Failure of African judiciary gives good reason for ICC

By Roland Abeng

May 6, 2009 — Following the indictment in March of Sudan’s President Omer Al-Bashir by the International Criminal Court, and the fact that the rest of the court’s cases involve crimes committed by Africans, one wonders how “international” the ICC is.

The court has been “taken” over by Africans.

The ICC currently, is either carrying out investigations or has already attained an advanced stage in certain procedures for situations in four African countries.

Only one of these, the Darfur situation, was not initiated by the government of the country itself.

The ICC became involved in the three other situations — northern Uganda, Democratic Republic of Congo and Central African Republic — on the invitation of the authorities of those countries, who themselves now drag their feet in assisting the court to complete its mission.

Darfur was referred to the court by the UN Security Council.

Should Africans and the African Union have an alternative to the International Criminal Court?

To find answer, ask yourself whether there are even five African countries with judicial systems that can try grievous crimes fairly and equitably through an effective court structure.

What continental judicial institution currently exists that can effectively try those accused of wrongdoing?

The ICC is a court of last resort. Its treaty provides that the Court will not interfere with the judicial system of any country if the country is able and willing to try equitably those accused of grievous crimes.

The Congolese warlord, Lubanga Dyilo, for example, would not be tried at the ICC if the judicial system of the Democratic Republic of Congo were capable of handling such alleged criminals fairly.

The ICC has not replaced viable national efforts. Rather, it helps attain justice where other options are not possible.

If anything, it has probably reduced the number of ad hoc international tribunals that would have been created to address crimes in Africa had the ICC not been established.

African governments are infamous for waiting until things deteriorate completely and then blaming the United Nations, Europe, or the United States for non-intervention.

For instance, Guinea, Guinea Bissau, Kenya, Madagascar, Mauritania, Rwanda, Somalia, and Zimbabwe are all current situations that have either already deteriorated or are currently being allowed to deteriorate.
Pan African judicial institutions are either dormant or still have to go beyond the stage of the conventions that created them.

Everyone agrees that there is impunity for abuses at the highest levels on the continent.

It is also agreed that these crimes are perpetrated in most cases by the very leaders who are supposed to protect the people.

Africans also agree that a judicial institution on the continent or elsewhere is needed to try and punish those perpetrating such crimes.

The best and maybe only option for Africa for the time being is the ICC, which has till now been doing a tremendous job despite the difficult circumstances.

Africa’s support for the work of the ICC will not only help reduce impunity and grievous crimes, but will go a long way to make democracy and good governance a reality of even when our countries’ constitutions give our leaders immunity.

The Pan African Lawyers Union met recently to support the position of the African Union in asking the UN Security Council to suspend the ICC’s arrest warrant against President Omar al-Bashir of Sudan.

It is truly disturbing that legal practitioners should mix themselves up with politicians in a venture that can only be lethal to the very ideals they should defend.

Suspension of the ICC’s case against al-Bashir would cripple the Court’s independence and its credibility as a judicial institution.

It would also endorse impunity for alleged war crimes and crimes against humanity and encourage the government’s notion that it can do what it pleases if the 12-month suspension permissible under the ICC statute were to be approved.

It is important that the ICC address the worst crimes that fall within its mandate wherever they occur, and this will mean expanding its cases beyond Africa.

The ICC has already begun the initial work in Afghanistan, Colombia, and Georgia, where crimes are under analysis by the court.
Some serious crimes have been committed in countries that have not become parties to the court and we all need to work for wider membership in the ICC.

I would like my own country of Cameroon to move beyond just being a signatory and ratify the ICC treaty.

But no one can deny that many horrible crimes
that merit the ICC’s attention have and continue to be committed on our continent.

It is time to face that reality and to praise rather than to try to belittle the ICC’s work to bring redress for these crimes.

The author is senior partner at Abeng Law Firm in Cameroon. He is also the vice-chair of the Africa Steering Committee of the American Bar Association and a member of the International Criminal Bar