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/

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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?