In The Face of Impunity, We Play Politics With International Criminal Tribunals
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8 August 2008: In The Face of Impunity, We Play Politics With International Criminal Tribunals
The indictment of Sudanese President Omar al Bashir by the International Criminal Court (ICC) triggered a flurry of comments. Joining the common, largely unsubstantiated claims about the ICC and international criminal tribunals in general, it has also been argued that 1) war crimes tribunals are a creation of Western powers and that they target African leaders and 2) the tribunals dispense a ‘Western’ form of justice that is grossly inadequate as a mechanism of pursuing peace and reconciliation in post-conflict societies.
The first argument is not only factually incorrect, but is based on inaccurate assumptions. First, the idea that war crimes tribunals such as that for Rwanda, former Yugoslavia, Sierra Leone and the ICC are ‘Western’, suggests inaccurately that African states play no role in their establishment and their operations. They often fail to inform the reader that these tribunals are established through various mechanisms and that African countries have played important roles in these processes. For instance, the International Criminal Tribunal for Rwanda (ICTR) was established by the Security Council at the request of Rwanda. The Special Court for Sierra Leone is a creation of an agreement – on request - between the UN and Sierra Leone. Some of the judges of the SCSL are appointed by the president of that country. This reflects a level of initiative and ownership by these countries.
Second, these comments fail to mention that similar tribunals have been established elsewhere – in former Yugoslavia, East Timor (Timor-Leste), Lebanon and now the ICC.
Third, they fail to note that the ICC is a treaty body and that African countries could in principle stay out if they wanted. The fact that Africa has 30 states party to the ICC – the largest group in the ICC – speaks for itself. Although not a party, Sudan has signed the Statute, which constrains it to a basic standard of behaviour. All three African countries in respect of which ICC investigations have been launched – Uganda, the Democratic Republic of the Congo and the Central African Republic – referred the matters in their respective countries to the Court themselves. In the face of this, does the label ‘Western tribunals’ have any merit?
Suggestions have been made that these tribunals unfairly target Africans and that they avoid to prosecute Western leaders suspected of crimes. Generally, this is a valid point. It is true that there has been selectivity at the UN level in the establishment of tribunals. This raises legitimate questions about the structure of the UN, and the need for reform. However, one misses the point by attempting to conflate that issue with specific issues of criminal justice. When we are asked whether we want our leaders – like Zimbabwe’s President Robert Mugabe and Al Bashir - to be tried by these ‘Western tribunals’ while others walk free, the question should go further and ask whether we want to be tortured by our leaders, and whether such leaders should not face appropriate justice?
However preposterous it may sound, impunity is a deep-seated problem on the African continent. It is true that there are criminals elsewhere, but one is hard-pressed to name a handful of countries in Africa that have not witnessed some brutal dictatorship or gross violation of human rights. Many have gone unpunished. We would be doing a disservice to victimised Africans by telling them ‘we can’t punish African perpetrators until we do so to those in the West and elsewhere’. There are double standards, yet Africans cannot have it both ways – protect our leaders from ‘Western impartiality’ and restore dignity to violated masses by punishing perpetrators.
I agree with the view that the goals of reconciliation and restoration of peace in post-conflict societies cannot be achieved through prosecutions alone. The mandate of these tribunals, with the exception of the ICC, is narrow, and can only be so. They are not only limited to prosecuting individuals but focus on top leadership. The retributive model of justice that underlies their approach – conceiving crime from a public order / international peace perspective – is grossly inadequate insofar as achieving reconciliation is concerned. Reconciliation requires more. For instance, one cannot speak of reconciliation and restoration of relationships in a ravaged society unless other concerns of victims of those crimes we prosecute are attended to.
However, these commentaries make other arguments which one finds problematic. First, they seem to dismiss - often without empirical evidence - the role of prosecutions in restoring peace and fostering reconciliation in post conflict societies. They emphasise that threats of prosecutions may encourage warring parties to continue fighting but fail to acknowledge that prosecutions or the threat of it may have the opposite effect – to force warring parties or perpetrators to de-escalate hostilities and to desist from further illegal action.
The indictment of President Al Bashir is a case in point. Many decried the indictment arguing that it would threaten peace and that the Sudanese government would retaliate by launching attacks on civilians, UN staff and peacekeepers. The attacks have not happened. Just the opposite is taking place. We see movement already from Khartoum - at least publicly. The sudden public rallies by Al Bashir in embattled Darfur – where he acknowledged Darfurians have legitimate grievances – were not just for show. The President has met with opposition parties and has called on formations in Darfur to talk peace with the government. Whether something comes out of this or not, these events illustrate that Khartoum is clearly rattled by the indictment. This may have the effect of nudging the intransigent regime into serious peace negotiations and an eventual settlement.
The argument advanced by authors such as Okechukwu Oko, and endorsed by Mohau in a recent article in the Sunday Times that ‘Africans have contempt for international criminal tribunals’ supposedly because they reflect ‘a historical discomfort about Western legal systems,’ enters a minefield of generalisations and assumptions. Commentators do not tell us which Africans have contempt for these tribunals. They supposedly speak for all Africans. More fundamentally, they go off the rails by suggesting that these tribunals – the ICC in particular - entail some undefined ‘Western concept of justice’. They don’t clarify what a ‘traditional African notions of justice’ is.
Without delving into the broader debate on these issues, it is not true that retributive justice – punishment of offenders - is alien to African notions of justice. Africans may not have built prisons, but forms of punishment – corporal punishment, banishment from society and even death – are known to have been practised on the continent. It may be true that African systems ‘place a significant premium on social harmony and stress the reconciliation of disputants’ as they suggest but this is not unique to African systems. This said, they often omit to mention that one of the defining elements of the ICC reflects the frustration of many with the retributive paradigm of criminal justice of previous tribunals. It provides not only for punishment but reserves significant rights for victims - to participate in the proceedings as well as the right to reparations, which, in spite of limitations, are aimed at broader societal reconciliation. Further, the ICC is complementary to national justice systems. It only comes into play when the state is either unable or unwilling to conduct a genuine process at home. At the national level, states can deploy various mechanisms including those that are more suited to the needs of reconciliation such as truth and reconciliation commissions and traditional justice mechanisms.
In conclusion, one must note that the international criminal justice system is fairly new and still evolving. The ICC is still finding its feet in the international legal order. Rather than lament and point accusing fingers at such tribunals, we should celebrate when African dictators face justice - whether at home or abroad, whether in national or international tribunals. The recent arrest and impending trial of Radovan Karadzic, former leader of the breakaway Bosnian-Serb Republic demonstrates at least two things: that these tribunals do not only target Africans; and that the chances of those who commit atrocities - whether African or not – are slimmer today than yesterday.
Godfrey M Musila, International Crime in African Programme, ISS Tshwane (Pretoria)
