Should Africans believe in the International Criminal Court? Views from lawyers all over the World, Compiled by Chofor Che, 28 July 2012

28 Jul

Ten years after that modest beginning, the ICC has turned into a major international institution, securing justice for victims when it cannot be delivered at the national level. How true is this?

Levi Wataka • The ICC process must maintain formal integrity by incorporating the highest standards in legal practice and procedure. Successful implementation and interpretation at this level is key to the legal agenda of the Court. However, by the end of these processes, the victims usually have had to live in the effects of on-going or past human rights violations for years. In what way can the process encourage faster recompense and actual effect to the immediate life of victims?

Isaac Larbi • Well the ICC will provide true justice when it prosecutes leaders of western European countries and the USA. Until that happens its just a court serving the interest of the West and America.

Chofor Che Christian-A • In as much as Africans continue to play the ‘victim’, how can Africans change the status quo to make the ICC an all inclusive institution? Several African governments are signatories to the Rome Statute to this institution, and by fault or default, they concur with its modus operandi.

Basil Ugochkwu • On the matter of the ICC, Africans are between the rock and the hard place. Because of bad government practices and impotence of the AU to ameliorate that, we look to institutions like the ICC for succor. Unfortunately the ICC has a credibility deficit because while it could indict Africans quite easily, the most important Western governments prefer to operate outside its jurisdiction. I will want African war criminals punished. Western war criminals should be punished as well. But if only African war criminals are being indicted and Western war criminals are left untouched, that’s discriminatory and unsustainable. Why would Ghaddafi’s children be facing the ICC and Assad of Syria is being protected at the UN Security Council?

Sylvia Luchiri • Should Africans believe in the ICC? This is a grey area in my opinion. The answer is neither yes or no. I would cite Kenya as an example. Following the post-election violence in 2008, Kenyan citizenry were given a choice to have the perpetrators tried within the Kenyan jurisdiction or the ICC. They chose the ICC for obvious reasons such as the legal system has traditionally been heavily influenced by the politicians and the borgeoisie among other factors. The mass have been repeatedly robbed of an effective redress and the only way that they could some what get this was via the ICC. Should they be blamed for making this choice and are they certain that they will get the redress?

The African legal and political system is notable for being complex. In as much as I would not like to bring the colonial legacy to this debate, I cannot escape to mention its residual influence that is deeply embedded in our society. Given the choice between a western model or our own (for illustrative purposes) one is likely to go for the western model. We some what still highly distrust our own capabililty, undermine our intelligence and culture and still see our fellow brothers as a threat socially and economically. This argument may not sound convincing to the elite who are but a minority. We inevitably end up at lack of effective education and leadership to which the continent seriously lacks in social affairs.

Until the time we engage the mass in social, health and environmental affairs that resonate with them and musters them to participate in a national dialogue, the ICC provides an interim redress. Is this right? No. It is though the only alternative.

Basil Ugochkwu • @Sylvia: Like I stated in an earlier post, the decision on how Africans should view the ICC is not particularly simple or straight forward. And I agree with you that we have our politicians to blame for our collective dilemma. The only reason we look excitedly to the ICC is the failure of our domestic justice processes; and politicians are to blame. But let not the ICC give the impression that it is continuing with colonialism under a different guise. This is the impression that the disproportionate indictment of Africans before it creates! I am all for justice. But discriminatory justice is no justice at all. The jurisdiction of the ICC covers the world, not just Africa. You could argue that its jurisdiction extends only to those countries that have signed to the treaty establishing it and you would be right. But those countries are not only in Africa. We can’t make this point enough.

Jafari, Pantea • While the ICC has given the hope of justice to many, you need only ask the victims of the many parts of the world where the ICC has chosen not to act, or has not yet captured the indicted suspects to know that the statement is not true at all. Furthermore, what the ICC offers is the symbolism of individual accountability for those in power; what it represents in reality is a structural scheme where the nationals of the most powerful nations have acquired a negotiated immunity from the ICC’s application and jurisdiction from its very inception.

Dr.M Javaid Janjua (PhD) • I would like to express my distress about the ‘USE OF AMERICAN DRONES’ in various parts of the world , specially in Pakistan and Yemen which are ‘killings’ the innocent woman, children and elderly people AND /OR even ‘suspects’ without any prior ‘investigation’ or proof that the VICTIM has been involved or planning or indulged in any ‘terrorist’ activity. Does ICC has the right to take as SO MOTO action to stop these ‘cold blood’ killings for the sake of justice .

Steven Gregory • For a discussion of jurisdictional and other issues resulting in ICC ineffectiveness, see this recent New York Times article:

Chofor Che Christian-A • Very beautiful article from the New York Times on the true modus operandi of the ICC.
“For justice to be legitimate, it is essential that it be applied equally to all,” said Richard Dicker of Human Rights Watch. “Justice has advanced, and in doing so, the flaws that mark it in today’s world become more apparent. The double standard must change for the whole undertaking to retain its legitimacy.”

Larry White • The ICC is a wonderful idea but as a court of last resort, it has been too active in Libya and Syria by making pronouncements before the national courts had a chance to act. This could undermine the Court fatally.

For the drone strikes, there is no ICC subject matter jurisdiction.

Raymond Brown • Given the number of African situations before the ICC I thought I would refer you to my recent blog on the significance for the ICC of the African Union’s election of its first woman Chair. (Blog appears at International Justice Project (IJP)

Chofor Che Christian-A • I don’t think the ICC had any influence whatsoever to do with the election of the new Chair of the African Union.

Anna Engelhard-Caldwell • I agree with Jafari. Since the US, China and Russia have not ratified the ICC, they are safe from being held accountable. Via Veto power in the UN Security Council nothing would happen anyway. Drone attacks in Pakistan, without a declaration of war on Pakistan, will continue. Obama has taken a very active stance towards the use of drones (more attacks than under Bush) and has declared anyone who is in the vicinity of the target guilty by association. Human rights violations are common and blatant in these three countries.

Nadia E. Nedzel • I disagree with the New York Times article as it indicates an incomplete understanding of the Rome Statute. As per Article 17 of the Rome Statute, the ICC has jurisdiction only when the applicable nation state is unwilling or unable to bring the perpetrator to justice, as when the nation at issue does not have a functional judicial system or is politically unable to pursue the offender. Though far from perfect, the U.S. tries its citizens who commit war crimes, and if they are soldiers, then they face court martial. As previously stated, there is thus no ICC subject matter jurisdiction over the drone strikes. I would be afraid of an ICC that had the power to go into any country at any time and try any person for war crimes. Such power leads inevitably to corruption and thus arbitrary injustice.

Raymond Brown • In response to Jafari and Anna I would note that great power “impunity” – not “immunity” -exists independently of the ICC. It prexisted the Rome Statute and would be an issue had the statute never come into effect. Though the great powers are far from Ratification, their reluctance to stand in the way of the Libyan and Darfur referrals suggests that they are at least minimally subject to political and diplomatic pressure to show flexibility concerning the Court. Remember this is an institution in its infancy, developing a new jurisprudence in a field of law ( international enforcement if international humanitarian law ) unknown until 66 years ago.

Anna Engelhard-Caldwell • Well, who will try the US President or the head of state of China or Russia? They have it all?

Chofor Che Christian-A • The strides taken by an institution in its infancy can well portray its modus operandi in the long run.The ICC is caught in that quagmire. Indeed the ICC is developing a new jurisdiction in a field of law, as rightly purported by Raymond Brown, but how effective is this development? As rightly put by Anna Engelhard-Caldwell, who will try the super powers?

Alaa Elemary • Neutrality, impartiality, fairness, transparency, effectiveness & enforceability, concepts that when the governing rules and enforcemnet & monitoring systems can deliver, we can confidently utter the word success. Whether it is the ICC, the WTO or the ICJ, whether within the domainof public int’l law orthat of private law- all the same to me.

In all this, the question remain however not the how and not the can but the will we?

Achieng Akena • I must first disagree with Sylvia regarding Kenya. We, the ctizenry didn’t chose, we weren’t asked. The cases went to the ICC by default because our rulers failed to get their act together to establish a local tribunal. But there is no culture of asking the citizenry in our country or indeed in the region.

Now to the question, it would depend on what you call justice. Is 14 years of posh lodging ‘justice’ for Lubanga’s victims? If I was a child soldier forced to bear such torture & suffering & destruction of my childhood, would I be thinking those millions of dollars were best spent on putting up Lubanga in basketball-court-equipped quarters, or better spent somewhere near me, securing for me a little bit more than a bleak future of more conflict?

Whatever it is, I wouldn’t go as far as calling it something as lofty as ‘justice’.

And I must also agree with Basil, bad things don’t happen only in Africa. The old adage about justice needing to be seen to be done, is just as true in this regard.

Levi Wataka • I agree with Achieng. Justice not only punishes, but also gives the victims closure and helps them get on with their lives. If it takes 14 years, the victims will have had to live with the effects for that long.

Sylvia Luchiri • Achieng, thanks for your comments and especially highlighting the fact that Kenyans were not consulted on the issue of where the case should be tried and ICC got the case by default.

Looking at the whole debacle from a holistic point, the leaders are not the only guilty group. I would argue that the whole society is at fault for somehow allowing the whole issue to play out the way it did. There is the temptation of shifting blame to the politicians for the turnout of events without accepting responsibility on the citizenry.

At the present time, the citizenry awaits to make changes at the ballot box. The politics on this is a whole separate discussion. My point being that the society’s voice/actions is not as strong to engange the politicians to make the choices that it begs.

There is also the expectation that the politicians are to make decisions that resonate with the public or rather decisions which are in the nation’s best interest. So far this is rather expecting far too much from the current political oligarchy that has been recycled for several terms. The harsh truth is that they are incapable of following the law to the latter for reasons that we are already knowledgeable about. I would also argue that they are not well equipped to make major decisions such as this that we are currently discussing. Pardon me for using this illustration: it’s like planting apples and expecting to harvest oranges. It just won’t happen.

The axe therefore would fall on us (citizens) to bring the changes. To be active citizens and engage in the political process. This does not necessarily need the participation of the politicians but their endorsement would indeed give a major boost. We elect them to office thus should bear the brunt of allowing the status quo.

On the second issue, securing justice for the victims. This is an issue that has not been adequately addressed on the national and international front in my opinion. The burearactic process takes far too long, the cases are tried far from home, issues regarding the lodging as mentioned in one discussion etc I am not particulary bothered by the issues of lodging but rather whether justice has been truly administered.

The victims would be better placed if they were to be engaged in the entire justice process to enable them to have closure on the whole subject. The truth and reconciliation court in South Africa has been criticized for having not provided the closure that it intended. I guess that the whole affair is still a working progress and in as much that I would like to see the victims fully recompensed, it remains an ideal. The scars ultimately would always be there but we could take a moral and legal standpoint that ensures heinous crime are not to be tolerated in the future.

Achieng Akena • I agree with you Sylvia that people should be at the centre of justice processes. Surely blind Lady Justitia, depicting justice for justice’s sake, has limited currency in the context of serious and massive violations of human rights. I am also not convinced that the ICC or any international court for that matter, can offer anything beyond retribution. If deterrence was indeed an outcome we would probably not have had reports of the recruitment of child soldiers in Mali after the Lubanga conviction. My point is only that we should be critically honest about what we seek to achieve with the ICC and not clothe it in lofty ideals that create expectations that are often impossible to meet, and leave the (should be grateful) recipients of our ideals out in the cold.

Alaa Elemary • Neutrality, impartiality, fairness, transparency, effectiveness & enforceability, concepts that when the governing rules and enforcement & monitoring systems can deliver, we can confidently utter the word success. Whether it is the ICC, the WTO or the ICJ, whether within the domainof public int’l law orthat of private law- all the same to me.

In all this, the question remain however not the how and not the can but the will we?

Nishat Azam • “For justice to be legitimate, it is essential that it be applied equally to all,” said Richard Dicker of Human Rights Watch. I agree with this statement, however, it presumes that every Nation is equal, which sounds good to hear, but in practicality, is clearly not. One shouldn’t compare a military action to stop a legitimate threat to genocide.

Ronald Becerra • We have to bear in mind that ICC protects industries interest so the more industries a country have the more powerful will be

1 Comment

Posted by on July 28, 2012 in Uncategorized


One response to “Should Africans believe in the International Criminal Court? Views from lawyers all over the World, Compiled by Chofor Che, 28 July 2012

  1. choforche

    August 1, 2012 at 1:20 pm

    Reblogged this on choforche and commented:

    Interesting discussions on the relevance (or not) of the ICC in Africa.


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