Analysis Politics

Court discrimination or leaders escaping justice?

Accusations of discrimination have been thrown at the International Criminal Court in recent days due to its focus on investigating African cases, which is seen by many as unfair.

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Photo Credit: ICC-CPI
Photo Credit: ICC-CPI



These accusations have led to the African Union demanding that heads of state should be immune from the ICC while they are in office, amid rumours that the Union's members may walk-out on masse from the court. Those leading the charge against the court include President Uhuru Kenyatta of Kenya, who has been recently charged by the ICC over post-election violence in 2007. Already, Kenyan MP's have approved a motion to leave the ICC following an emergency debate. The members of the African Union are divided over the issue, with many Eastern African states criticising the ICC, but other states on the continent are coming out in support.

At first glance, the claims of African leaders that the ICC is "hunting Africans" appear well-founded. Firstly, since the court's creation in 2002, all its cases have been from African countries, and it has only convicted one man, an African warlord from the Democratic Republic of the Congo. Secondly, everyone currently wanted by the ICC is an African, including two sitting heads of state, President Kenyatta and President Omar al-Bashir of Sudan, who has been a fugitive from the court since 2009 over alleged war crimes in Darfur. Some African leaders argue that the ICC is discriminatory as it has failed to file charges against the leaders of Western nations or Western allies while prosecuting only African suspects so far. Mr Kenyatta has recently accused the court of being 'the toy of declining imperial powers' and argued that to prosecute leaders while in office could damage state governance.

However, if we look deeper into the workings of the ICC, the accusations of discrimination from African leaders ring a little hollow. Of the eight official investigations currently underway in the ICC, all of which are from African countries, four of them originate from referrals by the states themselves. And while all current investigations have been in African countries, there are examinations by the court across the world, including in Afghanistan, Colombia and even South Korea. Furthermore, the chief prosecutor in the court since June 2012 has been an African woman, Fatou Bensouda, from The Gambia.

Despite the fact that all the ICC's current cases are in Africa, accusations of racism or discrimination are far-fetched. Genuine violations of human rights have taken place in all the countries in which investigations are on-going which cannot be ignored. President Kenyatta and other Kenyan politicians successfully manipulated the ICC cases to bolster their recent election campaigns by fuelling negative sentiments towards the court. Leaders, whether African or not, can't be allowed to use these sentiments and the unfortunate coincidence of the ICC cases all being African at this moment, to escape justice.

The ICC must stand firm for two crucial reasons. Firstly, granting the heads of state immunity from ICC jurisdiction would only lead to leaders becoming even more desperate in holding onto power, creating the potential for further human rights abuses in the future. More importantly, the court must not set the precedent that people can escape justice by being in office, not only could this allow leaders to commit atrocities while in office safe in the knowledge they could escape justice indefinitely, but for the simple reason that justice deferred, is justice denied.

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