The African Union has finally woken up to the reality of the International Criminal Court (ICC) – perhaps belatedly. They now realise that the court is not purely a judicial institution but a political tool of the West to punish recalcitrant African leaders and bring to, or keep in, power pliant ones.
And nowhere has this political manipulation been so blatantly in evidence as in the indictment and now trial of Kenya’s President Uhuru Kenyatta and Deputy President William Ruto.
Incensed by what they saw as the bias of the ICC and its insensitivity to African pleas, last weekend African leaders convened in an extra-ordinary meeting in Addis Ababa to discuss a mass withdrawal from the court.
They met but did not agree to withdraw. That was to be expected. Rarely have African leaders unanimously agreed on much. For some, instructions from former colonial rulers ring in their ears as they deliberate on an issue.
In this case, there were others who thought it prudent to keep the ICC while other arrangements such as regional courts are established or strengthened.
The summit achieved something else, however – rare unanimity on what the ICC should not do. It should not try a sitting head of state. So the ICC is not entirely worthless. It has brought off a rare feat – united African leaders, at least for the moment.
Cynics might say that the decision was taken in the self-interest of the leaders. Indeed, supporters of the ICC have already made their conclusion – any threat to sever links or curtail the power of the court is proof that African leaders do not want to be held to account.
The more outspoken like Desmond Tutu see those opposed to the court as “seeking a licence to kill, maim and oppress their people without consequences”.
The shrill voices on either side of the ICC debate distract from the fundamental issues it has raised about the whole concept of international justice and universal jurisdiction.
International justice as it is practiced today is essentially a one-direction system. The powerful indict the weak and have a variety of means to enforce their decision. They can, and often do, withdraw aid or slap punitive and crippling sanctions on the offending country or individual.
It is never the other way. The weak cannot return the favour, and even if they did, lack the means to enforce their will.
The absence of reciprocity inherent in the system means that there is inequality. Any system built on such a premise is obviously unjust.
Often, the decision to indict any individual or group of individuals has been a political rather than a judicial one. The judicial process is only brought in to cover the political motive by giving the whole thing a legal facade.
Take one example from the Democratic Republic of Congo (DRC). Jean-Pierre Bemba was indicted for crimes against humanity.
He is no more criminally liable than Joseph Kabila who presides over an inefficient state in which hundreds of thousands have been killed, raped or made homeless by his indisciplined army.
Yet he has not been indicted for these crimes. Bemba was removed from the scene because he was perceived by Kabila’s backers to be a formidable political rival to their more pliable protégé.
In any case – as President Yoweri Museveni of Uganda has argued – the problems that give rise to conflicts in which most of the atrocities are committed are not legal in nature and cannot be solved by legal means alone.
They are political and economic, and solving them requires improving the political and economic climate. All the resources and energy that have been poured into the ICC could serve a more useful purpose if channelled into making governance more effective and responsive, and into improving citizens’ livelihoods.
The strong case made for the ICC is that it is meant to end impunity and give victims justice. While these are compelling arguments, the effects on the ground tell a different story.
Let us take the example of the DRC again. Thomas Lubanga was indicted and convicted for recruiting child soldiers. Since his conviction, armed militias have increased, not declined.
If we are to believe human rights groups, the use of child soldiers has not ended. Even the DRC national army is accused of having them in its ranks. Ituri region remains unsafe today as it was when Lubanga was still there.
Justice for victims is another myth. In the aftermath of the genocide in Rwanda, the International Criminal Tribunal for Rwanda (ICTR) was set up to try perpetrators of the genocide and to give survivors and victims justice.
After so many years and billions of dollars spent on the cases of about fifty individuals, can anyone say in good conscience that the ICTR did anything for the victims, or served to end impunity, or made it impossible for genocide to occur anywhere else again?
It is doubtful that Kenyan victims of the post-election violence of 2007/8 will get any justice from the trial of Uhuru Kenyatta or William Ruto. The two could get punished and some politicians gain from it, and that will be all.
Still something positive could come from the current debate on the ICC. African leaders now recognise that the ICC is not the appropriate institution to deal with African issues.
That could expedite the establishment of local or regional mechanisms to deal with such crimes as are now referred to the ICC.