By Tafi Mhaka
Bark as fiercely as it may, the International Court of Criminal Justice (ICC) lacks teeth and struggles to find universal legitimacy in Africa.
If you take a glance at the list of people indicted by the ICC since it was established in 2002, it is clear to see the list is dominated by African leaders. This should not come as a surprise. Nine out of the ten investigations launched by the ICC in the past were carried out in Africa, namely in Sudan (Darfur), DR Congo, Uganda, Kenya, Mali, Cote d’Ivoire, the Central African Republic and Libya. The sole non-African country on the list is a country you may or may not have heard of before: Georgia.
So you will see the likes of Joseph Kony, Omar al-Bashir, Uhuru Kenyatta, the late Muammar Gaddafi, Laurent Gbagbo and William Ruto on the list of alleged perpetrators. You will not see the likes of George W Bush and Tony Blair, architects of the US-led 2003 Iraqi war, or President Bashar al-Assad of Syria.
A report from a 13-month-long inquiry by the United Nations and the Organisation for the Prohibition of Chemical Weapons (OPCW), the global chemical weapons watchdog, which was released to the UN Security Council on Friday, 21 October, blames Syrian government forces for a toxic gas attack in Qmenas in Idlib Governorate on 16 March 2015.
Should President Assad be indicted by the ICC for war crimes, gross human rights abuses and violations of international humanitarian law allegedly perpetrated by pro-government forces in the Syrian war? Yes, he should, but the thing is: only the UN Security Council can refer the Syrian crisis to the ICC, as Syria is not party to the Rome Statute.
But Syria has powerful friends who sit on the UN Security Council: Russia and China. They blocked a draft resolution to refer the crisis to the ICC on 22 May, 2014. What are friends for after all? Russia has in fact blocked four resolutions against Syria and come to the aid of Assad by providing diplomatic, logistical and military support to Damascus much to the dismay of anti-Assad forces, the USA and EU.
Russia, which operates a military base in Syria, has been bombing what it claims are ISIS strongholds in the northern city of Aleppo, in recent days, in support of President Assad. According to Stephen O’Brien, the UN chief humanitarian official, the situation in Aleppo is desperately appalling for the millions of residents there who find themselves trapped by the unrelenting joint Russian and Syrian military action.
The situation is so dire Russia unilaterally called a three-day humanitarian ceasefire to allow civilians to escape Aleppo and non-governmental groups to distribute much-needed aid in war torn areas.
“Let me be clear: east Aleppo this minute is not at the edge of the precipice,” O’Brien said. “It is well into its terrible descent into the pitiless and merciless abyss of a humanitarian catastrophe unlike any we have witnessed in Syria.”
O’Brien added: “Syria is bleeding. Its citizens are dying. We all hear their cry for help.”
Russia has seemingly not heard that plea for help: instead it has intensified its massive bombing campaign in eastern Aleppo. See matters of humanitarian affairs and justice come a distant second or third to the geopolitical manoeuvrings of the permanent members of the UN Security Council.
US Ambassador to the UN, Samantha Power, had this to say, of Russia and China, after the veto: “The Syrian people will not see justice today. They will see crime, but not punishment. The vetoes today have prevented the victims of atrocities from testifying at The Hague”.
Oh please, Ambassador Power. See you forgot to say the US has vetoed more than thirty-nine draft resolutions against Israel in the UN Security Council. The first veto in support of Israel was cast in the UN Security Council in 1970.
The US has lent considerable support to Israel in the UN Security Council as attempts to pass a resolution on war crimes allegedly perpetrated during Israel’s 22-day offensive on the Gaza Strip between December 2008 and January 2009 have been repeatedly blocked by Washington. The US has also vetoed efforts to refer atrocities allegedly committed in Palestinian settlements by Israeli armed forces to the ICC. But a UN-sanctioned fact-finding mission on the Gaza war, led by Justice Richard Goldstone of South Africa, reported both Israeli forces and Palestinian fighters committed war crimes during the siege in the small Middle-East territory.
This is the reality of world diplomacy; indeed it is the sheer partisan nature of international justice that critics contend hinders a universal acceptance of the ICC. But never mind the Russians or Americans or the dubious political machinations of the ICC: I dare you to not turn a blind eye to the myriads of cases of injustice you see cropping up in parts of Africa.
See the Oromo people in Ethiopia need your support. So do the Amhara people there. In a 2015/ 2016 report on Ethiopia, Amnesty international had this to say about the country located in the Horn of Africa: “Members and leaders of the opposition parties were extrajudicially executed. General elections took place in May against a backdrop of restrictions on civil society, the media and political opposition, including excessive use of force against peaceful demonstrators”.
So who will stand up for the more than 500 people killed in demonstrations in Ethiopia since last year? Will the warlords recruiting thousands of child soldiers in South Sudan face justice for their crimes against humanity? Will thousands of women and girls raped in the South Sudan conflict see justice served? The ICC has problems, yes; but Africa has bigger problems of its own making to mind.
So let us begin by setting up a credible court of justice that citizens of Africa will trust and respect if we must. An institution not beholden to American, Russian or Chinese or other political interests. Let us set up a wholly independent African court of justice that will rule without favour or fear of political manoeuvrings on the continent. See anything less transparent will inevitably lead to calls for external judicial interventions yet again.
Because, as South Africa prepares to withdraw from the ICC, there is jubilation in some quarters. President Omar al-Bashir of Sudan, who has been indicted by the ICC for war crimes, has called on African states to follow South Africa and withdraw from the ICC. “The President of the republic calls on African leaders and the people of who are still members of the ICC to take a collective step in withdrawing from the ICC,” a presidency statement said.
“All the cases raised by the ICC target African countries. It never targets a European state or Israel despite the crimes they commit,” said a senior aide to President Bashir, Ibrahim Mahmoud.
“We expect that more countries will quit the ICC,” Mahmoud added.
That remains to be seen, Mr. Mahmoud. But do you remember Charles Taylor? Thanks to the ICC, the former leader of Liberia, a notorious African warlord, is a convicted war criminal. He was convicted of 11 war crimes, crimes against humanity and other serious violations of international humanitarian laws at The Hague in Switzerland and is serving a life sentence in a United Kingdom prison.
It was great to see the ICC convict Taylor of course. Still: is this what matters to thousands of child soldiers recruited to fight in the civil war in Sierra Leone; or thousands of amputees disabled in the shameless war for power and blood diamonds there; or thousands of women and girls sexually enslaved and raped during Sierra Leone’s 11 year long civil war; or indeed the estimated 70 000 casualties of war and 2.6 million people displaced in the war?
No, it is not.
That Taylor is safely locked up in prison for life is all that really matters to the victims of war. Whether it was the ICC or some arbitrary high court judge based in Freetown, Bujumbura or Kampala that sent him to prison for life is wholly insignificant; see justice is what is important.
Taylor is paying for his many sins and that is that. Let us see to it, that other so-called leaders of his ilk, join him.