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Justice Delayed is Justice Denied
03/11/2013
A couple of weeks ago, the Heads of States and Governments of the African Union convened a summit on the case of African relationship with the International Criminal Court in Ethiopia's capital Addis Ababa. After wrangling over wording of the final communiqué, one senior delegate described the result as a "good compromise." Kenya said it had not sought a walkout of ICC but others had called for the idea.
The start of the trial for crimes against humanity of Kenyan Deputy President William Ruto, with President Uhuru Kenyatta's trial due in November, has stirred a growing backlash against the Hague-based court from some African governments, which see it as a biased tool of Western powers.
ICC prosecutors accuse Ruto and Kenyatta of fomenting ethnic bloodletting that killed about 1,200 people after a disputed election in December 2007. They both deny this.
While the Kenyan politicians have cooperated with the court, Sudan's Omar Hassan al-Bashir and his co-indictees are now subject to an arrest warrant after dismissing charges of war crimes, crimes against humanity and genocide in Darfur.
The African Union and Kenya asked the United Nations Security Council to defer the trials of Kenya's leaders at the ICC for one year so they can deal with the aftermath of the Nairobi mall attack.
The ICC has shown "double standards" by pursuing only Africans so far, Ethiopia's prime minister, Hailemariam Desalegn, said.
"We underscored that sitting heads of state and governments should not be prosecuted while in office," Ethiopia's Tedros added.
"The ICC should expand its work outside Africa, but it does not mean that its eight current investigations in African countries are without basis," Amnesty's deputy director of law and policy, Tawanda Hondora, said in a statement.
"Demanding respect is the least Africa can do, but I also don't like to see this mistaken for - as we have seen with some of the detractors of this exercise - that Africans are supporting impunity. We don't," Rwandan Foreign Minister Louise Mushikiwabo told Reuters.
Finally the ICC blinked and gave Mr. Kenyatta a three months postponement on his trial. It was the third time that the prosecution has been postponed. We say justice delayed is justice denied.
"Such a resolution would serve no purpose except to shield from justice, and to give succor to, people suspected of committing some of the worst crimes known to humanity," Amnesty's deputy director of law and policy, Tawanda Hondora, said in a statement. We agree.
African officials seem to make two glaring arguments against prosecution of their counterparts who committed those heinous crimes against their own peoples in The Hague. The first is that only African leaders are held to account for their crimes by the Security Council of the United Nations through application of The Rome Statute of the International Criminal Court. The second is that, while they don’t condone those crimes, the perpetrators should be allowed to serve their countries and face prosecution only at home.
Regarding the first argument, a cursory review of the history of the Security Council and the ICC prosecutorial activities does not support African leaders’ claim of bias.
While atrocities in Cambodia and Peru, for instance, were addressed through national forums, both countries used the expertise of international resources including the UN which created the Extraordinary Chambers of the Courts of Cambodia and the Inter-American Court of Human Rights, respectively. The case of the former Yugoslavia is most similar to the currents prosecutorial cases in Africa.
The UN Security Council created the International Criminal Tribunal for the former Yugoslavia which became the precursor to ICC. The Tribunal indicted Slobodan Milosevic as the first sitting head of state in history by an international court. The ICTY now has indicted 161 persons, sixty four of which have been sentenced (See a complete list of indictees at http://en.wikipedia.org/wiki/List_of_people_indicted_in_the_Internationa...).
Some of the other prominent indictees include Milan Milutinovic, former president of Serbia; Ratko Mladic, Bosnian Serb Army commander; Radovan Karadzic, former president of Republika Srpska; and Milan Babic, prime minister of Republika Srpska Krajina.
With regard to the second argument, Africa can’t prosecute its own sitting leaders. The three branches of government in most African nations are not sufficiently independent to function effectively. The legislators don’t enact adequately robust laws to protect minorities or deter government officials from abusing its police powers. When coupled with a judiciary system that can’t enforce strong punitive judgments against officials within the administration, you have leaders who have absolute power and are absolutely corrupt.
So, other perpetrators of political crimes against humanity outside of Africa have been held to account by the international community and Africa neither has the political will nor the legal infrastructure to conduct meaningful trial of leaders who commit crimes while in office.
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