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A silver lining around the dark cloud that is the war in Syria
3 June 2014

When it comes to genocide and crimes against humanity, Rwandans know what they are talking about. ‘Our grandchildren will one day ask us what we did to stop the Syrian tragedy. We are here as fathers, mothers, human beings and representatives of the community of nations, who should listen to the voices of the more than 160 000 people slain over the past three years in Syria,’ Eugène-Richard Gasana, Rwanda’s Ambassador to the United Nations (UN), told the UN Security Council (UNSC) on 22 May as it considered a resolution to refer the Syrian case to the International Criminal Court (ICC).

‘Children are being gassed, women sexually abused and men tortured. Barrel bombs have been used against hospitals and schools. The communities devastated by the terrorist attacks in Syria are living in endless horror,’ Gasana added.

Despite noting their support for ‘the debate in the UN about the ICC,’ Rwanda, Nigeria and Chad – the African non-permanent members of the UNSC – voted in favour of the proposed resolution, which was then vetoed by China and Russia. Over 60 other UN members supported the proposal for the ICC to investigate the atrocities committed in the extended conflict. Some of these states, like Rwanda and the United States, are not signatories of the Rome Statute of the ICC.

The African vote for the resolution comes within a context of ongoing acrimony between the African Union (AU) and the ICC. Rwanda’s opposition to the ICC in other instances is well known. It was, for example, one of the main supporters of a request to the UNSC, in November last year, for the case against Kenyan President Uhuru Kenyatta and his deputy, William Ruto, to be deferred.

For countries like Rwanda, Chad and Nigeria to support this development is a good sign

Kenyatta and Ruto are accused of war crimes for their role in the 2007/2008 post-election violence in Kenya. Rwanda’s bid, supported by the two other non-permanent African members of the UNSC, namely Togo and Morocco, had failed – but Kenyatta’s trial was nevertheless postponed to a later date.

Given the latest development on Syria, the question therefore arises whether support for the resolution indicates that African states are not in principle opposed to the ICC.

‘I think it is a cause for celebration. If one considers the challenges the ICC has faced in recent years, it is not necessarily expected that certain countries would support a resolution for referral to the ICC. For African countries like Rwanda, Chad and Nigeria to support such a development is a good sign,’ says Jemima Njeri, a senior researcher at the Institute for Security Studies’ Transnational Threats and International Crimes Division. ‘It shows that African states are not supporting impunity, and are also keen to see the ICC taking cognisance of crimes being committed elsewhere in the bid for global peace and security.’

In blocking the French proposal for a referral, Russia said it suspects the West of wanting to use the resolution as an excuse for military intervention. ‘What justice can one talk about when the overriding policy aims at escalating the conflict? The draft resolution rejected today reveals an attempt to use the ICC to further inflame the political passions and lay the groundwork for eventual outside military intervention,’ said Ambassador Vitaly Churkin, the Russian permanent representative at the UN.

This was largely seen as a reaction to the controversy surrounding Resolution 1973…

Russia points to Resolution 1970, which referred the Libya case to the ICC back in 2011, saying this ‘did not help to resolve the crisis, but instead added fuel to the flames of conflict.’ Or did it? Long after NATO’s war in Libya – controversial as it was – the slow wheels of justice are indeed turning. The ICC warrant prompted the arrest of several key individuals in the regime of former strongman Muammar Gaddafi, including his son, Saif al-Islam Gaddafi. Would any of this have happened without the ICC warrant of arrest? The ICC and local courts are nevertheless still at loggerheads over where Al-Islam should be tried; in The Hague, or at home.

It is important to recall that the resolution about the ICC and Libya was supported by non-permanent members South Africa, Nigeria and Gabon. It was only after this resolution that the controversy broke out over the infamous Resolution 1973, authorising a no-fly zone over Libya. South Africa, and many other African countries, alleged that this resolution was in fact intended to effect a regime change in Libya – in short, to get rid of Muammar Gaddafi.

Resolution 1973 had a direct effect on how some African states, including South Africa, voted in subsequent UN resolutions. In October 2011 and in July 2012, South Africa was strongly criticised for abstaining on votes condemning the regime of Bashar al-Assad, again vetoed by Russia and China. This was seen largely as a reaction to the controversy surrounding Resolution 1973.

Ultimately, one would be justified in wondering whether the fuss over the ICC is not, in fact, just about the big guns not wanting to stand trial. After all, the argument between the ICC and the AU started with the indictment of Sudanese strongman, Omar al-Bashir, for war crimes in Darfur. This was incidentally also thanks to a UN referral – since Sudan is not a signatory to the Rome Statute. The AU and many countries have continued to invite Al-Bashir to meetings and summits, but the arrest warrant is a sword that continues to hang over his head wherever he goes.

In a positive development for the ICC, on 23 May, the Trial Chamber II of the ICC sentenced former Democratic Republic of the Congo (DRC) warlord, Germain Katanga, to 12 years in prison for war crimes and crimes against humanity. Half of it has already been served since his arrest in 2007.

Katanga is only the second person to be sentenced by the court since its inception, but Njeri says this shouldn’t be held against the ICC since these processes are lengthy. African leaders have not expressed any reservation about trying rebels such as the notorious Ituri warlords, who are responsible for some of the most brutal crimes. Besides, these cases have been referred to the ICC by the DRC government itself.

One of the AU’s solutions to its row with the ICC is to strengthen its own courts, which is to be welcomed. Efforts, for example, to expand the authority of the African Court on Justice and Human Rights to include genocide, war crimes and crimes against humanity is an important opportunity towards ending impunity on the continent. However, there have been attempts to ensure that this court provides immunity from prosecution for heads of state and senior government officials. Human rights organisations and civil society groups believe that such an immunity clause would be a major setback for justice on the continent.

Liesl Louw-Vaudran, ISS Consultant

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