African backlash against international courts rises

MADRID – Look at the docket of International Criminal Court (ICC) cases and you would conclude that African states have been leaders in quickly adopting international justice standards and accepting global courts.

Today, most of the international justice cases are from Africa, with warlords and former and current heads of state accused of war crimes and the use of child soldiers.

While separate from the ICC, the Rwanda genocide tribunal in Tanzania, for example, led to a special tribunal for Sierra Leone for Liberia’s former President Charles Taylor. Sitting head of state Omar al-Bashir of Sudan faces an ICC indictment for war crimes in Darfur.

But now there’s a growing African political backlash against a wholesale acceptance of global justice, and the ICC specifically, that may undermine some of the progress in reforming judicial systems on the continent.

African lawyers, scholars, and human rights advocates at an international bar association meeting here in Madrid say that concerns of anti-African bias, are rising.

On the heels of the ICC indictment of Mr. Bashir, they describe an African perception that their adopted new standards are practiced by the West and North as “double standards.” They point to Hague courts filled mostly with African defendants, and describe a sharpening discourse in African nations that international justice is a neocolonial project.

“There is not a single case at the ICC that does not deserve to be there. But there are many cases that belong there, that aren’t there,” says Martin Ngogo, prosecutor general of Rwanda.

In an afternoon session at the Madrid bar association meeting called "Peace vs. Justice" – which was meant to address the contention that issuing ICC warrants for the arrest of African warlords and heads of state often scuppers peace deals – presenters mentioned a wide array of nefarious conduct in other parts of the world and wondered why more warlords from other continents are not hauled off to the Hague.

Most African states signed onto the Rome Statute – the 1998 treaty that established a universal court of criminal justice – opening up a new legal era, and unleashing new energy among ordinary lawyers on the continent. The ICC is a fallback court, intended to complement national judicial systems. It can only initiate a case when national courts are unwilling or unable to prosecute genocide, crimes against humanity, or war crimes committed since July 1, 2002.

Despite rising criticism of the ICC, Kenyan Prime Minister Raila Odinga kept the door open for prosecution of those responsible for post-election violence in 2008. Such steps are described as part of a “historic process that none of us saw” little more than a decade ago, argues Hans Carrel, former legal counsel to UN Secretary-General Kofi Annan.

Yet even the strongest African proponents of an improved rule of law describe a negative new mood among national politicians. This summer, the 52-nation African Union backed away from its former strong advocacy of the ICC, swayed in part by the Bashir indictment, Sudanese lobbying, and fear that other African heads of state may one day be targeted by the ICC.

Charles Villa-Vicencio, former executive director of the Institute for Justice and Reconciliation in Cape Town, South Africa, at a forum in the US on Oct. 3 described a deepening antagonism in Africa for international institutions.

African judicial authorities are also questioning the practices of American and British justice departments in prosecuting alleged terrorists, and to the mostly hands-off approach to the ICC taken by the US (110 nations are members of the ICC – the US, China, and Russia are not) – saying this has undercut their moral authority as legal torchbearers. Those like Don Deyo of the East Africa Law Society in Arusha, Tanzania, say their states are committed to improvement but are irritated by critics who say they move too slowly. “The fleas come with the dog,” he says.

The perception of an anti-African ICC bias is thwarting efforts by UN and justice advocates for African states to take the next step to implement the Rome Statute. This process requires states to reform and conform their judiciary to international rule of law standards.

South Africa and Senegal have agreed to such reforms, and Kenya is close. “This is the way you build up a system of law at the national level,” argues Mr. Carrel. “The [1948 Universal] Declaration of Human Rights was never binding. But today it is a master plan for constitutions … most every state refers to it.”

But “implementation” in Africa may be grinding to a halt for now. “The whole perception of a double standard in Africa is clouding the usefulness of the ICC at this time,” says Nigerian Olawale Fapohunda, a managing partner at a law firm in Lagos. “It’s a major concern for international justice and it will affect the workings of the ICC. No one is talking about implementation at the moment.”

Still, budding legal and human rights communities in states such as Kenya remain firmly committed to judicial reform, citing a need for safeguards and the protection of improved laws.

“We need the changes,” says Nairobi lawyer Mike Chauke whose firm bears his name. “You can’t have a civil society group going to court entirely on its own. By implementing legislation, it is easier for lawyers to insist that the rules we agree to be applied.”