruto have obtained for their efforts is a relaxation of the requirement that they attend their trials, if the judges approve. But they are pressing for more. Meanwhile the ICC prosecutor is struggling to curtail the apparent witness-tampering that could destroy its cases—partly through a witness-protection plan and the revived threat of prosecution, and partly by a new rule that permits introduction of a witness'southward "prior recorded testimony" if he is no longer bachelor considering of intimidation or death. Information technology remains to be seen what happens in the Kenya cases, just perhaps the most of import battle for the ICC will be in African countries, particularly if the African Union makes immunity for sitting heads of state a boxing cry.

Until now, almost African leaders' support for Kenya'due south position has been limited to sympathetic rhetoric. They have done nothing to repudiate the courtroom that is conducting the prosecution. Yet with their political futures and personal liberty at gamble, Kenyatta and Ruto appear to have no qualms about trying to bring the courtroom downwardly. If they could orchestrate a mass African defection, they undoubtedly would, and this could be devastating for international justice. The court's future now rests to a large extent on the boxing being waged between African leaders with little interest in justice and those Africans, including many activists and victims, who see an end to dispensation for mass atrocities as essential for Africa's future. One can only hope that the welfare of African people takes precedence over the perceived interests of African leaders.

—January viii, 2014

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Source: https://www.nybooks.com/articles/2014/02/06/africa-attacks-international-criminal-court/

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