The credibility of the ICC and the folly of the African Union

Okot Nyormoi

When the International Criminal Court (ICC) was created in the year 2002 the expectation was that the court would do some good for a troubled world. More than ten years on, it is not unfair to ask of the ICC, if it has done the world some good.

From the very start the effectiveness of the ICC was compromised because of American failure to sign up to the ICC Rome Convention. Understandably America feared that the enemies of the United States, and there were no shortage of them, would use the court to mount attacks on America or its representatives. It knew, much as it would not admit it, that certain past actions of some American leaders amounted to crimes against humanity in the eyes of many outside and inside America. Think of the invasion of Iraq and its aftermath.

America accordingly maintained that it had full confidence in its own courts and that the best way to combat serious crimes in the world or crimes against humanity was to build credible domestic judicial systems. It held up its own as an example. To be fair American courts have done some good work.

This however begs the question: How do you on earth build a credible judicial system in countries like Rwanda, Uganda, Kenya, to cite just a few, where the government enjoys full control of the judiciary and administers its own justice as a matter of course. How do you do this?

As if these problems were not enough in themselves, Luis Moreno Ocampo, the first head of the ICC did not help matters much. At a time when there were strong indications that both sides in the protracted war in Northern Uganda had committed serious crimes against humanity, Ocampo saw it fit to indict only one side. In a celebrated joint press conference with President Yoweri Museveni of Uganda whose hospitality he was enjoying, Ocampo announced the indictments of and issued arrest warrants for the leadership of Joseph Kony’s Lord’s Resistance Army and left out the President and his army who at the time held close to 2 million people in concentration camps throughout Northern Uganda under appalling conditions where preventable deaths were a daily occurrence.

This kind of action by the Chief of the ICC caused the court serious credibility problems, and promoted the notion that certain Presidents could not be indicted regardless of the enormity of their crimes. By all means indict President Omar Al-Bashir of Sudan over his role in Darfur. But don’t leave out the others.

Today the notion that certain leaders are untouchable is being aggressively promoted in the case of the President and Vice President of Kenya who have been indicted for orchestrating the 2007 post election violence in their country. To cement this notion Kenyan Parliament has recently voted to withdraw Kenya’s membership in the ICC; a move that Kofi Annan has called a violation of the humanity of the victims.

As if to dramatize impunity President Uhuru Kenyatta himself has now accused the ICC of racial bias. A sentiment echoed and understandably supported by President Yoweri Museveni and Paul Kagame of Rwanda. Kagame, it may be recalled, is worried over his own reported role in the death of President Juvenile Habyrimana of Rwanda, the assassination that triggered the 1994 genocide.

At the last African Union extraordinary summit in Addis Ababa October 2013; African leaders shamelessly and openly backed the Kenyan leader, urging that duly elected leaders should not be prosecuted by the ICC because they have responsibilities to their countries. This was a throwback to the bad old days when the AU or is precursor played the role of trade union of African leaders and ganged up against citizens fighting for human rights in Africa.

That the destiny of a continent should now be in hands of persons like these is for Africa, a catastrophe of immense proportion.

The accusation of racial bias against the ICC freely hurled by such leaders, does not negate the fact that many of the crimes against humanity occur in Africa. Should it surprise anybody that most of the individuals indicted by the ICC are Africans? Charles Taylor, Laurent Gbagbo, Omar Al-Bashir, William Rutu, Uhuru Kenyatta.  This list goes on but a whole lot more need also to be indicted