AU Undermines Jurisdiction Of Its Court

Dr. Odora

Dr. Odora

The amendment creates an exceptionalism only enjoyed by African leaders. It shields them and their cronies from accountability. This obnoxious law must be challenged by all persons of good will.

The rights of leaders are always tempered and balanced by their duty and obligation to protect the rights of citizens. All acts of a leader must be carried out within agreed legal frameworks.

This decision by the AU leaders is gross abuse of power and a dereliction of duty. ICC’s difficulties in prosecuting Heads of State do not translate into extending immunity to all African leaders.

On Friday, 4 July 2014, the African Union (AU) amended the Protocol on the Statute of the African Court of Justice and Human Rights to provide for blanket immunity from prosecution for African leaders and their ‘senior government officials’.

The language of the amended Protocol is clear and succinct: “No charges shall be commenced or continued before the court against any serving African Union Heads of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.”

The language of the Protocol protects a broad range of perpetrators. It extends unfettered immunity from criminal prosecution in any jurisdiction in Africa. The amendment also creates an “exceptionalism” that is enjoyed only by African leaders. It shields the leaders and their cronies from accountability. This obnoxious law must be challenged by all persons of good will.

It is regrettable that other democratic states in Africa, such as South Africa, Namibia, Tanzania, Ghana and Senegal did not stand shoulder to shoulder with Botswana to oppose this antiquated law.

Instead, they allowed themselves to join the ranks of unsavoury dictatorship like Egypt, Uganda, the Democratic Republic of the Congo (DRC); other failing states such as Somalia, Mali, Libya, Niger, Central African Republic (CAR); and ungovernable states like Nigeria whose writ does not cover northern Nigeria, thanks to Boko Haram.  These undemocratic states have ceased to represent the interests of their people or to act on their behalf.

In democratic countries, the lines between the citizens and the state are based on recognition of a citizen’s individual rights which is then framed in terms of what the state needs to do to protect those rights.  The state, through its leadership, neither murders its citizens, nor gets away with it subsequently.

The rights of leaders are always tempered and balanced by their duty and obligation to protect the rights of its people. All acts of a leader must be carried out within agreed legal framework. Leaders who fail to follow the law must be accountable for their actions before courts of law. The Protocol adopted by the African leaders on 4 July, turned this basic legal principle on its head.

The new ‘impunity law’ ignores Africa’s history of the 1970s, 80s, and 90s when military dictatorships and one-party state’s governments brutalized their citizens without any form of accountability. Some of these ‘criminal’ leaders of the 70s, 80s, and 90s are still in power today and were instrumental in the adoption of the ‘impunity law’.

More recently, between 2000 and 2014, more than 6 million civilians were murdered in the DRC by its government and the governments of neighbouring states after invading the DRC; in South Sudan, troops from neighbouring states have joined the blood-letting. It is some of these criminal acts that are the forces behind the ‘impunity law’.

Africa cannot close its eyes and hide behind the facts that Bush and Blair have not been prosecuted and therefore African leaders should not be prosecuted. Charity begins at home, and it is important that Africa puts its house in order before it begins finger pointing at leaders of foreign nations.

After all, African leaders pride themselves of “African solutions to African problems”. Well, Bush and Blair are not Africa’s problem; leave them to the ICC to handle. On the other hand, African leaders are Africa’s problems and the African Court must handle them. That sounds fair, doesn’t it?

There are more serious and pressing problems for the AU to address. Nigeria, the biggest economy in Africa and the most populous state on the continent, with excellent record of peace keeping, cannot protect its own children from Boko Haram militia; Libya, a wealthy nation, cannot protect its sovereignty as militias divide the country; Egypt, a country with a rich history, is busy murdering its own people; and CAR is heading towards genocide while South Sudan is falling apart through political and tribal vendettas.

Instead of seeking solutions to these, and other grave issues, African leaders are more concerned with protecting themselves from criminal prosecutions.

Any good student of history easily recognizes that mere existence of immunity clauses in any legal framework, regardless of how it is used, is itself sufficient to create conditions under which impunity flourishes. A citizenry that is always abused by those in authority, eventually becomes used to the idea of abuse, develops a compliant mode and fearful, and even possibly an accomplice to his/her degradation and humiliation.

Impunity unites governments of otherwise remarkably divergent political creed: from Cairo to Kampala; Bangui to Harare, these governments share one thing in common – terrorizing the civilian population without accountability. Besides Botswana, the lone sane voice at the AU summit, all states whose constitutions’  guarantee individual human rights and free access to court, ganged up  to grant to themselves and their cronies immunity from prosecution for atrocity crimes.

The ability for an ordinary citizen to murder a person and get away with it is already bad enough, particularly when police investigators need to be bribed before they can perform their official duties.

For Heads of State or Government to give themselves a right to murder hundreds or thousands of people, without any form of accountability, vests immense power in these leaders who, whether properly elected, rigged elections or gained power through armed rebellion, have no right to pass such a law without the consent of the people.

The representatives of victims, NGOs and human rights organizations were denied access and the right to participate  in deliberations leading to the adoption of the ‘impunity clause’. This is particularly distressing seeing that one of the objectives of the Constitutive Act of the AU, as stipulated in Article 3(h), is dedicated to “promote and protect human and peoples’ rights in accordance with the African Charter on Human and Peoples Rights and other relevant human rights instruments.”

With the recent adoption of the ‘impunity clause’ to protect heads of state and government from prosecution, this makes the provision hollow and a mockery of justice.

Overall, the decision by the AU leaders granting themselves immunity from prosecution is gross abuse of power and a dereliction of duty. I know from my years of experience in the conduct of international criminal prosecution that the AU’s ‘impunity clause’ can be viewed by some analysts and critics as an abstraction, one that is difficult to get people to care about viscerally.

What is more, the issue of international criminal prosecution is invariably complex, making it even harder to engage the public in a widespread and positive way because of the experiences of the challenges encountered by the ICC in prosecuting past and present Heads of State and Governments. But what is pertinent is to separate the issues that undermines the good work of the ICC from justification being peddled around to demonise not only the ICC but international criminal justice wholesale.

The fact that the ICC has encountered difficulties in prosecuting Heads of State does not translate into extending immunity to all African leaders.

By Alex Obote-Odora, Consultant in International Criminal Law and Policy, Stockholm.

7 comments

  • AU News Adis Ababa

    Good artical indeed ,but Botha has the answer to your question>THE FOLLOWING is a speech made by former South African President P.W. Botha to his Cabinet. This reprint was written by David G. Mailu for the Sunday Times, a South African newspaper, dated August 18, 1985.

    “Pretoria has been made by the White mind for the White man. We are not obliged even the least to try to prove to anybody and to the Blacks that we are superior people. We have demonstrated that to the Blacks in a thousand and one ways. The Republic of South Africa that we know of today has not been created by wishful thinking. We have created it at the expense of intelligence, sweat and blood. Were they Afrikaners who tried to eliminate the Australian Aborigines? Are they Afrikaners who discriminate against Blacks and call them Nigge*rs in the States? Were they Afrikaners who started the slave trade? Where is the Black man appreciated? England discriminates against its Black and their “Sus” law is out to discipline the Blacks. Canada, France, Russia, and Japan all play their discrimination too. Why in the hell then is so much noise made about us? Why are they biased against us? I am simply trying to prove to you all that there is nothing unusual we are doing that the so called civilized worlds are not doing. We are simply an honest people who have come out aloud with a clear philosophy of how we want to live our own White life.

    We do not pretend like other Whites that we like Blacks. The fact that, Blacks look like human beings and act like human beings do not necessarily make them sensible human beings. Hedgehogs are not porcupines and lizards are not crocodiles simply because they look alike. If God wanted us to be equal to the Blacks, he would have created> us all of a uniform colour and intellect. But he created us differently: Whites, Blacks, Yellow, Rulers and the ruled. Intellectually, we are superior to the Blacks; that has been proven beyond any reasonable doubt over the years. I believe that the Afrikaner is an honest, God fearing person, who has demonstrated practically the right way of being. Nevertheless, it is comforting to know that behind the scenes, Europe, America, Canada, Australia-and all others are behind us in spite of what they say. For diplomatic relations, we all know what language should be used and where. To prove my point, Comrades, does anyone of you know a White country without an investment or interest in South Africa? Who buys our gold? Who buys our diamonds? Who trades with us? Who is helping us develop other nuclear weapon? The very truth is that we are their people and they are our people. It’s a big secret. The strength of our economy is backed by America, Britain, Germany. It is our strong conviction, therefore, that the Black is the raw material for the White man. So Brothers and Sisters, let us join hands together to fight against this Black devil. I appeal to all Afrikaners to come out with any creative means of fighting this war. Surely God cannot forsake his own people whom we are. By now every one of us has seen it practically that the Blacks cannot rule themselves. Give them guns and they will kill each other. They are good in nothing else but making noise, dancing, marrying many wives and indulging in sex. Let us all accept that the Black man is the symbol of poverty, mental inferiority, laziness and emotional incompetence. Isn’t it plausible? therefore that the White man is created to rule the Black man? Come to think of what would happen one day if you woke up and on the throne sat a Kaff*ir! Can you imagine what would happen to our women? Does anyone of you believe that the Blacks can rule this country?

    Hence, we have good reasons to let them all-the Mandelas-rot in prison, and I think we should be commended for having kept them alive in spite of what we have at hand with which to finish them off. I wish to announce a number of new strategies that should be put to use to destroy this Black bug. We should now make use of the chemical weapon. Priority number one, we should not by all means allow any more increases of the Black population lest we be choked very soon. I have exciting news that our scientists have come with an efficient stuff. I am sending out more
    researchers to the field to identify as many venues as possible where the chemical weapons could be employed to combat any further population increases. The hospital is a very strategic opening, for example and should be fully utilized. The food supply channel should be used. We have eveloped excellent slow killing poisons and fertility destroyers. Our only fear is in case such stuff came in! ! to their hands as they are bound to start using it against us if you care to think of the many Blacks working for us in our homes.

    However, we are doing the best we can to make sure that the stuff remains strictly in our hands. Secondly, most Blacks are vulnerable to money inducements. I have set aside a special fund to exploit this venue. The old trick of divide and rule is still very valid today. Our experts should work day and night to set the Black man against his fellowman. His inferior sense of morals can be exploited beautifully. And here is a creature that lacks foresight. There is a need for us to combat him in long term projections that he cannot suspect. The average Black does not plan his life beyond a year: that stance, for example,should be exploited. My special department is already working round the clock to come out with a long-term operation blueprint. I am also sending a special request to all Afrikaner mothers to double their birth rate. It may be necessary too to set up a population boom industry by putting up centres where we employ and support fully White young men and women to produce children for the nation. We are also investigating the merit of uterus rentals as a possible means of speeding up the growth of our population through surrogate mothers.

    For the time being, we should also engage a higher gear to make sure that Black men are separated from their women and fines imposed upon married wives who bear illegitimate children.

    I have a committee working on finding better methods of inciting Blacks against each other and encouraging murders among themselves. Murder cases among Blacks should bear very little punishment in order to encourage them.

    My scientists have come up with a drug that could be smuggled into their brews to effect slow poisoning results and fertility destruction. Working through drinks and manufacturing of soft drinks geared to the Blacks, could promote the channels of reducing their population. Ours is not a war that we can use the atomic bomb to destroy the Blacks, so we must use our intelligence to effect this. The person-to-person encounter can be very effective.

    As the records show that the Black man is dying to go to bed with the White woman, here is our unique opportunity. Our Sex Mercenary Squad should go out and camouflage with Apartheid Fighters while doing their operations quietly administering slow killing poison and fertility destroyers to those Blacks they thus befriend.
    We are modifying the Sex Mercenary Squad by introducing White men who should go for the militant Black woman and any other vulnerable Black woman. We have received a new supply of prostitutes from Europe and America who are desperate and too keen to take up the appointments.

    My latest appeal is that the maternity hospital operations should be intensified. We are not paying those people to help bring Black babies to this world but to eliminate them on the very delivery moment. If this department worked very efficiently, a great deal could be achieved.

    My Government has set aside a special fund for erecting more covert hospitals and clinics to promote this programme. Money can do anything for you. So while we have it, we should make the best use of it. In the meantime my beloved White citizens, do not take to heart what the world says, and don’t be ashamed of being called racists. I do not mind being called the architect and King of Apartheid. I shall not become a monkey simply because someone has called me a monkey. I will still remain your bright star…His Excellency Botha. ”

    Today, I am moving clouds; Tomorrow I will try mountains !

    “Our lives begin to end the day we become silent about things that matter” Dr. Martin Luther King Jr.

    ” It is better to die for an idea that will live, than to live for an idea that will die.” Steven Bantu

  • Well stated Alex and kudos for the analytical piece. With Kenya’s ICC indictees Uhuru and Ruto as top leaders, we see how important it is for the other African leaders to begin “protecting themselves” from impeachment or prosecution for crimes committed while in power.

    I like the sentence: “Well, Bush and Blair are not Africa’s problem; leave them to the ICC to handle.” African leaders keep referring to them in the case of Iraq, yet their own countries face some of the worst human rights abuses in the world.

    Botswana seems to be the only “last country standing” to challenge inhumane acts in Africa. South Africa is a gone case with the suspected fraudulent Jacob Zuma (he of the cold water wash after sex) as president.

    The case of Nigeria is absurd – the trending hashtag #BringBackOurGirls is not enough and a better approach is needed to deal with the Boko Haram militants. One wonders how the country’s army cannot locate the kidnapped schoolgirls yet those who escaped captivity obviously know their whereabouts. Hashtag activism is just that; a better policy on security is necessary. See the case of Kenya where the Jubilee government has completely lost in taming runaway insecurity and terrorism.

    With the amendment of the Protocol on the Statute of the African Court of Justice and Human Rights, the AU has legally endorsed impunity and introduced full dictatorship.

  • No Justice for PEV Sufferers

    CRYING FOR JUSTICE
    VICTIMS’ PERSPECTIVES ON
    JUSTICE FOR THE POST-ELECTION
    VIOLENCE IN KENYA

    http://www.amnesty.org/en/library/asset/AFR32/001/2014/en/e40c1e83-af11-4443-8a70-7f46a833b21b/afr320012014en.pdf

  • No Justice for PEV Sufferers

    Amnesty faults state for neglecting PEV victims

    A new report by Amnesty International (AI) has accused the government of forgetting about survivors of the 2008 post-election violence who were not displaced during the skirmishes.

    The report, launched on Tuesday, claims no assistance had been given to those who were maimed or raped, or those whose family members were killed, especially in Nairobi, without having been displaced.

    The 69-page document, titled Crying for Justice for the Post-Election Violence in Kenya, indicates that authorities have only been focusing on resettling displaced survivors, but have neglected the needs of others who sustained physical and mental injuries.

    “While internally displaced people had received compensation and resettlement from the government, other victims with injuries had not received any assistance,” AI researchers say on the findings of a study conducted between October and December last year.

    “The majority of victims who(m) Amnesty International spoke to had not received reparation through the existing schemes and wanted the government to take further measures to address the harm they suffered and to help them rebuild their lives.”

    NO OFFICIAL COUNT

    At least 660,000 people lost their homes and other property in the 2008 post-poll violence, while 1,100 others were killed.

    There is no official count for those who sustained injuries during the clashes.

    The government, beginning September last year, decided to give monetary compensation to those affected in Nakuru, starting with a Sh3.3 billion fund from which each family was to receive Sh400,000. About 770 households were targeted in this cash payment.

    However, Amnesty International charges that the resettlement money is not enough and that some of those affected by the violence were forgotten and the country seemed to have moved on after settling those in camps.

    AI interviewed 49 survivors from Nairobi, Naivasha, Nakuru, Eldoret, Kericho, Kisumu and Kisii. All of them detailed accounts of beatings, rape, family members being killed or their families being uprooted.

  • African Union gives immunity to heads of state by subterfuge
    2014-jul-15 | Nicole Fritz
    By legislating for immunity for abusive leaders the Africa Union places Africa’s citizens at great risk, writes Nicole Fritz
    JUST an ordinary piece of business — an announcement at the end of the African Union’s (AU’s) recent summit of heads of state and government in Malabo, Equatorial Guinea, that it had voted to adopt the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights.

    And, with a title like that, the average observer would reckon it was not worth further thought: a document likely filled with tedious procedural stuff.

    You would think that the AU might want a little more fanfare for its decision to vest its new court for the continent with criminal jurisdiction — an ability to prosecute crimes such as genocide and war crimes, but also piracy and trafficking.

    Think again. Buried deep in the protocol is a clause that grants immunity to heads of state and other senior government officials, exempting them from prosecution for these crimes during their term of office.

    Now the subterfuge starts making a little more sense.

    Most of Africa’s inhabitants, with the exception perhaps of Swaziland’s citizens, are not much accustomed nowadays to having their leaders legislate one rule for them and an entirely different one for themselves.

    Equality before the law is a principle central not only to our present-day legal systems, but has also served as motivation for liberation.

    So AU leaders probably calculated, reasonably, that the general public would not be pleased to learn that they were now liable for such crimes — just not their leaders.

    That is especially so when it is these African leaders, and not the general public, who are most likely to commit these crimes.

    Crimes such as genocide and crimes against humanity are generally perpetrated on a huge scale and have a systematic nature. They take root where a lack of accountability prevails.

    Those who have the means to perpetrate these crimes, who see themselves as above the law, are generally those who wield the greatest power.

    Yet the protocol gives them greatest protection from prosecution.

    It is as if a company CEO introduced stiff new penalties for abuse of the company credit card, when only he has access to it, and then exempts himself from such penalties.

    Except that abuse of a credit card hardly squares with the devastation wrought by genocide and war crimes.

    Article 46A bis of the protocol provides: “No charges shall be commenced or continued before the court against any serving African Union head of state or government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.”

    Its inclusion places the AU in direct conflict with the Rome Statute of the International Criminal Court (ICC), which provides that the ICC rules “shall apply equally to all persons without any distinction based on official capacity.

    “In particular, official capacity as a head of state or government, a member of a government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility.”

    AU leaders will more than likely defend the inclusion of immunity on the basis that it is intended to ensure the smooth, efficient workings of state, allowing government officials to go about their work undisturbed by looming court proceedings.

    They will probably argue that accountability is not denied, merely delayed; that state officials can be prosecuted when they retire from office.

    This, however, ignores the perverse incentives that are generated: abusive leaders will seek to remain in power in perpetuity so that they are forever shielded from prosecution.

    Far from contributing to a culture of accountability and protection on the African continent, the AU, by legislating for immunity for leaders, places Africa’s citizens at greater risk.

    For those who will suffer the terror of a genocidal ruler, there is now the further tragedy: that ruler will now have every incentive to stay and stay and stay.

    Not for nothing is the AU called the continent’s most elite trade union.

    Never before, though, have Africa’s leaders so explicitly sought to negotiate better working conditions for themselves at the expense of their citizens.

    • Fritz is the director of the Southern Africa Litigation Centre.

  • Uhuru Kenyatta Must fight Rapists infecting children with HIV(aids) in Kenya>

  • Kenya destroys ICC

    Voice

    Has Kenya Destroyed the ICC?

    The body blows dealt by Nairobi have human rights groups questioning whether the court can — or should — prosecute atrocities in South Sudan and other African states.
    BY Michela Wrong

    JULY 15, 2014

    When the supporters of Uhuru Kenyatta and William Ruto began systematically attacking the International Criminal Court (ICC) as a neo-colonialist institution biased against Africans in the run-up to Kenya’s 2013 election, their prime concern was domestic: to ensure their champions escaped prosecution at The Hague. A publicity campaign that made clever use of social media was transformed into government policy once the two men were inaugurated president and deputy president, respectively. It then acquired diplomatic wings, with envoys from Nairobi crisscrossing the continent to drum up support, culminating with an extraordinary African Union summit last October at which it was agreed that African heads of state would no longer face ICC prosecution during terms in office.

    So effective has the anti-ICC campaign proved that it is now having repercussions its originators probably never foresaw: South Sudan is likely to be just the first in a series of new African conflict zones where human rights groups and civil society organizations find themselves nonplussed, unsure what to advocate in light of the body blows dealt the ICC.

    “The ICC backlash has created a major dilemma for us, no doubt about it,” acknowledged the head of one human rights organization I spoke to, who asked not to be named. “Deciding the appropriate course of action has become a very difficult question.”

    Their quandary, however, is no philosophical abstraction — the privilege of Western-funded NGOs with headquarters in Washington and Brussels. Every journalist is familiar with the experience of returning to the scene of an atrocity and interviewing a cowed survivor who quietly mentions that, in the street, they regularly pass men who raped a daughter, killed a father. If the ICC no longer holds out even the slim hope of eventual retribution for those who funded and armed such thugs, what alternatives exist?

    ***

    In many ways, the series of abuses committed in South Sudan after fighting broke out in mid-December would be well suited for referral to the ICC, which currently can prosecute war crimes, crimes against humanity, and genocide. First in Juba and then in dusty towns like Bor, Bentiu, and Malakal, opposing forces loyal to President Salva Kiir and his former deputy, Riek Machar, carried out tit-for-tat massacres and gang rapes, with atrocities targeted along ethnic lines. Victims were shot in hospital beds, outside churches, and within sight of United Nations compounds.

    For human rights activists, the sheer brutality of the violence, in a region scarred by 22 years of civil war between Khartoum and southern rebels, confirms a long-voiced argument that preventing fresh abuses means ending impunity. It is vital, many argue, to avoid the example set by Sudan’s Comprehensive Peace Agreement, which gave birth to Africa’s newest state in 2011 while largely sidestepping the issue of accountability for past crimes.

    “We’ve had 10,000 dead in less than three months. It’s been very fast, very aggressive, and the massacres have been ethnically targeted because that’s the way the leadership presented it,” says Wani Mathias Jumi, secretary-general of the South Sudan Law Society. “In the past there was no accountability at all, and that has been carried forward. If this country is to exist anywhere but on paper, we have to see redress this time.”

    South Sudan possesses other characteristics that make it suitable for ICC referral. The three-year-old country’s judicial system is still in embryonic form. No legal provision for crimes against humanity exists, and legal aid and witness protection programs have yet to be established. Judges, prosecutors, investigators, and clerks are in short supply and were often trained in the north, and so are accustomed to legal documents written in Arabic and the workings of sharia law. In South Sudan, where most inhabitants are either Christian or animist, the official language is English and the legal system is based on common law.

    “Even before the latest conflict, South Sudan was struggling to cope with prosecuting ordinary crimes,” says Amnesty International’s Elizabeth Ashamu Deng. “It’s clear that the normal justice system would not be able to deal with this latest challenge without significant external input.” Daniel Bekele, the director of the Africa division at Human Rights Watch, describes South Sudan’s judiciary as “one of the weakest in the region,” adding, “In a new country, that’s not surprising.”

    Always envisaged as a “court of last resort,” the ICC was set up in 1998 with precisely such circumstances in mind, offering justice to people in states too fractured to deliver it themselves. South Sudan may not be a signatory to the Rome Statute that established the ICC (neither, of course, is the United States), but the U.N. Security Council can refer a situation to the ICC, thereby establishing jurisdiction.

    Yet in spite of South Sudan’s apparently meeting many ICC criteria, leading human rights and policy advocacy groups are skirting calls for the court’s involvement. Human Rights Watch says it is still assessing the situation. The International Crisis Group is calling instead for a tribunal on the lines of that staged in Sierra Leone after its civil war. Amnesty International, for its part, says it is waiting on the final recommendations of the Commission of Inquiry on South Sudan, set up by the African Union.

    This wariness is rooted in recent, scarring experience. Shocked human rights groups are still digesting the African Union’s decision to rally behind Kenyatta and Ruto, accused by the ICC of organizing the violence that claimed more than 1,000 lives in the wake of Kenya’s 2007 elections and nearly tore the country apart.

    The African Union’s hostile stance successfully branded the ICC across the continent as a racist institution, fixated with prosecuting African leaders.

    The African Union’s hostile stance successfully branded the ICC across the continent as a racist institution, fixated with prosecuting African leaders.

    “The ICC has, unfortunately, become a toxic brand in much of Africa,” says John Ryle, of the Rift Valley Institute think tank. “This is due to the ineptitude of its former chief prosecutor, Luis Moreno Ocampo, and to the skillful political maneuverings of a number of ICC indictees, who have managed to represent the court as an instrument of Western intervention in the affairs of sovereign nations. The vulnerability of the ICC to this backlash has been a blow for African civil society activists who seek justice and accountability from their leaders.”

    Indeed, aware that three of the regional states now attempting to mediate a peace deal between Kiir and Machar — Sudan proper (where President Omar al-Bashir himself faces ICC prosecution), Kenya, and Uganda — have been particularly vocal in their hostility toward the ICC, many human rights groups are seeking cover behind the African Union’s commission of inquiry, which is seen as a classic “African solution to an African problem.” Led by former Nigerian President Olusegun Obasanjo and launched in March, the commission includes Ugandan academic Mahmood Mamdani, who has made his impatience with the ICC clear, arguing that a fixation with delivering pure justice can clash with the political accommodations necessary for peace. Influenced by South Africa’s post-apartheid experience, the commission’s members see reconciliation as their overriding priority. It is already running months behind schedule, but its final report, due in September, is expected to reiterate initial support for a “hybrid court” as the most appropriate way of delivering justice to South Sudan.

    Hybrid, or “ad hoc,” courts usually involve a mix of domestic judges and international magistrates, prosecutors, and investigators flown in to bolster a weak local legal system. The aim would clearly be to deliver a form of justice that would be both credible and recognizably local.

    But many in the human rights sector see the championing of the hybrid-court model as deeply ironic — history turning full circle. Ad hoc courts of various kinds were experimented with in Africa during the 1990s as reactions to abuses committed in Sierra Leone, Rwanda, and, more recently, Chad. The ICC formula came to be seen as far preferable as a result.

    “It seems we’ve gone right back to the 1990s,” says Casie Copeland, an analyst with the International Crisis Group. “The problem with the ad hoc courts was that they were tremendously expensive and that cash” — usually provided by the United States, European Union, or United Kingdom — “just isn’t on the table now.”

    “Decisions to appoint ad hoc courts were often highly political, whereas with the ICC system everyone knew they were dealing with international treaty bodies,” she adds. It can sometimes prove impossible to set up a hybrid court in the country where the atrocities were committed, leaving proceedings looking just as remote to the local population as those in The Hague. Another problem with hybrid courts has proved to be the often-tense relationships that develop between internationally funded employees and local staff working in cash-strapped, demoralized courts — tensions that undermined the ambition to build up a legacy of skills, resources, and legal expertise.

    “The hybrid-court approach might be one useful model, but it is no panacea for all situations,” warns Human Rights Watch’s Bekele. “The relevance of a hybrid-court model needs to be assessed on a case-by-case basis.”

    Wary of being associated with another high-profile ICC debacle — one many observers predict could effectively spell the end of the court — human rights workers say the ball on South Sudan is now in the African Union’s court. But they privately express concerns about the commission of inquiry’s scarce resources and the modest amount of time spent on the ground. “The African Union really needs to step up to the plate on this and demonstrate it can push for accountability,” said one activist who wished to remain anonymous.

    ***

    History may well come to see Kenya as the place where an idealistic — but perhaps naive — drive for universal justice was checked by the realities of entrenched elite power. The notion that sitting heads of state or popular ethnic champions would meekly allow themselves to be prosecuted seems extraordinarily starry-eyed now. But that realization still leaves unanswered the practical question of what is to be done when fresh conflicts break out and abuses are committed in traumatized African states that lack either infrastructure or political will to deliver accountability. This question is immediately pressing in South Sudan, as well as the Central African Republic, but will inevitably arise in other parts of the continent before too long.

    Expect years of debate. “The end goal is that there should be justice,” says Copeland. “If there’s a way of achieving that without involving the ICC, then let’s do it. But we’re going to see plenty of efforts to find ways of working around the ICC that will be confronted with the same facts that motivated the establishment of the ICC in the first place.”

    The author is a trustee of Human Rights Watch’s Africa Division, serving in an independent, advisory capacity.
    http://www.foreignpolicy.com/articles/2014/07/15/kenya_destroyed_icc_south_sudan_human_rights?utm_source=rss&utm_medium=rss&utm_campaign=has-kenya-destroyed-the-icc

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