Recolonizing Africa Through International Criminal Justice
January 18, 2013
By Charles Taku*
A) THE HARD QUESTIONS.
It is appropriate for me to state right away that Africa is sick; very sick indeed. International crimes of genocide, crimes against humanity, war crimes, and lately crimes of aggression abound in Africa and must be investigated and punish. However, as I pointed out elsewhere, international crimes have no ethnicity, race, nationality or religion. That is the reason why the UN Charter prohibits selective and discriminatory policies. Inspired and drawing from the UN Charter, International Law, in particular International Human Rights and International Criminal Law expressly prohibit selective and discriminatory application and enforcement of the Law established by its respective conventions and covenants.
Much as crimes perpetrated in Africa must be vigorously investigated and punished within credible independent, legal frameworks with the territories of the countries in which such crimes have been perpetrated as well as the International legal institutions, including the ICC, the Ad Hoc Tribunals and Courts that the International Community may set up to deal with the situations, where such efforts are perceived to have been carried out through deliberate discriminatory and selective policies over a period as long as a decade, it must be condemned with the same vehemence as we condemned the crimes that are subject of the discriminatory and or selective processes. Doing so is consistent with the intendment of the UN Charter and the Statute of the various Courts and Tribunals set up to trial international Crimes and promote and or protect fundamental human rights of which fundamental fairness is a critical component.
It is within this context that I must emphasize for the purpose of this paper that the preamble of the United Nations (UN) Charter states that the United Nations was created “ To save succeeding generations from the scourge of war, which twice in our life time, has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law, and to promote social progress and better standards of life in larger freedom”.
The human rights basis for the creation of the UN is firmly stated in articles 1 (3), 55 (C) from which all International Human Rights Conventions as well as the Statutes of International Courts and Tribunals derive their legality and legitimacy. It is my considered opinion that the United Nations has failed to reasonably invoke and apply these stated goals in resolving Africa’s problems. Where the UN has intervened, it has done so selectively and humiliatingly against the interest of a majority of the people and contrary to the goals and standards set out in its charter, general principles of international law and custom. The exacerbation of bloody armed conflicts on the African continent in 2012, despite what may be construed as largely selective, discriminatory, politically motivated, timid efforts deployed by the UN and the International Community to address the situations supports this harsh judgment.
This assessment finds support from an unusual source. President Paul Biya of Cameroon, one of the longest serving dictators in Africa, whose human rights record and democratic credentials are among the worst in the world, harshly criticized the UN record in the enforcement of its charter mandate, and questioned its relevance in a feisty address to the Diplomatic Corps in Yaounde on January 3, 2013. This charge coming as it were, from one of the promoters of the culture of impunity on the continent and a noted violator of international law ascertained from his refusal to engage in constructive dialogue ordered by the African Commission on Human and Peoples Rights with representatives of the Southern Cameroons under its auspices since April 2009 to resolve constitutional and other arrangements, carries particular significance. In the pugnacity of his criticism, a careful observer will readily discern that he spoke for the majority on the African continent when he charged that the UN has failed Africa in time of need, critically, within its half decade of cosmetic independence from colonial rule.
Significantly, citing the “ high level meeting on the rule of law that was held in New York on the sidelines of the last UN General Assembly, which dwelled on the primacy of international law in conflict resolution as well as the key role of International Court of Justice and the Security Council”, President Paul Biya, lamented the fact that “ the international situation is marked politically by a number of persisting stalemates and outbreak of open conflicts the laudable efforts of the Secretary-General and the influence of major powers have failed to resolve or appease”.
On the Middle East situation between Israel and the Palestinians, Mr Biya accused the major powers of sacrificing the merit of the case for their strategic interests. On the Syrian civil war, he wondered “how many more deaths will it take to move the international community?”
Underscoring with regret that many on the African Continent were sacrificed in their quest for a just transition from “authoritarian regimes to democracy”, he cited examples South of the Sahara, namely the cases of Mali, where parts of its national territory is illegally occupied by armed factions, the Democratic Republic of the Congo ( DRC) which has been “ temporarily invaded by forces with outside support and is consequently not under the authority of the central power” and the Central Africa Republic which faced the risk of a civil war. According to Mr Paul Biya, this non exhaustive list of unresolved and escalating conflicts underscore the fact that international law is violated with impunity; compelling him to ask the following questions for which I will provide some answers since like many progressive voices on the continent, I had addressed the same issue in the past:
Quote: “Does the United Nations Organization, which is supposed to ensure compliance with the provisions of the Charter, have the means to accomplish its mission, when such provisions are openly transgressed?
– Or is it limited only to making resolutions and recommendations, sending observer missions or peacekeepers, often in insufficient numbers?
Of course, I am aware that the issues I have raised have been discussed in the Security Council where disagreement between the permanent members made it impossible to consider any decisive action.
But such helplessness in the face of acute crisis situations severely affects the image of the United Nations. It only emphasizes the urgent need for reform of the composition and functioning of the Security Council.
If the provisions of the Charter do not necessarily inspire Security Council decisions, and if the relationship of permanent members with international law is based on unequal expression of power, then one cannot help being worried about the future of international democracy”. End of quote.
Before venturing to provide answers to the questions, I wish to state that in adopting the position of the majority against which he has fought for most of his 30 years of dictatorial rule, President Paul Biya hoped to hoodwink and manipulate international public opinion and preposition himself as a leader within the emerging pro-people African Revolutionary Movement that has laid down the fundamental basis for the rightful ideological perspective on how to rescue Africa from the current international ideological drift that emerged after the cold war.
I should place on record therefore, that Mr. Paul Biya pays lip service to the values he preached. For example, in February 2008, Mr Paul Biya followed the trend of other dictators in Africa, in particular Francophone Africa in manipulating and changing the constitution of his country, to eternalize power. On his orders, armed soldiers slaughtered more than 148 documented armless citizens who were among the millions who protest the power grab; making him one of the dictators who sacrificed his own people in their quest for a just transition from his “authoritarian regime to democracy”.
The group of progressive African leaders he hoped by this speech to find a spot among include champions of the African causes like President Jakaya Kikwete of Tanzania and President Ernest Koroma of Sierra Leone, amongst others. Apart from being the voice of Africa within international circles, their leadership in this evolving political, economic and democratic ideological movement derives from their record in advocating and the promotion of fair and independent international rule of law on the African Continent and their record in the promotion of dialogue, peace and reconciliation at home and abroad. As the struggle for the soul of Africa in 2013 and beyond intensifies, the possibility exists that many more dictators will make frantic attempts, genuine or otherwise, to seek the spot light in this progressive train which is moving Africa away from the neo-colonial bondage that they in their puppetry plunged the troubled continent.
Be this as it may, the questions asked by Mr Biya without providing adequate answers are weighty and I must venture to provide answers where necessary.
B) CRITICAL QUESTIONS AND ANSWERS.
Question: Does the United Nations Organization, which is supposed to ensure compliance with the provisions of the Charter, have the means to accomplish its mission, when such provisions are openly transgressed?
Answer: The answer is clearly yes. The UN has the means to accomplish its mission, if I and when doing so will advance the strategic interest of the so-called super powers. In the particular case of Africa, the so-called super powers and their Western allies are aware, and have done all to underscore the fact that the at the creation of the UN in 1946, Africa was not a subject of International Law; for which reason, the provisions of the Charter did not apply to Africa. These Western countries were still enjoying the fruits of the criminal dehumanization of Africa that commenced with the Slave Trade and accentuated at the Berlin Conference in 1884.
This explains why countries like France, a victim of International Crimes permitted by Hitler and the Nazis during the Second World War, joined most Western Countries to perpetrate egregious international crimes against Pro-independence Movements within colonial territories and former German “possessions” from 1948, a complete mockery of the UN Charter and the Universal Declaration of Human Rights which was promulgated to reaffirm the UN Charter protection of “ faith in fundamental human rights, in the dignity and worth of the human person, in equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law, and to promote social progress and better standards of life in larger freedom”.
President Paul Biya correctly cited cases in Africa where UN resolutions have been violated and impunity continued unsanctioned. Notable in this regard is the case of the Democratic Republic of the Congo (DRC) where he stated, parts of its national territory has been “temporarily invaded by forces with outside support and is consequently not under the authority of the central power”.
In the case at bar, it may be safe to state that, consistent with the UN and International Human Rights investigative reports more than six million people have been slaughtered or died from the effect of the war in the East of the DRC. The presence in the region prior to and after independence of the super powers during the perpetration of these crimes cannot be reasonably contested. Indeed, the DRC was a major cold war battleground on the African Continent and remains a spoil of war in the hands of colonial and neo-colonial political and economic interests. Rwanda and to a lesser extent Uganda that has supported and sustained the rebellion in the East of Congo have done so first as proxies of foreign economic interests and for the pecuniary benefits of political leaders in both countries.
It is also not reasonably disputed that Rwanda is not endowed with mineral resources. However the Semi Official New Times of Kigali reported that President Kagame in his address to the Nation on the occasion of the New Year revealed without elaborating that
“the mining sector continues to play a big role in growing our economy. This year, revenue from mineral resources totaled close $ 128 million and is expected to rise which will result in more benefits for Rwandans, including additional employment”.
The UN had long established that one of the motivations for the involvement of neighboring and foreign countries in the war in the DRC was to illegally exploit its vast mineral resources. The neighboring countries did not seriously contest the findings. Rather they intensified their intervention, and with it the acts of impunity which have presented the UN as powerless to bring these regional leaders to justice.
The ICC which was created by the international community to fight impunity after more than a century of the search for a standing international court has been largely ineffective, preferring to squander scarce resources to go after peripheral individuals in cases that have exposed its irrelevance as an impartial, credible, independent weapon to fight impunity and uphold the rule of law. In its selective politically motivated interventions in situations in Kenya, Libya, Cote D’Ivoire, Sudan and Uganda, it has exposed itself to criticism right or wrong as a neo-colonial tool of regime change, and defense of Western interests, particularly world powers that have not ratified or acceded to the Rome Statute. In Uganda, like in Kenya, it scuttled serious attempts to employ the greatest contribution that Africa has made to International Law, the Truth and Reconciliation Commissions and other more viable avenues of conflict resolution in settling the disputes and bringing about justice to victims and reconciliation to the countries concerned.
The rather aggressive and haughty posturing by the erstwhile Prosecutor Moreno Ocampo was widely resented by most African countries, including those like Uganda which made the referral in the first place, and hampered state co-operation without which the ICC cannot effectively execute its mandate. As war ravages in many African countries and precious blood spilled, the ICC is bogged down in the situation in Kenya which its Prosecutor mislead by political interests for the first and only time in the history of the court on his own initiated the legal process.
In ten years of its existence, the trial record of the ICC is disappointing compared to that of the Special Court for Sierra Leone that was created the same year like the ICC. It took the ICC ten years to complete its first case, the Thomas Lebunga Case with a much mitigated result and after being rebuked for using intermediaries to collect evidence and a colossal loss in the second case, that of Mathieu Ngudjolo Chui. In an article titled “ Latest ICC judgment reveals an ineffectiveness of Court” posted in Foreign Policy Association Website dated December 18, 2012, Daniel Donavan , harshly criticized the focus by the Prosecutor on periphery characters in African wars, underscoring the finding by the Trial Chamber in the case that the acquittal of Mathieu Ngudjolo Chui did not mean that the crimes were not perpetrated, a veil reference to the fact that the real perpetrators of the crimes alleged were not brought before the Court. Following on this track record, the case of the situation in Kenya may be the greatest embarrassment to the ICC in that the main conduit through which the “secret envelope” and the evidence on the basis of which indictments were brought against six prominent Kenyans, former UN Secretary General Koffi Anan has been reported in the Kenya Press, as providing the political motivations for his role and conduct in the legal process by publicly calling on Kenyans not to vote for those standing trial at the ICC. His failure to cause the UN to promptly take action to abate the Rwandan Genocide that unfolded on his watch and his controversial role in the Kenyan legal process when he was invited as the peace envoy of the African Union (AU) but submitted the information on the basis of which charges were brought to the Prosecutor of the ICC rather than the AU has dented his image before a significant component of African public opinion.
The situation in Cote D’Ivoire and Libya which continue to deteriorate provides justification for the allegation that the ICC may be an instrument for regime Change. It is reasonably doubted if proper investigations were conducted by the ICC Prosecutor in the territory of Cote D’Ivoire against Laurent Gbagbo, his wife Simone and close collaborators during the French and UN led assault on the Presidential Palace leading to his arrest and that of Libya leading to the indictment of Moamar Gaddafi and his close associates that included his son, at the heat of NATO bombardment of Libya and thereafter, his leading assassination.
The UN interventions in these situations and the rather questionable role of the ICC Prosecutor in initiating perceived politically motivated prosecutions that favored partisan and specific interests has crystallized in the fight for the soul of Africa by powerful neo-colonial interests using none states actors so-called “good rebels” and puppets dictators on the one hand and “bad rebels” and revolutionary anti neo-colonial regimes on the other hand.
With this, the Responsibility to Protect Mandate of the UN Security Council in which the UN and Western Governments have co-opted the ICC to provide legal support to its military efforts and mission has strengthened impunity on the continent. The ICC which was created to fight impunity so far has lost its impartiality, independence and legitimacy to carry out its mandate.
There are strong indications, that instead of combating or discouraging impunity, the perceived unfairness of the ICC selective and discriminatory Prosecutions has intensified impunity and lawlessness in the situations in which it has intervened. The referral in the situation on Central Africa Republic made by the current President Bozozie after his rebellion against seized power led to investigations that are ongoing to a Popular Politician/ Militia Leader in neighboring DRC Jean Claude Bemba being indicted. Embolden by his ability to use the ICC process to intimidate politician opponents and strengthen his hold on power, Francois Bozozie ignored the peace process leaving the rebel and his political opponents and those opposed to the selective targeting of opponents through the ICC investigations to intensify the campaign to seize power by the use of armed force. That, in their estimation is the only way to permanently bring political change and insulates themselves from the permanent threat of ICC investigations and possible prosecutions.
In the Congo, the combined effect of the selective prosecutions conducted by the ICTR and the ICC has instead embolden Rwanda to support the rebellion in East DRC and the plethora of rebel organizations in the DRC to see total war and victory as the only means of attaining their divergent but very violent objectives. In Kenya, a relatively stable country in a volatile sub region with weak but performing legal institutions which could be improved with some effort, and which is at war in Somalia on behalf of the International Community the inappropriate disregard for the principle of complementarity and the legally unsubstantiated prosecution of senior politicians on grounds perceived to be political on the personal initiative of the Prosecutor promises to be politically explosive and destabilizing.
In Uganda, where the government made the referral but later ascertained that it could attain the double aims of ending the rebellion with the rebel commanders voluntarily surrounding to a an internal judicial structure provided by the country’s constitution, co-operation with the ICC was terminated for insisting of pursuing the matter which led to the peace process crumbling with continuation of the war and the loss of hundreds of thousands of life.
In Cote D’Ivoire like in Libya, the ICC process has become the rallying cry for violent conflict and impunity. Opponents see the process as being abused and used to support and sustain a political system rather than do dispassionate justice as mandated by the Statute of the Court.
The ICC has so far not been able to find a balance between the exercise of its prosecutorial discretion and prerogatives and the deference and respect for other channels of bringing peace and stability to war ravaged African countries where it has intervened. The sensitivity of the Special Court for Sierra Leone to the process and work of the Peace Reconciliation Commission in Sierra Leone helped to bring closure to the rancor that was caused by the war and its brutality. At the end the Special Court and the Peace and Reconciliation Commission complemented each other without compromising the integrity and independence of each other.
It is feared that if the current trend at the ICC continues, it will provide an opportunity for dictatorial regimes of war mongers that the process has served so well in the past decade to persist in abusing the referral process for political purposes. When they feel threatened they will put in place mechanisms whose purport is to shield them from prosecution, a privilege that they have enjoyed thanks to the ICC with the selective and discriminatory prosecutions that has made a mockery of international law. Were that to happen as it may be the case, the ICC will be held tacitly responsible for setting a threshold that has strengthen the tyranny of dictatorial regimes that happen to be neo-colonial puppets of Western geo strategic and economic interests and impunity that can only be ended with the escalation of armed conflicts, and needless loss of lives.
It is hope that in 2013, the new Prosecutor Ms Fatou Bensouda assisted by a very professional Deputy James Steward will work hard in depoliticizing the ICC by distancing the Office of the Prosecutor and its prosecutorial authority from powerful neo-colonial interests whose goals and objectives are at variance with those assigned to the ICC by the Rome Statute. It is then and only then that the fight against impunity on the African continent by the ICC will be real and meaningful.
Question: Is the UN limited only to making resolutions and recommendations, sending observer missions or peacekeepers, often in insufficient numbers?
Answer: Part of the answer to this question is provided by President Biya himself when he stated that he was “ aware that the issues he raised have been discussed in the Security Council where disagreement between the permanent members made it impossible to consider any decisive action” and that “such helplessness in the face of acute crisis situations severely affects the image of the United Nations and only emphasizes the urgent need for reform of the composition and functioning of the Security Council”.
In respect of Africa, the answer to this question must perforce focus on the fact that Africa is still a victim and not subject of international law. In 1884, the partition of Africa and the egregious international violations that Africa has suffered ever since was considered legal in International Law. In a presentation I made during an International Law Conference in Montreal on September 28, 2012, I underscored the fact that shortly after the Berlin Conference, the First World Peace Conference held in The Hague in 1898 and the Second took place in 1907 but Africa was not even on the agenda. To these powers, Africa and Africans were chattel.
Africans and the world at large need to know the hard facts underlying their place and plight in International law and International Relations. The so-called civilized world is still struggling with how to fully characterize and accommodate Africa in International Law. This is implicit in their relations with Africa and the application of International Law to African Conflicts. This explains the disparity in its intervention between the war in the ex-Yugoslavia as opposed to that in Rwanda, its indifference and then support for the culture of impunity in the DRC, its selective prosecutions in Kenya, Cote D’Ivoire, the Sudan and its failure to consider the introduction of transitional justice in redressing the wars crimes perpetrated in Somalia and bring to an end the impunity that threatens the long and short term, the stability of the entire sub region from Kenya, Uganda, Burundi, Tanzania, Rwanda and the DRC.
Question: If the provisions of the Charter do not necessarily inspire Security Council decisions and if the relationship of permanent members with international law is based on unequal expression of power, then one cannot help being worried about the future of international democracy?
Answer: The exploited, abused and endangered people of Africa who are victims of neo-colonial power play that encourages impunity and adversely affect them ought to be very worried about the future of international democracy. President Biya is right in asserting that the “provisions of the (UN) Charter do not necessarily inspire Security Council decisions and that the relationship of permanent members with international law is based on unequal expression of power”. Falling within this category is the controversial invocation of the Responsibility to Protect Mandate to effect regime change in which one dictator is replaced by a group of rebels and criminal gangs further endangering the lives of Africans and compromising their independence, economic wellbeing and future.
Question: What then is the future of “international democracy” under these circumstances?
Answer: The future of “international democracy” is not threatened by this Post -Cold War world so-co economic and political strategic ideology. Rather, the future of Africa is seriously compromised. African and Africans have never been free as such. The ritual that passed for independence from 1960 in most African countries was quickly high jacked by the former colonial powers using neo-colonial puppets who imposed conditions of living and socio -economic and political policies that made the serfdoms unstable, leading to the wars and the selective application of International law that place the sovereignty of African states under the supervision of the erstwhile colonial powers.
The situation that obtained in Ghana aptly painted by CLR James in “Nkrumah and the Ghana Revolution “ where many African intellectuals, Lawyers, Professionals, the Merchant Class and Chiefs radically opposed the Independence of Ghana because they benefitted from the colonial system still applies today. Professor George Ayittey in “Africa Unchained” quoting Colonel Yohanna Madaki (rtd) provides an example of the treachery of these opportunistic class of Africans “when General Yakubu Gowan drew up plans to return Nigeria to civil rule in 1970, academicians began to present researched papers pointing to the fact that military rule was better and preferred since civilians had not learnt any lessons sufficient enough to entrust with governance of the country”. More recently in Cameroon, University Professors led by the Director of the International Institute of International Relations (IRIC) who was later appointed technical adviser to President Biya, organized conferences to explain to the national and international public opinion that the constitutional clause that imposed term limits to the office of the President was undemocratic and urged President Biya to scrap that provision to enable him contest elections under an election process controlled at all stages of the electoral process by him, thus paving the way for him to eternalized power. Conduct like this, is what breeds conflict in the continent, making it possible for the UN and external forces to set in motion processes and policies which have and continue to enslave and endanger “ international democracy” in Africa.
Question: What must therefore be done to protect Africa under these circumstances?
Answer: Africa and Africans must admit that the destiny of Africa lies in the hands of Africans. The foot soldiers and puppets who have ruined Africa and facilitate the exploitation and rape of Africa are Africans. It is the duty of Africans to provide reasonable alternatives to these class of individuals.
We must learn from the experiences of some of the countries that are responsible for the plight of Africa today. Some of them underwent some of the same violations and humiliations at some point in time in their history. The progressive forces in those countries rose and mobilized the people to liberate themselves. It is our turn to do so.
The progressive forces in and out of Africa and friends of Africa must come together, like Marcus Garvey, George Pardmore, Osageyfo Dr Kwame Nkrumah, Zik of Africa, Mwalimu Julius Kambarage Nyerere mobilized the continent and the world to reclaim the continent for Africans and proclaimed the humanity of the black race on the face of the world. The time for the debate on the bigger issues that confront Africa is now. It took a Nelson Mandela and his friends to challenge the conscience of the world on the egregious crimes of apartheid and to prove to the world that black rule in South Africa was inevitable. It took the vision and courage of a Mwalimu Julius Kambarage Nyerere to support and sustain the liberation struggle in Southern Africa that led to the victory of freedom over colonial rule in Zimbabwe, Mozambique, Namibia and South Africa itself.
Mwalimu Julius Kambarage Nyerere himself stated as early as 1964 in an address to delegates to the KANU conference in Dar Es Salaam that for us to confront the challenges of the present and the future, we must challenge the past and critically examine where we went wrong and what we can do to right the wrongs and move on in the right direction. I suggest that progressive forces in Africa and the black race can make that critical examination of what is wrong with Africa and come up with solutions that will impose respect, compliance and execution by the rest of the world. The time to mobilize progressive forces the world over for a Pan Africa Progressive World Forum that will critically examine what is wrong with Africa and chat the course for Africa and all black peoples the world over for future is now.
Then and only then will our so-called independence have meaning and the black race assured of its existence in the world.
*Chief Charles A.Taku is Lead Counsel at the UNCITR, Special Court for Sierra Leone, The ICC. He is Author of a new hot selling book: Contextual Foundations of International Criminal Jurisprudence: Selected Cases, available at www.takujurisprudence.com, www.amazon.com, www.barnes and noble.com
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