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Justice must cut both ways

Patrick Smith
By Patrick Smith

Patrick Smith is Editor-in-Chief of The Africa Report.

Posted on Tuesday, 7 July 2015 12:57

Like Groucho Marx, South Africa does not want to belong to a club that will accept it as a member. This time, the club in question is the International Criminal Court.

If Loretta Lynch and the FBI can work out who laundered the money at FIFA, the ICC should be able to prove who ordered the killings of hundreds of thousands of people in Africa

What could be the final showdown over South Africa’s membership of the ICC was prompted by the fiasco of the arrival of Sudan’s indicted President Omar al-Bashir at the African Union (AU) summit in Johannesburg on 13 June and his forced departure on 15 June.

South Africa, with the moral strength from its struggle against apartheid, was a key signatory of the ICC’s Rome Statutes.

The governing African National Congress now says the ICC is “no longer useful for the purposes for which it was intended – being a court of last resort for the prosecution of crimes against humanity.”

The ICC’s charges against Bashir are based on the deaths of more than 300,000 people in the Darfur region a decade ago.

The latest United Nations (UN) reports say at least 78,000 people have been forcibly displaced in Darfur this year and there are unverified reports of 130,000 more chased from their homes by the government’s Rapid Support Forces and state-backed militias.

The current fate of Darfur shows the same short attention span that has stymied the development of the ICC.

The court’s international backers have to show that justice must cut both ways: if the US was to ratify the Rome Statutes, it would add pressure on Russia and China to follow suit, making it far less of an Africa-centric affair.

ICC prosecutor Fatou Bensouda, as a top Gambian lawyer trained in Nigeria, is sensitive to the charge that the ICC is pursuing selective justice against Africa.

She has also made the point that the UN Security Council, which authorised the ICC investigation and prosecution, should take much more serious action if it wants the court to press its charges against President Bashir.

The Security Council, which could not agree on a resolution to refer Syria to the ICC this year, should back a French proposal that no council member should use its veto when considering crimes against humanity.

It should also support the ICC’s implementation of witness protection programmes and effective and technologically savvy investigations.

As a senior UN official tells The Africa Report: “If Loretta Lynch and the FBI can work out who laundered the money at FIFA, the ICC should be able to prove who ordered the killings of hundreds of thousands of people in Africa.”

Another development for the court that could win it wider credibility is the membership of Palestine this year, which could trigger investigations into allegations of war crimes carried out by both Israel and Hamas.

There have also been a slew of proposals for hybrid courts – in Central African Republic, South Sudan, Guatemala and Kosovo – combining the knowledge of national judiciaries with the guarantees of international jurists.

These could help the ICC to win back support. For the sake of the hundreds of thousands of victims of atrocities, let’s hope it succeeds. ●

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