By The Economist –
A verdict is imminent in the case of Charles Taylor, pictured below, the first former head of state to be judged by an international court since the Nuremberg trials
For decades, the only head of state to be convicted by an international court was Karl Dönitz, briefly Germany’s leader after Hitler’s suicide. He was jailed at Nuremberg. But in the past 13 years international courts have prosecuted five heads of state, four of them African. None of these prosecutions has so far resulted in a verdict. Slobodan Milosevic, president of the former Yugoslavia, died in 2006 during his trial. Rebels killed Libya’s leader Muammar Qaddafi in October, four months after the International Criminal Court issued an arrest warrant. The ICC has also indicted Sudan’s president Omar al-Bashir for atrocities in Darfur. Laurent Gbagbo, former president of Côte d’Ivoire, is due to go on trial in June after his transfer last November to The Hague.
Hopes are also growing that Hissène Habré, Chad’s former tyrannical ruler, may at last be called to account 22 years after fleeing into exile in Senegal; his protector against trial or extradition, President Abdoulaye Wade, was defeated in an election last month. Other countries have put their leaders on trial, but not before international tribunals. Iraq executed Saddam Hussein in 2006. Egypt is trying its leader of 30 years, Hosni Mubarak.
But it is still rare for African countries to put their rulers in the dock—perhaps because incumbents fear creating an unwanted precedent if and when their turn comes. Over the past decade, that task has increasingly fallen to the ICC. But it was always intended to be a court of last resort. Its statutes stipulate that it is to prosecute an atrocity crime only when the country involved is itself “unwilling or unable” to do so. Cases must be referred to it either by a member state in which the alleged crimes have taken place or, in the case of non-members, by the UN Security Council. The chief prosecutor may open an investigation on his own initiative, but only after approval by the court’s judges. It is not allowed to investigate crimes committed before it was set up in 2002.
Some critics of the 121-member ICC see it as too Western and anti-African, others as too toothless. Until last month (when it found Thomas Lubango Dyilo, a Congolese warlord, guilty) it had failed to secure a single conviction. All seven countries being investigated are indeed African. But four of them—Uganda, the Democratic Republic of Congo, the Central African Republic and Côte d’Ivoire—specifically asked the ICC to intervene, whereas in two others, Sudan and Libya, the Security Council requested the court’s action. In only one case, involving post-election violence in Kenya in 2008, did the ICC’s chief prosecutor, Luis Moreno-Ocampo, initiate the investigation himself.
Case not proven
With 33 members, Africa forms the ICC’s biggest regional block. Another two African countries, Egypt and Côte d’Ivoire, are expected to sign up soon. Five of the 18 ICC judges are African. Yet the African Union (AU) asks its 54 members not to co-operate with the court, and wants the Security Council to “defer” (ie, abandon) its cases against Mr Bashir and in Kenya. Instead, the AU says Africans should prosecute their own tyrants. But that requires properly functioning courts, a rarity on the continent. The AU’s own African Court of Justice and Human and People’s Rights has made almost no progress.
ON APRIL 26th the UN-backed Special Court for Sierra Leone will make judicial history, giving its verdict on Charles Taylor, Liberia’s former president. He is accused of fuelling the decade-long savage civil war in neighbouring Sierra Leone in the 1990s by, among other things, providing rebel groups with arms in exchange for “blood diamonds”. Six of the rebel leaders involved have already been convicted and jailed for between 25 and 52 years.
Whatever the verdict in the complex and unpredictable trial, it marks a milestone in the 20-year transformation of international criminal justice. In dealing with perpetrators of so-called atrocity crimes, international law allows no amnesty for time elapsed or the seniority of the accused. That should make dictators and warlords wary everywhere, and especially in Africa, site of so many heinous deeds in recent decades.
Meanwhile, the ICC presses ahead. As well as Mr Lubango, three more Congolese are in The Hague awaiting trial. Jean-Pierre Bemba, a former Congolese vice-president accused of mass atrocities a decade ago in the Central African Republic, has been on trial for the past 17 months. Mr Gbagbo, Côte d’Ivoire’s former president, is expected to be joined in his cell block soon by other Ivorian suspects who are still being investigated.
Other cases have proved trickier. Of the seven Sudanese charged with atrocity crimes in Darfur, three have appeared voluntarily before the court, but four others, including Mr Bashir, ignore it. Of the five leaders of the Lord’s Resistance Army, a brutal Ugandan rebel group, charged by the court, two are dead; three others, including their leader, Joseph Kony, are still on the run almost seven years after warrants were issued for their arrest. Kenya’s government is challenging the ICC’s right to prosecute four senior politicians; two are leading candidates in next year’s presidential elections. Libya, too, is challenging the court’s jurisdiction to try Qaddafi’s son, Saif al-Islam, and the ex-spymaster Abdullah al-Senussi, though it may allow the ICC to take part in a domestic trial.
When asked about his record over the past ten years, the much-pilloried prosecutor, Mr Moreno-Ocampo, replies without hesitation: “Mission more than accomplished!” Controversy was to be expected, but “from the victims, we have had full support.” In June he will be replaced by his deputy Fatou Bensouda, a former Gambian justice minister. She may persuade the AU to look a little more kindly on the court—though not by showing greater indulgence towards villains.