INGRID ROESTENBURG-MORGAN

With ICC proceedings underway against the newly elected Kenyan President, Uhuru Kenyatta, President Laurent Gbagbo and his wife Simone Gbagbo of Ivory Coast and with two arrest warrants issued against Omar Al Bashir, President of Sudan, the International Criminal Court has come heavily under fire. To date, the Office of the Prosecutor has initiated investigations that have exclusively focused on the African region. These developments have led to rigorous discussion and debate on the legitimacy of the Court’s mode of operation in the African context, particularly, whether the ICC as an institution is capable of meeting the notions of justice as desired by Africans. Adjacent to this, there are those proponents who maintain that the Prosecutor has failed to place peace over justice first, and has as such ignored the true dimensions of the conflicts occurring on the African continent. Perceptions of the Court are mixed and varied in Africa, ranging from the Court representing a neocolonial institution targeting Africa, to an institution promoting accountability and combatting impunity on the continent. This short opinion paper will seek to sketch out the overall impressions and problems the Court faces in the wake of possible African withdrawal by some African States from the Statute of Rome. As such, its aim is to set the stage for an upcoming multi-disciplinary conference set for May of 2014 in The Hague, The Netherlands. The conference intends to offer a platform for African perspectives and propose solutions that resonate more closely with general African perceptions of ‘justice’. Is the International Criminal Court targeting Africa? This is a question which has sparked ongoing debate and criticism in the international community over the last few years. Through a series of events that catapulted the relationship between the Court and Africa to an all-time low, what may be identified as a stalemate has developed. A multi-disciplinary conference is scheduled to take place to address the issue. The conference is entitled Africans and Hague Justice: Realities and Perceptions of the International Criminal Court in Africa This platform will seek to highlight the perceptions and realities of the ICC in Africa (May, 2014, The Hague). Through a series of events that catapulted the relationship between the Court and Africa to an all-time low, what may be identified as a stalemate has developed. A number of turning points have defined the current relationship. In 2009 and 2010 two arrest warrants were issued against the president of Sudan, Al-Bashir, for the crimes of genocide, war crimes and crimes against humanity. Although the arrest warrants were issued and brought into effect, Al-Bashir has remained a free man. Backed by the African Union (hereafter AU), which openly called on its member States to balance its obligations to the Court, African States have undoubtedly shown allegiance to the former. Evidenced through many visits Al Bashir already made to numerous African countries such as Egypt, Chad, Djibouti, Kenya, Libya, and Nigeria, African States have responded in open defiance to the arrest warrants issued for the Sudanese President. To make matters worse, at the end of 2010, ICC summonses were issued against six prominent Kenyan politicians for their alleged involvement in the 2007-2008 post-election violence. In a bid to block the trials at the ICC, Kenya made a request to the United Nations Security Council (hereafter UNSC) to defer the ICC cases in the hope that it could try its politicians locally. This was done with the support of the AU. Interestingly enough, Kenya decided to approach the UNSC directly under article 16 of the Rome Statute rather than first challenging the admissibility of the case under article 19 of the Rome Statute. The UNSC refused to grant the deferral with four of the six originally indicted individuals, confirmed to stand trial at the ICC. With the ongoing commotion surrounding the Kenyan trials at the ICC and the 2013 Kenyan elections that were not too far off, popular support for the Court declined in Kenya. As a result, two of the defendants in the running for the presidential elections, were declared president and vice president of the country. This unexpected turn of events now means that Kenya’s new democratically elected president, Kenyatta, and vice president, Ruto, will stand trial in front of a Court which the majority of Kenyans oppose. At the time of writing this article, further developments have resulted in Kenyan MP’s approving a motion to leave the ICC. The Kenyan Parliament now has 30 days to formally decide whether Kenya will pull out of the Rome Statute. Further downward developments contributing to the negative perception of the Court in Kenya have included continued AU support for Kenyatta during the ongoing ICC process and outright disapproval of the current ICC prosecutions opened against him. In fact, recently, the Prosecutor of the ICC, Fatou Bensouda, called on the Kenyan State to cooperate with the Court, as its investigatory efforts were hampered and witness testimony compromised in the region. This lack of cooperation with the Court led to the dropping of charges against one of the co-accused, Francis Muthaura, for lack of evidence available to prosecute him. In a similar vein, and in keeping with ICC-Kenyan developments, ICC involvement in Côte d´Ivoire has done little to change the impression that the Court has left in Africa. When Laurent Gbagbo, former President of Côte d’Ivoire refused to hand his Presidency over to his opponent Allasane Quattara, after the much contested run-off elections that caused a political divide in the country, he was forcefully arrested and handed over to the ICC by pro-Quattara forces with the help of France. This placed the Court in a contentious light, because its focus relied solely on the crimes committed by Gbagbo’s forces, creating the impression that they alone were responsible for the crimes committed and not Quattara’s.

 

gbagbo-a-l-onu1-279x350
Laurent Gbagbo: from Head of State to ICC detainee.

The ICC´s reputation in Africa affected

Rather than undertaking investigations into the violence committed by both camps, the ICC dug itself into a deeper quandary by ignoring the opposition party’s involvement. Vilified through the impression it carved out for itself in Africa, the Court has since come to be seen as a judicial institution lacking impartiality and outwardly manifesting its political bias through its exclusive African caseload. This is a perception held by a considerable number of academics and Africans alike. The events since have placed a blemish on the reputation of the Court in Africa. This perception was further enhanced by the arrest of Simone Gbagbo, wife of President Gbagbo. In very controversial photographs taken, and made public upon their capture, both Gbagbo and his wife were depicted disheveled, bewildered, giving off the impression that they had suffered torture at the hands of their captors. These events have not strengthened the reputation of the Court in Africa. Part of the criticism leveled against the ICC in the Ivorian situation was that it acted as a facilitator for the Gbagbo arrests and supported French economic interests in the Gbagbo regime overthrow. These stapling up of events have not contributed to a positive image of the ICC in Africa. Rather it has inculcated amongst many the impression of a tool used by Western powers to re-invade Africa and capture their leaders on whim. A re-invention of colonialist policy, which once again overlooked Africans, their struggle to self-determination and recognition by the international community, are some of the more popular perceptions of the Court these days. Critics have held that because of Africa’s vast mineral resources, and because of the new ´Scramble for Africa´, the Court has a vested interest to intervene on the continent more readily. This argument links up to the ICC’s alignment with Western countries and their geo-political interests on the continent. Because of the strong divide in power relations between the West and the Global South, many feel that the Court is more likely to intervene unabashedly in Africa, because African States are politically much weaker, in comparison to their Western or Eastern counterparts. On the other side of the spectrum, there are some who have criticized the Court for ‘dancing to the tunes of corrupt African leaders’. Self referrals made to the Court by African leaders and subsequent ICC interventions have undermined peace efforts at the expense of ‘justice’, with destabilizing effects in various regions. This was the situation surrounding the prosecutorial policy in Uganda and Sudan, where it was averred that the prosecutorial strategy adopted was part of a greater plan to legitimize the ICC. This strategy included de-politicizing and legalizing the interventions of the Court in those regions. The then Prosecutor, Ocampo, emphasized the necessity of ICC prosecutions to ensure justice for the affected communities. Ironically enough, it would appear that this same strategy, to legitimize the Court through its choice of prosecutions, might have, in itself supposedly compromised the legitimacy of the Court because the interests of peace were given ‘a back seat.’ On face value, there appear to be several factors identifiably contributing to the breakdown of this relationship:

Issues of Sovereignty and Complementarity

It is clear that African States feel threatened by the number of Court interventions on the African continent. An impression might be created that Africans States can be more easily violated or that African leaders are not competent enough to manage their own affairs and hence sovereignty. This may leave negative imprints in the minds of Africans in relation to the Court. Additionally, the Court has been reluctant to allow African States the right to undertake their own investigations and prosecutions, which in fact should be the case under the principle of complementarity. If a state is ‘able and willing’ to do so and if it has a reasonable and functioning judiciary, there should be no reason why the case cannot be tried locally. With regard to Kenya, Sudan, Uganda and Libya, the Court has been cautious to allow these countries the opportunity to undertake their own judicial proceedings. Perhaps, if the Court would show more confidence in the capacity of its member States to carry out their own investigations and prosecutions, they might encourage States to strengthen their domestic judiciaries on their own and thereby give them the assurance and confidence of a state guaranteeing the best interests of their citizens in accordance with their own traditions of justice.

Issues Relating to the Definition of Justice

Practice has taught that in many of the African situations the promotion of peace is vital to the security of justice. This can be associated with the convoluted definition of justice, which may differ for every person. Traditional elements of justice in many African societies focus on restorative principles of justice, rather than a retributive type of justice. Using the experiences from just a few African societies recovering from mass violence, we can identify some commonalities. For instance, in the Ugandan situation the traditional practice of mato oput[i] was advocated for putting an end to the 20 year long conflict between the Lord’s Resistance Army (hereafter LRA) and the Ugandan government. We have seen this re-emerge in Uganda, now with its newly created Special War Crimes Division which proffers amnesty to LRA soldiers in exchange for exemption from prosecution (See Thomas Kwoyelo Case). Similarly, if one considers the Rwandan genocide in its aftermath, traditional elements of local justice were combined with retributive principles to create a hybrid truth finding and prosecuting mechanism known as GacacaGacaca was considered adequate enough to deal with the scope of the trials and the types of crimes committed tailored to Rwanda’s genocidal legacy. South Africa also sought to use more restorative elements of justice with the fall ofapartheid in keeping with the philosophy of Ubuntu central to its mission.[ii] The Truth and Reconciliation Commission offered amnesty in exchange for confessions by the then Nationalist Party government, in an attempt to reconcile South African society by focusing on forgiveness and by incorporating the influence of community spirit in its deliberations. These experiences are indicative of the strong need for reconciliation, peace and truth finding, common in the pursuit of justice which are characteristic of many African societies. It should therefore be an important consideration by the Prosecutor to consider whether or not to proceed with a prosecution in an unstable region, when peace efforts are compromised in exchange for the prosecution of only a few, for the sake of the many. Justice does not necessarily imply that every society wants to use a trial style or jury style retributive system to mete out punishment. The African experience shows otherwise, not necessarily dismissing punishment altogether, but focusing essentially on truth finding and reconciliation, in particular when societies are ravaged by the effects of massive conflict.

Issues of Prosecutorial Discretion

Officially, the ICC has opened investigations in eight countries, all in Africa. Currently there are 24 Africans accused facing trial at Court. Clearly as part of the current prosecutorial policy at the ICC, the African region has been singled out. This has in essence been the main contention of critics, i.e. that the Court as a World Court has targeted Africa only. Indeed, while Africa is a continent fractured by colonialism and its remnants, which is a source of enmity aiding in conflict and impunity, the ICC’s exclusivity in Africa cannot be justifiably, let alone honestly, defended. It is true that the Court has been set up to fight impunity throughout the world, but so far it has done so selectively, ignoring conflicts in other parts of the world. Given the strong political nature of the current prosecutions and the fact that powerful individuals in the West remain free, despite their violations of international law, the Court continues to assert that it is an impartial judicial institution promoting the rule of law and protecting the rights of victims in Africa first, even though its practice dictates otherwise. This was one of the main criticisms raised against the previous Prosecutor of the Court, Moreno Ocampo. Now however, with Fatou Bensouda at the helm, it is anticipated that more circumspect decisions will be taken. This does not mean that less interest should be devoted to Africa per se, but that a better grasp of each situation be wielded during the prosecutorial decision-making process. It is clear that these issues, like many others, need to be explored for the Court to regain its support in Africa. The ICC Review Conference, held in Kampala during 2010, has been slow to effectively address some of the concerns that African leaders through the AU, have been voicing. Reconciliation is needed particularly between the AU and ICC because the AU has become to represent the mouthpiece for many Africans. If tensions persist, then African withdrawal from the Court may become a reality, resulting in the ICC losing a formidable part of its constituency. Already, a draft proposal is under consideration by AU member States, to extend the jurisdiction of the African Court to cover international crimes. Many have said that this has been in response to the prosecutions initiated in Africa. The stark reality for African States is that if they decide to pull out from the Rome Statute, they will also lose out in the long run. The ICC is needed in Africa, because of the deterrent effect on crime it has on the continent and its presence and influence mean that those in higher positions of authority will think twice before violating principles of international law. It is therefore important for both the ICC and Africa to address issues that could bring back calm to these ‘troubled waters’.

Multi-Disciplinary Conference in The Hague, 2014

In light of these and many other underlying tensions, a multi-disciplinary conference is scheduled to take place to address some of these concerns. This platform will seek to highlight the perceptions and realities of the ICC in Africa. “Thematic angles will include, the ICC’s influence on national politics as well as interstate relationships in Africa and beyond, the position of the African Union in the African debate on the ICC, the role of ICC bodies such as the African Court in relation to plural judicial systems of African States and the socio-cultural impact of the ICC and its compatibility with other international judicial frameworks. The conference is groundbreaking, in that it aims to reflect the complex and multi-layered perceptions of the ICC from different viewpoints and to reach a better understanding of African sentiment in relation to the Court.”[iii] The conference entitled Africans and Hague Justice: Realities and Perceptions of the International Criminal Court in Africa will be hosted by the Netherlands Association for African Studies, The Hague University of Applied Sciences and the School of Human Rights Research Utrecht, and will take place between the 23rd and 24th of May 2014 at the Hague University of Applied Sciences in The Hague, The Netherlands.

Notes
Mato Oput is a traditional mechanism used in Uganda involving the ritual drinking of a bitter root to promote reconciliation between an aggressor and victim. [i].    Customary concepts such as Ubuntu can be defined as a lifestyle or unifying world view of African societies based on respect and understanding between individuals. It envelops values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective community. [ii].   Call for Papers, Africans and Hague Justice: Realities and Perceptions of the International Criminal Court in Africa, Compiled by the Organising Committee (Froukje Krijtenburg, Abel Knottnerus, Eefje de Volder, Jos Walenkamp and Ingrid Roestenburg-Morgan).