The International Criminal Court in The Hague is about to open a formal investigation into post-election violence in Côte d’Ivoire at the request of the country’s new president, Alassane Ouattara… In Libya Colonel Muammar Qaddafi, Africa’s longest-serving leader, is wondering whether he may face the same fate, after the ICC’s chief prosecutor announced that he was seeking three arrest warrants (with names so far undisclosed) for those deemed most responsible for the killing of hundreds of unarmed people since pro-democracy protests began in February…. In The Hague a verdict is expected within months at the trial of Charles Taylor, Liberia’s former president, before a special court dealing with Sierra Leone. In Sudan President Omar al-Bashir is still wary of falling into the ICC’s net, three years after being charged with genocide in his country’s western province of Darfur.
The court’s statutes let it prosecute people for suspected genocide, crimes against humanity and war crimes committed in any member state when that state is “unwilling or unable” to do so…This has usually been done at the request of the state itself, as in Uganda, the Central African Republic (CAR) and Congo. But it can also investigate atrocities in non-member states at the request of the UN Security Council, if deemed to threaten regional or international peace and security. This is what happened with Darfur, where the Security Council first drew the court’s attention to the atrocities. Now the council has also referred Libya to the court.
This has been a tricky route. Three of the Security Council’s five permanent members—America, Russia and China—did not sign up to the ICC. A threatened veto by just one of them is enough to block a mooted referral. But with Darfur, international alarm over the spreading rape and bloodshed persuaded America and China to abstain rather than oppose Sudan’s referral in 2005. Since then the UN Security Council has sent only one other such case to the court. But the court’s boosters have taken heart from the unanimous vote against Libya in February, arguing that it may mark a milestone in the nine-year-old outfit’s struggle for worldwide acceptance. Most of the Arab world refuses to accept a court that much of the poor world still sees as a Western-dominated tribunal, intent on holding the have-nots to account while giving impunity to the rich and powerful. Jordan is the ICC’s only Arab member.
These days the ICC’s biggest opponents are in Africa, which provides the court with its biggest group of members (31 out of 114) and is the scene of all the cases currently being investigated or prosecuted: in the CAR, Congo, Côte d’Ivoire, Kenya, Libya, Sudan and Uganda. Accusing the court of unfairly targeting African countries, the 53-member African Union (AU) is again calling for “African solutions to African problems”. It particularly dislikes the court’s increasing willingness to go after sitting presidents. At its summit next month it plans to extend the authority of its African Court of Justice and Human Rights to cover criminal as well as civil cases. …It may not work. The reason so many African cases are before the court is not because of bias; all the ICC’s cases have been referred to it either by the UN Security Council or by the countries themselves. It is because the standards of justice in Africa are often poor… The ICC was set up as a court of last resort. It may not take on cases if the country concerned has a competent, independent justice system ready to prosecute alleged perpetrators and give them a fair trial. Its statutes say nothing about having to defer to regional courts. Many autocratic African leaders appear ready to protect their erring colleagues from the law in case they may one day need the favour returned…
The ICC’s big weakness, apart from its astronomical cost and drawn-out procedures, is its dependence on others to help arrest suspects. But even this may be changing. South Africa and Botswana have said Mr Bashir is not welcome. Congo has handed over three of its suspects to the court and France a fourth, while Belgium has handed over Jean-Pierre Bemba, a former Congolese vice-president, for alleged atrocities in the CAR. America is actively supporting the hunt for four rebel leaders of Uganda’s Lord’s Resistance Army, which continues to wreak havoc in the region. Some suspects, including three Darfuri rebel leaders and six Kenyans, have appeared voluntarily before the court. Five others are in custody, including four on trial. So the court, though still widely regarded in Africa with suspicion and sometimes even derision, may yet prove to have teeth.
Excerpts, International justice in Africa: The International Criminal Court bares its teeth, Economist, May 14, 2011, at 57