**

This debate aims to gather the ongoing discussions about the limits and possibilities of international justice ahead of the Review Conference of the Rome Statute scheduled for June 2010 . The essays in this collection include views from scholars analyzing the clarity of different provisions of the Rome Statute, practitioners interrogating the contribution of prosecutions to stability and its balance with local reconciliation efforts, and activists advocating for more support for transitional justice measures in general and the International Criminal Court (ICC) in particular.

Professor Larry May, a scholar who has written widely on war crimes, launches the discussion by highlighting fundamental aspects of the Rome Statute that are still in need of clarification. He points out that it remains unclear whether the two elements of war crimes – systematicity and widespreadness – have the same requirement in terms of “state or organizational policy”. Responding to the recent request for further information to demonstrate state policy by the judges of the Pre- Trial Chamber (PTC) in the Kenyan case, May suggests that systematicity may need more evidence of state policy more widespreadness.  He explains:

It might be that the State policy requirement of crimes against humanity that is associated with widespreadness is considerably easier to meet than that for systematicity. If there is police involvement or the involvement of various politicians, this might be sufficient in and of itself to establish the weak State involvement associated with widespread attacks, whereas such involvement by police or politicians would have to be linked to a specific policy of the State to satisfy the more stringent State involvement associated with systematic attacks.  Yet, the Pre-Trial Chamber II Decision seems not to accept the weaker State policy requirement since it appears that evidence supporting this has already been offered by the Prosecutor and acknowledged but rejected as insufficient.

In discussing the issues likely to pre-occupy the PTC judges as they decide how to respond to the Prosecutor’s proprio motu request in Kenya, Lionel Nichols adds a different perspective to this discussion on the state policy requirement for war crimes. In his view, the state policy requirement is linked with the identities of alleged perpetrators. This, he suggests, may be why the judges requested from the Prosecutor a list of alleged perpetrators. He also highlights other issues of concern to PTC judges, including admissibility (whether the truth commission and ongoing discussions about a special tribunal can be seen as constituting complementarity, and whether there is sufficient gravity), and the interests of justice (whether ICC investigations would destabilize the country). Similar to May, he sees the Kenyan case as one that will help illuminate critical sections of the Rome Statute.

Okechukwu Oko’s essay is less concerned with the contribution of ICC cases to the development of international law. Rather, his focus is on the broader contribution of prosecutions – of which the ICC is the most visible form – to what he calls “social equilibrium”. His essay expresses concern about the limits of prosecutions: if root causes of human rights violations include ethnic distrust and economic marginalization of communities, prosecutions do not address these issues. Violence in Africa is “considerably different,” he argues. Violence does not result from “deviant behavior of citizens but from…ethnic distrust…The traditional criminal process fails to address the broad range of ways in which situational cultural pressures exacerbate violence.” He concludes that, with this core difference between Africa and elsewhere, “concerns for accountability offer no license for the international community to arrogate to itself the right to determine what is best for Africa.”

Comfort Ero disagrees with this “African exceptionalism” that Oko outlines. In a critical analysis of the responses of African leaders to calls for accountability, she criticizes their view that Africa has its “own brand of justice that espouses reconciliation over sanctions or punishment.” This is inaccurate, she argues. “It is … discriminatory to claim that African victims do not deserve to seek criminal accountability for serious international crimes with standing equal to that of other victims of grave abuse.” Ero further characterizes the relationship between the ICC and African states as “awkward” and one that must be disaggregated rather than presented as monolithic.  The overall tension she sees is between the need to prevent future Rwandas and the fact that such preventive measures seem to originate externally to African states. In this context, the upcoming ICC Review Conference provides an opportunity to address these tensions.

Valentina Torricelli also sees the review conference as an opportunity for Africa to re-engage with the ICC. In her view, suggestions such as giving the African Court of Justice and Human Rights jurisdiction over international crimes would result in a “huge cost to the African Union, distract the African Court from an effective pursuit of its mandate , and duplicate the work of the ICC”. Instead, she urges Africa to rediscover its earlier enthusiasm for the Court and actively support it. She further warns against other efforts to seek alternative avenues to the Rome system:

The Rome Statute is not perfect. It represents a delicate compromise, balancing many unrelated articles and provisions. However, at this early stage in the ICC’s history, any attempt to make substantive changes would be very risky and could destabilize the architecture designed in Rome. We should therefore reject the recent submission by South Africa on behalf of the AU to amend Article 16 of the Rome Statute in order to allow the UN General Assembly to defer cases for one year when the Security Council had failed to take such decision within a specified deadline. Any proposal of this nature sense must be opposed as it would allow the General Assembly to stand in the way of international justice.

Instead, she suggests, African states should embark on constructive engagements such as using the Review Conference as an opportunity to conduct consultations towards a regional mechanism for extradition and mutual legal assistance for international crimes.

Emmanuel Saffa Abdulai echoes Torricelli that African states should support the ICC, in the spirit of the Constitutive Act of the African Union. He sees African leaders as having reneged on their promises to combat impunity, and in the case of Sudan, “leaders refer to ‘negotiations’ merely to buy themselves time…they hope the ICC net will be broken, and they will thwart its wide sweep that might catch them when they suppress their own people and govern outside the dictates of the rule of law.” If the strongest opposition of African leaders to the ICC is a thinly veiled opposition to the role of the Security Council in international justice, he urges these states to focus on the Ezulwini Consensus, which called for a more representative expansion of the Security Council.  This recommendation that African states focus on Security Council reform starts to touch a problem that will hopefully be addressed in future essays: that the anti-ICC mobilization, to the extent there is one, may be a result of a displaced frustration about the unreformed state of institutions of global governance.[1]

Less optimistic about all these international processes is Andrew Iliff, who addresses the tension between  international justice and local justice through the exploration of a grassroots reconciliation program in Zimbabwe. In a context where the prosecution of Mugabe and other senior officials responsible for human rights violations may not be possible, what are actors to do: hold out for the promise of a perfect justice, or engage in processes to encourage co-existence? His view supports the latter: “transitional justice advocates should bracket international crimes until more propitious circumstances prevail”. Through describing the work of community initiative called ‘Tree of Life’, he suggests that transitional justice advocates should reorient their focus away from state-led processes to other localized measures, lest opportunities for healing be missed.

These essays constitute the beginning of a vibrant debate over the coming months. This forum will welcome multi-disciplinary perspectives that seek to draw attention to opportunities and challenges in addressing human rights violations in Africa, including contributions that may  seek to question whether it is useful at all to single out Africa in this discussion of international justice. We invite you to contribute or comment in accordance to the following guidelines:

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The necessity of transitional justice in Kenya and the merits of certain institutional mechanisms in particular have been vigorously debated in this forum, as well as within the country itself.  In both of these contexts, the perspectives of victims of past violence have received only modest attention.[1] Of course, their voices hardly rate as the only ones that matter; politicians, officials, activists and scholars are also vital to transitional justice processes, not to mention non-victims in the general population, whose participation as defendants, witnesses and observers is typically required for such processes to prove constructive.  That being said, whether or not victims are satisfied with the approach taken and experience some degree of restoration and healing as a result represent clear benchmarks to measure the acceptability and efficacy of transitional justice measures.

To help understand how victims of the 2007-08 episode of post-election violence and other past political abuses in Kenya view transitional justice and what they might be willing to contribute to its execution, we conducted a series of focus group discussions around the country in the Summer 2009.  The time was ripe for gauging the opinions of victims, since key actors within and outside the country were considering whether to try suspects of post-election violence locally or at the International Criminal Court, while simultaneously Kenya’s Truth, Justice, and Reconciliation Commission (TJRC) moved toward implementation.

We selected areas of Kenya most affected by post-election violence, and an experienced moderator conducted pairs of focus groups using a mixture of Swahili and local languages in seven different locations: Nairobi’s Mathare and Kibera slums; Kitale, Eldoret, Nakuru, and Naivasha in Rift Valley province; and Kisumu in Nyanza province.  In each location, we split the two groups either between men and women or between youths and the middle-aged/elderly.  The locations resulted in groups of mixed ethnicity and political affiliation.  The groups ranged in size from five to 10 participants, with an average of six.  To recruit these individuals, we relied on a network of grassroots-level non-governmental organizations that work with victims in the various locations.  All of the participants had been affected by post-election violence via harm to their own or their family members’ physical well-being and/or damage to their property.

We believe our approach, though limited in scope and lacking a representative random sample, affords certain advantages over a national public opinion survey.  First, we concentrated the research on those most affected by violence and proposed transitional justice mechanisms.  Second, victims are a distinct, small sub-population whose perspectives are difficult to capture—unless the concentration or overall prevalence of violations is very high—via the conventional sampling procedures that are typically employed for public opinion surveys.  Purposefully targeting this sub-population, including by restricting ourselves to select locations, was therefore an efficient approach to highlight an important constituency.  Third, the relatively open format of focus groups enables participants to express their attitudes, beliefs and desires in their own words and thus elicits answers that provide a richer understanding of how they view complex concepts and difficult issues.

The main subjects of the discussions included various aspects of the disputed elections and resulting violence; the current political climate; and relevant dimensions of transitional justice.  Here, we present insights concerning the participants’ attitudes about justice and amnesty; preferences for specific institutional options; views about the ostensible tradeoff between peace and justice; and perspectives on the extent of and potential for reconciliation.  Our hope is that this study, by injecting the vital perspective of victims based on recent original primary empirical research, informs not only the policy debates and institutional processes that are underway in Kenya, but also the public education programs that civil society has initiated to foster transitional justice.

Justice

In principle, a successful transitional justice process is predicated on a shared conception of justice and what specific mechanisms may yield in terms of benefits for victims.  Therefore, the initial question posed to each of the focus groups was: “What does justice mean to you?”  Rather than mentioning abstract notions like fairness, rightness or even legality, the responses generally fell into two broad categories: punishment and compensation.  Both conceptions are fully intuitive and relate directly the concrete consequences of post-election violence.  Lasting fears of living in proximity to perpetrators within communities are common.  In addition, many of the participants were forced to flee their homes and jobs and face continued difficulties in subsisting as a result of injuries and the inability to find employment.  Meanwhile, only a few of the participants linked justice to reconciliation, specifically dialogue and civil engagement.  Thus, the dominant conceptions of justice emphasized official actions to prosecute those responsible for post-election violence, as well as material assistance.

An overwhelming majority of the participants, however, were dubious about prospects of justice actually materializing in Kenya.  This skepticism is unsurprising given the country’s weak judicial system, a political class that is widely perceived to be indifferent to the plight of victims of violence, and past abrogated attempts at investigations, prosecutions and reform.  According to the participants, the main impediment to the implementation of justice is Kenya’s leaders, who are seen as venal, dishonest and likely to manipulate any commissions and tribunals.  An elder in Kitale sums up these feelings best: “Justice is devilish.  I have to bribe to get justice.”  Likewise, a male respondent in Eldoret captured the pessimism about the current state of politics: “It’s hard for Kenyans to get justice with our current crop of leaders.”  A youth participant in Dandora even argued that the current situation is worse than before: “Politics has really gone down.  It is becoming dirtier.”

Amnesty

The amnesty clause in the act establishing the TJRC, which allows perpetrators of certain rights violations to avoid prosecution if they come forward and confess to the Commission, has been controversial.  Public support for amnesty might wane in the face of ICC prosecutions, especially since many of the alleged perpetrators include present or former cabinet members, other members of parliament, local government officials, and prominent business leaders.

Likewise, the focus group participants were rarely inclined to unconditionally forgive and forget the offenses committed by those involved in the post-election violence.  At the same time, the participants drew a sharp distinction between the organizers and the actual perpetrators of the violence, exhibiting a far greater willingness to grant amnesty to the latter rather than the former, albeit with caveats on both fronts.  With respect to the perpetrators, many of the participants suggested a potential willingness to approve of amnesty as long as perpetrators acknowledged their wrongs, confessed in person, and expressed a sincere and meaningful desire for forgiveness. A frequent sentiment was that such steps would provide sufficient closure for individual victims to move on with their lives.  As one man in Eldoret suggested, “the only way for amnesty is for them to acknowledge their wrongs. We can forgive.”

Yet not all of the focus group participants were prepared to feel consoled if perpetrators admit guilt.  Some fervently rejected amnesty, expressing residual anger and resentment that is best summed up by a woman from Nakuru: “They can talk of amnesty, but we, the real victims, cannot forgive.”  Another man in Nakuru echoed the fears of many respondents about amnesty promoting impunity, in making the case for accountability as a means to prevent future violence: “If they [perpetrators] killed and are released, that will motivate others to the same atrocities.  There has to be punishment to deter others.”  Likewise, a male participant in Naivasha argued, “they [perpetrators] should be jailed for life so that they be a lesson to others.”

Institutional Mechanisms

Criminal Prosecution

The discussion of the possibility of trying individuals complicit in the post-election violence generated differing levels of support for three options: the ICC, a special tribunal in Kenya, and a hybrid system involving both international and domestic elements.  At the time, all of these options were receiving serious consideration in policy debates.  Subsequently, the ICC decided to proceed with formal investigations, which are likely to result in indictments of various perpetrators.  While these steps appeared to diminish the prospects for instituting a domestic tribunal, this option is still advocated periodically.

A large majority of the focus group participants preferred to send those involved in the violence—especially the organizers—to The Hague for trial.  The inclination to eschew local accountability, in favor of an international alternative, was based on several factors.  For one, participants commonly expressed confidence in the ICC’s ability to achieve important outcomes.  A young woman in Mathare indicated, “Let The Hague take ten years, but we will know the truth and at the end we will have results.”  A second woman said, “Politics is accompanied with violence.  Hague could change that and impunity will cease.  They will be punished well there.”  Others cited corruption in the Kenyan courts, the ability of politicians and other powerful individuals to subvert the legal process, and the potential for sparking further conflict.  As a woman in Kibera noted, “I think they [perpetrators] should go to The Hague because you might find these politicians may know the judges and even bribe them to have their way.  If they go to The Hague, truth will rule.”  A man from Eldoret agreed: “Local courts don’t have justice. The organizers are rich and therefore they will interfere.  They should go to The Hague so that at least justice will be served.”

A smaller number of participants advocated a process in Kenya.  Some made this case on the basis that the trials would then be more accessible and enable closer observation as well as direct participation.  As one participant from Kisumu stated quite succinctly, “We would like to witness.”  Similarly, an elder in Kitale argued: “I prefer here so that everyone can have their say.  We have to witness in those trials. We can’t all go to The Hague; we will have a more effective trial locally.”  Others reasoned that far more people could be tried locally, whereas relatively few could reasonably taken to The Hague.  Certain participants also worried that conducting trials in The Hague would mean only the organizers of violence would be prosecuted, allowing the actual perpetrators to go free.  The few participants who advocated a hybrid system saw the potential for complementary functions, with organizers being sent to The Hague, while a domestic tribunal would try the perpetrators.

Truth, Justice, and Reconciliation Commission

Meanwhile, the participants’ attitudes about the TJRC were almost universally negative.  Many seemed skeptical of its utility and suggested this process would be a waste of resources that could instead be going directly to victims, if not a further venue of corruption, rather than serving as a useful vehicle for rapprochement.  For example, a male respondent from Nakuru stated: “These commissions are just for making money.  They are just using them for the wrong purposes.”  A young woman in Mathare echoed his sentiments: “That is just scheme to use public money.”  Others indicated that the TJRC would be a political stunt above all else, doubting the extent to which it would engage and be responsive to the victim community.  As one participant noted, the process “won’t be ours,” but rather a top-level political process.  A woman in Eldoret underscored this skepticism by arguing, “That commission is just theirs.  We don’t have any say.  In fact, for anything that happens in Nairobi, we face the repercussions.”  Furthermore, multiple participants referenced a conspicuous history of failures by previous commissions to follow up on formal inquiries and effect change: “Commissions have been formed and are fake.  They never act on their reports” [young woman in Mathare].  “They never implement what they report” [male respondent from Nakuru].

A minority of the participants expressed cautious support for the Commission, but still questioned its fairness, the legitimacy of its leadership and its potential impact.  In addition, the few participants who did say they wanted the commission conditioned their support on the delivery of financial assistance, the creation of jobs or the punishment of offenders.  These stipulations echo the observations we made earlier that victims seem especially interested in substantive outcomes.  A process alone is seen as largely inadequate, not least because victims lack confidence in Kenyan institutions and officials operating with integrity and acting in the public interest, let alone conscientiously addressing the needs of victims.  In fact, the TJRC has commenced operation and begun to hear evidence, but continues to be plagued by the controversy over Chairman Bethuel Kiplagat’s past association with former President Daniel arap Moi’s regime, itself a violator of human rights.

Peace or Justice?

Earlier, we mentioned the participants’ fears that any efforts to prosecute individuals implicated in the post-election violence could incite further violence and threaten the security of populations that have already been victimized—a standard concern in countries that have undergone a transition from a period of conflict.  These anxieties may be based on only the theoretical risk of a backlash, without a clearly quantifiable threat.  That being said, comparative examples of such violence do exist, including instances where victims have been specifically targeted, e.g., the killings of dozens of witnesses in Rwanda’s gacaca proceedings.  Along similar lines, the absence of legislation and institutions to safeguard witnesses in Kenya has recently come to light as the ICC has begun its investigations.

These and other sorts of vulnerabilities and apprehensions presumably contribute to the fact that the focus group participants were split on whether they support legal accountability for those involved in the post-election violence, or peace and stability.  Those in the latter category expressed a desire to co-exist harmoniously and to live free from fear.  A woman in Naivasha advanced this point, making reference to the dire consequences of conflict, “If we had peace then we would not be wearing donated clothes.”  Those desiring justice argued that justice itself is most likely to produce peace and stability in the long run.  One man in Naivasha related the metaphor, “Justice is the table that carries peace.”  Another said likewise, “If you have justice you get everything else.”  A young participant argued, “You must have justice in order to be free.”  Not everyone drew a direct link between justice and peace, but rather some participants observed that peace can be a tenuous state of affairs and mask underlying grievances that implicitly could simmer and hold the potential to become disruptive.  As one woman in Kibera noted, “we are living peacefully yet we live grudgingly because some of us were violated and undermined.”

Interestingly, the participants in each focus group tend to share similar attitudes about this issue, but there were not consistent patterns by gender and location.  For example, the female participants in Kibera wanted justice first and foremost, whereas their male counterparts preferred peace and stability.  In Naivasha, by contrast, the female participants prioritized peace and stability, while the male participants desired legal accountability.  A natural explanation for the intra-group similarities could be participants following the lead of the first one or two peers to speak.  Yet the other questions did not yield this sort of consistency in responses, as might be expected if certain participants in each group were influencing their peers.  In so far as we can rule out that sort of phenomenon, it appears that attitudes concerning the choice between justice and peace and stability are highly contextual in terms of geography and personal traits.

Reconciliation

Definitions of reconciliation varied considerably among the focus group participants.  The most common understandings were forgiveness, acceptance of others, and acknowledgement of wrongs committed.

When asked whether reconciliation was occurring in their area, or in Kenya more generally, virtually all of the participants believed that progress had been modest at best.  They pointed to many pieces of evidence, most notably their continuing fear of returning home, the fact that stolen properties have not yet been returned, and the failure of perpetrators to apologize or be punished for their transgressions.

The participants were equally cynical about the prospect of reconciliation down the road, even questioning the basic readiness of Kenyans to pursue and achieve this outcome.  A Nakuru woman asked, “How can there be reconciliation when I am still feeling the pain for my murdered son?”  This visceral reaction is evidently widespread, with another participant observing that many victims “still feel the pain.”  Some also cited the ongoing presence of perpetrators in their communities and were resistant to the notion that under these circumstances reconciliation could be achieved through policy pronouncements alone.  As a Kitale elder explained, “If you killed my father, [even] if the government says we should live together, I can’t live with you.  I still have anger.”  Others blamed inter-party wrangling within the Coalition government, which was viewed as a persistent problem.  A further source of worry was the strong ethnic elements to the post-election violence, which have not dissipated and were even exacerbated in some areas by the flight of people and the development of enclave communities.

Conclusion

This brief article represents a first installment of insights from victims of post-election violence concerning their preferences about and expectations for transitional justice in Kenya.  The series of 14 focus group discussions we conducted around the country reveal urgent desires for redress of past harms and losses and for fundamental changes in politics and society, so that people can have the basic necessities of life and not face constant fears of renewed conflict.  The focus group participants were supportive of and otherwise open to a variety of transitional justice options, typically with a bottom-line focus on what is required to achieve meaningful and lasting results.  On this count, the strongest sentiment favored compensation to victims as well as prosecution of those responsible for organizing the violence, a task that most preferred to assign to international authorities.  Progress in these respects was viewed as essential for stability and reconciliation.  Yet there was considerable skepticism among the participants that these challenges would be taken up promptly and effectively and have a lasting, positive impact on the lives of victims and peace in Kenya.

* David Backer is an Assistant Professor of Government at the College of William & Mary (Virginia, USA) and a Visiting Fellow of the Kroc Institute for International Peace Studies at the University of Notre Dame (Indiana, USA).

Joseph Lahouchuc recently graduated from the College of William & Mary with a BA in International Relations.

James Long is a PhD candidate in Political Science at the University of California, San Diego (USA) and a Jennings Randolph Peace Scholar at the United States Institute of Peace

Download the Pdf version of this paper here.

[1] Notable exceptions include civil society campaigns and surveys conducted by South Consulting for the Panel of Eminent African Personalities to measure progress on the Kenyan National Accord and Reconciliation Act.  For the findings of the latter, see http://www.dialoguekenya.org.

I turn first to jurisprudential matters. Although international criminal law strives to borrow from and legitimate itself via a plurality of legal systems, the fact remains that its basic doctrines are Western in origin. This can cause problems when the jurisprudence has a poor sociological fit with the non-Western societies to which it is applied. Take for instance the doctrine of ‘superior responsibility’, one of the modes of liability under which international criminal suspects are commonly tried. Although the case law on superior responsibility is increasingly sophisticated, and the doctrine has been applied with sensitivity and intelligence by some judges, it remains the case that it evolved in the context of well-drilled Western-style bureaucratic and military organisations, in which it made sense to think that a superior could be held responsible for the actions of his subordinates, no matter how far physically removed (Knoops 2007).

In Africa, however, well-drilled hierarchies of this nature are a rarity. Over the past forty years many African governments, armies and guerilla movements have found it tremendously difficult to create stable organisations, and authority relations tend to be informal and fluid instead (for introductions to a vast literature see Chabal and Daloz 1999; Clapham 1985; Jackson and Rosberg 1982; Médard 1982; Migdal 1988; Murphy 2007). This was certainly the case in Sierra Leone, where authority in at least one of the fighting factions – the Civil Defence Forces – was based on patron-client or neo-patrimonial ties, and was more akin to a ‘militarised social movement’ than a conventional army (Hoffman 2007; Kelsall 2009).

While it is not impossible that superiors in such networks should have the ‘material ability to prevent or punish’ the crimes of their subordinates, as the superior responsibility doctrine demands, it is much less likely than in a Western context. Nevertheless, some international prosecutors have sought, rather unthinkingly, to gain convictions under this doctrine even when the evidence for it was flimsy. This, in my opinion, has led to a waste of time and resources and, in the worst cases, some highly questionable judicial decisions (Kelsall 2009, 71-104).

A related problem, although I lack space to address it here, is that the superior responsibility doctrine as currently conceived is ill-equipped to deal with the exercise of charismatic authority, which is rather more common in Africa than it is in the West (see for example Ellis 1995, 2001; Ellis and ter Haar 2004, 90-113). In Sierra Leone it played a part in the trial of Allieu Kondewa, alleged by the Prosecution to have authority over his subordinates by virtue of the ‘mystical powers’ he possessed, and it is arguable that it would also be significant were Joseph Kony ever brought to trial (Kelsall 2009, 105-145).

The next issue I would like to raise is procedural. Just as most of the jurisprudence used in international criminal trials is Western in origin, so is the procedure. Legal anthropologists have long pointed to the more informal and inquisitorial style of African customary courts as compared with Western ones, especially in adversarial, common law contexts (Gibbs 1963; Gluckman 1964). It is difficult for most of us to imagine how unnerving international trials must be for many African witnesses, who find themselves miles from home, in a courtroom of extraordinary grandeur, confronted with robed judges and lawyers who speak a foreign language, and who subject them to highly unusual communicative practices including frequently hostile cross-examination. It is no wonder that getting clear testimony in such circumstances has often proved difficult (Cryer 2007), a problem compounded in contexts, not uncommon in Africa, where secrecy is prized as a high social ideal, and in which there have developed a repertoire of dissembling rhetorical techniques (Ellis and ter Haar 2004, 70-89; Ferme 2001; Murphy 1980; Shaw 2000).

Things are made worse where local conceptions of space and time are at variance with Western coordinates, as they are in many rural African contexts, such as in Sierra Leone. Existing attempts to put witnesses at ease by concealing their identities, paying them allowances, and proofing them before testifying, create their own problems. In my analysis these communicative troubles, in addition to making trials, slow, laborious, and expensive, can seriously call into question the quality of the evidence on which judicial decisions are based (Kelsall 2009, 171-224).

Finally, I turn to normative issues. While some of the crimes adumbrated under the Rome Statute are doubtless regarded abhorrent by all but the most deviant sub-cultural groups or individuals, the same cannot be said for all of them. The issue here turns on the relation between the international ‘community’ that makes international law – comprised of activists, academics, statesmen and lawyers, at the pinnacle of which are the States Parties themselves – and the less cosmopolitan communities existing on their periphery. Take for instance the crime of enlisting children under a certain age (the age has varied over time) into an armed force. Anthropologists and historians have shown that the very conception of what it is to be a child varies cross-culturally, as do the expectations of what a ‘child’ can legitimately be expected or forced to do (Archard 1993; Boli-Bennett and Meyer 1978; Hoffman 2003; James and James 2005; Rosen 2007). Such appeared to be the case in rural Sierra Leone where, in the case of the Civil Defence Forces, commanders enlisted and communities volunteered young fighters, apparently not knowing that this was a morally or legally wrong act. By prosecuting individuals for this crime, the Special Court arguably held those concerned to an alien standard of justice of which they knew nothing, imposing international norms and law on people, raised in a different culture, with contrasting moral ideas. Rather similar points could be made in respect of the crime of ‘forced marriage’ (Kelsall 2009, 146-170, 243-254).

To conclude, at the same time as the States Parties reflect on some of ICJ’s recent achievements, they might also consider some of its difficulties, including those problems that are not prominent on the agenda but become apparent when we dig deep into international trials. These difficulties concern the appropriateness of international criminal jurisprudence, procedure, and norms to African and other non-Western contexts. Is it within the power of the States Parties to recommend a more sociologically attuned use of the existing jurisprudence? Can they, by addressing the entire ecology of the courtroom, make international criminal procedure as friendly and productive as possible for witnesses unfamiliar with a Western courtroom setting? And can they advise a more sensitive enforcement of those laws which, although regarded as universally abhorrent by the ‘international community’, have yet to penetrate the consciousness of communities on its fringe? In short, is a more genuinely international, multicultural type of justice attainable than the kind we have now?

REFERENCES

Allen, Tim. 2006. Trial Justice: The International Criminal Court and the Lord’s Resistance Army. London: Zed Books.

———. 2008. Ritual (Ab)use? Problems with tradtional justice in Northern Uganda. In Courting Conflict? Justice, Peace and the ICC in Africa, edited by N. Waddell and P. Clark. London: The Royal African Society.

Archard, David. 1993. Children: Rights and childhood. London and New York: Routledge.

Baines, Erin K. 2007. The haunting of Alice: local approaches to justice and reconciliation in
Northern Uganda. International Journal of Transitional Justice 1 (1):91-114.

Boli-Bennett, John, and John W. Meyer. 1978. The ideology of childhood and the state: rules distinguishing children in national constitutions, 1870-1970. American Sociological Review 43 (6):797-812.

Branch, Adam. 2004. International justice, local injustice. Dissent (Summer):22-28.

Chabal, Patrick, and Jean-Pascal Daloz. 1999. Africa Works: disorder as political instrument. Oxford: James Currey.

Clapham, Christopher. 1985. Third World Politics: An introduction. Madison: University of Wisconsin Press.

Cryer, Robert. 2007. A long way from home: witnesses before international criminal tribunals. International Commentary on Evidence 4 (1):1-4.

Edozie, Rita Kiki. 2009. Globa citizens and Sudanese subjects: reading Mamdani’s Saviours. African Affairs 108 (433):661-668.

Ellis, Stephen. 1995. Liberia 1989-1994: a study of ethnic and spiritual violence. African Affairs 94 (375):165-198.

———. 2001. Mystical weapons: some evidence from the Liberian war. Journal of Religion in Africa 31 (2):222-236.

Ellis, Stephen, and Gerrie ter Haar. 2004. Worlds of Power: Religious thought and political practice in Africa. London: Hurst.

Ferme, Mariane. 2001. The Underneath of Things: Violence, history and the everyday in Sierra Leone. Berkeley: University of California Press.

Gibbs, James L. Jr. 1963. The Kpelle Moot. In Law and Warfare: Studies in the anthropology of conflict, edited by P. Bohannan. Austin and London: University of Texas Press.

Gluckman, Max. 1964. The judicial process among the Barotse. In Law and Warfare: Studies in the anthropology of conflict, edited by P. Bohannan. Austin and London: University of Texas Press.

Hoffman, Daniel J. 2007. The meaning of a militia: understanding the Civil Defence Forces of Sierra Leone. African Affairs 106 (425):639-662.

———. 2003. Like beasts in the bush: synonyms of childhood and youth in Sierra Leone. Postcolonial Studies 6 (3):295-308.

Huyse, Luc, and Mark Salter, eds. 2007. Traditional Justice and Reconciliation After Violent Conflict: Learning from African examples. Stockholm: Institute for Democracy and Electoral Assistance.

Jackson, Robert H., and Carl G. Rosberg. 1982. Personal Rule in Black Africa: Prince, autocrat, prophet, tyrant. Berkeley: University of California Press.

James, Allison, and Adrian James. 2005. Introduction: the politics of childhood – an overview. In The Politics of Childhood, edited by J. Goddard, S. McNamee, A. James and A. James. Basingstoke: Palgrave.

Johnson, Douglas H. 2009. Mamdani’s ’settlers’, ‘natives’, and the War on Terror. African Affairs 108 (433):655-660.
Kelsall, Tim. 2009. Culture Under Cross-examination: International justice and the Special Court for Sierra Leone. Cambridge: Cambridge University Press.

Knoops, Geert-Jan Alexander. 2007. The transposition of superior responsibility onto guerilla warfare under the laws of the international criminal tribunals. International Criminal Law Review 7:505-529.

Mamdani, Mahmood. 2008. The new humanitarian order. The Nation, September 29.

Médard, J-F. 1982. The underdeveloped state in Tropical Africa: political clientelism or neo-patrimonialism. In Private Patronage and Public Power: Political clientelism in the modern state, edited by C. Clapham. London: Pinter.

Migdal, Joel S. 1988. Strong Societies and Weak States: State-society relations and state capabilities in the Third World. Princeton NJ: Princeton University Press.

Murphy, William P. 1980. Secret knowledge as property and power in Kpelle society: elders versus youth. Africa 50 (2):193-207.

———. 2007. The powerful presence of the past: historical dimensions of integration and conflict in the Upper Guinea Coast. Conference paper. Max Plancke Institute for Social Anthropology, Halle/Saale, Germany.

Otim, Michael, and Marieke Wierde. 2008. Justice at Juba: international obligations and local demands in Northern Uganda. In Courting Conflict? Justice, peace and the ICC in Africa, edited by N. Waddell and P. Clark. London: The Royal African Society.

Rosen, David. 2007. Child soldiers, international humanitarian law, and the globalization of childhood. American Anthropologist 109 (2):296-306.

Shaw, Rosalind. 2000. “Tok Af, Lef Af”: a political economy of Temne techniques of secrecy and self. In African Philosophy as Cultural Inquiry, edited by I. Karp and D. A. Masolo. Bloomington: IA.

* Tim Kelsall has taught politics at the Universities of Oxford and Newcastle, is a former editor of the journal African Affairs, and is the author of Culture Under Cross-Examination: International Justice and the Special Court for Sierra Leone (Cambridge University Press, 2009) (http://www.cambridge.org/9780521767781). He is currently living in Phnom Penh, Cambodia, working freelance as an Associate of the Africa, Power and Politics Programme (http://www.institutions-africa.org/) and as a Visiting Fellow of the War Crimes Studies Center, University of California at Berkeley (http://socrates.berkeley.edu/~warcrime/).

Notwithstanding the general recognition that international law obliges countries to prosecute genocide, crimes against humanity, and war crimes, some diplomats tasked with negotiating peace agreements have argued that the prospect of prosecution by the ICC has made achieving their objectives more difficult.[1] Those negotiating peace have tended to view the possibility of prosecution as a dangerous and unfortunate obstacle to their work. Some fear that merely raising the spectre of prosecution will bring an end to fragile peace talks. The temptation to suspend justice in exchange for promises to end a conflict has already arisen with respect to the ICC’s work in Darfur and Uganda, and threatens to recur in coming years as parties and mediators struggle to negotiate peace deals.

In the short term, it is easy to understand the temptation to forego justice in an effort to end armed conflict. However, Human Rights Watch’s (HRW) research demonstrates that a decision to ignore atrocities and to reinforce a culture of impunity may carry a high price. Indeed, instead of impeding negotiations or stalling a peaceful transition, remaining firm on the importance of justice — or at least leaving the possibility for justice open, whether meted out by national or international prosecutions — can yield short- and long-term benefits. HRW findings about the relationship between peace and justice are discussed at length in a July 2009 report “Selling Justice Short: Why Accountability Matters for Peace.” While there are many factors that influence the resumption of armed conflict, and we do not assert that impunity is the sole causal factor, a review of HRW experience shows that the impact of justice is too often undervalued when weighing objectives in resolving a conflict.

Case studies in the HRW 2009 report are drawn from 20 years of research in as many countries. The ICC’s reach has understandably been more limited to date. Six years after the court’s operations began, its prosecutor is carrying out investigations in four situations (Uganda; Democratic Republic of Congo; Central African Republic; and Darfur, Sudan) and the ICC’s first trial began in January 2009. The prosecutor’s request to open a fifth investigation—in Kenya—is pending before a pre-trial chamber at the time of  writing.

Thus far, however, the ICC’s engagement in these countries lends support to the themes identified in HRW’s broader review of the impact of national and international justice processes on — and, critically, their absence from — peace processes.  Drawing on the findings of “Selling Justice Short”, we illustrate below three of these themes with examples drawn from the ICC’s experience to date.

First, arrest warrants do not necessarily hinder, and have at times benefited, peace processes through the marginalization of leaders suspected of serious crimes. Justice is an important objective in its own right and this marginalization effect should not motivate the commencement of justice processes. At the same time it has been a side effect of the issuance of arrest warrants in some cases. In the Uganda situation before the ICC, arrest warrants for leaders of the rebel Lord’s Resistance Army (LRA) appear to have played a role in marginalizing the LRA by isolating it from its base of support in Khartoum. This, as well as an interest in seeing the ICC arrest warrants lifted, appears to have increased the LRA’s interest in participating in peace talks held in Juba, Sudan between 2006-2008. While the Juba talks did not ultimately lead to a final peace agreement, interim agreements —including on the issue of justice for crimes committed during the conflict — were successfully concluded over the course of the talks, suggesting that peace processes can be conducted in the shadow of ICC arrest warrants.

Second, foregoing accountability does not always bring hoped-for benefits. In the Democratic Republic of Congo (DRC), the inclusion of alleged perpetrators in government —granting de facto amnesties, including to Bosco Ntaganda, a former rebel commander wanted by the ICC but integrated into the Congolese army in early 2009 — has had far-reaching negative consequences. Successive attempts to buy compliance with post-conflict transition processes by rewarding criminal suspects with positions of power and authority have only allowed these individuals to continue committing crimes or encouraged others to engage in criminal activity in the hope of receiving similar treatment. Far from bringing peace, this has instead allowed lawlessness and human rights violations to persist.

Third, pursuing international justice can have long-term benefits necessary to sustainable peace, including the reinstatement of the rule of law through domestic prosecutions.  ICC investigations in the Central African Republic, for example, have placed pressure on national authorities to take at least nominal steps toward enforcing international humanitarian law. While this has not yet yielded domestic prosecutions, it seems to have at least raised awareness of serious international crimes and the rule of law, which may be the first step toward preventing future crimes. These three themes and examples are dealt with one by one in the paper below.

To read the full paper click here.

* Sara Darehshori is senior counsel and Elizabeth Evenson is counsel in the International Justice Program of Human Rights Watch.

The first of these inherent problems stems from the fact that the ICC, like any international mechanism intended to promote or protect human rights, faces the impossible task of acting morally in a political world rent by power inequalities, domination, and violence.  Thus, because it lacks a coercive capacity of its own, the ICC, in its quest for efficacy, must accommodate itself to political power, which it has done through two routes.  First, the ICC has prosecuted only Africans.  This decision has been a function of international power relations which make Africa the only region weak enough so that Western intervention and experimentation can take place there without accountability, and unimportant enough so that the West will allow the ICC to act as its sub-contractor there in place of more direct forms of intervention.  Second, the ICC has accommodated itself to political power within Africa—this is very clear in Uganda, where the ICC eagerly became an instrument of the Ugandan government’s counterinsurgency so as to ensure Uganda’s cooperation with its prosecution of the LRA.  In doing so the ICC also further proves its willingness to cooperate with US military interests in the region.

The ICC and its supporters have had to respond to these accusations of politicization.  They have done so—when not resorting to ad hominem attacks—through a rhetorical strategy of shifting back and forth between declarations of outright denial and invocations of pragmatic exigency, between denying that ICC decisions have anything to do with political considerations and instead derive from legal reasoning alone, and admitting that the ICC goes after accessible targets in order to ensure its own survival.  The denial side of this rhetorical strategy is evident when ICC supporters contend that the Court’s exclusive focus on Africa stems from the continent’s being the site of the most cases of extreme violence which require international legal intervention, and from the fact that African states have voluntarily referred these cases to the ICC.  Thus, the ICC’s accommodation to political power is denied, the focus on Africa is cast as a purely legal decision, and the Court’s prosecution of certain parties to the exclusion of others is explained through reference to an obscure calculus of the gravity of crime.

But that is a hard line to maintain when the ICC is pressed on its decision to get involved in violence in Guinea and not in Iraq, Afghanistan, or Israel, or on its decision to ignore mass violence against civilians in Somalia by Ethiopian and US forces, or to dismiss violence by the Ugandan government against its own or neighboring peoples.  Faced with such evidence of the ICC’s accommodation to power, the Court’s supporters tend to shift their argument from outright denial to an admission of the necessity of pragmatism on the ICC’s part in order for it to get any cases tried, but justify that pragmatism on the basis that it will result in some justice being done, which is better than no justice at all.

This rhetorical strategy of alternation between denying that pragmatic considerations influence ICC decisions and admitting that the Court must conform to political exigencies in order to get anything done, between dismissing its critics with self-righteous declarations of the ICC’s role as the instrument of global justice and dismissing its critics with the demand that they be realistic—this strategy must itself be dismissed.  We need an honest assessment of the ICC’s capacity to be an instrument of universal and impartial justice, a need that cannot be avoided, as some ICC supporters attempt to do, by translating the gap between the ICC’s current—partial—practice and impartial justice into a temporal gap between the imperfect present and an inevitable future in which the ICC will overcome the political interests of weak and strong states alike. This untenable evolutionary narrative lacks empirical grounding, and those focused on bringing justice to the world they live in now cannot afford such an ill-conceived faith.

Instead, we need to throw light on the consequences that result from the ICC’s very real need to abide by these strict political limitations in order to ensure its own efficacy and survival.  For those who argue that some justice is better than no justice, the ICC’s accommodation to power is not a bad thing but rather simply the constitutive condition for the partial but genuine justice of the ICC. In the same way, according to those espousing the evolutionary narrative, Allied victory in WWII provided the constitutive condition for the partial but genuine justice of the Nuremburg trials.

The argument that some justice is better than no justice, however, does not hold.  First, from the perspective of the survivors of conflict, criminal prosecutions of one side and not the other can appear a travesty of justice instead of its partial realization—“some justice” may not be justice at all. More generally, the problem is that the assertion that some justice is better than no justice proclaims legitimate any politicization of justice, any instrumentalization of legal institutions to political interests, however unjust those interests are. From this point of view, it simply does not matter that justice conforms completely to repressive, violent political power locally or globally; as long as cases are tried and “some justice” is done, everything is fine. This is problematic morally, but also very dangerous politically since it declares international justice available as a mantle to be draped at will over political interests by those with the power to do so. As a result, the doctrine that some justice is better than no justice can end up not only making justice conform unapologetically to power, but also making justice an unaccountable tool of further violence and injustice.

The second inherent problem is that the ICC and its supporters have defined “global justice” for Africa as a goal that is to be pursued exclusively through the ICC and other formal legal mechanisms, thus restricting those issues that can be addressed and those actors who can be held accountable.  In monopolizing the discourse of global justice in Africa, the ICC has placed certain fundamental issues outside the scope of what can be defined as unjust and thus subject to challenge and contestation through the pursuit of global justice.

This becomes obvious in terms of the ICC’s subject matter jurisdiction: the forms of violence, repression, and inequality that can be challenged as “unjust” are restricted to the most spectacular forms of overt violence.  Less spectacular forms of domination, repression, and violence—such as economic exploitation, Western sponsorship of violent and anti-democratic political forces, internationally-enforced disparities in access to medicines, trade regimes that undermine development and food security—none of these can be challenged through the pursuit of global justice when global justice is defined by the ICC.  Global justice is exclusively associated with punishing the “most serious crimes of concern to the international community as a whole,” conceived of as mass atrocities, while those crimes that serve the interests of the “international community” are conveniently outside the ICC’s scope.  Mass atrocity is naturalized as the most pressing form of global injustice, and its prevention and punishment are naturalized as the most pressing issue for the pursuit of global justice, trumping all other concerns.

Personal jurisdiction under the ICC is similarly restricted, focusing as it does on placing the entire blame for violence on a few particularly “savage” Africans—whether Omar al-Bashir or the LRA—by misrepresenting situations and reducing the wide set of actors and structures involved in violence to one or two individuals.  By focusing on those (Africans) with “greatest responsibility,” the ICC simply ignores the criminal responsibility of Western states, donors, aid agencies, and corporations even in those episodes of violent atrocity that the Court is willing to investigate.  And finally, the ICC’s limited temporal jurisdiction excludes centuries of injustice, an entire history of Western violence in Africa.

Now, if the ICC were conceived as simply a technical mechanism for use in specific circumstances, there would be less of a problem.  The problem, however, results from the ICC’s effective monopolization of the language of global justice in Africa.  Thus, there is a vast regime of institutions and organizations engaged in a massive pedagogical project trying to build support for the ICC as the exclusive arbiter of global justice.  It is precisely through the ICC’s mechanisms for victims’ “participation” and “empowerment” that the Court restricts people’s concepts of injustice and justice to those provided by the ICC and thus to put entire forms of domination, violence, and inequality beyond the scope of justice.  This pedagogical “empowering” project thus furthers the management of Africa in the service of Western political and economic domination through the very discourse of global justice.  The irony is that the discourse of global justice is uniquely positioned to challenge those forms of Western domination and international inequality, and so the ICC ends up impoverishing what should be the radical and emancipatory language of global justice.

It seems clear that neither of these two inherent problems—the ICC’s counterproductive accommodation to power and its impoverishment of the discourse and practice of global justice—can be dealt with through reform of the ICC’s Statute, let alone through a new Chief Prosecutor.  Instead, these are problems fundamental to the ICC as an international legal institution, and they may in some form undermine any effort at finding global justice through law.  Thus, the ICC’s interventions need to be restricted to those cases where African citizenries themselves request that it play a role so that its politicization is minimized, and its self-serving claims need to be brought under control so that it does not monopolize the discourse of global justice.  At the same time, these problems point to the need for alternative, democratic projects of justice to be articulated and developed, projects within which the ICC, perhaps, will play a part.

*Adam Branch is assistant professor of political science at San Diego State University and has a Ph.D. in political science from Columbia University.  His work has examined the politics of humanitarian and human rights intervention into civil war in Africa.  He has published widely in political science and international studies journals and recently finished a book manuscript on the civil war and Western intervention in northern Uganda. In addition to his academic work, he has also worked extensively with local human rights organizations in Uganda.  More information can be found at his webpage: http://www-rohan.sdsu.edu/~abranch/

There is an ambiguity in article 7 of the ICC’s Statute that is glossed over by the Pre-Trial Chamber II. Article 7(1) states:

For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against a population…

And then 7(2) states:

For the purpose of paragraph 1:

(a) “Attack directed against a population” means a course of conduct involving the multiple commissions of acts referred to in paragraph 1 against any civilian population pursuant to or in furtherance of a State or organizational policy to commit such an attack;

The ambiguity concerns whether the State policy requirement means the same thing for both the condition of “widespreadness” and for “systematicity,” or whether different things are meant. An attack can be widespread without being based in a State or organizational policy, whereas it is very difficult to conceive an attack being systematic that was not based in a State or organizational policy.

For an attack on a population to be widespread it is conceptually sufficient that many people be affected. In the pre-ICC debates about crimes against humanity it seemed that the “or” in “widespread or systematic” could be interpreted to mean that State policy was not required to prove a crime against humanity, since only in a systematic attack on a population was the State policy required, not in widespread attacks. The wording of the ICC Statute takes away that ambiguity. But it is replaced with a concern about what the “or” now means. If the Statute drafters wanted to eliminate the distinction between widespreadness due to State policy and systematicity due to State policy it would have been easy to do by substituting “and” for the “or” that was used in “widespread or systematic”.

The kind of State policy that is widespread but not systematic is not easy to conceptualize, but the language of the Statute as well as the history of how crimes against humanity have been defined calls for such a conceptualization. And this in turn suggests that there could be two different understandings of the requirement of State policy: one for widespread attacks and one for systematic attacks.

It might be that the State policy requirement of crimes against humanity that is associated with widespreadness is considerably easier to meet than that for systematicity. If there is police involvement or the involvement of various politicians, this might be sufficient in and of itself to establish the weak State involvement associated with widespread attacks, whereas such involvement by police or politicians would have to be linked to a specific policy of the State to satisfy the more stringent State involvement associated with systematic attacks. Yet, the Pre-Trial Chamber II Decision seems not to accept the weaker State policy requirement since it appears that evidence supporting this has already been offered by the Prosecutor and acknowledged but rejected as insufficient by the Chamber in paragraph 13 of the Decision.

There is a considerable amount at stake here since State policies do not often manifest themselves in ways other than the behavior of politicians and police. Similar worries can be expressed about this issue as have been expressed about the debate about whether “or” or “and” should occur in the crimes against humanity definition. As I have argued in my book, Crimes Against Humanity: A Normative Account (Cambridge University Press, 2005), it is generally preferable that the attack be shown to be both widespread and systematic, but such a requirement is extremely hard to meet, and so it might be advisable to allow some cases to go forward where only one of the conditions is proven.

It might be thought that this issue can be resolved by looking to Article 17 of the Statute of the ICC that has been interpreted to require an addition element, gravity. On 10 February 2006 the ICC’s Pre-Trial Chamber I issued a Decision on the Prosecutor’s Application for Warrants of Arrest in the Situation in the Democratic Republic of Congo.  Paragraph 51 of that Decision states:

The Chamber considers that the additional gravity threshold provided for in Article 17(1)(d) of the Statute is intended to ensure that the Court initiates cases only against the most senior leaders suspected of being responsible for the crimes within the jurisdiction of the Court allegedly committed in any given situation under investigation.

And paragraph 51 suggests that this heightened gravity standard applies to both systematic and widespread crimes.

Yet, the issue that remains unresolved is whether the State policy requirement is always strong or sometimes weak. The gravity threshold concerns who should be prosecuted not the character of the larger crime that the defendant participated in. State leaders can participate in, and be prosecuted for, crimes that have both a strong and a weak State policy. Gravity seems to go to the type of defendant, not the type of crime.

Regardless of how one comes down on the interpretive questions addressed above, defendants and prosecutors are owed some clarity on exactly what the Pre-Trial Chambers will expect concerning the stringency of the State policy requirement for establishing crimes against humanity.  It remains unclear how to understand the State policy requirement given paragraphs 12 and 13 of the 2010 Pre-Trial Chamber II Decision.

*Larry May is W. Alton Jones Professor of Philosophy, and Professor Law, Vanderbilt University, and Professorial Fellow, Centre for Applied Philosophy and Public Ethics, Charles Sturt and Australian National Universities.

( For a PDF file of this essay, please click here)

Background

Following the disputed presidential and parliamentary elections in Kenya in 2007, the country experienced two months of brutal violence. According to the Commission of Inquiry on Post Election Violence (Waki Commission), 1,113 people were killed, many hundreds were raped, and 650,000 were left homeless. On 28 February 2008, a power-sharing government was formed; and on October 15, 2008, the Waki Commission report recommended that a Special Tribunal for Kenya be established to try those responsible for the post-electoral violence. It further stated that if the Grand Coalition Government failed to establish a Special Tribunal, a list of the names of suspected perpetrators would be forwarded to the ICC Prosecutor. Since no Special Tribunal was established, on 9 July 2009, Ocampo received the list. Four months later, Ocampo for the first time elected to use his own powers under Article 15 of the Rome Statute to initiate proceedings proprio motu. On 18 February 2010, however, the Pre-Trial Chamber used its powers under Rule 50(4) and Regulation 28(1) to request clarification and additional information from the Prosecutor. The Prosecutor submitted the requested information on 3 March 2010, thereby inviting the Pre-Trial Chamber to provide some important guidance on the most fundamental aspects of the Rome Statute.

Applicable Procedure

Article 15(1) provides that the Prosecutor may initiate investigations proprio motu on crimes that fall within the jurisdiction of the Court. Article 15(3) provides that “if the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorisation of an investigation, together with any supporting material collected.” Once such a request has been made, the Pre-Trial Chamber shall, in accordance with Article 15(4), authorise the investigation if it is satisfied that there is a “reasonable basis to proceed with an investigation” and that the case “appears to fall within the jurisdiction of the Court.” Rule 48 of the Rules of Procedure and Evidence provides that in determining whether there is a reasonable basis to proceed with an investigation under Article 15(3), the Prosecutor is required to consider the matters set out in Article 53(1), namely:

(a)     Whether there is a reasonable basis to believe that a crime within the jurisdiction of the Court has been committed;

(b)     Whether the case would be admissible under Article 17; and

(c)     Whether, taking into account the interests of victims and the gravity of the crime, it would be in the interests of justice to proceed with an investigation.

Within the Jurisdiction of the Court

As the alleged crimes were committed on Kenyan territory more than two years after Kenya ratified the Rome Statute, the only issue to be determined in order to satisfy Article 12 is whether the alleged crimes amounted to crimes against humanity.

Article 7 defines “crimes against humanity” to mean the commission of one of the acts in the Article “when committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack.”

In Bemba, Pre-Trial Chamber III held that “widespread” referred to the “large-scale nature of the attack and the numbers of targeted persons.” According to the Waki Commission, the post-electoral violence lasted two months, occurred in six of Kenya’s eight provinces and resulted in deaths, displacement and rapes and sexual assaults. The Pre-Trial Chamber should therefore be satisfied that there was a “widespread” attack against a “civilian population.” The same Pre-Trial Chamber stated that “systematic” referred to the “organised nature of the acts of violence and the improbability of their random occurrence.” The Waki Commission identified several factors indicating that at least some of the post-electoral violence in Kenya was planned, including incitement to violence by politicians and business leaders, warnings sent to victims of the impending attacks, and the organised and orchestrated nature of the violence itself. It was therefore possible for the Pre-Trial Chamber to also conclude that the attacks were “systematic”.

In his initial Request for Authorisation, however, the Prosecutor elected not to name individual suspects or groups. This exemplified a divergence of interpretation between the Prosecutor and the Pre-Trial Chamber. The difference of opinion concerned the mens rea requirement for crimes against humanity. Article 7(2)(a) requires that the attack against a civilian population be “pursuant to or in furtherance of a State or organisational policy to commit such an attack”. The Prosecutor argues that the authorisation of an investigation pursuant to Article 15 “is not the opportunity to proceed with the identification of individual criminal liability”. (Request for Authorisation, para 102) Instead, the Prosecutor is asking the Pre-Trial Chamber to find that there is a reasonable basis for believing that some persons in Kenya committed crimes in furtherance of a State or organisational policy, even if the Prosecutor is unwilling or unable to disclose which persons in particular may have had this mental element. For the Pre-Trial Chamber, the failure of the Prosecutor to identify those who are alleged to have been responsible is unsatisfactory. The judges were likely to have been influenced by the ICC’s Explanatory Note on Elements of Crimes, which looks to the mental element of the alleged perpetrator. Further, the approach of other Pre-Trial Chambers has been to consider whether there were reasonable grounds for believing that the alleged perpetrator knew that the acts being committed were part of a widespread or systematic attack. (See, for example, Katanga; Chui; and Bemba,). Consequently, so that it could decide whether there is a “reasonable basis” for believing that crimes against humanity have been committed, in its Request for Clarification, the Pre-Trial Chamber requested that further information be provided on the identity of the local leaders, businessmen and politicians alleged to have been responsible for the violence. On 3 March 2010, the Prosecutor provided the Pre-Trial Chamber with this information, stating in its response that “senior leaders from both PNU and ODM parties” are believed to have been responsible for the violence, before providing the names of 20 persons in a confidential annex. The Pre-Trial Chamber will now consider this list of 20 persons to determine whether there is a reasonable basis for believing that attacks were made “in furtherance of a State or organisational policy”.

Admissibility under Article 17

Assuming that the Pre-Trial Chamber finds that there is a reasonable basis for concluding that crimes against humanity have been committed, it must then consider whether the case would be admissible under Article 17. This essentially requires the Pre-Trial Chamber to consider two issues:

(a)     Whether the principle of complementarity has been satisfied; and

(b)     Whether the requirement of sufficient gravity has been satisfied.

(a) The Principle of Complementarity

Pre-Trial Chamber I, in Lubanga, stated that the principle of complementarity is the “first part of the admissibility test”. Article 17(1)(a) provides that a case will be inadmissible where it is “being investigated by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution”.

In Katanga, the Appeals Chamber stated that “inaction on the part of a State having jurisdiction … renders a case admissible before the Court”. In his Request for Authorisation, the Prosecutor argued that the failure of the Grand Coalition Government to establish a Special Tribunal for Kenya amounted to inaction because it has resulted in no investigations or proceedings pending against those bearing the greatest responsibility for the crimes allegedly committed.

The Pre-Trial Chamber’s first concern in relation to complementarity was revealed in its Request for Clarification where it requested the Prosecutor to provide further information on the specifics of the alleged incidents and the identity of the alleged perpetrators. The Pre-Trial Chamber appears to be of the view that it is not possible to identify whether alleged suspects have been investigated and prosecuted, without first knowing who those alleged suspects are. As mentioned above, this information was provided to the Pre-Trial Chamber on 3 March 2010.

Many other thoughts are now likely to occupy the Pre-Trial Chamber judges’ minds. First, can it be said that a State is “willing” to prosecute when leaders of its government publicly support the trial of suspected perpetrators but then fails to establish the necessary implementing legislation? Second, how long should the ICC be expected to wait for domestic investigations and prosecutions to commence? Finally, in the absence of any prosecutions, does the existence of the Truth Justice and Reconciliation Commission, which begins its work later this year, make the Kenyan cases inadmissible under Article 17?

While it has been nearly 18 months since the Waki Commission recommended the establishment of a Special Tribunal, of concern to the Pre-Trial Chamber is that discussions on how to establish a Special Tribunal are likely to continue in Cabinet meetings. Indeed, it may well be that the very process of the Prosecutor initiating a proprio motu proceeding restarts the debate on the Special Tribunal. It is therefore possible that, following the decision of the Pre-Trial Chamber to authorise formal investigations, a Special Tribunal may be established, thereby rendering the Kenyan cases inadmissible before the ICC. The Pre-Trial Chamber may therefore be reluctant to authorise official investigations while domestic investigations and prosecutions remain a possibility.

(b) The Principle of Sufficient Gravity

Article 17(1)(d) provides that a case will be inadmissible where it is “not of sufficient gravity to justify further action by the Court.” The term “gravity” is not defined in the Rome Statute, nor in the Rules of Procedure and Evidence, but in Lubanga, the Pre-Trial Chamber held that “gravity” requires two factors to be considered:

(a)     whether the situation was “systematic” or “large-scale”; and

(b)     whether the situation caused “social alarm” in the “international community”.

This approach, however, was rejected by the Appeals Chamber in a decision delivered on 13 July 2006. Despite rejecting the approach of the Pre-Trial Chamber, however, the Appeals Chamber did not hand down an alternative test, thereby leaving some uncertainty over how Article 17(1)(d) should be interpreted. In his Request for Authorisation, the Prosecutor makes no submissions on how the term “gravity” should be interpreted, merely stating in paragraph 20 that “the gravity threshold established by the statute is reached”.

As deGuzman has argued, it may be necessary to distinguish between gravity in a relative sense and gravity in a threshold sense.[1] The first involves the Court in comparing the situation and cases in question with other situations and cases to ensure that those that are selected for prosecution are the “most grave”. By contrast, the latter involves the Court in measuring the situation and cases in question against some objective criteria to determine whether a particular threshold of gravity has been met. It would appear that the use of the word “sufficient” in Article 17(1)(d) suggests that the second test of gravity is the appropriate test to adopt at the admissibility stage. The Request for Authorisation provides the Pre-Trial Chamber with an opportunity to define the threshold that must be met, and the criteria that must be considered when deciding this question.

This raises many interesting questions for the Pre-Trial Chamber. First, to whom is the situation required to be grave – the affected population, the region, or the international community? Second, what factors are relevant in determining gravity – the crimes committed, the identity and rank of the perpetrator, the number of victims, the geographical scope, the temporal scope, or a combination of each? The Pre-Trial Chamber is likely to be conscious of the need to avoid adopting any sort of rigid test to determine “gravity”. While such a test would not be binding, it may create a persuasive authority that prevents the Court from hearing certain serious cases in the future.

Interests of Justice

Once the Prosecutor has taken into account the gravity of the crime and the “interests of victims”, Article 53(1)(c) then states that the Prosecutor must consider whether there are “substantial reasons to believe that an investigation would not serve the interests of justice”. The Prosecutor is of the opinion that, where the other criteria in Article 53 have been satisfied, there is a presumption in favour of investigation. In other words, the Prosecutor believes that he is not required to establish that an investigation or prosecution is in the interests of justice, but rather he shall proceed with the investigation unless there are particular circumstances that provide substantial reasons why it is not in the interests of justice to do so.

As there is no real threat of ICC investigations further destabilising the region, it seems reasonable to assume the proceeding with investigations in Kenya would be in the interests of justice. The Request for Authorisation nevertheless provides the Pre-Trial Chamber with the opportunity to state whether its understanding of the provision is the same as the Prosecutor’s.

Conclusion – Is There a “Reasonable Basis” Upon Which to Proceed?

Ultimately, the decision of the Pre-Trial Chamber in relation to each of these issues identified in this essay will be heavily influenced by how it chooses to define “reasonable basis”. The Rome Statute provides four different standards of certainty, depending on the issue under consideration. In descending order, these are:

(1)     Conviction of the accused where his guilt is “beyond a reasonable doubt” (Article 66(3));

(2)     Confirmation of charges against the accused where there are “substantial grounds” for believing he committed the crimes charged (Article 61(7));

(3)     Issue of a warrant against the accused where there are “reasonable grounds” for believing he committed the crimes charged (Article 58(1)); and

(4)     Initiation of an investigation where there is a “reasonable basis” for believing crimes were committed.

With the Prosecutor only being required at this stage of the proceedings to satisfy the lowest of these four standards of certainty, the Pre-Trial Chamber may have concerns over whether each of the elements of Article 53 are satisfied, but may nevertheless grant the Request for Authorisation, thereby providing the Prosecutor with the benefit of any doubt. Regardless of the Pre-Trial Chamber’s conclusion, the reasoning in the decision may provide greater clarity on several crucial elements of the Rome Statute.

*Lionel Nichols is an MPhil student at the Centre for Socio-Legal Studies at the University of Oxford.

( For a PDF file of this essay, please click here)

Much of the debate around the International Criminal Court’s (ICC) relationship with Africa has tended to focus on the case of Sudan’s Darfur region and the Court’s decision to issue an arrest warrant for the country’s President, Omar al-Bashir. At the July 2009 African Union (AU) Assembly of Heads of States and Government summit in Libya, Libyan President Muammar al-Gaddafi rallied his counterparts to sign onto what became known as the “Sirte decision”, in which AU states resolved not to cooperate with the ICC.

As a matter of international law, the Sirte decision was hollow. But as a political decision, it was clear: international justice on the continent is now at a major crossroads. This should not be misconstrued, however, as the continent being against the ICC. In fact, it is important to note at the outset that the tensions between the ICC and African governments often disguise an important underlying fact: Africa’s states are divided about the role that international justice should play in contributing to the continent’s fight against impunity for mass crimes.

The continent is composed of fifty-three states whose views on the ICC’s role are more varied and complex than is often imagined. This was evident in Sirte where some states (e.g. Botswana) had a different view from others (e.g. Rwanda and Libya) on the ICC’s role in Sudan. African states, like others, approach international relations, including international justice, based on their individual interests. Their postures towards the ICC are not homogenous. Each African case before the ICC is premised on varying circumstances and reasons, and so the ICC’s relationships with individual African countries also vary. Yet, the Sirte decision also demonstrated that Africa’s leaders are becoming bolder and more vocal in their criticism and rejection of the ICC’s actions. What does this mean for the ICC’s role in Africa?

Awkward but Varied Relationships

If judging only by the Sudan case, one would be forgiven for believing that the AU backlash against the Court renders its fate in Africa precarious. One could also argue that the initial backlash at Sirte is blowing over in the absence of a unified position on how to respond to the Court. A fairer assessment of the continent’s relationship with the ICC is that it is awkward.

On one hand, the relationship is based on the aspiration that Africa should never again witness the horrors of genocide or apartheid, and should therefore support the design of mechanisms to prevent such heinous crimes. On the other hand, states remain undecided about the types of interventions necessary to prevent such crimes, especially if such interventions originate externally. This ambivalence is shown by the fact that of Africa’s fifty-three states, thirty have signed the Rome Statute¾but only three (Senegal, South Africa and Kenya) have enacted legislation to incorporate the Statute’s provisions into domestic law.

Further evidence of African governments’ uneven posture is that three African states ¾Uganda, Democratic Republic of Congo (DRC), and the Central African Republic (CAR) ¾voluntarily referred their country situations to the ICC for investigation and prosecution. This point is often used by those who argue that the Court is not out to target Africa’s leaders. The important fact here is not that three African countries referred cases to the Court, but rather leaders in two countries, Uganda and DRC, used it as an additional tool against their adversaries. Another important issue is that leaders are far less willing to cooperate with the Court if the spotlight is turned on them or their acts.

Worsening Difficulties: the AU’s Sudan Concerns

Some African state parties to the ICC have become sceptical of the ICC because of the arrest warrant against al-Bashir. While they have not openly supported some of the vociferous attacks against the ICC, states considered ICC proponents such as South Africa and Senegal have expressed reservations about the arrest warrant, arguing that is shows the Court’s lack of political insensitivity and poor judgement. President Abdoulaye Wade of Senegal, head of the first African state to ratify the Rome Statute, voiced his frustration by saying that the Court “only tries Africans”.[1]

The AU says it remains committed to the fight against impunity and cites its Constitutive Act¾which gives the AU the right to intervene to protect citizens against genocide, war crimes, and crimes against humanity ¾as evidence. It also states that its frustration are limited only to the Sudanese case and not to ICC interventions in Uganda, the DRC and CAR (situations of State referral), and Kenya, where the Prosecutor has applied on his own initiative to open an investigation against the alleged perpetrators of post-election violence.[2] So what are the AU’s objections to the ICC in Sudan?

First, it is concerned about the timing of the ICC’s arrest warrant against a sitting head of state in a conflict country.[3] It argues that securing peace should be the first priority and that with time justice will always reach those who have committed crimes. One cannot dismiss the AU’s concern that the execution of an arrest warrant without a carefully managed transition could lead to further instability in Sudan and its nine neighbouring countries. But, this argument is a variation of the numerous excuses for inaction that inevitably accompany justice measures against a head of state.

Second, the AU questions whether the Rome Statute should be binding on non-State parties (the contentious Article 98 on cooperation with respect to waiver of immunity and consent to surrender).[4] The question is a complex one and as yet, there remain some doubts among States as to whether the arrest warrant against President al-Bashir can be enforced in either State Parties or non-State Parties.

Third, the AU is disappointed with the UN Security Council’s “refusal” to acknowledge its request for a deferral under Article 16 of the Statute which grants power to the Council to defer cases for one year.[5] Related to this is the fact that only two of the permanent five members of the Security Council ¾Britain and France¾are signatories to the Statute, while the United States, Russia and Africa’s newest friend China have yet to ratify the Statute.

Finally, the AU criticises the major imbalance in the international arena in responding to justice. One cannot dismiss the AU’s criticism about Western hypocrisy and double standards especially in the aftermath of the Iraq and Afghanistan wars, as well as the serious violations of international law by the United States¾particularly of the universal prohibition against torture¾in the context of the post 9/11 war on terror. The fact that international justice is powerless to bring action against powerful nations like the United States strengthens perceptions that international justice is selectively pursued against weak states¾such as Africans ¾and feeds accusations that the Court represents a new form of neo-colonialism or judicial imperialism.

Avoiding African exceptionalism

The AU’s concerns should not be dismissed, but the decision of member states in July not to cooperate with the ICC sent the wrong message to perpetrator governments and their allies. The South African government’s decision to distance itself from this position, after the urging of South African civil society organisations and prominent dignitaries, was a welcome move. The impact of the Sirte decision on the future of international justice remains to be seen, but it is part of a trend by African leaders to seek ways to avoid accountability. Instead, they assert that Africa has its own brand of justice that espouses reconciliation over sanctions or punishment. It is unmeritorious and discriminatory to claim that African victims do not deserve to seek criminal accountability for serious international crimes with standing equal to that of other victims of grave abuse.

Welcome Relief: The work of the African Union Panel on Darfur

The report of the African Union High-Level Panel on Darfur, however, is a welcome relief because a group of African leaders have not shied away from recommending accountability measures. Headed by former South African President Thabo Mbeki, the Panel was mandated by the AU Peace and Security Council (PSC) in July 2008 to examine the situation in Sudan and submit recommendations on an effective and comprehensive means to address accountability, reconciliation and healing. It began its work in March 2009 and submitted its report to the PSC in October 2009.

It recommends balancing the need for justice, peace, and reconciliation in by establishing a hybrid court composed of  Sudanese and non-Sudanese judges and legal experts; the introduction of legislation to remove all immunities of state actors suspected of committing crimes in Darfur; and a ‘Trust, Justice and Reconciliation Commission’. On the ICC, the Panel diplomatically avoids taking a position. Rather, it provides carefully crafted language by drawing attention to the fact that the ICC can deal with only a limited caseload. It appears to offer an avenue to seek an Article 16 referral from the Security Council if a credible hybrid court is established. At the same time, it asserts the Court’s independence on the question of complementarity by making it clear that it is for the Court’s judges to decide whether the Sudanese government has made genuine efforts to deal with crimes in Darfur (Articles 17 and 19 on admissibility).[6] President Mbeki’s recommendations may reach farther than the ICC if they are allowed to work, but there is a real possibility that they will be blocked by the Sudanese government.

The ICC Review Meeting: A Means to Address Concerns?

I began this essay by stating that, while the relations between the AU and ICC were more polarised over the question of President al-Bashir, this should not be misconstrued as a continental backlash against the Court. Despite some real tensions and differences in approach between the AU and the ICC, they do not hold competing views on dealing with impunity. Indeed, as noted, the AU’s Constitutive Act still remains a vital document that binds, if sometimes loosely, its member states to the need to deal with mass violations of human rights similar to the ICC.

I also noted at the outset that there is no overriding consensus among African states on how to relate to the ICC except in the case of al-Bashir. But even in the al-Bashir case, African states have not taken unified action. At the meeting of the Assembly of State Parties (ASP) to the Rome Statute in November 2009, there was no concerted African effort to address the recommendations emanating from the AU ministerial meeting held shortly beforehand in Addis Ababa[7] (notably amendment to Article 16 to grant the UN General Assembly power to defer cases if the Security Council fails to take a decision within a specified time frame and clarity on whether immunities enjoyed by officials of non State Parties under international law have been removed by the Rome Statute or not). Indeed, the AU Assembly of Heads of State expressed frustration that, with the exception of South Africa, none of the other African state parties to the Rome Statute supported the AU position.[8]

These AU recommendations were not approved for consideration at the ICC’s upcoming 2010 Review Conference. It was agreed by ASP members that the AU’s concerns should be considered at the working group level.[9] An important decision, however, was the ASP’s approval of an ICC Liaison office in Addis Ababa. The decision not to give way on Articles 16, 27 and 98 might be perceived as a loss for Africa’s continental organisation. The ASP’s decision, however, to dedicate two days to substantive discussions to a “stocktaking exercise” at the Kampala Review Conference does give African governments an opportunity to address a range of issues to enhance the Court. The two days will focus on a range of issues of concern to the continent. They include four themes: complementarity between the ICC and domestic judicial systems, cooperation, the impact on affected communities, and the interaction between peace and justice. South Africa is working jointly with the Danish Government on a paper on positive complementarity. It is important in the lead up to the Review Meeting that African state parties and the AU consider how to usefully ensure that their various concerns and views are also tabled at the stocktaking exercise.

Conclusion

The standoff by the ICC and the AU often overshadows one fundamental fact: that the continent is home to landmark efforts to address impunity. Several African states have been at the forefront in dealing with impunity. But while we can cite many good examples, we cannot continue to defend states who fail to protect citizens. Instead, the AU must work more effectively to enforce accountability; it should translate its declarations on the fight against impunity into concrete actions that result in the protection of Africa’s citizens. The Court’s strongest supporters are in Africa for good reason – they lack confidence in domestic institutions to deliver justice. This fact must never be lost in the heat of the debate about the ICC’s role in Africa.

*Comfort Ero is the Deputy Director of the Africa Program at the International Center for Transitional Justice (ICTJ). Prior to the ICTJ, she was Policy Advisor to the Special Representative of the Secretary General of the United Nations Mission in Liberia (UNMIL), as well as a Political Affairs Officer for the same Mission. Previously she was Project Director at the West Africa office of the International Crisis Group. In London in the 1990s she conducted research at King’s College, University of London and the International Institute for Strategic Studies. She holds a Ph.D. in International Relations from the London School of Economics, University of London.

This paper is adapted from a presentation made at the Wolpe Open Dialogue in Cape Town on 17 November 2009. I would like to thank my ICTJ colleagues for their comments: Mirna Adjami, Suliman Baldo, Olivier Kambala, Miranda Sissons and Marieke Wierda).

( For a PDF file of this essay, please click here)

[2] The Prosecutor is waiting for the Court’s Pre-Trial Chamber to authorise his request before he can commence investigations.

[3] See the Communiqué of the 142nd meeting of the African Union Peace and Security Council, 21 July 2008, psc/min/comm(cxlii). The AU has continued to maintain this line.

[4] At the AU ministerial meeting in November 2009, Africa State parties agreed that “there is need for clarity as to whether immunities enjoyed by officials of non state parties under international law have been removed by the Rome Statute or not”. Recommendations of the Ministerial Meeting on the Rome Statute of the International Criminal Court, 6 November 2009, Min/ICC/Legal/Rpt. (II), p. 1.

[5] See Decision of the Second Meeting of State Parties to the Rome Statute of the International Criminal Court, Assembly/AU/Draft/3 Dec (XIV). para. 8, p. 2.

[6] The Report of the African Union High-Level Panel on Darfur, Peace and Security Council, 207th Meeting at the Level of the Heads of State and Government, 29 October 2009, p. xvi, para. 249, p. 64 and para. 255, p.69.

[7] Aside from recommendations on Article 16, 27 and 98, another relates to procedural issues, namely guidelines for the exercise of prosecutorial discretion by the ICC Prosecutor. See Recommendations of the Ministerial Meeting on the Rome Statute of the International Criminal Court.

[8] Second Meeting of State Parties to the Rome Statute of the International Criminal Court, para. 4, p. 1.

[9] The AU recommendation that the Prosecutor be asked to review its policies to consider promoting peace in deciding whether to open investigations and report to the ASP was agreed upon; however the wording was revised to gain ASP acceptance.

The support of African states for the ICC was crucial both during and after the Rome Diplomatic Conference in 1998, where delegates debated the wording of the ICC Statute. Three African states thereafter referred situations in their countries to the Court. The Minister of Justice of Kenya also invited the Prosecutor to use his powers under Article 15 to seek permission to investigate the crimes committed during the post-electoral violence in 2007. African states should therefore, as they did in Rome and subsequently, stand on the side of African victims, recognize that justice lays a firm foundation for lasting peace and act fully in support of the ICC. Initiatives that could harm the integrity of the Rome Statute such as considering the creation of a regional criminal court, might undermine the effectiveness of the ICC and its efforts to deliver justice to victims of the worst imaginable crimes in Africa and elsewhere.

Recently, the extent of African support for accountability rather than impunity has been clear. In July 2009 the African Union (AU) reiterated “the unflinching commitment of Member States to combating impunity and promoting democracy, rule of law and good governance throughout the continent”. The ministers participating in the session of the AU–EU Troika on 14 October 2009 “underlined their commitment to fighting impunity at the national, regional and international level in conformity with the principles of international law”. The communiqué issued on 3 February 2010 reemphasised the AU’s “commitment to justice and its total rejection of impunity”. Widespread African support for the ICC has recently been highlighted by an Institute for Security Studies briefing paper in October 2009, following extensive consultation with African civil society. A number of African states, including Botswana, Kenya, Senegal, and South Africa have stated that they would comply with their obligations under the Rome Statute to arrest and surrender anyone named in an ICC indictment, and Burkina Faso recently adopted legislation implementing the Rome Statute.

However, in many instances AU members have raised concerns that “the search for justice … [should] be pursued in a manner not detrimental to the search for peace”. The contention that justice must be sacrificed to ensure peace and reconciliation must be rejected. Sustainable peace is based on re-building a society in which individuals can live their lives free from fear; in which perpetrators know that impunity will not be tolerated; and in which victims can see the perpetrators brought to justice and be provided with protective measures and reparations. As UN Secretary-General Ban Ki-moon said in a speech delivered on the 60th anniversary of the Geneva Conventions, “the debate on how to ‘reconcile’ peace and justice or how to ‘sequence’ them has lasted more than a decade. Today, we have achieved a conceptual breakthrough: the debate is no longer between peace and justice but between peace and what kind of justice”.

The Rome Statute is not perfect. It represents a delicate compromise, balancing many unrelated articles and provisions. However, at this early stage in the ICC’s history, any attempt to make substantive changes would be very risky and could destabilize the architecture designed in Rome. We should therefore reject the recent submission by South Africa on behalf of the AU to amend Article 16 of the Rome Statute in order to allow the UN General Assembly to defer cases for one year when the Security Council had failed to take such decision within a specified deadline. Any proposal of this nature sense must be opposed as it would allow the General Assembly to stand in the way of international justice.

Another set of concerns over recent reactions to the ICC in Africa regards the issue of immunities. Each state party to the Rome Statute has a legal obligation under Article 27 of the Statute to cooperate with the arrest and surrender of any person charged by the ICC, even if the accused is a head of state. However, the AU decision on 3 July 2009, calling upon states not to cooperate with the ICC in the Bashir case, could be misinterpreted as a sign that African states parties to the Rome Statute oppose the Court’s work to bring to justice those responsible for committing the worst imaginable crimes against African victims.

Although an analysis of the proposal to give the African Court of Justice and Human Rights jurisdiction over crimes under international law such as genocide, crimes against humanity and war crimes goes beyond the scope of this essay, such a decision would comport a huge cost to the AU, distract the African Court from an effective pursuit of its mandate, and duplicate the work of the ICC, which already enjoys active contributions and widespread support among African states (30 out of the 110 states parties to the Rome Statute and 5 out of 18 ICC judges are African). Furthermore, the perception among African civil society seems to be that the proposal regarding the African Court has been put forward to score political points rather than address the need for justice and international accountability for crimes under international law committed in Africa.

AU member states that have ratified or signed the Rome Statute must now commence a constructive dialogue with the ICC, to promote greater understanding of its jurisdiction and role, and improve cooperation. In this light, the AU Assembly’s encouragement to member states in its 3 July 2009 decision to improve state-to-state cooperation in the investigation and prosecution of crimes under international law should be greatly welcomed. Although there are a number of regional treaties providing for extradition and mutual legal assistance, there is no single international or regional treaty that has effective extradition and mutual legal assistance provisions with regard to all crimes under international law. The members of the AU should begin consultations internally and with the ICC on how to take this proposal forward.

The stock-taking component of the Review Conference this year offers an unparalleled opportunity for states to assess how vigorously and effectively the ICC has been fulfilling its responsibility to investigate and prosecute crimes under international law committed against victims when their own states fail to do so. It also is an unparalleled opportunity for each state participating in the Review Conference to assess how well it has been fulfilling its own complementarity obligations to investigate and prosecute these crimes and then to rededicate itself to bringing those responsible to justice. In short, Africa needs to re-discover its enthusiasm for the ICC as a necessary part of a comprehensive, long-term global action plan to end impunity.

*Valentina Torricelli is Assistant Legal Adviser in the International Justice Project, Amnesty International: vtorrice@amnesty.org

( For a PDF file of this essay, please click here)

References

Amnesty International, International Criminal Court: Security Council renewal of unlawful Resolution 1487 providing impunity for peace-keepers would be a further set-back for international justice, AI Index: IOR 51/006/2004, May 2004, at http://www.amnesty.org/en/library/info/IOR51/006/2004/en.

Amnesty International, Ending impunity: Developing and implementing a global action plan using universal jurisdiction, AI Index: IOR 53/005/2009, October 2009, at http://www.amnesty.org/en/library/info/IOR53/005/2009/en.

Amnesty International, International Criminal Court: Concerns at the eight session of the Assembly of States Parties, AI Index: IOR 40/011/2009, October 2009, at http://www.amnesty.org/en/library/info/IOR40/011/2009/en.

Amnesty International, International Criminal Court: The Contribution Africa can make to the Review Conference, AI Index: IOR AFR 01/017/2009, October 2009, at http://www.amnesty.org/en/library/info/AFR01/017/2009/en.

13th Africa-EU Ministerial Troika Meeting, Addis Ababa, 14 October 2009, at http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/en/er/110576.pdf.

African Union, Communiqué on the 3 February 2010 Judgment of the International Criminal Court Appeals Chamber on Darfur, Addis Ababa, 4 February 2010, at http://www.africa-union.org/root/UA/Actualites/2010/fev/Communique%20Feb%204%202010%20eng.pdf.

Assembly of the African Union, Assembly/AU/Dec. 243-267 (XIII) Rev.1, Thirteenth Ordinary Session 1 – 3 July 2009, Sirte, Great Socialist People’s Libyan Arab Jamahiriya, at http://www.africa-union.org/root/au/Conferences/2009/july/summit/decisions/ASSEMBLY%20AU%20DEC%20243%20-%20267%20%28XIII%29%20_E.PDF.

Institute for Security Studies, Briefing paper on AU meeting 3-6 November to prepare for ICC Review Conference, 22 October 2009.

“Kenya backs poll violence trials”, BBC World, 2 October 2009, at http://news.bbc.co.uk/1/hi/world/africa/8286733.stm.

Press Conference by the Prosecutor of the International Criminal Court Luis-Moreno Ocampo, 26 November 2009, at http://www.icc-cpi.int/NR/rdonlyres/21A59DA2-F207-4A69-96D9-E445311BBB5C/281314/OTPNotesfortheMediaBackgrounderonly26112009FINALEN.pdf.

Statement by Representatives of African Civil Society and the Legal Profession on the Implications of the African Union’s Recent Decisions on Universal Jurisdiction and the Work of the International Criminal Court in Africa, 11 May 2009, at http://allafrica.com/stories/200906040135.html.

Statement Expressing African Civil Society Support for International Justice, Kampala, 29 May 2009.

UN Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 15 June-17 July 1998, Rome, speeches and statements available at http://www.un.org/icc/index.htm.

UN Secretary General, SG/SM/12494/L/T/4417/HR/5002, 26 September 2009, at http://www.un.org/News/Press/docs/2009/sgsm12494.doc.htm.

“denounce the International Criminal Court (ICC) and refuse to take action on the Court’s order that should Sudan’s President Omar al-Bashir land in their territories, he should be arrested, and extradited for prosecution by the ICC, for crimes against humanity, allegedly committed in the Darfur region of southern Sudan”.

This essay argues that despite the fact that African leaders have subscribed to the ICC Treaty, emerging developments show that African leaders have resorted to protecting themselves, implicitly sanctioning human rights violations. As a result, they continue to spread a protective umbrella over their peers such as Bashir, even when there exists strong evidence of genocide in the Darfur region,[1] and mass displacements continue unabated.[2]

It is important to note that in 2000 the leaders in the Organization of African Unity[3] (OAU) created the African Union[4] (AU) with the coming into effect of its Constitutive Act.[5] The new institution showed determination to embark on reform. The Mechanism for Conflict Prevention, Management and Resolution under the OAU was changed to the Peace and Security Council (PSC), as a “standing decision-marking organ for the prevention, management and resolution of conflicts.”[6] The PSC enshrines “the rights…to intervene in a Member States pursuant to a decision of the Assembly”[7] in respect of grave circumstances, namely war crimes, genocide and crimes against humanity, in accordance with Article 14 (h) of the Constitutive Act.”[8] The AU also established a standby force.[9] Among the functions of the Standby Force is to intervene in countries where there is a “grave circumstance”, at the request of a member state, to restore peace and security.[10] Additionally, the force can provide humanitarian assistance to civilians suffering in conflict situations and in natural disasters.[11] Upon the coming into force of the ICC, African leaders endorsed it, ascribing in their majority by having thirty signatories, and by signing the Dakar Declaration.[12]

These developments solidified the AU’s move away from the doctrine of non- intervention in the territorial integrity of each other’s countries. They were hailed by human rights activists all over Africa and seen as recognition of the real threat posed by inaction which creates regional insecurity in Africa. There was hope that African countries would take the lead in intervening to end brutal ethnic and political suppression and civil wars by African leaders. The AU resolved that it would “take rights seriously”, in line with the emerging norm of “humanity first”; and replacing “the culture of impunity with the culture of accountability….”[13] This transformation was supposed to send a strong signal that African leaders could no longer hide behind the principles of state sovereignty and non-intervention to oppress their own people.

So, why should the same leaders of Africa who only a few years earlier had shown such resolve to end mass murder, genocide, and heinous crimes within African countries now band together to defend one of their own kind? Is it because they see the ICC as a non-African institution designed to prosecute mainly Africans?

One reason may be that the prosecution of former Liberian President Charles Taylor and the indictment by the ICC of the Sudanese President illustrates the beginning of a trend against which they must unite. Consequently, African leaders have argued that the indictment was mis-timed because the plight of the people of Darfur would worsen with reprisals from Bashir-supported militia. This argument acknowledges that crimes against humanity were underway in Darfur, but those crimes against the hapless people are swept under the carpet, and rationalized according to the outdated doctrine of territorial integrity and sovereignty concerns. The argument does not hold water, of course. For if the Sudanese president were arrested and prosecuted, it would send a message to whoever would succeed him, and in turn that person would be unlikely to wreak vengeance on the Southern Sudanese people. For instance, lessons learned from the indictment of Charles Taylor have seen the West African sub region become relatively quiet in terms of heinous crimes committed by leaders against innocent civilians. Even as recent events in Guinea-Conakry raised concerns, reference to mechanisms that are geared to stamping out impunity such as the Special Court for Sierra Leone and the ICC quickly saw the quelling of what would have otherwise become a clampdown on civil society and a full blown crisis.

Now, the African leaders are calling for a negotiated settlement to the almost endless conflict in Darfur. In doing so, they are displaying insensitivity to the enormous suffering of ordinary people who, even in the best of times, are periodically murdered, and frequently displaced into fetid refugee camps, with little or no access to health care, or food. Justice has been slaughtered on the altar of international diplomacy. In my view, African leaders refer to “negotiations” merely to buy themselves time, so that their fellow Head of State in Sudan will be strengthened. With time, they hope the ICC net will be broken, and they will thwart its wide sweep that might catch them when they suppress their own people and govern outside the dictates of the rule of law.

African leaders appear repulsed by what they perceive as the ICC treating them as if they were still colonies of Europe. They appear united against the ICC to protect their dignity as nations, and, with a not too subtle revulsion against what they consider to be a biased stance of the ICC. In taking up this position, African leaders have apparently forgotten that “individual state sovereignty can be overridden whenever the behavior or the state even within its own territory threatens the existence of the elementary human rights abroad and whenever the protection of the basic human rights of its citizens can be assured only from the outside.”[14] The era of individual sovereign discretion on how to treat civilians in a given country is gone and what operates now in the international arena is an imperative to protect human rights.[15] This imperative enshrines the responsibility of the international community to protect vulnerable groups in conflicts if the states in question fail to do so. Hence, African leaders have individual and collective responsibility to ensure that rules of jus cogens, especially the rule on the prevention of genocide, are upheld.[16]

If African leaders have legitimate concerns over an affront to the dignity of African nations, they have other options like the platform they created many years ago, namely the Ezulwini Consensus, which resolved that the United Nations Security Council should be reformed, including expanding its membership.[17] But one of those options must never be to undermine the international global justice mechanisms which stand on universal principles of justice and which cannot be particularized to one group of people. There is no “African Justice” or “European Justice” or “Asian Justice” – there is “Universal Justice” which must abhor not only international economic injustice, but must be uncompromising against all forms of crimes against humanity. What the leaders of the continent should do is to table an alternative mechanism to the ICC that will uphold the prevention of war crimes, crimes against humanity and genocide. Or if the AU can build up a case of injustice, even, racism, against the ICC then they have the option of the platform of the Ezulwini Consensus. African representation in the Security Council could lay to rest some of the cries of injustice in the international justice system today, of which the ICC’s indictment of the Sudanese president is seen as a manifestation of.

With the present stance, indisputably, Africa is reverting to a past where African leaders have colluded with each other to slaughter their kinsmen with impunity. The AU appeared to have escaped from its murky depths after former Tanzanian President Julius Nyerere derided it as “a trade union of the current Heads of States and Governments, with solidarity reflected in silence if not in open support for each other”. Now, in its position on the ICC’s decision to indict the Sudanese President, the AU has regressed to a position that allows gross violations of human rights within each other’s countries.

*Emmanuel Saffa Abdulai is a Barrister and Solicitor at Law in Sierra Leone and an LLD Candidate in International Law. He is also the Executive Director of Society for Democratic Initiatives (SDI) working on transitional justice issues in Sierra Leone. Prior to his working for SDI, he worked at both the Truth and Reconciliation Commission in 2004 and the Special Court for Sierra Leone in 2006 and 2007. He can be contacted on measdrb@yahoo.co.uk

( For a PDF file of this essay, please click here)

[2]Nsongurua J. Udombana, “When Neutrality is a Sin: The Darfur Crisis and the Crisis of Humanitarian Intervention in Sudan,” Human Rights Quarterly 27 (2005), ,” 1154-55. Also see Nsogurua Udombana, “Pay Back Time in Sudan? Darfur in the International Criminal Court,” Tulsa Journal of Comparative & International Law 13 no. 1 (2006), 2.

[3] The Organization of African Unity (OAU) came into effect in 1963 as a regional

[4] Hereinafter referred to as the AU

[5] Constitutive Act Supra

[6] Nsongurua J. Udombana, When Neutrality is a Sin” The Darfur Crisis and the Crisis of Humanitarian Intervention in Sudan , 1151, (2005)

[7]The Assembly of Heads of States and Government of the African is called “The Assembly” and is the highest decision making body in the AU, which composed of heads of states or governments or representatives of governments.

[8]PSC Protocol, Supra 7, art. 13 (1

[9] Udombana,  Supra 8, quoting PSC Protocol 13 (2)

[10] PSC Protocol Supra 7, Article 13 (3) (c).

[11] Ibid Art. 13 (3) (f)

[12] The African Commission on Human and Peoples’ Rights (“the Commission”) in collaboration with the African Society of International and Comparative Law and Interights organised a seminar on the right to fair trial from 9-11 September 1999 in Dakar, Senegal.

[13] Supra 110, at 1259

[14] Michael J. Smith, Humanitarian Intervention, An overview of the Ethical Issues (1998) pg 45

[15] Mahmood Mamdani’s book Saviors and Survivors: Darfur, Politics and the War on Terror, Pantheon 2009.

[16] Convention on the Prevention and Punishment of the Crime of Genocide, Adopted by Resolution 260 (III) A of the U.N. General Assembly on 9 December 1948. Entry into force: 12 January 1951.Article 1

[17] The Common African Position on the Proposed Reform of the United Nations: “The Ezulwini Consensus”  Ext/EX.CL/2 (VII) pg 9