The activities of the International Criminal Court (ICC) have had ramifications across Africa. Four officers of the court were arrested in Libya in late May; the African Union moved its meeting to Addis Ababa as Malawi could not guarantee Sudan’s President El-Bashir would not be arrested under an ICC warrant for alleged crimes against humanity; there is turmoil in Cote d’Ivoire at the prospect of former President Laurent Gbagbo going on trial at The Hague; and two of Kenya’s presidential aspirants, Uhuru Kenyatta and William Ruto, are among four prominent Kenyans the ICC ruled should face trial for alleged crimes against humanity over post-election violence in 2007 to 2008.
The focus on (some say “targeting of”) Africa by the ICC, creating the impression that Africa is the only place in the world where crimes against humanity are committed, has left a sour taste in many African and other mouths. No wonder, international law, again, came under the spotlight at the end of April with the conviction and sentencing of Liberia’s former president, Charles Taylor, by the Special Court for Sierra Leone, sitting in The Hague. (Charles Taylor has since launched his appeal against the sentence).
Over the past five years, there has been a remarkable catalogue of cases at the ICC, drawing in defendants from across Africa. Yet when the concept of an international criminal court was first mooted, few would have guessed that it would arouse such a storm of controversy so quickly.
To drill down on the issues surrounding the whole idea of international jurisprudence, IC Events, a subsidiary IC Publications, the mother company of New African and seven other magazines, held a high-level conference in London in mid-April under the banner: Restorative International Justice – The ICC of the Future. Lea Jabre and Jaye Moni provided this executive summary of the proceedings.
The chief executive of IC Events and IC Publications, Omar Ben Yedder, opened the Restorative International Justice – The ICC of the Future conference at the Royal Commonwealth Society by acknowledging that the day’s discussions were due to a number of factors.
The ICC had been, he remarked, a key theme within the political sphere over the last decade. While the Court’s mandate has, from the outset, been the noble cause of justice, the manner of the execution of the mandate had been called into question, not least by New African magazine, Omar said.
A number of academics, lawyers, and those with political interest from within the ICC as well as NGOs and other inter-governmental groups were invited to participate in the debate in order to stimulate a rich and varied discussion, aimed at creating homegrown solutions to the problems Africa was encountering with the ICC.
The first panel was asked to consider the theme of “Ensuring justice through the ICC: Has the original mandate been achieved?” Chaired by Dr David Hoile, director of the European Sudanese Council, and with a panel comprising of Hon. Lady Justice Sophia Akuffo, the vice-president of the African Court on Human and People’s Rights and a supreme court judge in Ghana; Prof. Stephen Chan, professor of International Relations at London University’s School of Oriental and African Studies (SOAS); Prof. Hans Köchler, the chair of Political Philosophy at the University of Innsbruck, Austria; Dr. David Chandler, professor of International Relations, Centre for the Study of Democracy, University of Westminster, London; and Dr. Carla Festman, director of REDRESS, a London-based human rights organisations, the conference heard Hoile state that the punishment of a crime is a noble aim of society, regardless of the context.
The ICC has been welcomed by emergent and developing countries, yet questions have been asked by strategic powers such as Russia, the USA, China, and India about its legitimacy as signatories to the ICC statute represent only a quarter of the world’s population, and three members of the UN Security Council’s five permanent members do not recognise the ICC. The ICC is therefore seen as an apparatus of international justice that is largely founded upon the assumptions that it produces beneficial effects by enhancing accountability, but this is a hypothesis rather than a proven reality.
So Hoile asked two basic questions: Is the one billion euros in costs justified, since only one case has been completed by the ICC (the conviction in March 2012 of Thomas Lubanga). And (2), does the Court’s competence and actions make matters better or worse for member countries?
The panelists speak
Justice Sophia Akuffo chose to address the question of whether there was the need for new international laws? “I believe there is,” she said. “There might appear to be too much law, but this is not the case here.”
She then commented on the widely-held perception that the ICC is a tool for Europe to subjugate Africa. She believed this was never the original intention, and argued that laws were, and still are, established to obtain a certain process, and the very sight of a former African strongman (or strong woman) being tried on the continent would have a bigger impact in Africa than the same person being tried by the ICC in The Hague. “The law is good, but not as good as it ought to be.”
Prof. Hans Köchler next spoke, talking about the UN. “If you compare the ICC to the UN, they are different,” the professor posited. “The UN is attached to the UN Charter, but the ICC has nothing to do with this Charter. The ICC is based on a treaty. Legally the two are unrelated.”
Kochler said he believed that “the African Criminal Court would be a better name for the Court [the ICC]”. He made reference to Libya, noting that while arrest warrants were issued for Colonel Muammar Al Gathafi by the ICC, no investigation was actually carried out after he was summarily killed.
This, Kochler said, pointed to the fact that “needs” may be different before and after regime change. “If power politics are involved, there is no hope for the ICC to gain legitimacy,” the professor added.
Dr David Chandler was asked if international justice could be achieved? “There is a limit to the law,” he responded. “It cannot be applied in a universal way because it needs to reflect real situations.”
Prof Stephen Chan next talked about what he believes is the misplaced focus of the ICC. The pressing need is for “a unified apparatus” he argued, adding that the ICC’s lack of a truly universal membership impacted negatively on its legitimacy.
Indeed, ultimately, what the first panel highlighted was the ICC’s legitimacy.
Dr Carla Festman was asked to comment on how victim-focused the ICC was? “We are never satisfied as an advocate of the victim’s perspective,” she said, while referring to the challenges faced by the International Criminal Tribunal for Rwanda about the treatment of victims. The process, trust fund and the protective measures for the victims all took an inordinate amount of time to put in place.
She said there was still scope for greater victim involvement and participation in the ICC, and emphasised that victims were always the first ones to suffer the consequences of the ICC’s budget cuts.
The next panel, chaired by Prof Thandika Mkandawire, the professor of African Development at the London School of Economics, featured Donald Deya, the chief executive of the Pan African Lawyers Union; Dr Tim Allen, professor of Development Anthropology at the London School of Economics; Rodney Dixon, a barrister at Temple Garden Chambers; Dr Phil Clark, lecturer in Comparative and International Politics; and Dr Alison Bisset, a lecturer at the School of Law, University of Reading, England.
This panel discussed the impact of the ICC in restoring peace and justice in conflict-affected and transition countries. Prof. Mkandawire opened the debate by contrasting the enthusiasm African countries displayed towards the ICC upon its inception, due to a faith in the UN system, and a sense of outrage at what had occurred in the 1980s and 90s in various conflict-affected countries.
He said this enthusiasm had now been replaced by a growing sense of concern due to the “gross injustice” of a system that had seen charges only levied against Africans. Donald Deya spoke about the role of the AU and argued that the international justice system should be truly international and not just centred on Africa. To him, universal jurisdiction is being abused, and there is thus the need to establish an African court that can cooperate with other international courts.
Dr Tim Allen focused on cultural relativism in relation to justice and noted that the lines between acting in the interest of justice, and acting in the interest of victims, remained “blurred”, giving rise to the question “what is the nature of justice?”
Paradoxically while the axiom of the ICC is in promoting international criminal law, there is increasing interest in local justice, Dr Allen said that for him, justice must be victim focused, idealistic and pragmatic, acknowledging the uniqueness of the conflict and consideration for local traditions, values, and most critically the victims.
For Rodney Dixon, the “best contribution the ICC can make to peace and justice is by behaving as a proper court should … and not shying away from who to investigate, what cases to investigate, and when to defer to national jurisdiction.”
He believes that the ICC has displayed a reluctance to critically address double standards in terms of the cases it investigates and the individuals it indicts. “Dealing with these underlying fundamental issues will, in fact, strengthen the legitimacy of the Court,” Dixon stated.
Dr. Phil Clark added his perspective by saying that the ICC had been naïve in its interactions with both the Congolese and Ugandan governments. The ICC, he revealed, had proactively chased cases in Uganda and Congo long before their government’s interest to involve the international community.
Over the past decade, Clark said, some major political problems had encumbered the ICC’s dealings with certain African countries, including the nature of referrals, outcomes, and political detachment from Africa by the ICC as well as how the prosecutor’s office played a distant role in the prosecutions in the Congo by utilising intermediaries to do its work.
Citing the Thomas Lubanga trial as an example of how the ICC have attempted to cut corners, Clark said: “The trial nearly collapsed at three different stages due to flimsy evidence borne from reliance on third parties to conduct detailed investigations and gather evidence.”
Is the ICC necessary?
Given the constant criticism levied at the ICC, Clark raised important questions that needed to be addressed, such as whether the Court was really necessary? “Before this question can be effectively answered, perhaps the question that needs to be addressed should be: Is the ICC delivering a higher standard of justice than the local government jurisdiction can deliver?”, Clark asked.
Reflecting on the Lubanga conviction, Clark questioned whether the ICC should have even been involved in the case when domestic investigations where already underway, concluding that such interference by the ICC could lead to the demoralisation of not only the domestic judiciary, but the government which was trying to establish itself.
Prof. Mkandawire then moved the focus onto the concept of truth commissions and their relationship with the ICC, inviting Dr. Alison Bisset to share her opinions. She said it was misleading to assume that there was a relationship between the ICC and truth commissions.
She stated that while the ICC statute was silent on truth commissions, the Court would want to work constructively with them. However, there was a problem with overlapping mandates and the underlying tensions between a truth commission’s non-judicial character and the confidentiality of information given. She pointed to the case of Liberia where confidentiality was important for the truth commission to fulfill its mandate.
The third panel dealt with the theme, Threshold determination: Its interpretation and application at the ICC. The chairperson was Dr. Akbar Khan, the director of Legal and Constitutional Affairs at the Commonwealth Secretariat. The panel was made up of Prof. Chandra Sriram, of the School of Law at SOAS; Sir Geoffrey Nice QC of Temple Garden Chambers, London; Dr. Sarah Nouwen, lecturer in International Law at Cambridge University, England; and Karim Khan QC, of Temple Garden Chambers, London.
The chair asked the panelists about when a court should determine inadmissibility and gravity? Prof Chandra Sriram said that the gravity threshold played a key role in the case of the Lords Resistance Army in Uganda. She thought the first issues to debate were the limited criteria of inadmissibility and what was the criteria regarding gravity.
Part of the problem, she argued, was understanding the rationale of gravity. Citing the Kenya example, she said while the situation in Kenya was clearly horrific, if the numbers of victims were compared, one might expect the DRCongo conflict to be also examined. This led her to question the criteria of what made a crime a crime against humanity?
Karim Khan was then asked about his views on justice as the overall goal. He answered by saying that although we lived in a world of inequality, balance was needed regardless. “It is too easy to condemn the ICC as colonialist or racist, but one cannot simply focus on the ICC and the cases there – one must look at how the world has developed since World War II,” he posited, adding, “that is not to say that the ICC is not flawed.” To him, the main issue is the ICC’s selectivity process.
Sir Geoffrey Nice was asked if the ICC was a positive thing, was it working, and was justice the overall goal? His response was to ask the audience what they thought justice was?
“We ask the wrong question, if we ask if justice is being delivered. Perhaps what we should ask is ‘what do the systems of law that should deliver justice actually do for the people they serve, and what can the people do with this apparatus to enforce justice?’ Therein lies the real question.”
The panel concluded that the issue of selectivity remained a controversial subject, and this was highlighted in the way countries were selected by the ICC.
The day progressed with with two interviews. Elizabeth Evenson, a senior international justice counsel, was interviewed by Paul Moorcroft of the Centre of Policy Analysis; and Donald Deya of the Pan-African Lawyers Association was interviewed by Audrey Brown for the BBC World Service.
Moorcroft was directe with his first question, asking whether the ICC would survive or not? Without hesitation, Evenson said she believed the ICC would continue as a non-European country (Japan) happened to be the largest donor to the Court. This allowed Moorcroft to query Japan’s election of unqualified judges in the ICC, and whether this was permitted due to the country’s financial contribution.
Evenson replied that there was the need to elect judges who could hear, judge and manage cases effectively and these should be highly qualified experts and practitioners in criminal law, having the relevant training. She said the criterion for the selection of judges “needs to be revisited”.
On the suggestion that Japan’s donor status gave it influence within the ICC, Evenson accepted that there was an imbalance of political influence between countries. She next argued that while the ICC was not a perfect institution, it was a necessary one due to the emerging consensus that dictators should no longer be allowed to get away with heinous crimes.
The discussion moved towards the issue of peace and justice, with Moorcroft declaring that “local people want peace and you cannot have justice until you have peace”.
He pointed to the situation in Sudan where the ICC’s decision to indict President Omar Bashir had perhaps unintentionally impacted upon the peace process.
In Evenson’s opinion: “The conventional wisdom that justice interrupts peace is not always the case.” The interview concluded by revisiting the selectivity theme, with Moorcroft asking, “why Libya and not Zimbabwe?”, and notingthat while more than 8,000 allegations of crime had been levied against 139 different countries, the ICC only chose to investigate just five African countries.
Rather than perform a question and answer interview, the BBC’s Audrey Brown gave Donald Deya the opportunity to speak at length about the ICC and its involvement in Africa.
Deya used the adage that “in former years, the universal aim was to steal Africans from Africa. Today the determination of Europe is to steal Africa from Africans,” and argued for the jurisdiction of the African Union’s own court, the African Court of Justice and Human Rights, to involve international issues. According to Deya, this “will change the game” in how serious crimes within Africa are dealt with.
When asked what would make the AU Court deliver a better quality of justice than the ICC, Deya responded that there was scope for both bodies to work together. “After all,” he observed, “the only time one should forsake all others is in a committed monogamous relationship.”
Is Africa “on trial”?
The final panel session was chaired by Justice Sophia Akuffo. The panelists were Courtenay Griffiths QC who defended Charles Taylor in his trial; Elisabeth Evenson; Prof. Julius Nyang’oro, former chair and professor of African and Afro-American Studies, University of North Carolina, USA; and Dr. David Hoile.
Justice Akuffo asked the panelists if they thought Africa was on trial?
Courtenay Griffiths’ answer was clear. “Yes it is. I was a newcomer in 2005, but now I ask myself what is the real dynamic behind the ICC? Is it a correlation between Western economic interests and the use of international law for oil economics? This seems to be the substructure. A clear example of this is the ICC getting rid of so-called difficult political targets and prosecutions.”
Griffiths suggested that the ICC was a victim of Western bias.
Justice Akuffo then asked Evenson to advocate an international justice system. She stated that the biggest obstacle was the landscape the ICC was standing on – an uneven ground. She believed that the application of justice had been far too selective and that harsh criticism of the ICC had arisen because the Court had a wider reach.
However she raised an important point by asking if 10 years was enough time to truly assess the ICC. She acknowledged that there was anger against the ICC, but the blame should not just be put on the ICC as some cases were beyond the reach of the Court’s jurisdiction.
Evenson was then asked if the non-ratification of the ICC statute by some members of the UN Security Council undermined the credibility of the Court. “No”, she said, but accepted that the ICC was on trial in Africa.
“The next prosecutor will need to do better,” Evenson advised. “All of this will need a long-term effort. Double standards won’t be easy to dismantle.”
Prof. Julius Nyang’oro argued that Africa may be on trial, but so was the ICC. He questioned why African nations had been so quick to adopt the ICC. Perhaps the “terrible mess” in Sudan, Angola, Sierra Leone, and Liberia, he suggested, had led many African nations to sign up to a series of deals without proper consultation.
Prof Nyang’oro was clear in his mind: “We have been victims of our own intellectual laziness, allowing us to be railroaded into the ICC as judicial enforcers of Africa”, was how he put it.
Hoile argued that it was not just the ICC focus on Africa but also the nature of the focus that was of particular concern. He drew a comparison between the IRA conflict in the UK and Darfur in Sudan to buttress his point.
To him, a lot of countries in Africa have been forced to put justice before peace, and that “there is no doubt there is a perception that the ICC is being used as an instrument of judicial intervention to keep Africa off balance. And there is no doubt that there are benefits accrue to certain Western states for doing that.”