Africa to world's top court: Stop picking on our leaders
Kenya is staging a diplomatic revolt against the International Criminal Court and the West as President Kenyatta is told to stand trial in February.
Plus, a view from the Mai Mahiu refugee camp.
Nairobi, Kenya — In northern Uganda, a former altar boy-turned-rebel commander led an army of kidnapped children in a years-long terror campaign that pushed more than a million people into displacement camps.
In Darfur in western Sudan, armed attackers riding horses and camels swept through the desert, targeting members of rival ethnic groups, raping, looting, and killing. Allegedly sent by the country's elected leader, they killed as many as 450,000 people and forced 2.9 million to flee their homes.
In Ivory Coast, an embattled president desperate to cling to power allegedly ordered his Army, alongside loyal private militia, to rape, persecute, and murder supporters of his election rival.
These are three of the eight cases currently before the International Criminal Court (ICC), the world's only permanent tribunal specifically set up to prosecute individuals for genocide and crimes against humanity – and whose legacy dates to the Nuremberg trials after the defeat of Nazi Germany.
Before it began work in March 2003 there was no full-time mechanism for international justice to pursue those accused of the world's worst crimes, and to seek retribution on behalf of victims.
Yet now the ICC, based in The Hague in the Netherlands, faces its sternest test yet, a worst-case scenario in which the court's credibility has been seriously damaged amid accusations of colonialism, bias, and incompetence.
Those claims spring from the fact that all eight cases so far on the ICC's books emanate from Africa, and every one of its 32 indictees is African. Is this body created for international justice in fact only chasing African crimes?
That's the view of the angry African Union, which calls the ICC a "race hunting" tool of a "declining" West. But now a crunch case from Kenya raises the stakes further: After a Nov. 15 vote the United Nations Security Council said that President Uhuru Kenyatta, elected in March despite ICC charges of crimes against humanity, may not use his executive status to delay his trial by a year.
That is leading to a full-scale diplomatic uprising by the Kenyan government and the AU against the ICC – even while 67 percent of Kenyans think that their leaders should stand trial.
A work in progress
To be sure, the ICC is and has been very much a work in progress. It is lambasted for its high costs, a glacial trial pace, and for a perceived lack of clout. Yet it has, at least as an ideal, powerful support around the globe as a nod toward accountability; and one day, as the wheels of justice grind slowly, it may have more authority.
"I've worked in war-damaged parts of Africa since 1980, and I've seen truly terrible things take place that were dismissed as, well that's just what happens," says Tim Allen, director of the justice and security research program at the London School of Economics.
"Since the ICC came into existence, that impunity is gone. For the first time, there is a discussion in these places about how justice can be applied, about there being something we can do, rather than the powerlessness of before."
Along with its Nuremberg roots, the ICC is a direct descendant of the ad hoc tribunals for the former Yugoslavia and Rwanda that prosecuted those who presided over the killing fields of Srebrenica and Kigali, respectively, in the 1990s.
The ICC was established during a spasm of internationalist idealism between the end of the cold war and 9/11; its founding philosophy was that never again would the world's powerless have nowhere to turn.
The 1998 arrest in a private London hospital of Chile's former leader, Gen. Augusto Pinochet, only added to the enthusiasm that a game-changing era of accountability was arriving. (Pinochet was let go on medical grounds – but not before what has been called "the Pinochet effect" offered an implicit warning to the ruthless that someone was starting to watch.)
Yet since the ICC took up its work in two towers connected by a gleaming sky bridge, its effect is unclear. This fall and winter, legal proceedings continue for Mr. Kenyatta and his deputy, William Ruto – former political foes who joined in a surprise alliance to win the March election in Kenya by a whisker.
Both men deny charges of crimes against humanity over alleged orchestration of weeks of violence that followed Kenya's disputed 2007 presidential elections.
The two say they were elected by voters who knew they were under indictment by the court but voted for them anyway.
Both men promised last spring to face the court whether elected or not – prompting Kenya's media to joke about "ruling by Skype" from the Netherlands. Mr. Ruto's trial began in September.
The two men have been asking the ICC to allow them unfettered time to serve their elected offices. They promised to go to The Hague later to clear their names.
That violates Kenya's own Constitution, which grants no such international immunity even to the president, and it goes against the Rome Statute that established the ICC, which Kenya at the time gladly and even proudly signed.
In Kenya, official efforts to defer the trials have been keenly followed. Some bids have been technical – the unavailability of witnesses, for example. Other bids have been political – Ruto was excused for a week to deal with the fallout from the Westgate mall terror attack.
Kenyatta did succeed in deferring his Nov. 12 court date to February. But the Security Council – with Russia, China, Pakistan, and Azerbaijan on one side, and Britain, the United States, South Korea, Australia, and France on the other – has now said there can be no further court delays.
That is leading Kenya toward a new animosity toward the court and a new narrative that claims the ICC is a tool of a still-imperialist West that ignores crimes committed by its own leaders and unfairly targets Africans.
After the Security Council decision, Kenya raised eyebrows with official statements in which it deigned to speak for all Africans: "It cannot be that a few countries take decisions that go against reason and wisdom in a matter so important to nearly 1 billion Africans," it said.
Still, Kenya and the AU seem reasonable in asking why the ICC has not prosecuted cases from Iraq, Afghanistan, Syria, or the Palestinian territories.
(To be fair, the ICC's chief prosecutor, Fatou Bensouda, herself an African from Gambia, is investigating alleged crimes in Honduras, Afghanistan, Georgia, and Colombia. A UN panel is also looking into the prison gulag system in North Korea.)
There are debates about the expense of ICC trials and salaries, and suggestions that local tribunals in Africa would be more sensible from a pocketbook standpoint. In a study of Rwanda's post-genocide domestic community "Gacaca" courts, prosecutions ran at $50 per accused; the international tribunal's price tag averaged $20 million per suspect.
There is skepticism as well over cultural differences. What link is there between the ICC in the Netherlands, with its well-ordered canals and perfect fields of tulips, and the villages of Congo, where the electricity often shuts off. Can former child soldiers relate to the ICC's high-tech wood-paneled modern courtrooms and robed authorities?
The recent antipathy reverses an initial enthusiasm in Africa for the new court. In the early 2000s, African leaders were among the quickest to sign and ratify the Rome Statute. Today, 34 of the continent's 54 nations are members.
Of the eight cases before the ICC, four began at the request of the African countries where the alleged crimes took place: Uganda, Mali, Congo, and the Central African Republic.
Two others cases – involving Darfur and Libya – were launched by the Security Council but supported by African nations sitting on the Council at the time.
Even Kenyatta and Ruto in their earlier political careers vocally supported sending Kenyan election violence cases to the ICC.
Africa's initial enthusiasm to associate itself with this global tool of justice had a lot to do with decades of civil wars and rebellions, and their accompanying atrocities, which were carried out without any payback ever taking place.
"The genocide in Rwanda [in 1994] was a turning point," says Stephen Lamony, a senior adviser at the Coalition for the International Criminal Court, a collection of 2,500 civil society organizations from 150 countries.
"There was a feeling that the international community had turned its back on Africa too many times, and it had nowhere to turn. Joining the ICC was a way for African leaders to stand with the rest of the world and say 'never again.' "
Now, some of those leaders no longer take the same stand.
A toy of declining imperial powers?
The AU, at an extraordinary summit in October ahead of Kenyatta's scheduled court date of Nov. 12, agreed that no serving head of state should appear before the ICC or any other such international tribunal.
At the same gathering, Kenyatta himself singled out the US and Britain for "politicizing" a court that applied double standards.
"The ICC has been reduced into a painfully farcical pantomime, a travesty that adds insult to the injury of victims," he told the AU summit in his most forceful comments on the court yet.
"It stopped being the home of justice the day it became the toy of declining imperial powers. The West sees no irony in preaching justice to a people they have disenfranchised, exploited, taxed, and brutalized."
It would be wrong to suggest that "Africa," a collection of 54 countries, speaks with one voice in its apparent shift away from support for the ICC, no matter what the AU Secretariat would claim.
Countries including Botswana, Chad, Ghana, and Senegal have indicated they would not follow any future order from the AU to follow Kenya's lead and withdraw from the court.
Even if that were to happen – and most agree it won't – it is too late, says Professor Allen of the London School of Economics.
"One of the great powers of the ICC is that it is a permanent court; there is no mechanism for stopping prosecutions against individuals," he says. "Maybe they are not going to be prosecuted now, maybe it will be in 10 years, or 20, but the only way anyone can get rid of an ICC charge is to go to the court and go through the process of clearing their name."
John Campbell, the former US ambassador to Nigeria and now an Africa analyst at the Council on Foreign Relations in New York City, says that Africa needs the ICC, despite its flaws.
Mr. Campbell points to a recent Amnesty International report on Boko Haram in Nigeria noting that not a single member of the group has been charged with a crime despite years of slaughtering victims including schoolchildren, Christians, wedding parties, and moderate Muslims. (On Nov. 13 Boko Haram was officially placed on the US terror list.)
"The problem with Africa is a lack of accountability, poor governance, and the looting of the state, but mainly [governments that are] unaccountable," Campbell says.
"I don't want to see this basic issue lost in a lot of talk about cultural imperialism from the West in the form of imposed courts. The question is: Are you allowed to murder? That question predates Western modernity."
In the Pinochet effect, the simple presence of the ICC is credited with causing some bad guys to pause who might have assumed before that they could act with impunity.
"The most extraordinary thing is that today you can go to a village in South Sudan, Congo, Uganda, a long way from a capital city, and have a serious discussion about what it means to allocate impunity, to seek justice, [to ask] what kind of justice you want," Allen says.
New forms of justice and accountability create powerful new dynamics in people's minds, he says. "Once you open Pandora's box, it is very difficult to get the lid back on."
SIDEBAR FROM MAI MAHIU CAMP
Refugees losing hope that the ICC will help
On the floor of East Africa's Rift Valley, beneath high escarpments and in the shadow of dormant volcanoes, families that fled Kenya's post-election violence six years ago are settling on new land far from their old homes.
They first took refuge here in flimsy shelters thinking they would soon return to their farms. But now they live in stone houses with tin roofs.
They are among 600,000 victims displaced into camps following violence during the disputed elections. Some 1,300 people died.
The International Criminal Court was established to advocate for victims and to fight for justice. Yet many here say the ICC is failing the displaced people of the Mai Mahiu camps, 30 miles west of Nairobi.
"It is not about us victims," says Joel Mwaniki, who says the court should have been involved in the resettlement of victims before the trial started. Mr. Mwaniki first supported the court but has become disillusioned after six years in the camp.
Margaret Wambui, who helped form a subcamp here called Vumilia-Eldoret, says investigations carried out by former ICC chief prosecutor Luis Moreno-Ocampo were flawed.
"We are the ones who saw and experienced the violence. But when the prosecutor came here, he never talked to us," she says, adding, "Let's forget what happened so that we continue to live together in peace.... It's over. I don't think the ICC is important anymore."
With a five-gallon water can strapped to her back, Janet Njeri, a mother of four, says many victims had forgiven each other and moved on.
"I don't think the ICC will bring any meaningful change, because if one lost a child or a parent, they will not be resurrected because [the person responsible] has been jailed," she says.
Most people here say they watch the ICC trials closely. But some have given up. Peter Kamau, a shoe salesman, says his greatest concern is his daily survival. "My business was doing very well before the violence. I lost everything, but my priority now is to revive it, not the ICC cases," he says.
Not everyone is bitter about the trials. Mine Nyamatha says victims cannot move toward forgiveness without feeling a greater sense of justice.
"I am afraid we have not healed as a country. These cases are opening old wounds that can spark new violence," she says.
Indifference to the ICC has even grown around Eldoret, a town in the west that was the epicenter of violence. Community leader Wesley Chirchir says people have been surprised by the evidence presented in The Hague, as the trial of Deputy President William Ruto began.
"[The ICC prosecutors] seem not to have done their work well," he says in a phone interview. "The witnesses are trying to ignite past differences."
Yet the idea that the cases should be dropped is a minority view in Kenya, says Audi Ogada, a civic leader in Kisumu, a city near Lake Victoria that is a stronghold of opposition to President Uhuru Kenyatta.
"Generally Kenyans are demanding justice," Mr. Ogada says. "The victims must get justice, and that means the ICC must prosecute the people who participated in killings, destruction of property, and displacement of people."