The ICC, Africa and the Travesty of International Criminal Justice

 

Uchechukwu Ngwaba*.

Abstract

The excitement with which Africa welcomed the International Criminal Court (ICC) has given way to wariness and outright opposition on account of perceptions of unfair targeting of the continent; double standards in the pursuit of international criminal justice and the feeling that the ICC is a tool for the perpetuation of global power matrices and asymmetries. This paper deploys third world approaches to international law’s framework to argue that Africa’s current predicament with the ICC is largely self-inflicted. The paper argues that it is absurd for Africa to expect too much from the ICC or that the ICC will be the answer to the injustices of impunity of the strong against the weak in the global system. Going forward, the paper examines the alternatives being pursued by the continent, namely, the expansion of the jurisdiction of the African court of Justice and Human Rights to include jurisdiction over international crimes.  

     INTRODUCTION

That the International Criminal Court (ICC or the Court) has disappointed expectations that it will be a forum where impunity will be reined, and persons responsible for “the most serious crimes of international concern”[i] brought to justice, is a much canvassed issue amongst many commentators that this paper should not be detained by that discussion.[ii] What has not been sufficiently canvassed however is what is argued to be the “travesty of international criminal justice”.[iii] The argument here is that international criminal justice (as currently engaged with by the ICC) is a travesty because it only provides the apparition of justice which, when subjected to the scrutiny of corporal critical dimensions, is revealed for what it is – an illusory vision. By this argument, the sole objective is to dismiss suggestions that all our faith and hopes for putting an end to impunity in the international system (for acts or omissions widely regarded as offending humanity)[iv] should be vested in the ICC.

Three key propositions are advanced in substantiating this framing argument. The first is to the effect that the ICC is not in a position to deliver on its promise of putting an end to impunity for crimes of the most serious concern to the international community because by design, it is not meant to achieve that purpose. The second says that the perception that Africa has been dealt a bad hand in the prosecutorial praxis of the ICC, while a major cause for concern, ignores the obvious fact that ultimately, the continent and its leadership are chiefly responsible for its problems as well as their resolution. As a final proposition, while hope(s) for a world rid of impunity, one whose playing field is level for all, remains an illusion not to be seriously entertained, it is within the realm of possibilities for African states to set up a “proper” mechanism for redressing impunity on the continent through the existing African Union (AU) system. If seriously pursued, such mechanism can offer a viable alternative to the ICC and consequently insulate the continent from the inequalities and asymmetries inherent in the current setup of the ICC – one that “fosters and reproduces a binary dichotomy that ruptures the globe into two conceptual communities, the one “heavenly” and the other “hellish”.[v]

The key objective of this paper is to systematically interrogate the claim that the ICC-centric paradigm of international criminal justice is a travesty by utilising critical third world approaches to international law (TWAIL) perspective(s) to ascertain the extent to which that claim is substantiated by the propositions in the preceding paragraph. As such the first objective is to unravel the extent to which the current set-up of the Court, that confers enormous power(s) of control and influence over the Court on a few states while at the same time insulating those same states (and their allies) from the processes of the Court, can achieve the objective of putting an end to impunity for international crimes. To what extent (if at all) is Africa responsible for the current predicament facing it (in terms of creating an environment for the ICC’s lopsided justice praxis to flourish)? Can African states set up mechanisms, within the existing AU system, that can be effectively deployed to put an end to impunity for international crimes committed on the continent? If so, what form should such mechanisms assume and what should be the nature of the relationship (of the mechanisms) with the ICC? Would such mechanisms be capable of insulating the continent from the perceived injustices of global power matrixes and asymmetries?

As this paper situates itself within the broad framework of TWAIL analytical tradition, it is necessary to briefly outline the content and nature of that approach. The intellectual roots of TWAIL go as far back as the Afro-Asian anti-colonial struggles of the 1940s-1960s, and even before then, to the Latin American de-colonization movements. In its current form, contemporary TWAIL scholars have engaged strongly with other critical schools of international legal scholarship.[vi] TWAIL scholars deploy a wide range of “analytic techniques/sensibilities”[vii] in their commitment to providing alternative approaches that “assail the creation and perpetuation of international law” in ways which subordinate the third world in the global order.[viii] Through this analytical techniques, TWAIL scholars seek, inter alia: (i) to write the third world’s broadly shared historical experiences of being discriminated against and subjugated, in part, via the instrumentality of international law and institutions (such as the ICC), into processes and outcomes of international thought and action; (ii) to take the equality of third world peoples much more seriously, resulting in the insistence that all thought and action concerning international relations (such as through institutions like the ICC) should proceed on the assumption that third world peoples and leaders deserve no less dignity, security and freedom from punitive international action than do the citizens and leaders of the more powerful states; (iii) to deeply interrogate all claims of universality, including claims that the ICC’s key mandate is to put an end to impunity for the most serious crimes of international concern, wherever such crimes are committed in the world; (iv) and to map/document/analyze the ways in which third world resistance has shaped and continue to shape the character, orientation and effectiveness of international institutions (such as the ICC).[ix] As utilized in the paper, the term “third world” is understood more as a “chorus of voices”[x] sharing similar historical experiences and concerns, and “less as a fixed geographical space;”[xi] this is not to however suggest that certain “geographies of injustice” do not remain discernible and significant in our time.[xii]

The discussion in this paper is organised around the critical and systematic analysis of the three broad propositions earlier advanced in support of the claim that the ICC’s paradigm of international criminal justice is a travesty. There are five major sections to this analysis (including this introductory section). Section II addresses the first claim that the ICC cannot deliver on the objective of putting an end to impunity in the international system because by design it is not meant to achieve that purpose. It utilises Twail techniques to answer the question whether the current set-up of the Court, that confers enormous power(s) of control and influence over the Court on a few states while at the same time insulating those states (and their allies) from the processes of the Court can achieve the objective of putting an end to impunity for international crimes in the international system.

Section III examines the second claim that despite perceptions and allegations of unfair targeting of Africa by the Court, the continent and its leadership remain the chiefly responsible for the continent’s problems as well as their resolution. Here again Twail analytical techniques are used to establish to what extent (if at all) the continent should be held accountable for its international criminal justice challenges.

Section IV responds to the claim that African states can set up a “proper” mechanism within the existing AU system, to address impunity on the continent and that such mechanism can (very well) serve as an alternative to the ICC system in the effort to rein impunity on the African continent. It utilises Twail analytical techniques to question whether the recent expansion of the jurisdiction of the African Court of Justice and Human Rights (ACJHR) to include international crimes satisfies the requirement of a “proper” mechanism to curb impunity on the continent.

ICC, STRUCTURAL ASYMMETRY AND THE POLITICS OF ENDING IMPUNITY

 Framing this section is the claim that the ICC cannot fulfil the key objective for which it was set up by the Rome Statute because its design is flawed. At first blush, this claim contradicts what the Rome Statute stands for. In particular, Article 1 which provides:

An International Criminal Court (“the Court”) is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction for the most serious crimes of international concern, as referred to in this Statute, and shall be complimentary to national criminal jurisdictions…

There are two premises to this claim which are foundational. The first premise is an argument about structural asymmetry in the institutional design of the Court which perpetuates old patterns of subjugation (of third world peoples by the first world).[xiii] The second premise, which feeds off the first, is about how global politics (determined, at any given time, by what is the prevailing interests of global powers)[xiv] defines how the Court operates and what it regards as a serious crime of international concern. Here the point is that the assessment whether an act and/or omission is to be regarded a serious crime of international concern may not necessarily follow a consistent logic – sometimes other considerations come into play. Each of these points further explication.

• Structural asymmetry of the ICC

 The structural asymmetry in the institutional design of the Court is occasioned by the referral powers conferred by Article 13 of the Rome Statute on the Security Council acting under Chapter VII of the Charter of the United Nations (UN). This power which is vested on the Security Council of the UN is one of three methods by which cases can be brought before the Court;[xv] two of the nine situations currently before the court (the situations in Sudan (Darfur) and Libya) were instituted through this method.[xvi]

While there is nothing inherently wrong with the Rome Statute provision that empowers the UN Security Council to refer cases to the Court, it is an altogether different consideration when more than half of the permanent members of the Security Council are not bound by the processes and proceedings of the Court because they are not parties to the Rome Statute: the United States of America (US), Russia and China are not parties to the Rome Statute[xvii] and as such, going by Article 12 of the Rome Statute (on the preconditions for the exercise of jurisdiction by the Court) they are insulated from its processes.

The only other method by which the trio of US, Russia and China can be brought before the Court to face prosecution for any serious crimes of international concern committed by them is where such crimes are referred to the Court by the UN Security Council. However that is a most unlikely outcome given the fact of veto power which each of these three powerful states can exercise over the decisions of the UN Security Council.

The consequence of this set up is that these “big powers” have been situated as “enforcers of justice internationally”[xviii] whilst at the same time almost completely insulating themselves from the processes of the justice system which they are suppose to be enforcing.[xix] This set up is one which is argued to perpetuate a perverse, perverted, and/or problematic form of normativity that bows at the feet of global power and reinforces global power matrixes and asymmetries.[xx] As such the fact that the US and Russia who have been involved (and continue to be involved) in conflict situations around the world cannot be held to account by the international criminal justice system (which the Court represents) for their actions in these conflicts (notwithstanding allegations of war crimes leveled against them)[xxi] is a clear indication that there is something seriously wrong with the current set-up of the Court. This feeling is shared by Mamdani who argues that:

The emphasis on big powers as the protectors of rights internationally is increasingly being twinned with an emphasis on big powers as enforcers of justice internationally… Its name notwithstanding, the ICC is rapidly turning into a Western court to try African crimes against humanity. It has targeted governments that are US adversaries and ignored actions the United States doesn’t oppose, like those of Uganda and Rwanda in eastern Congo, effectively conferring impunity on them.[xxii]

       The politics of ending impunity[xxiii]

The decision whether or not to prosecute, whom to prosecute, and for what to prosecute is essentially a political one. This is one of the main claims made by Sarah Nouwen and Wouter Werner in their seminal work about the ICC and its engagement with the situation in Uganda and Sudan. They argue that “the ICC has become a battleground for political contestation”.[xxiv] ICC officials would however have us believe otherwise.[xxv] But if one reflects deeply on the discussion in the previous subsection, good reasons present themselves why ICC’s denial of the influence of the political in its praxis should not be taken too seriously. Of greater concern, however, is the extent to which that knowledge inspires the fear of bias. This is an inevitable outcome of the current institutional set-up and praxis of the Court. Some commentators have expressed this fear arguing that:

…the relatively very invasive involvement of the ICC in Africa (especially as compared to other continents or places) has masked much more than it has revealed about the character, imperatives, and high politics of transitional justice praxis itself, and has in the result tended to leave all-too-many of us with the decidedly wrong impressions. Both in and of itself, and as the most prominent “representative” of international criminal justice today, the ICC’s apparent “geo-stationary orbit” over Africa (i.e. its near total focus on that continent) has wittingly or unwittingly masked (to a significant extent) the enormity and vast extent of the incidence of international criminality in all-too-many other parts of the globe. Given their notoriety, it is hardly necessary to name all of these places, but the names Chechnya, Iraq, Afghanistan, and Colombia (where by conservative estimates tens of thousands have been slaughtered in a manner that suggests international criminal conduct) may ring a bell in this respect.[xxvi]

INVESTIGATING AFRICA’S RESPONSIBILITY FOR ITS INTERNATIONAL CRIMINAL JUSTICE PROBLEMS

This section of the paper is organised around the determination of the extent to which the African continent should bear primary responsibility for its international criminal justice problems and how a proper response to those problems should be framed.

The early support which the ICC received from Africa[xxvii] was largely inspired by the hope(s) that the Court will usher in a new era of accountability for past criminality by powerful responsible elements on the African continent and stem the tide of impunity believed to be responsible for many of the conflicts and significant violations of international criminal law that have occurred (and continue to occur) on the continent. As such the early and widespread ratification of the Rome Statute by African states was on the basis of this hope and also the expectation of the dawn of a new era signified by the “rigorous” observance of new rules of engagement in international criminal justice – for which the ICC was a beacon of that hope for the continent.[xxviii]

Within a decade of the ICC’s work however, a radical shift has occurred in the dynamics of the relationship between Africa and the Court.[xxix] Gone is the enthusiasm and high hope of putting an end to impunity and promoting the rule of law on the continent through the work of the Court. In its place we see deep scepticism and accusations of a neo-colonial agenda against the Court by many among the leadership of the continent.[xxx] The most significant and telling development in this regard is the resolution/call made by the African Union (AU), between 2009 and 2010, to its member states not to cooperate with the ICC in the execution of the warrant of arrest issued by the ICC against Sudan’s President Omar Al-Bashir.[xxxi] AU resentment towards the Court appears to have deepened with the indictment of the President of Kenya (Uhuru Kenyatta) and his Deputy (William Ruto) for international crimes committed during the 2007/2008 post-election violence in Kenya that led to the loss of many lives.[xxxii] The AU unsuccessfully sought for the withdrawal of the cases against Kenyatta and Ruto from the ICC.[xxxiii]

While the AU’s objections should by no means be dismissed too quickly (as some have suggested/done),[xxxiv] there is a sense in which dwelling too long on that conversation tends to distract from the bigger task of determining who should ultimately be responsible for cleaning up the “Augean stables” of Africa. In this connection, there are a number of key points which need to be made.

First, there is no sense keeping up the “tirade” against the ICC for its unfair targeting of the African continent[xxxv] if the continent is unwilling and/or unable to draw the important lessons (that need to be drawn from that experience) in bringing about the much needed changes to the problem of impunity and lawlessness which lie at the heart of all too many of the international crimes perpetrated by powerful/responsible elements on the continent.

A second important lesson that needs to be drawn from Africa’s experience with the ICC’s justice praxis is that international criminal justice is a hotly contested “political space”[xxxvi] where the considerations that inform important decisions such as whom to prosecute and how to prosecute them may have very little to do with the ideals of transitional justice (with its focus on “the reclamation of language and the rediscovery of victim’s voices in post-conflict contexts”[xxxvii]) and more to do with the interests/motivations of the “big powers” which often determine international outcomes.[xxxviii]

The third important lesson that needs to be drawn is that from the outset, Africa missed the whole point of the usefulness of the ICC as a transitional justice mechanism when it appeared to invest all its hopes for the resolution of the crisis bedevilling the continent on the Court.[xxxix] There is only a very limited role that the Court can play in the continent both in terms of the breadth and depth of its engagement with the continent.[xl] As such, the hard task of cleaning the “Augean stables” of the continent remains with African states[xli] and the AU (the primary geo-political body of the continent).

The final point to be made here is that like the proverbial “Augean stables” the task of cleaning the mess that has become of the African continent – afflicted by years of conflict and gross violations of human rights – is both a “dirty” and “difficult” one whose accomplishment can only be possible where the individuals/entities having that responsibility are willing/able to innovate solutions that can bring about the desired changes.[xlii]

In concluding this section, the overarching argument here is that if we dwell too long on the inequities/injustices that have resulted from the ICC’s prosecutorial praxis (with its “geo-stationary orbit”[xliii] over Africa) we will be hindered from allocating responsibility where it should be properly allocated (that is with the leadership of the African continent). Ultimately, the continent will rise and fall on the way its leadership go about the very important task of strengthening its institutions and innovating solutions that will rein impunity on the continent. The ideals of transitional justice (the key motivation which inspired the wide embrace given to the ICC by African states) can only be fully attained on the continent if the principal pursuit of international criminal justice is first about “the reclamation of language and the rediscovery of victim’s voices in post-conflict contexts…”[xliv] and as a corollary, making those responsible for the most serious crimes of international concern on the continent accountable for their actions.

INTERROGATING THE MERITS OF THE “CRIMINAL JURISDICTION” OF THE AFRICAN COURT OF JUSTICE AND HUMAN RIGHTS (ACJHR)

Ideationally, the traction gained by the proposal for an alternative framework to the ICC (for Africa) can be said to have been informed by the belief that the brand of normativity purveyed by the ICC is one that is greatly influenced by, and indeed bows at the feet of global power, as “global power matrices exert a strong influence on how, and to where, international criminal justice normativity travels, and how ICC praxis plays out.”[xlv] As a political fact however, it can be claimed that the process of empowering the ACJHR with criminal jurisdiction over international crimes was accelerated by the rift between the AU and ICC (discussed in the previous section).[xlvi] As such in 2010, the AU instigated a process aimed at empowering the ACJHR with the jurisdiction to prosecute international crimes committed by Africans in Africa. In May 2012, African Ministers for Justice and Attorneys General adopted the Draft Protocol on Amendments to the Protocol on the Statute of the ACJHR (hereafter, the Draft Protocol),[xlvii] which extended the jurisdiction of the ACJHR to international crimes.[xlviii]

In the aftermath of this process, a number of concerns have been raised by commentators about the entire exercise. The first has to do with the speed and secrecy with which the process of preparing the Draft Protocol was carried out.[xlix] The second is about the scope of the international crimes covered by the Draft Protocol, which has been argued to be unwieldy and impractical in view of the cost implications of international criminal trials.[l] The third issue is that the ACJHR is not properly equipped (financially and structurally) to deal with the increased burden to its jurisdiction as the Draft Protocol invests the ACJHR with jurisdiction over civil and criminal matters.[li] A number of other important issues have also surfaced in that discourse, all of which have made some commentators question whether the AU Assembly (the highest decision making Organ of the AU comprising Heads of States and Government) will adopt the Draft Protocol; and if so, whether the instrument has any real prospect of being ratified; and should that feat be achieved, whether the ACJHR can effectively prosecute those international crimes.[lii]

While a good number of these concerns remain relevant, some of them have been overtaken by events. For instance, the concern whether the Draft Protocol will be adopted by the AU Assembly was laid to rest at the 23^rd Ordinary Session of the AU Assembly (20 – 27 June 2014) in Malabo Equatorial Guinea where the AU Assembly adopted the Protocol with a controversial amendment granting immunity from prosecution to African leaders and senior government officials accused of committing any of the international crimes within the jurisdiction of the ACJHR. This immunity covered the period during which such leaders or senior government officials are in office.[liii]

Quite expectedly, the immunity clause has attracted widespread criticisms and condemnation across the length and breadth of the African continent and even beyond (and will most likely continue to do so for some time to come). Some rights campaigners have gone as far as to call the move an “own goal”, while others say the measure “rolls back half a century of developments in international human rights and criminal justice law”.[liv]

This paper will however respond to this development from a different perspective, and in this connection, two sets of argument will be made. The first will seek to show that this development is testament to the fact that the ACJHR, as presently constituted, is not a “proper” mechanism capable of providing an alternative to the problematic of the ICC. The second argument offers a view on what a “proper” mechanism for Africa should look like.

(a)         Argument One –    As earlier pointed out, the main reason why the movement to find an “African solution to an African problem”[lv] gained traction is because of the belief that the ICC is out to serve the interests of global powers – which at the moment appears to be the continued subjugation of African people. Rightly or wrongly, the ICC has reinforced this belief by the “geo-stationary orbit” of its prosecutions on Africa to the exclusion of other parts of the world – where (perhaps more egregious) violations of international criminal law is taking place. By adopting an amendment to the Statute of the ACJHR which grants full immunity from criminal prosecutions to sitting African leaders and senior government officials, the AU has fallen into the same error which it has often accused the ICC of, namely, “selectivity” in the choice of the countries/continent where ICC’s prosecutions takes place.[lvi]

The second leg of this argument is to the effect that given the above facts, the AU and its Court (the ACJHR) cannot claim a moral high ground over the ICC as the AU is equally (if not more) guilty of the “exceptionalism” which it accuses the ICC of; and what makes the exceptionalism of the AU most dangerous is that it is expressly provided for by the Protocol of the ACJHR.[lvii] Whereas in the case of the ICC, Article 27 of the Rome Statute provides quite clearly that no one is immune from prosecutions. The only way global powers have been able to circumvent this provision is by refusing to become state parties to the Rome Statute, and also by entering into all manner of agreements and accords to protect their government officials and citizens from ICC prosecution.[lviii]

The third leg of the argument is that as a result of this development, the AU has only confirmed and reinforced what the likes of Elise Keppler and others have long been arguing, that the AU’s objections to ICC’s prosecutions in Africa is not so much about principles or indeed the interests of victims of gross violations of international criminal law on the continent, but rather (more or less) about the preservation of the culture of impunity which African leaders have always enjoyed in times past.[lix]

The final leg of the argument sums up by saying that as a result of the preceding arguments, there is no point of distinction or comparative advantage which the ACJHR has or enjoys over the ICC. Rather, the ICC’s position on the African continent appears set to be fully strengthened as the only fora where serious-minded individuals/bodies in search of international criminal justice should go to. While this does not in any way indicate a turn-around from the framing proposition of this paper (that the current ICC-centric paradigm of international criminal justice is a travesty) what it does indicate is that the alternative framework being fashioned out by the AU under the ACJHR system is highly likely to equally be a travesty as it exhibits all the unwholesome characteristics (and much more) which have been identified in the ICC framework.

(b)        Argument Two – What should a “proper” mechanism (capable of serving as an alternative to the ICC and consequently insulating the continent from the inequalities and asymmetries inherent in the current setup of the ICC) look like? It is clear that a detailed response to this question is capable of forming the subject matter of another paper altogether. As such, what is offered here is only a brief highlight of key considerations that should inform the framing of such mechanism.

First, it should be all about the reclamation of language for victims of gross violations of international criminal law. As Kirk Simpson sums it up:

the reclamation of language and the rediscovery of victim’s voices in post-conflict contexts are vital to the realization of full human rights for all citizens, and necessary preludes to processes of truth recovery. Allowing and encouraging victims to engage in dialogue and public storytelling constitutes a crucial part of the transitional legal and political process. However, as a consequence of campaigns of political murder, torture and detention by oppressive regimes, many victims of violence have been returned to a ‘pre-language’ state in which the articulation of coherent individual and group histories has become increasingly difficult. The reclamation and utilisation of language as a form of social, legal and political redress via a process of meaningful truth recovery is therefore a necessary and logical part of transitional democratic reconstruction.[lx]

With a focus on victims’ remedies, it is expected that the end goals of international criminal trials (on the African continent) should be about the promotion of the objectives of transitional justice and helping in the healing process for individuals and communities that have experienced gross violations of human rights and/or “serious crimes of concern to the international community”.[lxi]

A second consideration is that as useful as international tribunals/trials may be, they are not meant to replace national courts in the prosecution of “international crimes”[lxii] committed within a state’s territory. The principle of complimentarity enshrined in Article 1 of the Rome Statute is meant to serve as a reminder that states will always have the first opportunity to prosecute international crimes and it is only when they are unable (or unwilling) to do so that international tribunals such as the ICC will assume jurisdiction. In the case of the ACJHR, by crowding its jurisdiction with all manner of international crimes, the AU appears to have missed the point about what role that Court should aim to play on the continent.[lxiii]

A final consideration is that the underlying basis for the intervention of an international criminal tribunal is that it provides a forum in which national immunity provisions cannot be a bar to prosecution. The non-inclusion of immunity provision(s) in the Statute of international criminal tribunals is so well established that we need not be detained by that discussion.[lxiv] The whole idea here is that given Africa’s long history with impunity of power, the only way the AU can indicate to the world that it means business is to empower the ACJHR with the power to try every person, regardless of official capacity, on the continent. By failing to do so, the AU “scored an own goal” undermined the legitimacy of its fight against the ICC.

CONCLUSION

This paper began by making a highly significant and consequential claim that international criminal justice (as currently engaged with by the ICC) is a travesty because it only provides the apparition of justice which, when subjected to the scrutiny of corporal critical dimensions, is revealed for what it is – an illusory vision. This claim was backed by three broad propositions: first, that the ICC is not in a position to deliver on its promise of putting an end to impunity for crimes of the most serious concern to the international community because by design, it is not meant to achieve that purpose; second, that the perception that Africa has been dealt a bad hand in the prosecutorial praxis of the ICC, while a major cause for concern, ignores the obvious fact that ultimately, the continent and its leadership are chiefly responsible for its problems and their resolution; and third, that while hope(s) for a world rid of impunity, one whose playing field is level for all, remains an illusion not to be seriously entertained, it is within the realm of possibilities for African states to set up a “proper” mechanism for redressing impunity on the continent through the existing African Union (AU) system. If seriously pursued, such mechanism can offer a viable alternative to the ICC and consequently insulate the continent from the inequalities and asymmetries inherent in the current setup of the ICC.

Each of these propositions was systematically examined. What has emerged from that process is the realisations that although the ICC remains bedevilled by many shortcomings, principal amongst which is the unrestrained power which states such as US, Russia and China have over the Court without being bound by its processes, the alternative (ACJHR) being floated by the AU is afflicted by more serious shortcomings which inform the conclusion that the emergent ACJHR framework is highly likely to also be a travesty. Going forward, the paper offers some tentative guidelines on what must be considered in any serious attempt to establish a “proper” mechanism that can help insulate the African continent from the asymmetries of ICC’s brand of international criminal justice.

 

* PhD Candidate in Law, Macquarie University, Sydney, Australia. EMAIL: uche.ngwaba@gmail.com. This Paper was originally prepared for presentation at the Third Annual Conference of the African Society of International Law, Ouagadougou, Burkina Faso 29 to 30 October 2014.

[i] See Article 5 Rome Statute of the International Criminal Court, Rome, 17 July 1998, 2187 UNTS 90 (hereafter Rome Statute) which identifies the content of the “most serious crimes of concern to the international community as a whole” to include: (a) the crime of genocide; (b) crimes against humanity (c) war crimes; and (d) the crime of aggression. Article 5(1) provides that jurisdiction over the crime of aggression will be exercised by the Court once a provision is adopted in accordance with articles 121 and 123 of the Rome Statute, defining the crime and setting out the conditions under which the Court is to exercise its jurisdiction.

[ii] See Mahmood Mamdani, “Darfur, ICC and the New Humanitarian Order: How the ICC’s “Responsibility to Protect” is being turned into an Assertion of Neo-colonial Domination” online: http://www.pambazuka.org/en/category/comment/50568 retrieved 14 June 2014; see also Obiora Okafor and Uchechukwu Ngwaba, “Between Tunnel Vision and Sliding Scale: Power, Normativity and Justice in the Praxis of the International Criminal Court” (Paper presented by lead author at the international conference on “International Criminal Justice, Reconciliation and Peace in Africa: The ICC and Beyond” Dakar, Senegal, July 2014) (Conference Proceedings forthcoming);

[iii] Here the point is that notwithstanding general criticism(s) of the ICC for its perceived targeting of Africa, not sufficient effort has gone into analysing what the current set-up of the Court means for the attainment of the goal of putting an end to impunity in the international system. To be clear, this is not to suggest that such analysis are not to be found in the vast literature spawned as a result of the work of the Court. Rather, the point is that there is a sense in which attacks on the Court tend to focus on its “geo-stationary orbit” over Africa to the exclusion of other parts of the world and not on the question whether the Court is even in a position to deliver on its objective(s) of putting an end to impunity in the international system.

[iv] For the purpose of this paper, and consistent with the meaning of Article 5(1) of the Rome Statute, the crimes within this category are: (a) the crime of genocide; (b) crimes against humanity (c) war crimes; and (d) the crime of aggression.

[v] This perspective is a Twailian critique of international human rights praxis and discourse and is applied in the present context to highlight the double standards of the ICC’s prosecutorial praxis. For more about this Twail perspective, see Obiora Okafor, “International Human Rights Fact-finding Praxis in its Living Forms: A Twail Perspective” (2014) 1(1) Transnational Human Rights Review 59 at 67; Makau Mutua, “Savages, Victims and Saviors: The Metaphor of Human Rights” (2001) 42 Harvard Int’l LJ 201; Obiora Okafor and Shedrack Agbakwa, “Re-Imagining International Human Rights Education in Our Time: Beyond Three Consecutive Orthodoxies” (2001) 14 Leiden J Int’l L 563 at 566-573; Upendra Baxi, The Future of Human Rights (Delhi: Oxford University Press, 2006) at 4; Upendra Baxi, “ ‘A Work in Progress’?: The United Nations’ Human Rights Committee” (1995) 35 Indian Journal of International Law 34.

[vi] See Obiora Okafor, “Newness, Imperialism, and International Legal Reform in Our Time: A TWAIL Perspective” (2005) 43 Osgoode Hall L. J. 171.

[vii] See Ibid at 176 for a further exegesis of some familiar techniques deployed by this critical scholarship.

[viii] See Vijayashri Sripati, “The United Nation’s Role in Post-Conflict Constitution-Making Processes: TWAIL Insights” (2008) 10 International Community Law Review 411 at 416; see also Makau Mutua, “What is TWAIL?” (2004) 94 Am. Soc’y Int’l L. pp. 31, 37.

[ix] See Obiora Okafor, Supra note 5; see also Upendra Baxi, “What May the ‘Third World’ Expect from International Law?” (2006) Third World Quarterly 713.

[x] See Karin Mickelson, Supra mote 1.

[xi] See Balakrishnan Rajagopal, “Locating the Third World in Cultural Geography” (1998-99) Third World Legal Studies 1.

[xii] See Upendra Baxi, “Operation Enduring Freedom: Toward a New International Law and Order?” in A. Anghie, B. Chimni, K. Mickelson and O. Okafor, eds., The Third World and International Order: Law, Politics and Globalization (Leiden: Martinus Nijhoff, 2003) at 46.

[xiii] See Mahmood Mamdani, supra note 2.

[xiv] The concept of the political in the international system has been noted by Nouwen and Werner to be quite elusive and as such requiring delimitation. See Sarah Nouwen and Wouter Werner, “Doing Justice to the Political: The International Criminal Court in Uganda and Sudan” (2010) European Journal of International Law 941, 944.

[xv] The other methods for initiating cases before the Court is by state party referral (self-referral) under Articles 13(a) & 14 Rome Statute; and proprio motu investigation by the Prosecutor of the ICC under Articles 13(c) & 15 Rome Statute.

[xvi] See ICC website, “About the Court”, online: http://www.icc-cpi.int/en_menus/icc/about%20the%20court/Pages/about%20the%20court.aspx retrieved 27 October 2014.

[xvii] See “The State Parties to the Rome Statute” online: http://www.icc-cpi.int/en_menus/asp/states%20parties/Pages/the%20states%20parties%20to%20the%20rome%20statute.aspx retrieved 23 September 2014.

[xviii] See Mahmood Mamdani, supra note 2.

[xix] The US has left nothing to chance in how far it is willing to go to insulate its government officials and nationals from the processes of the ICC. Using Bilateral Immunity Agreements (BIAs) which it has compelled states in need of its assistance to sign, it has prohibited state parties to the Rome Statute from dragging any of its officials or nationals before the ICC to answer for international crimes. See “Status of US Bilateral Immunity Agreements (BIAs)“ online: <http://www.iccnow.org/documents/CICCFS_BIAstatus_current.pdf> retrieved 16 June 2014. As far back as 2006, the US has signed 102 BIAs with different countries in the world, some of whom are ICC state parties.

[xx] See Obiora Okafor and Uchechukwu Ngwaba supra note 2.

[xxi] Russia has been accused of committing war crimes in Georgia and some other theaters of conflict while the US has been accused of war crimes during the 2003 invasion of Iraq by no less a person than Richard Clarke, a former Counterterrorism Official of the US. See “Ex-Counterterrorism Czar Richard Clarke: Bush Cheney and Rumsfeld Committed War Crimes” online: https://www.youtube.com/watch?v=5N9AknF0ZMk retrieved 23 September 2014.

[xxii] See Mahmood Mamdani, supra note 2.

[xxiii] This sub-section of the paper is based on a recently published paper: see Obiora Chinedu Okafor & Uchechukwu Ngwaba, “The International Criminal Court as a ‘Transitional Justice’ Mechanism in Africa: Some Critical Reflections” (2014) International Journal of Transitional Justice 1.

[xxiv] See Sarah Nouwen and Wouter Werner, “Doing Justice to the Political: The International Criminal Court in Uganda and Sudan” (2010) European Journal of International Law 941, at 964. The fact that the argue that the “ICC’s work is inherently political” does not mean that they are denouncing the Court for this fact. Rather they argue that: “…a sound normative assessment of the Court should be based on an acknowledgement and understanding of the political aspects of the ICC” at 946.

[xxv] For instance, the Court’s former President reassured states that: “there’s not a shred of evidence after three-and-a-half years that the court has done anything political. The court is operating purely judicially. See Herman, “Japan’s Expected to Support International Criminal Court”, Voice of America, 6 Dec. 2006, online: http://www.voanews.com/content/a-13-2006-12-06-voa14/311910.html retrieved 24 September 2014; The former Prosecutor, in turn, stated: “I apply the law without political considerations. But the other actors have to adjust to the law” (Keynote address “Mr. Luis Moreno-Ocampo, Prosecutor of the International Criminal Court, Council on Foreign Relations”, Washingnton DC, 4 February 2010).

[xxvi] See Obiora Okafor and Uchechukwu Ngwaba supra note 2.

[xxvii] On 2 February 1999, Senegal became the first country in the world to ratify the Rome Statute of the International Criminal Court. See http://www.iccnow.org/documents/RATIFICATIONSbyRegion_15Feb2013_eng.pdf retrieved 27 October 2014.

[xxviii] Charles Jalloh, “Regionalizing International Criminal Law?” (2009) 9 International Criminal Law Review 445

[xxix] See African Network on International Criminal Justice, “Reflections on the African Union ICC Relationship” (January 2014) online: http://www.iccnow.org/documents/CivSocdocreAUsummit.pdf retrieved 28 October 2014.

[xxx] His Excellency Jean Ping, the former Chairperson of the African Union Commission, for instance is noted to have said: “We are not against international justice. It [just] seems that Africa has become a laboratory to test the new international law” (see BBC News, “Vow to pursue Sudan over ‘crimes’”, 27 September 2008, online: http://news.bbc.co.uk/2/hi/africa/7639046.stm retrieved 27 October 2014); His Excellency Paul Kagame, President of the Republic of Rwanda, on the other hand declared that: “Rwanda cannot be party to the ICC for one simple reason…with ICC all the injustices of the past including colonialism, imperialism, keep coming back in different forms. They control you. As long as you are poor, weak there is always some rope to hang you. ICC is made for Africans and poor countries” (see Kezio-Musoke David, “Kagame tells why he is against ICC charging Bashir” Daily Nation, 3 August 2008, online: http://www.hiiraan.com/news2/2008/aug/kagame_tells_why_he_is_against_icc_charging_bashir.aspx retrieved 27 October 2014); and finally noteworthy is the accusation leveled against the former ICC prosecutor Luis Moreno-Ocampo by the Sudanese Ambassador to the UN, Abdalmahmoud Abdalhaleem, who referred to the former quite derogatorily as “…a screwdriver in the workshop of double standards” (see Simon Tisdall, “Technicians in the workshop of double standards”, Guardian, 29 July 2008, online: http://www.theguardian.com/commentisfree/2008/jul/29/sudan.warcrimes retrieved 27 0ctober 2014).

[xxxi] See Amnesty International, “African Union refuses to cooperate with Bashir arrest warrant” 6 July 2009, online: http://www.amnesty.org/en/news-and-updates/african-union-refuses-cooperate-bashir-arrest-warrant-20090706 retrieved 27 October 2014; see also Elise Keppler, “Managing Setbacks for the International Criminal Court in Africa” (2012) 56(1) Journal of African Law 1.

[xxxii] See “Situation in Kenya” http://www.icc-cpi.int/en_menus/icc/about%20the%20court/Pages/about%20the%20court.aspx retrieved 27 October 2014

[xxxiii] See African Network on International Criminal Justice, supra note 29.

[xxxiv] For instance Keppler dismisses the AU’s decision of July 2010 not to cooperate with the ICC as lacking unanimity and the support of many on the African continent. See Elise Keppler, supra note 31; see also Dire Tiladi, “The African Union and International Criminal Court: The Battle for the Soul of International Law” (2009) 34 S. Afr. Y.B. Int’l L. 57.

[xxxv] See the discussion in part II above.

[xxxvi] See Sarah Nouwen and Wouter Werner, supra note 24.

[xxxvii] See Kirk Simpson, “Voices Silenced, Voices Rediscovered: Victims of Violence and the Reclamation of Language in Transitional Societies” (2007) International Journal of Law in Context 89.

[xxxviii] See Sarah Nouwen and Wouter Werner, supra note 24; see also Obiora Okafor and Uchechukwu Ngwaba supra note 2.

[xxxix] Here the key point being made is that the ICC does not provide an excuse for African states not to engage in the critical task of strengthening their national and regional institutions to be able to curb the incidence of impunity on the continent.

[xl] The prohibitive cost of the successful prohibition of a single case before the ICC means that only the most serious or notorious cases get to be tried by the Court and even then, not all such cases can be tried considering budgetary constraints and other challenges to be surmounted by the Court.

[xli] This is the basis of the principle of complimentarity espoused by the Rome Statute and which underlies much of the ICC’s engagement with international criminal justice.

[xlii] In Greek mythology, Hercules was faced with the almost impossible task of cleaning the stables of King Augeas in a single day. Now King Augeas owned more cattle than anyone in Greece and so the mess to be cleaned was quite significant. According to the myth, Hercules innovatively diverted the flow of a stream close to the stable to flow through the stable and with its flow, all the rubbish to be cleaned. That way he was able to accomplish what was an impossible mission.

[xliii] See Obiora Okafor and Uchechukwu Ngwaba supra note 2.

[xliv] See Kirk Simpson, supra note 37.

[xlv] See Obiora Okafor and Uchechukwu Ngwaba supra note 2.

[xlvi] As far back as February 2009 when the rift between the ICC and AU began to manifest over disagreements about the warrant of arrest issued by the ICC against President Omar Al Bashir of Sudan, the AU Assembly took a decision (Assembly/AU/Dec.213(XII)) in which it requested the AU Commission , in consultation with the African Commission on Human and Peoples’ Rights to assess the implications of recognising the jurisdiction of the African Court to try international crimes such as genocide, crimes against humanity and war crimes. See Chacha Murungu, “Towards a Criminal Chamber in the African Court of Justice and Human Rights” (2011) 9 Journal of International Criminal Justice 1067.

[xlvii] EX.CL/773(XXII), Executive Council, Twenty-Second Ordinary Session, 21-25 January 2013, Addis Ababa, Ethiopia.

[xlviii] See Ademola Abass, “The Proposed International Criminal Jurisdiction for the African Court: Some Problematical Aspects” (2013) 60(1) Netherlands International Law Review 27.

[xlix] See Max Du Plessis, “A Case of Negative Complementarity? Giving the African Court of Justice and Human Rights Jurisdiction over International Crimes” EJIL: Talk! (Blog of the European Journal of International Law) 27 August 2012, online: http://www.ejiltalk.org/a-case-of-negative-regional-complementarity-giving-the-african-court-of-justice-and-human-rights-jurisdiction-over-international-crimes/ retrieved 28 October 2014.

[l] Article 28A of the Draft Protocol lists 14 crimes which the ACJHR will have jurisdiction to try. Many of the listed crimes venture into previously uncharted waters in international criminal law. See Ademola Abass, supra note 48 at 29; see also Max Du Plessis, “Implications of the AU Decision to give the African Court Jurisdiction over International Crimes” (June 2012) Institute for Security Studies (Paper 235) online: http://www.issafrica.org/uploads/Paper235-AfricaCourt.pdf retrieved 28 October 2014.

[li] See Ademola Abass, supra note 48 at 29.

[lii] Ibid.

[liii] This amendment is contained in Article 46A of the Protocol on the Statute of the ACJHR. See International Justice Resource Center, “African Union Approves Immunity for Government Officials in Amendment to African Court of Justice and Human Rights’ Statute” 2 July 2014, online: http://www.ijrcenter.org/2014/07/02/african-union-approves-immunity-for-heads-of-state-in-amendment-to-african-court-of-justice-and-human-rights-statute/ retrieved 28 October 2014.

[liv] See Monica Mark, “African Leaders Vote themselves Immunity from New Human Rights Court” The Guardian 3 July 2014, online: http://www.theguardian.com/global-development/2014/jul/03/african-leaders-vote-immunity-human-rights-court retrieved 29 October 2014.

[lv] For further discussion on this matter see Sarah Williams, “The Extraordinary African Chambers in the Senegalese Courts: An African Solution to an African Problem?” (2013) 11 Journal of International Criminal Justice 1139-1160.

[lvi] Here the argument is that by excluding African leaders and senior government officials from the reach of the ACJHR, the AU has created Africa’s brand of “big powers and interests” that are above the law, regardless of the crimes they commit on the continent.

[lvii] A development that has been quite rightly described as rolling back half a century of developments in international criminal justice. See Monica Mark, “African Leaders Vote themselves Immunity from New Human Rights Court” The Guardian 3 July 2014, online: http://www.theguardian.com/global-development/2014/jul/03/african-leaders-vote-immunity-human-rights-court retrieved 29 October 2014.

[lviii] See the example of the US and BIAs discussed in section II of this paper. By adopting these measures, global powers have indirectly recognised the potency of the Rome Statute and have chosen to simply avoid it as a way of shielding themselves from its reach. They have not imperiously sought to insert an express provision in the Statute that grants them immunity from criminal prosecutions like African leaders have done with the Protocol on the ACJHR.

[lix] See Elise Keppler, supra note 31; see Dire Tiladi, supra note 34; see also Charles Jalloh, supra note 28.

[lx] See Kirk Simpson, supra note 37

[lxi] See the Preamble to the Rome Statute.

[lxii] This refers to crimes that have been defined as such in international Statutes. Some States may have domestic legislations with equivalent provisions for such crimes, even if bearing different names/elements of the crime and/or punishment thereof.

[lxiii] The ACJHR should only serve as an alternative forum and not the main one.

[lxiv] The wordings of Article 7(2) of the Statute of the International Criminal Tribunal for the former Yugoslavia; and Article 6(2) of the Statute of the International Criminal Tribunal for Rwanda are both identical; both state that the “official position of any accused person, whether as Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute.”