International Criminal Court (ICC) Prosecutor Luis Moreno Ocampo has said he will charge six Kenyans – mainly politicians – for alleged involvement in the country\’s 2007 post-election violence.
For better or worse, the decision is likely to have a profound effect on the Kenyan political environment.
It will undoubtedly generate widespread commentary in the Kenyan legal, political and civil society circles, Africa as a whole and abroad. One of these comments is likely to be the familiar charge that the ICC targets Africans – even though in most instances; cases before the ICC were referred to the court by Africans themselves.
The argument is that the ICC has ignored, and is unlikely to investigate and prosecute human rights abuses, war crimes and genocide in other parts of the world.
Why have former US President George W Bush and former British Prime Minister Tony Blair not been charged for the excesses of US and British marines in Iraq, which some believe might pass the legal test of "war crimes", it is asked.
Similarly, why are Israeli generals and their political principals not charged for their routine military adventures in Palestine? Is Africa the only place where serious crimes are committed?
This school of thought asserts that the ICC is constrained by the imbalance of global power relations, preventing it from prosecuting citizens of any of the permanent members of the UN Security Council – the US, Russia, China, France and the UK – or allied states.
China, Russia and the US are not parties to the ICC treaty; they do not recognise the court\’s jurisdiction. (The US initially signed the treaty but withdrew its stand). This reinforces the fear that power rather than justice is the inherent arbiter of ICC decisions.
The US has previously expressed its right to invade The Hague, the ICC\’S seat, to free any American citizen who might be brought before the court.
The Heritage Foundation and American conservative think tank, argues that US ratification of the ICC treaty "would…….be unconstitutional because it would allow the trial of American citizens for crimes committed on American soil, which are otherwise entirely within the judicial power of the US. The Supreme Court has long held that only the courts of the US as established under the constitution can try such offences".
India, another non-signatory, has raised "concerns about the possible conflict between robust, national judicial processes and international tribunals (and) the impact of such tribunals on national sovereignty".
Critics point out that as non-signatories to the ICC, the US, China and Russia have their cake and eat it: they participate in ICC-related matters at the Security Council. In terms of the ICC treaty the council can refer a matter to the ICC for investigation. That was the case with Sudanese President Omar al-Bashir in 2005.
The council can also ask the ICC to defer a matter for renewable period of 12 months. It was on this basis that in the past two years, the African Union (AU) twice asked the council to defer Bashir\’s warrant of arrest for 12 months while it engages in processes to find solutions to Sudan\’s many political problems. The Security Council has not responded to the AU.
The intricacies of conflict situations also call for greater circumspection. The ICC prosecutes cases were the national judicial system is either unwilling or incapable of prosecuting or otherwise refers a matter. But there may be legitimate reasons that might prevent a national prosecution authority from prosecuting alleged criminals as in an ongoing conflict. In this instance the inability to prosecute does not necessarily mean unwillingness to prosecute.
The ICC\’s intervention on instances where there are conflict resolution exercises can complicate matters: it might embolden either of the parties, to the detriment of the conflict – resolution process. Thus one or more of the parties might harden their stance in the hope that sooner rather than later their opponent will be sitting behind bars. The threatened party might also develop recalcitrant positions that have nothing to do with addressing the domestic challenge, but seek instead to address the ICC threat.
And if effected the arrest of either one of the parties might dramatically alter a country\’s political situation altogether.
Whereas there exists a global consensus that Sudan\’s interests lie in the successful resolution of the Darfur conflict, bringing war crimes perpetrators to justice, reconciliation and the successful holding of the Southern Sudan referendum – all of which require the co-operation of the government of Sudan- the ICC arrest warrant for Bashir contradict these desired outcomes.
Many analysts have speculated widely about how the South African transition from apartheid to democracy might have proceeded if the ANC had pursued a Nuremberg approach to apartheid politicians, military and police generals.
Yet, in Sudan, little if any consideration is given to the effect that Bashir\’s arrest might have on the peace and democratization processes. How would the Sudanese population, the military and the broad political class respond?
Inherent in the South African experience which has relevance to Africa and the world is that justice cannot be the only objective of post-conflict societies. Peace reconciliation and political stability are of equal importance and ought to be pursued as part of a series of measures to move a society beyond its divided history into a shared failure.
The ICC appears insufficiently appreciative of these considerations without which justice might be difficult to achieve; and if these considerations are ignored whole societies can descend into a senseless orgy of blood-letting.
It is also not apparent that it has the capacity to dispense justice in an even-handed manner. It might be time for Africa to rethink its experiment with the ICC.
Africa needs to invest in an African Court that must dispense justice without fear or favour while being mindful of the dangers inherent in all forms of fundamentalism, including judicial fundamentalism.
Moloi is a freelance writer in Johannesburg. The article was published in The Star.