Africa, Headlines, Human Rights

Q&A: ‘‘Time to Bring Justice to Victims of Horrific Crimes"

Zahira Kharsany interviews RICHARD DICKER , programme director for international justice, Human Rights Watch

JOHANNESBURG, Apr 8 2009 (IPS) - The Rome Statute, adopted in July 1998, enabled the formation of the International Criminal Court (ICC) in 2002. Since then the ICC has issued 12 arrest warrants, all against Africans.

The focus on Africa has led to criticism that the ICC only targets African and marginalised countries. This criticism has increased in recent months following the indictment of a sitting head of state, Sudan’s Omar al-Bashir.

An arrest warrant was issued in March for the Sudanese president, charging him with crimes against humanity including murder, rape and torture as well as war crimes in the Darfur region in Sudan.

Richard Dicker, programme director for international justice at Human Rights Watch, who advocated for the formation of the ICC in the 1990s, spoke to Zahira Kharsany about the reality behind the court and how the indictment has changed the ICC landscape. Excerpts of the interview follow.

IPS: There has been substantial criticism of the International Criminal Court (ICC) yet you argue that it is important for Africa. Why? Richard Dicker: I think some of the criticism is simply an effort to deflect attention from the enormous crimes committed against innocent people and the effort to bring those most responsible for those crimes to justice. What is important about the International Criminal Court is that it is time to bring justice for the mass slaughter of innocent people, the use of rape as a weapon of war and intimidation, the forced displacement of whole populations on account of their ethnicity or race, the court is trying to do that and serve African victims. The court is in favour of bringing justice to victims of horrific crimes for whom there would be no justice were it not for the international criminal court.

IPS: You were one of those that advocated for the establishment of the ICC even though the International Court of Justice was already in place. RD: It is important to understand that the court of justice is a very different type of court that deals with a very different set of laws and set of issues, for example the ICJ [International Court of Justice] covers boundary disputes, disputes over fishing rights, disputes over seizure of assets by one government over another government. All of these are what you might call civil law between states.

The ICC deals with individual responsibility for the most serious of crimes there are, genocide, crimes against humanity and war crimes. Thus the ICC is not duplicating the important work that the ICJ does and, given the impunity that is associated with these kinds of crimes in the latter part of the 20th century, the need for a permanent court to address these issues when a national authority is unable to do so was outstanding.

IPS: Since its launch in 2002, do you think that the ICC has fulfilled its mandate? RD: I think the ICC has made a lot of progress. It’s really only been six years since it came into being, since the judges were elected, since the prosecutor was elected, since they began to build a staff. In that six-year period the prosecutor has opened investigations in four different countries, the court has issued 12 arrest warrants, the prosecutor is considering opening investigations in other countries including Colombia, Afghanistan, Georgia, Kenya and one or two others.

So I think there has been a great deal of activity, a great deal of energy on the part of this court and for example witnesses have come forward to give testimony feeling confident that they will be protected by this court, victims have come forward to participate, not simply as witnesses but as actual participants in these trails. I think there is a great deal of positive that the court has achieved.

At the same time Human Rights Watch (HRW) sees shortcomings in the court’s work.

IPS: For the first time the ICC has issued a warrant for a sitting head of state. What challenges face the ICC especially since it seems that Omar al-Bashir has the support of neighbouring countries? RD: Lets be clear: the warrant issued for Omar al-Bashir transformed the landscape. I think it has brought a great deal of attention and a great deal of criticism – most of which I believe is unprincipled and driven by self interest motives. Nonetheless it certainly sparked a storm of controversy about the ICC. It reminds me of the controversy that existed in the United States when the Bush administration back in 2003/2004 tried to derail the court from really ever getting up off the ground.

In other words, the court is under assault from some particular Arab states, from some particular African states that are not party to the court treaty, who are functioning as surrogates for Omar al-Bashir and they have generated an enormous amount of distortion and propaganda about what this court is. Ultimately, as serious as this assault is, it will fail.

IPS: Can the same principles that led to Bashir’s indictment be used against powerful governments and people such as former U.S. president George Bush on the issue of torture? RD: I think that is an important question. HRW has worked tirelessly for the last five years to try and press for the creation in the United States of an independent commission to investigate allegations of torture for which George W Bush and others may be responsible.

Our view is that there needs to be efforts made by U.S. authorities to investigate and if, the evidence shows that criminal charges should be filed, we’d like to see that at least there be an opportunity in U.S. courts to pursue that. If not, I think those responsible – and I’m not saying that George W Bush is because I don’t have all the evidence – but there needs to be an investigation and if the investigation shows that there is a basis to charge him, and if courts in the United States don’t do their jobs to press for such a trial then I think we need to look beyond the U.S.

Sadly the U.S. is not a party to the Rome Statute [it is not one the countries that signed on to the establishment of the ICC] so there is not a jurisdictional basis here for the ICC to have authority over a former U.S. president or a U.S. official.

I think what that shows is the real unevenness that exists in the landscape when it comes to international justice. That’s a reality I don’t want to deny or cover-up. The fact is that leaders of those powerful governments are better insulated and protected from the reach of international justice. That is shameful and we have to work to minimise that disparity or that unevenness so that even the officials of the most powerful state such as the U.S. and the Russian federation, if their national courts don’t investigate allegations of mass crimes, then they too will be liable for investigation and prosecution by the ICC.

We are not there; we are not at that point yet. We have a ways to go to get to that point but that is the direction this whole process has to move in, to bring justice and to have legitimacy.

IPS: There is this criticism that the International Criminal Court (ICC) only targets weak and marginalised governments in Africa. Are you concerned that this perception may erode support in Africa? RD: Absolutely I’m concerned. I think that it is a damaging perception. All the more damaging because this court was created really by an alliance and a unity between active, vigorous participation of African states, Latin American states, European states and some states from Asia. And to see that unity fractured by distorted allegations that the court is unfairly targeting African personalities, I think is quite serious, and I believe that the engine that is driving this comes from Khartoum and similarly motivated or oriented governments that fear international justice, that fear accountability and will do anything to stop it. I think it will be stopped, but it is serious and shouldn’t be taken lightly.

The court needs to do more to get out to the communities most affected by the crimes in Africa and explain its mission and mandate more clearly to those communities. I think part of the reason this has had the currency it’s had is because the court is not done enough to explain in itself to these communities where the crimes have been committed.