January 14, 2014

What are we to make of the fact that in its eleven-year history, the International Criminal Court (ICC) has prosecuted only Africans? Should the court be condemned for discrimination—for taking advantage of Africa’s weak global position—as some African leaders contend? Or should it be applauded for giving long-overdue attention to atrocities in Africa—a sign that finally someone is concerned about the countless ignored African victims, as many African activists contend? This debate is at the heart of one of the most serious challenges the ICC has ever faced. If the current attack on it succeeds, the court’s future may be in doubt.

The ICC was founded in 2002, under a treaty negotiated at a global conference in Rome, as an independent judicial body that would challenge impunity for the gravest international crimes—genocide, war crimes, and crimes against humanity. Unlike the International Court of Justice, which is also based in The Hague but settles legal disputes between states, the International Criminal Court addresses mass atrocities committed by individuals. To avoid prosecution, ruthless national leaders too often threaten, corrupt, or compromise judges and prosecutors at home, but those in The Hague should be beyond the reach of such obstructionism. The ICC is meant as a court of last resort for victims and survivors who cannot find justice in their own country and as a deterrent to leaders who have little to fear from domestic prosecution. The court has now been accepted by 122 states. The United States has not joined it out of fear that Americans might be prosecuted.

The issue of the ICC’s focus on Africa has gained prominence as it proceeds against its most powerful suspect so far, President Uhuru Kenyatta of Kenya. He is accused of directing some of the violence that shook his country in late 2007 and early 2008 following vigorously contested elections. An estimated 1,100 people were killed and as many as 650,000 were forced to flee their homes.

Kenyatta has appeared in The Hague voluntarily and has mounted a vigorous defense. But he has also used his position as head of state to turn every available weapon against the court in an effort to avoid prosecution. The Kenyan government has solicited demands from the African Union that he not be required to appear at trial. It has asked the United Nations Security Council to delay the case. It has pleaded with the governments that are members of the ICC to change the rules, and it has sent diplomats around Africa with the apparent aim of orchestrating a mass withdrawal from the court. None of these efforts so far has stopped the case from proceeding.

The ICC is hardly an institution that looks anti-African. Its largest block of members—34 of its 122 states—is from Africa, and they were central in negotiating the Rome treaty that established the court. Those thirty-four states—including Kenya—represent a solid majority of Africa’s fifty-four nations. The ICC’s chief prosecutor is an African—Fatou Bensouda of Gambia. She assumed the post in 2012 after having served for eight years as the deputy prosecutor. Africans serve among the court’s judges and the prosecutor’s staff.

Moreover, the ICC’s focus on Africa is largely not of its own doing. In five of the eight countries where it is actively prosecuting suspects—Uganda, Mali, Ivory Coast, the Central African Republic, and the Democratic Republic of Congo—the African state in question asked the court to intervene, often with significant encouragement from victims and local rights groups. In two other countries—Sudan and Libya—the UN Security Council asked that the ICC become involved. Only in the case of Kenya did theICC act entirely on its own initiative.

In fact the focus on Africa largely reflects current limits on the reach of international justice. The court can exercise jurisdiction only when the crime was committed by a citizen of a member state or on the territory of a member state, or if the situation is referred to the court by the UN Security Council. Certain obvious non-African candidates for prosecution are from states that have never joined the court, such as Sri Lanka, North Korea, Uzbekistan, Israel, Palestine, Syria, or Iraq. The Security Council could have given the ICC jurisdiction over crimes in these cases, but the council’s permanent members have tended to shield nations they favor from the court’s attention. The UN General Assembly, where no state has a veto, lacks the power to grant the court jurisdiction.

Until the ICC began investigating African presidents, it had broad support from African governments. President Joseph Kabila of the Democratic Republic of Congo, for example, applauded the court’s pursuit of several militia leaders from eastern Congo who committed many abuses against civilians. His government has surrendered four suspects to the court, including Thomas Lubanga Dyilo, the court’s one conviction to date, and Mathieu Ngudjolo Chui, its one acquittal. Another Congolese suspect, the rebel commander Bosco Ntaganda, surrendered, apparently fearing for his life. The ICC’s charges contributed to his loss of power, as he became too much of a liability even for his own rebel group and his Rwandan backers.

Though still in its early years, with few prosecutions to its name, the ICC gains support from human rights groups and many ordinary citizens because of its promise of justice for the victims of mass atrocities. Its very existence can have a deterrent effect. Laurent Nkunda, the once high-profile leader of another vicious Rwandan-backed rebel group in eastern Congo, illustrates how the ICC might help to prevent atrocities. In 2007 and 2008, he regularly called Human Rights Watch’s Congo researcher, Anneke Van Woudenberg, to discuss his concern that the ICC might target him because of abuses committed by his troops. The ICC never seriously investigated him or Rwandan leaders, but his fear that it might do so is an example of how the court can discourage atrocities. He has been under house arrest in Rwanda since 2009.

For some African leaders, the court’s involvement in their country has engendered more mixed feelings. President Yoweri Museveni of Uganda, who has become one of the chief backers of Kenyatta’s campaign against the ICC, initially invited the court to prosecute leaders of the Lord’s Resistance Army, a ruthless rebel group that was formed in Uganda two decades ago and operates by kidnapping children and forcing them to fight. But several years after the court issued arrest warrants for the LRA’s notorious leader, Joseph Kony, and four of his deputies, Museveni’s attitude shifted. It seems he feared both that prosecution might complicate his efforts to negotiate peace with the LRA and that the ICC might someday turn its attention to him and his government.

Similarly the president of the Ivory Coast, Alassane Ouattara, seemed content when his rival, former president Laurent Gbagbo, was sent to The Hague to face charges of crimes against humanity. But Ouattara now does not like the prospect that the ICC might pursue atrocities committed by forces that supported him during the civil war that broke out after contested elections in 2010.

Some of the ICC’s problems are of its own making. The chief prosecutor for its first nine years, Luis Moreno Ocampo of Argentina, seemed more interested in issuing arrest warrants than undertaking the tough, less glamorous work of conducting rigorous criminal investigations. So far six of the thirty-one prosecutions he launched—three in Kenya, two in Congo, and one in Sudan—have been withdrawn, dismissed, or led to acquittal due to lack of evidence. (The acquittal is still under appeal.) The new prosecutor, Fatou Bensouda, has been building up her office’s investigative capacity. In addition, there are a few member states outside Africa where the ICC prosecutor has considered acting, but the issue has been under review for years without a decision on whether to open formal investigations. For example, in the case of Afghanistan—which theoretically could implicate US and other foreign troops there—the ICC prosecutor has cited difficulties due to security considerations and a lack of cooperation by key sources. In the case of Colombia, the existence of some domestic prosecutorial efforts has been a significant consideration, though the new chief prosecutor is concerned about Bogotá’s willingness to see justice done.

In its initial years, perhaps in an effort to establish itself and build political support, the ICC seemed to focus on widely despised figures who lacked a powerful constituency—people like the child-kidnapping Kony or the warlords of eastern Congo. That changed in 2009, when the court sought to arrest President Omar al-Bashir of Sudan for atrocities committed as he tried to quell the rebellion in the country’s western region of Darfur. Yet even Bashir is widely loathed because he presided over a series of scorched-earth counterinsurgency efforts—not only in Darfur but also in southern Sudan, where he fought against an ultimately successful secessionist movement, and against a separate rebellion in the south-central Nuba Mountains.

Today, although the ICC has issued an order for his arrest, Bashir is still in power in Khartoum. He has been trying to regain his legitimacy and thumb his nose at the court by traveling to various countries that promise not to arrest him. Often under pressure from local rights activists and media, among others, most ICC members have refused to play along, or have done so only halfheartedly, even after the African Union (AU) asked its member states not to surrender him. For example, this past July, Nigeria admitted Bashir to an AU summit but Bashir, apparently fearing arrest as Nigerian groups filed a court action, fled within twenty-four hours of arrival without speaking at the summit. In recent years, South Africa threatened him with arrest if he attended the inauguration of President Jacob Zuma, Malawi refused him entrance to an AU summit, Kenya blocked him from attending a regional summit, and he canceled trips to Zambia and the Central African Republic.

A handful of African states have been willing to receive Bashir, as has China. But since the ICC called for his arrest, his movements have been severely restricted and his international stature diminished. The UN Security Council never took up Sudan’s request to defer his prosecution. This past September, Bashir floated the idea of attending the opening of the UN General Assembly in New York. But amid calls for his arrest he canceled the trip when protests broke out in Sudan about local economic issues.

Luis Moreno Ocampo, then chief prosecutor of the International Criminal Court, and his successor, Fatou Bensouda, The Hague, July 2008

In prosecuting Kenyatta and his deputy president, William Ruto, the ICC has taken on more formidable opponents. In 2007–2008, Kenyatta and Ruto were senior members of opposing political parties in Kenya, Kenyatta’s grounded in the Kikuyu ethnic group and Ruto’s in the Kalenjin. Large-scale violence broke out between the two groups and others when allegations of fraud followed a closely fought election. Kenya has a long history of politicians who try to secure power by whipping up ethnic violence—and never face criminal charges. An emergency mediation effort established by the African Union and led by Kofi Annan negotiated an end to the violence. And for the first time, many nations, as well as the AU, pressed for prosecution of those responsible for the killings and other violence that took place during the election.

Because Kenya’s regular courts had a poor record of dealing with electoral violence, Kenya was asked by Annan and others to set up a special tribunal that would include international judges. But twice a bill to create the tribunal was voted down by the Kenyan parliament. Not only Kenyatta’s allies but Ruto himself led the opposition to the bill. They must have calculated that a Kenyan special tribunal posed a greater threat than what at the time seemed the distant prospect of prosecution by the ICC. They bet wrong.

In 2008, a Kenyan commission of inquiry handed to Kofi Annan a confidential list of people behind the violence. It asked him to give the list to the ICC if the government did not establish a tribunal. When it did not, Annan reluctantly handed the list to the ICCin 2009. Kenya’s president at the time, Mwai Kibaki, encouraged him to do so and promised his government’s support. In 2011 the ICC, in turn, summoned six Kenyans in connection with violent acts: Kenyatta and two alleged accomplices from one side and Ruto and two alleged coconspirators from the other.

Suddenly facing prosecution, Kenyatta and Ruto buried their political differences and formed the Jubilee Alliance—sometimes mockingly called the Coalition of the Accused. In a hard-fought election in March amid widespread allegations of fraud, the alliance was ruled to have prevailed with 50.07 percent of the vote, just above the majority needed to avoid a runoff.

Ominously, the alliance campaigned in part by denouncing the court, turning the charges against its leaders into a nationalist protest against interference in Kenya’s affairs. Kenyatta conveniently interpreted his narrow victory as a mandate to ignore the legitimate demands for justice of the victims and survivors of the 2007–2008 violence. That impunity continues to be a source of tension in Kenya’s Rift Valley, the center of the violence.

As a politician, Kenyatta is imposing. The son of Kenya’s founding president whose family has amassed an enormous fortune, educated at Amherst, he is savvy, articulate, and capable of deploying substantial resources in his defense. Now, as the elected president of one of Africa’s most advanced economies, he has used his new position to open an offensive against the court.

The prosecution, for its part, had already encountered problems with its case. The judges dismissed the charges against two of the six suspects charged by the former chief prosecutor. The new chief prosecutor, Bensouda, dropped charges against a third after a key witness proved unreliable. Seven potential witnesses have been killed and others have apparently recanted their testimony. In October, the ICC unsealed an arrest warrant for a Kenyan accused of being part of a network “devised by a circle of officials within the Kenyan administration” that was bribing witnesses to withdraw from the Ruto case. In addition, Bensouda said in a court filing in November that she has a telephone recording of an associate of Kenyatta attempting to bribe an important witness to withdraw testimony. The defendants, for their part, have accused people working on behalf of the prosecution of manipulating witnesses and interfering with their collection of evidence.

Meanwhile, Kenyatta has mounted a major political attack on the court. Both he and Ruto have made a point of officially cooperating with it, showing up in The Hague when required. Ruto’s trial began in September, and Kenyatta’s is scheduled for February, although the prosecutor has requested a delay of the Kenyatta case because of witness problems, suggesting the breadth of the challenges she faces. Aside from this, the two are doing everything they can to stop the prosecution.

A special African Union summit was convened in October amid speculation that African states might withdraw en masse from the court. When that fizzled—no one withdrew—Kenya was able to get the AU to ask the UN Security Council to defer the proceedings against Kenyatta, on grounds that he is a sitting head of state.

Rwanda, currently a nonpermanent member of the Security Council, led the effort there on Kenya’s behalf. Such African celebrities as Kofi Annan and Desmond Tutu, as well as Kenyan rights groups and many others, opposed the AU’s request. It failed when the Kenyans could not secure even a majority of the council’s fifteen votes, let alone the nine votes that would have required the US, UK, or France to use its veto, as at least one of them almost certainly would have.

Rwanda’s background illustrates some of the motives behind Kenyatta’s supporters. Its president, Paul Kagame, has been one of the most outspoken opponents of the court. Rwanda’s first encounter with international justice was with the International Criminal Tribunal for Rwanda, a separate court established by the Security Council in the aftermath of the Rwandan genocide. The Rwandan government’s relations with that tribunal have been frosty. Its judges did not trust Rwandan courts to deliver fair trials until 2011 and so insisted on trying genocide suspects themselves. The tribunal also threatened to prosecute members of Kagame’s own forces, the Rwandan Patriotic Front, for the murder of thousands of people during and after the genocide that theRPF halted. Since the RPF defeated the genocidal government, Kagame, initially as vice-president and defense minister and now as president, has run the country for the last two decades. There have been very few prosecutions of RPF members, most of those from lower ranks.

More recently, however, Rwanda may have come to fear prosecution by the ICC over its support of a series of violent rebel groups in eastern Congo. Rwanda never joined the ICC, but Congo has, so the court would have jurisdiction over Rwandan officials if it could be shown that they aided and abetted mass atrocities on Congo territory. That is the crime for which still another internationally established tribunal convicted Liberia’s former president Charles Taylor in 2012 for his direct support of the rebel group Revolutionary United Front, in neighboring Sierra Leone. That group was notorious for cutting off limbs.

Kenya has been making two main arguments in its defense, and it is increasingly backed by the African Union, which is acting more like its predecessor, the Organization of African Unity—often dubbed a Dictators’ Club—than an organization committed to the democratic and human rights principles on which it was founded in 2000.

First, Kenya contends that the court’s so-far exclusive focus on African crimes is unfair, a modern-day form of colonialism. As Kenyatta put it in a speech at the AU summit in October, the ICC “stopped being the home of justice the day it became the toy of declining imperial powers.” African leaders, many of whom have their own reasons to dislike a precedent of holding heads of state to account for their crimes, have been particularly receptive to that view. It is hardly surprising that the strongest backers of Kenya have been Ethiopia and Rwanda—which have never joined the ICC and have a history of impunity for serious crimes—and Uganda, whose President Museveni has become increasingly autocratic in his twenty-eight-year reign and whose own forces have a long history of violent abuses.

That war criminals still run free where the court cannot act is hardly reason to refrain from prosecution where it can. Yet on a continent whose people have suffered under colonialism, the charge that they are subject to an international standard of justice that no one else actively faces—not in Afghanistan or Iraq, not in Sri Lanka or Israel—resonates among African leaders and some of their constituents. And while most European governments have accepted the court’s jurisdiction, it doesn’t help that some of the world’s most powerful nations—the United States, China, Russia, and India, to name a few—have not.

The charge of selective prosecution receives less support among the African people who are the victims of ruthless leaders. Members of African civil society have been quick to point out that the ICC, which under its statute must defer to genuine national prosecutorial efforts, is merely responding to Africa’s failure to prosecute its own mass atrocities. The alternative to ICCprosecution in the cases it has taken on would be no prosecution at all—no justice for the countless Africans who have been murdered, tortured, raped, or forced to become child soldiers. To this day, Kenya has not made good on its promises to launch its own prosecutions. Instead, its current leaders want the issue simply to go away.

A second argument put forward by Kenya—and strongly supported by some members of the African Union—is that a head of state should be exempt from prosecution for the duration of his term. Kenya has used the September attack of the Islamist armed group al-Shabaab on the Westgate shopping mall in Nairobi to support this argument. Kenyatta contends that he should not have to be diverted by an ongoing prosecution in The Hague from his important duties combating terrorism at home. His argument also contains an implicit blackmail—Western nations should not count on Kenya’s assistance in containing al-Shabaab if they continue to support bringing Kenya’s leaders to justice.

However, a central purpose of the ICC is to prosecute government leaders who might otherwise use their positions of power to secure impunity for their crimes. In line with international law and practice since the Nuremberg Trials, the ICC’s governing statute—the Rome treaty, which all members including Kenya have ratified—provides that “official capacity as a Head of State or Government…shall in no case exempt a person from criminal responsibility.”

Kenya’s own constitution, while granting other limited forms of presidential immunity, denies such immunity for crimes under an international treaty like the ICC’s. Other heads of state have been pursued by international tribunals, including Bashir, Taylor, Libya’s Muammar Qaddafi, and the former Yugoslavia’s Slobodan Milošević. Moreover, a policy of refusing to prosecute sitting heads of state could easily become an incentive for leaders facing criminal charges to do whatever it takes to remain in office, including committing more of the mass atrocities that the ICC is supposed to be helping to prevent.

The standoff between Kenya and the ICC remains unresolved. Kenyatta and Ruto continue to make a show of cooperating with the court in order to avoid the issuance of arrest warrants and the ensuing pariah status now faced by Sudan’s Bashir. Legislation in the Kenyan parliament urging Kenya to withdraw from the ICC has not been acted upon. Yet that thin veil of cooperation barely masks the frontal attack that Kenyatta and Ruto have launched on the court. So far all that Kenyatta and Ruto have obtained for their efforts is a relaxation of the requirement that they attend their trials, if the judges approve. But they are pressing for more. Meanwhile the ICC prosecutor is struggling to curtail the apparent witness-tampering that could destroy its cases—partly through a witness-protection program and the revived threat of prosecution, and partly by a new rule that permits introduction of a witness’s “prior recorded testimony” if he is no longer available because of intimidation or death. It remains to be seen what happens in the Kenya cases, but perhaps the most important battle for the ICC will be in African countries, particularly if the African Union makes immunity for sitting heads of state a battle cry.

Until now, most African leaders’ support for Kenya’s position has been limited to sympathetic rhetoric. They have done nothing to repudiate the court that is conducting the prosecution. Yet with their political futures and personal liberty at risk, Kenyatta and Ruto appear to have no qualms about trying to bring the court down. If they could orchestrate a mass African defection, they undoubtedly would, and this could be devastating for international justice. The court’s future now rests to a large extent on the battle being waged between African leaders with little interest in justice and those Africans, including many activists and victims, who see an end to impunity for mass atrocities as essential for Africa’s future. One can only hope that the welfare of African people takes precedence over the perceived interests of African leaders.