All seven cases before the ICC are about situations in Africa, and two other international tribunals are dedicated to the African continent. Critics point out that African war criminals are singled out over other war criminals under international law. But the author of this article argues that “selective” justice to try war criminals is not necessarily a bad thing. Many African states, such as the Democratic Republic of Congo, the Central African Republic, and Uganda, referred themselves to the ICC for investigation.
By Steven Powles
This Wednesday former Liberian president Charles Taylor will be sentenced in The Hague by the special court for Sierra Leone (SCSL) for his part in Sierra Leone's bloody conflict. Chances are, even if judges impose a sentence much less than the prosecution's fanciful request for 80 years imprisonment, Taylor could soon be on his way to the UK to serve out his time. Some - notably Taylor's own lawyer, Courtenay Griffiths QC - have been vocal in identifying Taylor's prosecution as part of an inherently biased and flawed international criminal justice system, in furtherance of a neo-colonial, anti-African, agenda.
It's true that of the seven situations currently before the permanent international criminal court (ICC), all are from the continent of Africa. True also that two other international tribunals, the Rwanda Tribunal and the SCSL, are dedicated to African conflicts. But the foundations of the new system of international criminal justice lay not in Africa, but Europe.
It was the United Nations' decision, back in 1993, to establish the Yugoslavia tribunal that set the precedent for the other international tribunals that followed. But for his untimely passing, Slobodan Milosevic, not Taylor, may well have been the first former head of state to be convicted by an international court. And as the Taylor trial nears its end, the very un-African cases against Mladic and Karadzic carry on in earnest.
Are African perpetrators singled out more than others? Perhaps. But try telling that to their victims. From a man forced to choose which healthy hand to have amputated, to a woman gang raped by 20 men, to a child forced to kill his parents and join a rebel gang, justice, even if selective, will almost always be welcome. It is the victims of the crimes overlooked that have the right to complain, not the defendants in the dock.
Moreover, in the main, it has been African states themselves that have demanded international justice. It would be wrong to think that the SCSL, and the pursuit of lasting peace through justice, was somehow foisted upon the people of Sierra Leone. It was the newly elected government of Sierra Leone itself that entered an agreement with the United Nations to establish the SCSL.
Similarly, the Democratic Republic of Congo, the Central African Republic, and Uganda all self-referred themselves to the ICC for investigation. The Kenyan cases, although initiated by the ICC prosecutor, continue to receive support from the Kenyan Human Rights Commission, and at least one of the suspects prefered the ICC to prosecution before a Kenyan court.
Nations opposed to the ICC, such as the United States, show a shortsighted reluctance to cede any sovereignty over their nationals to international institutions, and for this they come in for justifiable criticism. By contrast, those African states that have demonstrated the confidence to open up to international justice should not be seen as the targets of neo-colonial victimisation; they themselves have decided to be at the vanguard and usher in a new era of international justice, and for that we are indebted. As recently observed by the new Gambian prosecutor at the ICC, Fatou Bensouda, these are "principled states … determined to use the power of the law, not the power of arms, to protect their citizens and their territories."
The UK, thanks in part to efforts of the late Robin Cook, when foreign secretary, played a key role in helping establish the ICC. In so doing, the UK chose to place itself at odds with its US ally and stand with the majority of the international community in laying the foundations for an historic institution (even if it could one day extend its reach over any British citizen). In the fullness of time it may be this, and not the unlawful war in Iraq, nor even the momentous passing of the Human Rights Act, that proves New Labour's lasting legacy to the international legal order.
For sure, there are flaws in our new system of international justice. For one thing, those who choose not to sign up to it - or have a powerful friend on the security council - face little immediate prospect of being brought before an international court. The downside of this is that people claim, as Seumas Milne did recently, that "international law simply doesn't apply to the big powers or their political leaders". But this is only part of the story, precedents are being set, precedents that will no doubt one day be applicable to all.
The fact is, international criminal justice is young. With time it will develop its full potential. Today it is Taylor, tomorrow … who knows? Taylor's crime, and the basis of his conviction, was providing arms to a group he knew were using them to commit atrocities.
Those who knowingly peddle the hardware of abuse - no matter which continent they are from - should now sit up and take notice. With the Taylor conviction, another new precedent has been set.