Chief Charles Taku is Lead Counsel International Criminal Court, International Legal Practitioner, International Courts and Tribunals, Former President International Criminal Court Bar Association, and Member for Life Africa Bar Association.
Introduction
The curse of the Westphalian International Legal Order.
Permit me to begin by identifying the legal and ideological framework of violent conflicts and atrocity crimes in Africa which underpinned the invasion and colonization of Africa. The invasion, partition and colonization of Africa was provided a legal cover by the so-called General Act of the Berlin Conference which was signed on 26 February 1885 by nineteen European powers in Berlin Germany.
Article : VI of the said General Act of the Berlin Conference entitled “Provisions Concerning the Protection of Natives, Missionaries and Travelers, and Religious Freedoms” stated that,
“All Powers exercising sovereign rights or influence in the said territories undertake to supervise the preservation of the native population and the improvement of their moral and material condition of life, and […] [to] favor undertakings created and organized for that purpose, or aimed at educating the natives and making them understand and appreciate the advantages of civilization.”[1]
Professor Richard Tsogang Fossi analysed Article VI of the General Act of the Berlin Conference in “Atlas of Absence, Cameroon’s Cultural Heritage in Germany”:
‘This is followed by a sentence of great significance for the posterity of all European museums;….‘Christian missionaries, scholars, researchers, as well as their entourage, their belongings and their collection as well form the object of special protection” and that State protection for collectors and collections: From the beginning, in Europe, the colonial project, the rhetoric of civilisation and the accumulation of material samples of culture and nature on the African continent went hand in hand”[2] Gross colonial violations and serious crimes such as genocide, crimes against humanity and war crimes were committed in execution of the colonial agenda for “educating the natives and making them understand and appreciate the advantages of civilisation.’[3]
From this, there may be no gainsaying that for Africa to be genuinely independent, it must embark on a campaign for the decolonization of international law in order to redeem its cultural identity, regain its creative ingenuity, spirituality, civilization and humanity.[4]
Wilfred Cartey et al. (1970) strongly recommended:
‘To validate one’s heritage, to explore one’s culture, to examine thoroughly those institutions which have persisted through centuries, is perhaps the first step in a peoples’ search for independence and in their quest for freedom from foreign domination’.[5]
Professor Max Hilaire (2023) explains that international law in the Westphalian era defined and regulated relations between European States and granted rights and duties solely for European States. Citing Gustavo Govi’s Rights and Civilization: A History and Philosophy of International Law[6], Professor Max Hilaire explained stated that:
“ The jurisdiction of international law was limited to relations between Europe; it did not extend to territories in Africa, Asia, and Latin America. The people of those territories were objects rather than subjects of international law. International law gave European states the authority to abuse the people of these regions. Using international law as its justification, European states invaded and captured territories in these regions, confiscated their resources, exterminated a significant portion of the indigenous populations and enslaved millions of those who were not killed. European rulers also renamed cities and provinces after themselves and their families members as a way of bestowing honor. The double standard of international law would continue for three centuries”[7]
International law and the Westphalian curse
The situation of European Africa possessions in international law did not change with the advent of the United Nations and did not significantly change with independence. Writing about the attribution of former German colonies under the mandate system after the First World War which were transformed subsequently to trust territories, Jan Ludert (2023) stated,
“Colonized people were viewed as backward and unfit for independence while, under the guise of ‘gradual development’ colonial states maintained a sacred trust of responsibilities for the colonized people under their rule. This meant that non-Europeans were not only ineligible for self-determination and independence, there was not even a promise in the horizon”.[8]
When the time came for independence of its Africa colonial possessions, France for example, passed the loi cadre in 1956 in Brazzaville in which it redefined its relationship with its sub-Saharan African possessions granting them cosmetic autonomy but left significant powers with France.[9] This was independence with strings attached; independence under permanent surveillance.
The world is on fire. As we sit here today, innocent civilians, women, men, children are killed each second in many parts of the world; in Palestine, Ukraine, Democratic Republic of Congo (DRC), Darfur, Africa Sahel countries of Burkina Faso, Mali, Niger, in Western Sahara, in Libya, in the Sahara Desert and the Mediterranean Sea, in my own country the Southern Cameroons, in Northern Cameroon and Nigeria, in Latin America, in the Syria, Iraq, Yemen, indeed; in all parts of the world. This fire on the world is affecting Africa disproportionately, with more than 10 million victims in the DRC alone.
The perpetrators of the conflicts and atrocity crimes in Africa are not only Africans. The weapons which are used to commit atrocity crimes are not made in Africa. They are supplied by entities and forces from outside the continent. Yet none of them has ever been held accountable for the atrocity crimes in the continent.
The world may be said to be at war with its own very soul. Make no mistake, one does not need to be in a country where the carnage is going on to be a victim of the culture of impunity that has taken the world hostage. We are all in it. We are all victims, Modern technology brings the trauma of war, war crimes, crimes against humanity and genocide to us in our bedrooms.
This is not the first time the world has embarked on a course of self-destruction. It is not the first time that human life has lost its value on the watch of the so-called civilized world, also known as supposed gate-keepers of human rights and fundamental freedoms.
The Second World War brought the world to the edge of self-destruction. At the end of the said world war, the so-called civilized world made a solemn pledge of “never again” and followed through with the establishment of the United Nations Organization with its Charter, in which a mandate for the maintenance of ‘world peace and security was engraved’.
It established a rules-based world with guarantees for the promotion and protection of international human rights and progress and happiness for humanity at large. This multilateral treaty architecture has failed the world because the superpowers to which the safeguard of international peace and security was entrusted, soon embarked on unilateral belligerent actions and ideological posturing which has set the world on a path of conflict, war and international criminality.
At the creation of the UN in 1945, non-state actors with a tremendous capacity to wage war and destabilize the world legal, peace and security order was not contemplated. Today, terrorist organizations and multinational corporations have tremendous transborder capacities which have breached the frontiers of the sovereignty of nations. There is no provision of the UN Charter regulating the activities of non-state actors.
Victor’s justice and the international rule of law.
When the reality of non-state actors surfaced, there was no legal mechanism to investigate and punish mass atrocity international crimes which were attributable to them. Indeed, there was no legal mechanism to investigate and punish mass atrocity crimes. The international military tribunals which were established by the Allies in Nuremburg and Tokyo to try Nazi war criminals, failed to attain the universal objectives of international justice because it was perceived to be victor’s justice.
Justice Robert H. Jackson Chief Counsel for the United States cautioned the world about the devastating impact of an unfair judicial process in his opening statement before the International Military Tribunal at Nuremberg on 21 November 1945:
“Fairness is not weakness but an attribute of strength, 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 commend itself to posterity as fulfilling humanity’s aspirations to do justice”.
Victor’s Justice is a trigger for impunity. Nuremberg and Tokyo trials did not deter the commission of atrocity crimes in Africa; in Rwanda, Sierra Leone, Darfur, Cote D’Ivoire, Central Africa Republic, Southern Cameroon, in the Sahel, DRC, Liberia, Western Sahara, Palestine, Ukraine and other parts of the world.
The international Military Tribunal Sitting in Nuremberg on 30 September 1946 established the objectives of international criminal justice by stating that the law of armed forces bind states and regulates the conduct of individuals in armed conflicts but that,
“Crimes against international law are committed men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced”, Trial of Major War Criminals before the International Military Tribunal (IMT) Vol. XXII 477.
Justice and the albatross of impunity
Based on this principle, the international community responded to atrocity crimes in some African situations by establishing two distinctive Ad Hoc Judicial Mechanisms, the International Criminal Tribunal for Rwanda (UNICTR) and the Special Court for Sierra Leone.
The Special Court for Sierra Leone prosecuted perpetrators from all the parties in the conflict in trials which took place in the national territory of Sierra Leone. The SCSL was established by an Agreement between the United Nations and the Government of Sierra Leone pursuant to Security Council resolution 1315 (2000) of 14 August 2000
Article 1 Competence of the Special Court 1.
The Special Court shall, except as provided in subparagraph (2), have the power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone.
The ICTR was Victor’s Justice, because only the vanquished in the war were prosecuted; leaving the victors to continue with the culture of impunity which has set the East Democratic Republic of Congo on Fire.
For the avoidance of doubt, the Security Council, in its Resolution 1534 (2004) at its 4935th meeting on the March 26, 2004 resolved in Article 2 as follows:
“Reaffirms the necessity of trials of persons indicted by the ICTR and reiterates its call on all states, especially Rwanda, Kenya, and the Democratic Republic of the Congo to intensify cooperation with and render all necessaryassistance to the ICTR, including investigating of the Rwandan Patriotic Army and efforts to bring Felicien Kabuga and all other indictees of the ICTR to surrender to the ICTR” (emphasis added).
Persistent pressure on the Tribunal by Rwanda, which included threats of non-cooperation, pushed the Tribunal to become a laboratory for “victor’s justice”. Faced with this alarming record, the Security Council took no steps to hold succeeding ICTR prosecutors accountable for the failure to investigate and prosecute Rwandan Patriotic Army (RPA) crimes.
The former Prosecutor of the ICTR, Carla Del Ponte, publicly complained about undue influence which the former United States Ambassador-at-large for War Crimes, Pierre Prosper put on her to discontinue investigations of the RPF. She did not publicly disclose the reasons for the undue pressure. She also did not provide reasons why she submitted to the pressure even when the undue pressure violated the oath of independence to which she was bound under the Statute of the ICTR.
Her predecessor, Louise Arbour, commenced investigating the RPF but quickly abandoned the effort due to similar pressure. Hassan Jallow, who succeeded Carla Del Ponte, repeatedly informed the Security Council in his annual reports that he was investigating the crimes committed by the RPF. He eventually dropped the subject from his annual reports without explanation.[10] Yet there was an abundance of evidence about the atrocity crimes which were committed by the RPA against civilians and civilian objects.
Generally the RPA specifically targeted Hutu civilians who were fleeing from the armed conflict into the forests of the Democratic Republic of Congo in its military campaign. However, its indiscriminate bombardments in Rwanda did not make a distinction on the base of ethnicity. The match to power which was facilitated by the downing of the plane which killed President Habyarimana, his Burundi counterpart and his Chief of Staff as it approached the Kanombe International Airport in the evening of 6 April 1994 and the complicit inaction of UNAMIR. The resulting impunity and carnage it unleashed, was captured in this macabre scene which was described by General Romeo Dallaire the UNAMIR Field Commander in Roméo Dallaire, Shake Hands with the Devil: The Failure of Humanity in Rwanda (Vintage, Canada, 2004) at page 361.
“Late that afternoon, I was called to meet the minister of social welfare at the Kigali hospital. He was absolutely hysterical by the time I got out of my vehicle at the main gate. Before me was a scene of chaos and horror that simply seemed to explode in my face.
The RPF had fired three to four artillery rounds into the hospital compound. Fumes and smoke still hung over the site, filtering the brightness of the sun and turning everything into a dreamlike image of atrocity. One bomb had landed in the middle of a large tent erected as a shelter for a shelter for thirty injured persons. Staff were cleaning pieces of charred bodies and trying to put up tents had surrounded it back up. Inside the nearby walled compound, stood the pharmacy and dispensary . It had a wired service counter in a doorway people would line up along the wall waiting for their prescriptions to be filled. The yellow painted one- storey building was standing although all the windows were smashed After a closer look I was aghast. On the wall there were outlines of people, of women, of children, made of blood and earth. It was like a scene from out of Hiroshima. There had been forty people standing against the wall, caught between the shell blasts and the solid building. A medical person said some people just exploded in the air.None survived.
Chief Charles Taku at a Law School lecture in Paris
I could not absorb the carnage. As an artillery officer, I have seen the effects of explosions on all sorts of targets ,, but never could I have imagined the impact of such hits on human beings. The age of ‘abstract exercise was over for me’. Hundreds of people of all ages were crying and screaming , and staff ran every which way trying to attend to all wounded. With tears and craze gestures, the minister of social affairs screamed at me that UNAMIR and I were accomplices to this savagery and that he hoped I will never be able to erase this scene from my mind. Then my aide de camp came up to me with a Motorola. It was Henry. The Force HQ was under heavy artillery attack”.
One clear source of impunity was obvious from the attitude of General Dallaire the UN Force Commander of UNAMIR in Rwanda towards the atrocity crimes which were occurring on his watch. It is discernible from some of the answers which General Romeo Dallaire gave to my cross-examination on the missile attack on the plane carrying President Habyarimana and the killing of Belgian UN Peacekeepers:
Q. Now, I ask this question, General, whether it is not true that the airport zone was under the control of UNAMIR or at least there was military presence at the Kanombe Airport?
A. You are absolutely correct. The airport was what I called in military parlance my vital ground, that is to say, the essential link of my mission was the outside world, and that is why I
Q. General Dallaire, in your book, Shake Hands with the Devil, page 239—
MR. TAKU:
Oh, I'm sorry, Your Honor, I have an English version, I just—I don't have a copy of the French, but I will read very slowly for them to be able to assist us, Your Honor.
BY MR. TAKU:
Q. And I quote, Your Honor, the paragraph that are relevant to this question. "I did not raise the issue of the Belgian soldiers in that speech because I wanted to discuss it with Bagosora alone. It was that decision, in part, that contributed to the deaths of 10 soldiers under my command. Commanders spend their careers preparing for the moment when they will have to choose between lose-lose propositions in the use of their troops. Regardless of the decision they make, some of their men will most certainly die. My decision took sons from their parents, husbands from their wives, fathers from their children. I knew the cost of my decision. I was risking the lives of Belgians in Camp Kigali."
Question: Must we understand by that, General Dallaire, that you were, in effect, accepting some responsibility for the tragic death of the Belgian blue helmets?
You are absolutely right. I was the commander, and as the commander I have responsibility for all of my troops and whatever happens to them.
He did nothing to attempt to save victims of atrocity crimes in Rwanda and also did not attempt to save UN forces who were under his command. To conceal the inability, omission, negligence or deliberate decision by the United Nations Security Council to end the impunity and the atrocity crimes which had extended to the East Democratic Republic of Congo leading to the extermination of over ten million people and the plunder of the mineral resources of the DRC, the Prosecutor of the ICTR charged Major Francois-Xavier Nzuwonemeye, the former commander of the reconnaissance battalion of the former Rwanda army, for the carnage which General Dallaire wrote about; for the death of UN Belgian Peace-keepers, and for the death of the Prime Minister Agathe Uwilingiyimana.
After 14 years of illegal detention, my co-counsel Beth Lyons and I obtained the acquittal of Major Nzuwonemeye on appeal. His application for reparations for his illegal detention and misconceived prosecution were denied. He is presently in illegal house arrest in Niamey Niger Republic at the pleasure of the United Nations; acquitted but not free. Till this moment, the perpetrators of these atrocity crimes have not been prosecuted. Over the past two decades they have been flying on the wings of impunity which they were offered by the gatekeepers of international peace and security architecture, to pursue their killing and plundering spree in the East of the DRC; thus, making the Great Lakes Region, a powder key of insecurity in Africa.
Pillar of balanced justice
The situation in Sierra Leone was different. All the parties in the armed conflict were prosecuted and the trials took place within the national territory of Sierra Leone. I was the lead counsel for Brigadier Morris Kallon, the deputy commander of the Revolutionary United Front for Sierra Leone (RUF). The Special Court for Sierra Leone was the first hybrid court which operated with a measure of success. It was the first international court to establish a jurisprudence on child soldiers, sex and gender based crimes ( bush wives), head of state immunity – prosecution of Charles Taylor and the President Tejan Kabbah subpoena, attacks of United Nations peace keepers. The model was adopted in East Timor, Cambodia and now Central Africa Republic.
Hope and despair: The international rule of law and its infamy of impunity
On 17 July 1998 the world rose to the news of the signature of the Rome Statute establishing a standing international court with a renewed commitment to save humanity from the scourge of war and atrocity crimes. It went into force on 1 July 2002 with the following ambitious objectives which are stated in its preamble:
Conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time,
Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity, Recognizing that such grave crimes threaten the peace, security and well-being of the world,
Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation,
Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes,
Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes,
Reaffirming the Purposes and Principles of the Charter of the United Nations, and in particular that all States shall refrain from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations,
Emphasizing in this connection that nothing in this Statute shall be taken as authorizing any State Party to intervene in an armed conflict or in the internal affairs of any State,
Determined to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal Court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole,
The court currently has 124 state parties.
The office of the prosecutor carries out a preliminary examination to ascertain whether a situation meets the legal criteria for investigation. A preliminary examination may be by individuals, groups, states, intergovernmental organizations, non-governmental organizations, a referral from a state party, or UN Security Council or a declaration by a state accepting the exercise of jurisdiction by the ICC Article 12(3) of the Statue.
Commitment to universality
The commitment to universality of the Rome Statute fell short because a majority of the world population is currently outside the jurisdictional reach of the treaty and the Court it established to enforce it. The USA, Russia, China, three consequential world powers and members of the Security Council are not state parties of the Rome Statute. India, Pakistan and North Korea which are officially nuclear powers are not state parties to the Rome Statute. Only two super powers, France and Britain are state parties and members of the court.
The Rome Statute in its preamble and its Article 17 of the Statute committed to exercise a complementary rule to national jurisdictions. In order words, the ICC will only intervene when national jurisdictions fail to do so, are unable to do so, or refuse to do so. Has this been the case? The answer is in the negative. The ICC has looked away from clear cases of transborder carnage and blatant impunity. One such case is the Southern Cameroons conflict which if mirrored on the Rohingya model as a result of the magnitude of the cases of abductions and deportations of Southern Cameroons victims on the territory of Nigeria which is a state party to the Rome Statute, Nigeria may be said to be a potential ICC jurisdictional corridor to the atrocity crimes in the conflict.
Security Council authority
Despite its commitment to independence, the Rome Statute, which many people characterized as a product of international diplomatic and political horse-trading in key respects, ceded considerable power to the United Nations Security Council. Article 13 (b) of the Rome Statute granted the UN Security Council the power of referral of cases and Deferral in Article 17. This authority effectively allows permanent members of the Security Council which are not state parties of the Rome Statute to make decisions for the court. France and Britain are the only members of the Security Council of the UN which are state parties to the Rome Statute. Russia, China and the USA are not state parties.
Based on this authority, the Security referred the Situation in Libya and the Situation in Darfur to the ICC without providing the resources for the ICC to investigate and prosecute the cases in both situations. These referrals were made at the height of war and intense NATO bombardment of Libya and the mass slaughter of the civilian population of Darfur by Omar Al Bashir the then President of Sudan and the Janjaweed militia.
In the situations in Libya and Sudan, the Prosecutor indicted two sitting Presidents; Moamar Khadafi of Libya and Omar Al Bashir of Sudan. President Moamar Khadafi was killed during the NATO French-led military campaign. The indictment of Omar Al Bashir was vigorously opposed by the African Union which asserted that President Al Bashir enjoyed head of state immunity. The debate about head of state immunity is ongoing. The prosecution of Hissène Habré, a former President of Chad Republic for the international crimes he committed while in power as head of state between 1982-1990, before an African Union constituted Extraordinary African Chambers for crimes against impunity, war crimes and torture, is consistent with Article 46 A bis of the Malabo Protocol granting the African Court of Human and Peoples’ Rights which defers the prosecution of a head of state for crimes committed while in office to when he or she is no longer in office. This provision, has been criticized for encouraging dictators not to relinquish power in order to insulate themselves from potential prosecution once out of office.
Conflicting treaty regimes.
The African Union was presented with conflicting treaty regimes in the cases of Al Bashir: No head of state immunity under the Rome Statute and the AU, under the Malabo protocol and customary international law, asserted that a head of state may be prosecuted for crimes he committed while in power only after he or she leaves office. The Security Council was divided on the matter; and Russia and China which had supported the referrals opposed any resolution which called for international cooperation to enforce ICC warrants against President Al Bashir.
The ICC has faced legal problems in its Africa situations.
Situation in Libya
The Prosecutor did not investigate the death of Moamar Khadafi, an ICC indictee who was killed in the course of NATO invasion and bombardments of Libya despite the fact that it was a UNSC referral. The UNSC itself did not cause an investigation to be carried out. NATO and its allied militias enjoyed total immunity from investigation and prosecution.
In the situation in Libya, the atrocity crimes which were committed by allied criminal gangs which took up weapons on the side of NATO and Western Nations to fight and depose President Moamar Khadafi were completely absolved of criminal responsibility. This was a validation of impunity and victor’s justice. Control over Libya is shared by different criminal gangs some who fueling the trans-Sahara-Mediterranean migration and the enslavement of Sub-Saharan Africans.
Conflicting interests
The US invasion of Iraq with a so-called coalition of the willing without a UNSC authorization in 2003, caused the Prosecutor of the ICC to open a preliminary examination in the situation in Iraq. The intense and systematic bombardment of Iraq occasioned mass atrocity crimes which shocked the conscience of humanity. In reaction to the decision of the Prosecutor to investigate, the US enacted the US Service Persons protection Act in which the US signed special agreements with several countries, including a majority of member states of the Rome Statute, not to execute ICC warrants against American service men and women. The ICC does not have a police force and relies on the cooperation of states to enforce its warrants. When states, in particular state parties refuse to cooperate, there is practically nothing the court can do .
Two decades of ICC exclusive focus on Africa
Over the past 25 years of its existence, the ICC’s focused solely on Africa. Many of the African situations occurred in the context of war. Dominic Ongwen my client, is the first child soldier and special needs person to be prosecuted for crimes he committed as a young adult during the brutal 20 years war between the Lord’s Resistance Army led by Joseph Kony and the Ugandan Government. He was abducted at the age of 8 years 7 months by the Lord’s Resistance Army and remained in the bush for 27 years.
The ICC indicted 5 other LRA commanders. Three of the commanders, Vincent Otti, Okot Odhiambo, Raska Lukwiya died during the armed conflict. The ICC did not indict a single member of the Uganda Peoples’ Defence Forces (UPDF) for the atrocity crimes which they committed against civilians and civilian targets. Like the RPA before, the UPDF has claimed that its soldiers were protectors and therefore, victims of LRA attacks, during the twenty years war in which the military of Uganda, US Special Forces, DRC, CAR, and South Sudan participated. The claim of protector status was recently rejected by the ICC Trial Chamber in the Ongwen reparations proceedings. Nevertheless, the decision not to investigate and prosecute UPDF commanders for mass atrocity crimes which forces under their command committed, is victor’s justice.
Cote D’Ivoire
The ICC intervention in Cote D ‘Ivoire led to the prosecution of President Laurent Gbagbo and Charles Goude Ble. They were brought to the Hague, tried and acquitted. Not a single member of the forces who were aligned with President Alassane Ouattara was prosecuted. Jose E. Alvarez, writes disclosed that the UN eventually took over responsibility for a French–funded, largely Francophone force which deployed between 2003 and 2004 under the auspices of the Economic Community of West African States (ECOWAS) in Cote D’Ivoire. The 4,600-troop Operation Licorne force nevertheless, remained under French command.[11]
According to Paris, the force was supported by a UN Resolution to prevent civil war and the massacre of civilians, but critics saw it as another case of France sending its forces to ‘pacify the natives’ as the former colonial master which had important investments to protect in the country – human, material, and symbolic. Critics considered Operation Licorne as another case of old-fashioned French military intervention”.
The Situation in Kenya was perceived as a balancing act which backfired. In the DRC, despite the enormity of the crimes and the sheer number of victims, over 10 million but only periphery individuals have been brought before the Court.
Jean Pierre Bemba was acquitted in the case which was brought against him for his involvement in the war in Central Africa Republic.
The prosecutions in African situations were delegitimized by the accusations that they were victor’s justice. Vanquished in the conflicts were prosecuted while victors were left free. Victor’s justice encourages impunity and violates the Rome Statute which the ICC was established implement. Victor’s justice strengthens the hand of tyranny. It entrenches division and eternalizes the spirit of conflict. Victor justice inappropriately constitute victors as victims leaving victims of atrocity crimes on the side of the vanquished to resort to self-help measures to avenge for the crimes they suffered. This is a vector of instability.
The politicization of international justice in Africa.
The self-referral of cases to the ICC has become an avenue for brutal dictators to hope to settle political scores and take out political opponents. This is one factor of selective justice.
The Africanization of atrocity crimes in Africa Situations.
Crimes within the jurisdiction of the ICC are committed in Africa. There is a reasonable basis for investigation. However these crimes are not committed solely by Africans. Africans are not manufacturers of the weapons which are used to commit atrocity crimes in African conflict zones.
These weapons are supplied by governments, foreign non-state actors and even multinational corporations. The weapons for mineral merchants are immune from prosecution and whitewashed as foreign investments or are given diplomatic cover by their governments to facilitate the commission of crimes in Africa’s mineral belt.
Race to recolonization of Africa.
The race to recolonize Africa is on, with Russian security architecture in Central Africa Republic and in the Sahel. The Chinese are in the Republic of Cameroun, in Zambia, in DRC, Sierra Loene, in the Horn of Africa where they have acquired expansive swipes of fertile arable lands, mining rights and infrastructural contracts and in many parts of the continent. The ghost of colonialism and neocolonialism has never left Africa and indeed, controls and torments the soul of neocolonial supposed independent states of African. The hopelessness and dire subsistence situation of young Africans are driving dangerous migration towards Europe and the US. They are claiming a high toll on the lives of our youth and subjecting many of them to most humiliating inhuman conditions of life.
Triggers for these conditions come from dire economic and political conditions. Politicized international sanctions based on ideological differences, are triggers for global large-scale migration. Non-transfer of technology has hampered development of homebased goods and job creation.
The proliferation of outlawed weapons from the West and the East to Africa in violation international conventional law, has kept Africa in a permanent situation of conflicts. In the place of mass targeted sanctions which penalize the poor, international warrants should be issued for the arrest of mass criminals who have made conditions of life impossible for citizens in different countries in Africa. A simple way of stopping the carnage in the Southern Cameroons is for countries with universal jurisdiction to issue arrest warrants against genocidal masterminds who have been prying on the blood of armless Southern Cameroons civilians in the past eight years and to establish and international mechanism to examine the root causes of the conflict.
Africa is a continent of forgotten conflicts.
The Western Sahara is a member state of the Africa Union. Morocco and Algeria have been in a permanent situation of tension over the Western Sahara conflict for many decades. The United Nations has been inconsistent in resolving the conflict.
Somalia, Ethiopia and Eritrea are a powder keg of conflict and instability in the horn of Africa. Africa is assailed by international terrorist networks in the West, in the Center, in the Gulf of Guinea, in the Lake Tchad Basin, in the Sahara Desert and the Mediterranean; in the Middle East particularly in Sinai, Gulf of Aden, in the East, particularly Sudan, Darfur, South Sudan, Uganda, in the South, particularly Mozambique, in the Center, particularly in Central Africa Republic, in the Great Lakes, in Rwanda, Burundi, the Southern Cameroons and the DRC. The UN and so-called international peace and security architecture has paid lip service to these conflicts. Some have questioned, based on the massive mineral resources in these situations, whether the gate-keepers of the international system are not fueling and benefitting from the war economy in these situation countries.
Failed initiatives.
The international response to these bloodletting conflicts are varied.
From the African Union: The sloganeering of conflict resolution, conflict management or conflict mitigation measures has made the continental organization the laughing stock of the world. Imagine one: Silencing the guns in 2020. That dateline instead witnessed the escalation of armed conflicts in the continent.
The commendable Africa Union peace-keeping initiatives in Somalia, Central Africa Republic and Darfur are largely financed by the European Union because the AU multilateral peace and security regime has no financial security and autonomy to anticipate and intervene in African conflicts before they become full-blown blood baths. Besides Africa is a battle-ground for foreign economic and geo-strategic interests. Africa has lost its sovereignty over key sectors of its existential economy. There is a paucity of critical salvific leaders among the younger generation of leaders in the continent who may steer the continent in the direction of economic sovereignty, freedom and genuine independence
Decolonization of international law
For Africa to be genuinely free, independent and take its destiny into its own hands, Africa must struggle for an effective decolonization of international law. On 18 March 1991, I was present at the African Bar Association in Abuja Nigeria as an ambitious young lawyer. There, I heard Chief MKO Abiola (August 24, 1937, July 7, 1998) excoriate the so-called international legal order and called for reparations for colonial crimes against Africa in his keynote address titled “Social Justice and the New World Order”:
The Iraqis committed terrible crimes against the Kuwaiti people during six months of brutal occupation. Tell us a single thing that Iraq did to Kuwait which the colonial masters did not do to us for six centuries and still continue to do? […] If Iraq was punished for not returning stolen treasures from Kuwait, we too deserve an immediate return of our plundered treasures now on display in the magnificent museums of Europe and America.
‘If we accept – and men and women of good will must – that Iraq should be punished and made to pay reparations for plundering Kuwait for six months, how can it be honestly said that Africa should not be compensated after being plundered for six centuries? If we cannot express concretely this expanded idea of equality before the law of individuals as well as of states, nations, and continents, I regret to say it, but it must be said, that the law is an ass’.
‘Kindly tell what Iraq did to Kuwait which the United Kingdom, France, Spain, Portugal, Germany, Belgium, Italy, and Holland did not do to Nigeria, Ghana, Zimbabwe, Namibia, Angola, and every other African country except Liberia, which was used as a dumping ground for free slaves from the US? The Iraqis committed terrible crimes against the Kuwait people during six months of brutal occupation. Tell us a single thing that Iraq did to Kuwait that our colonial masters did not do to us for six centuries and continue to do. Palaces were destroyed and looted in Kuwait. So were they in Benin, Sokoto, Ndebeleland, Timbuktu, Agadez and thousands of other African cities’.
‘Justice and conscience”, Chief Abiola submitted, “demands that just as America and their allies were fighting to rebuild the palaces and cities of Kuwait, we, too, demand that our cities and palaces be rebuilt. If Iraq were punished further for not returning treasures it stole from Kuwait, we, too, deserve an immediate “return of our own plundered treasures now on display in the magnificent museums of Europe and America’.
‘Of far greater importance is the plunder of human treasuries, the millions of young men and women in the full bloom of youth, plucked like fresh fruits from the soil of our motherland. We, as a people and a continent, have a right to be compensated for the far greater crimes of slavery, colonialism and neo-colonialism which lasted for centuries and cost hundreds of millions of lives. Many of the problems afflicting Africa today are products of damages done by slavery and colonialism. Without reparations these problems cannot be solved. In view of the excruciating debt burden imposed on the continent, time has come for us to seek for the economic kingdom since political kingdom advocated by Kwame Nkrumah had been attained’.
Continental rule of law framework .
An independent, free and fair judicial framework is the pulse of a nation. It is a credible vector of stability in democratic societies. It ensures election integrity, economic justice, equality before the law and the rule of law for all. This is lacking in Africa. The African Court of Human and peoples’ Rights in Arusha Tanzania brought a glimmer of hope for the people on the continent. But many governments in the continent have not signed the protocol establishing the court. The countries which have signed, have not signed the special clause granting individual mandates to their citizens to have access to the court. Rwanda, Benin Republic and Tanzania lost cases brought by their citizens and withdrew the individual mandates granting access to their citizens.
The Malabo Protocol granting criminal jurisdiction to the Court to investigate and prosecute a wide range of atrocity crimes committed in the continent has not received the required number of state signatures to become operational and effective. Africa is sleepwalking into the fire of existential threats which are taunting the continent. The ghost of impunity which is devastating the continent must be tamed now. Current universal challenges and trends require an inspiring leadership for a new Africa. The leadership of new Africa rests with the African youth. The youth belong to all categories of leadership in the new world order. The era of leaders who are living in the distant neo-colonial past has beaconed.
The colonial and neocolonial international legal order was not for Africa and Africans. In this technological age, the age of innovation, Africa has the tools to make a meaningful contribution to a new world legal order, which is just and humane. This regrettably cannot be attained with the old order. This old and wasted leadership in the continent must cede the leadership of the continent to decolonized leaders in a totally decolonized new world legal order.
Conclusion
This dire assessment notwithstanding, there is hope. Modern technology and other critical universal trends have not left the African youth behind. Modern technology has breached the neocolonial frontiers of sovereignty which prevented the African youth and others from participating and providing solutions to the problems of Africa. The fact that this discussion is taking place is a significant contribution to a solution seeking effort.
A few years back, this discussion would have been criminalized and would not have been authorized in some African countries. I also am aware of efforts in some countries to whitewash this sad history which brought this calamitous condition which we are struggling to free Africa and posterity from. Without this truthful discussion and narrative about the challenges of the past, the tortured enslaved narratives which were imposed by colonial ghosts will sear deep into the confines of our humanity, of posterity and the potential consequences will be scary. In that situation, the blame will no longer be entirely that of those who inflicted these crimes on us but on ourselves as well.
[1] www.blackpast.org · general-act-conference-berlin(1885) General Act of the Conference of Berlin-Blackpast
[4] The Legal and Moral Conscience of Justice in European Collections of Colonial Provenance: The Bangwa Quest for Restitution and Reparations Chief Charles A. Taku, Provenance Research on Collections from Colonial Contexts – Principles, Approaches, Challenges 05 Editors: Claudia Andratschke Lars Müller Katja Lembke : https://books.ub.uni-heidelberg.de/arthistoricum/catalog/book/1270.
[5] Cartey, Wilfred; Kilson, Martin (1970): Introduction, in: Cartey, Wilfred; Kilson, Martin (Eds): The African Reader: Independent Africa, New York (1970), (p 3).
[6] Gustavo Govi, Rights and Civilisation: A History and Philosophy of International Law, NY, Cambridge University Press,(2019) p 111
[7] Max Hilaire, The Evolution and Transformation of International Law: Development in International Law, From the Peace of Westphalia to Post United Nations Charter, P,59 Logos Verlag Berlin GmbH Georg-Knorr-St, Geb. 10
[8] Jan Lundert et al.,(2023) The United Nations Trusteeship System, Legacies, P 13,Continuities, and Change, Routledge Taylor & Francis Group 603 Third Avenue New York, NY 10159
[9]https://jstor.org New Conceptions of French Policy in Tropical Africa by Rene Massigli, Stevenson Memorial Lecture.No.7,21 May 1957 https://jstor.org
