**

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

I concede that prosecuting perpetrators of human rights violations is definitively a viable mechanism for combating impunity. In appropriate cases, the criminal process can be deployed to engineer compliance with the law and to deter would-be perpetrators of human rights violations. In this essay, however, I argue that the objectives of using criminal prosecution to reestablish social equilibrium and promote reconciliation, though laudable and rhetorically inspiring, are simply unattainable. The hope that international criminal prosecutions will reconcile mutually distrustful ethnic groups with a long history of reciprocal antagonism is quaint, perhaps even naive. International criminal prosecutions launched in Africa amid much publicity and high expectations are on the verge of irrelevance. After more than ten years of international criminal prosecutions in Africa, it is becoming increasingly obvious that criminal prosecution is a weak reed on which to hoist the strategy of reestablishing social equilibrium and reconciling intergroup hostilities in post-conflict African societies. A confluence of systemic and environmental factors has whittled down the influence of international criminal prosecutions in Africa.

First, efforts to use criminal prosecution to modify behavior and contribute to social equilibrium rest on a failure to appreciate that causes of conflict in Africa cannot be resolved through the criminal process. The overarching goal of criminal prosecution is to apportion blame and punish the guilty. Criminal prosecutions are not designed to address or alleviate the underlying social problems that lead to and perpetuate violence. Violence may be more pronounced in some parts of Africa, but its causes remain mostly the same in virtually every African country: ethnic distrust, corruption, marginalization of ethnic groups and inequitable allocation of a nation’s resources. The frequency, resilience and indeed the incentive to resort to violence will shrink by addressing the underlying causes of violence. These problems cannot be addressed comprehensively through the prosecution of selected perpetrators of human rights violations. The underlying culture that sustains social disequilibrium must be counteracted if accountability is to take roots in Africa.

Second, criminal prosecution is a poor vehicle for restoring social equilibrium in increasingly fragmented societies where violence is viewed as a legitimate means to attain desired objectives. In a fledgling democracy fractured along ethnic lines with a history of mutual ethnic hostilities, international criminal prosecutions may end up becoming an impetus for, not a deterrent to, extra legal violent conduct. Some warlords have apocalyptic goals and readily resort to violence to mould the society according to their image. Faced with the threat of prosecution, and sensing their inability to negotiate with a determined world community, warlords with everything to lose may decide that it is in their best interest to fight till the end. Also, criminal trials can have adverse impacts on relationships. They can often involve accusations and counter accusations, rehashing of facts that rekindle old hostilities and reigniting passions that ultimately make reconciliation difficult.

Third, the causes of violence in Africa are considerably different from what leads to deviant behavior elsewhere, and are therefore more difficult to address via criminal trials. The dynamics of violence in Africa challenge the expectations of a Western-type criminal justice system and raise serious questions about the assumptions that undergird criminal prosecution. Violence in Africa is the product of a different phenomenon; Rwanda, Sudan and Sierra Leone result not from deviant behavior of citizens but from tensions at the armature of the society: ethnic distrust. Its dynamism is sustained by the belief that violence in defense of ethnic interests is a moral imperative, even a legal obligation. Decades of ethnic distrust and rivalries coupled with the central government’s inability to deal fairly with the ethnic groups provide further impetus for the apocalyptic dynamism of violence. The traditional criminal process fails to address the broad range of ways in which situational cultural pressures exacerbate violence. Violence created by underlying social problems and perpetrated by several citizens with varying degrees of culpability cannot be addressed by criminal prosecution designed to address individual misconduct, especially in cases where the causes of deviant conduct reside not at the individual level but at the communal level. Moreover, whether international criminal prosecution actually serves as deterrence is unclear because its effect cannot be empirically verified.

Fourth, the effectiveness of international criminal prosecutions depends on support both from the public and state governments. In Africa, public support has been low because of negative attitudes of African leaders towards the West shaped by historical circumstances, especially the adverse effects of colonialism. Public support continues to dwindle because of prevailing attitudes which view international criminal tribunals as agents and symptoms of imperialism, and as attempts by the West to reestablish influence over Africa. The effectiveness of international criminal prosecutions also depends on support from African governments which has been less than enthusiastic. African leaders are reluctant to support the prosecution of their benefactors, tribesmen or warlords who have the capacity to cause troubles for the fledgling government. Whether ad hoc or permanent, international criminal tribunals based on Western notions of justice, can do very little to reestablish social equilibrium and arrest the advancing decrepitude threatening to engulf Africa.

I acknowledge that international criminal prosecution can play significant roles in promoting accountability in Africa, so long as it is properly structured and undertaken with some sensitivity to the sentiments and feelings of Africans who live with the painful realities of violence. But, for all the above reasons, international criminal prosecutions have neither delivered on the promise of social equilibrium nor served as a chastening influence on impunity in Africa. Wholesale adoption of Western models of justice may not work in Africa given the prevailing social, political and cultural realities. Concerns for accountability offer no license for the international community to arrogate to itself the right to determine what is best for Africa. Imposing the preferences of the international community without due consultations with affected African nations will revive poignant painful memories of colonialism and reignite negative sentiments that will ultimately undermine efforts to promote accountability.

I urge all those involved in the fight against impunity in Africa to rethink the deeply flawed assumptions about the capacity of international law to bring about transformative changes in the conduct of citizen and group relations in Africa. Violence is so interwoven with the maladies in the continent – corruption, poverty, ethnic tensions – that it is doubtful that criminal prosecutions alone can serve as a chastening influence on the behavior of the leaders or the citizens trapped within the society. Building an effective strategy to reestablish social order in post-conflict African societies requires an understanding of the idiosyncratic environmental factors that animate violence, as well as recognition that criminal prosecutions cannot address the social pathologies that have disfigured Africa. It is these pathologies that will define and shape Africa’s future, not the legacy of criminal prosecutions.

It is my submission that a single-minded pursuit of criminal prosecutions as the panacea to impunity in Africa, regardless of the anguishing realities, carries the dangerous and unacceptably high risk of further deterioration, anarchy and bloodshed in Africa. It is important, therefore, to confect a strategy that can simultaneously promote accountability and address the social pathologies that undermine efforts to reestablish social equilibrium and reconciliation.

*Okechukwu Oko is a Professor of Law at the Southern University Law Center, Louisiana.

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