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/

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?