Unjust African justice

By Aryeh Neier

Granted the continent’s leaders immunity for their crimes, probably unravels two decades of progress

At its recent summit meeting in Equatorial Guinea, the African Union formalised its decision to expand the jurisdiction of the African Court of Justice and Human Rights to include international crimes, such as genocide, crimes against humanity, and war crimes. On a continent where populations have suffered extensively from such crimes, the AU’s move might at first seem like an important step toward increasing accountability. But, as the accompanying amendment to grant immunity from prosecution to sitting heads of state and senior officials clearly demonstrates, it is actually a transparent effort to let guilty parties off scot-free.

Since the United Nations Security Council established the International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1993, international criminal justice has come a long way. Indeed, despite intense scrutiny and agonisingly slow trials, several more special tribunals have been established to hold individuals accountable for large-scale crimes committed in countries like Rwanda, Sierra Leone, Cambodia, and Lebanon. Moreover, the ICTY was instrumental in the creation of the International Criminal Court (ICC) in 2002, which has acted on crimes committed in several more countries.

These courts have held hundreds of important trials, almost all them involving the prosecution of guerrilla leaders and high-level officials – including heads of state – who had played a major role in large-scale atrocities. The first head of state tried by an international court was former Yugoslav President Slobodan Milošević, who was accused of overseeing the massacre of thousands of Bosnian Muslims by Bosnian Serbs. Though he died in custody before the trial was completed, his case was a landmark moment in the development of international criminal law.

Since then, international courts have had some major successes. Jean Kambanda, the prime minister of the caretaker government during the 1994 genocide in Rwanda, is now serving a life sentence. Former Liberian President Charles Taylor is serving a 50-year sentence for aiding and abetting crimes committed during Sierra Leone’s civil war from 1996 to 2002.

And work is underway on many more cases. The only surviving leader of the brutal Khmer Rouge regime in Cambodia, Khieu Samphan, is on trial for genocide and crimes against humanity, including torture, enslavement, and murder. A former president of Côte d’Ivoire, Laurent Gbagbo, and the current president of Kenya, Uhuru Kenyatta, are also being prosecuted.

Meanwhile, the ICC has indicted Sudanese President Omar Hassan al-Bashir for atrocities committed in Darfur, though he has not been apprehended. And the African Union itself is helping to bring Chad’s former president, Hissène Habré, to trial in Senegal.

The fact that the charters of all existing international courts and tribunals explicitly deny immunity to anyone is no coincidence; it is vital to their functioning. After all, it is difficult to commit the kind of mass atrocities that would be tried by an international tribunal without the involvement of heads of state and other top officials. And an international court’s credibility and moral standing depends on the fundamental principle that everyone is equal before the law.

Viewed in this light, the AU’s decision seems to have been driven by the desire to establish the African Court as an alternative to the ICC, thereby giving the continent’s leaders – including those who met in Equatorial Guinea – a means of gaining immunity for their crimes. That stance threatens to unravel more than two decades worth of progress.

Equally problematic, the AU’s decision creates an additional incentive for heads of state and other senior officials who have committed atrocities to retain their grip on power. Without periodic democratic transitions, these countries’ citizens have few ways to effect change. The resultant feeling of helplessness could fuel unrest – a dangerous prospect, especially in countries that have already suffered mass atrocities at the hands of their leaders.

Instead of providing new reasons for African leaders to hold onto power, the AU should be encouraging them to step down upon the completion of their terms. Only then can it legitimately claim to be pursuing a “united and strong Africa.”

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Aryeh Neier, President Emeritus of the Open Society Foundations and a founder of Human Rights Watch, is the author of The International Human Rights Movement: A History.