Bensouda visits the Ivory Coast in July as her office builds a case against the country's former President Laurent Gbagbo.
On Sept. 5 the Kenyan parliament approved a motion to leave the International Criminal Court (ICC), a move obviously timed to coincide with the then pending commencement of the trial in the Hague of Kenya's Deputy President William Ruto. The motion, which is expected to be followed by a bill that could become law within the next few weeks, reflects mounting anger across Africa that the ICC is targeting African suspects ahead of those in other parts of the world, and could well lead to other countries abandoning the court. In May, the African Union celebrated its 50th anniversary. At the end of the three-day summit held in Addis Ababa, members publicly accused the ICC of being racist. A.U. chairman Hailemariam Desalegn, Ethiopia's Prime Minister, said: "The intention was to avoid any kind of impunity, but now the process has degenerated into some kind of race hunting. We object to that."
When the court opened its doors in July 2002, it was welcomed enthusiastically by many African nations for its promise of justice for a continent blighted by a long history of exploitation and brutality. Africans were delighted to finally have a venue in which dictators and tyrants could face justice. Of the 122 countries that are state parties to the treaty that established the court, 34 are African.
Today, however, it is a matter of great dismay to many Africans that every single defendant indicted by the court — 30 to date — is from Africa. That figure shows that the court is targeting Africa. The oft-heard response is that most of these cases were referred to the ICC by their own countries: this ignores the political motivation behind many of these referrals — often a new President trying to remove an opponent from the scene permanently. (Other cases before the court involve Sudanese indictees and are there because the U.N. Security Council voted in 2005 to refer the Darfur crisis to the ICC.)
Defenders of the court conveniently ignore the political, economic and military realities of the world in which the court operates — specifically, who controls the global opinion-forming process that ultimately determines who is indicted and whose actions can be condoned behind the fig leaf of "humanitarian intervention." There is an unspoken truth about international criminal law as currently practiced; namely, that certain individuals from certain powerful or strategically important countries will never find themselves indicted before an international tribunal. The former British Foreign Secretary, the late Robin Cook, made that brazenly clear when, shortly after the U.K. became a signatory to the treaty that established the ICC, he said: "If I may say so, this is not a court set up to bring to book Prime Ministers of the United Kingdom or Presidents of the United States." It is almost as if the ICC has been charged with a new civilizing mission, the 21st century's version of the "white man's burden."
The disenchantment of many Africans has not been assuaged by the appointment in June 2012 of Fatou Bensouda, a Gambian, as chief prosecutor at the court. Many see her appointment as a crude response to the accusation that the court is racist in its targeting of Africans. Defenders of the ICC now routinely respond to charges of racism by saying, "Well, look, the prosecutor is African" — as if that absolves the court of its obligation to seek justice with an even hand. Bensouda has yet to find a single crime committed by a great white, northern power against people of color that is worthy of prosecution at the ICC.
If African nations do choose to turn their backs on the ICC, however, they will be morally obligated to establish their own court with a robust enough apparatus to ensure that fair and equal justice is meted out to those who commit crimes against their fellow Africans. Continued economic growth on the continent requires development of and investment in a robust system of justice at all levels to bring to account all those guilty of war crimes and crimes against humanity, starting with heads of state.
I was always led to believe that whether you are princess or prostitute, the President of the U.S. or the President of Liberia, the law is above you. When the ICC starts to observe that principle, it will truly become a court for Africa, and the world.
Griffiths, a British lawyer, defended former Liberian President Charles Taylor at the ICC