War Criminals in Africa

AP

An air­craft said to be car­ry­ing Mr Bashir takes off from an air base near Pre­to­ria on Monday

Al-Bashir has escaped the clutch­es of the Inter­na­tion­al Crim­i­nal Court (ICC) … again.

Leav­ing South Africa on his pri­vate jet after attend­ing the African Union Sum­mit last week, the Pres­i­dent of Sudan, accused of war crimes over his con­duct in the Dar­fur region, some­how felt safe enough to attend an event host­ed by a sig­na­to­ry to the Rome Statute, the treaty that cre­at­ed the ICC in 2002.

So what is the deal? Are Africans will­ful­ly ignor­ing the ICC, or is the ICC just that incom­pe­tent? Prob­a­bly a lit­tle of both. Al-Bashir is the only cur­rent head of state with an ICC arrest war­rant. He is charged with sev­en counts of war crimes and crimes against human­i­ty as well as three counts of geno­cide relat­ed to eth­nic cleans­ing. He is thought to be respon­si­ble for over 300,000 deaths in the west­ern part of Sudan. The ICC also has evi­dence that he siphoned off $9 bil­lion in Sudanese pub­lic funds to per­son­al banks in the UK.

The oth­er six out­stand­ing cas­es are against war­lords like Uganda’s Joseph Kony of child sol­dier infamy, or for­mer lead­ers such as Lau­rent Gbag­do from Ivory Coast, who is set to go to tri­al lat­er this year. Since 2005, when 11 coun­tries referred the Dar­fur case to the ICC, includ­ing Benin and Tan­za­nia, Bashir has vis­it­ed Chad (2011), Kenya (2011), Malawi (2011), Nige­ria (2013), and now South Africa (2015).

All coun­tries are sig­na­to­ries to the Rome Statute. How is he get­ting away time and time again? It may have some­thing to do with the rep­u­ta­tion of the ICC at the high­est lev­els of African pol­i­tics. The AU has pub­licly denounced the ICC, and many heads of states echo that sentiment.

Robert Mugabe, now the chair of the AU, has said he does not want the ICC in the region at all. It is alleged that South African Pres­i­dent Jacob Zuma promised Al-Bashir he would not be arrest­ed. Ethiopi­an Prime Min­is­ter Haile­mari­am Desalegn told the AU in 2013 that the ICC had degen­er­at­ed into “race hunt­ing.”

Ugan­dan Pres­i­dent Yow­eri Musev­eni called the ICC a “tool to tar­get” Africa. Rwan­dan Pres­i­dent Paul Kagame has accused the ICC of “selec­tive” jus­tice. These are pret­ty harsh crit­i­cisms, giv­en that African states them­selves have played a key role in facil­i­tat­ing ICC cases.

Four of the eight coun­tries with open inves­ti­ga­tions in Africa invit­ed the ICC them­selves. Nige­ria and South Africa were among the states that vot­ed unan­i­mous­ly for the Libya case refer­ral in 2011. In Ivory Coast and Kenya, the ICC itself opened the inves­ti­ga­tions; how­ev­er, Ivo­rian Pres­i­dent Alas­sane Ouat­tara wel­comed the 2011 arrest of for­mer leader Lau­rent Gbab­do, and the ICC stepped in against Uhu­ru Keny­at­ta in the Kenya case only after domes­tic inves­ti­ga­tions stalled. Since then, Kenyatta’s case has been dropped.

But, the ICC has been accused of selec­tive­ly inves­ti­gat­ing African coun­tries. And in truth, only Africans are on tri­al at the moment, and the six tri­al-ready cas­es at the top of 2015 involve Africans. The only two con­vic­tions so far, since the found­ing of the ICC in 2002, have involved Con­golese warlords.

But the bet­ter ques­tion is per­haps, why have there only been two con­vic­tions in 13 years?

Giv­en the crit­i­cisms, the cur­rent ICC Chief Pros­e­cu­tor Fatou Ben­sou­da, a Gam­bian lawyer, is prov­ing less Africa-focused in her inves­ti­ga­tions than her pre­de­ces­sor, Argen­tin­ian Luis Moreno Ocampo.

Cur­rent­ly, accord­ing to pub­lic court data, The Office of the Pros­e­cu­tor is con­duct­ing probes into crimes against human­i­ty and war crimes in at least 16 coun­tries, includ­ing the Unit­ed Kingdom’s activ­i­ties in Iraq, attacks against civil­ians in Colom­bia, and oth­ers in Afghanistan, Geor­gia, Hon­duras, Pales­tine, and Ukraine.

Clear­ly, crimes against human­i­ty are not an African-only prob­lem, though African lead­ers should not use the ICC focus as an excuse to shel­ter war crim­i­nals. As the ICC broad­ens its inves­tiga­tive reach, the indig­nant ground on which to excuse war crimes falls away. Dar­fur was and still is genocide.

Al-Bashir isn’t being tar­get­ed for being African, he is being tar­get­ed for being a war crim­i­nal. The ICC may not have many teeth on the ground, but the con­ti­nent should not stand by and watch as lead­ers pile up the bod­ies for their own peo­ple, whether there is a court to pros­e­cute them or not.