African leaders complain of bias at ICC as Kenya trials get underway

There are eight cases and 21 defendants in front of the International Criminal Court, and every last one of them is from Africa. Now the continent’s leaders are debating whether that’s a problem.

The 11-year-old court of last resort was set up to take on some of the world’s most heinous crimes. But its choice of cases has frustrated African leaders, who say that comparable crimes elsewhere in the world are being ignored and that race is a factor in the
decision-making. With Kenya’s president and deputy president on trial, African leaders are pushing for changes that some ICC advocates say would undermine the court completely.

At stake is the future of a court whose creation was touted as a major breakthrough in ensuring that those who commit crimes against humanity do not escape justice — a dream that African nations, more than any other region in the world , signed up for. Now, however, the African Union is campaigning against the court, with some leaders voicing disillusionment and saying that justice does not seem to be equally applied around the globe.

Atrocities in Syria, Colombia and Afghanistan have gone unpunished, African leaders say, even as the U.N. Security Council was quick to authorize the ICC in 2011 to turn its attention to North Africa and take up work against Libya’s leaders at the time: Moammar Gaddafi, his sons and his intelligence chief.

“They’re treating us like toddlers,” Kenyan Foreign Minister Amina Mohamed said in an interview in The Hague, where Kenyan Deputy President William Ruto is on trial in one of the ICC’s small wood-lined courtrooms on the outskirts of the Dutch city. “Africa feels marginalized.”

“This is a good time to think about the relationship between Africa and the international community. Not just Africa and the ICC,” she said.

Ruto and Kenyan President Uhuru Kenyatta were indicted in 2011 on charges that they helped stoke violence, some of it ethnically targeted, that killed at least 1,100 people after disputed elections in December 2007. Both profess innocence. They have sought permission to skip ICC proceedings in the name of national security and have pushed for immunity from prosecution for sitting heads of state.

A four-day siege of Nairobi’s Westgate mall in September by gunmen possibly tied to the Somali group al-Shabab, which is linked to al-Qaeda, has only increased pressure from the Kenyans. Ruto was in The Hague on the day the attack started but was excused to rush home to coordinate a response. Kenyan officials have said that the ICC prosecutions are distracting their leaders from counter­terrorism efforts.

After the attack, Kenya helped convene an October summit of the African Union, at which the ICC’s focus on Africa was condemned. It pushed the court and the U.N. Security Council for a delay in the case and lost at both venues, although Kenyatta’s trial was pushed back until next year for unrelated reasons. But at a meeting of the court’s governing body last month, Kenya’s leaders won concessions that will make it easier for them to skip some court sessions and to attend others remotely by video link than in person at The Hague.

Long-serving Sudanese President Omar Hassan al-Bashir, who in 2008 became the first head of state targeted by the ICC and was charged with committing genocide in the Darfur region, also has accused the court of having a bias against Africans. But Kenya’s leaders have had far more success in turning their regional allies against the court.

“You have the backdrop of the Westgate crisis and the fact that Kenya is a player in regional counter­terrorism,” said Mark Kersten, an international criminal justice scholar at the London School of Economics, adding that Kenya’s regional power helps the country draw support from other African nations in a way Sudan never has.

Kenyan leaders have sought an ICC rule to grant immunity to sitting heads of state, a change that many victims’ advocates say would simply serve as an incentive for rulers to hang on to power. Short of that, Kenya wants greater leeway in exempting Kenyatta and Ruto from ICC courtroom appearances.

Some defend Africa focus

Defenders of the ICC’s activities in Africa — including some Kenyans — say the arguments against the court don’t fully hold water. Five of the eight countries whose citizens are being prosecuted by the ICC asked it to step in. Sudan and Libya were referred to the court by the U.N. Security Council. Only in Kenya did the ICC’s chief prosecutor exercise his discretion to pursue charges against Kenyatta and Ruto, who were later elected leaders of their country.

“If Africa wants to support other cases being opened, there are other places to do that,” said Esther Waweru, a program officer for legal affairs at the Kenya Human Rights Commission. “Refer Syria to the ICC,” she said, which is possible through a U.N. vote.

International prosecutions of crimes that occurred before the court’s 2002 establishment were tried elsewhere, such as the International Criminal Tribunal for the former Yugoslavia, which has indicted more than 160 people since it was established in 1993 — more than the ICC, despite a narrower mandate.

“Denying victims in Darfur or Kenya access to remedy because it’s not possible to provide justice for victims in Gaza or Sri Lanka or Afghanistan makes no sense,” said Richard Dicker, director of the International Justice Program at Human Rights Watch. “A judicial institution with this kind of mandate is going to run into challenges.”

But Dicker and others fierce defenders of the court say that perceptions are still vitally important in fostering a sense of fairness and justice.

“You can’t escape noticing that some powerful countries are able to escape accountability,” said Alex Whiting, a former senior official in the ICC’s Office of the Prosecutor. “And then there are the optics of the court sitting in The Hague, adjudicating cases in Africa. And that powerfully reinforces the narrative.”

But he added that the court’s Africa focus has been, to some extent, an accident of history. Since 2002, “Africa is an obvious place to focus” international prosecutions, he said.

That is the defense of Luis Moreno Ocampo, the court’s first chief prosecutor, who made the decision to indict Kenyatta and Ruto and who stepped down at the end of his term last year.

“We defended the most serious cases against the most responsible people,” he said. “The fact that the African Union, that Bashir and Ken­yatta are challenging it shows that the court is working and that they are afraid of the court’s working.”

Moreno Ocampo’s replacement as top prosecutor was his former deputy, Fatou Bensouda, a Gambian lawyer who was supported by the African Union. But court critics say she has not shifted the institution’s focus. Four of the court’s 18 judges are African.

Geopolitical difficulties

The court has always had to navigate difficult political seas. The George W. Bush administration actively opposed the ICC for most of its time in office, and the United States has never signed on to the treaty that would make American officials prosecutable. Analysts say Russia and China, neither of which has ratified the treaty, also have steered the court away from cases too close to home, including in Georgia, where Russia fought a brief war in 2008, and Sri Lanka, a close ally of China.

“The court has been quite cautious in a geopolitical sense. And that cautious approach has led them to open African cases where the strategic interests are reduced, as opposed to elsewhere,” said David Bosco, a professor at American University who is the author of “Rough Justice,” a forthcoming book about the ICC.

Still, said one advocate for victims, the African leaders fighting the court don’t necessarily speak for their citizens.

The campaign against the ICC “is not in the interest of the people,” said Stella Ndirangu, an official at the Kenya section of the International Commission of Jurists. “These very people, the influential people in the world, are the exact people it targets.”

Michael Birnbaum is The Post’s Moscow bureau chief. He previously served as the Berlin correspondent and an education reporter.
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