The battle against impunity goes on
Despite African leaders' brickbats, the court is still fighting for justice
Oct 31st 2015 | From the print editionhttp://www.economist.com/news/middle-east-and-africa/21677253-despite-african-leaders-brickbats-court-still-fighting-justice
The fight over RutoEVER since an incumbent president, Sudan's Omar al-Bashir, was indicted in 2008 for genocide and other alleged crimes, the pendulum began to swing against the International Criminal Court (ICC), at least in Africa. Some people, especially African leaders, think it biased, since all those so far convicted have been African. Earlier in October a South African deputy minister said his government was planning to leave the court. Kenya's parliament, nettled by the indictment of the two men later elected president and deputy president for crimes against humanity following a murderously disputed election, has previously called for Kenya to quit too. Uganda's president has urged African countries to leave en masse.
Even though more than half of the countries in the African Union (AU) are signatories to the ICC statute and were once its keenest backers, the AU has set up a rival court. Under a protocol proposed (but not yet ratified) last year this new court may exempt incumbent leaders and senior officials from being charged. That would make it a feeble substitute for the ICC, which aims to try even the loftiest of leaders if they slaughter their people. Bearing in mind the carnage in such places as Rwanda, Darfur and former Yugoslavia, the ICC insists that no one should have impunity.
But in mid-October the AU called for the ICC to interpret one of its rules in such a way that its case against Kenya's deputy president, William Ruto, would be weakened and even scuppered; the charges against President Uhuru Kenyatta were dropped last year. South Africa's government also seems bent on poking the court in the eye by inviting Sudan's president, Mr Bashir, to attend a China-Africa summit in Johannesburg in December, even though South Africa is bound by international law as a result of its ICC membership to arrest him and send him to The Hague, where he has been indicted for orchestrating mass murder and rape in Darfur. If South Africa welcomes him again, as it did in June, it would be another setback for the court.
Yet the ICC is not giving up, in Africa or elsewhere. For one thing, it is uncertain that South Africa will leave it. President Jacob Zuma has been more equivocal on the matter than his deputy minister. South Africa's own judges, not to mention its civil society, still intend to meet its government's obligations to the court. They guess—and doubtless hope—that the government will not in the end risk the damage to the country's reputation for upholding international law that an exit from the ICC might entail.
The AU's stand on the Ruto case is complicated, too. It rests on the interpretation of a rule that allows evidence to be taken into account even if the person who originally provided it later withdraws it, as has been the case in Kenya, where a clutch of witnesses have recanted; others have died or disappeared. The ICC's chief prosecutor, Fatou Bensouda, believes they were all interfered with. The Kenyan government and the AU both say that the court agreed not to apply the rule in Mr Ruto's case. Not so, says the prosecutor.
Ms Bensouda, a Gambian, is particularly keen to reject the charge that the court is biased against Africans. She notes hopefully that most African governments continue to co-operate with it. In September the court set a precedent when Niger arrested Ahmad al-Faqi al-Mahdi, a Malian jihadist, and sent him to The Hague, where he was charged with the war crime of ordering monuments and shrines in the city of Timbuktu to be sacked.
October's opening of a full investigation into crimes committed by Russia and Georgia during their war in 2008 lends weight to Ms Bensouda's assurance that the court is not focused just on Africa. In fact, though her team is investigating crimes in eight African countries—the Central African Republic, the Democratic Republic of Congo, Kenya, the Ivory Coast, Libya, Mali, Sudan and Uganda—it is also conducting preliminary examinations in Afghanistan (where Americans could in theory be charged), Colombia, Honduras, Iraq (where British soldiers' conduct is being looked at), Palestine (where Israeli as well as Palestinian behaviour is being scrutinised) and Ukraine. That is hardly an exclusively African tally of wickedness.
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