File this one under “why victims need the International Criminal Court.”
Much has been written of the “African response” to the ICC’s arrest warrant for Sudanese President Bashir, but some reporters and commentators have mistakenly conflated the African Union’s response with the broader and more diverse cross-section of opinion on the continent, and frequently discount African voices who support the Court’s actions.
Digging a bit deeper, it becomes clear that the AU’s reaction to the ICC’s move against Bashir seems less a response to the specific situation in Darfur and more an indication of the AU’s general feelings on accountability for war crimes and crimes against humanity. As discussed in this report from Chatham House and a quick IRIN article, the newly created African Court of Justice and Human Rights, the legal arm of the AU, is not exactly catered to the demands of victims:
…the court will rule only on cases brought against states, unlike the International Criminal Court, which issues individual arrest warrants. Unless a state waives the requirement, alleged victims and NGOs cannot lodge cases against it in the new court without going through the AU, which makes human rights compliance dependent on the regional body…
The AU includes a fair number of leaders with a lot of blood on their hands, so it’s no surprise that they would seek to shield themselves from individual prosecution. But for the victims of war crimes and crimes against humanity, the institutionalization within the AU of impunity for the likes of Bashir, Mugabe, Deby, Meles, Issayas, Kagame, and Gaddafi is deeply troubling.
Understanding the AU’s position through this lens, I would posit that the “African response” to the ICC is less monolithic and negative than some would like us to believe. In reality, the AU’s rejection of the charges against Bashir are no more an “African response” than that of the Darfur Consortium, a group of African civil society organizations that supports the ICC’s actions in Sudan. And for the victims of crimes against humanity directed by the state, as is the case in Darfur, the ICC might be their only recourse for real justice.