Developments in criminal jurisdiction and the impact of the International Criminal Court’s prosecution and investigation policies on ICC African Situations
June 17, 2015
By Chief Charles A. Taku*
The ICC like the Ad Hoc tribunals, ICTR and the Special Court for Sierra Leone previously, goes far into the history of its Africa situations to provide context and the underlying causes of many of the crimes falling within its jurisdiction. Standing out in this context and often presented among underlying factors, are Colonial-inspired divisions, ethnicity, land rights, socio-economic and cultural conflicts, the struggle for power and control.
The dismembering of Africa at the Berlin Conference in 1884 that partitioned the continent among European powers separated and set apart families, communities, ethnicities and nationalities against each other. This colonial legacy is directly responsible for many of the crimes perpetrated in Africa, particularly, the ICC Africa situations.
A mantra of Africa’s struggle for independence was to exorcise the ghost of its colonial past. A majority of African countries saw the Rome Treaty as a mechanism within which to realize that dream. Inspired by the promise of freedom, equality, non-discrimination and equal justice for all in the UN Charter, Africa believed that the Rome Treaty firmly established “conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained” and a reaffirmation of “faith in human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small”. It should therefore surprise no one that an appearance of failure in this dream would seriously threaten or undermine the basis of that Africa support. The exclusive focus on the ICC on Africa portrays the institution as advancing the colonial agenda which most Africa joined to combat. The ICC is little known outside Africa. It commands little respect and relevance in conflict regions outside Africa. ICC is known as an African Court.
The vision and the record
The fundamental challenge to international justice is always to shorten the “disconnect” between theory and practice, between the goals of international justice which we all support and the practices which too often obstruct the achievement of these goals. Judging from Africa’s initial vision of the Rome Treaty, and the records so far attained, we need to always ask ourselves: Is international justice being implemented so that the “rule of law” is applied to all, with equality and fairness? Today, in respect of the ICC African situations, we have to honestly answer “no”.
The targeting of Africa reminds many in Africa of the arrogance and the impunity of its humiliating colonial past. Many in Africa believe that the selective focus on Africa is driven by international politics and not the law.
Writing in Global Rights (11 April 2014) Mwangi S. Kimanyi explained that “African states overwhelmingly supported the Rome Statute in the hope that those perpetrating atrocities on the people of Africa would never again go unpunished”. Africa’s support for the Rome Statute can reasonably be construed as an African reaffirmation of the “never again” pledge within the context of centuries of colonial international criminality that threatened and continues to threaten the essence and existence of Africa and the black race.
According to Mwangi, “Africa which should have benefited greatly from an International Criminal Court that is credible, fair, competent and independent”, instead has been projected as an exclusive bastion of international criminality requiring ICC selective focus and babysitting.
This projection of Africa is deemed insulting.
There is no gainsaying that legal processes arising from interventions deemed selective and discriminatory must be infested with the very politics that motivated the interventions. This places the politicization of the ICC Africa trials in context. Explaining this phenomenon, Professor Jenia Iontcheva Turner (Virginia Journal of International Law April 2008) stated: “The “Legal” and “Political” conceptions of international criminal trials are ideal types. To some
degree all law is political……when trials move further along the political spectrum, defendants’ rights suffer. …….Even trials which are exclusively political, there are instances in which political and adjudicative purposes clash, and one must prioritize above the other”.
It is conceded that many crimes are perpetrated in Africa. But if one looks at what is going on in the world today, a great many war crimes are committed in other regions of the world. The ICC’s has not demonstrated sufficient interest and ability to investigate and prosecute international crimes in other regions of the world. Only a few days ago, the ICC declined to investigate the crimes perpetrated by ISIS even though a significant number of ISIS combatants are from state parties in Europe and a crime for which it claimed responsibility mobilized world leaders and hundreds of thousands demonstrators in France. The ICC has failed to show serious commitment towards investigating and prosecuting crimes perpetrated in Colombia and Sri Lanka. The reasons given for not intervening in Syria, Afghanistan and Iraq are not convincing. The reasons pale in the face of those provided by the ICC to justify its intervention in the Kenya post-election violence barely two months of its occurrence in which the Prosecutor Moreno Ocampo boasted that he would make Kenya an example of the effectiveness of the weight of ICC prosecutions.
The Prosecutor of the ICC has criticized the AU and some African governments for politicizing ICC African interventions. This charge is not surprising. Indeed, a number of legal scholars among them Professor Malcom N. Shaw holds the view that: “that there can never be a complete separation between law and policy. No matter what theory of law or political philosophy is professed, the inextricable bonds linking law and politics must be recognized”.
The politicization of the ICC interventions is institutionalized in the Rome Statute. The Rome Treaty by conferring the power to make referrals and deferrals on the Security Council provided the Council with an additional political tool by which it may exercise its Chapter VII authority. To this date, this authority has been invoked only in ongoing African conflicts. Ignoring African and regional efforts towards peace, the UN Security Council referred the situation in Darfur to the ICC. Concurrent with Its Responsibility to protect authority, the UN referred the situation in the ongoing conflict in Cote D’Ivoire to the ICC. The referral in the situation in Libya was made concurrent with UN Security Council exercise of its Responsibility to protect authority and NATO extensive bombardments. The Security Council and NATO interventions claimed thousands of lives, conferred legitimacy on non-state actors and criminal gangs, providing them with the resources, weapons and the impunity with which they are perpetrating the crimes targeting North Africa, Africa Sahel and West and Central Africa. Peace efforts initiated by the African Union and other regional bodies that were ongoing were simply ignored.
The UN Security Council Chapter VII complementary role assigned to the ICC at the height of the armed conflicts led to regime change in Libya and Cote D’Ivoire. The ICC intervention was perceived as supporting the war efforts rather than seeking justice for victims. ICC investigation and prosecution targeted alleged perpetrators that the UN, NATO and some super powers wanted taken out. Once that mission was attained, the ICC took no steps to investigate the actors who fought on the side of NATO, the Super powers of the UN. Yet their record of criminality of these criminal gangs has been condemned even by the UN that invited the ICC into the conflicts. This has potentially compromised the independence of the ICC. The problem is that ICC intervention is not perceived as impartial. It is viewed as favoring one side.
The ICC Prosecutor personally initiated an intervention in the Republic of Kenya during the 2007 post-election conflict. That was the only time the Prosecutor has initiated an investigation and prosecution on his own initiative. Some delegates at the Rome Conference were skeptical in granting the authority to personally initiate interventions in situation to the Prosecutor without reasonable oversight. The Judges in the Pre-trial Chamber in the confirmation of charges decision in the case of Prosecutor V Francis Mathuara and Uhuru Kenyatta anxiously considered this matter. Justifying these concerns, Mr. Moreno Ocampo the former Prosecutor of the ICC granted an Interview to a Netherland based, News Organ admitting that political pressure was placed on him by some diplomats present in Nairobi and some NGOs to rely on the ICC case to bar President Uhuru Kenyatta and Vice President William Ruto from contesting the Kenyan presidential elections which they contested and won. Failing in their plan, they continued to interfere with the judicial process. This interference, poor investigations and poor case management significantly discredited the Kenyatta case leading to its collapse and potentially threaten the Ruto-Sang case.
Rule of law for all
The Prosecutor rightly asserts that a number of ICC interventions were at the request of African governments. Some state party referrals were intended to serve political objectives. Once the Prosecutor evinced an effort to look beyond these political objectives, the state parties concerned strenuously resisted. State Party referrals should not form an uncritical basis for ICC selective focus.
Invited by state parties or by the UNSC, ICC investigations target the vanquished in conflicts in its Africa situation. This policy grants impunity and immunity to victors and their supporters to perpetrate more crimes. The policy encourages and escalates conflicts and crimes, despite ICC intervention.
It entrenches divisions arising from African conflicts; affording victims allied to the victors the protection and benefit of international criminal justice; leaving the victims allied to the vanquished helpless. These communities whether on the side of victors or the vanquished deserve and require equal justice before the law and national healing.
The critical voice and threats of ICC interventions among those of other actors is contributing to the organization of violence free elections in a number of African situations. Kenya and Nigeria are two examples. Overall, threats and selective interventions have not restrained the wave of criminality afflicting Africa which is on the rise. Going hand in hand and complementing each other, only equal justice for all without any discriminatory coronation, peace and reconciliation will deter crimes and conflicts in Africa. The rule of Law should be for all and not just some.
Calling into Question ICC interventions
The escalation of conflicts and/or political tensions in Libya, Central Africa Republic, Sudan, DRC and Uganda despite ICC interventions calls into question the effectiveness of ICC Prosecutorial interventions. The ICC Prosecutor need to re-evaluate her Africa intervention policy and balance it with the overall objectives of the Rome Statute to provide universal, non-discriminatory, no-selective justice to all. The ICC needs to encourage and assist African countries to strengthen their capacity to investigate and prosecute international crimes in fulfillment of the complementary goals of the Rome Statute.
The ICC outreach should aim at getting more African countries to adopt the Rome Treaty into local legislations. The decision by the AU to amend the protocol to the African court conferring it with criminal jurisdiction to further the objectives of ICC complementarity is an achievement that the ICC should be celebrating rather than oppose. The Western media has criticized the African union for supposedly seeking immunity of African leaders from prosecution. The deferral authority of the Security Council under the Rome Treaty which is exercisable at all stages of a case before the ICC does just the same. It in effect grants immunity from trial. The selective criticism of Africa on this issue once more is misplaced.
The Prosecutor has not established a credible threshold on the basis of which to apply the principle of complementarity in its Africa interventions. Where the principle of complementarity has been applied, it has rewarded lawlessness and criminality. For example, the deferral to Libya which has no effective functional central government and judiciary in the case of Abdullah Al-Senussi encourages vindictive justice established by criminal gangs that now controls much of Libya. The rationale of deferring to Libya while denying Kenya with a functional democratic government and a new democratic constitution the right to investigate and prosecute crimes perpetrated during its post-election conflict in 2007 has not been sufficiently explained.
The ICC Prosecutor has failed to investigate non-African perpetrators of crimes occurring in ICC African situations. Falling in this category are financiers of African conflicts and potential crimes also called “arms for minerals merchants”. Investigating this category will require looking beyond Africa and Africans. It will require investigating potentially powerful countries, institutions and individuals bearing the greatest responsibility for African crimes. The Prosecutor provides no reasons for selectively keeping the focus away from this category of perpetrators. Not investigating and prosecuting them, affords them tacit immunity and impunity to sponsor and sustain the culture of violence and criminality that is claiming millions of lives. The lack of interest by the Prosecutor in investigating and prosecuting these powerful criminal actors is responsible for the cycle of violence and criminality responsible afflicting Africa.
ICC has been accused of being insensitive to conflict resolution efforts in ICC Africa situations. It is perceived to be insensitive to the sovereignty of African states and the cultural dynamics of its people. Africans are culturally sensitive about matters pertaining to the essence of humanity, justice, security and their values system. Tired of being humiliated out of efforts deployed to provide solutions to African problems by Africans, the AU is becoming assertive in reclaiming respect and a recognition of its rightful place in African affairs. The ICC and the international community should accord this African sensitivity due consideration and recognition. Over the past decades, a more assertive AU has deployed peace-keeping and combat forces to a number of African conflicts areas and redoubled its conflict resolution efforts in several others. Against the backdrop of Western actions intended to prevent ICC interventions and prosecutions in crimes perpetrated by their citizens across the globe, including Africa, the AU refuses the targeting of Africans and guinea pigs for the development of international criminal justice. The ICC Prosecutor needs a critical review of her Prosecutorial policies and adopt a more rational, balanced and engaging approach that respects state sovereignty while pushing for the fulfillment of her mandate under the Rome Statute.
Two significant actors of international criminal justice which from an African perspective and that of the Nuremberg trials was victors’ have spoken forcefully recently out on the wisdom of adopting this approach.
Louise Arbour a former Prosecutor of ICTY and the ICTR a recent interview in the Mail Globe (March 28, 2015) regretted the errors she made by ignoring peace efforts in conflict situations. According to Louise Arbour, : “There is a basic flaw in the international effort to simultaneously pursue justice, peace and human rights…… the initiation and unfolding of criminal prosecutions can complicate if not impede peace processes. The negotiation of a lasting peace often requires a delaying, or forgiving, of justice. In attempting to impose fully formed notions of equal rights on countries that have yet to develop them internally, Western countries appear to be bullies, undermining their efforts on the other two fronts. The way out of this, is to stop trying to impose everything at once and opt for a more humble, “micro” approach: a quiet, mediating role in fixing individual wrongs”. Drawing from her experience “in international governance, human security, the responsibility to protect, arms reduction, international criminal justice” Louise Arbour conceded that international justice is “ either very stuck, or it’s very confused”.
In a recent lecture Students of Emory University, ( 2 Jan. 2015) Ben Ferencz the last surviving Chief Prosecutor of the Nuremburg trials recommended a reconsideration of the goals of criminal law. He said that “criminal law is not to put people in jail. It’s to deter the crimes and create a more humane world”. How do you do that? He asked. Answering his own question, he said, “The first step is to stop glorifying war, and begin glorifying peace. You cannot kill an ideology with a gun. You have to have a better ideology.”
The exclusive targeting of Africa needs to be reversed. The wisdom and justice of reversing this policy is justified by the requirement of fundamental fairness in the administration of international criminal justice. The wise counsel of Justice Robert H. Jackson Chief of Counsel for the United States, in his Opening Statement before the International Military Tribunal at Nuremburg on 21 November 1945 is illuminating on this score. Submitting that “Fairness”, “is not a weakness . . . [but] an attribute of our strength,” Justice Jackson warned: “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this Trial will commend itself to posterity as fulfilling humanity’s aspirations to do justice.” The selectivity underpinning ICC Prosecutorial interventions is a poisoned chalice passed to Africa and international criminal justice. The loser is neither Africa nor the ICC. It is international justice and humanity at large.
*Chief Charles Taku is an Advocate of the Supreme Court of Cameroon. He has practiced law for 34 years. For the past 15 years he was lead counsel at three International Criminal Courts.Among his many publications are: African Court and International Criminal Justice and the Quest for a New World Judicial Order; and The ICC and Kenya: Going Beyond the Rhetoric in Justice Belied (2014): The Unbalanced Scales of International Criminal Justice edited by Sebastien Chartrand and John Philpot. The paper was originally presented at the ABA International Law section on May 16 2015.
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