ICC and Africa:

Correspondent | Tuesday December 11, 2018 11:51

Mills aptly captures this internal turmoil that African states have been grappling with – both at the national and regional level:

“Africa, perhaps more than other parts of the world, is in the midst of a significant period of cognitive dissonance as African states attempt to come to grips with evolving and contradictory pressures on their identities. It has experienced a significant period of democratization and improvement in human rights standards, yet many countries are still highly authoritarian states, some of which are consumed by major violent conflicts. The AU wants to create an African voice on the international scene, yet it is rife with divisions. On paper the AU has some highly developed human rights norms, yet

implementation has lagged far behind, and expressions of unity from the AU seem to contradict the diversity of opinion. Indeed, views on human rights and, specifically, the role of the ICC, are complex and in flux, caught between developing national and international human rights norms, the drives for international influence, deep-seated anti-imperialism, and an authoritarian old guard that wants to undermine the stated human rights goals of the AU charter and that, for perhaps good reason, may fear the consequences of these human rights developments.”

What is most fascinating, yet at the same time unsurprising, about this discourse is that Africa is well represented on the ICC and played a solid role in developing the ICC. “Initially, most African nations celebrated the ICC. Of the 60 signatures needed for the ICC to begin operations in 2002, 34 (of the continent’s 55 nations) were African.” The relations soured when the situation in Darfur was referred to the ICC Prosecutor by the UNSC.

In brief, a case may come before the Court in one of three ways: (1) a State Party may refer a case over which the Court would have jurisdiction to the Prosecutor; (2) the Prosecutor may initiate an investigation; and lastly (3) the United Nations Security Council (UNSC) may refer a situation acting under Chapter VII of the United Nations Charter. The UNSC may also defer an investigation or prosecution for up to a renewable twelve month period. Mills suggests that it is the UNSCs exercise of the referral power, but not the deferral power, that has led to a conflict between the African Union, the UN, and the ICC. The AU called upon member states to adopt a policy of non- cooperation under the threat of sanctions. Alongside the AU decision not to cooperate with the Court in specific cases, several African countries have threatened to withdraw from the Rome Statute. Furthermore an AU meeting for ministers of justice and Attorney Generals, held in Addis Ababa on 14-15 May 2012, adopted a draft protocol which could grant the African Court of Justice and Human Rights jurisdiction over international crimes.  “Fast forward to 2013 and the Extraordinary Summit where the primary complaint levied against the criminal court was that too many of the subjects of investigations and all of the accused in prosecutions have been African. Some African leaders claim a racial bias in the court that unfairly targets Africans, while ignoring similar international crimes committed in other parts of the world.”

“The International Criminal Court (ICC) aims to promote not only justice, but also peace. It has been widely criticised for doing neither, yet it has to contend with some severe structural and political difficulties: it has limited resources, it faces institutional restrictions, it is manipulated by states, and it is criticised

for an alleged selectivity in the way it dispenses justice. However, the ICC could contribute significantly to the promotion of international justice and peace,

and have a major impact on the prevention of crime, since its prosecutions represent a clear threat to highly placed individuals who commit serious crimes. ... in the larger international context, the contribution of the ICC to international justice and peace depends on its institutional power and the support it receives from states, on its own impartial work, and on the way it is perceived by potential criminals and victims in the world.”6

This paper explores the arguments for and against African Countries quitting the ICC in an effort to make a case against African Countries quitting the ICC; whilst also highlighting the imperative for the ICC to be reformed. The paper briefly makes a case for bringing so-called peculiarly African concerns such as unconstitutional changes of government (UCG) and emerging regional and global crimes such terrorism under the jurisdiction of the ICC.

1 THE ARGUMENTS FOR AND AGAINST AFRICAN COUNTRIES QUITTING THE ICC

1.1 PRO-QUITTING: THE ICC IS TARGETING AFRICA AND AFRICANS According to Hansen, there seems to be a growing feeling among African governments that the ICC overly targets African leaders and that the Court is insensitive to the needs of solving conflicts on the continent, which it is argued, may require policy solutions rather than judicial solutions.7 What makes more sense and rings particularly true is that “although the Rome Statute explicitly says that heads of state or government are not immune from prosecution, the first case involving a sitting leader appears to have shaken many African leaders.”8 Most likely the realization that any of our African leadership could potentially be hauled before the ICC truly shook everyone up and then followed the regional upheaval over the ICC.

Du Plessis unpacks what he terms to be the myths or allegations levelled against the ICC

“The various allegations made against the ICC include the following principal complaints: First, there is the suggestion that the ICC is a creation of Western powers (Pheku 2008). Second, and related to the first allegation, is the argument that the ICC is a tool designed to target Africans, be they leaders or foot soldiers.”

Du Plessis warns that the danger with these arguments is that they find traction with dictators and their henchmen who seek reasons to delay or resist being held responsible under universally applicable standards of justice.

The AU claims that ICC activities with respect to Africa undermine African efforts to facilitate the early resolution of conflicts in the continent, and point to the Darfur Conflict and the indictment of Omar al-Bashir as examples.11 Tladi pointed out that

“one can conclude that the AU’s objection to the execution of the arrest warrant against Al Bashir is based on the fear that such action would threaten the peace process underway in The Sudan. But an underlying reason is the

notion that the ICC, as a western institution, should not exercise jurisdiction over African leaders – the idea that the arrest warrant smacks of imperialist arrogance. In the AU decision, there are hints of the attitude that African leaders ought not to be tried under non-African systems. The decision, for example, calls on the AU Commission to investigate the possibility of empowering the African Court on Human and Peoples’ Rights to ‘try serious crimes of international concern’, presumably as an alternative to non-African

courts and tribunals. The decision, furthermore, warns that the AU ‘reserves the right to take any further decision’ in order to protect the ‘dignity,

sovereignty and integrity of the continent’ – a thinly veiled threat that African states could withdraw from the ICC altogether.”

However, whatever the sentiment and the basis for it (erroneous or otherwise) the reality is that the ICC has predominantly prosecuted African cases. In this manner, by disproportionately focusing on Africa, the ICC prosecutor seems to have reduced the problem of impunity to an exclusive African phenomenon. Oola problematizes this situation by pointing out that advocating punitive justice only for Africa is to miss the target of comprehensive justice in the fight against impunity.13 As a result, the African Union has become increasingly hostile towards the ICC, particularly in the wake of the arrest warrant for Sudanese President Omar al-Bashir, “although the public hostility masks deeper divisions among African countries. Indeed, evidence of arguments among African states and between Africa and Western countries over the proper functioning and scope of the ICC is indicative of a number of paradoxes and conflicts which have emerged as Africa reorients its identities and interests to embrace international human rights norms while also asserting itself on the global stage.”

In a January 29, 2014 letter from the AU to the ICC, the AU mentions four flaws in ICC procedures, which the AU believes could undermine the rights of defendants and thereby offend the principles of international justice:

(1)The ICC fails to adhere to stringent evidentiary standards and investigative techniques critical to the collection of reliable evidence—this flaw arises from the fact that the ICC outsources critical functions of the Court’s Office of The Prosecutor (“OTP”) to unregulated and often privately funded NGOs and individuals who are not accountable to the Court or to the judicial process and

may have incentives beyond or inimical to this process.

(2) The impact of permissible funding from private sources on the justice delivered by the Court—private funding can significantly influence the Court’s impartiality or give the appearance of doing so.

(3) The Court’s grounding is in principles of humanitarian and not criminal law—a prominent feature of the ICC is that while it is grounded in principals of humanitarian law, it purports to investigate and judge essentially criminal

cases.

(4) The ICC Office of The Prosecutor, using proprio motu jurisdiction, can initiate a case without referral from a member State or the UN Security Council. Without a referral from a member State, the OTP runs the serious risk of lack of cooperation, which undermines the integrity of the investigation, and without a referral from the UN Security Council, the OTP discretion is unchecked and lacks the focus and political support obtained by having the UNSC narrow the issues.15

There are limitations to the jurisdiction and scope of the ICC. The ways in which a case can be brought befoe the court have been pointed in the introduction. There is also the limitation of the crimes - the crimes within the ICC’s jurisdiction are those of genocide, crimes against humanity, war crimes, and crimes of aggression.

“The ICC is further restrained by complementariness, which prevents the court from exercising jurisdiction, even over crimes within its purview, if the state in which the crime occurs, or the state exercising personal jurisdiction over the

alleged perpetrator, is capable and willing to investigate and, if appropriate, prosecute the offenses. As an additional safeguard, the court usually only acts to investigate or prosecute those cases in which a state-party asks for the court

to intervene. In fact, more than half of the situations being investigated by the court ... have been brought to the court in this fashion.” 16

However, whilst the court’s docket is very small, almost all the situations being investigated by the court and all the individuals facing prosecution by the ICC to date have been African. On the face of it this raises real concerns that there is an outright targeting of Africa and Africans – as if impunity and egregious crimes are confined to this region.

Mamdani unpacks the ICC warrant of arrest for Bashir and argues that the way that the crimes are posited by the Prosecutor create a discourse that is racialised and erases the root colonial and natural causes of tensions and bloody conflict – the combined impact of land division, tribal civil war and desertification. “In his eagerness to make the prosecution's case, Moreno-Ocampo has not only obscured the origins of the violence in Darfur but he has also gone on to portray life in the IDP camps in Darfur as a contemporary version of life in Nazi con centration camps in Europe, with President al-Bashir as the Führer.”

Igwe reiterates this point in concluding his paper as follows: “emphasis on criminal prosecution that neglects the complex roots of Africa's conflicts may ultimately be a waste of resources and a bad outing for international criminal law and its vision of peace.”18

“That the ICC has politicized the issue of justice is no reason to sidestep the question of accountability. The kernel of truth in the prosecutor's application concerns the period from 2003 to 2004, when Darfur was the site of mass deaths. The WHO sources, considered by the GAO as the most reliable available information on mortality levels at the time, trace these deaths to two

major causes: roughly 70 to 80 percent to drought-related diarrhea and 20 to 30 percent to violence. There is no doubt that the perpetrators of violence should be held accountable, but when and how is a political decision that

cannot belong to the ICC prosecutor. More than the innocence or guilt of the president of Sudan, it is the relationship between law and politics, including the politicization of the ICC, that poses a wider issue, one of greatest concern to African governments and peoples”19

1.2 AGAINST QUITTING: THE ICC IS NOT TARGETING AFRICA AND AFRICANS On the other hand as Austin and Thieme propose, the alternative argument is that the ICC is not unfairly targeting Africans; rather that it is simply and properly targeting alleged war criminals.20 This suggestion potentially has more buy-in than might be implied by the significant noise created by the arguments that implicate African states’ sovereignty and brandishing the threat of neo- colonialism. Tladi points out that in reality, “many Africans were left feeling decidedly uncomfortable by the AU decision, suggesting that perhaps Africans (as opposed to the AU) felt a sense of commitment to those values underlying the ICC and the arrest warrant issued against Al Bashir”

Indeed Du Plessis argues that in positing the court as merely created by and to serve Western interests there is a complete history of the court and even the international composition of the court that is rendered insignificant and that this makes a mockery of the very real role that Africa and Africans played in and continue to play in the ICC:

“The suggestion that the ICC is the creation of Western powers couldn’t be further from the truth. It is only by ignoring the history of the Court’s creation and the serious and engaged involvement of African states in that history that one can assert that the ICC is a Western court. The assertion is in any event

belied by the Court’s composition. While the Court is situated in The Hague, in the Netherlands, its staff is drawn from around the world and, in accordance with UN rules on regional representation, includes a number of Africans. For example, of the 18 Judges, four are from Africa, and the Deputy President of

the Court is an African, Akua Kuenyehia. The Prosecutor is Luis Moreno- Ocampo (an Argentinean) and his deputy is Fatou Bensouda, a highly respected Gambian who was formerly attorney-general and then minister of justice in her home country.”

Whilst it is true that the ICCs first cases involved situations on the African continent, it is one- dimensional to argue that the ICC is therefore unfairly targeting Africa. Particularly when the majority of the cases are before the ICC because the state in question self-referred the situation to the Court in terms of the Rome Statute. This is a useful piece of the debates when the Court is largely moved at the instigation of the States parties themselves and what then is the implication is for African politics? Du Plessis aptly sums it up as follows: “The referrals – particularly by Uganda and the Congo – moreover demonstrate how African states have attempted to use the ICC for political ends. It is no secret that the Ugandan and Congolese governments had their own reasons for inviting the ICC to do business in their respective countries. These appear to have been to employ the Court to prosecute rebel bands within their own territories (Schabas 2007: 36). While there has been criticism directed at the ICC Prosecutor for too tamely complying with these self- referrals, there is a double irony in suggesting that these African situations are proof of the ICC’s meddling in Africa.”23 In this manner the ICC risks being considered or accused of being a biased actor by states and people. “State leaders who ask the ICC to act against rebels in order to reinforce their own regime and authority are effectively seeking to turn the ICC into their political instrument. They are also contributing to the creation of an unjust international legal system, as they want the Court to focus on one side of a conflict.”

Hansen also reiterates this danger of political machinations through the self-referral method

“Governments which have referred situations to the ICC Prosecutor have themselves been accused of sponsoring international crimes. While the Court may have been prompted by the need to ensure government cooperation in

its first cases, the perception that the ICC is selective and sides with those in power presents a serious threat to the legitimacy of international justice. In this regard, it remains a challenge that neither the Rome Statute nor prosecutorial policy papers can fully explain how the suspects, typically among many, should be selected. Developing a clearer framework for suspect selection may thus present a starting point for overcoming perceptions of bias,

though this will not necessarily prevent political leaders from instrumentalising international justice to serve a political agenda.”

Furthermore proponents of Africa staying the course with the ICC cite several checks that are in place to protect against perceived biases in the selection of prosecutorial direction. The Prosecutor’s decision to investigate situations has to be taken within the scope of and constraints laid down by the Rome Statute, “including such factors as the gravity criterion and whether a reasonable basis exists for the prosecution of the perpetrators.”26 More importantly, the Rome Statue pushes for strengthened national criminal justice capacities to tackle international criminal justice. According to Du Plessis, “the very premise of complementarity ensures appropriate respect for states by demanding that the ICC defers to their competence and right to investigate international crimes. The choice that complementarity offers and symbolizes has apparently been ignored by the Court’s African critics.”27

2 IS COMPLEMENTARITY ENOUGH?

The question that then arises is whether this is adequate. If adhered to, complementarity would protect and promote state sovereignty.

“The principle of complementarity in the Rome Statute is critical to any decision regarding the admissibility of a potential case. It can be seen as part of a delicate balance between the extension of international criminal jurisdiction and the preservation of state sovereignty, providing as it does for the primacy of national jurisdiction.”

Abass further expounds that the “complementarity principle is the mechanism by which the Rome Statute orders a jurisdictional relationship between the Court and its States Parties so that the latter will always have the first go at a case unless where, according to Article 17 and preambular paragraph 10 of the Statue, they are ‘unwilling’ or ‘genuinely unable’ to investigate or prosecute a case. This principle exists for the benefit of the ICC and its States Parties so that any obligation imposed or envisaged by that principle can exist only with respect to those states.”

In his paper Du Plessis argues that this core aspect of the ICC-Africa relationship ensures the adequate checks and balances needed to prevent a rogue court - “Investigation and punishment take place within a carefully crafted system of complementarity between domestic actors and the ICC. Indeed, complementarity is arguably the key feature of the ICC regime. It is thus important to appreciate its significance and, in so doing, to appreciate how hollow are the fears of those who believe that the Court wields excessive and far-reaching powers of investigation (with the concomitant ability to interfere in state sovereignty).”

“The adoption of complementarity as the basis for the proposed ICC was an attempt balance the principle of state sovereignty and the need to establish international regime that effectively intervenes when states fail to carry their responsibilities in this regard. Complementarity, under the Statute, implies that states continue to maintain their primacy over criminal jurisdiction. The ICC maintains a secondary jurisdiction, activated by the failure of states to exercise their own jurisdiction. The principle complementarity was

fundamental in garnering state support establishment of an international criminal court, and it remains a major in the success or failure of the court. This

is important because a weak that bows to the demands of any single state will not serve the ends justice. On the other hand, a court that usurps the jurisdiction of states grave crimes are committed, while laudable, will fail, because sates will not support it. No international tribunal can enforce its orders; without the cooperation of states, international criminal jurisdiction will be an exercise in futility.”

Therefore, an indispensable follow up to ratification of the Rome Statute would be its domestication to enable states to exercise their jurisdiction over ICC crimes and cooperate with the court. In this manner the strength of complementarity as the basis for the jurisdiction of the ICC lies in a strong regime of implementation of the Rome Statute by member states.

“While the Rome Statute envisages a duty to cooperate with the Court in relation to investigation and prosecution, it should be remembered that the principle of complementarity is premised on the expectation that domestic states that are willing and able should be prosecuting these crimes themselves. The principle of ‘complementarity’ ensures that the ICC operates as a buttress

in support of the criminal justice systems of States Parties at a national level, and as part of a broader system of international criminal justice. The principle proceeds from the belief that national courts should be the first to act. It is only if a State Party is ‘unwilling or unable’ to investigate and prosecute international crimes committed by its nationals or on its territory that the ICC is seized with jurisdiction (International Criminal Court 2002: article 17(1)).

To enforce this principle of complementarity and to limit further the Court’s propensity for interference with sovereignty, article 18 of the Rome Statute requires that the Prosecutor must notify all States Parties and states with jurisdiction over a particular case – in other words, non-States Parties – before

beginning an investigation by the Court (International Criminal Court 2002: article 18(1)), and cannot begin an investigation on his own initiative without first receiving the approval of a Chamber of three Judges (International Criminal Court 2002: article 15).

At this stage of the proceedings, it is open to both States Parties and non-States Parties to insist that they will investigate allegations against their own nationals

themselves: the ICC would then be obliged to suspend its investigation (International Criminal Court 2002: article 18(2)).”

As such, in theory, complementarity ought to be enough. This calls for serious introspection by those African states that would see the continent turn its back on the ICC. Have we done enough to enable our regional human rights systems and national courts adequately tackle such crimes without fear of political blowback – this is an indicting demand for a continent and a system that still struggles with non-interference even in cases of clear and undeniable human rights violations. In many ways it is easier to accuse the ICC of racism and neo-colonialism than to look too closely at our own failings and weaknesses when it comes to meeting the radical ideals of universality and international criminal justice.

3 THE IMPERATIVE FOR THE ICC TO BE REFORMED

The reality or the perceived reality is that the Court’s case selection is a product of ongoing geopolitical inequalities between North and South.34 There is a certain level of discomfort for African states as they face the reality of what more than 60 percent of them have signed on to.35 Nevertheless, there is room for optimism. As Swigart contends, “the exceptional judicial configurations, practices and innovations found in Africa should be recognized internationally for what they are: expressions of a significant consensus on the part of legal practitioners, jurists, and activists – if not always the powers that be – about the need to protect fundamental human rights and challenge impunity on the African continent.”

Swigart argues that the continent and the AU should be regarded as innovators when it comes to the implementation of international criminal justice giving the example of the differences between the ICTR and the ICTY –

“Despite numerous similarities between the two institutions, the realities faced by the ICTR set it apart in some very important ways. For many years, the Rwandan Tribunal suffered from a lack of basic infrastructure and resources, unlike its Netherlands-based counterpart. It also faced challenges unknown to the ICTY, namely those arising from the linguistic and cultural disparities between international judges, prosecutors, defense counsel, and other staff on one hand, and the persons who came before the ICTR as accused persons and witnesses on the other. These challenges were many and varied; they included the absence of Kinyarwanda terminology for fundamental legal terms; the need to identify and train skilled interpreters; cultural taboos and

indirect speech patterns on the part of witnesses that clouded the clear picture of events required to attribute guilt under international criminal law; inaccurate interpretation in the courtroom and the questions this raised about the official record; and finally the basic lack of linguistic and cultural knowledge possessed by the international judges themselves (Combs 2010; Eltringham 2013 & 2014; Swigart 2015). All of these challenges had to be met with innovative strategies, and it was predominantly interpreters, expert witnesses,

and diverse professionals from both Rwanda and other Africa countries who led their development.

Similar innovation took place at the Special Court of Sierra Leone (SCSL),

created in 2002 to prosecute those most responsible for the civil war, although

this institution held some distinct advantages over the ICTR. As a “hybrid” court, with Sierra Leonean judges and personnel working alongside their international counterparts, local language speakers and culture bearers were active participants in all facets of the Court’s work. At the same time, the SCSL had to operate in a more complex multilingual context – whereas the ICTR could concentrate its energies on Kinyarwanda alone, the SCSL needed to

provide translation and interpretation between the official language of the court, English, and Krio, Mende, Temne, and Limba, as well as develop legal terminology for all these local languages. Cultural challenges also arose in the SCSL courtroom. It has been described how SCSL judges, even those from Sierra Leone or neighboring African countries, had difficulty engaging with the non-Western beliefs held by witnesses about supernatural powers, patterns of authority and responsibility, and conceptions of childhood, and squaring them with the rationalist tradition underlying international law and its practice (Kelsall 2009). These challenges called for a constant rethinking of practices during investigations, in the courtroom, and notably for the SCSL, in its multi-

faceted outreach program (Anders 2011; Jalloh 2013; Kelsall; Swigart 2015).

In short, the need to accommodate African realities in institutions of international criminal justice, as well as persons connected to trials, greatly shaped the processes established to address crimes in both Rwanda and Sierra Leone. These innovations would not have been possible without the input of creative and dedicated African staff and legal practitioners who refashioned practices and procedures at all stages of the institutions’ work.”37

Ultimately, the ICC can only deliver justice and peace with the support of its member states – this means cooperating with the demands of the Court and also domestication of the Rome Statute. Increased membership translates into more legitimacy, and more states cooperating with the ICC in order to implement arrest warrants means its work can be more effective. The ICC can also make sure it delivers fair and unbiased justice.

3.1 LOCAL NUANCES Considering where next for the ICC and Africa, perhaps it is worth evaluating the limits to the jurisdiction of the Court. Particularly in light of the crimes and terrors that are particular to the region. Abass proposes the idea that there are crimes peculiar to Africa that are not covered by the ICC citing unconstitutional changes of government (UCGs) as undoubtedly one of the most common sources of conflict in Africa:

“The Rome Statute is limited to the most serious international crimes, which, although common to the whole of humanity, are often committed in the aftermath of the breakdown of law and order. Hence, one could say that while the ICC prosecutes crimes mostly committed after violence or disorder has already ensued in a state, by criminalizing UCG the AU aims to prevent the occurrence of such crimes ab initio through the proscription of acts that may

precipitate violence and disorder in a state.”

Reflecting on the Kenyan elections that were conducted under the shadow of the ICC Wolf noted that “In the circumstances, even if this election was unique in the unprecedented ‘international’ nature of a major part of the campaign’s content – and indeed, that a substantive issue assumed such prominence – both voter registration and voting patterns underscore the reality of (near- unanimous) solidarity in such ethnic terms, even for most voters from outside the communities of the presidential candidates themselves. Whether this ‘novelty-within-continuity’ was simply a one-off ‘fluke’ that opens the door to a more durable issue-oriented basis for electoral competition, or, rather, constitutes nothing more than old ethnic ‘wine’ in a new international- issue ‘bottle’, remains to be seen.”

Abass “concludes that whereas there is a clear and compelling case to be made for the conferment of international jurisdiction on the African regional court, the added value of that court is extremely doubtful. This doubt does not arise from any ipso facto undesirability of such a court, but from the low probability that African leaders will ever allow the court to discharge the ultima ratio of international criminal justice – ending impunity for heinous international crimes – and not turn the court into a torment chamber for opposition parties and dissident activists.”

“The decision of the African Union to confer on its Court international criminal jurisdiction is an unassailable exercise in sovereignty. However, it is uncertain whether the AU will ever adopt the enabling protocol. If it eventually does the challenge will be for the Court to be able to investigate and prosecute crimes relating to anyone regardless of their status. Whether the Court can perform this duty in respect of African heads of state and senior government officials, who cannot be expected to be brought before their national courts, either

because of immunity or because they are shielded by the deployment of raw political force, remains to be seen. It would have been unrealistic to expect Al Bashir or Gaddafi to have been prosecuted by their national courts. And if there is any serious lesson to be learned from the cat-and-mouse game of the Ugandan regime and the LRA before the referral of the case to the ICC, it is precisely that domestic justice may not be suitable where potential culprits have as much or even more fire power than the state, or where the

government is itself morally compromised.”

3.2 VICTIMS Another area that has been highlighted as potentially requiring reform is the victim support or victim-centred approach that the ICC purports to practice.

“In fact, the ICC is widely considered to be a victim-sensitive criminal tribunal because of its innovative endeavors to inform victims of relevant decisions,

provide victims with legal aid, protection, support, and assistance, and allow for victim participation and reparation. In practice, however, challenges exist in making such victim participation effective, including various security concerns, lack of legal aid during the application phase, and modalities of participation.”43

However, although the ICC has been depicted as a victim-sensitive tribunal, in reality victims have not yet been able to participate in the process in any meaningful way.

“Generally, the victims have no direct contact with the ICC and are merely represented by lawyers in The Hague in what is surely a remote and foreign

process to them. Though the challenges to making victim participation successful include mainly practical concerns, victim communities are heterogeneous—with fractured and fragmented stances—a fact that makes the integration of victim viewpoints nearly impossible. To ensure greater victim involvement in crimes that, by their very definition, implicate a vast number of victims, the ICC must extend legal aid to the application phase, further support intermediaries, simplify forms, and streamline the process to

bring it closer to the victims through any possible means.”44

The needs of victims must be satisfied for the ICC to have a lasting positive impact on justice and peace. “It has set up a Victims and Witnesses Unit to provide protection, support and other appropriate assistance to witnesses and victims who appear before the Court. Unfortunately there is no long-term support, and victims who have left the Court remain at the mercy of criminals and their supporters.”

Du Plessis also brings the discussion full circle to focus on the victims “While it is correct that all situations currently under investigation by the ICC are African, the more plausible reason for this reality is because African victims – the real beneficiaries of the Court’s work – outnumber victims of serious human rights violations in other parts of the world. And the accusation of ‘unfair’ prosecution of African situations is an insult to the careful screening process that the Office of the Prosecutor has adopted in conformity with its obligations under the Rome Statute in order to determine whether there is a reasonable basis for initiating an investigation. These allegations ignore the objective fact that the Court’s systems promote transparency, oversight and accountability, for example, by requiring that Judges of the Court sit in oversight of the decisions of the Prosecutor to investigate or not to investigate situations of alleged international criminal law violations.”46

CONCLUSION: THE RADICAL AMBITION OF INTERNATIONAL CRIMINAL JUSTICE

To what end?

“A key question is whether the shadow of the ICC is likely to deter future atrocities. As alluded to earlier, many observers believe (or, understandably, want to believe) that breaking the culture of impunity, that holding to account even just one perpetrator, would have a powerful symbolic effect and dissuade those who might commit future gross violations of human rights. Less optimistic analysis suggests that perpetrators might merely adjust their strategies: where, because of a history of impunity, they operated relatively openly in the past and cared little about leaving evidence behind, in the future they would make greater efforts to cover their tracks to avoid prosecution.”

Luban sets it out with such clarity: “The radical goal of ICJ is a moral transformation of how ordinary men and women regard political violence against civilians. Rather than viewing political violence as the prerogative of states, or as our patriotic duty, we are henceforth to regard it as crime.”

“A way forward creating a Court which is seen as less biased in its interventions may therefore involve creating more consensus and clearer guidelines concerning the criteria which should inform the ICC’s selection of situations for investigation.”49

The power of complementarity and the implication that if African states do not want the ICC to step in then they must take the reins into their own courts as it were and conduct genuine prosecutions of the heinous crimes that are all to rife across the continent – paying particular mind to newer and emerging threats of terrorism and the global war on terror that has become a regional reality. “Expectations for the political impact of the court are closely tied to the legal concepts of gravity and complementarity, particularly with the development of the concept of positive complementarity, and the hope that the court might promote or compel accountability domestically so that its own jurisdiction is rendered unnecessary.”

*Oagile Dingake and Isaac Lanaola are Justices of the Residual Special Court of Sierra Leone and Supreme Courts of Papua New Guinea and Kenya respectively