The African continent and its people have experienced a great number of coups and counter-coups in the last 40 or so years. During this time, state and non-state leaders have abused their power and used violence with impunity to commit the most serious crimes against their own people.

Fortunately for the majority of the leaders, there was no established universal and permanent criminal legal regime to hold individuals accountable for crimes perpetrated against civilian populations.

However, this changed with the establishment of the International Criminal Court in 2002. The Rome Statute, the Court’s founding treaty, specifically calls for the non- recognition of immunities provided to a sitting head of state or government suspected of being criminally responsible or actively participating in the commission of any of the crimes within the Court’s jurisdiction. The Court has followed the true letter of the Rome Statute by indicting Sudanese President Omar Al-Bashir for his alleged involvement in the crimes perpetrated against the people of Darfur. The arrest warrant for Bashir poses a number of obstacles. First, all African States Parties to the Rome Statute have an obligation to arrest and hand over President Bashir to the ICC; however, executing the arrest will be difficult as many African states do not have the political will let alone the legal mechanisms within their jurisprudence to deal with the possible handover of the suspect. Moreover, arresting President Bashir has internal implications for states in that it may lead to an inquiry of their own leaders.

Secondly, the Rome Statute provision on complementarity to national jurisdictions gives the likes of President Al-Bashir and the majority of AU leaders the opportunity to make a case for establishing national accountability processes and in so doing reaffirm the principle of state sovereignty. The case for national accountability mechanisms may not be in the interest of the ICC with respect to particular individuals who have been indicted; however the underlying reforms and achievements at the state level should not be underestimated given that they can involve important amending of penal provisions or enacting of a legal regime to provide for international standards, the establishment of criminal tribunals, etc.

Thirdly, the indigenous peoples of Darfur, the victims of atrocious crimes, and civil society in the region have the opportunity for the first time to see persons responsible for their suffering and the perpetration of crime be subjected to an international impartial accountability mechanism aimed at ensuring justice for the many victims. The international community’s experiences with Charles Taylor, Slobodan Milosevic and Radovan Karadzic inspire hope. Of all the criticism coming from the African Union and other misguided African leaders and pundits, what is most unsettling is the false notion that the ICC arrest warrant is a recipe for the collapse of the peace negotiations and the possible inflammation of violence in Darfur and southern Sudan. And yet,, when the violence is being perpetrated against the Darfuris, these same critics are noticeably silent on the need to hold the perpetrators of the crimes in Darfur accountable. An arrest warrant of such magnitude is likely to trigger some unwanted offensive actions on the part of the Sudanese government (including the targeting of civil society activists) but the spirit to fight on for the rights of individuals will not be undermined. Too many lives are on the line.

The author is a lawyer and Coordinator of the Uganda Coalition for the International Criminal Court.

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The Lubanga trial might have a dampening effect on the rampant impunity we see here in the Congo. I am elated to see that “enemies of the human race” are finally being held accountable for their actions before international judicial institutions.

For far too long, far too many of my compatriots in the DR Congo have behaved like entitled kings without any fear of consequence and this fact is most unjust. And although the ICC aims for those deemed most responsible, we are only chipping away at the problem of impunity.

The international community should help Congolese civil society in its quest to pass the national law implementing the Rome Statute without delay. This law can address perpetrators of crimes falling outside the ICC’s jurisdictional boundaries.

I have always held close the memory of those viciously killed before the Rome Statute’s entry into force. It is in their name and the name of their beloved families that we in the Congo seek justice. My most profound hope is that I plead for help—and pressure—for our country so that we can try those criminals beyond the ICC’s jurisdiction, especially high-ranking government officials.

Delly MAWAZO SESETE is the Executive Director of the Research Center on Environment, Democracy, and Human Rights (Centre de recherche sur l’Environnement, la Démocratie et les Droits de l’Homme/CREDDHO) which advocates for peaceful co-existence, good governance, and human rights in the Democratic Republic of the Congo.

Translation from the French is informal and provided by the CICC Secretariat

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Co-authored by Sylvestre Saïdi with contributions from the Canadian human rights organization, JDH. Excerpts from 7 May 2009 article published in Congolese newspaper ‘Le Phare’, http://www.lepharerdc.com/www/index_view.php?storyID=8628&rubriqueID=13

[Informal translation]

“…In Bunia, the local population generally feels that the Court is not communicating enough despite the fact that a section of the Trust Fund for Victims is represented here. « The Hague-based ICC only reaches a few persons within a limited perimeter and its message is not relayed on the ground. Our partnership with the Court is more verbal than practical, and yet without NGOs, the ICC cannot properly fulfill its mission, as it was created for the victims», accuses Angbandia [Gilbert Angbandia, focal point for the national Coalition for the ICC]. In his statement, he alludes to the importance of “intermediaries,” a term that often applies to NGOs because they serve as an interface between the victims and the Court itself. “The Court does not adequately consider our contribution to the fight against impunity which in the end aims to facilitate its work,” Angbandia continues. In addition, he says, the Court is responsible for a chronic “deficit of information” in Bunia about Court proceedings. Some local journalists who analyze the communications strategy of the Court’s field office in DRC echo this perspective: “We are given prerecorded communications tools that do not help raise awareness about the ICC among the broader public,” says Richard Pituwa, director of the local radio station known as “Canal revelation,” which boasts one of the largest audiences in Bunia. “There should be a way to first ask local opinions about the type of message to be sent and then create an outreach tool that reflects this feedback from the ground,” he says. “What we experience here is the exact opposite of this. Furthermore, the messages we often receive are in French. However, there have been some improvements over the past two years”, says this young reporter, who works for a media outlet known for its support for justice. «We have hosted representatives of the Court on our show many times and this helps get the message out, but greater effort is required,” explains Bitu, a co-worker at a local radio station. The Kinshasa ICC field office had no comment in response to this feedback…”

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On 2 May 2009, Roland Abeng, a lawyer and representative of the Cameroon Coalition for the ICC, published an article in “The East African,” a Kenyan newspaper. Here are excerpts from the piece entitled “ICC Doing the Job of Failed African Judiciary.”

Following the indictment in March of Sudan’s President Omar al-Bashir by the International Criminal Court, and the fact that the rest of the court’s cases involve crimes committed by Africans, one wonders how “international” the ICC is.

The court has been “taken” over by Africans.

… The ICC became involved in the three other situations - northern Uganda, Democratic Republic of Congo and Central African Republic - on the invitation of the authorities of those countries, who themselves now drag their feet in assisting the court to complete its mission.

Darfur was referred to the court by the UN Security Council.

Should Africans and the African Union have an alternative to the International Criminal Court?

To find the answer, ask yourself whether there are even five African countries with judicial systems that can try grievous crimes fairly and equitably through an effective court structure.

What continental judicial institution currently exists that can effectively try those accused of wrongdoing?

The ICC is a court of last resort. Its treaty provides that the Court will not interfere with the judicial system of any country if the country is able and willing to try equitably those accused of grievous crimes.

…The ICC has not replaced viable national efforts. Rather, it helps attain justice where other options are not possible.

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