Worldview Commentary No. 278 on Chicago Public Radio, 91.5 FM WBEZ

“The International Criminal Court in Africa: Bad News and Good”

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At this stage of its development, the International Criminal Court in The Hague, known as the ICC, could for all practical purposes be called the ICC for Africa. All four situations under ICC investigation – Congo, Darfur, Uganda and Central African Republic – are African. All suspects publicly indicted by the ICC – three in Congo, two in Darfur and five in Uganda – are African. All three accused in ICC custody are former Congolese warlords.

Not that ICC Chief Prosecutor Luis Moreno Ocampo of Argentina has a fixation on Africa. Nor are African countries the only members of the ICC, although they do account for 29 of the 105 nations that have joined the ICC treaty. ICC policy is to prosecute those who are most responsible for the most serious international crimes. It so happens that the wars in Africa have led to atrocities on a scale unmatched elsewhere in recent years.

So how is the ICC for Africa doing? There is bad news and good.

First, the bad: Three years after the United Nations Security Council referred the bloodbath in Darfur to the ICC, and one year after the ICC indicted a Sudanese government minister and a Janjaweed militia leader for war crimes and crimes against humanity, both men remain free. Worse, the minister is now Sudan’s Minister for Humanitarian Affairs and a member of the government committee overseeing deployment of UN peacekeepers in Darfur.

In December Prosecutor Moreno Ocampo spoke to the UN Security Council. Sudan, he reported, “has not complied with its legal obligations” to arrest the two indicted men. On the contrary, Sudan is defiant: its Interior Minister declares – despite the Security Council referral of Darfur to the ICC – that the ICC Prosecutor “has no jurisdiction here. He is an intruder.”

Yet the slaughter in Darfur continues. It is not, said Moreno Ocampo, an inter-tribal clash. It is instead a pattern of attacks caused by a “calculated, organized campaign by Sudanese officials to attack individuals and further destroy the social fabric of entire communities.”

He asked the Council “to send today a strong and unanimous message” to Sudan to arrest the indicted men.

What was the Council’s response? No resolution. Not even the diplomatically lesser form of a statement by its President.

The main obstacle is China, which has major oil investments in Sudan. Like the US, China abstained when the Council referred Darfur to the ICC. At the most recent Council meeting on Darfur, China’s delegate intoned that if the parties would only “negotiate with patience and good faith, all issues could be solved.”

Patience? As Moreno Ocampo asks, “Must we really wait, again, for the destruction of entire communities?”

The US, too, must do more. At the February 8 Council meeting, calls for Sudan to cooperate with the ICC were made by diplomats from Britain, France, Italy, Belgium and Costa Rica. But not by US Ambassador Zalmay Khalilzad.

Whatever objections the US has to the ICC, they do not apply to the ICC investigation in Darfur, which the US could have vetoed, but did not. China will happily do nothing, so long as the US fails to demand that Sudan arrest the suspects indicted by the ICC.

In contrast to Darfur, the ICC is beginning to make progress elsewhere in Africa, specifically in the Democratic Republic of Congo.

Congo has now turned over to the ICC three warlords accused of mayhem in the Ituri region of Congo. In 2006 Congo handed over Thomas Lubanga, leader of the so-called Union of Congolese Patriots. Lubanga is indicted for enlisting and conscripting child combatants under age 15 – some as young as 10. At the height of the war in Congo, as many as 30,000 children were dragged into the fighting.

Recently Congo turned over two more warlords. Germain Katanga, commander of the Patriotic Resistance Force in Ituri, and Mathieu Ngudjolo Chui, former leader of the National Integrationist Front, are both accused of planning and carrying out a murderous attack on a village in Ituri in 2003. Their forces allegedly murdered 200 civilians, sexually enslaved women and girls, imprisoned civilians in a room filled with corpses, pillaged the town and razed it to the ground.

Their forthcoming trials will not only bring an air of reality to the ICC, they may also signal that the days of assured impunity for African warlords are over. Last week, as orchestrated violence consumed Kenya – which joined the ICC in 2005 — Moreno Ocampo diplomatically warned that he “considers carefully all information” about ICC crimes committed in states parties to the ICC, “regardless of the individuals or groups alleged to have committed the crime.”

Translation: Kenyan President Mwai Kibaki and challenger Raila Odinga had better act to cool the violence. If not, the next person indicted by the ICC may be a Kenyan.


Doug Cassel’s commentaries are generally broadcast Wednesdays during the noon hour of the Worldview program on Chicago Public Radio, 91.5 FM, and rebroadcast at 9 PM in the evening. Views expressed are personal views of the author and not necessarily those of Notre Dame Law School, the Center for Civil and Human Rights or Chicago Public Radio.