Indecisiveness With Justice

The Korea Times (also appeared in The Hill Times)

August 30, 2009

Are we dealing with a conflict between peace and justice or is it a smokescreen meant to protect African leaders from future indictments for crimes against humanity?

Last month at the 13th African Union (AU) Summit in Libya, the AU voted to ignore the International Criminal Court (ICC) warrant for Sudan's President Omar al-Bashir, with only Chad officially expressing some reservation.

In the first ICC case against a sitting head of state, opinions are divided and fears of setting precedents run high. In July 2008, the prosecutor of the ICC, Luis Moreno-Ocampo, accused the Sudanese leader of crimes against humanity, war crimes and genocide in Darfur.

In March 2009, the court issued an arrest warrant for the Sudanese leader. The violent conflict in Darfur has left more than 300,000 people killed and another 2.7 million internally displaced.

As head of state and commander of the Sudanese armed forces, al-Bashir is accused of leading a five-year counter-insurgency campaign against three armed groups in Darfur.

Over the last few months, the AU has debated the issue of the warrant and submitted requests to the U.N. to defer the arrest of al-Bashir until the delicate situation in Sudan, as the Comprehensive Peace Agreement (CPA) is being implemented, is more stable.

What began in 1983 as a war between the Muslim north and the largely animist and Christian south ended in January 2005, when Khartoum signed the CPA, effectively ending one of Africa's longest running civil conflicts that killed more than 2 million people and displaced another 4 million.

The African Union contends that it is primarily concerned with issues of peace and stability in the country and the region more largely. Critics point out that the more likely explanation is that they fear the implications of trying a head of state.

There are few current African heads of state who would pass as innocent of activities such as corruption, neglect, dictatorship, or electoral fraud under the scrutiny of a court.

Sadly, any valid concerns the AU may have of creating a power vacuum in Sudan, or focusing on peace negotiations, are overshadowed by the questionable past of many of the region's leaders, and the effect indicting al-Bashir could have on them.

This controversial decision, which has sparked so much debate internationally, is reminiscent of the equally notorious act of welcoming Zimbabwe's President Robert Mugabe to the eleventh AU Summit in June 2008 in Egypt.

The AU members symbolically recognized him as the rightful President of the country at the Summit, which took place a mere day after his inauguration, even as the violence and validity of the presidential election was questioned around the world, including by election observers from the AU itself.

Again some African leaders, such as Tanzanian President Jakaya Kikwete, decided to go halfway, indirectly urging for a peaceful resolution to the conflict and power-sharing, while at the same time warmly accepting Mugabe into their midst.

Alone in their dissent were Botswana, which decided to boycott the Summit altogether to protest his presence, and Zambia, whose president was one of the autocratic leader's most vocal critics.

In both cases, the AU argued for peace over justice. In most African cultures, traditional institutions of justice are very different from their Western counterparts. The majority values the collective, and places some importance on reintegration of perpetrators instead of punishment.

This is evident in the types of mechanisms so often used in Africa, such as the Truth and Reconciliation Committee in South Africa after apartheid, or the indigenous gacaca courts used in Rwanda after the genocide, both of which focus on reconciliation and reintegration.

It is thus conceivable that many Africans would have some objections to the ICC. Yet 30 African countries are voluntary signatories to the statute that created the International Court.

This is not to say that the ICC does not have its limitations, being a relatively new institution with a history of acting selectively as to where and when it intervenes.

The AU has accused the court of being a neo-colonial instrument, geared almost exclusively at African nations. Considering the current case load of the ICC, which is comprised of cases from Uganda, the Democratic Republic of Congo, Sudan, and the Central African Republic, this is somewhat understandable.

However, at least the 30 African signatories to the Rome Statute, especially those, like Uganda, who have themselves brought cases to the ICC, are morally and legally obliged to act on the warrant. Ignoring the indictment will neither resolve the issue, nor reform the ICC.

Furthermore, this debate has made a mockery of both international bodies as several African states, such as Botswana, are already speaking out against the AU decision.

Any claims the African Union may have, whether of bias, discrimination, or others, should be discussed and settled by all ICC parties, rather than addressed through an uncoordinated and ineffectual refusal to adhere to international agreements already ratified.

Otherwise, what would this mean for the likes of Ugandan rebel leader Joseph Kony, indicated by the ICC on 33 counts of crimes against humanity and war crimes, or future tyrants and dictators?

Hany Besada is a senior researcher and program leader at The Center for International Governance Innovation (CIGI) in Waterloo, Canada. Karolina Werner is a project manager at CIGI.

The opinions expressed in this article/multimedia are those of the author(s) and do not necessarily reflect the views of CIGI or its Board of Directors.

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