The International Centre for Transitional Justice (ICTJ) is currently hosing an online debate entitled “Is the International Community Abandoning the Fight Against Impunity?” The debate has seen contributions from prominent personalities in the field of transitional justice ad human rights including: David Tolbert- President of ICTJ; Michael Ignatieff- Professor and Human Rights Scholar; Zeid Ra’ad Al Hussein- UN High Commissioner for Human Rights; Betty Murungi- Former Commissioner in Kenya’s Truth, Justice and Reconciliation Commission (TJRC) and; Aryeh Neier- President Emeritus, Open Society Foundations. David Tolbert begins by making the case for the need to critically reflect on whether the developments in transitional justice over the last 25 years have served to advance the prospects of justice for victims. Micahel Ignatieff articulated some of the recent setbacks experienced by the International Criminal Court (ICC) as an indicator of the international community in retreat in as far as impunity is concerned. Betty Murungi chose the path of the middle-ground, calling attention to the duty of individual states and citizens in ensuring that the fight against impunity succeeds. Aryeh Neier called for a reinvigoration of the international justice movement through another purposeful global convening such as the Rome conference which birthed the Rome Statute. While I identify with the sentiments of all contributors in various respects, I find myself more aligned with Betty Murungi’s middle-ground perspective in considering Africa’s experience with the fight against impunity.

In assessing the level of commitment by the international community in the fight against impunity, we must first dispense with certain misconceptions associated with international justice system and the mechanisms that facilitate it. The biggest misconception that is largely ascribed to the International Criminal Court is that it is a “silver bullet” or panacea to the impunity challenges that countries face and that it’s utility somehow absolves states from assuming their primary responsibility in ensuring that there are complementary mechanisms at the national level with requisite political will to ensure their effectiveness. Since the focus of the ICC and international tribunals are restricted to prosecuting persons bearing the greatest responsibility for mass atrocities, it is not conceivable to expect them to deal comprehensively with the impunity question. The absence of domestic processes that deal with the so called mid-level and low-level perpetrators can only mean that the impunity gap will persist and most likely occasion the re-emergence of violent conflict.

There is a genuine grievance from Africa with regard to the ICC’s apparent fixation on the continent and its double standards as manifested by the court’s hesitance to intervene in conflict situations that suggest criminal culpability on the part of members of the UN Security Council and/or its close allies. There is however a misconception of what the continent’s response to that grievance is. A section of African leaders with vested interests in the outcome of this debate such as Uhuru Kenyatta of Kenya and Omar al-Bashir of Sudan will have you believe that the collective African response is to repudiate the ICC and the Rome Statute or temper it with retrogressive amendments (such as immunity from prosecution for sitting heads of state). Admittedly, African States as individual entities and as a collective within the African Union (AU) have issued contradictory positions that have allowed this misconception to propagate.

The AU through an extra-ordinary session convened in 2013 issued a decision purporting to among other things, prohibit the ICC from proceeding with President Kenyatta’s trial and regulate the interaction between individual African states and the ICC. While this decision on face value carries with it the perceived consensus of the continent, a closer look at the prevailing situation on the ground suggests otherwise. The foreign policy posture of various states since the 2013 decision was issued has suggested that national interest reigns supreme in as far as relations with the ICC are concerned. Despite the AU decision, numerous African states at the 2014 Assembly of State Parties (ASP) to the Rome Statute not only reaffirmed their support for the ICC but also gave Kenya’s diplomatic efforts to introduce immunity clauses to the Rome statute a wide berth. Omar al-Bashir still faces considerable travel restrictions on the continent as he remains unsure of whether various states would be willing to overlook their Rome Statute obligations with regard to his outstanding arrest warrant. It is indeed insightful that in considering its progress report on the implementation of previous ICC related decisions, the AU at the January 2014 summit felt the need to reiterate its call for member states to speak with one voice and to comply with the position of overlooking Omar Al Bashir’s arrest warrant. The fact is there is no consensus.

Finally, in considering international commitment to the fight against impunity, we must move beyond the conventional notion of the international community consisting of just state entities. While the State remains the key actor in international relations which serves as the platform for negotiating the future of international justice, we must take due cognizance of the increased influence of other actors in the context of multi-track diplomacy. Non-governmental organizations and individual activists from different countries and continents have over time managed to enhance their collaborations and sustain global debates on impunity that have considerably influenced state positions on this matter. The Kenyan government for example, was particularly incensed and startled by the ability of civil society to intervene in its 2013 request for a deferral of the ICC cases by the UN Security Council. Furthermore it has long branded civil society’s contact with the organs of the ICC as politicization of the judicial and prosecutorial functions of the court. The rise of civil society in the diplomatic and wider foreign relations sphere has meant that the debate on the future of the fight against impunity is a robust one and not monopolized by States who would willingly overlook justice concerns in the face of other interests.

In summation, while international support for the fight against impunity has suffered some significant setbacks in the face of prioritized national interest (read political leaders’ interests) all is not lost. There is a core constituency of states that continue to display a tacit resoluteness on fighting impunity and; a vibrant global civil society that will continue to challenge those states that waver on their commitments while also supporting victims in search of justice.

You can follow the Impunity Debate here.