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Stopping Kony: Why has the ICC tackled cases from only Africa?

March 9, 2012 |  2:14 pm

Lord's Resistance Army leader Joseph Kony  of Ugranda

The infamous Joseph Kony of Uganda is wanted by the International Criminal Court, along with seven other men accused of heinous crimes. It’s hard not to notice that all of the wanted men are from Africa.

African leaders have definitely noticed: Last year, the African Union called the court discriminatory. Rwandan President Paul Kagame argued that it was "put in place only for African countries," dubbing it "colonialism." Why has the International Criminal Court tackled cases from only Africa?

Other countries handle cases themselves

Not all war crimes go to the court. The International Criminal Court is supposed to be "a court of last resort" for countries that can't or don't prosecute the suspected war criminals themselves.

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Member countries can send cases to the court, the United Nations Security Council can do it, or the International Criminal Court prosecutor can put forward a case himself, with permission from the court.

Many other countries handle these horrific cases themselves, and that’s fine with the ICC as long as they seriously prosecute. For instance, Chilean dictator Augusto Pinochet faced human rights charges at home after first being indicted in Spain, though he died before being convicted.

One significant case outside Africa went to another international tribunal

Cases involving massacres and other atrocities in the former Yugoslavia were sent to a special tribunal created by the United Nations, which is why they weren't tried in the International Criminal Court.

African countries have been more likely to refer cases

The court isn’t picking on Africa, said John Washburn, who convenes a coalition of nonprofit groups that want the U.S. to fully support the court. So far, almost all cases have come from the countries themselves.

Experts say African countries are more likely to turn to the international court than those in Europe, Latin America or elsewhere because the cases demand time, money and staffing that poorer states in Africa don’t have. Human rights lawyers Olympia Bekou and Sangeeta Shah say that local courts need to be strengthened so that African countries don't have to turn to the international court.

Kenyan scholar Erick Komolo says that cultural factors are also at work. "The perception we have of our leaders as ‘super beings’ … stimulates a false sense of ‘ethnic solidarity’ in which a leader cannot be tried at home because he or she will compromise judicial institutions long before they commence trials," Komolo said in the Daily Nation, a Kenyan news outlet, this year.

African countries have also been more likely to become parties to the court in the first place, with many agreeing to be under its jurisdiction when the court was created in 2002, said Michael Scharf, director of the International Law Center at Case Western Reserve University.

Some countries aren’t part of the court

Countries have to agree to be under the jurisdiction of the International Criminal Court.There are lots of countries that aren’t part of the court, many of them in Asia, including China, Myanmar and Vietnam. The United States isn’t in. Neither are Iraq, Israel, Syria or Sri Lanka.

"I am not the world prosecutor. I am the prosecutor of 110 states," ICC prosecutor Luis Moreno-Ocampo said at an anti-racism workshop when asked why all his cases were in Africa. (The number of countries is now up to 120.) That creates limitations on where he can bring cases.

Powerful states can block it from acting in countries that aren't signed up

The court can still prosecute cases against wrongdoers in countries that aren’t part of the court if the U.N. Security Council decides to refer them. But it’s been rare for the council to take that step (doing so in cases involving Libya and Sudan), and China, France, Russia, Britain and the United States can single-handedly veto any such decision.

In India, which hasn't signed on to the court, one newspaper said it "provided escape routes for those accused of serious crimes but with clout in the U.N. body," a Columbia University professor reported.

For instance, human rights groups have been urging the Security Council to put forward a case against Syrian leaders over widespread allegations of abuses against civilians. But it hasn’t been attempted because Russia and China are expected to block it. Scharf believes it will become a test case.

"There’s a fair perception that one reason Africa has gotten Security Council referrals is the general political weakness of Africa," said Leila Sadat, a professor at Washington University School of Law in St. Louis. "Why should Syria get a pass?"

It’s hard for the prosecutor to act without countries behind him

The international prosecutor can gather evidence of war crimes and ask the court for permission to bring a case in a member country. The prosecutor has announced that he is looking into abuses in Guatemala, for example. But he hasn't put forward a case yet.

The bar is set very high to move ahead on a case, Sadat said. If a country isn’t cooperating with the prosecutor, it’s very difficult for the prosecutor to get the evidence he needs to move forward.

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-- Emily Alpert in Los Angeles

Photo: Lord's Resistance Army leader Joseph Kony answers journalists' questions  in southern Sudan on Nov. 12, 2006. Credit: Stuart Price / Associated Press

 

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