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West-African jihadists and the International Criminal Court

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 Last January, the Prosecutor of The Hague-based International Criminal Court, opened an investigation into alleged crimes committed in Northern Mali by the jihadists. It is also planning to prosecute Nigerian Boko Haram activists and also to start investigating out of Africa. But it will not be easy.

On the 16 January 2013, Prosecutor Fatou Bensouda opened an investigation into alleged crimes committed in Northern Mali., after she was informed that Malian forces were involved in abuses in recent days, in central Mali.. She also reminded that her Office had also jurisdiction over all serious crimes committed within the territory of Mali, from January 2012 onwards. According to the ICC’s spokesman Fadi el Abdallah, the list of crimes included summary icc2executions of Malian soldiers by the jihadists, rapes, massacre of civilians and the recruitment of child soldiers, acts of tortures, looting, disappearances and the destruction of symbols of the Malian state (hospitals, court and scholl buildings) and also attacks agains churches, mosques and mausoleums in the Timbuktu, Gao and Kidal areas.

Beside this, the Court has started a preliminary examination of the crimes perpetrated since 2004 in Nigeria by the islamist sect Boko Haram which over 1,000 murders between mid-2009 and mid-2012. In July 2012, during a visit to President Goodluck Jonathan in Abuja, he prosecutor urged the Nigerian justice to open an investigation over crimes, which can be characterized as terrorist attacks but also as crimes against humanity. Now, the ICC’s decision to intervene or not will depend from the attitude of Nigeria; If the courts deal with the case, the Court will not interfere. The examination concerns in fact the will and the capacity of the Nigerian judiciary to judge the alleged criminals. Guinea-Conakry finds itself in a similar situation. During a visit to Conakry, on the last 4 April, Fatou Bensouda warned that if the local justice does not initiate prosecutions against the military officers who ordered the massacre of 150 people onicc4 the 28 September in a stadium of the Guinean capital, during the rule of Captain Moussa Dadis Camara, and other officers involved in a coup d’État, the ICC would handle the case.

Besides, the ICC which has been accused not have carried out investigations outside of Africa, since 2002, manely in Uganda, Congo-Kinshasa, Darfur, the Central African Republic, Libya and Côte d’Ivoire, is trying to diversify the geographical scope of its activities. The Prosecutor’s Office is indeed currently examining as well the situation in Afghanistan, Honduras, Georgia, North Korea and Colombia.
 
The recent recognition of the Palestinian Authority as a non member observer state by the UN General Assembly has now opened the perspective for Palestine to join the club of the 121 ICC member states. The legal obstacle is now removed. But the Gambian Prosecutor will have to show some courage if it takes the decision to admit Palestine. Indeed, one of the main financial contributors to the ICC budget, is Germany, who is close from Israel. The issue is sensitive since during the last Assembly of the State parties, Germany defended the option of a “zero growth” budget in real terms. And inevitably, Palestine has a lot of causes to bring to the Prosecutor’s attention.

The ICC can hardly change the impression that it is only judging Africans, owing to the agenda of this year. Indeed, the Court is expected to confirm the charges against the former Ivorian President Laurent Gbagbo who was declared fit enough to attend the hearings of his trial last November. The Prosecutor who is investigating as well he crimes committed by the military who sided with President Alassane Ouattara. In addition, the pre-trial chamber of the ICC unsealed on 22 November 2012, a warrant of arrest against Gbagbo’s wife, Simone Gbagbo for four charges of crimes against humanity allegedly committed in Côte d’Ivoire between 16 December 2010 and 12 April 2011. One of the many charges is that she has been accused of masterminding the operations of death squads since 2002

The next important events on the Court’s agenda is the opening on the next 10 April of the trial against William Samoei Ruto and Joshua Arap Sang who are icc5both accused of having committed crimes against huminatary in Kenya,  including murders, deportation of people and persecutions. On the following day, will start the trial on similar charges against Francis Kirimi Muthaura and Uhuru Muigai Kenyatta. Finally, on the 4 March, the hearings of presentation of evidence by the defence of the former Congolese Vice-President and leader of the Movement of Liberation of Congo (MLC), Jean-Pierre Bemba Gombo, will resume. Bemba has been accused of being the commander of troops who perpetrated crimes against humanity and war crimes in the Central African Republic in early 2003. According to the ICC spokesman, the verdict of Bemba’s trial is expected sometime by July 2013.

 The challenge is also legal and political for the ICC and for the international justice at large. Indeed, Bemba and other warlords may take advantage from a recent decision that caused considerable outrage in the Balkans and may have an impact at jurisprudence level on other cases of a similar nature. Indeed on the last 12 November, the Croatian retired general Ante Gotovina was curiously found not guilty of all charges brought against him by the International Criminal Tribunal for the former Yugoslavia. Those included aiding and abetting the murder of 324 Serbs civilians and prisoners of war. To many human rights activists, such verdict is a disaster since it sets a precedent for lawyers who plead that a commander is not responsible for crimes committed by his soldiers if he has not actually being perpetrating them himself.

François Misser

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