The new Malawi government took an important step in June when it indicated it could not host the African Union summit if it meant welcoming President Omar al-Bashir of Sudan to its territory, given that he is an International Criminal Court suspect for crimes committed in Darfur.
This is a key acknowledgment of the court’s work 10 years into its existence and takes a firm stand at a time when many Africans are criticizing the court for what is seen as an anti-Africa bias in its attempts to bring to trial government leaders and others allegedly responsible for the gravest crimes — genocide, war crimes and crimes against humanity.
Many governments in Africa, including South Africa, were active in the court’s establishment and became members. But nowhere has its work been more debated and criticized than in Africa. Claims that the court unfairly targets Africans abounded after it issued arrest warrants for Bashir and Muammar Gaddafi. A docket of African situations under investigation by the court has fed such claims.
Yet critics ignore the fact that most of these investigations arise from requests by African governments or the United Nations Security Council. They also ignore the thousands of African victims served by the court’s efforts.
The court faces significant challenges, one being the refusal of some powerful nations to join. Moreover, several—the United States, Russia and China — have vetos at the UN Security Council, the only body that can refer situations to the court if crimes are committed in countries that are not members of the court.
Nkosazana Dliamini-Zuma, the new African Union Commission chair, will be an important player. In her first public comments on the court, she stated the AU’s position on Darfur without expressing her views. She will have many opportunities to have a positive influence on the AU’s relationship with the court. Enabling the court to open an AU liaison office, an idea supported by many African states, would be a first step in enhancing understanding. Ensuring the AU does not obstruct efforts to promote justice for the worst crimes should be a longer-term goal.
Governments need to promote justice consistently, not only when it is politically convenient. Crimes against humanity and war crimes being committed in Syria should be punished, for example, and there should be a more consistent application of the rule of law by Security Council members.
The court remains an essential alternative to impunity when domestic courts are unwilling or unable to prosecute. It gives hope for justice when other avenues are closed and particularly when government leaders themselves are implicated.
As the court begins its next 10 years, African member states of the ICC — more than half the continent — should raise their voices at AU meetings and public debates to support it. More should follow Malawi’s lead and they should join states such as Botswana and South Africa in signaling that undercutting the court’s ability to take suspects into custody is not acceptable.
Elise Keppler is senior counsel with the International Justice Program at Human Rights Watch.
A version of this article was also published in Think Africa Press on August 16, 2012, the Star on August 21, 2012, and The Citizen on August 22, 2012.