The never-ending quest to establish peace on the African continent is being jeopardised by the pursuit for justice. Contention over the primacy of peace over justice from different sides of the power spectrum, is posing a threat to the operations of the Hague-based International Criminal Court (ICC). It also causes divisions amongst nations who should be united in ensuring that impunity does not go unpunished.

The ICC was established in 1998 by the Rome Statute of the International Criminal Court. The Court, based in The Hague in the Netherlands, opened in July 2002 after the Statute was ratified by 60 countries. Currently the ICC has 139 signatories and 107 state parties, of which 30 are African states. Countries that have not yet ratified the statute include the United States, China and Russia.

The African media and academia tend to be negative about the activities of the ICC, arguing, amongst other things, that the ICC is too selective when it comes to the prosecution of perpetrators. The ICC is focussed too much on Africa, where crimes against humanity committed in other parts of the world are often, selectively, ignored. At a seminar conducted by the Centre for Conflict Resolution in Cape Town, South Africa, the opinion was raised that the ICC focuses on economically weak and politically vulnerable countries and countries which do not have the capacity or political will to try perpetrators of crimes against humanity. This leads some analysts from the developing world to believe that the ICC has a political agenda, since powerful states and actors will not be subject to trial and justice, stating the recent example of Russia and Georgia. Fears also exist that powerful states could manipulate the Court according to their own geo-political agenda and in the process exasperate existing conflicts.

The acting spokesperson of the ICC, Claudia Perdomo was quoted as saying that it is untrue that the Court is only targeting Africa and that the African states themselves referred these cases to the Court. In addition, the ICC is also currently monitoring situations in other parts of the world, such as Colombia and Afghanistan. Reports state that since its inception, the ICC has received 1,732 complaints from individuals or groups in at least 103 countries. Proceedings before the ICC may be initiated by a state party, the prosecutor or the United Nations Security Council (UNSC).

The perception also exists that retribution might not be a sufficient deterrent to those who violate human rights. The ICC faces structural weaknesses that might lead perpetrators to believe that they are outside the reach of the Court and that the Court does not have the capacity to enforce its decisions. The ICC has to depend on the goodwill of national governments to ensure the arrest and transfer of suspects. Charles Taylor is an example. When Taylor’s arrest warrant was issued, he was based in Ghana. Instead of arresting him, the Government of Ghana gave him safe passage to Liberia.

At present the ICC is dealing with several African cases, including Uganda, the Democratic Republic of Congo (DRC) and the Central African Republic (CAR) and has issued eight arrest warrants. In 2005, arrest warrants were issued for five members, including the leader of the Uganda rebel group, the Lord’s Resistance Army (LRA), but the perpetrators are still roaming and pillaging communities in northern Uganda, the eastern DRC and parts of CAR. The indictments against the LRA are also widely opposed, since the LRA has on occasion refused to participate in peace negotiations if the warrants are not withdrawn.

The Congolese militia leader, Thomas Lubanga Dyilo, is currently in custody and awaiting trial after being surrendered to the court by the Government of the DRC. His trial was set to begin in June 2008, but has since been delayed due to evidence that was withheld from the defence. Lubanga’s defence team also protested the fact that they were given a smaller budget than the ICC’s prosecutors and that evidence and witness statements have been slow to arrive.

In May 2008, the ICC indicted Jean-Pierre Bemba Gombo, leader of the rebel group Mouvement de Liberation du Congo (MLC) for crimes against humanity and war crimes committed in CAR. Bemba has denied wrongdoing, since he claims not to have known what his troops were doing on the ground.

The most recent case taken up by the ICC is that of Sudanese President Omar Al-Bashir. This is the first time that the ICC has ever indicted an incumbent leader of a nation. The UNSC voted in March 2005 to refer the issue of Darfur to the Prosecutor of the ICC. In May 2007, the court issued warrants for the Sudanese Minister of Humanitarian Affairs, Ahmad Muhammad Harun and for Ali Abd-Al-Rahman, a janjaweed militia leader. In July 2008, the ICC General Prosecutor Luis Moreno-Ocampo accused Al-Bashir of crimes of genocide, crimes against humanity and war crimes in Sudan’s Darfur region, after which the prosecution requested an arrest warrant for him. The arrest warrant was issued despite the fact that Sudan is not a signatory to the treaty that established the ICC. Al-Bashir is charged with masterminding a campaign of genocide in Darfur, which killed an estimated 35,000 people and resulted in 2.5 million refugees and internally displaced persons.

Al-Bashir states that the genocide charges against him form part of a “global campaign to topple his government and to divide the country so that external forces can plunder its oil resources”. The Government of Sudan indicated that it will not cooperate with the ICC and called on African leaders to “cooperate and unite to prevent the plots of the colonial forces against Africa”.

Kenyan Prime Minister Raila Odinga has dismissed reports that he is in support of the attempts by the ICC to indict Al-Bashir. Odinga believes that the current effort by the ICC could complicate the search for peace in Sudan. The African Union (AU) has submitted a resolution to the UNSC requesting that Al-Bashir’s indictment be suspended, arguing that it could derail the peace process. The AU leaders also state that Al-Bashir’s indictment could lead to a power vacuum in Sudan, which could increase the risk of a military coup. China is also advocating for the suspension of the indictment against Al-Bashir, the reason believed to be the fact that China has considerable economic interests in Sudan.

It seems that considerable obstacles still exist for Africa’s objections to be sustained by the ICC, and in the process, the quest for retribution (and peace) for the victims of crimes against humanity will continue to suffer under the political-economy of justice.

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