Viva Joyce Banda

So, there is a sea change happening in Africa right now. It doesn't really have to do with my work (not really), or even South Africa -- but my NGO is very interested in the events, and it's exciting, so I thought I'd write about it. Maybe it's only exciting to me, but I still want to put it down for posterity.

First, a little background. Many of you will know this, but for those of you who don't: in 2002, the Rome Statute established the International Criminal Court, which has jurisdiction to try individuals for genocide, war crimes, and crimes against humanity. However, because big important countries (read: the United States) didn't want their politicians to be hauled in front of an international court, the ICC doesn't have universal jurisdiction -- it can't try anyone. It only has jurisdiction over crimes committed either a) on the territory of a country that has signed and ratified the Rome Statute, or b) by a national of a country that has signed and ratified the Rome Statute. It can also act if a situation is referred to it by the United Nations Security Council, because the Security Council is all-powerful.

All of the ICC's investigations and arrests have taken place in Africa (Democratic Republic of Congo, Uganda, Central African Republic, Sudan/Darfur, Kenya, Libya, and the Ivory Coast). There is a huge amount of resentment among African leaders about this fact -- a lot of Africans feel like the ICC is just another tool of neo-colonialism that the West is using to selectively enforce human rights against African leaders while ignoring atrocities in Afghanistan and Iraq, etc. There is likely some merit in that argument, but there's also no denying that bad, bad stuff has gone on in the places the ICC has chosen to get involved.

Anyway, Sudan is not a party to the Rome Statute. (Incidentally, for those of you playing along at home, neither is the United States.) However, the Security Council referred the situation in Darfur to the ICC, and in March of 2009, the Prosecutor of the ICC issued an arrest warrant for Omar al-Bashir, the president of Sudan. He's charged with individual criminal responsibility for genocide and crimes against humanity in Darfur. However, one of the fatal weaknesses of the ICC is that it doesn't have its own police force; it relies on the police of the states to execute its arrests. Bashir's police force is not going to arrest their own president -- especially when Sudan isn't even a party to the Rome Statute, and Bashir immediately brushed off the legitimacy of the ICC's power to issue a warrant for his arrest.

However, most African countries are parties to the Rome Statute. This means that, if Bashir sets foot in their territory, they are legally obligated to arrest him and deliver him to the ICC. Well, no one has done it. Bashir has continued to jet-set around the world with impunity, especially within Africa. All the other African 'big men' (long-term leaders/dictators) have closed rank around him, defending him against the ICC and refusing to fulfill their obligations under international law.

Enter Joyce Banda. About six weeks ago, the increasingly tyrannical president of Malawi died of a heart attack. Despite his party's best efforts, his vice president, Joyce Banda, replaced him -- as the Malawi Constitution said she should. Since she took office, she has implemented a whirlwind of reforms aimed at bringing donor money back into Malawi and has generally been doing awesome things. She sold off the presidential jet and the fleet of cars the Parliamentarians were using, claiming it was a waste of money Malawi couldn't afford. She has promised to overturn Malawi's ban on homosexuality and appears to have the support in Parliament to do it. She is generally kicking ass and taking names.

But perhaps most importantly, Malawi was set to host the African Union summit next month -- where all the heads of state in Africa get together and accomplish pretty much nothing. Joyce Banda announced that if Bashir attended the AU summit, Malawi would arrest him and deliver him to the ICC. Zambia had previously made a similar announcement, and South Africa has reluctantly promised to do the same -- but Malawi came out with guns blazing. The AU told Malawi that they did not have the right to bar Bashir from attending the AU summit, since he is the head of an African state, and they demanded that Malawi let him attend. Malawi refused to back down, at which point the AU threatened that if they didn't allow Bashir to attend, the AU would hold its summit somewhere else. Malawi told them that they could have their summit elsewhere: it would not choose between fulfilling its international legal obligations to the ICC and to the AU. The summit will be held in Addis Ababa instead.

Now, this has set off a complete firestorm of commentary and controversy. News stories are saying things like 'Why did big South Africa remain silent while little Malawi fought a losing, but very significant, battle for criminal justice on the continent last week?'The Government of Botswana today put out a press release condemning the pressure from the AU on Malawi as 'inconsistent with the very fundamental principles of democracy, human rights and good governance espoused by the AU, and which Malawi upholds.'

It's just sort of an incredible moment. It's very likely that Banda stuck to her guns because Western donors would have frowned and closed their wallets if she had hosted Bashir (she said as much recently), but it almost doesn't matter -- she's started a conversation and drawn attention to the fact that a genocidal dictator is waltzing around the continent, free because African big men are afraid they'll be next. I wish Malawi had said, 'Sure, let Bashir come!' and then slapped handcuffs on him when he landed at the airport in Lilongwe (although then they would have been in violation of their AU obligations -- ugh, lawyers!).

In any case, Bashir probably isn't going to The Hague any time soon. But this is still a significant, fascinating moment in African international criminal justice. Viva Joyce Banda, viva!