Africa is losing the battle for justice

That meddlesome International Criminal Court (ICC) is at it again. Whenever an African dictator turns around, there is Luis Moreno Ocampo with a warrant for his arrest. But there is good news for dictators. The African Union has pledged to protect the worst human rights abusers from the ICC’s claws.

In a statement, the African Union said that they would not cooperate with the ICC on Omar al-Bashir’s arrest. The reasons are simple: Africa has a lot of dictators who have few qualms about violating human rights, and letting one of them go to the Hague would set a precedent. Meanwhile, in Darfur, Uganda, the Democratic Republic of the Congo and the Central African Republic, all containing people the ICC wants to nab, atrocities continue apace. This is a victory for the dictators and a finger in the face of the victims.

Many African leaders see the ICC as a way for the West to interfere in the affairs of their respective states. The assumptions behind this talk is criminal. It is such an easy excuse for anything. Human rights are not “Western”, they are universal. Are Africans somehow inferior to Westerners? They do not deserve the same rights? And yet, this is what their leaders are telling them. Injustice anywhere is a threat to justice everywhere, said Martin Luther King, Jr. To disallow the ICC from doing its work in Africa is to doom the continent’s basket cases to more of the same killing it has been suffering from for as long as anyone can remember.

The real question, however, is is the ICC doing the right? The African Union behaved predictably. If you could go to jail because you let someone else go to jail, you would be rational to protect him. What are the alternatives to international institutions?

One system of justice that has been tried in Rwanda takes a more transitional approach. Transitional justice is the kind conducted in the aftermath of a war or something similar, intended to promote not winner’s justice but reconciliation, healing and moving on. (Truth and Reconciliation Commissions are of this idea.) Rwanda’s method is widely studied as a possible alternative to more formal criminal trials. It has its flaws but could be applicable in some situations. If it helps in ways the ICC cannot, it is worth attempting.

Rwanda’s is just one of many possible approaches to justice. However, none of them are being employed in Sudan at the moment. We will need to wait much longer to know the extent of the damage in Darfur and if Omar al-Bashir will ever face trial, or if the only justice he experiences is death.

Is the ICC going too far?

The International Criminal Court is indicting a sitting head of state, and it is raising many an eyebrow.

Some are calling it counterproductive. Many say indicting, and somehow arresting, Omar al-Bashir, president of Sudan, would derail Sudan’s fragile north-south ceasefire and make peace harder to attain in Darfur. Some say that heads of state are fully protected even from the ICC’s universal jurisdiction by well-established legal codes. Still more say that this is nothing more than Western hegemony, colonialism, white man’s burden and so on.

It is possible that the peace process in Sudan will collapse. My question is, what good has it done so far? Has the suffering ended? Does it look like it might end soon? If not, it is not really a peace process. Peace treaties might be unworkable in Sudan. While I do not believe that the Sudanese government and the Janjaweed are solely to blame in Darfur, they are obviously at the wheel. If anyone can stop the violence, it is al-Bashir. To say that sitting heads of state are protected by international law may be true, although the ICC may represent a break from this convention. There are certain jus cogens laws that override uncertainty in treaties and agreements: the crime of genocide, for instance, cannot simply be rewritten and legalised. And to call all this colonialism is beside the point: if someone orders the killing of thousands of people, what is the difference who punishes him? During the 1990s, critics complained that mostly only Europeans (from the former Yugoslavia) were being targeted, when there were terrible dictators in Africa and Asia too.

In my opinion, even if it is no more than symbolic, this move by the ICC is a welcome step forward in international justice. Like national legal systems, international law tends to develop gradually. Outside of ad hoc tribunals that are set up after wars have ended, there has never been such ability to try anyone of the most heinous crimes possible. The Court can be the final stopgap between the worst human rights abuses and impunity. The ICC is not abusing its authority: if it can gather enough evidence that someone has committed the crimes it prosecutes, it can indict him. Note that the ICC does not indict people for parking tickets: al-Bashir is being persecuted for war crimes and crimes against humanity and, with more evidence, perhaps genocide.

With such a big step, the ICC is setting precedents that indicate justice anywhere is justice everywhere. None of the worst dictators are safe anymore from the long hand of the law.