NewsWeek: Getting Away With Murder

 

 

Getting Away With Murder

By Pete Guest / January 05 2014 12:55 PM


Some of the biggest war criminals in Africa are dodging justice AP
Photo/Stephen Wandera

It was an open secret that one of the Democratic Republic of Congo's
worst tormentors, Bosco Ntaganda, lived on Avenue des Tulipés until
2012, crossing into Rwanda now and then despite a travel ban. Rich off
the proceeds of the illegal tax revenues he imposed on local mines, he
served as a general in the Congolese army.

For a wanted fugitive, the man nicknamed "the Terminator" lived a
comfortable and unencumbered life.

Six years before, a warrant for his arrest had been issued by the
International Criminal Court (ICC) for his role in recruiting child
soldiers. Goma, the capital of Congo, is still trying to reintegrate
these former combatants: boys now in their teens who were forced to
become killers before they had reached puberty and now struggle to be
seen as victims.

A second warrant for Ntaganda, issued in July 2012, added four more
counts of war crimes and three more of crimes against humanity. But no
one wanted to move on Ntaganda. It was widely acknowledged he was
useful – an important interlocutor in a region that is perpetually
about to slide back into violence.

Ntaganda's apparent impunity was a neon sign that the ICC's reach and
relevance, 12 years on from its creation, were weak and waning, and
that justice for war criminals remains subordinate to global
realpolitik.

Now, a cynical, targeted attack on the ICC by two Kenyan leaders
charged with crimes against humanity has lifted the hood on the flaws
in the global "court of last resort". Through what one experienced
court insider calls "a dirty-tricks campaign," the two killers are
attempting to discredit and dismantle a system that, while far from
perfect, metes out justice to victims of warlords and those
responsible for state-sanctioned abuse.

"There has been a very intensive effort to tarnish and delegitimize
the court," says Richard Dicker, director of Human Rights Watch's
international justice program, who led the group's campaign for the
creation of the ICC in the 1990s.

Ntaganda is now in custody. In March 2013, having left the Congolese
army and returned to militant insurrection, he walked into the U.S.
embassy in Kigali and asked to be extradited to The Hague. It is
unclear what drove him to surrender. One theory is that his Rwandan
allies had been pressured by Washington, which was at the time pushing
Kigali to resolve the ongoing hostilities in the Great Lakes region.

His strategic relevance had disappeared. He was no longer protected,
and he came to the conclusion that surrender to the ICC was a better
option than trying to negotiate the treacherous shifting allegiances
of the Eastern Congo. His confirmation of charges hearing is set for
February next year. His arrest and appearance before the court is one
of the ICC's very few qualified successes.

Most of those on the ICC's wanted list remain at large, although in a
strange footnote to the unfolding tragedy of the Central African
Republic (CAR), the leaders of the country's junta made a bold offer
to the international community: the surrender of one of Africa's most
wanted, Joseph Kony.

Brought back to the attention of the Western media in 2012 by a
charity campaign, Kony still leads the cult-like militant movement
that began in Uganda and terrorized the region, abducting young boys
as child soldiers – and young girls into a life of sexual slavery. As
many as 60,000 Ugandan children are thought to have been conscripted
over the course of two decades.

Survivors of Kony's attacks were found mutilated – the calling card of
the group was severed lips, ears and noses, permanently scarring their
victims. Kony is wanted on 12 counts of crimes against humanity and 21
counts of war crimes. His arrest warrant was issued by the ICC in
2005, but since then he has remained international justice's white
whale, hiding in the bush in the CAR as the country descends into a
hell of sectarian violence, the forced conscription of child soldiers
and the brutal murder of civilians.

Last summer, Melinda Taylor, a lawyer at the ICC, was arrested in
Libya and accused of passing secrets to a foreign power. Taylor had
been assigned to defend Saif al-Islam Qaddafi, son of the former
dictator Muammar, who was detained for crimes against humanity. All
conventional notions of legal privilege were abandoned in a country
that wanted retribution for the crimes of the despotic family who
ruled over them for so long. It is unlikely that Qaddafi will ever
reach The Hague for a fair trial.

The biggest name on the ICC's wanted list is not only at large, but
running a petro-state. Omar al-Bashir, the president of Sudan, was
referred to the court in 2007 for crimes against humanity in Darfur.
Although his international travel has been curtailed, to some degree,
he remains a regular visitor to Addis Ababa and to regional summits in
Africa and the Arab world.

Today, the ICC wanted list is an identity parade of yesterday's
villains, each accused of unimaginable crimes – genocide, recruiting
child soldiers, mass rape. But after more than a decade, the ICC has
secured just one conviction – the Congolese warlord Thomas Lubanga.
The court's critics claim this shows the court to be hopelessly
inefficient, its high ideals of holding the powerful responsible for
crimes against the weak hobbled by the realities of international
politics.

Many African leaders like to paint the court as discriminatory and a
tool of neocolonial oppression. (It has only ever prosecuted
Africans.) There have been regular grumblings that the court selects
its cases according to a political agendas; that it is profligate in
its spending but simultaneously underresourced; that its lawyers and
prosecutors are substandard; that its evidence-gathering is flawed and
its witnesses too easily tampered with.

Rarely, though, has the court been attacked on all of these fronts at
once, and never since its inception has it faced an adversary as
politically connected and diplomatically influential as Kenya's new
president, Uhuru Kenyatta, and his deputy, William Ruto.

Their cases stem from familiar fault lines in Kenya. Powerful Kenyan
political families have often exploited their position to reallocate
or promise land to people of their own ethnicity, and in the
post-colonial democratic system this has translated into loyalty at
the ballot box.

Being caught in the crossfire of these battles between the rich and
powerful is nothing new for Kenyans. There is a popular folk saying in
the country: "Wapiganapo tembo nyasi huumia" – "When elephants fight,
it is the grass that gets trampled."

In Kenya's 2007 elections, Kenyatta backed his kinsman, Mwai Kibaki;
Ruto threw his weight behind the challenger Raila Odinga. Exit polls
showed Odinga in the lead; the electoral commission declared Kibaki
the winner. Rumors spread that the election had been rigged. Kenyans
took to the streets.

What followed were pitched battles between rival factions and
incidents of startling brutality. In Kiambaa, on New Year's Day 2008,
28 Kikuyu died when a church was set on fire. In retaliation, Kalenjin
were pulled from buses and attacked with machetes. When the smoke had
cleared, 1,200 were dead and 250,000 had fled their homes.

Ruto was accused of exhorting his followers to "root out weeds" and
Kenyatta of directing violent attacks against his opponents. No one
ever faced trial. Eventually, a list of names was passed to the ICC,
which opened proceedings against six men, including Ruto and Kenyatta
who agreed to cooperate with The Hague.

This year, Kenyatta and Ruto joined forces to run for election, though
the U.K. and U.S. both warned there could be serious consequences
should they be elected. Kenyatta and Ruto stormed to victory – and the
whole tenor of the court case against them changed.

The ICC has been dismissed as a Mickey Mouse court and there have been
concerted official efforts to either delay the case indefinitely or
force its collapse.

Steven Kay, who defended the Serbian president Slobodan Milosevic at
his war crimes trial, is advising Kenyatta. He claims that a lack of
detailed forensic examination of crime scenes and expert witnesses and
a "total reliance on oral sources" has fatally compromised the
prosecution's case.

Kenyatta's defense team have made a series of abuse of process
arguments, such as false testimony from a key witness, and say the
case should be halted.

At the same time, the Kenyans have aggressively pursued a diplomatic
offensive in Africa and at the U.N. and employed western public
relations firms to present their case.

One result has been the African Union declaring that sitting heads of
government should not face trial while in office. They argued it to be
a practical consideration to allow leaders to get on with running
their countries; their opponents say it encourages the guilty to
remain in power at any cost.

After pressure from the African Union, the U.N. Security Council ended
the requirement that heads of state attend their trials in person.

It seems that world leaders are reluctant to upset African leaders who
sit on substantial untapped mineral resources. Located on a
geopolitical fault lines and one of the world's last untapped oil
reserves, Kenya is too strategically important to alienate.

Africa as a whole is experiencing sustained economic growth, which
Western companies want to access but find themselves struggling to
compete with the huge influx of Chinese money.

"We now have a situation where it now suits the West for [Kenyatta and
Ruto] to be acquitted," says Courtenay Griffiths, a criminal lawyer
who defended the Liberian leader Charles Taylor at his war crimes
trial. "They're trying to put pressure on the court to affect the
outcome. That's not justice as I understand it."

Within months of his election, Kenyatta was in London attending a
conference on Somalia and holding bilateral talks with David Cameron,
the British prime minister.

Other powerful countries have also stepped back.

Some never stepped up. Not wanting to be bound by a legal obligation
to arrest influential political leaders or to hand over their own
leaders for trial, the U.S., China, and Russia backed out of the Rome
Statute treaty that set up the ICC in 1998. All three sit on the
U.N.'s Security Council, which can refer cases to the ICC and has a
power of veto over the court.

Mukesh Kapila witnessed the aftermath of atrocities in the Balkans,
Sierra Leone, and Sudan. As U.N. resident coordinator in Sudan, he was
instrumental in referring the Sudanese president Omar al-Bashir to the
ICC. He is adamant the attacks on the court must be resisted.

"If the purpose of justice is to prevent future atrocities and future
crimes against humanity, then...the International Criminal Court is
one of the blazing successes of the current generation. We are
completely on a different footing from where we were a decade ago," he
says.

For Kenyans, this is all starting to read like the same old story:
that those with power and money can get away without facing justice.

"The victims want the cases to move forward. There has been no justice
on the ground. The root of grievance in Kenya has not been dealt with.
Not land, not inequality on ethnic grounds," said Muthoni Wanyeki,
former executive director of the Kenyan Human Rights Commission. "You
can't put issues of grievance permanently under the carpet. It will
explode."

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