Justiça Penal Internacional II

Artigo da Revista "The Economist", de 9 de Maio de 2011:

 

THE International Criminal Court in The Hague is about to open a formal investigation into post-election violence in Côte d’Ivoire at the request of the country’s new president, Alassane Ouattara.

This could lead to the indictment of Laurent Gbagbo, his despotic predecessor, whose refusal to cede power after losing an election led to hundreds of deaths. In Libya Colonel Muammar Qaddafi, Africa’s longest-serving leader, is wondering whether he may face the same fate, after the ICC’s chief prosecutor announced that he was seeking three arrest warrants (with names so far undisclosed) for those deemed most responsible for the killing of hundreds of unarmed people since pro-democracy protests began in February. Egypt’s post-revolution regime says it wants to sign up to the ICC, the world’s first permanent war-crimes court, perhaps in the hope of seeing its own fallen despot, Hosni Mubarak, brought to justice. The new Tunisia is also eager to join the court. In The Hague a verdict is expected within months at the trial of Charles Taylor, Liberia’s former president, before a special court dealing with Sierra Leone. In Sudan President Omar al-Bashir is still wary of falling into the ICC’s net, three years after being charged with genocide in his country’s western province of Darfur.

African despots, past and present, several of whom have happily cocked a snook at the court, may be viewing it more nervously. Their countries’ refusal to sign up to the ICC, set up in 2002, does not put them beyond its reach. The court’s statutes let it prosecute people for suspected genocide, crimes against humanity and war crimes committed in any member state when that state is “unwilling or unable” to do so. Hitherto, this has usually been done at the request of the state itself, as in Uganda, the Central African Republic (CAR) and Congo. But it can also investigate atrocities in non-member states at the request of the UN Security Council, if deemed to threaten regional or international peace and security. This is what happened with Darfur, where the Security Council first drew the court’s attention to the atrocities. Now the council has also referred Libya to the court.

This has been a tricky route. Three of the Security Council’s five permanent members—America, Russia and China—did not sign up to the ICC. A threatened veto by just one of them is enough to block a mooted referral. But with Darfur, international alarm over the spreading rape and bloodshed persuaded America and China to abstain rather than oppose Sudan’s referral in 2005. Since then the UN Security Council has sent only one other such case to the court. But the court’s boosters have taken heart from the unanimous vote against Libya in February, arguing that it may mark a milestone in the nine-year-old outfit’s struggle for worldwide acceptance.

America’s change of heart has helped. Once a fierce critic of the court, it has, in the words of an American official, “reset its default…from hostility to positive engagement” under Barack Obama. But future backing for ICC referrals from Russia and China is far less likely. Most of the Arab world refuses to accept a court that much of the poor world still sees as a Western-dominated tribunal, intent on holding the have-nots to account while giving impunity to the rich and powerful. Jordan is the ICC’s only Arab member.

These days the ICC’s biggest opponents are in Africa, which provides the court with its biggest group of members (31 out of 114) and is the scene of all the cases currently being investigated or prosecuted: in the CAR, Congo, Côte d’Ivoire, Kenya, Libya, Sudan and Uganda. Accusing the court of unfairly targeting African countries, the 53-member African Union (AU) is again calling for “African solutions to African problems”. It particularly dislikes the court’s increasing willingness to go after sitting presidents. At its summit next month it plans to extend the authority of its African Court of Justice and Human Rights to cover criminal as well as civil cases. International lawyers such as Richard Dicker of Human Rights Watch, a New York-based lobby, see this as an attempt to circumvent the ICC.

It may not work. The reason so many African cases are before the court is not because of bias; all the ICC’s cases have been referred to it either by the UN Security Council or by the countries themselves. It is because the standards of justice in Africa are often poor. Courts in many parts of the continent are packed with pliant judges keen to do their masters’ bidding. Moreover, attempts to create a regional system of African justice have so far failed. The African Court, under the AU’s aegis, has never issued a ruling of note. The AU’s pledge to ensure that Hissène Habré, held responsible for thousands of deaths as Chad’s president in the 1980s, is brought to justice has not been fulfilled. The Southern African Development Community’s tribunal, set up in 2005, has been virtually suspended since Zimbabwe refused to accept its ban on the expropriation of white farms and the 15-country regional club proved reluctant to enforce its rulings.

The ICC was set up as a court of last resort. It may not take on cases if the country concerned has a competent, independent justice system ready to prosecute alleged perpetrators and give them a fair trial. Its statutes say nothing about having to defer to regional courts. Many autocratic African leaders appear ready to protect their erring colleagues from the law in case they may one day need the favour returned. The AU has been trying for three years to get the Security Council to suspend the ICC’s proceedings against Mr Bashir. Kenya, which as an ICC signatory is obliged to help arrest all court indictees, welcomed Sudan’s leader to Nairobi, its capital, last year. Mr Bashir merrily visited Djibouti, an ICC member, earlier this month.

The ICC’s big weakness, apart from its astronomical cost and drawn-out procedures, is its dependence on others to help arrest suspects. But even this may be changing. South Africa and Botswana have said Mr Bashir is not welcome. Congo has handed over three of its suspects to the court and France a fourth, while Belgium has handed over Jean-Pierre Bemba, a former Congolese vice-president, for alleged atrocities in the CAR. America is actively supporting the hunt for four rebel leaders of Uganda’s Lord’s Resistance Army, which continues to wreak havoc in the region. Some suspects, including three Darfuri rebel leaders and six Kenyans, have appeared voluntarily before the court. Five others are in custody, including four on trial. So the court, though still widely regarded in Africa with suspicion and sometimes even derision, may yet prove to have teeth.