Today the African Union may withdraw from the International Criminal Court, which will effectively collapse it. Two days ago Desmond Tutu appealed to African nations not to do it, warning that:
“African leaders could kill off a great institution, leaving the world a more dangerous place.”
He launched a petition urging African countries not to break the ICC. The AFP news agency reported:
Tutu said the ICC was the world’s first and only court to try crimes against humanity, and accused the leaders of Sudan and Kenya, “who have inflicted terror and fear across their countries” of trying to “drag Africa out of the ICC, allowing them the freedom to kill, rape, and inspire hatred without consequences.”
This is all true. However, the ICC’s fate should not rest with Africa. There are some notable countries not party to the Rome Statute, not least America. Furthermore, the system of referrals means that some states will never appear before the court because they have signed up to it or have a defender in the Security Council protecting their interests. (SC members get to refer States and they all have to agree. See the problem?)
The reason that African countries feel persecuted by the ICC is because, well, they’re the only ones there. However, they deserve to be there. For African countries eager to shake off the shackles of the ICC, the question remains: what are you* going to do about justice? Lest we forget, the reason Kenyan politicians ended up there is because they failed to prosecute the perpetrators of the election violence in 2007 and 2008, as per the mediation agreement brokered by Kofi Annan. They handed him a sealed envelope with the names of the people responsible for inciting or facilitating violence, which was to be handed over to the ICC in the event that Kenya failed to hold these people to account on its own terms. Kenyan parliament could not agree to prosecute.
Meanwhile progress on the AU alternative to the ICC is slow and I don’t know** if it would be able to succeed where national systems have failed. Will African states club together to get Bashir et al off the hook at the ICC only to turn them over to another court, albeit an African one, eventually?***
In the midst of all this though is a tragedy, not remarked upon by the mighty AU, that illustrates why international justice matters for Africa: the hundreds of lives lost in Lampedusa recently. And not just the most recent tragedy; this has been going on for years. A lot of refugees are fleeing regimes like Eritrea, one of the world’s most repressive regimes, but the AU isn’t concerned with that. It’s worth reading Simon Allison’s take at the Daily Maverick: Lampedusa tragedy: We were all African refugees once | Daily Maverick.
These are the people a court concerned with international justice should defend. It could be an African court; but until that is a reality, and a working reality at that, I’d rather have the flawed ICC than nothing at all.
It shouldn’t rest on Africa to keep the ICC alive, maybe it’s time the rest of the world started to take ownership of it and, I don’t know, get some of the many, many other global war criminals in there. But until African states are even remotely bothered by the mistreatment of Africans by fellow Africans (or even their own people) and the imperatives of justice for the persecuted, I don’t think we should kill the one mechanism that tries to grapple with the issue.
*Call me a cynic, I just don’t think they care.
** I doubt it