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.

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The International Criminal Court (ICC) Prosecutor Mrs Fatou Bensouda will be in Kenya from 22-26 October, 2012. Reports from the Office of the Prosecutor (OTP) state that the purpose of Mrs. Bensouda and her team’s trip to Kenya will primarily be to visit victims of the post-election violence as well as to obtain crucial information that would support the prosecution’s cases against four Kenyans whose trials will commence at the ICC next year in April.

A few weeks ago, the Head of Jurisdiction, Complementarity and Cooperation at the OTP Mr Phakiso Mochochoko, wrote to Kenya’s Attorney General (AG) Prof Githu Muigai expressing disappointment for a lack of effective cooperation by Kenya with the OTP. The OTP has been seeking Kenya’s cooperation in obtaining information from different government agencies. Kenya is obligated under Article 86 of the Rome Statute to cooperate with the ICC. The AG blamed the delay in cooperating with the OTP on the failure of certain government agencies who possess the required information to quickly respond to the OTP’s request. The AG has reiterated that Kenya remains committed to her obligations under the Rome Statute. Prof Muigai has also praised Mrs Bensouda’s better approach to her mandate and relations with States Parties to the Rome Statute that created the ICC than her predecessor Mr Louis Moreno-Ocampo. However as Chief Legal Advisor to the government of Kenya, it is his responsibility to ensure that Kenya abides by its international commitments.

It is clear in the past few months that Mrs. Bensouda has been in office as Chief Prosecutor that she has a different leadership style to her predecessor who was shrouded with controversy over his sometimes boisterous approach to his mandate. With such a start to her mandate, the Fatou Effect as I have called it elsewhere is bound to have a more persuasive, endearing and results-oriented function about the OTP. This is a good thing and necessitates cordial relationships between the ICC situation countries and the OTP. Often the first or more prominent organ in the interface between a situation country and the ICC, it is important that the OTP establishes and maintains the right approach to prosecutions and investigations and Fatou has clearly understood this.

For Kenya, a visit form the ICC Chief Prosecutor can be used to mend fences where the relationship between government and the ICC was strained following Ocampo’s initiation of investigations in the country. We should not however forget that Fatou was the Deputy Prosecutor at the time when the ICC Pre-Trial Chamber authorized OTP’s investigations into Kenya, and it is unlikely that her sentiments on the prosecutions and investigations in Kenya have changed since her taking office as Chief Prosecutor. Rather the Fatou we see now, is seasoned with the experiences – both failings and successes of the OTP over the past 10 years of its operations, which no doubt inform the prosecutorial strategy for the Kenya cases.

Cooperation by States Parties with the ICC can be a two-way street. Within the ambit of positive complementarity – a concept that solidified its footing at the Kampala Review Conference of the ICC’s founding treaty in 2010 – Kenya can request for the support of the ICC in effectively investigating and prosecuting individuals suspected of committing crimes related to the post-election violence. We are certainly not referring to local prosecution for the four Kenyans whose trials are scheduled to start in April 2013, but rather the many other perpetrators of crimes following the 2007 elections in Kenya. The OTP is on record stating that although it will not provide financial support to States that ask for support under the positive complementarity principle, it can provide technical and logistical assistance. Kenya can benefit from the visit by the OTP to request for such assistance. It is important in this transition that Kenya deals with its past and that the many victims of the crimes committed following the 2007 elections are redressed.

In August 2012, a task force set up by Kenya’s Director of Public Prosecutions (DPP) Mr Keriako Tobiko to look into the thousands of files at the DPP’s office relating to the PEV released an interim report with findings that many of the files may have to be closed because evidence that would be necessary to adduce before court for convictions is non-existent. This means that many victims of the PEV will not receive the justice that they have sought for the past five years. There still remain opportunities for meaningful cooperation that would benefit both Kenya and the OTP on matters relating to prosecutions and investigations in Kenya. It will take the concerted efforts of the relevant Kenyan authorities to bring this about.

Africa Looks Forward to ‘The Fatou Effect’

On 16 June Fatou Bensouda of The Gambia was sworn in as the second Chief Prosecutor of the ICC, where she previously served as deputy to Luis Moreno-Ocampo. Bensouda was elected by a consensus of the Assembly of State Parties to theRome Statute in December 2011.

At a recent meeting in Cape Town hosted by the Open Society Foundation and attended by the IJR and other civil society organisations, the new Chief Prosecutor outlined seven key areas that she hopes to prioritise during her nine-year tenure. These are: improving the quality and efficiency of investigations; clarifying areas for preliminary investigations; improving the relations between the ICC and African states; a focus on women and children, as sub-groups among victims of international crimes; institutional development within the Office of the Prosecutor (OTP); strengthening the OTP’s relations with both internal ICC and external structures; and an emphasis on work with civil society.

These priorities come as music to the ears of justice and reconciliation practitioners in Africa, and many lie at the heart of a complex and sometimes contentious relationship between the ICC and state parties on the continent. Optimistically coined ‘the Fatou effect’, many hope that this change will signal a positive turn in Africa’s expectations of and engagements with the ICC.

The ICC is currently active in seven African ‘situation countries’. That its reputation as a singular – and predominantly retributive – custodian of international justice may broaden to include consideration of the confluence between justice and reconciliation is indeed a remarkable state of affairs.

Victims of gross human rights violations, atrocities and international crimes need a system that punishes perpetrators, and Bensouda’s new focus on women and children – who are often the most affected by war and violent conflict – is also to be welcomed. Sexual and gender-based violence have become common instruments of war in a number of ICC situation countries, and victims of these crimes are both female and male. They need a justice system that begins to repair and redress the damage caused by violence and crime, and works to provide lasting guarantees that future generations will not be subjected to further violation in times of conflict. These needs are shared by victims in northern Uganda, eastern Democratic Republic of Congo (DRC), Darfur, Kenya, Cote d’Ivoire, Libya and the Central African Republic (CAR) alike – to live in peace and security and to develop economically without fear of war, conflict and tension.

Up against growing criticism from Africa that its work on the continent pursues a ‘neo-colonial’ agenda, the OTP would also do well to establish policies that more effectively guide government engagements in the situations it investigates. Although not the only organ of the ICC, the OTP is responsible for both initiating investigations of where it deems these to be necessary, as well as for receiving and acting on requests from both state parties to the Rome Statute and the UN Security Council. As such, the OTP is often seen as the public face of the ICC, and a new tone of engagement may lead to a better understanding of its work, more support and cooperation, and less criticism.

Greater, and more constructive engagement with civil society organisations, as Bensouda has promised, may also go a long way in both improving the quality of ICC investigations and judgments, and increasing the court’s credibility in Africa. Local organisations often possess the dual advantages of access to grassroots intelligence and insight through direct engagement with people and communities, and the experience and agility to negotiate and manoeuvre through governmental and inter-governmental offices and institutions within countries. Many credible civil society organisations are willing and able to act as liaisons for dialogue between these various stakeholders.

Yet despite the anticipation surrounding ‘the Fatou effect’, it remains important to recall that all organs of the ICC are still bound by the provisions of the Rome Statute, including the OTP. Although Bensouda has committed to pursuing a more responsive, engaged and accessible ICC, her responsibilities and that of her office and the court at large remain the pursuit of criminal justice and an end to impunity by perpetrators.

Further, the responsibility for mending the sometimes tumultuous relationships between African states, the African Union and the ICC cannot fall to the court alone. For the sake of Africa’s many victims of international crimes, many of whom have little hope for redress or the resolution of ongoing violent conflict, it is also important that regional and international institutions, organisations and governance bodies uphold their own commitments to the protection, promotion and enforcement of human rights and dignity, and pursue effective and cooperative partnerships that lead to an end to mass violence and gross violations.

This piece first appeared in the South Africa Reconciliation Barometer Newsletter, Volume 10, 2012 also available at http://reconciliationbarometer.org/newsletter/volume-ten-2012/

Kenya: At a Political Crossroads

Kenyans are set to go to the polls for general elections in March 2013, and will once again have the opportunity to cast their votes and elect new leaders. History has shown, however, that political contestation has not always been smooth sailing, and many past elections have been marred by irregularities. Most notably, the 2007 elections led to a national dispute over the outcome of the presidential race, and ultimately the outbreak of widespread violence. Electoral irregularities and resultant conflict are not inevitable – in 2002, the Kenya African National Union party suffered a landslide defeat after forty years of near autocratic rule – but when these do occur they reverberate through the East African region and across the continent as a whole. Anticipation, and the sensitivity around successful elections is therefore of great concern to more than just the Kenyan people.

Kenya’s fate as a country in transition was sealed by the tragic post-election violence that occurred in December 2007 and January 2008. A number of institutions have since been established to deal not only with this recent conflict, but also with a longer legacy of injustice since independence in 1963. Some of these institutions have already concluded their work, including the Commission for the Investigation of Post Election Violence and the Independent Review Commission, which recommended far-reaching changes in electoral processes and the disbandment of the Electoral Commission of Kenya in the aftermath of the events of 2007.

The work of the Truth, Justice and Reconciliation Commission (TJRC) will soon draw to a close after its mandate was extended following resolution of a dispute among commissioners concerning the appointment of a Chair – one which unfortunately planned the better part of the life of the commission overall. Despite resultant challenges to its credibility, as well as budgetary constraints, the commission will release a long-awaited and important report providing a narrative on sensitive and historic issues in Kenya’s past. It is hoped that this process will lead to a collective and consensus-based truth that a majority of Kenyans are able to agree upon.

The belief, however, that the TJRC’s report may lead to the possibility of re-opening national wounds or exacerbating political tensions, particularly by candidates in the run-up to elections, has prompted some calls for the document to be embargoed until polling has concluded next year. It is plausible that its content, which will shed light on events spanning the post-independence period, may be used to sow more divisions in an already fragmented country. It will be a true test of the functioning of the National Cohesion and Integration Commission (NCIC), also formed after the violence and unrest of 2007, to chart the direction for a more unified country.

The NCIC may further be pushed to prosecute leaders and candidates for hate speech in cases in which this could lead to divisive or tribal politics or ‘ethnicism’ as it is mandated to do through the National Cohesion and Integration Act that legislated its formation. A range of other outstanding issues must also be addressed before Kenya can hold elections. The new constitution promulgated in August 2010, a further outcome of the 2008 political settlement, created numerous new elective posts that need to be enacted in law and implemented in practice. Parliament has had the unenviable task of numerous, long and intensive sittings to debate, amend and pass legislation consistent with the new constitutional framework. This has not been an easy task, as many of the new laws and policies under consideration involve the very issues that threaten to tear Kenyans apart – including access to land, equitable distribution of resources and devolved governance structures.

The International Criminal Court’s (ICC) interventions in Kenya are also bound to affect the country’s future. Two of the four Kenyans charged with responsibility for the post-election violence are presidential aspirants and come from ethnic groups that have dominated this highest office – Uhuru Kenyatta, deputy prime minister and son of Kenya’s first president, and a former Cabinet minister, William Ruto. These external interventions have become increasingly politicised in the lead-up to the trials of the accused, and leaders of some ethnic groups have denounced the ICC investigations as attacks on their own communities, and attempts to eliminate specific candidates from the run for the presidency. These seeds of discontent, if not carefully managed, could erupt into violence.

Meanwhile, the resettlement of those internally displaced by the post-election violence continues with varied success. Government’s efforts in this area must be acknowledged, although much more work and support for victims is needed. In this regard, beyond the ICC interventions, perpetrators of these crimes have not yet been brought to account in most cases. Where some prosecutions have been initiated, criminal cases have often been thrown out of court, sometimes as a result of the poor quality of investigations. Concerted efforts must be made to remedy this situation.

Yet while the past five years have marked a difficult transitional phase for Kenya, tentative gains have certainly been made in growing political stability and democracy, working towards greater respect for the rule of law, and opening up a national dialogue about the country’s past and future. Successful and peaceful elections in 2013 may solidify these ideals and serve as a benchmark for a successful transition in Kenya.

This piece first appeared in South Africa Reconciliation Barometer Newsletter Volume 10, 2012 also available at http://reconciliationbarometer.org/newsletter/volume-ten-2012/

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?