Respect for the rule of law is one of the founding principles of the African Union (AU). It should therefore come as no surprise that African states make up the largest regional membership bloc of the International Criminal Court (ICC), whose mission is to tackle the worst crimes known to humankind when national courts cannot or will not do so.
What is surprising, however, is the recent assault on the ICC from within the African Union, despite, as outlined in a recent communiqué of its Peace and Security Council, its "unflinching commitment to combating impunity." Several of the AU's North African members - who are not, incidentally, parties to the ICC - are trying to undercut its support on the continent. This assault follows the court's decision earlier this year to issue an arrest warrant for President Omar al-Bashir of Sudan for war crimes and crimes against humanity. Critics claim that because of its exclusive focus to date on Africa, the ICC is an "instrument of colonialism" that is unfairly targeting leaders on the continent while crimes committed by more powerful states remain unaddressed. As several Darfurian civil society activists I met in Banjul recently rightly noted, though, this criticism conveniently forgets the thousands of victims who would be without redress for their unspeakable suffering if not for the ICC. These activists are not alone. From Cape Town to Addis Ababa, in addition to Banjul, over a hundred civil society groups have voiced their support for the court and have urged the AU to do the same.
The New African magazine has called for a debate on why international non-governmental organizations such as Human Rights Watch "often appear to pick on African personalities." Certainly we have to recognize that part of the criticism of efforts to ensure justice for crimes in Africa is rooted in the fact that international justice currently operates on an uneven playing field. More powerful states are in a better position to shield their leaders from the arm of justice. The veto power of the five permanent members of the UN Security Council - the United States, Russia, China, the United Kingdom, and France - means that referral of situations to the ICC by the council is currently far less likely for crimes committed by these countries and their close allies than for states without such support.
There is no question that this playing field should be leveled. Human Rights Watch consistently presses for justice for serious international crimes regardless of where they are committed, including through prosecutions of Bush administration officials implicated in torture, and Russian and Israeli commanders responsible for war crimes. In the meantime, however, the solution is to work for more inclusive justice, not less. To advocate otherwise has the practical consequence of abandoning the victims for whom justice is available. Such an approach feeds, rather than combats, the culture in which abusers think they will suffer no consequences for their actions.
This is a view widely shared by many African states and civil society organizations that have recently taken important steps to stand up for both victims and the ICC. At a meeting convened by the AU Commission in Addis Ababa in June, for example, South Africa and a number of states in the Southern Africa Development Community (SADC) - including Botswana, Lesotho and Zambia - led the charge in firmly rejecting efforts by ICC opponents to manipulate them into muting their support for the court. The strength of their collective action should be commended.
Unfortunately, support for the ICC in Africa suffered a setback at the AU summit in early July. Under pressure from its host, Libya - one of the ICC's main opponents - the AU adopted a decision that its members should not cooperate with the ICC in the arrest of President al-Bashir, despite the strong objections of Botswana and Chad.
Significantly, since then Botswana and Uganda have reaffirmed their commitment to the Rome Statute establishing the ICC and their support for court. Botswana in particular has made it clear that it would arrest and transfer al-Bashir to the ICC, as "the people of Africa, including the people of Sudan deserve to be protected from the perpetrators of such crimes." We look to other African ICC states parties to make similar public statements. In doing so, they would be aligning themselves with the victims of horrific atrocities instead of their abusers.
As the New African continues to look at questions of justice, we believe it could make an important contribution by focusing its debate on what African states can do to strengthen justice for the worst crimes wherever they are committed. This would serve victims of abuses in Africa and elsewhere.
