Case of CAR Cannibalism and Victimhood

The BBC report on CAR cannibalism: Why I ate a man’s leg depicting one of many disturbing incidences in the ongoing conflict in the Central African Republic brings to the fore some of the underlying causes of the conflict in the African State. This conflict, whose narrative has taken a religious perspective demonstrates the challenges of not addressing past injustices.

The ‘cannibal’ in this case speaks of his own victimhood as the cause of his strange and vengeful act. What could possibly drive one human being to eat the flesh of another absent of the fear of starvation? The cannibal mentions a pregnant wife and other relatives who were killed by ‘Muslims’ as the cause of his rage. It’s simplistic to reduce the cause of the conflict in the CAR to sectarian violence. There is more to the conflict over the past few years in that country, which we know has an international aspect to it, given the ongoing Bemba trial at the ICC. Religion is however a major factor in the current escalation of violence. The anger that drives the ‘Christians’ to turn violently against ‘Muslims’ is indicative of deeper issues. There are unresolved concerns of the people from the past that have caused a recurrence of violence. The cycle of violence has no doubt turned past victims to perpetrators of today’s conflict. Unless the CAR’s past is unearthed and issues of contention between the different parties addressed, there will be a resurgence of violence and it may take on a different form religious or other form.  The victims must remain at the centre of the resolution of concerns. It is their stories and experiences that will provide the key to the solutions. We may be angst and repulsed by Ouandja Magloire, the ‘Mad-dog’s’ criminal acts, but it is these kind of stories that shed light to the issues, force us to apply our collective thinking and action to the problems in the CAR as opposed to reading yet another story of an African country somewhere going to the dogs.

The slow-turning cog-wheels of the international criminal justice system: are victims benefiting from the system?

The world celebrates International Justice Day today 17 July 2013. This day will most likely go unnoticed to many but for victims who have directly or indirectly been affected by criminal acts that violated their dignity as human beings, it may just be a reminder of empty promises of redress for their harm and a second blow of revictimization. A majority of victims of international crimes still do not have access to justice and the possibility of receiving reparations for their suffering remains remote. Although the day is celebrated in commemoration of the significant day fifteen years ago that the Statute of the International Criminal Court was adopted by States in Rome, from a victims’ perspective, not much has been gained in terms of addressing their plight.

Since the ICC opened its doors in 2002, the reality is that the focus on investigations and prosecutions of individual perpetrators of international crimes far outweighs the efforts relating to redress of victims’ harm. This focus is not negative, in fact accountability for these crimes is necessary and provideds a measure of justice to victims and survivors of these crimes. The Rome Statute provides the framework where victims of international crimes have the right to participate in legal proceedings and the right to reparations. The potential of this framework has not fully been tapped into. The challenges currently faced by the ICC in evaluating the large applications by victims in the situation countries to participate in legal proceedings and the limited financial and logistical capacities to provide reparations to these victims must be the heralding call to States to re-assess the access to justice and reparations needs of victims of international crimes. Relegating the task of providing redress to victims of international crimes to a supranational institution such as the ICC is unsatisfactory and has proven to be mired in procedural bottle-necks.

Nation-States should urgently focus on the strengthening of national legal systems to provide redress to its own nationals who have suffered under the cruel hands of perpertrators of what are recognnized as international crimes. The domestication of the Rome Statute by States Parties has largely been driven by the desire to capacitate national criminal justice systems to investigate and prosecute individuals who have committed international crimes within a nation-state. These efforts to ensure that the national criminal justice systems and the ICC are complementary are to be lauded. However, nation-states also need to embark on a comprehesive and coordinated approach to law-making, policy and institutional design that is victim-centered to alleviate the burden on a strained international criminal justice system and provide access at the local level to victims of international crimes.

Report of the AU Panel of the Wise on Peace, Justice and Reconciliation in Africa

The Report of the African Union Panel of the Wise on Peace, Justice and Reconciliation in Africa: Opportunities and Challenges in the Fight Against Impunity available here is worth reading. I certainly agree with the urgency of establishing the AU-ICC Liaison Office for the many reasons cited but at the very least for purposes of ensuring that the spirit behind the creation of the ICC – to fight impunity for international crimes – and which is shared by the Constitutive Act establishing the AU, remains top of the agenda for African States. The report recommends the establishment of AU hybrid courts, akin perhaps to the proposed extension of jurisdiction of the African Court of Justice, Human and People’s Rights over international crimes. I have a different view on the establishment of these AU hybrid courts. The ‘new norms of international justice’ that the report refers to alluding to the ceding of sovereignty to an international body such as the ICC to investigate and prosecute international crimes, would be replicated at the continental level with such AU hybrid courts. To avoid the possibility of further dissent in Africa from yet another supranational body, it would be more beneficial for African States and indeed States in other regions to establish meaningful national legal frameworks that would keep to the spirit of the norm  to fight impunity for international crimes. Building the capacity of states to effectively deal with these crimes and redressing the harm caused to the victims of the crimes is the ideal and sustainable way to go about fighting impunity for international crimes. The report on the whole treats this important subject in the continent the seriousness it deserves and hopefully the discourse would continue at the African Union level, particularly some movement on the shaping of the African Union Transitional Justice Policy Framework. 

Kenya’s Ongoing Battle with Complementarity at the ICC

There has been a fair amount of jostling around by the government of Kenya in the international community since the naming by the ICC Prosecutor in December 2010, of six Kenyans as being the most responsible for the violence that erupted in the country following the disputed Presidential elections in 2007. Kenya wants to prevent its nationals from being subjected to the international criminal justice processes. In essence the Kenyan cases place the complementarity principle – able and willing local courts have first preference to the ICC to investigate and prosecute international crimes committed in their territories – under a rigorous test of its efficacy.

Last month, the East Africa Legislative Assembly passed a motion to allow the East African Court of Justice to request the transfer of the ICC trials of four Kenyans, including Uhuru Kenyatta (Deputy Prime Minister, son of the Kenya’s first President and currently a presidential aspirant) to the Arusha-based East African Court of Justice. The resolution has been met by stiff criticism. The East African Law Society has questioned the practicality of the resolution by the Assembly in the face of the latest draft of the East African Community (EAC) Protocol on extending the jurisdiction of the East African Court of Justice, in which all the EAC members agreed to exclude any reference to human rights adjudication by the court.

This is not the first time that Kenya attempts to exclude the ICC from conducting trials of the four accused persons for crimes related to the post-election violence (PEV). Kenya challenged the admissibility of the cases before the ICC in 2011 citing the capacity of its new constitutional framework to handle these crimes. The Pre-Trial Chamber decided against Kenya’s challenge citing that the only condition to be satisfied by Kenya in order for the cases to be transferred to local courts is the so-called “same person, same conduct rule”, which means that Kenya needs to demonstrate that its criminal justice system is investigating the ICC suspects for the same crimes that the ICC is seized. A cursory analysis of the rulings would conclude that the task before Kenya is then very simple – demonstrate to the ICC that investigations have commenced and assert the doctrine of complementarity. There is however more than meets the eye in this situation. Kenya has indeed undergone a radical constitutional change with credible systems being put in place to ensure good governance and the respect for the rule of law. The issue seems to be the profile of the four individuals who are to face trial in The Hague. Under the circumstances, can Kenya genuinely claim inability to commence investigations on the four accused persons or is it a case of unwillingness so to act?

Being dissatisfied with the ICC ruling, Kenya with the support of the African Union (AU) approached the United Nations Security Council (UNSC), empowered by the ICC Statute, to request the ICC to defer investigations in Kenya for a period of one year. The UNSC did not reply to this request thereby sending the AU back into its drawing room for more resolutions calling for the non-cooperation of all African States Parties with the ICC. There is no doubt that a bitter taste has been left on the Kenyan and AU palates with regards to their interface with the ICC.

A more recent development indirectly linked but noteworthy to the ICC Kenya cases is the expansion of the jurisdiction of the African Court of Justice and Human Rights to conduct individual criminal prosecutions. Justice Ministers and Attorneys General from the African continent are meeting in Addis Ababa, Ethiopia on May 7-11, 2012 to consider adopting a protocol that will confer this type of jurisdiction to the African Court. Civil society organizations working in Africa have written to these experts articulating the deficiencies of the protocol. Expansion of the African Court’s jurisdiction risks “diluting the work of the current African Court on Human and Peoples’ Rights and may undermine human rights protection.” This proposed expansion is at variance with the practice of other regional systems such as the Inter-American Human Rights Court and the European Court of Human Rights both of which have delivered rulings on landmark cases that promote the respect for human rights. Whereas precedent-setting by the African human rights protection system is encouraged, expanding the jurisdiction as proposed is a sure recipe for a complex process, expensive and inevitably delayed justice. A dual approach of adjudicating allegations of human rights violations by African States and jurisdiction for individual criminal responsibility for international crimes defeats the ends of justice. Some commentators find this move to be shrouded in a protectionist agenda by and for African leaders and their criminal allies from facing the music at the ICC. There is little or no confidence that these proposed jurisdictional expansions of regional courts by African leaders is in support of combating impunity for international crimes on the continent.

The fallacy of these attempts to stop the ICC trials in Kenya, is that complementarity, which is the cornerstone of the functioning of the ICC, supports national criminal jurisdictions and not regional courts superimposed with international criminal jurisdiction. Where a matter is before the ICC such as the cases relating to the four Kenyans, the Rome Statute is clear that only a State with jurisdiction to investigate and try persons accused of committing the international crimes can challenge the jurisdiction or admissibility of cases and if successful, it is only to that state that cases can be transferred. There is no support in the existing legal framework of the ICC for cases to be referred, transferred or deferred to regional courts such as the East African Court of Justice or the African Court of Justice and Human Rights.

Kenya’s President is committed to ensuring that the four accused attend local trials following a Report submitted by a Government Working Committee on the ICC. The Committee reports that “provisions set out in …the Constitution…could permit Kenya to have jurisdiction in respect of crimes under international law at the time of the PEV.” The ICC has constituted a Trial Chamber for the Kenyan cases and its Spokesperson clarified that the Chamber is ready to start its work. As the country prepares for its elections, the coming months will tell whether Kenya will successfully challenge the admissibility of the ICC cases after conforming to complementarity requirements or stand back and watch the ICC conduct the trials, while also submitting to periodic requests for the country’s cooperation with the Court.

This article is a preview of the author’s piece in an upcoming African Edition of the SARB Newsletter soon to be available at http://www.reconciliationbarometer.org  

An ongoing search for Kenya’s panacea

Kenya’s fate as a country struggling with transition was sealed when violence erupted following the publication of the results of highly contested presidential elections at the end of 2007. Almost four years later, in September 2011, the ICC Pre-Trial Chamber II began hearings to confirm charges in two significant cases involving six Kenyans suspected of bearing the greatest responsibility for the December 2007 to January 2008 post-election violence.

These hearings began after the ICC Appeals Chamber conclusively decided in late August that the two cases before the court were admissible. The ICC rejected submissions by the government of Kenya expressing its ability and willingness to handle the post-election violence prosecutions on its own. It is expected that the Pre-Trial Chamber will deliver its ruling to confirm or deny the prosecutor’s charges against the six suspects by the end of this year.

Critically, this decision will certainly shape the course of political manoeuvring in Kenya as preparations gear up for the next general election, expected to be held towards the end of 2012. Stern warnings have already been issued against incendiary statements, and particularly those that may heighten political tension and/or increase the possibility of a repeat of past violent conflict. The so-called ‘Ocampo Six’, named with reference to the ICC
Chief Prosecutor, include deputy prime minister, finance minister and possible presidential candidate Uhuru Kenyatta, as well as other senior public servants and influential political leaders.

However, the tone of the 2012 polls will also be inescapably set by deeply rooted political and historic forces, with influence far beyond that of the ICC’s intervention.

Parallel to the gaining momentum of the ICC process, Kenya’s political elite and their followers have been cruising towards the national election. The work of the Court, in fact, appears to have had only a limited impact on the fluid mindset of the political class. Similar to other pre-election periods in the country, shifts in affiliations and formations of new political alliances for preferential presidential candidates remain a constant feature.

The truth beneath the surface in this seemingly peaceful East African country is that elections have always been a show of Kenya’s limited success in dealing with its lurking demons of ethno-political intolerance. In 48 years of independence, state patronage in dispensing the country’s bounty has always been circumscribed along ethno-political lines. With each regime change has come an inevitable vilification of the preceding government as having been incapable of confronting the nation’s challenges and of realising the proverbial golden pot at the end of the rainbow. Numerous ethnic communities are disenfranchised through these processes, evoking uneasy analogies to the plight of the majority of black South Africans under apartheid. And though Kenya’s ethnic divisions are less blatantly segregating than the policies of apartheid, corruption, the embezzlement of state resources and irregular land allocation based on political favours remain rife, and these have far-reaching effects on ordinary citizens.

As long as significant divides persist along ethnic lines, prospects of future electoral violence remain a real possibility. In this respect, little has changed since the ICC’s intervention. Prosecutorial zealots have argued in response that the Court should not
be seen as a panacea for Kenya’s problems. The arm of the law can only go so far in bringing about profound social change; rather, it has been used with more success to address impunity gaps, for example.

However, both domestic and international law have also arguably lagged behind some of the most pressing challenges of the times. The Rome Statute of the ICC, adopted in 1998, is the first international treaty to codify the crime of apartheid – ‘committed in the context of an institutionalised regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime’ (Article 7.1[h]) – as a crime against humanity. This is laudable, but South African apartheid is now a monster of the past, slain by universal suffrage in 1994 well before the adoption of the Rome Statute. Although the effects of apartheid policies are felt to this day, these effects are not criminalised and neither is there the capacity or the political goodwill to conceive of such a criminalisation. These lingering effects of oppressive regimes and armed conflict often eat into whatever is left of the remaining societal fabric.

It does appear that the tone and intensity of political verbiage around ethnicity in Kenya has changed since the commencement of the ICC interventions. There have been significant steps towards promoting national reconciliation and social cohesion through national institutions such as the National Cohesion and Integration Commission among others. Tribal politics seems to be getting less coverage. The current cases before the ICC have also ensured that the issue of inter-ethnic differences remains a prominent issue in public discourse in a manner that cultural practices traditionally have not allowed. In many ethnic communities in Kenya, it is culturally unacceptable to confront wrong-doing, particularly when the offender is in a position of authority. This practice has, in some places, prevented open confrontation and critique of the underlying causes behind the electoral clashes of 2007.

What now needs to happen, beyond the current cases before the ICC and indeed the Court’s remit altogether, is substantive work to build lasting social cohesion across Kenya’s ethnic groupings. This will be essential for sustainable peace in the country. This cohesion must go beyond mere tolerance and coexistence, and should not rely on coercion to enforce cordial relations where deep-rooted resentment remains. Rather, these negative sentiments among ethnic groups must be challenged and resolved in order to build a cohesive nation, within a context of celebrating the good practices of cultural diversity.

Kenya is not alone in this challenge of social cohesion, which can also be found in other nations in transition on the continent. Perhaps as a continent, through the offices of inter-governmental agencies such as the African Union and civil society organisations, and even through communities and individual efforts, we should identify these challenges as universal but focus on localised and locally owned solutions. Failure to do so will compromise our efforts towards justice and reconciliation across Africa.

This article was first posted on the SARB Newsletter Vol 9 2011 available at http://reconciliationbarometer.org/volume-nine-2011/an-ongoing-search-for-kenyas-panacea/

To what extent has Taylor’s judgment brought justice?

On Thursday 26 April 2012, former Liberian President Charles Taylor was found guilty of all 11 counts that the Prosecutor of the Special Court for Sierra Leone (SCSL) indicted him for in 2003. The charges against Taylor include war crimes and crimes against humanity in the form of sexual slavery, enslavement and pillage. The summary of the judgment read out by the Presiding Judge Richard Lussick was the first judgment delivered by an international tribunal for crimes committed by a Head of State. In this sense the SCSL has set the precedence for the first international tribunal to convict a Head of State. The SCSL found Taylor guilty on the basis of two forms of liability: planning of the attacks and crimes in Kono, Kenema and Freetown; and aiding and abetting a host of activities in Sierra Leone such as the supply of ammunition to rebel groups that committed crimes in these towns in Sierra Leone.

It was not all wins for the Prosecution. The judges were clear that the burden of proof beyond reasonable doubt was not established for Taylor’s criminal liability under the joint criminal enterprise doctrine. The Prosecution failed to sufficiently demonstrate that the support given by Taylor to the RUF and AFRC rebel groups was part of a common plan. The Judges also found that liability under the superior responsibility doctrine was not sufficiently established. The Prosecution failed to show that Charles Taylor had effective control over the activities and crimes committed by other individuals such as the late Foday Sankoh, who headed one of the rebel groups.

Following the reading of the judgment summary, the Prosecution and Defence are expected to file briefs on the sentence, which sentencing is expected to be done May 30, 2012. The Prosecutor of the SCSL has indicated that the Prosecutions brief on sentencing will be based on the seriousness of the crimes committed and the concrete level of involvement of Taylor in the crimes he has been convicted of. It is expected that appellate proceedings will commence once receipt of the written judgement and sentence have been received by the parties.

Representatives of civil society in Sierra Leone present in The Hague for the reading of the judgment expressed their satisfaction with the judgment. Abu, a civil society activist in Sierra Leone voiced his pleasure in the international criminal justice system. He says of the Taylor’s conviction that “regardless of position as Head of State there is no more impunity for international crimes committed by such leaders.” This pronouncement echoes the prevailing provisions of the Rome Statute of the ICC which codifies international criminal law and which provides that official capacity of an accused person in a State does not provide immunity from criminal liability. The SCSL judgment builds to the body of persuasive rulings that call for accountability for Heads of State. This obviously brings back into public discussions the implementation of the warrant of arrest out for the Sudanese President Omar Al-Bashir.

Of equal importance is the effect of the judgment on the many victims and communities affected by the crimes that Taylor has been found guilty of committing. Abu continues that the judgment “contributes to the healing process in Sierra Leone.” Whereas the Prosecutor Brenda Hollis was clear that the work of the SCSL is to effect its mandate on criminal matters and that her upcoming trip to Sierra Leone will focus on the pronouncements of the SCSL Judges, it was not immediately clear how else the judgment will promote reconciliation in Sierra Leone, particularly the contribution to the reparations process in the country. The SCSL Statute, like those of the ICTY and ICTR does not provide for reparations for victims of crimes within the mandate of the Court. It does however provide for forfeiture of assets, which can be a basis for claims by victims. The claims are however contingent on a guilty verdict and the victim’s demonstration of personal harm occasioned to the victim by the convicted person. Establishing this nexus is difficult for victims of the crimes perpetuated by Taylor. It is clear however that the plight of victims of crimes in Sierra Leone living with the effects of amputations and loss of loved ones needs urgent attention. The Sierra Leonean government has nevertheless begun a reparations process with the establishment of a National Commission for Social Action. The Commission is assisting communities to rebuild livelihoods in Sierra Leone following the civil war in the region. The Commission is however in need of more funds as does it need to expand its definition of victims as beneficiaries of a reparations scheme.

Speaking on the legacy of the SCSL to the Sierra Leonean people, activists were quick to point out that witness protection has received a significant boost from the presence of the SCSL and the rigours demanded from its Statute as a hybrid court that combines local and international aspects in its functions. The Outreach (whatever this means) has also been boosted as have the interactions among civil society agitating for accountability for crimes committed to Sierra Leonean people during the conflict.

The Taylor judgment brings back into the court of public opinion, the tardiness of the international justice system overall in responding to the needs of states in transition let alone the needs of victims and affected communities. For starters, the expense that has been met to bring Taylor to account to the exclusion of other individuals – now deceased or living freely in Liberia is not justifiable in light of the magnitude and plight of the victims of these crimes. Some of these individuals are still living in Liberia and Sierra Leone. One wonders whether the vast resources expended could have been better used to build the capacity of Sierra Leone to bring more people to account for the crimes in that country and more importantly for the social reconstruction needed.

A critical question raised from the judgment is why names were not mentioned of beneficiaries of the “blood diamonds” of Sierra Leone aside from Taylor and his rebel allies. The non-palatable position is that other individuals, multinational companies and even states benefitted from the serious crimes committed against the people of Sierra Leone, in pursuit of the diamonds. Would you like these other individuals, multinationals and even other states mentioned as beneficiaries of the “blood diamonds” and should they not also be brought to account and contribute to the reparations fund in Sierra Leone?