ICC throws spotlight on African injustice

By Karen Allen
Southern Africa correspondent, BBC News

Image source, AFP
Image caption,
Child soldiers were forced to fight under DR Congo's Thomas Lubanga

Frank and Anthony live thousands of miles apart in rural Africa. The two teenagers were both robbed of their innocence on the orders of political leaders.

Though these boys probably don't realise it, they are the drivers of international justice. Their compelling stories contributed to the evidence that prompted investigations by the International Criminal Court (ICC).

One boy lives in the Democratic Republic of Congo, the other in a village in central Kenya.

Frank was a child soldier forced to fight under Thomas Lubanga, one of Congo's most feared rebel leaders. He was just 13 when he was recruited and ordered to kill.

Since 2009 Mr Lubanga has been on trial in The Hague - the first man to be tried in the world's first permanent war crimes court.

Anthony became a symbol of Kenya's darkest hour. Miraculously, he has recovered from the appalling burns he suffered when the church he sought shelter in was set alight in the turbulent Rift Valley.

Dozens of others died. It was one of the worst atrocities during the first days of Kenya's descent into anarchy in 2008, following disputed presidential elections. Anthony knows he is lucky to be alive. He is also old enough to understand the meaning of justice.

It may be cumbersome and slow and open to accusations of political meddling, but the ICC is seen by many as the best hope Anthony and Frank have for seeing impunity ended and governments held to account.

There may be criticism that the court has given a disproportionate amount of attention to Africa's troubles. All five cases under investigation by the ICC involve African states - Kenya, Uganda, the Central African Republic, DR Congo and Sudan.

Critics could also say that the world's biggest superpower, the US, is not a signatory to the laws that created it. But is the world a better place because it exists?

Deterrent effect

ICC Chief Prosecutor Luis Moreno Ocampo has long argued that the purpose of the court is not simply to convict but also to shape change.

The very existence of arrest warrants or summonses is sufficient, he argues, to make leaders stop and think before acting illegally. In the event of a successful conviction, that deterrent effect is likely to grow.

The court has, for the first time, placed personal criminal responsibility on individuals in Kenya for their alleged crimes.

The fact that frantic moves are afoot to try to withdraw Kenya's obligations to the ICC, belies a sense of panic among the political elite.

William Ruto - one of the six men named by Mr Ocampo - has called for a local tribunal to hear the cases instead.

Although a local tribunal has already been rejected by parliament, President Mwai Kibaki has re-stated his government's commitment to the idea.

Mr Ocampo will have to brace himself for attempts to stall and obstruct his quest for justice, but informally he has told me he is prepared to wait "for however long it takes" to bring the perpetrators to book.

In 2009, when an arrest warrant was issued for Sudanese President Omar al-Bashir, the government there tried a similar tactic, promising a local court.

Mr Bashir has still not been arrested and the local court has still not been formed.

'Public shaming'

Nevertheless the president's ability to travel as head of state has been severely compromised and he is considered in many parts of the world an international pariah. Only the African Union stands by him.

In Kenya there has never been "public shaming" like this, argues Muthoni Wanyeki, from the Kenya Human Rights Commission.

She believes the diplomatic ramifications for Kenya, with the naming of alleged suspects, should not be underestimated.

Image source, AP
Image caption,
More than 1,200 people died following Kenya's 2007 disputed elections

"Mugabe and Bashir don't give a damn about what the world thinks but Kenya is different," she says.

People in Kenya care what the world thinks and "they want answers", she adds.

Kenya is expected to hold elections in 2012 and though it may be unrealistic to expect dramatic progress from the ICC before then, its naming of alleged suspects is deeply symbolic and may make those intent on trouble think twice.

The evidence that the very existence of the ICC is effecting "behavioural change" may be thin on the ground in Africa but it is there, argues Geraldine Mattioli - ICC specialist for Human Rights Watch.

She gives the example of the Democratic Republic of Congo which, under President Joseph Kabila, was the first state to feel the ICC's wrath.

The government under Mr Kabila has just proposed the establishment of mixed chambers, foreign and domestic judges sitting side by side.

"That is a significant advance," she says. "I don't think it would have happened were it not for the ICC."

Veiled threat

In Zimbabwe in 2008, just weeks before the run-off elections, then US Secretary of State Condoleeza Rice accused President Robert Mugabe's party, Zanu PF, of "giving up any pretence" that the 27 June elections would be free and fair.

She warned that "international action is needed" - clearly a veiled threat to urge the ICC to investigate alleged war crimes in Zimbabwe.

Although it is the UN that gives the ICC its mandate, not Washington, Zimbabwe's leaders responded and went on to enter into a power-sharing arrangement.

Citizens across the African continent are digesting the latest bombshell from the ICC.

The time it has taken to name the alleged suspects in Kenya is quick in legal terms. Although many obstacles lie ahead and vested interests are at stake, many are now asking whether the ICC is coming of age.

Maybe by the time Frank and Anthony are old enough to vote, the existence of the ICC will mean Africa's leaders think twice before unleashing terror in their quest for power.

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