International Courts and the New Paternalism. By Jendayi Frazer
African leaders are the targets because ambitious jurists consider them to be ‘low-hanging fruit.’
WSJ, July 24, 2015 6:47 p.m. ET
President Obama arrived in Kenya
on Friday and will travel from here to Ethiopia, two crucial U.S. allies
in East Africa. The region is not only emerging as an economic
powerhouse, it is also an important front in the battle with al Qaeda,
al-Shabaab, Islamic State and other Islamist radicals.
grievances related to how the International Criminal Court’s universal
jurisdiction is applied in Africa are interfering with U.S. and European
relations on the continent. In Africa there are accusations of
neocolonialism and even racism in ICC proceedings, and a growing
consensus that Africans are being unjustly indicted by the court.
wasn’t supposed to be this way. After the failure to prevent mass
atrocities in Europe and Africa in the 1990s, a strong consensus emerged
that combating impunity had to be an international priority. Ad hoc
United Nations tribunals were convened to judge the masterminds of
genocide and crimes against humanity in Yugoslavia, Rwanda and Sierra
Leone. These courts were painfully slow and expensive. But their
mandates were clear and limited, and they helped countries to turn the
page and focus on rebuilding.
Soon universal jurisdiction was
seen not only as a means to justice, but also a tool for preventing
atrocities in the first place. Several countries in Western Europe
including Spain, the United Kingdom, Belgium and France empowered their
national courts with universal jurisdiction. In 2002 the International
Criminal Court came into force.
Africa and Europe were early
adherents and today constitute the bulk of ICC membership. But India,
China, Russia and most of the Middle East—representing well over half
the world’s population—stayed out. So did the United States. Leaders in
both parties worried that an unaccountable supranational court would
become a venue for politicized show trials. The track record of the ICC
and European courts acting under universal jurisdiction has amply borne
out these concerns.
Only when U.S. Defense Secretary Donald Rumsfeld threatened to move NATO headquarters out of Brussels in 2003 did Belgium rein in efforts to indict former President George H.W. Bush, and Gens. Colin Powell and Tommy Franks,
for alleged “war crimes” during the 1990-91 Gulf War. Spanish courts
have indicted American military personnel in Iraq and investigated the
U.S. detention facility in Guantanamo Bay.
But with powerful
states able to shield themselves and their clients, Africa has borne the
brunt of indictments. Far from pursuing justice for victims, these
courts have become a venue for public-relations exercises by activist
groups. Within African countries, they have been manipulated by one
political faction to sideline another, often featuring in electoral
The ICC’s recent indictments of top Kenyan officials are a prime example. In October 2014, Kenyan President Uhuru Kenyatta
became the first sitting head of state to appear before the ICC, though
he took the extraordinary step of temporarily transferring power to his
deputy to avoid the precedent. ICC prosecutors indicted Mr. Kenyatta in
connection with Kenya’s post-election ethnic violence of 2007-08, in
which some 1,200 people were killed.
Last December the ICC
withdrew all charges against Mr. Kenyatta, saying the evidence had “not
improved to such an extent that Mr Kenyatta’s alleged criminal
responsibility can be proven beyond reasonable doubt.” As U.S. assistant
secretary of state for African affairs from 2005-09, and the point
person during Kenya’s 2007-08 post-election violence, I knew the ICC
indictments were purely political. The court’s decision to continue its
case against Kenya’s deputy president, William Ruto, reflects a degree of indifference and even hostility to Kenya’s efforts to heal its political divisions.
The ICC’s indictments in Kenya began with former chief prosecutor Luis Moreno-Ocampo’s
determination to prove the court’s relevance in Africa by going after
what he reportedly called “low-hanging fruit.” In other words, African
political and military leaders unable to resist ICC jurisdiction.
recently, the arrest of Rwandan chief of intelligence Lt. Gen. Emmanuel
Karenzi Karake in London last month drew a unanimous reproach from the
African Union’s Peace and Security Council. The warrant dates to a 2008
Spanish indictment for alleged reprisal killings following the 1994
Rwandan genocide. At the time of the indictment, Mr. Karenzi Karake was
deputy commander of the joint U.N.-African Union peacekeeping operation
in Darfur. The Rwandan troops under his command were the backbone of
the Unamid force, and his performance in Darfur was by all accounts
Moreover, a U.S. government interagency review
conducted in 2007-08, when I led the State Department’s Bureau of
African Affairs, found that the Spanish allegations against Mr. Karenzi
Karake were false and unsubstantiated. The U.S. fully backed his
reappointment in 2008 as deputy commander of Unamid forces. It would be a
travesty of justice if the U.K. were to extradite Mr. Karake to Spain
to stand trial.
Sadly, the early hope of “universal jurisdiction”
ending impunity for perpetrators of genocide and crimes against
humanity has given way to cynicism, both in Africa and the West. In
Africa it is believed that, in the rush to demonstrate their power,
these courts and their defenders have been too willing to brush aside
considerations of due process that they defend at home.
West, the cynicism is perhaps even more damaging because it calls into
question the moral capabilities of Africans and their leaders, and
revives the language of paternalism and barbarism of earlier
Ms. Frazer, a former U.S. ambassador to South
Africa (2004-05) and assistant secretary of state for African affairs
(2005-09), is an adjunct senior fellow for Africa studies at the Council
on Foreign Relations.