“To Wash One’s Hands”: Challenges to International Justice in a Covid-19 Era

Stephanie Miller, University of St. Andrews, UK

A former research intern at the Global Centre for the Responsibility to Protect, Stephanie is currently studying for an MLitt in International Security Studies at the University of St. Andrews in Fife, Scotland. She previously earned her Bachelor of Science in Diplomacy and International Relations from Seton Hall University in South Orange, New Jersey.

Abstract

Since the World Health Organization officially declared Covid-19 a pandemic in March 2020, the ramifications of social distancing, quarantine, and other lockdown measures have been felt across the globe. The international human rights regime in particular has seen the detrimental consequences of limited judicial operations: increased violations compounded by the limited capacity of advocacy efforts have led to general impunity. This article assesses the state of affairs within the International Court of Justice and the International Criminal Court since the onset of the pandemic. It also highlights challenges for addressing abuses and conducting investigations and legal proceedings. Informed by public health guidelines and current attitudes towards justice and advocacy, it offers up considerations for future practice.

Introduction

As the Covid-19 pandemic continues to spread across the world, the international community faces unprecedented challenges to global justice. Exacerbated by a current climate “of global strengthening of authoritarianism and weakening of multilateralism, human rights and the rule of law” (Šimonović, 2020, p. 4), some states have utilized strictly mandated public health measures to suppress vulnerable populations, consolidate their power, and commit unspeakable acts of atrocity (Global Centre for the Responsibility to Protect, 2020).

In the midst of this crisis, the international justice mechanisms designed to combat such impunity are seemingly at a standstill. Caught between their mandates and the need to stop the virus, the courts can only offer a limited range of responses. The International Court of Justice (ICJ) grapples with questions of jurisdiction while using videoconferencing to handle procedural issues (ICJ, 2020, p. 1). The International Criminal Court (ICC) must juggle war crimes investigations with political and procedural obstacles (Mansour, 2020) while also considering requests for the prosecution of individual world leaders and the World Health Organization (WHO) for alleged international crimes committed under the guise of the Covid-19 pandemic (Canadian Institute for International Law Expertise, 2020).

Acknowledging the unique circumstances these mechanisms must now confront, this article poses the question: “What challenges does Covid-19 present to international justice?” It firstly seeks to provide a general assessment of the state of affairs within both the ICJ and the ICC since the onset of the pandemic. Secondly, this article details three broad aspects of international justice that have been impacted by the global pandemic and their relationship with court activities. Finally, this article draws on observations from key figures in the justice sector to propose considerations for the future. It ultimately asserts that in failing to adequately deal with the rising challenges posed by the pandemic itself and those who would seek to take advantage of it, the international community also fails in its responsibility to protect. While the continual failure of states to uphold this responsibility ensures that justice still remains elusive for many, the international court system has remained committed to responsibility, accountability, and timely management to the midst of the global health crisis.

Covid in the Courts: Assessing ICJ and ICC Action

Guidance and briefing notes from the ICJ and ICC offer insight into the priorities of each of these courts as the pandemic continues to unfold. The ICC Presidency’s “Guidelines for the Judiciary Concerning the Holding of Court Hearings during the COVID-19 Pandemic” centers around health and safety measures, limiting the capacity to conduct hearings to one hearing per day and closing all hearings to the general public (ICC, 2020b). While public statements reassuring the public of continued operations remain elusive, a review of ongoing activities reveal that the court has since been very active throughout the pandemic. For example, the trial in the case Prosecutor v. Al Hassan opened before Trial Chamber X of the International Criminal Court for crimes against humanity and war crimes allegedly committed in Timbuktu (Mali) on July 14, 2020, less than one month after the release of the ICC’s Guidelines (ICC, 2020a). The ICC previously managed the surrender, custody transfer, and initial appearance of alleged leader of the Sudanese “Janjaweed” militia leader Ali Kushayb in June (ICC, 2020c). It also began adjusting operational engagement so that its Trust Fund for Victims continued to provide service delivery to stakeholders (ICC, 2020d).

Outside of conducting its usual activities, the ICJ has been relatively quiet on how it is internally handling the pandemic. Its document “The Court adopts measures to ensure the continued fulfilment of its mandate during the COVID-19 pandemic” briefly outlines how the Court will continue vital operations despite the containment measures, citing the use of videoconferencing to handle procedural issues (ICJ, 2020). Nonetheless, the Court may yet play an important role in establishing accountability for the global health crisis. For instance, Alexander (2020) states that “the views of the world community are that China has not complied with the WHO’s International Health Regulations… This being the case, one could argue that China breached the human rights of its citizens.” Noting the Articles 6 and 7 of the International Health Regulations provide for timely, accurate, and sufficiently detailed public health information and information sharing respectively, Alexander goes on to argue that states looking to hold China accountable for pandemic-related crimes could invoke breaches of Articles 6 and 7 of the WHO’s International Health Regulations as a basis for establishing the ICJ’s jurisdiction.

In addition to this, De Herdt (2020) points out that the court may give an advisory opinion under Article 65 of the ICJ Statute, the purpose being to “offer legal advice to the organs and institutions requesting the opinion.” An advisory opinion from the ICJ would carry a sizeable deal of legal weight and moral authority in respect to the subject at hand, a move certainly more likely than any official action on the part of the court or the international community where China is concerned.

All in all, it appears that the international courts have remained active throughout the pandemic. However, emerging gray areas regarding justice and accountability within pandemic responses ensure that all is not business as usual. The rise of human rights abuses by states in recent months has called into question the general role of international criminal justice in the prevention of and response to public health emergencies. Guariglia (2020) asserts that despite the lack of a direct connection between international crimes and epidemics, “it can help isolate the actors behind the crimes, generate awareness of their actions and their potential consequences, and galvanize efforts to counter them.” Guariglia continues on to contemplate exploring the applicability of different modes of responsibility to authorities who deliberately fail to take necessary steps to contain the coronavirus. He notes that “it is not outside the realm of possibilities that the international criminal justice system be asked to hold to account those who use the COVID-19 crisis as an excuse to commit or perpetuate crimes against humanity or war crimes.”

In this vein, the ability of the ICJ and ICC to hold states accountable for such abuses is limited. While Chinese human rights abuses remain a question for ICJ jurisdiction, Ackerman (2020) says that similar complaints to the ICC will also likely go untouched, noting its role as a court for only the most egregious crimes. Though the Bolsonaro administration’s crimes against healthcare professionals in Brazil is most certainly a human rights issue (Al Jazeera, 2020), Ackerman points out that it does not meet the threshold for a crime against humanity and as such “will disappear into thin air at the Prosecutor’s office” (2020: 4). Ackerman ultimately asserts that bringing individual perpetrators to court for Covid-19 related human rights violations could devalue the ICC’s mandate in the eyes of the public. To be effective, he argues, civil society and international actors ought to utilize human rights law’s concern for the protection of individuals from the acts and omissions of States. Pressuring abusive regimes not only magnifies the issues but also expedites it to the court of public opinion, where humanitarian action is faster than a legal battle. In this sense, Guariglia’s considerations for holding perpetrators accountable for Covid-19 related abuses are more aspirational than particularly realistic.

Challenges

In May 2020, TRIAL International released a report identifying three aspects of international justice that have been affected by the global pandemic: an increase of human rights violations, crimes reporting and investigations, and the conduct of legal proceedings (TRIAL International, 2020a, pp. 1-11). While by no means exhaustive, the report gives a comprehensive overview of the challenges facing both states and international organizations as they wage a two-front war on the Covid-19 pandemic and those who would utilize global health measures to commit atrocities. For example, security forces continue to use excessive force against civilians in Nepal and the eastern regions of the Democratic Republic of the Congo (DRC) while enforcing quarantine lockdowns. Kasozi et al. (2020) observe that expectations of robust yet flexible pandemic control strategies have led to excessive use of force by police and armed forces in Kenya and South Africa. In doing so, they argue, government authorities contribute not only to serious human rights violations but also panic and anxiety amongst local populations. As with most state-sponsored atrocities, continued abuses of power and subsequent breakdowns in communal trust only perpetuate further violence.

With no end in sight for the Covid-19 pandemic, state abuses and violent communal responses will only perpetuate themselves unless intervention, governmental, local, or otherwise, takes place. UN special rapporteur Yanghee Lee warned that the Burmese military’s “significant” role in pandemic response has led to increased targeting of the Rohingya people (CNN, 2020). The military and its civilian government counterpart continue to target Rohingya civilians in Rakhine State, Myanmar, where a genocide against the Rohingya Muslim population began over three years ago (Independent International Fact-Finding Mission on Myanmar and United Nations, 2018). Abuses against the Rohingya minority and the general Burmese population have received attention since the pandemic began, with Human Rights Watch calling out excessive sentencing for Covid-19-related infractions (Human Rights Watch, 2020) and NPR reporting on restored internet access to Rakhine and Chin States (NPR, 2020). Nonetheless, with the genocide still ongoing and Covid-19’s disruption of ICC and ICJ operations, current arbitrations will be difficult to progress due to safety concerns and public health restrictions (ICC, 2020b).

Documentation of war crimes in the eastern DRC has also significantly reduced since the onset of the pandemic, mostly due to limited access to crime scenes. Because evidence collection is extremely time-sensitive, failure to act accordingly can result in the deterioration or disappearance of physical evidence and witness statements. This poses negative implications not only for investigations but also future legal proceedings. As noted by Labuda (2019), the International Criminal Court already has a severe “evidence problem,” as demonstrated by recurring system of evidence and oversight failures in Prosecutor v. Kenyatta and Prosecutor v. Laurent Gbagbo and Charles Blé Goudé (Labuda, 2019). Pandemic-related issues with crime scene access and witness availability will only serve to exacerbate pre-existing conditions within the international justice system and jeopardize ongoing cases. This may be especially pertinent to the ICC’s ongoing war crimes inquiry in Afghanistan (ICC, 2019). Greenlit in March, the investigation already faces backlash of the United Stated government (Burke-White, 2020) and will continue to stall evidence collection as the pandemic devastates the country and limits mobility (World Bank, 2020).

In addition to this, TRIAL International points out that human rights advocacy and mobilization has “drastically slowed” since the onset of the pandemic (TRIAL International, 2020a). While combatting Covid-19 remains at the forefront of international attention, abuse monitoring and interventions have fallen to the wayside. Though the Human Rights Council condemned the Burundian government’s closure of the Office of the High Commissioner for Human Rights in March 2020, it is unlikely that cases of extrajudicial executions, torture, enforced disappearances, sexual violence and arrests, forced expropriations of property, and arbitrary detentions will be addressed while the pandemic is still ongoing (TRIAL International, 2020b). With international and regional judicial bodies operating at minimal capacity, much of the responsibility for reporting and action has fallen to local advocacy groups whose resources are already spread thin by the pandemic. This ‘out of sight, out of mind’ phenomenon not only reinforces the international community’s failure to exercise its responsibility to protect but also contributes to an overall loss of visibility that puts victims at risk and encourages perpetrators to commit further abuse.

Moving Forward

Given the limited capacity and overall challenges facing the international courts, options for justice for human rights violations in an era of Covid-19 may seem slim. However, with conscious considerations and adjustments for practice, reinforcing responsibility and achieving accountability is still within reach.

Despite Ackerman’s (2020) observations as to the feasibility of pursuing world leaders for human rights violations in international court, there is still a role for the ICJ and ICC to play in the crisis. As previously mentioned by De Herdt (2020), the ICJ’s ability to issue an advisory opinion upon request would bring much needed legal and moral authority while also contributing to the development and interpretation of international law. While the ICJ should be wary of the implications of issuing premature advisory opinion during this unprecedented time, this would help to close the gap regarding acceptable legal action about accountability for violations committed in the context of the pandemic. As far as the role of the ICC goes, the court’s continued commitment to maintaining a vital presence in communities affected by international crimes illustrates that building communal resilience remains a priority.

Reporting and conducting investigations while following pandemic health regulations will remain difficult for the foreseeable future. Social distancing measures and foreign travel restrictions will most likely make evidence collection challenging. However, Braga da Silva (2020, p. 1) offers a potential solution in third party investigations: “Evidence collected by third-party investigators will likely face challenges of admissibility in being introduced into trial. Those challenges could, however, be overcome if third-party investigations are regulated within the legal framework of the ICC”. While third parties would still have to adhere to public health protocol, with proper regulation and oversight third party investigators can preserve time-sensitive evidence needed for prosecution. While the potential for acquittals due to pandemic-related evidence loss remains to be seen, the very implication is enough to warrant a closer look at adapting current practices for the times.

In this same vein, both courts have already seen several changes in how legal proceedings are conducted during the pandemic. Barring public access and instituting necessary precautions are all positive steps towards continuing court operations under Covid-19 restrictions. Though limiting the number of hearings conducted each day certainly slows down due process (Crawford, 2020), it does not necessarily hinder it. Despite alterations to day-to-day procedure, all signs point towards the fact that it is still very much business as usual. Moving forward, each court should continue to be mindful of public health restrictions while also ensuring that justice is served and rights are not infringed upon.

Conclusion

In his statement on behalf of the International Center for Transitional Justice, Fernando Travesí (2020) writes: “The common expression “to wash one’s hands of something,” usually means to absolve oneself of responsibility for something. In the current global [health] crisis, the meaning seems to have been turned on its head. In washing our hands today, we are accepting, embracing our responsibility for others wherever they are. As we gaze upon the road ahead, may we similarly embrace our responsibility for the most vulnerable and for all victims of human rights violations all over the world.”

While the rise of human rights violations in the midst of the pandemic may appear to illustrate how states have washed their hands of their responsibility to protect, the same cannot be said for the international justice system. Though they face immense challenges to operation and procedure, many unprecedented, the ICJ and ICC remain open and active. Their capacity may be limited for now, but they have not forgotten their mandates to see justice and accountability for egregious crimes; investigations continue, and trials commence even as these courts grapple with the uncertain. How to investigate and try world leaders and other international actors for crimes committed during the pandemic? What is preferable, prosecution or advisory opinion? What is the role, if any, of the courts in the accountability process? These are the questions that must be solved.

What ultimate form international justice in the Covid-19 pandemic may take is still to be determined. In the meantime, civil society and the international community must remain vigilant. Despite these unprecedented circumstances, the international community is still responsible for bringing mass atrocity crimes to heel. Pandemic or not, failure to stop the most vulnerable cases from slipping through the cracks is a failure in the responsibility to protect. As Guariglia (2020) notes, “we need a global response. And global responses imply the international rule of law, global governance and accountability dimensions.” Supported by civil society, governance institutions, and international actors, that response must put human rights values at its core in order to be genuine and effective.

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Evidentiary Challenges of New Technologies in International Criminal Trials

Aparajitha Narayanan, Leiden University, The Netherlands

Aparajitha Narayanan has a Bachelor of Laws degree from I.L.S. Law College, India, 2015. She has worked in a corporate law firm for a period of three years, after which she pursued her LLM in Public International Law, with a Specialisation in International Criminal Law, from Leiden University. Her LLM thesis entitled ‘Command Responsibility: A Contemporary Exposition’ was supervised by Professor William Schabas. Her areas of interest include International Criminal Law (specifically, defence rights), Public International Law and International Humanitarian Law. She currently works as a Lecturer at Jindal Global Law School on the course Global South and International Law, taught by Prof. Dr. B.S. Chimni.

Abstract

Modern international criminal justice, and particularly the evolution of digital evidence, owe their exposition to the war crimes trials of World War II. During the time of establishment of such tribunals and their functioning systems, many felt that international criminal law (ICL) did not possess the legal finesse necessary to reprobate the atrocities committed then. While certain crimes were ostensibly considered to be morally wrong by the international community as a whole, legal sanctions against such actions were not entirely present. International criminal law thus had to develop and draw level with the expectations of the world, against the backdrop of the acts of savagery that took place at the time. Contemporary times also dictate that as technology becomes more and more boundary-less, it tends to take crimes in its stride, thereby enhancing their outreach as well. This paper will trace the history of evidence collection in ICL and will highlight the linkage between digital evidence and contemporary times. While delving into specific cases, the paper will elaborate on the present and future use of digital technology in international crimes. It will also deal with the confluence of digital technology and open source evidence. This paper will argue that digital evidence in ICL may be disadvantageous to defence teams, owing to lack of resources, and certain solutions will be discussed to address the above problem. In conclusion, the positive and negative aspects of technology’s influence on ICL will be espoused, while underscoring the need to take a cautious approach.

1 Introduction

Law is an evolutive paradigm; its development is directly affected by changes in society and politics. We live in a digital age, the effects of which also trickle down to the legal field. Evidence collection is a specific facet of law that has taken technology in its stride.

International Criminal Law (ICL) is multifaceted in both its yield and its outreach, since grave international crimes are typically rife with factual complexities (Ford, 2014, p. 5; Ford, 2015, pp. 151-152). During the investigation of a crime of murder, it will not suffice if the elements of actus reus (the constituent element of a crime, the physical ‘act’ of the commission of crime) and mens rea (the mental element of the crime, the ‘intention’ to commit the crime) are proven (simultaneously). Apart from the specific elements of a crime, the contextual elements, the individual criminal responsibility of the perpetrator (linkage evidence) are also required to be established. Failing at this, the charge falls flat (Dörmann, 2003, pp. 241, 357). For instance, in order to prove the crime against humanity of sexual slavery, it is also necessary to establish that the perpetrator engaged in purchasing, selling, bartering etc. the victim or deprived his/her liberty, made the victim participate or carry out acts of sexual nature, or that the conduct was committed as a “widespread or systematic attack against a civilian population,” among other elements (Article 8, Elements of Crime, 2002). From the above, we can clearly comprehend that the complexity of an international crime is enormous, and therefore, that its adjudication is also trammelled by composite intricacies.

International criminal courts and tribunals are ideal platforms that can use and showcase advancements in digital technology in an elucidatory manner. They may even set a good example for domestic processes provided they achieve high evidentiary thresholds. Courtroom evidence is now focused on new tools, which have changed the very identity of the said field. The high connectivity, easy availability, and expansive capabilities of internet enabled devices and cameras have successfully made their way into the realm of evidence gathering (Bergasmo and Webb, 2007). They have proved to be instrumental in devising updated methodologies for investigators to follow. International criminal trials require prosecutors to collect a wide array of evidence and present a diverse body of proofs to establish multiple crimes. Advanced digital technology is capable of storing copious amounts of information about any ‘case’ or even a ‘situation;’ it also assists lawyers and prosecutors to strengthen evidence by way of introducing time stamps etc.

Currently, in ICL, there are no rules of procedure that may be exclusively applied to digital technology related evidence, indicating that it is perhaps not keeping up with the changing times. The ‘best evidence rule’ followed in most criminal trials requires investigators to collect and present only evidence that is best suitable for establishing the factual circumstances (Freeman, 2018). However, extrapolating the said rule to evidence gathered via digital technology is difficult, since there is a barrage of information that may become available, thereby flooding the evidence table with superfluous information.

This paper will argue that digital technology and its influence on the functioning of international criminal law have complex nuances. It is imperative to first understand the import of advancement of new technologies before relying on them for evidentiary purposes. In order to develop this argument, this paper will firstly discuss the types of evidence (including the three-prong test in ICL) and the applicable provisions of the Rome Statute of the International Criminal Court (hereinafter called the Rome Statute) in relation to digital evidence. Then, the paper will trace the history of collection of evidence in ICL. Further, an examination of the evidence-gathering and submission methodologies used in some recent cases brought before international criminal courts and tribunals will be done, highlighting some of the contemporary nuances of international crimes and their linkages with the digital age. Moving on, the paper will elaborate on the applicable law of evidence and the practical changes carried out by investigators owing to advancements in technology, thereby filtering it further and understanding whether there is any ‘tunnel vision’ approach. Certain specific cases that throw distinctive light on the present and plausible future use of digital technology in evidence gathering concerning international crimes will then be discussed. The paper also attempts to comprehend the disadvantages faced by defendants when trials focus on digital evidence. Therefore, the paper will also discuss some suggestions on how to address the said problems. Finally, the present-day challenges of new advancements in the international criminal law sphere will be evaluated, while leaning principally towards its ambivalent potentialities.

2 Collection of evidence in international criminal law

There are different types of evidence: testimonial (where written or oral evidence is offered as truth in a court of law), documentary (where documents are submitted to a court of law as evidence), physical (material evidence used to prove the fact in issue) and forensic (evidence obtained via scientific methods, submitted in a court of law). Article 69(2) of the Rome Statute deals with giving testimonies via audio or video conferencing (Rome Statute, 1998). Rule 67 of the Rules of Procedure and Evidence (RPE) of the ICC concerns itself with the procedural requirements of such testimonies (RPE, 2004). It is relevant to note that Regulation 26(4) of the Regulations of the ICC (2004) states that “in court proceedings, evidence shall be presented in electronic form whenever possible, however, the original form shall be authoritative” (Regulations of the ICC, 2004).

Further, Article 69(4) of the Rome Statute enumerates a three-prong test for admission of evidence, structured around the following elements:

(i) “relevance” (whether it relates to the circumstances of the case), (ii) “probative value” (whether it contributes to proving the issue at hand) and (iii) “relevance to outweigh any potential prejudicial effect that may be caused by its admission” (Rome Statute, 1998).

It is pertinent to keep in mind that the above conditions must be met even while presenting digital or electronic evidence. Digital evidence may be defined as “data that is created, manipulated, stored or communicated by any device, computer or computer system or transmitted over a communication system, that is relevant to the proceeding” (Mason, 2008, p. 35).Digital evidence was first used by national jurisdictions, before its extrapolation to ICL. While witness testimony generally forms the focal point of international criminal trials (Article 69(2), Rome Statute, 1998; Prosecutor v. Bemba, Trial Chamber, 2011, para. 76), other forms of evidence also contribute to the smooth functioning of the trial process. They may include photographs, aerial imagery, recordings (audio and video), forensic evidence, ballistic reports, DNA etc.

With the advent of technology, nowadays any digital/electronic device is capable of being used as evidence, be it a mobile phone, a laptop, or a camera. While it is true that an eyewitness account is essentially the person’s rendition of a recollected memory of the incident, it may not be as all-encompassing as an electronic device. For instance, a satellite image may be capable of pinpointing an inaccessible spot, and mobile call records could enable one to identify the exact communications which may in turn assist in identifying the accused’s activities. Such information may potentially help courts in ascertaining the truth about the incident and further provide much-needed support in the proper execution of the investigation and its appropriate adjudication. Even so, while Rule 68 of the RPE provides that prior recorded testimony can be used as an alternative to viva voce testimony, it comes ridden with restrictions (RPE, 2004).

3 History of collection of evidence in international criminal law

3.1 The Nuremberg International Military Tribunal 

The International Military Tribunal (IMT) at Nuremberg was unique in a plethora of ways. It was set up just about six months after the surrender of Germany post World-War II (US Holocaust Memorial Museum, IMT at Nuremberg) and was lauded for its quick prosecutions. Prior to the establishment of the IMT, trials used to heavily rely on witness testimonies. However, for the first time, the IMT emphasised documentary evidence rather than live witness testimonies. The widespread and systematic persecution of the Jewish population by the Nazis was diligently documented (including registration forms for Jewish people, containing their names and other details, inventory lists for Jewish properties etc.) by official government and military records, thereby strongly assisting in proving genocidal intent, among other elements (Boender and Wichert, 2012, p. 10). Films and photographs were also widely prevalent since World-War II was an infamously important conflict (Freeman, 2018, p. 299). Reporting of crimes was done through the use of photography, and films also played the role of an educational and informative tool in spreading the news about war crime efforts in different parts of the world. Not only were whispers regarding the atrocities committed during the biggest war in history heard by one and all: actual footage of the heinous crimes committed were also virtually witnessed by many. Thus began the reliance on digital technology for the prosecution of international crimes.

Ad-hoc tribunals like the International Criminal Tribunal at Rwanda (ICTR), the International Criminal Tribunal of the former Yugoslavia (ICTY), Special Court for Sierra Leone (SCSL), Special Tribunal for Lebanon (STL) and the Extraordinary Chambers of the Courts at Cambodia (ECCC) also depended on digital evidence, in a direct or indirect manner, which will be discussed in the sub-sections below.

3.2 International Criminal Tribunal at Rwanda 

In proceedings before the ICTR, the Office of the Prosecution (OTP) relied on a video recording of a rally to prove that the accused had attended the rally (where the Interahamwe were present) and given a speech inciting violence against the Tutsis, and had also submitted a radio transcript of the same (Prosecutor v. Karamera et al., ICTR, Trial Chamber, 2012, para. 508). The ICTR, based on this information, held that the radio transcript effectively authenticated the video’s date, thereby proving conclusively that the defendant had indeed attended the rally (Prosecutor v. Karamera et al., ICTR, Trial Chamber, 2012, para. 598).

More radio announcements were submitted by the OTP wherein it was stated clearly that Tutsis were to be pursued and harmed (Prosecutor v. Rutaganda et al., ICTR, Trial Chamber, 1999, para. 358). The ICTR held that the recordings were authentic, when combined with an expert witness’ testimony (among two other testimonies) (Prosecutor v. Rutaganda et al., ICTR, Trial Chamber, 1999, para. 363). Additionally, to prove ‘control,’ video footage along with a transcript was submitted by the OTP. This was used by the ICTR to establish that the person in the video, the defendant, was indeed the Minister of Defence at the time of the conflict, thereby exercising effective control over the military forces (Prosecutor v. Bagosara et al., ICTR, Trial Chamber, 2008, para. 493, 494). Although the ICTR blatantly refused to admit any evidence without the author’s testimony (supporting the digital evidence), it was considered a laudable effort at the time (Prosecutor v. Renzaho, ICTR, 2007, pp. 1, 2).

3.3 International Criminal Tribunal for the former Yugoslavia

Upon obtaining the testimonies of intercept operators, the ICTY admitted into evidence certain intercepted communications produced by Bosnian Muslims (Prosecutor v. Tolimir, ICTY, 2012, Trial Chamber, para. 63). In the same instance, the intercepts’ printouts were corroborated with the original notebooks of the intercepted communications. Furthermore, the evidence was seconded via notes of UN officials, increasing its probative value, by way of telephone books, aerial imagery and witness statements (Prosecutor v. Tolimir, ICTY, 2012, Trial Chamber, para. 64). The Tolimir decision, wherein the accused was held guilty of having committed the crimes of genocide and other crimes against humanity, is particularly significant. In the case of Prosecution v. Tolimir, the OTP submitted aerial imagery evidence obtained from the United States of America, which came embedded with instructions not to discuss the methods used to obtain such evidence (Prosecutor v. Tolimir, ICTY, 2012, Trial Chamber, para. 68). Such evidence was found to be reliable regardless of the absence of direct evidence tracing its origin and collection methods since witnesses and investigators from the OTP gave testimonies authenticating the said aerial images (Prosecutor v. Tolimir, ICTY, 2012, Trial Chamber, para. 70). The ICTY was also imperative in establishing that upon the authentication of digital evidence, contrary testimonial evidence may be impeached (Prosecutor v. Krstić, ICTY, 2001, Trial Chamber, para. 278). The OTP also submitted video and other scientific evidence for authentication and the ICTY categorically held that since the digital evidence was separately corroborated by other pieces of evidence, its veracity could not be challenged (Prosecutor v. Galić, ICTY, 2003, Trial Chamber, para. 549).

Chain of custody as such is generally a controversial aspect of the use of evidence in criminal trials. However, identification of a witness via voice interception proved the authenticity of a piece of digital evidence in the case of Prosecutor v. Brdanin, even though it had certain chain of custody issues (Prosecutor v. Brdanin, ICTY, 2004, Trial Chamber, para. 34). Handwritten notes converted to digital notes were permitted by the ICTY instead of audio recordings, which would have been considered ‘best evidence’ (Prosecutor v. Popovic et al., ICTY, 2007, Trial Chamber, para. 39). Regarding the preservation of digital evidence, this was not a pre-requisite for it to satisfy the ‘best evidence’ rule popularly applied in international criminal trials, which was a considerable departure from earlier jurisprudence (Prosecutor v. Popovic et al., ICTY, 2007, Trial Chamber, para. 39). In respect of altered evidence, the ICTY held that such alterations do not affect the credibility of the evidence (Prosecutor v. Popovic et al., ICTY, 2010, Trial Chamber, para. 73-75). In addition, even when one of OTP’s analysts stated that certain intercepts could have been tampered with, the OTP contended that the transcripts and notes (instead of the recordings) ought to be admitted, despite the defence’s objections to the transcripts being incomplete (Prosecutor v. Blagojević and Jokić, ICTY, 2005, Trial Chamber, para. 29). The ICTY chose to admit the transcripts, stating that the transcripts were authentic since their preservation procedures were in order (Prosecutor v. Blagojević and Jokić, ICTY, 2005, Trial Chamber, para. 29; Prosecutor v. Popovic et al., ICTY, 2007, Trial Chamber, para. 39).

3.4 Special Tribunal for Lebanon

Trials in the Special Tribunal for Lebanon (STL) were entirely held in absentia of the defendants, in a series of firsts for the STL (apart from being the first hybrid tribunal that tried domestic cases on terrorism) (Fassbender, 2007). Telecommunication records (in this case, “call data records, cell site information and subscriber records”) were submitted as evidence by the OTP (first of its kind evidence) since it was alleged that the terrorists who killed the former Prime Minister of Lebanon Mr. Rafik Hariri had been tracking his movements using mobile networks (Public Information and Communications Section of the Special Tribunal for Lebanon, 2017). Further, video footage evidence has been submitted by the OTP, which contains surveillance cameras in the area where the attack occurred, and it is to be considered in conjunction with forensic evidence (STL Bulletin, 2018, p. 5). To understand the use of explosives and the epicentre of the detonation, the OTP submitted expert evidence that used the aid of computer programmes and mathematical algorithms to ascertain the various permutations and combinations (STL Bulletin, 2017, p. 1). The said evidence substantiates the OTP’s assertion that the explosion was above-ground and not under-ground as contended by the defence, and was the work of a suicide bomber (Prosecutor v. Ayyash, STL, Key Developments, Case Timeline). It is relevant to note that cellular signals are neither accurate nor highly reliable, and while there is no judgment on this matter yet, once the above case is adjudicated, the haziness surrounding the evidentiary value of such items will conceivably abate.

3.5 Extraordinary Chambers in the Courts of Cambodia

Film recordings of prison camps during the Khmer Rouge regime were not admitted by the Extraordinary Chambers in the Courts of Cambodia (ECCC) owing to the objections raised by the defendant about their reliability and authenticity. The ECCC, in Case 001 (regarding two sequences of film footage submitted by the co-prosecutors), held that the said films would end up intruding on the court’s valuable time (Case 001, ECCC, 2009, Trial Chamber, para. 5, 15). The OTP corroborated the said video recordings with a live witness testimony, however, the ECCC did not budge from its decision of rejecting their credibility. Further, video evidence was submitted by the OTP to the ECCC in another case as well (Case 002), but owing to its ‘low probative value,’ the ECCC did not admit it as evidence (Case 002, ECCC, 2018, Trial Chamber, para. 69).

By noting the pronouncements made by the above tribunals and courts, it becomes clear that digital evidence served as an important addition to the evidentiary procedures of international criminal trials. When combined with other corroborative evidence, its weightage multiplies two-fold and its vast potentialities may see the light of day when all the stakeholders understand the import of its influence in criminal trials. However, the above paragraphs also highlight that courts are extremely cautious (as they ought to be) before admitting digital evidence not corroborated by other pieces of evidence which they believe aid in strengthening its authenticity and veracity. Further, it is also evident that if preservation procedures are strictly followed while preserving digital evidence, courts trust that such evidence is credible.

4 The International Criminal Court and its treatment of digital evidence

The ICC, in its formative years, did not depend heavily on digital evidence during investigations. Later on, in 2008, the OTP relied on digital evidence while arresting Jean-Pierre Bemba, who had been accused of committing war crimes and crimes against humanity in the Central African Republic (CAR) (Prosecutor v. Bemba et al., ICC, 2017, Appeals Chamber, para. 5), and Callixte Mbarushimana, accused of committing war crimes and crimes against humanity in the Democratic Republic of Congo (Prosecutor v. Mbarushimana, ICC, 2011, Pre-Trial Chamber, para. 23). The investigation process produced a surfeit of digital evidence, which had to be processed by the national authorities in CAR and Congo respectively, since presumably, the OTP did not have experts who could attest to its credibility (Freeman, 2018, p. 306). After 2008, digital evidence became the norm, rather than the exception, and its usage was proportionally augmented owing to the increased use of many sources of digital evidence, like laptops, mobile phones and social media (Digital Fingerprints, 2014, p. 5).

The OTP has investigated cases where digital evidence was of paramount importance, such as in the situations in Libya and the Ivory Coast. The new trend urgently demanded preservation of digital evidence and the creation of a system governing the same. The Scientific Response Unit (SRU) in the OTP then added a sub-branch within it, that of a Forensics Science Section, consisting of Forensic, Cyber and Imagery sub-units (Ambos, 2016, p. 119). The focus was now placed on how technology and its widespread use  may assist criminal investigations. For the past years, the OTP has been encouraging open-ended investigations with a view of  promoting digital evidence, as a form of non-witness based evidence collection. The OTP started hiring experts in digital forensics for its SRU and also trained its investigators in cyber investigations conducted by INTERPOL (Digital Fingerprints, 2014, p. 8).

The remainder of this section will review some important cases adjudicated by the ICC, like those of Lubanga, Katanga, Al-Mahdi, Bemba and Al-Werfalli. Since the ICC is the most important court for prosecuting international trials, it is essential that we look into its treatment of digital evidence. The ICC’s handling of digital evidence could serve as a blueprint for other courts and tribunals and aid in further understanding the procedural and substantive aspects of the importance of digital evidence in the prosecution of international crimes.

4.1 Lubanga

The trial of Lubanga was the first trial before the ICC. Thomas Lubanga Dyilo was the founder and leader of the Union of Congolese Patriots (UPC), a rebel group responsible for committing mass atrocities in the Democratic Republic of Congo (DRC). Lubanga was found guilty of the war crimes of enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities. The OTP introduced oral, written and audio-visual evidence, while physical and forensic evidence was not submitted at all (Prosecutor v. Lubanga, ICC, 2012, Trial Chamber, para. 93), a decision which was touted to be a gamble by many. Transcripts of interviews, videos, photographs, maps etc. were also introduced, either while taking the oral evidence of witnesses, or by way of a special application made by the respective counsel (Prosecutor v. Lubanga, ICC, 2012, Trial Chamber, para. 93). The OTP also introduced video footage showcasing the defendant inspecting and conscripting his troops, the majority of whom seemed to be children under the age of 15 years (Prosecutor v. Lubanga, ICC, 2012, Trial Chamber, para. 793, 794). Ostensibly, the probative value of the digital evidence in this case was known to be minimal. The OTP chose to rely on such evidence as a way of corroborating the oral testimonies of witnesses. The defence, however, argued that the video footages were simply unreliable since they could not definitively conclude whether the children were 12-13 years old or 15-16 years old (Prosecutor v. Lubanga, ICC, 2012, Trial Chamber, para. 716). The Trial Chamber then held that the defendant intended to recruit children below the age of 15 and that the video footage clearly proved that he had no genuine intention of avoiding recruiting children (Prosecutor v. Lubanga, ICC, 2012, Trial Chamber, para. 1335).

4.2 Katanga

During the proceedings in the trial of Germain Katanga, who was the commander of the rebel group Force de résistance patriotique en Ituri, was convicted of being an accessory to war crimes and a crime against humanity committed on 24 February 2003 during the attack on the village of Bogoro, in Ituri, DRC. The OTP included the following digital evidence:

(a) a 360° visual representation of the ‘Institut de Bogoro’ (where civilians would take refuge whenever an attack would occur), along with a visual technician’s report;

(b) over 200 photographs taken by the visual expert and by drone, used to produce the visual presentation;

(c) a ballistic expert report;

(d) a video showing footage of the crime scene investigation by the ballistic experts and its log;

(e) aerial photographs;

(f) videos showing the exhumation and examination of human remains (and their logs); among others 

(Prosecutor v. Katanga, ICC, 2009, Trial Chamber, para. 2).

The defence countered the admission of the above evidence by arguing that they were complex enough to be challenged by counter experts of the defence (Prosecutor v. Katanga, ICC, 2009, Trial Chamber, para. 7). Except for the ballistic report, the Trial Chamber admitted the others into evidence, while specifically stating that “the material in itself is not incriminating and has very limited evidentiary value. It is simply a tool for orientation, just like a diagram or drawing” (Prosecutor v. Katanga, ICC, 2009, Trial Chamber, para. 39). It is necessary to note that the OTP was severely reprimanded for not having consulted the defence while preparing such digital evidence and for taking evidentiary decisions unilaterally (Prosecutor v. Katanga, ICC, 2009, Trial Chamber, para. 74).

4.3 Al-Mahdi

Ahmad Al Faqi Al Mahdi, an alleged member of Ansar Eddine, a movement associated with the Al Qaeda, was convicted of acting as a co-perpetrator of the war crime of intentionally directing attacks against religious and historic buildings in Timbuktu, Mali, in June and July 2012. The OTP’s evidence against the defendant included inter-alia: satellite images (showcasing the sites before and after their destruction), archive photographs, internet audio recordings from armed groups, video recordings showing destruction of the sites, geolocation and time-stamping expert reports, and 360° panoramic images (Freeman, 2018, p. 316; Prosecutor v. Al Mahdi, ICC, 2016, Transcripts, pp. 28, 29). The defence did not refute the admissibility of the above evidence, and therefore, the court did not have to rule on its admissibility. It is particularly noteworthy to mention herein that the amount of ‘open-source evidence,’ i.e. information taken from public sources for specific purposes of trials (Mehandru and Keonig, 2019, p. 130), used by the OTP in the above trial was unprecedented. The defendant had also recorded videos where he was seen writing sermons dedicated to mausoleums’ destruction and directly participating in the attacks, while also giving moral support (Prosecutor v. Al Mahdi, ICC, 2016, Trial Chamber, para 37, 38). The public had also uploaded videos of the said destruction, which inadvertently resulted in the enhancement of public participation (indirectly albeit) in the trial process. Furthermore, the use of digital evidence assisted the OTP in establishing a solid, wholesome and strong case against the defendant.

However, the treatment of digital evidence by the OTP in this case was not viewed positively by one and all. Open-source evidence is to be approached warily, since they may be doctored, fake or downright falsified. Additionally, the satellite images of Google Earth were also viewed apprehensively by some digital experts since no background check was carried out by the OTP authenticating such images. It is relevant to note that the above approach is cause for concern since meta-data issues may crop up, in light of the fact that Google Earth constantly keeps updating itself, which means that positional accuracy may keep varying (Freeman, 2018, p. 318; Mohammed et. al., 2013, pp. 6, 9). An interactive platform was also devised by the OTP, which was included as demonstrative evidence, enabling the OTP to “optimally present various videos found on the internet” (Prosecutor v. Al Mahdi, ICC, 2016, Transcripts, p. 44). It could be said that such a technologically sound and innovative approach was rightly praised by participants and onlookers alike and greatly assisted in finding the defendant guilty.

4.4 Bemba

Jean Pierre Bemba was the President and Commander-in-chief of the Mouvement de libération du Congo and was charged with the commission of war crimes and crimes against humanity. The OTP introduced ten audio recordings of radio programmes, in spite of authenticity challenges made by the defence (Prosecutor v. Bemba et al., ICC, 2015, Prosecution’s request, para. 18). Telephone intercepts, call data and financial records were also extensively used during the appeals stage (Prosecutor v. Bemba et al., ICC, 2016). At the investigations’ stage, the OTP submitted as evidence emails and other electronic data belonging to the defendant, after having confiscated his laptop and mobile phone. It was, however, argued by the defence that the OTP had failed to authenticate the emails and that they must consequently be excluded. The OTP also relied on photographs found on a Facebook profile, however, the defence countered the same by contending that since Facebook does not require any authorisation prior to account-creation, attribution would not be possible (Prosecutor v. Bemba, ICC, 2015, Defence’s Response, para. 44). Even though the judgment did not rule on the admissibility of this social media evidence, it may contentiously pave the way for the OTP and the defence to make use of the wide array of digital evidence in the future. Needless to say, future jurisprudence will, in all likelihood, have to address challenges posed by admission (or rejection) of social media evidence in this growing digital age.

Other tricky issues, such as the right to privacy of the defendant, may also encumber the positive influence of digital evidence. In Bemba, it was contended by the defence that by virtue of the release and potential use (as evidence) of the financial records of the defendant, his right to privacy was being violated, since the evidence collection was done prior to the receipt of the first order by a relevant judge, thereby flouting Austrian laws (Prosecutor v. Bemba, ICC, 2016, Trial Chamber, para. 11). The defence thereby submitted that the admission of such financial records as evidence would violate the integrity of the proceedings, as per Article 69(7)(b) of the Rome Statute (Prosecutor v. Bemba, ICC, 2016, Trial Chamber, para. 14). It was then held by the Trial Chamber that although the said evidence was obtained prior to receipt of an approval from the competent domestic authorities, the nature of such information is also not particularly sensitive and will thus not violate the internationally recognised human right to privacy (Prosecutor v. Bemba, ICC, 2018, Appeals Chamber, para. 338, 348). Jurisprudentially, this was the first time the ICC recognised any international human right, which proved to be the rightful cause for celebration among the human rights’ aficionados of the criminal justice process.

4.5 Al-Werfalli

The International Criminal Court’s (ICC) investigations in Libya posed many legal challenges in this respect. Citizen and victim engagement in fact-finding was unparalleled: social media platforms like Twitter, Facebook and the YouTube were inundated with potential usable evidence that documented the conflict on a real time basis (Hamilton, 2019). In 2017, a public arrest warrant was released by the ICC against Mr. Mustafa Busayf Al-Werfalli regarding the situation in Libya. Mustafa Busayf Al-Werfalli was a commander in the Al-Saiqa Brigade and is alleged to have directly committed and ordered and commission of war crimes in Benghazi and other surrounding areas in Libya. The said warrant was primarily issued based on information derived from social media, such as execution videos (Prosecutor v. Al-Werfalli, ICC, 2017, Public Warrant of Arrest, para. 14). In a video, the defendant is seen to be wearing a rebel uniform, carrying a weapon and shooting three people in the head (Prosecutor v. Al-Werfalli, ICC, 2017, Public Warrant of Arrest, para. 12). Another video also points to his raising his left hand and sweeping it down as if ordering the execution. Though the source of the video is not conclusively ascertained, the OTP did note that “the evidence supporting the application for the arrest warrant comes from social media posts by the Media Centre of the Al-Saiqa Brigade” (Prosecutor v. Al-Werfalli, ICC, 2017, Public Warrant of Arrest, para. 3). Notably, Article 15(3) of the Rome Statute stipulates that a ‘reasonable basis’ must be established to proceed to the investigation stage, using the available material (Article 15(3), ICC Statute, 1998). Clearly, this threshold has to be met by the OTP and time will tell whether the above arrest warrant was validly issued or not.

The above section is  an important contribution to the discussion of the use of digital evidence since the ICC is the principal court as far as the prosecution of individuals committing heinous international crimes is concerned. Arguably, international criminal justice practitioners have bestowed upon it the status of ‘first responders.’ Hence, the ways of handling digital evidence by bodies of the ICC serve as a reference material for other courts and tribunals.

5 Digital evidence in international criminal law – posing a serious disadvantage to the defence?

In order to uphold the integrity of the criminal justice system, the rights of the accused must always be protected; be it the accused’s right to effective legal representation, defence independence or, chiefly, the principle of equality of arms. The defence cannot work in a dysfunctional setting, especially one that may primarily concentrate on recognising and endorsing the efforts of the prosecution. Justice cannot be meted out if one party is at an obvious advantage and the other’s hands are essentially tied in an inordinate manner (perhaps, due to budgetary constraints, lack of communication, unequal resource allocation etc.). In the Tolimir decision, for instance, the ICTY held that the defence has to prove that the digital evidence submitted by the prosecution is unreliable before admitting any challenge on such grounds. Digital evidence could be construed as that invisible tripwire which aids only the prosecution, perhaps at the cost of defence rights. For instance, when the defence team in the previously mentioned Ayyash case objected to the acceptance of certain aerial images, the STL held that such digital evidence cannot be excluded without a counter-reliability and authenticity scrutiny conducted and proven by the defence (Prosecutor v. Ayyash et al., 2012, STL). It is extremely problematic for the defence to accumulate enough expertise to put forth counter evidence challenging that of the OTP’s since, unlike the prosecution, it does not boast of budgetary leniencies.

A quintessential fair-trial requirement is that of the principle of ‘equality of arms,’ which dictates that at no point during the criminal proceedings should any party “be put in a disadvantaged position vis-à vis the other” (Tuinstra, 2009, Summary). This principle is, however, ignored in ICL trials, and while it may arguably help in achieving the goal of ending impunity, it does so at the expense of the rights of the defence. As noted in the preceding section, judges at the ICC reproached the OTP for not working with the defence during the Katanga trial, particularly in relation to evidentiary submissions (Prosecutor v. Katanga, ICC, 2009, Trial Chamber, para. 2). In the Ayyash case, the overwhelming amount of digital evidence submitted by the prosecution is so technologically complex that it is nearlyimpossible for the defence to refute it without expending similar resources and comprehending the true import of such evidence (Prosecutor v. Ayyash, STL, Key Developments, Case Timeline). Furthermore, due to budgetary constraints, it would not be feasible for the defence team to formulate and successfully prove its counter theories. Devoid of an abundance of resources at its disposal, defence teams cannot collate sufficient evidence favouring the defendants or debunking the OTP’s technically advanced evidence.

At various international criminal tribunals and courts, the Registry is placed at the helm of the servicing branch. Owing to the fact that it is ordained to fulfil the administrative needs of all the participants, defence interests occasionally take a hit. Setting up a separate body to address the needs of the defence teams could serve as a solution-primer for the above misgivings. A good example of equal representation would be the ICC’s Legal Aid Commission where the defence team may make its own arguments in relation to defence funds  (Tuinstra, 2009, Summary). To encourage transparency for the defence and enable it to participate in the decision-making process, the proposal of establishing a separate defence body could be given some credence. While it is a known fact that members of the OTP undergo regular training in honing their prosecutorial skills for better comprehension of evidentiary methods, the defence body could conduct similar workshops for the defence teams as well. Reducing disclosure obligations only for the defence could also polemically aid in tipping the partisan imbalance scale and righting apparent wrongs, although, as a workable suggestion, it may not be altogether viable. Justice that is seen to favour the ostensibly ‘good side’ is antithetical since its very fulcrum rests on equal treatment of all parties. Nonetheless, one must tread such an unpaved path with caution, since at no point can it lead to friction among the teams or cause conflicts of interest, inadvertently harming the very integrity of the judicial process (Mercuri, 2010, p. 132). In the future, in an effort to understand and appreciate the various facets of potential digital evidence, all the organs of courts may devise a strategy (forging partnerships with technology companies, programmers, government agencies, investigatory organisations etc.) to foresee digital evidence-related complications and counter them effectually (Digital Fingerprints, 2014, p. 12).

6 Conclusion

The increased reliance on digital technology in every single aspect of our lives is an irrefutable fact and it would not be a hyperbolic prediction if one were to hypothesise that we will be inextricably woven to its clutches as time progresses. We live in an era spearheaded by technological revolutions and the universal acceptance of the unfettered dependence on digitalisation must be viewed with a certain level of apprehension. The criminal justice system is also caught up in the technological web, be it in the national or international jurisdictions. Anyone who perceives digital evidence as a good Samaritan would argue within reason that the use of digital evidence has made the justice system more efficient, rendering quick yet effective decisions (Susskind, 2010, p. 166). Remarkably, digital technology “is held by many to be if not the panacea then at least a fundamental building block in any credible attempt to reform the criminal justice system” (Susskind, 2010, p. 160). However, those who err on the side of caution would contend that the existence of an unmanageable amount of digital evidence may create a backlog (Goodison et al., 2015, p. 15) and torrentially disparage the quality of evidence submitted in international criminal trials.

Specifically, in relation to open-source evidence, which has been gathering specific momentum in ICC trials (or even during pre-trial stages), the OTP is currently collating data from various stakeholders involved in an effort to strengthen the process and comprehend whether any further assistance is required. Concomitantly, the OTP is playing an active role in the formulation of the ‘International Protocol’ that may standardise the use of open-source evidence, which is expected to be up for public viewing soon (Mehandru and Koenig, 2019). Strategic tie-ups with law enforcement agencies, non-governmental organisations and educational institutions were instrumental in ensuring that those practising international criminal trials were kept abreast of relevant technological advancements (International Bar Association, 2016, Recommendations, p. 32).

Growing concerns are being voiced out by one and all regarding the negative impacts of the admission of digital evidence and the international community cannot take shelter in its ‘tunnel vision’ of securing the interests of justice in an unfastidious manner, thereby letting inter alia, defence rights (and the right to privacy) take a backseat. Training and funding on all levels (be it for the defence or the victim representatives) may be provided to allow technology to realise its full potential in the evidentiary scheme of the criminal justice system. A structured, cautious approach needs to be taken while espousing the advantages of the ready acceptance of technological innovations within the realm of ICL, preferably resulting in the converging of divergent minds. Law must never act as an afterthought, certainly not criminal law; it must resemble a macrocosm, rather than a microcosm, the whole must always be greater than the sum of its parts.

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The Evolution of the International Fact-Finding Missions in Armed Conflicts – From Collecting Facts to Collecting Evidence

Niriksha Sanghvi, Leiden Law School, Netherlands

Niriksha Sanghvi is a graduate of the Advanced LLM program in Public International Law, with a specialisation in International Criminal Law from Leiden Law School, Netherlands.

Abstract

The paper explores the development of the International Fact-Finding Missions from the early Maine inquiry in 1898 to the International Humanitarian Fact-Finding Mission established under the Geneva Conventions and leading up to the UN ad-hoc inquiries in Syria and Myanmar with focused accountability mandates. This analysis is done in the background of the corresponding legal framework governing the establishment of these inquiries, with the Hague Conventions for Pacific Settlement of Disputes (1899 and 1907), the Additional Protocol I of the Geneva Conventions and the various UN resolutions establishing the conflict specific and ad-hoc fact-finding missions. The paper also discusses the differences between the mandates of these commissions and the increasing scope and importance that fact-finding inquiries have become to hold. On the basis of this evaluation, the paper concludes that the mandate and goals of these International Fact-Finding Missions have gradually shifted from clarifying and documenting the ‘factual events’ in contention between affected parties to investigating, collecting and preserving ‘evidence’ of international law violations in conflict areas. The role of fact-finding missions has therefore changed to documenting mass atrocities and furthering the efforts for criminal accountability of international crimes. In the process, there are certain problems that these commissions pose such as lack of state consent, lack of a standardised or prescribed standard of proof and donning of a quasi-prosecutorial role in an ad-hoc fashion. In light of this, it is proposed that the UN-Fact finding missions should be regulated through enactment of a set of protocol or rules to govern their mandate, reach and purpose to provide a sound legal basis for their functioning.

The aftermath of Second World War has seen an exponential rise of international, regional, national and non-governmental fact-finding commissions, commissions of inquiries and special rapporteurs appointed in various human rights and atrocities situation. These non-judicial bodies are appointed to investigate into the alleged violations of international human rights law (IHRL), international humanitarian law (IHL) and international criminal law (ICL) and their documentations and recommendations have considerably strengthened the international law protection to combat mass atrocities.

There are, however, divided opinions on their legitimacy. The different themes being discussed around the rise of fact-finding missions are, firstly, that they represent a step towards accountability, especially in situations where there is lack of an effective international mechanism. This has become the case with the recent conflicts of Syria and the atrocities against the Rohingyas. In both situations, there is a complete breakdown of domestic machinery and lack of the political will of the State to protect the civilians. Adding to this, there is a deadlocked United Nations Security Council (UNSC) with its veto structure and the lack of jurisdiction of the international courts and tribunals. Nevertheless, in the Rohingya situation, the International Criminal Court (ICC) has established its limited jurisdiction over the crime of alleged deportation of Rohingyas to Bangladesh, a state party to the ICC (ICC Rohingya Decision, para 73). This limited jurisdiction, whilst providing hope for some kind of accountability, excludes other alleged crimes such as of genocide. In the Syrian and Yemen conflicts, no international court or tribunal currently has jurisdiction. Recognising these difficulties associated with international criminal prosecutions, the fact-finding missions are described as ‘second-best options’ (Crawford, 2018). Secondly, outside accountability, fact-finding missions are also a tool for raising awareness around the circumstances of conflict and generating pressure on the parties to the conflict to follow rules of IHL.

On the other hand, some argue that these missions exaggerate the actual situation on the ground so as to be put under the label of international crimes (Blank, 2010, p. 280). This is criticised as manipulation of the international law for political gains, and the increasing use of law as a tool of war or ‘lawfare’ is leading to every regular civilian death by a combatant in an armed conflict being labelled as a war crime (Dunlap, 2001, p. 4). There are scepticisms on the soundness of the recent juridification of these fact-finding missions whose role has been extended to legal classifications of violations and identification of possible perpetrators (van den Herik, 2014, p. 531; Blank, 2010, p. 289). In light of these opposite positions taken on the relevance of fact-finding missions, there is no consensus yet on their success or failure in propelling international criminal justice.

Further, there is no clarity on the limits and purposes of the UN based fact-finding missions which have grown from merely collecting facts to conducting legal analysis of the conflict and crimes. The preliminary question, therefore, is about their purpose. Is their scope to use the information as propaganda material or to base a political decision on ascertained facts, to come to a mediation, conciliation or negotiation, or to reach a legal opinion on basis of facts in a human rights case or a human rights situation, or to come to a binding judgment about an allegation of a human rights violation? (Ramcharan, 2014)

To answer this, the paper looks at the gradual evolution and widening of the scope of the international fact-finding missions since the Hague Convention on Pacific Settlement of Disputes to the enactment of Article 90 of Additional Protocol I of Geneva Conventions to the modern ad-hoc fact-finding missions constituted for investigation and collection of legal evidence. Next, the paper discusses the metamorphosis of mandates of fact-finding missions under the UN framework and analyses the value such missions bring while also looking at the probable drawbacks. Lastly, the paper concludes that to streamline the ad-hoc proliferation of international fact-finding missions, there is a need to frame proper guidelines or rules of procedures setting down the framework of their conduct. The purpose and procedure of a fact-finding mission should be clarified which in turn would provide a check and balance system on the activities of the fact-finding missions.

The Evolution of Fact-Finding Commissions

The evolution of fact-finding missions can be broken down into two phases – conventional or treaty based and ad-hoc inquiries under UN. The earlier fact-finding missions were treaty-based which have now grown to become more independent and are constituted under the aegis of UN on a case by case basis.

Initial Phase

The initial purpose of the fact-finding missions was literal to their meaning. It was to clarify the facts and set the account of an incident straight to avoid contradictory findings by different sides to a conflict (van den Herik, 2014, p. 510).

  1. Commissions of Inquiry under Hague Conventions

The first international commission of inquiry was formed in 1898 following the Maine explosion incident in Cuba. Separate national inquiry commissions appointed by the US and Spain to investigate the sinking of US battleship Maine reached conflicting findings on the cause of the massive explosion which had resulted in the death of 266 American crew members on board on February 15, 1898 (Fisher, 2009). The report released by the US naval board inquiry pointed it to be a Spanish sabotage which deteriorated the already tensed US-Spain diplomatic relations leading to the American-Spanish War (Pérez, 1989, pp. 293-295).

This incident delineated the need for establishing an independent and impartial fact-finding commission. Around the same time, the Russians invited the leaders of 59 of the world’s sovereign States to participate in a peace conference in The Hague which was the first of its kind (Baker, 2009). One of the outcomes of this conference was the Title III 1899 Hague Convention for Pacific Settlement of Disputes (Hague I convention) under which the states agreed to institute an International Commission of Inquiry as a means for settlement of their international differences or conflicts “involving neither honour nor vital interests, and arising from a difference of opinion on points of fact” (Article 9, Hague Convention for Pacific Settlement of Disputes. 1899). The idea was to agree on an impartial and conscientious investigation to be undertaken by the International Commission of Inquiry based on a special agreement by the concerned states, wherein each party to the conflict can be heard to determine the facts (Article 10, Hague I Convention). The Commission’s final report was intended to be in the form of only a statement of facts and the convention clearly states that it should, in no way, be in the form of an arbitral award (Article 14, Hague I Convention).

The mechanism for an international commission of inquiry was further developed under the 1907 Hague Convention on Pacific Settlement of Disputes (Hague II convention) in the Second Hague Peace Conference which set the procedural rules for composition and functioning of the commission. The rules provide for selection of members of the commission similar to the selection of arbitrators i.e. two members to be appointed by each party, who shall jointly appoint an Umpire (Article 45, Convention for the Pacific Settlement of International Disputes. 1907). It also allowed the parties to appoint special agents to represent state’s interests at the commission and act as an intermediary between the state and the commission (Article 14. Hague II Convention). In addition, counsels or advocates could be appointed by parties to state their case and uphold their interests (Article 14, Hague II Convention). The procedural rules mirrored an arbitral or adjudicatory procedures regarding procurement and examination of evidence, witness examination and expert opinions and allows written submission to be presented by the agents or counsels for the purpose of ascertaining the truth (Article 19-29, Hague II Convention). These rules already reflect a shift in attitude of the states towards the role of these inquiries from being independent investigative bodies focusing on finding facts to quasi-arbitral or quasi-mediatory tools of non-binding nature (Politis, 1912, p. 149 as cited in van den Herik, 2014, p. 536). However, the goal of these inquiries was still limited to the ascertainment of truth. Also, these inquiries were a bilateral exercise between two or more states in conflict and were not to be constituted by any international bodies. The initial uses of these inquiry commissions were limited to naval vessel destruction inquiries (van den Herik, 2014, p. 513).

  1. International Humanitarian Fact-Finding Commission

Modelled on the Hague Conventions, the International Humanitarian Fact-Finding Commission (IHFFC) is an independent and impartial expert body established under Article 90 of Additional Protocol I (AP I) to the Geneva Conventions. The IHFFC was also established to take on the traditional role of inquiring into facts and not to judge. The 1987 commentary to the Additional Protocols makes it clear that the purpose of the Commission is to try and establish the chronology of actual facts of an incident where there are contradictory narratives (ICRC 1987 Commentary). However, unlike the ad-hoc inquiries under the Hague Convention, IHFFC is a permanent international body based in Bern, Switzerland. It is composed of 15 members including medical doctors, judges, high ranking military experts, diplomats and international law scholars elected for a five-year period (Azzarello and Niederhauser, 2018).

The IHFFC has  a specific mandate to enquire into any facts alleged to be a grave breach as defined in the Geneva Conventions and AP I or other serious violation of the Geneva Conventions or of the Protocol and also facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and the AP I (Article 90(2)(c)(i) and Article 90(2)(c)(ii), Additional Protocol I). It has a consent-based competence similar to that under the International Court of Justice statute. It contains an optional clause on recognition of compulsory competence for States which at the time of signing, ratifying or acceding to the Protocol, or at any subsequent time, can declare that they recognize this competence ‘ipso facto’ (and without any special agreement) with respect to any other State making the same declaration (Article 90(2)(a), Additional Protocol I; ICRC 1987 Commentary). For other kind of situations, the IHFFC gains its competence only when all parties to the armed conflict make a declaration to that effect (Article 90(2)(d), Additional Protocol I). Such a declaration can be made by states without becoming a party to the AP I, thus allowing all parties to an armed conflict, including national liberation movements, to resort to the Commission on a case by case basis (ICRC 1987 Commentary).

Since this Commission has been established under AP I, it was originally interpreted to be limited to only international armed conflict. However, IHFFC has since clarified that it is willing to undertake inquiries into violations of IHL in non-international armed conflict as well, provided the parties to the conflict have consented to it (International Humanitarian Fact-Finding Commission, 2005, p. 1). The Commission interpreted its constituting Article 90 as including both the Geneva Conventions and the AP I and therefore, would also include common article 3 of the Geneva Convention which gives right to an impartial humanitarian body to offer its service to parties to the conflict, including an non-international armed conflict (Azzarello and Niederhauser, 2018). Same conclusion was inferred from the drafting history, subsequent practice, as well as the ordinary meaning in light of the object and purpose underlying Article 90 AP I (International Humanitarian Fact-Finding Commission, 2016, p. 2).

Since its official constitution in 1991 and recognition of its competence by 76 state parties, the IHFFC remained idle for many years, almost forgotten. A major reason for this has been states’ reluctance to accept the existence of an armed conflict and allowing an independent investigation (Sassoli, 2017, p. 6; Azzarello and Niederhauser, 2018) and also the lack of knowledge regarding the functions of IHFFC in light of the other fact-finding missions being established with overlapping mandates (International Humanitarian Fact-Finding Commission, 2016, p. 3). Suggestions have been made to amend the IHFFC framework to dissociate its seizure from state initiative, permitting the Commission to act on its own initiative, but it has not been materialised as yet (ICRC, 2004, p. 10). The Commission once came close to initiating inquiry in the armed conflict in Colombia. However, this did not materialise in the end as the agreement between the government and one of the armed opposition group to the conflict fell through after a change in the Colombian political landscape (International Humanitarian Fact-Finding Commission, 2001, p. 2).

A breakthrough came in 2017, when a situation was referred for investigation to the Commission when an Organization for Security and Cooperation in Europe (OSCE) armoured vehicle patrolling through Eastern Ukraine exploded resulting in the death of an OSCE paramedic. This was referred under an agreement signed between the OSCE and the IHFFC. A post blast forensic investigation conducted by an Independent Forensic Investigation team under IHFFC concluded that the anti-vehicle mine placed on the civilian road was the cause of the explosion but that the patrolling vehicle (SMM) was most likely not the intended target of the attack. The IHFFC report provides a brief legal analysis of the incident outlining that such an indiscriminate attack would be a violation of IHL (OSCE, 2017).

One criticism raised about this investigation is the legitimacy of the competence agreement signed by an international organisation (OSCE) instead of a High Contracting State authorising to investigate in a State’s territory. The 1987 commentary on Additional Protocols explicitly excludes “private individuals, representative bodies acting on behalf of the population, or organizations of any nature” from submitting a request to the Commission (ICRC 1987 Commentary). However, a supporting argument could be made that other international organisations like the UN Security have the power to refer an incident to the IHFFC through a Resolution under Chapter VII as has been acknowledged by IHFFC in its 2015 report on the work of the Commission (International Humanitarian Fact-Finding Commission, 2016, p. 2). Therefore, by analogy, other international organisations, like the OSCE, can also refer a situation to IHFFC. Further, article 90(2)(d) uses the term ‘party’ and not ‘High Contracting Party’ as used under article 90(2)(a) (A similar interpretation has been done in the ICRC blog: Azzarello and Niederhauser, 2018) which can be argued to include non-state actors like international organisations and rebel groups.

One of the main shortcomings of treaty-based mechanisms is their dependence on states’ consent or ratification to the relevant conventions establishing the mission or signing of a bilateral agreement for joint investigation. Furthermore, these mechanisms do not have any continuing monitoring powers over a conflict to provide consistent documentation. These mechanisms have, therefore, been limited to vessel inquiries and other non-atrocity or security related situations. The IHFFC is a novel creation under the Geneva Convention for the implementation of IHL. Unfortunately, it has not seen much success with only one proper investigation conducted since its inception. While a commission of inquiry report under the Hague Conventions could be read at public sittings (Article 13, Hague I Convention and Article 34, Hague II Convention), the IHFFC reports are released only to the parties involved (Rule 28(2), Rules of the International Humanitarian Fact-Finding Commission) widowing the general public from learning about any IHL violations. This provision could be a step to attract state parties to submit inquiry requests but as Marco Sassòli argues this also “creates a dent on the credibility of IHL” (Sassoli, 2017, p. 7).

Modern Phase 

Realising the potential of fact-finding missions as a means for ensuring enforcement and accountability under international law, the UN has also established various ad-hoc commissions to look into human rights and mass atrocities in conflicts. The terms fact-finding missions, commissions of inquiries, panel of experts, investigative mechanisms are used to describe these entities by different establishing bodies. However, there is no difference between them in terms of their purpose and methodological standards (OHCHR Report, 2015, p. 7).

The 1991 UN General Assembly (UNGA) Declaration on Fact-finding by the United Nations in the Field of the Maintenance of International Peace and Security (1991 UN Declaration Annex (I) point 2) defines a fact-finding mission as “any activity designed to obtain detailed knowledge of the relevant facts of any dispute or situation which the competent United Nations organs need in order to exercise effectively their functions in relation to the maintenance of international peace and security”. The Declaration also requires the fact-finding missions to be “comprehensive, objective, impartial and timely” (1991 UN Declaration Annex (I) point 3) and should be deployed at an early stage in order to contribute to the prevention of disputes and situations (1991 UN Declaration Annex (I) point 12). Further, it necessitates taking consent of the state before sending a UN fact-finding mission to the territory of that State (1991 UN Declaration Annex (I) point 6). At all stages of the fact-finding process, the concerned states are to be given an opportunity to express their views (1991 UN Declaration Annex (I) point 26) and it allows the fact-finding missions to conduct hearings if required and according to appropriate rules of procedure (1991 UN Declaration Annex (I) point 27).

These ad-hoc fact-finding missions can be categorised further depending on whether they are established by the Security Council, General Assembly, Human Rights Council (UNHRC) (and its predecessor Commission of Human Rights) or the Secretary-General (The 1991 UN Declaration gives mandate to all three UN bodies. Annex (II) point 7).

  1. Appointing UN bodies

The UNSC has the primary responsibility for maintaining peace and security under its chapter VII mandate (Article 34 UN Charter 1945; Uniting for Peace Resolution, 1950). Accordingly, the UNSC has established inquiry missions to investigate into human rights violations in the Former Federal Republic of Yugoslavia (1992) (UNSC resolution 780) and Darfur (2004) (UNSC resolution 1564), Central African Republic (2013) (UNSC resolution 2127) and the latest mission to inquire into the Da’esh violence (2017) (UNSC resolution 2379). The inquires under UNSC are more powerful because of the enforcement powers of the UNSC (Kaufman, 2018, p. 11). The Security Council also has binding powers to direct cooperation of the involved states in ensuring justice.

However, the UNSC has proved ineffective in many other conflicts because the veto-wielding permanent members have blocked attempts to investigate into nations where they have personal interests. For instance, in Syria, as many as ten resolutions proposing steps to ensure accountability for international crimes in the on-going Syrian conflict have been vetoed by at least one of the permanent members (Nichols, 2017). In the Rohingya refugee crisis, numerous UNSC resolutions have been vetoed because of China’s trade ties and strong relations with the Myanmar government (Nichols, 2018; Simon, 2018). Such deadlocks in Security Council has made it ineffective in providing a timely and strong response for prevention of large-scale violations.

To fill this gap, the UNGA has initiated independent inquiries into certain conflicts. However, the authority of UNGA was challenged by many states, with the Russian delegation at the forefront, when the UNGA created the International, Impartial and Independent Mechanism (IIIM) for Syria in 2016 to document violations of IHL and human rights violations and abuses in the Syrian Arab Republic since March 2011. The main grounds of challenge were that the General Assembly does not have the power to establish the IIIM having quasi-prosecutorial powers as it does not itself have those powers. Secondly, the Mechanism was challenged on the ground that it was not in conformity with Article 12 of the UN Charter given that the UNGA was not empowered to act if the UNSC was exercising its function on the same matter.

The UNGA does not have an explicit mandate per se under the UN charter, however, its authority can be derived from Article 12 of the UN Charter. On a reverse interpretation of Article 12, the General Assembly has the power to consider a matter related to the maintenance of peace and security, if the Security Council is not exercising its function ‘at the same moment’. Further, the 1950 Uniting for Peace resolution also makes a provision for when the Security Council fails to act because of lack of unanimity of permanent members and allows General Assembly to “consider matters consider the matter with a view to making recommendations to Members for collective measures to maintain or restore international peace and security” (Uniting for Peace Resolution, 1950; Role of General Assembly).

The UNHRC, as a subsidiary body of the General Assembly, has also stepped up to fill the gap left by a paralysed security council. Although a weaker option, the Human Rights Council has in many situations broadened its human rights mandate into IHL and ICL. The UNHRC has established multiple commission of inquiries and expert groups to investigate into atrocity crimes in Lebanon (2006) (UNHRC resolution S-2/1), Gaza (2009) (UNHRC resolution S-9/1), Cote d’Ivoire (2011) (UNHRC resolution 16/25), Libya (2011) (UNHRC resolution S-15/1), Occupied Palestine Territory (2012) (UNHRC resolution 19/17), Korea (2013) (UNHRC resolution 22/13), Burundi (2015) (UNHRC resolution S-24), Yemen (2017) (UNHRC resolution 36/31), Syria (2011) (UNHRC resolution S-17/1), Myanmar (2017) (UNHRC resolution 34/22).

The UNHRC Commissions, however, only have voluntary jurisdictions and can make non-binding recommendations to the UNSC and the member states to take steps. The practice of the General Assembly seems to suggest that it can address different, and usually more limited, aspects of the matter than the broad politico-military questions covered by the ‘situation’ on the agenda of the Security Council (Simma et al., 2012 as cited in Wenaweser and Cockayne, 2017, p. 223; I.C.J., 2004, p. 148).

Apart from these UN bodies, the UN Secretary General can also send fact-finding missions under Article 99 of UN Charter which provides that ‘the Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security’. This provision has been interpreted as flexible and broad enough to permit the Secretary-General to exercise fact-finding powers (ECCHR, 2010, p. 2). Consequently, the Secretary General has invoked this power in Zimbabwe (2005) (Tibaijuka, 2005), Timor-Leste (2006) (Independent Special Commission of inquiry for Timor-Leste), and Fiji (2007) (UN Press Release, 2007) among others. Apart from these, the UN High Commissioner of Human Rights can also conduct its own fact-finding missions or provide assistance to the fact-finding missions established by the Human Rights Council or the Secretary-General (ECCHR, 2010, p. 4).

  1. Mandates

The mandates of the various fact-finding commissions established have varied over the years from finding facts to documenting IHRL violations to also including IHL and ICL violations. These mandates have further differed on the basis of the area, nature of violations and time period covered by them. Some missions had a general mandate to cover the entire country like in Syria whereas some missions have the mandate to cover only a part of the country like Darfur in Sudan (OHCHR Report, 2015, p. 9). Some mandates require missions to inquire into all violations of human rights or humanitarian law in a conflict situation. However, in some instances the language of the resolution was very specific as regards the nature of the violations that the commission/ mission was expected to investigate (OHCHR Report, 2015, p. 17). The 2012-2013 Palestine inquiry was set up by the OHCHR to look into the “limited implications of the Israeli settlements only on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem” (Terms of Reference, Palestine, 2013).

Some other missions have specific mandates of investigating a particular incident for example the post-election violence in Cote d’Ivoire (UNHRC resolution 16/25); the Gaza-Flotilla incident (UNSC resolution S/2010/414); and  the Rohingya refugee crisis in Myanmar (UNHRC resolution A/HRC/39/64). Recently, the Security Council established the Iraq mission with a specific mandate of investigating violations by only one party to the conflict i.e. ISIL or Da’esh violence in Iraq. As a condition for full support of the Iraq government, the resolution specifically mentions that the investigation team will operate with full respect for the sovereignty and territorial integrity of Iraq and that its terms of reference will be approved by the government of Iraq (UN Press, 2017). In a way, this pre-requisite of state consent is abiding by the UN 1991 Declaration on Fact-Finding Missions discussed above. However, this one-sided approach has received criticism, with Global Justice Center stating that “Only prosecuting Da’esh fighters reeks of victor’s justice” and asking for more comprehensive mechanism to hold all perpetrators liable, including Iraqi, Kurdish and the Coalition forces (Global Justice Center, 2017). Human Rights Watch has observed that the “lack of impartial justice could undermine longer-term prospects for stability and development. An imbalance in accountability efforts threatens to open new divisions and could breed a resurgence of ISIS-like groups …” (Human Rights Watch, 2017).

Under the recent UN resolutions, more powers have been given to the newer fact-finding missions. The mandates of the earlier fact-finding missions were limited to investigations of facts and circumstances. This can be seen in the missions deployed in Burundi, Timor-Leste and Darfur among others (OHCHR Report, 2015, p. 18). This language has now evolved to state “investigate or examine alleged violations of international human rights and other international laws”. This is the case with Syrian Commission of Inquiry (2011), the Yemen Group of Eminent Experts (2017) and the Myanmar Independent Fact-Finding Commission (2017) (UN Library and Archives). This language is also found in the mandate of the newer IIIM Syria set up by UNGA in 2016, which is to “a) collect, consolidate, preserve and analyse evidence of violations of IHL and human rights violations and abuses and b) to prepare files in order to facilitate and expedite fair and independent criminal proceedings” (Terms of reference, Syria, 2011). The ISIL inquiry set in Iraq also has a similar mandate to collect evidence and share it with national courts or other investigating bodies (Terms of reference, ISIL, 2017). The purpose of these missions has shifted from finding presence of violations to finding evidence for violations (Similar point made in van den Herik, 2014, p. 535).

In addition to this, some commissions are further required to also identify the list of probable perpetrators responsible for the commission of international crimes. Both the UNHRC and UNSC have given such wide powers to various commissions in Darfur (2004), Guinea (2009), Libya (2011), Central African Republic (2014) and Syria (2016) (OHCHR Report, 2015, p. 21-22). In practice, however, most of these missions, with the exception of Guinea and Timor Leste, have kept the list confidential and handed it to the Secretary-General or the High Commissioner for Human Rights (OHCHR Report, 2015, p. 22). Many of these commissions have resulted establishment of a court or tribunal initiation of a criminal proceedings (Aksenova and Bergsmo, 2015, p. 3). The UN ad-hoc tribunals established for Yugoslavia, Rwanda, Lebanon and Cambodia were preceded by a Commission of Inquiry investigating in these regions. Findings of these commissions can become relevant in an on-going preliminary examination at the ICC (ICC, Office of the Prosecutor, 2015) or in referring a new situation to the ICC (In an interactive dialogue held by UNHRC, many states urged for a Security Council referral of the situation in Myanmar to the ICC, OHCHR Press Release, 2018).

Lastly, the commissions are also asked to provide recommendations on accountability measures with the view to end impunity. The Myanmar Commission has made a recommendation to prosecute the senior named military officials in an international criminal tribunal for genocide, crimes against humanity and war crimes (UNHRC resolution A/HRC/39/64, 2018), whilst the Syrian Commission of Inquiry has repeatedly called for the Security Council to “refer urgently the situation in Syria to the International Criminal Court, or to establish an ad hoc tribunal with relevant geographic and temporal jurisdiction” (UNHRC resolution A/HRC/32/CRP.2, 2016).

The overall mandates of the modern missions can thus be summarised as a) investigation and establishment of facts b) legal assessment of the fact c) collection of evidence for preparation of a criminal trial d) provision of recommendations to different stakeholders.

Concerns about Modern Fact-Finding Missions 

Standard of proof

Commissions differ from the judicial organs in that they are not bound by the ‘beyond reasonable doubt’ standard of proof, the principle of equality of arms, or the principle of individual criminal responsibility (Aksenova and Bergsmo, 2015, p. 4). In fact, many recent international fact-finding missions that have been established with a quasi-judicial or quasi prosecutorial role have lower evidentiary threshold. The 1899 and 1907 Hague Conventions are silent on the role of fact-finding missions as quasi-judicial entities and hence, are silent on the standard of proof required to be followed by these missions. The 1991 UN declaration focuses on their role in prevention of disputes and assisting the competent UN body and are again silent on the required standards of proof. The AP I to Geneva Conventions limits the functions of IHFFC to fact-finding and does not provide for standards of proof.

In the absence of any precedential guidance, many ad-hoc commissions have used a lower evidentiary threshold, such as “reasonable suspicion” (OHCHR Report, 2006, paras 12 and 110), “preponderance of evidence” (UNHRC resolution A/HRC/15/21, 2010), or “balance of probabilities” (e.g. UNHRC resolution A/HRC/19/68, 2012, para 7), while some other fact-finding reports articulate no standard of proof at all. For instance, the report of the Bahrain Commission of Inquiry makes no mention of the commission’s standard of proof. Additionally, the report of the fact-finding mission mandated by the United Nations Human Rights Council to gather information about the Israeli Flotilla raid of 2010 simply states, “The Mission found the facts set out below to have been established to its satisfaction”. (See, UNHRC resolution A/HRC/15/21, 2010, para 183). These standards are lower than the lowest standard of ‘reasonable grounds to believe’ required at the ICC to issue arrest warrants.

The recent commissions have realised this gap and the standard of proof used by the commissions under UNHRC with a mandate to collect evidence and identify perpetrators has been elevated to ‘reasonable grounds to believe’ (UNHRC resolution A/HRC/40/70, 2019). However, the Hague Justice Portal has sceptically mentioned that “this standard as understood and employed by the fact-finding mission might not necessarily be congruent with the standard required by the ICC”. The IIIM Syria established by the UNGA has acknowledged the fair trial concerns and their terms of reference mentions that “these procedures shall be based on international law and standards, notably the right to a fair trial and other due process provisions under international human rights law, as well as on the jurisprudence, procedural standards and best practices of the international criminal tribunals” (Terms of reference, Syria, 2011). It remains to be seen how these standards would be incorporated by the IIIM in their investigation as they have not released their report yet. The UNSC sponsored commissions, on the other hand, have a higher standard of proof. The UNSC inquiry in Yemen provided an opportunity to reply to the states, entities and individuals implicated for crime patterns to get a balanced view (UNSC resolution S/2019/83, 2019).

Premature Determination of Accountability

Most modern fact-finding missions have a monitoring mandate, but some also go a step further in ensuring accountability and analysing applicability of international laws. These fact-finding missions, acting as quasi-judicial bodies, are engaging in judicialisation of factual findings (van den Herik, 2014, p. 508). Questions have been raised about the blurring lines between international criminal courts and international fact-finding mission (Grace and Coster Van Voorhout, 2014, p. 4-5). The reports documenting incidents of violations of IHL and categorising as them as crimes against humanity, war crimes or genocide are based majorly on victim and witness interviews and analysis of other NGO and UN reports. Many of these reports are not based on rigorous methodology as the documentation of many violations have no proof or sources attached to it. This is the case with most reports of the Syrian and Myanmar inquiries which provide almost no sources or annexes for their information. The fact-finding missions, therefore, do not necessarily provide conclusive evidence but only create the base for a criminal prosecution and which can be referred to by the ICC Prosecutor to start an investigation. This raises the question of utility of such accountability documentation in criminal trials. In the request to initiate an investigation on the situation in the Republic of Côte d’Ivoire, the ICC Prosecutor relied considerably on the independent inquiries reports to gain information on the exact locations where crimes were committed, the pattern of attacks, and indicate indicia of state involvement through the instigation of xenophobia and the fanning of ethnic and political hate (ICC, Office of the Prosecutor, 2011, para 29). However, the ICC pre-trial chamber in the Laurent Gbagbo case had raised concerns about the ICC Prosecution’s sole reliance on the NGO reports, UN reports, and press articles and stated them as being “anonymous hearsay” from outside entities (ICC, Pre-Trial Chamber I, 2013, p. 17).

While maintaining privacy and confidentiality of sensitive information is crucial, documenting facts as violations of IHL without hearing the defence side clouds the credibility of these reports. It goes against the principle of presumption of innocence (Grace and Coster Van Voorhout, 2014, p. 19) and the right to legal representation of the defendant. Other issues have also been raised regarding the lack of expertise and skill in the information gathering methodology and improper ‘chain of custody’ of evidence (Grace and Coster Van Voorhout, 2014, p. 19). In such cases, having a multidisciplinary team covering different professions of investigators, forensic experts, anthropologists and legal experts is more beneficial than an exclusive team of only legal experts and judges. Lessons can be learned from the IHFFC in this regard which provides for a diverse team of experts to form its Commissions.

Further, the commission reports are also published with public access casting a prejudice in minds of judges and other stakeholders in any future criminal proceedings. Hence, the reports of fact-finding missions are a premature pronouncement of accountability without proper adjudication.

State Consent

The 1991 UN Declaration provides for consent of States to be taken before initiating an investigation into their territory (1991 UN Declaration Annex (I) point 6). The IHFFC model is also based on consent of the parties involved in the conflict. Keeping in mind the quasi-judicial role of fact-finding missions, the basis of admittance of cases in international criminal courts and the International Court of Justice has also been state consent. However, the recent trend for fact-finding missions has been to focus more on accountability and compliance with international law disregarding the will of the States. These can also be seen as a measure to overcome the harsh reality that, in most cases, states are opposed to any form of investigation. A perpetual issue highlighted by these commissions’ reports has been limited access to large parts of Yemen (UNSC resolution S/2019/83, 2019) and denial of access by the Syrian and Myanmar government (UNHRC resolution A/HRC/39/64, 2018; UNHRC resolution A/HRC/40/70, 2019).

The Myanmar and Syrian Governments have opposed the establishment of Inquiry Commission to investigate into their internal conflicts as a breach of their territorial integrity and sovereignty (UNHRC resolution A/HRC/39/64, 2018; UNHRC resolution A/HRC/40/70, 2019). The Da’esh inquiry could be set up with unanimous agreement among UNSC members and the Iraq government because the Security Council delineated the scope of the inquiry to only Da’esh violations and not interfere with Iraq’s sovereignty and territorial integrity. Such brazen opposition to presence of commissions in their territory rules out any chances of state cooperation and harms the credibility of these reports (Kaufman, 2018, p. 18).

Way Forward – Need for Policy Development 

International fact-finding missions are a bridge between enforcement of IHL and the political will (or the lack thereof). Since 1899, the inquiry commissions have developed into various models and variations have been introduced based on the nature of the conflict, type of violations and purpose of the missions. However, all of them have few recurring characteristics which can be extracted to define the fact-finding missions. These institutions are established under international laws, conduct ad hoc fact-finding, are impartial and independent and issue non-binding reports. The mandates of these missions are broadly defined leaving room for mission member’s interpretation and the work done by these missions has differed greatly. The earlier fact-finding missions limited themselves to factual analysis and some even made clarifications on their own identity as not being a law-applying authority (van den Herik, 2014, p. 529). The recent missions, however, have shifted its focus towards legal characterisation of the facts and ensuring accountability (OHCHR Report, 2015, p. 20).

To a certain level, the ad-hoc nature of fact-finding missions is beneficial because it allows their formation and role to be tailored to specific situations. However, with the growing number of fact-finding committees being set-up in the last decade, there is a chance of fragmentation of their findings and analysis of international law and accountability. This is more so in situations where multiple inquiry commissions have been set up by competing UN bodies caught in the New York – Geneva paradigm. For instance, multiple inquires have been launched into the Syrian conflict by the UN Security Council, the UN General Assembly and the UN Human Rights Council. While the Security Council inquiry was limited to the investigation on use of chemical weapon (OPCW Press Release, 2017), the Commission of Inquiry set up by the UNHRC in 2011 and the IIIM by the UNGA in 2017 have overlapping and complementary mandates. In an event that IIIM Syria set up by UNGA comes to a contrasting analysis of the situation than the Syria Commission of Inquiry, it can put a dent on the evidentiary value of the information in a criminal proceeding in the future. The same is the case with the two Myanmar inquiries set up by UNHRC which are overlapping with the national inquiry set up by the Myanmar government (Abbott, 2019).

Other criticism raised are that they lack predictability, as they are constituted on an ad hoc basis without proper continuity or institutional memory (Aksenova and Bergsmo, 2015, p. 3). There is no clarity or uniformity on the criminal standards of proof it requires to follow. There are also other fair-trial concerns of one-sided documentation and the increasing individual criminal accountability orientation without equality of arms. Lack of state consent requirement can also question the reports of the commissions to a certain extent, especially if deployed in civil wars or international conflicts where both sides have different narratives and justifications for their actions.

Despite the various fair trial criticisms surrounding the fact-finding missions, the need remains for involvement of fact-finding missions in conflict situations. The data gathered by the fact-finding missions is based on victim and witness interviews and evaluation of communications by local NGOs and other community leaders along with international NGO or UN reports. This provides a first-hand account of the armed conflict, ground conditions of victims and the level of involvement of different parties to the conflict. Because of the procedural limitations, the ICC Prosecutor might not be able to conduct prompt investigation to collect fresh and early evidence and the evidence can be lost forever (Grace and Coster Van Voorhout, 2014, p. 20). The fact-finding missions, then, become crucial.

The issue, therefore, is of setting proper guidelines and rules of procedures to standardise the functioning of modern international fact-finding commissions. Both the Hague Conventions and the 1991 UN declaration have become outdated and do not sufficiently address the evolved orientation of the modern fact-finding missions. As early as 1968, the UN had stressed on the importance of well-defined rules of procedure for the orderly and efficient discharge of ad-hoc working bodies concerned with human rights (UNGA Resolution X, 1968, p. 12).

The rules of procedure should set down their scope, composition of the commission, standard of proof to be employed, the handling and sharing of information and sensitive data, victim and witness treatment, and should also encompass principles of fair trial, due process, equality of arms, and rights of accused amongst others. These rules of procedure should be developed keeping in mind the practical issues present in a conflict or post-conflict society of victim and witness protection, re-traumatisation of victims upon repeated questioning, sensitivity for sexual and gender-based violence etc. Apart from this, they should also incorporate the basic principles and standards of human rights and IHL that fact-finding missions need to adhere to, namely, do no harm, independence, impartiality, transparency, objectivity, confidentiality, credibility, visibility, integrity, professionalism and consistency (OHCHR Report, 2015, pp. 33-35).

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The International Criminal Court’s Lack of Credibility: What Consequences for the Process of Convicting Perpetrators of Mass Atrocities?

By Salomé Wyns

Salomé Wyns is a recent graduate in International Relations and Politics at the University of Sheffield, UK.

Abstract

February 2018 marked the twentieth anniversary of the Rome Statute which established the International Criminal Court (ICC). The ICC has, since 2002, taken up the daunting challenge of meting out international criminal accountability. As a permanent judicial institution, the ICC seeks to end impunity for the most serious crimes of international concern, namely genocide, crimes against humanity, war crimes and crimes of aggression (UN General Assembly, 1998). Since its implementation sixteen years ago, the ICC has faced a range of criticisms regarding its effectiveness and its alleged bias against African leaders. The purpose of this paper is to identify the factors contributing to the International Criminal Court’s lack of credibility –along the lines of impartiality and independence- and assess how these factors may hinder the process of conviction of perpetrators of mass atrocities. Through an analysis of the case of Kenya (2007-2008), this paper will argue that the ICC’s lack of credibility stems from inherent structural contradictions that limit the Court in its prosecutorial independence and impartiality, rendering it vulnerable to politicisation and manipulation by states, thereby enabling them to justify non-cooperation.

Introduction

In recent years, the credibility of the International Criminal Court (ICC) as an impartial and independent institution has been challenged by African leaders, scholars and human rights advocates alike (Tiemessen, 2014: 444). The perception of the ICC as a credible institution by states and other international actors is crucial to its success, as the Court largely depends on the support of these actors. The focus of this paper, divided into four sections, will be on the ICC’s ability to safeguard its reputation as an impartial and independent judicial institution. The first section briefly provides a background of the ICC, defines the term ‘credibility’ and looks at the claim of inefficiency against the Court. The second section examines the ICC’s lack of police enforcement and its ties with the Security Council to argue that this association leads to politicisation. The third section focuses on the ICC’s case selection partiality and the bias and the double standards that stem from it. Finally, the fourth section turns to the case of Kenya to illustrate the negative effect of the ICC’s lack of credibility on state cooperation.

Background

The Rome Statute was adopted by 120 states in July 1998 and entered into force in July 2002 (Wouters and Basu, 2009: 11). The implementation of a permanent international criminal court prosecuting humanity’s worst crimes constitutes a bold challenge to state sovereignty and was, therefore, likely to generate a certain degree of opposition (Bosco, 2012: 4). Since then, lengthy and costly trials resulting in few convictions have resulted in criticisms concerning the ICC’s credibility and efficiency.

The charge against the ICC

Before proceeding, it is necessary to define the word ‘credible’ in the context of this paper. In the case of the ICC, a credible institution would be independent and impartial, ultimately leading to efficiency (Gegout, 2013: 801). Indeed, if the perception of the ICC as an untrustworthy institution impacts its ability to convict perpetrators of mass atrocities, increasing that credibility depends on one hand on the ICC’s ability to act independently from states, and on the other, on its ability to deliver justice in a fair and impartial manner (Gegout, 2013: 800). However, one must be cautious not to make the assumption that the ICC’s conviction rate is entirely dependent on the Court’s level of credibility (see Davenport, 2014). Measuring the effectiveness of international institutions remains a complex challenge; as such, a number of factors can account for the ICC’s low conviction rate. Firstly, the Court only has territorial jurisdiction in the states parties to the Rome Statute and can only investigate crimes committed after 2002. This significantly limits the ICC’s ability to provide universal justice. Secondly, war crimes cases are extremely complex in nature and require time, since a delay in proceedings is essential to allow the truth to emerge (Whiting, 2009: 335). Moreover, a lack of cooperation usually generates delays in judicial proceedings and can lead to the complete collapse of a case, as with the case of Kenya (2007-2008). Finally, the ICC is a court of ‘last resort’ which means it can only intervene when national courts themselves lack the ability to prosecute perpetrators. As former prosecutor Luis Moreno-Ocampo, cited in Nichols (2016: 32), states:

‘as a consequence of complementarity, the number of cases that reach the Court should not be a measure of its efficiency. On the contrary, the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success.’

One must also be mindful that the institution is fairly young and will only be able to build credibility over time (Cassesse, 1999: 145). Indeed, the creation of such court is truly revolutionary and changes at the international level happen incrementally. It is indisputable that the quality of justice the ICC delivers should continue to be scrutinised, as effectiveness is the only path for the Court to be sustainable. However, the ICC’s credibility should not only be determined by its conviction rate but by the legitimacy of the proceedings, and by the Court’s ability to uphold principles of independence and impartiality, characteristics which will be explored in the next sections. Nonetheless, it can be concluded that the perception of the ICC as an inefficient institution plays a role in undermining its credibility, as each failure undermines the Court’s ability to deliver justice in the eyes of the victims, as well as in those of the international community.

The politicisation of the ICC

This section will argue that the ICC’s dependence on external political actors allows special interests to permeate and influence the law. This dependence ultimately weakens the ICC’s credibility as an independent institution. Indeed, the Court is highly dependent on state cooperation as it does not possess any police force or effective means to enforce states’ cooperation (Kaye and Raustiala, 2016: 7). Whether it be to investigate on the ground, arrest suspects or provide evidence, cooperation from states is crucial. Vinjamuri (2014: 277) labels this phenomenon ‘the authority paradox’. On one hand, the ICC’s authority and credibility reside in the assumption that justice must be independent from politics. But on the other hand, the ICC is structurally dependent on states to enforce its mandate (Vinjamuri, 2014: 277). Although full cooperation with the Court in its investigations and prosecutions is required under Article 86 of the Rome Statute (UN General Assembly, 1998), the ICC’s authority has been blatantly defied by states on multiple occasions.

This structural weakness compels the ICC to seek assistance from powerful states that have coercive power (Kaye and Raustiala, 2016: 7). The challenge for the ICC therefore becomes to balance two opposing inclinations: restraining state power, while relying on their cooperation at the same time. Instead of enhancing the Court’s legitimacy and power, it has been argued that the United Nations Security Council’s (UNSC) special rights of referral under Chapter VII of the UN charter, as well as their right to defer proceedings in the interests of international peace and security under Article 16 of the Rome Statute, open the door for politicisation and double standards (Tiemessen, 2014: 454). This association reflects the strategic political constraints that entangle the UNSC and state parties’ self-interests. This was especially obvious in the early days of the institution when the prosecutor’s office avoided conflicts that involved major-power interests –the cases of Afghanistan and Palestine for instance- (Bosco, 2012: 78). As Bosco (2012) argues, even though major powers like the United States do not directly control international institutions, by adopting ‘marginalising’ or ‘controlling’ behaviours, powerful states can influence the Court. The United States has had a wavering position towards the Court, but some argue that, more recently, it has used the Court to target rogue states such as Sudan and Libya – neither of which are parties to the Rome Statute- (Mamdani, 2008). Particularly in the aftermath of NATO’s intervention in Libya, the proximity between the Security Council, state interests, and international criminal justice became too close for many of the ICC’s proponents. This has quickly resulted in allegations that the ICC had become associated with a Western military policy of regime change (Vinjumura, 2014: 284). Many now worry that the Rome Statute will be used to breach sovereignty through intervention (Mackie, 2012:138). The special privileges granted to a small number of powerful states by international institutions creates obvious tensions with a sovereignty norm that stipulates equal status to all states. The fact that the ICC is intertwined with the UNSC’s network of political and logistical support undermines its independence and ultimately is an important factor for the ICC’s loss of credibility.

An African bias?

The second factor resulting in the ICC’s lack of credibility is the selectivity in its case selection, which has resulted in an almost exclusive focus on African perpetrators. The mandate of the ICC is very ambitious, but a single institution cannot investigate all situations under its jurisdiction or prosecute the full range of criminal responsibility within them. Therefore, a degree of selectivity is necessary for the ICC to operate. However, the ICC’s apparent focus on Africa -every one of the 32 criminals ever indicted have been African men (Elsheikh, 2015)-clashes with its alleged global mandate. It is in this context that African leaders, such as Paul Kagame, have been very vocal, accusing the ICC of systematically targeting Africa whilst overlooking crimes perpetrated in other parts of the world (Mugabi, 2016). They argue that the ICC reflects a western bias, some even going as far as claiming that the Court is a tool of neo-colonialism (Kenyatta, 2013). According to that argument, the ICC is being used by western countries to exercise influence on the internal affairs of African countries. Mackie’s (2012) analysis of the ICC website’s language is useful to illustrate this argument. On the ICC’s website, fifty-five separate documents contain the word ‘barbaric’ whereas the word ‘savage’ appears forty-seven times in the context of human rights violations (Mackie, 2012: 134). These terms create a dichotomy of ‘us versus them’ and dehumanises perpetrators (Sagan, 2010: 16). The negative connotations of these words and the image of the external actor intervening to save helpless victims from heartless perpetrators seriously hearken back to rationalisations of colonialism. Such rhetoric strengthens African leaders’ argument that the ICC is a form of neo-colonialism institutionalised through international criminal law (Mackie 2012: 134).

However, the ICC’s focus on Africa can, once again, be explained by structural limitations. Firstly, as argued in the second section, the partnership between the ICC and the Security Council creates double standards. Many African countries do not have powerful protectors in the Council—unlike Syria, for example, where Russia has been blocking the ICC’s efforts to prosecute crimes committed there (Rothmyer, 2012). There is also the fact that many countries accused of human rights abuses (the United States, China and Russia amongst them) have refused to be a party to the ICC statute, making it unlikely that their alleged crimes will ever be prosecuted. It is therefore felt that the ICC is going after Africans by default (Rothmyer, 2012). This has resulted in a disengagement by African countries and leaders who feel unjustly targeted. The backlash first surged when an arrest warrant was issued against Sudanese President Omar Al-Bashir in 2009. The hostility between the Court and the African Union (AU) then reached new heights when ICC suspects, Uhuru Kenyatta and William Ruto, were elected president and deputy president of Kenya, and a potential massive pull-out from the ICC was considered.

There are also arguments against the potential bias of the Court. Firstly, considering that African States constitute the largest regional grouping of state parties, it was statistically more likely that prosecutions would arise from African states. Indeed, in the wake of the genocide in Rwanda, and given the long history of war crimes and impunity in the continent, African countries had a clear interest in joining an international criminal court. Secondly, judging the ICC to be more competent and impartial than their own national courts, many African countries have referred cases to the Court themselves. Hence, these referrals cannot be regarded as external interventions (Mendes, 2010: 168). Therefore, although the Court does reflect the double standards that are deeply rooted in global governance structures (Bosco, 2014: 189), the ICC’s case selection needs to be understood in the context of these limitations. Nonetheless, these allegations of racial bias and neo-colonialism, whether accurate or not, have significantly damaged the ICC’s credibility and hindered cooperation from African states.

The consequences: The case of Kenya

The forceful campaign led by ICC indictees Uhuru Kenyatta and William Ruto was designed to portray the ICC as an untrustworthy and biased institution and thus delegitimise its authority. This reflects the degree of politicisation involved in ICC cases and the negative effect it has on cooperation. In March 2010, the ICC opened investigations on six individuals for their involvement in the ethnically targeted violence that followed the 2007 Kenyan election (Mueller, 2014: 27). The post-election violence left thousands dead, injured and displaced (Claire, 2012: 641). However, the Kenyan government failed to deliver justice for victims. It was thus the first time a case was referred by the prosecutor himself (‘proprio motu’). Moreover, the judges and the prosecutor tried to stay away from Kenya’s domestic politics (Tiemessen, 2014: 456). However, despite these efforts to remain independent and impartial, rather than accepting the ICC’s authority, Kenyatta and Ruto joined forces to run for the presidency while campaigning against the ICC. Kenyatta employed a populist rhetoric to discredit the Court’s operations in Kenya and ultimately won the election. By recalling Kenya’s colonial past, Kenyatta managed to spin the charges into a powerful narrative implying that the ICC was a ‘toy of imperialism’ (Kenyatta, 2013). Kenyatta claimed before African Heads of State and Government that, since the Court’s budget is largely funded by the EU, ‘Western powers are the key drivers of the ICC’ and that ‘the threat of prosecution’ by this Court is being used as a tool to make ‘pliant states execute policies favourable to these [Western] countries’ (Materu, 2014: 221). Similarly, at the same AU Summit in October 2013, Kenyatta accused the ICC of ‘race-hunting’ Africans (Kenyatta, 2013). Consequently, whereas the African Union’s mediation process following the 2008 violence in Kenya was seen as a locally owned process, granted with support and legitimacy, those seeking to undermine the Court portrayed the ICC’s intervention as an externally driven process imposed by the West (Juma, 2009: 407).

Assessing whether or not the ICC has perceived credibility in Kenya and elsewhere in Africa is highly subjective, but some elements prove that Kenyatta’s campaign has clearly been effective in hindering cooperation with the Court. Indeed, in addition to building domestic support and winning the election, Kenyatta used his newly won platform as President to discourage the African Union from cooperating with the ICC (Mueller, 2014: 31). Between 2011 and 2012, Kenya aggressively lobbied African leaders to get support from the AU in their demand for a UN deferral of ICC investigations and their transfer back to Kenya’s domestic courts (Mueller, 2014: 31). Whilst their efforts were unsuccessful, Kenyatta’s campaign did resonate with the AU. In September 2013, a potential mass pull-out by African countries was even considered by the AU (Mueller, 2014: 32). South Africa and Burundi’s decision to withdraw from the ICC in October 2016 (Sieff and Mahr, 2016) marks another blow to the ICC’s deteriorating relationship with Africa. Cooperation with the Court has also been put at risk by the alleged attempts of intimidation of witnesses for the prosecution (Mueller, 2014: 33). Kenyatta and Ruto successfully postponed their trials until after they gained power. Finding themselves without witnesses, key documents, or political support, prosecutors had no choice but to withdraw charges in December 2015. In September 2016, the ICC issued a finding of non-cooperation to the ICC’s Assembly of States Parties. The failure of the case has resulted in the Kenyan victims feeling a ‘growing loss of faith in the ICC’ (Mueller, 2014: 38). Ultimately, justice for thousands is still to be delivered. Neither Kenya nor the ICC has met its responsibility to hold the perpetrators of war crimes accountable, showing yet again, that politics trumps justice. This attempt to undermine cooperation with the ICC can largely be attributed to the unique structure and jurisdiction of the ICC, which renders it vulnerable to the political interests of those who instrumentalise it. The case of Kenya highlights the ICC’s limited enforcement powers, especially when political power and non-compliance combine to threaten the law (Mueller, 2014: 38).

Conclusion

This essay has attempted to identify the causes of the ICC’s lack of credibility and its effect on the non-cooperation of states by examining the case of Kenya. It has been argued that structural weaknesses in the Rome Statute regime have limited the ICC in its independence and partiality, ultimately weakening the Court as a credible and effective institution. Without support and cooperation, the ICC will perpetuate the vicious circle of loss of credibility and will ultimately be less effective in meting out accountability and positively affecting conflict resolution. At its heart, the ICC reflects deep tensions between peace and justice, politics and law, and power and norms. It embodies strong ambitions and has a broad set of objectives, and balancing legal understandings and political interests, while maintaining credibility and support, will remain the ICC’s biggest challenge to ensure universal human security.

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Transitional Justice: A Tool of Elite Manipulation? A Constructivist Analysis of Gross-Abuse in Kenya and Rwanda

By Alisha Lakhani

Alisha Lakhani is a graduate in Arabic and International Relations from the University of Leeds, with a keen interest in constructivist norm theory and transitional justice.

Abstract

Since its inception in the 1990s, significant concerns have been raised regarding the implementation of transitional justice and the abuse of its mechanisms. The purpose of this paper is to determine the extent to which the noble ambitions of transitional justice have been co-opted by political elites to serve vested interests. Whilst gross abuse of state institutions and processes is not a new phenomenon, using a constructivist lens unveils the sheer scope of elite manipulation. In this paper, norm theory is used to analyse transitional justice mechanisms in Rwanda following the genocide in 1994, and in Kenya following the outbreak of electoral violence in 2007. The paper addresses the abuse of transitional justice mechanisms through positing a three-tiered narrative which explains how leaders consolidate personal political power as well as party dogma. Firstly, elites create a state-directed version of truth which is later institutionalised as collective memory, and ultimately history. Secondly, all opponents are characterised as the ‘other’ and enemies of state through manipulating these mechanisms. Finally, notions of justice are mobilised to claim ‘liberation’ is under threat to justify elongation of political mandates. This paper demonstrates how elites mobilise transitional justice to serve their own agenda. Fundamentally, this paper reiterates the fact that transitional justice is a definitional project with both causal and constitutive effects, which render it vulnerable to abuse.

Introduction

This essay argues that transitional justice mechanisms are heavily instrumentalised by political elites in order to serve their vested interests. This conclusion was reached through an examination of the transitional justice processes that were introduced in Rwanda following the 1994 genocide and in Kenya following the 2007 post-election violence. A constructivist theoretical paradigm is utilised as it offers interesting insights into the ways in which transitional justice mechanisms are employed by elites to carry out their agendas, as well as the implications of such practices. Constructivists argue that although there is an objective reality, it is not simply a product of physical manifestations; it is also socially constructed by ideas and other forms of cognitive structures (Adler, 1997, pp. 319). With this in mind, it is necessary to consider the nature of justice and the mechanisms within which it manifests. As Nouwen and Werner (2015, pp. 176) highlight, “numerous articulations of justice co-exist, overlap and compete”. Furthermore, Acharya (2013, pp. 467) argues that ideas and norms, in this case, the norm of ‘justice’, have causal and constitutive effects. Therefore, it is necessary to consider who is responsible for the articulation of this norm as well as its reproduction, as it represents a form of agency.

Historically, transitional justice mechanisms adopt either a restorative approach, which can entail Truth and Reconciliation Commissions (TRCs) and provision of amnesties, or a retributive approach which can entail international, national and grassroots criminal tribunals with the end goal of punitive punishment, although there are elements of both in most transitional systems (Mallinder, 2007, pp. 208). If one considers the constructivist notion that there is rarely such a thing as value-free knowledge (Adler, 1997, pp. 336), an important question arises pertaining to the scope of elite manipulation and the extent to which such manoeuvrings have impacted and infiltrated norms of transitional justice and their application. It is argued that one-way in which transitional justice mechanisms are utilised is by constructing a version of ‘truth’ which downplays the serious transgressions of the political elite as well as those of the parties they represent. Elite political actors attempt to institutionalise this version of ‘truth’ to form a collective memory or ‘history’, which is particularly problematic as those “who control the past, control the future” (Orwell, 2004, pp. 44). Another way in which elites mobilise transitional justice mechanisms is through creating an enemy or an ‘other’. This is a concerted strategy employed by political elites to neutralise any perceived threat; whether that is domestic or international, material or fictitious. Finally, political elites also manipulate the ambitious, and some may contend, utopian aims of transitional justice (Campbell and Turner, 2008) to claim that it has not been fully actualised. This allows elites to elongate the transitional period, as well as their political mandate, by claiming that the process of liberation is under threat and that a particular party or a politician alone possesses the skill and foresight to protect it (Beresford et al., 2017). This paper argues that due to elite manipulation, transitional justice mechanisms are undermined and, as a result, lasting peace and reconciliation has yet to be actualised both in Kenya and in Rwanda.

Transitional Justice: A Discursive Tool

According to McAuliffe (2017, pp. 44), “transitional justice does not happen in a political vacuum, it always challenges an existing order that did not permit such progress to develop organically”. As this paper shows, in Kenya and Rwanda, political elites have re-articulated notions of justice to safeguard against any assault on their political power and authority. As aptly iterated by Miller (2008, pp. 267), transitional justice is, at heart, a “definitional project” and therefore it is subject to the whims and caprices of those who are part and parcel of its establishment, institutionalisation and enforcement. However, in relation to political elites, manipulation of transitional justice mechanisms is not simply a whimsical act devoid of intent; it is rather a concerted strategy employed to entrench personal power, cement party dogma and to secure political capital and legitimacy. As this paper argues, in Rwanda and Kenya, this is actualised through the creation and reproduction of a singular, prescribed narrative of ‘truth’. Through its replication and institutionalisation, this version of truth is characterised as collective memory, ergo history. This is of paramount importance as history frames the past and has the capacity to frame our present and our future.

One such transitional justice mechanism employed to create and promulgate state-directed versions of events are the gacaca courts in Rwanda. These were introduced by the Rwandan Patriotic Front (RPF) in 2002 in order to facilitate the expression of ‘truths’, to promote reconciliation, to eradicate the culture of impunity, in addition to expediting the trials of suspected génocidaires (Scanlon & Motlafi, 2010, pp. 302). However, it is argued that despite these lofty aims of the gacaca courts, they are not much more than a vehicle to disseminate state-imposed versions of events. This argument is supported by Corey and Joireman (2004, pp. 86) who claim that the jurisdiction of the gacaca courts were deliberately limited by the regime in order to exclude testimonies of Tutsi atrocities, thereby exonerating Tutsi and RPF violations which includes the massacre of civilian Hutu populations, during the genocide as well as after the establishment of the new regime. The characterisation of Tutsi transgressions as a ‘war crime’ and Hutu offences as ‘a crime against humanity’ is part of a concerted strategy to downplay the gravity of RPF and Tutsi crimes. Not only do the political elite define who is to blame for the outbreak of conflict, they are also instrumental in determining what constitutes a crime, as well as who may be considered a victim and whom the perpetrator. Such narratives of blame hold tremendous power as they are utilised to entrench systems of oppression and inequity against certain echelons of society whilst empowering others, thus demonstrating the manipulation of transitional justice mechanisms for political gain.

In Rwanda, systems of oppression operate along ethnic cleavages. Rentyjens (2006, pp. 1110) defines this as the ‘Tutsi-isation” and “RPF-isation’ of Rwanda, which is evident through their exclusive monopoly of public institutions and positions of power. Statistics reveal that in 2000, 70\% of the most prominent positions of office were held by Tutsis; which is concerning as they comprise just 10\% of the population (Rentyjens, 2011, pp. 30). The preferential treatment conferred to the Tutsi population is indicative of the RPF’s formation of a new ‘Akazu’ (patrimonial network) which works to bolster their support, allows the party to acquire legitimacy and to strengthen President Kagame’s hold over the reins of power (Rentyjens, 2011, pp. 30). The term ‘Akazu’ is a reference to an informal grouping of Hutu elites who were closely affiliated to the former Habyarimana regime; it is said that they abided by an extremist ideology and played a significant role in orchestrating the genocide against the Tutsi population (Behuria, 2015, pp. 258). It is of no coincidence that Rentyjens utilises such contentious terminology to describe the actions of the RPF-led regime; it is a damning denunciation. Bratton and Van De Walle (1997, pp. 65-66) argue that political elites acquire support and legitimacy through providing their patrimonial networks with access to state resources. This paper argues that due to the RPF’s authoritarian control over all state resources and institutions, there is no room for contestation of their power which explains their extraordinary success during elections. This is a deliberate strategy employed by the RPF and this paper suggests that the creation of this ‘Akazu’ would not have been feasible had the institutionalisation of a state-directed version of ‘truth’ not occurred. This sentiment is well exemplified by Miller (2008, pp. 280), who claims that “transitional justice mechanisms…are discursive tools, just as much as they are instruments of accountability or reconciliation; they may frame the conflict in one dimension without providing an alternative vocabulary.”

Similarly, in Kenya, transitional justice mechanisms are instrumentalised to create a version of ‘truth’ which portrays the current ruling coalition in a more favourable light. It is argued that this narrative of ‘truth’ is the source of the Jubilee Alliance’s power, legitimacy and support, despite the emergence of damning evidence of “potential crimes against humanity” (Brown et al., 2012, pp. 248). Following the 2007 post-election violence, a Commission of Inquiry revealed the violence in Kenya “followed ethno-religious patterns of party affiliations” (Lugano, 2017, pp. 15). The Commission recommended the creation of a Special Tribunal to investigate these crimes. When this did not materialise, the International Criminal Court (ICC) intervened. The ICC intervention in Kenya was especially controversial due to the revelation of the ‘Ocampo Six’; a list of six high-ranking members of the political elite under investigation for inciting ethnic violence, which was grave enough to be considered a ‘potential crime against humanity’ (GPPAC, 2014, pp. 16). It is argued that the political elite in Kenya downplayed their own role in the promotion of a zero-sum ethnic competition, through creating and replicating narratives which brought the ICC’s legitimacy into question. This strategy successfully allowed the political elite to circumvent both international and domestic scrutiny of their actions. This view is supported by Lynch (2014, pp. 94) who claims that the Jubilee Alliance “reframed the ICC story – at least in the eyes of a significant number of Kenyans – as a performance of injustice, neo-colonialism, and threat to the country’s sovereignty, peace and stability.” Lynch presents a persuasive argument, one which is verified through grassroots, ethnographic research, which consisted of interviews and focus-group discussions as well as election-monitoring processes, TRC participant observations among others (ibid, pp. 95). Moreover, this claim is supported by Lugano (2017, pp. 9) who claims that “the ICC’s intervention in Kenya’s 2007/2008 political crisis was framed as neo-colonialism by two of the accused – Uhuru Kenyatta and William Ruto…which was central to the accused overcoming their ICC stigma.” The institutionalisation of this ‘truth’ to form a collective memory was politically desirable for the elites in question, as it allowed them to circumvent culpability of serious crimes. Ironically, the ICC investigations, which were launched to tackle impunity, have been mobilised to fuel the very culture of impunity it was tasked to eliminate. In this case, transitional justice mechanisms have been re-articulated and instrumentalised to promote injustice. This view is supported by Mueller (2011, pp. 109) who claims that “no high-level figures in Kenya have ever been prosecuted for the increasingly deadly violence surrounding elections since the early 1990s.”

Introducing and reinforcing this discourse within the broader conceptualisation of transitional justice in Kenya worked to secure the identity and power of Kenyatta and Ruto, whilst simultaneously undermining the ICC’s legality. This narrative of ‘truth’ introduced by the political elite portrayed the ICC and the coalition of Kenyatta and Ruto as antithetical to one another (Mueller, 2011, pp. 109). As a result, whilst the political elite entrenched the notion that the ICC is a neo-colonial, divisive institution, they simultaneously propagated the idea that their coalition was one of unity, which brought together the two major ethnic groups: the Kalenjin and Kikuyu; who were bitter rivals prior to this point (Lynch, 2014, pp. 110). This view is supported by Brown et al. (2012, pp. 254) who claim that “shifting alliances by opportunistic ethno-regional power brokers have characterised Kenyan politics. Bitter enemies before one election can find themselves on the same side in the run-up to the next one”. This illustrates the argument that transitional justice mechanisms are employed not only to secure the power of incumbent leaders, but also to ensure continuity of nefarious practices, under the guise of ‘justice’ and ‘reconciliation’. Thus, transitional justice mechanisms in Kenya were manipulated by the political elite in order to deflect criticism, secure personal power for Kenyatta and Ruto as well as to acquire broad-based legitimacy and support for their ethnic patrimonial groups through the creation of an alternative ‘truth’; all under the guise of ’justice’.

The Instrumentalisation of Transitional Justice as a Strategy of Political Abjection

Transitional justice mechanisms are also manipulated by the political elite to create an enemy or an ‘other’. This tactic of vilifying, discrediting and defaming all forms of opposition is a particularly effective method of consolidating power as it allows regimes to rationalise their inequitable treatment of all those who pose a threat to their rule; whether that threat is real or simply fabricated. The instrumentalisation of transitional justice to eliminate opposition is actualised through mobilisation of the state’s version of ‘truth’. If a transitional regime has monopoly over what is considered true, the nature of justice, and of whom are the victims and the perpetrators, then they are also able to instrumentalise this ‘truth’ to demarcate outside groups or ‘others’. This strategy is evident in both Rwanda and Kenya. Both regimes have successfully delegitimised their opposition whilst simultaneously securing their power using political abjection. The term political abjection here refers to a strategy used to obliterate any opposition through defining it as a “malignant threat to the broader social and political health of the nation” (Beresford et al, 2017, pp. 2). By portraying any dissent as “actors who harbour ambitions to return these societies to past instances of mass political violence and neo-colonial relations, [t]hese individuals are said to warrant illiberal state interventions against them” (Beresford et al, 2017, pp. 2).

In Rwanda, the policy of ‘Rwandicity’ has been especially useful in eradicating all forms of dissent, whether that exists at a grassroots level or as a concrete political threat in the national arena. This policy is an integral part of transitional justice in Rwanda as it aims to foster reconciliation of the population through promoting unity by means of stigmatising and criminalising all references to ethnicity (Beswick, 2010, pp. 410). It is argued that this strategy was instrumentalised to burgeon RPF dogma. Moreover, it was not only successful in controlling the dominant population through a “collectivisation of Hutu guilt” (Thompson, 2011, pp. 378), it was also mobilised to contain any and all forms of political dissent. This argument is especially persuasive considering the sheer number of people who have been imprisoned under ‘genocide ideology accusations’, a figure that reached 912 people in 2009 (Rentyjens, 2011, pp. 16). Furthermore, prior to the 2003 elections, the Republican Democratic Movement party (MDR), the sole concrete political contender to RPF power, was abolished for “encouraging ethnic-divisions” (Rentyjens, 2006, pp. 1107). This is not merely a coincidence, but part of a broader strategy to eliminate all forms of opposition and exert authoritarian control over all aspects of life. The RPF would have been unable to wield such authoritarian power if not for the gross abuse of transitional justice mechanisms. This tactic has been incredibly successful in entrenching the RPF’s dominance as it eliminates all possibilities for a truly competitive party politics where there are programmatic differences between parties and electoral contenders; thus, allowing political leaders to retain their monopoly of power indefinitely. Moreover, the veneer of transitional justice shields the RPF regime against international scrutiny and interference which allows them to further their own agendas without restraint.

Similarly, in Kenya transitional justice mechanisms were manipulated by political elites in order to delegitimise the opposition. This was actualised on both national and international fronts. Firstly, the coalition of Kenyatta and Ruto manipulated transitional justice mechanisms to delegitimise the ICC’s investigation into the post-election violence (Lynch, 2014, pp. 105). This was politically expedient as the ICC had the potential to destroy the political careers as well as the personal lives of the politicians concerned, thus posing an existential threat to the leaders as well as the political parties they represent (Lynch, 2014, pp. 105). The political elite created, reproduced and propagated the notion of the ‘other’ in order to neutralise this menace. Dichotomous characterisations of the ICC as a neo-colonial invader and a western stooge stood in stark contrast to Kenya, a victim of colonialism, once again under attack from the same, insidious threat (Lugano, 2017, pp. 11). This argument is supported by Lynch (2014, pp. 106) who posits that Kenyatta and Ruto consciously portrayed themselves as “defenders of Kenya’s sovereignty and independence against Western interference…everything was cast as a competition between patriotic Kenyans and a patronising international community”. This dichotomy was further entrenched through characterisations of the ICC as antithetical to the Jubilee Alliance, which were widely circulated by these political actors (Lynch, 2014, pp. 106). The elite focused on the retributive nature of the ICC whilst contrasting it with promises of peace and reconciliation through restorative means under their coalition (Lynch, 2014, pp. 106). The manipulation of transitional justice mechanisms such as the ICC was integral to the success of the Jubilee Alliance. The creation of an ‘other’ was a central tenet of the coalition’s tactic of political abjection and it was highly successful as evident through the victory of the Jubilee Alliance in the 2013 elections, one which was characterised as “a referendum on the role of the ICC and its attendant neo-colonialism” (Lugano, 2017, pp. 11).

Additionally, the Jubilee Alliance utilised transitional justice mechanisms in order to vilify and defame political opponents on the domestic front. This is supported by Brown et al. (2013, pp. 253) who claims that the ICC is a useful tool to remove political rivals, both within a party and amongst opposition groups. The creation of an ‘other’ was salient in delegitimising the Alliance’s only concrete political opponent: Raila Odinga. The political elite capitalised on Odinga’s role in facilitating the ICC’s intervention in Kenya, and used this association to categorise him and the Luo minorities as ‘enemies of Kenya’. This argument is supported by Lynch (2014, pp. 109) who claims that “Jubilee effectively recast overarching narratives…regarding the ICC and Odinga, in such a way that individual and collective interests became intricately intertwined with one’s ethnic identity. The ICC’s intervention, for example, becoming not only an example of a political and biased court, but a process through which Odinga and ‘the Luo’ sought to tarnish ‘the Kalenjin’ as perpetrators, and to remove ‘the Kikuyu’ from power.” This demonstrates how transitional justice mechanisms are manipulated as part of a strategy of political abjection (Beresford et al., 2017), which in Kenya entailed creating an ‘other’ so as to firstly paint opponents as the enemy of the state and secondly to unite the rest of the population. It ought to be noted that once again, ethnic identities were mobilised for political gain, however, this time, it occurred under the veneer of transitional justice. The mechanisms which ought to facilitate reconciliation are mobilised to reignite ethnic divisions, thereby sowing the seeds of future conflict.

The Mobilisation of Transitional Justice to Indefinitely Prolong Political Mandates

Another tactic which is employed by political elites is the manipulation of transitional justice mechanisms to prolong political mandates. According to Galtung (1969, pp. 183), peace is not simply the absence of physical violence (negative peace) but also the absence of structural violence and inequalities (positive peace). Therefore, he argues that transitional justice should aim to establish positive peace in order to actualise true justice and reconciliation. However, it is argued that political elites have sought to capitalise on this extended articulation of justice to extend their political terms as well as to entrench their power and bolster their identities. Beresford et al. (2017, pp. 1) proposes a conceptual framework of ‘liminality’, which is particularly useful in examining how regimes retain characteristics of a hybrid system as a tactic to consolidate power. Hybrid democracies describe regimes where procedural elements of democracy are fulfilled whilst retaining authoritarian control over all elements of life (Heynes, 2001, pp. 12). Rwanda and Kenya both exemplify a ‘liminal state’.

Through utilising the ‘productive liminality’ framework (Beresford et al., 2017), Rwanda and Kenya, political elites have successfully mobilised liberation discourses to maintain their power and influence. Firstly, the RPF and Jubilee Alliance have disseminated their version of ‘truth’ which is later institutionalised into the collective memory of the population. This ‘truth’ claims that these parties have ‘liberated’ the population from ethnic violence and or genocide; therefore, it has been a source of peace and justice in the country. Through creation of an enemy or an ‘other’, these parties simultaneously target their political opponents whilst rationalising the implementation of extreme, authoritarian practices. Furthermore, the political elite claim that complete liberation has yet to be achieved as structural violence remains prevalent, which is then used to justify a prolonged mandate. This three-tiered strategy is particularly effective in consolidating political power, legitimating authoritarian rule and eliminating all form of dissent and opposition, thus demonstrating the degree to which politicians manipulate transitional justice articulations and mechanisms for their personal and political gain. This was apparent in Kenya in the recent 2017 election, which demonstrated that little has changed: “Voting patterns are still set up as ethnic blocks…The politics of tribe and patronage persist, political change trickles along, with little sign of a variation in the personalities dominating the space, or any shift in ideology” (Wesangula, 2017). Similarly, in Rwanda, President Kagame has held the reins of power for over 17 years and with the 2015 constitutional amendment, he is set to be in power till 2034 (Burke, 2017).

Conclusion

This essay examined the mechanisms of transitional justice adopted in Rwanda and Kenya to actualise peace and reconciliation following the outbreak of mass violence, as well as the ways in which these processes have been hijacked in order to serve personal as well as political vested interests. A constructivist theoretical framework has established that concept of justice simultaneously constructs and is constructed. Based on this analysis, this paper argues that transitional justice mechanisms ion Rwanda and Kenya have been mobilised to create, disseminate and propagate a state-sanctioned version of ‘truth’. Political regimes then endeavour to institutionalise this truth into a collective memory, ergo history, which further reinforces their power, increases their legitimacy and extends their influence. Additionally, regimes utilise transitional justice mechanisms to create an enemy or an ‘other’ in order to remove any opposition or political rivals. Furthermore, political elites often manipulate transitional justice mechanisms to prolong their political mandates as well as that of the parties they represent. The various means adopted by political elites demonstrate that transitional justice mechanisms are to a large extent instrumentalised for personal and political gain.

This paper has largely focused on the agency of political leaders in Rwanda and Kenya and their role in creating articulations of justice, which serve their vested interests. However, an area which has yet to be considered is the notion that “identities, interests and behaviour of political agents are socially constructed by collective meanings, interpretations and assumptions about the world” (Adler, 1997, pp. 324). Reflecting on this, to what extent are the actions of leaders in Kenya and Rwanda the product of individual motivation? Or is it the result of institutionalised practices?

Such questions raised in this paper are particularly relevant as transitional justice mechanisms are becoming institutionalised and reproduced sporadically across Africa as well as throughout the world. There is a very real, pervasive fear that the “the same mistakes may easily be perpetuated, in a way that bespeaks not a conspiracy of interests but a coherence of blindness” (Miller, 2008, pp. 272). Unfavourable practices and abuse of transitional justice not only serve to increase the propensity for physical violence; they also increase the prevalence of structural constraints, which undermines the core aims of transitional justice and thus jeopardises the prospects of genuine peace and reconciliation in the region. Thus, it is necessary to consider the ways in which these mechanisms are instrumentalised in order to safeguard against its abuse.

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A Critical Discussion of the Success of Past Transitional Justice Approaches in Kenya for Securing Peace and Reconciliation

By Anna Skinner

Anna Skinner is a graduate of the University of Leeds where she completed a BA International Development. Her research, professional and personal interests include migration trends, as well as issues pertaining to gender.

Abstract

Kenya’s 2007 election results sparked two months of grave violence. This article analyses Kenya’s response to the violence, and specifically the success of transitional justice approaches for achieving peace and reconciliation post 2007-2008. The article explores the important role that Kenya’s socio-political context played in the post-election violence, such as Kenya’s history of societal restructuring, favouring certain ethnic groups, which created the interrelation of ethnicity and politics and fostered ethnic tensions. Transitional justice approaches – including the Truth, Justice and Reconciliation Commission, a Special Tribunal, and eventually, the International Criminal Court’s intervention – lacked the support of Kenya’s leaders. This paper argues that, fundamentally, transitional justice efforts were impeded in achieving positive peace by failing to address socio-political symptoms. The article concludes that the inherent and enduring structural violence within institutions, policies and society hinders the ability to achieve lasting peace and reconciliation.

The discussion of this paper focuses on the response to the violence that occurred in Kenya after the 2007 elections. After the announcement of the election results, Kenya experienced two months of violence, which resulted in over 1000 deaths, hundreds of thousands of displaced people, buildings destroyed, and numerous acts of physical and sexual violence (Gibson and Long 2009, p.1, 5).

After outlining various terms useful for analysis, this article will look at the socio-political context in the preceding years of the 2007 elections, which laid foundations for the violence. This included the ethnically-based restructuring of society and land reforms. As a result, ethnicity and politics became closely intertwined, which contributed to creating a breeding ground for ethnic tensions. Next, the article will discuss some strategies used to gain political support in 2007 and the ensuing election violence. Then, the article will critically discuss the success of transitional justice approaches across post-conflict years – such as truth commissions and tribunals – to achieve peace and reconciliation in Kenya. It will analyse how and why socio-political factors impacted on the failure of long-term peace and reconciliation efforts.

The argument that this paper puts forward is that that Kenya’s transitional justice efforts failed largely due to the lack of commitment to address socio-political factors such as the ethnically based structural violence that still permeates society, which has impeded the ability for peace and reconciliation. The article also argues that the lack of support from Kenyan leaders has been a barrier to the success of peace and reconciliation efforts, and will continue to limit transitional justice attempts.

Definition of key terms

To clearly evaluate the success of past approaches to transitional justice for achieving peace and reconciliation, it is important to clearly understand the terms referred to.

Transitional justice is a society’s approach to justice in a transition period after conflict and human rights abuses have occurred, to achieve societal transformation in the form of democracy, peace and reconciliation (ICTJ, 2009). Reconciliation (as a process and end goal) can be defined as the movement of a society “from a divided past to a shared future” (Bloomfield 2003, p.12).

It is helpful to think about peace by thinking about violence, both of which can be thought about in two dimensions: positive and negative peace, and personal/direct violence and structural violence. In the past, peace has been considered “the absence of violence”, referring mainly to visible and direct forms of violence (Galtung 1969, p.168). Going a step further, negative peace is considered the “absence of organised personal/direct violence” (Galtung 1967, p.12; 1969, p.183), while positive peace is understood as the “absence of structural violence” or of social injustices and inequalities (Galtung 1969, p.183). Therefore violence cannot be simply seen as visible violent manifestations with a physical perpetrator – known as direct/personal violence (whilst not wishing to belittle these) (Galtung 1969, p.170). Structural violence relates to structures such as institutions and policies in society that favour certain social groups (based on class, ethnicity, gender) and oppress others, fostering and reproducing inequalities (Galtung 1969, p.170; Gready et al 2010, p.1; Cockburn 2004, p.43).

Cockburn further expands on theories of violence, arguing (specifically in relation to gender relations) that instead of viewing violence as a “single event”, it is better to look at it as a “continuum of violence” which occurs in social, economic and political areas of society (2004, p.43). By this she means that structural violence, specifically, is a constant present feature of societies that does not just occur and then not occur as physical violence does (2004, p.43).

Peace presents an interesting debate – particularly in contexts seeking justice – regarding whether peace is necessary for justice to be achieved or whether justice is required first to enable peace to prevail (Oette 2010; Ellis 2006, p.113). This is much debated within transitional justice institutions such as the International Criminal Court (ICC) (Kerston 2014).

Kenya’s Pre-2007 Context

Part of understanding the violence that took place in 2007-2008 requires understanding the socio-political context in the years, and even decades, preceding this particular period of violence. Kenya’s violence (historically, and in 2007) was rooted in ethnic tensions, which were intertwined with tensions and injustices around politics and resources, specifically land (Ndungú 2014). This is largely owing to Kenya’s colonial inheritance, the structures and mentalities established by previous colonial administrations, which still prevail (Nyawalo et al, 2011, p.36).

Like many former colonies, Kenya experienced significant ethnically based restructuring, which divided the country into ‘tribes’ primarily for ruling purposes (Nyawalo et al, 2011, p.36; De Smedt, 2009, p.583). The colonial and post-colonial government also reformed land distribution through processes like settlement schemes based on ethnicity (Kanyinga, 2009, p.326) and via networks of patronage, whichin post-colonial years were also closely based on ethnicity, in return for support (De Smedt, 2009, p.583). Therefore “ethnic groups became political tribes” (De Smedt, 2009, p.583). This meant that land and politics were “ethnicised” from early on and, so, inequalities surrounding land distribution also had ethnic lines (Kanyinga, 2009, p.326).

Given that ethnicity permeated other areas of Kenyan society, it inevitably became a big feature of political divides at local and government level. As Kanyinga argues, this “laid a firm foundation for political conflict”, which Kenya experienced on several occasions even before 2007 (Kanyinga, 2009, p.326). Inequalities in Kenya have subsequently also historically been heavily based on ethnic groups, with several previous administrations (including Mwai Kibaki’s governments in power at 2002 and 2007 elections) favouring the Kikuyu people (Nyawalo, 2011, p.34). This has been particularly prevalent in issues over land, with land disputes and other tensions between Kalenjin and Kikuyu communities spanning for years (Roberts, 2009, p.14). For example, when the colonial administration handed power over to President Jomo Kenyatta, land previously seized by the government (in areas such as the White Highlands) was left in the hands of Kenyatta’s government leaders and was distributed among their ethnic patronage networks, which mainly favoured Kikuyu (Rawlence and Albin-Lackey, 2008).

Therefore those of the Kalenjin tribe and other smaller tribes have experienced structural violence through unequal land access, rights, and regarding distribution of and access to other resources. As a result, ethnic groups have been deliberately and strategically encouraged to compete against each other. Berman describes this as “political tribalism” (1998, p.305; De Smedt, 2009, p.584). This competition creates greater identification with one’s ethnic group, by emphasising the distinction between ‘us’ and ‘them’; the fortunate and the less fortunate who miss out on access to these resources (Berman, 1998, p.327).

With the knowledge of the prominent ethnic divisions and structural violence experienced, one can better understand the way political leaders have tactfully harnessed support during election times.

Post-election Violence

The violence that followed the 2007 election results was partly a response to the election result, and partly promoted by strategies used to acquire political support, which emphasised grievances and ethnic injustices amongst Kenyans.

Commonly used strategies have been based on ethnicity and patronage networks to distribute resources that those in power have access to, to cronies within these networks (which in Kenya tend to be ethnically based). During elections, populist strategies have commonly been implemented, using injustices such as deprivations or negative public feeling to gain the united support of a group of people against ‘others’, united by deprivations (Albertazzi and McDonnell, 2008, p.3; Cheeseman and Larmer, 2013, p.1). In Kenya’s 2007 elections (and at other critical times), ‘ethno-populism’ was used, uniting certain ethnic groups based on their ethnic exclusion and grievances, against other ethnic groups such as the Kikuyu supposedly responsible for the grievances and structural violence experienced (Cheeseman and Larmer, 2013, p.1).

After Kenyans had gone to the polls, the Electoral Commission of Kenya (ECK) was notably late in announcing who had won, but eventually they announced the Party of National Unity (PNU) and Mwai Kibaki’s victory, despite “rumours of rigging and malpractice” (Gibson and Long, 2009, p.1; Roberts, 2009, p.3; Jenkins, 2012, p.576). There were considerable doubts regarding the legitimacy of the outcome and the fairness of the process including the vote-counting, which, combined with frustrations with political leaders’ false promises, sparked violence (Jenkins, 2012, p.576; Mueller, 2008, p.194; Roberts, 2009, p.4).

The two months of violence that took place involved and affected all kinds of people at different levels of the society (Gibson and Long, 2009, p.5). However, it was largely divided along ethno-political lines, with supporters of the opposition, the Orange Democratic Movement (ODM) targeting Kibaki’s supporters, and vice-versa retaliation (Jenkins, 2012, p.576). This period saw over 1200 deaths and at least 350,000 displaced (Gibson and Long, 2009, p.1; Roberts, 2009, p.2; Jenkins, 2012, p.576). Other violence included lootings, destroying properties, driving people out of their communities, physically and sexually attacking people, and police shootings to deter or stop demonstrations (De Smedt, 2009, p.590; Rawlence and Albin-Lackey, 2008).

Transitional Justice Approaches in Kenya

In response to this violence, Kenya established a Commission of Inquiry into the Post-Election Violence (CIPEV) – also known as the Waki Commission – with the purpose of investigating the post-election violence’s causes and consequences (Thomson and Kihiker, 2017, p.5; Mueller, 2014, p.30). The Waki Commission recommended establishing a Truth, Justice, and Reconciliation Commission (TJRC), and a Special Tribunal, to allow deeper investigation and prosecution of individual cases as well as police reforms (Thomson and Kihiker, 2017, p.5).

The recommended TJRC, although swiftly established in 2008, had limited success given the lack of a lack of wide awareness of its report (Ndungú 2014, p.2; TJRC, 2013, p.1). One success was that the TJRC did conduct public hearings, which allowed victims, witnesses and perpetrators to present their stories (TJRC, 2013, p.1). However, the report – outlining findings including perpetrators, and recommendations including reparations – experienced significant delays in being published, which also delayed implementing its recommendations (Thomson and Kihiker, 2017, p.6, 9; Asaala and Dicker, 2013, p.341). Part of these delays came from people in positions of power who were named in the report as perpetrators, who managed to stall the approval of the report and mobilise support against it (Thomson and Kihiker, 2017, p.9).

The Special Tribunal, intended to be composed of Kenyan and international judges, was never established (Asaala and Dicker, 2013, p.345). Likely reasons are that it was never pushed by Kenyan politicians due to fears of political corruption or of being personally prosecuted (Thomson and Kihiker, 2017, p.5; Mueller, 2014, p.30; Brown and Sriram, 2012, p.252). After endless delaying-tactics and lack of commitment by Kenyan political leaders, the failure to implement this recommendation mandated the ICC to intervene and begin its investigation (Mueller 2014, p.30; Thomson and Kihiker, 2017, p.5)

The ICC’s investigations began in 2010 and involved six of Kenya’s political leaders believed to have played some role in the 2007 post-election violence (Endoh and Mbao, 2016, p.276). In 2012, then Deputy Prime Minister Uhuru Kenyatta and MP William Ruto were among four of the six charged with crimes against humanity, while simultaneously campaigning for presidential election the following year (Endoh and Mbao, 2016, p.277). Along with other political leaders, Kenyatta and Ruto were actively and outspokenly against the ICC’s involvement, not co-operating nor providing evidence (Mueller, 2014, p.25, 31). They framed the ICC as a neo-colonial, western imperialist power (Lynch, 2015, p.188; Mueller, 2014, p.31). These political leaders were also found to have bribed and intimidated witnesses testifying against them, in attempt to weaken the case against them (Mueller, 2014, p.33-34).

This was considered by the ICC investigators their most challenging case yet, largely due to various methods of resistance by Kenya’s government and leaders (Mueller, 2014, p.26; Hansen 2016). Although Kenya permitted these investigations taking place, political leaders strategically strived to limit the ICC’s ability to successfully and thoroughly investigate the cases (Mueller, 2014, p.26;). Eventually, Kenyatta’s case (and others’) collapsed (Hansen, 2016).

Criticisms and Limitations of the Transitional Justice Approaches in Kenya

The ICC’s involvement as a transitional justice method has had questionable success in terms of achieving justice, and even more questionable success in achieving peace and reconciliation. Ellis (2006, p.113) argues that justice is needed for lasting peace to be reached. However, many consider the ICC to have prioritised justice at the expense of peace and reconciliation, and failed even at achieving justice through retribution efforts that attempted to punish high-level orchestrators of violence (Lynch, 2014, p.107; Lynch, 2015, p.186; Tambe Endoh and Mbao, 2016, p.279-280).

After giving Kenya’s leaders several chances to follow through with promises of domestic-level investigations, the ICC Prosecutor opened a proprio-motu investigation, at his own discretion (Mueller, 2014; Hansen, 2016). The ICC reserved the right to intervene due to Kenya’s theoretical commitment to the Rome Statute, the Court’s founding treaty. However, the ICC intervention never received genuine support from the Kenyan government, despite Kenya being a signatory to the Rome Statute.

There are claims that the ICC did not carry out investigations thoroughly, relying too much on the Waki Commission’s and other investigations’ findings (Lynch, 2015, p.186). Others claim that the ICC was biased towards certain political leaders. For example, Raila Odinga (leader of the ODM party) was not included in the six named to be investigated, despite rumours that he was involved in inciting the 2007-08 violence (Lynch, 2015, p.186; Jenkins, 2012, p.576). On similar lines, some have suggested that Odinga and other politicians who approved of the ICC’s investigation, may have done so primarily for political motives, since they were not tainted as the ‘baddies’, and, with the 2013 elections approaching, Odinga particularly may have seen it as a way to acquire political backing, rather than for the purpose of achieving peace, justice and reconciliation (Lynch, 2015, p.186).

Interestingly, while leaders such as Kenyatta and Ruto did not support the ICC’s involvement in Kenya, during their campaigns for the 2013 elections the anti-ICC rhetoric provided a tool for acquiring support for a new Jubilee Alliance (which comprised Kenyatta and Ruto, the representatives of the two previously opposing ethnic groups Kikuyu and Kalenjin) (Mueller, 2014, p.25-26; Lynch, 2015, p.188). This alliance justified claiming they were the ones truly committed to bringing peace and reconciliation to Kenya, while the ICC’s approach was biased, based solely on punishment and justice, and therefore Odinga supporting the ICC’s ‘side’ tarnished him with the same brush (Lynch, 2014, p.107; 2015, p.188).

Thus, while perhaps not how expected, the ICC’s involvement in Kenya provoked a situation of reconciliation to some extent, uniting once warring groups in the new alliance. The anti-ICC and pro-Jubilee rhetoric also promoted a peaceful, anti-violence period around the 2013 elections, which possessed a much stronger emphasis on peace, with urges for peaceful elections coming from not only political leaders, but other positions of influence (Lynch, 2015, p.184). However, this does not necessarily reflect that lasting and sustainable peace and reconciliation had been established (Gready et al., 2010, p.2). It could have been politically motivated, with the hope that the Jubilee Alliance setting a good example of peace and reconciliation around this political event would secure them greater voting support.

A major issue with the transitional justice approaches undertaken in Kenya is that they placed greater emphasis, time and resources into efforts that would treat the symptoms of the violence, rather than addressing its roots, the socio-political factors that caused the violence (Gready et al., 2010, p.1). Therefore it seems that only negative peace was achieved in the years of transitional justice and peace building efforts following the 2007 post-election violence, owing to the absence of direct violence. Despite this, positive peace was not achieved since structural violence is still a prominent and pervasive feature of society.

Structural violence within Kenya in the form of ethnic exclusions in land and opportunities felt by ethnic groups such as the Kalenjin and minority groups was significant in conceiving the anger and injustice people felt which fuelled the outbreak of physical violence. Several scholars argue that while structural violence and these exclusions remain unaddressed and still “persist in Kenyan society and consciousness, the potential for violent confrontation between groups remains high” (Jenkins, 2012, p.596; Lynch, 2014, p.98). Thus, the ability for positive peace and reconciliation to prevail was and is limited, as long as these ethnic exclusions create high potential for violence.

To this end, transitional justice approaches should have addressed the exclusionary narratives felt by civil society, as well as narratives of ethnicity and exclusion inherited from past regimes that were played upon by political leaders (Cheeseman and Larmer, 2013, p.1). Several scholars and observers have argued that a transformative justice approach would have been more successful than transitional justice approaches (Gready et al., 2010, p.1; Gready and Robins, 2014). Transformative justice seeks to address and see transformation in the unequal structures of society, which (in Kenya and other countries) have facilitated and catalysed physical violence (Gready et al., 2010, p.1; Gready and Robins, 2014).

Moreover, it has become widely known that political leaders at the highest level and at local levels were involved in orchestrating and encouraging the violence, as will be discussed. ODM and PNU supporters alike arranged meetings and raised funds to facilitate the violent reaction (PNU supporters mobilised Kikuyu militia in retaliation to ODM supporters who attacked), particularly in Nairobi’s slum areas and the Rift Valley where many of the land disputes exist (Rawlence and Albin-Lackey, 2008). The ODM, particularly, mobilised groups of young people who were already angry at politicians’ false promises about their future prospects’ (Roberts, 2009, p.11). The police also committed hundreds of atrocities, by opening fire on unarmed civilians and children and shooting to stop demonstrations or even prevent and deter them from happening (Rawlence and Albin-Lackey, 2008). Reforms within the armed forces were needed in order for the potential for future violence to be minimised (particularly around the 2013 elections) and for peace and reconciliation to truly be a possibility (Lynch, 2014, p.98; Ndungú, 2014, p.5).

Additionally, by 2007, a present feature of society was gang violence, and political leaders in the past and at this time, had hired gangs to ‘deal with’ opposition supporters and carry out violent attacks or retaliations (Mueller, 2008, p.194; Ndungú, 2014, p.6). This presented difficulties regarding investigating situations involving people in positions of power, since they are the ones holding or with access to the required information (Ndungú, 2014, p.6; Brown and Sriram, 2012, p.258). Leaders’ reluctance to cooperate in investigations that put their power at stake reflects a lack of commitment at the higher level within Kenyan society in bringing justice and peace in Kenyan society post-conflict (Ndungú, 2014, p.6,10).

Thus, what has developed is a lack of trust among society, significantly in officials and institutions, including the judiciary, due to past experiences of institutional failures, ethnic oppression, and politicians’ false promises, corruption and biases within the police (Thomson and Kihiker, 2017, p.20). This raises issues about how effectively peace can be achieved, if corruption and inequalities exist within institutions and politics. Returning to the peace versus justice debate, Ellis’ argument that “there can be no lasting peace without justice, and justice cannot exist without accountability“ (2006, p.113), suggests that the impunity, lack of accountability or transparency within Kenya’s leaders, heavily impedes on the ability to achieve sustainable peace and reconciliation.

Conclusion

While the post-2007 years saw a period of negative peace without similar violence recurring, the transitional justice efforts were not successful in terms of achieving positive peace, addressing deep-rooted inequalities and injustices in the Kenyan society. The structural violence deeply ingrained in the Kenyan society needed addressing in order to deal with the root causes of the violent outbreak. With Cockburn’s “continuum of violence” in mind (2004, p.43), one can better understand how addressing structural violence in Kenya requires targeting all areas of society. In Kenya, it is vital to consider how and where (for example in politics, economic opportunities, land rights) structural violence has historically affected and presently continues to affect society and social groups, such as the Kalenjin.

Moreover, the transitional justice methods, such as the ICC’s intervention and the TJRC, needed the support of all actors within society, particularly those in positions of influence. These peace, justice and reconciliation efforts that should have addressed the structural violence, needed endorsement from above, by political leaders, in order to see a ripple effect in wider areas of society to potentially change exclusions and divisions. Without addressing structural violence and without influential people advocating for this change for the sake of peace and reconciliation, the potential for violence in Kenya remained and will remain high, while the potential for positive peace remains low.

Thus, transitional justice should be part of a broader effort that strives to build peace in Africa – and in this case in Kenya. Justice is required to some extent in order to provide accountability for crimes committed, however, other efforts that address reconciliation and peace should not be discounted at the expense of solely achieving retributive justice. In cases such of that of Kenya, achieving post-conflict peace and reconciliation involves identifying, challenging and reforming areas of society where structural violence prevails. By doing this, the potential for conflict to be triggered is limited as injustices and anger are minimised, allowing peace to be more profoundly and genuinely achieved.

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20 Years Later: The Role and Value of Traditional Justice Mechanisms for the International Criminal Court and for the Future of Transitional Justice

By Dr. Ingrid Roestenburg-Morgan

Dr. Ingrid Roestenburg Morgan is a Senior Research Fellow with the Institute for Justice and Reconciliation.

What is Justice? This is a question that I would like to open up for thought in this special edition of the R2P Student Journal that addresses the topic of traditional justice, mainly in light of the transformative context of transitional justice but equally as important in light of the 20th anniversary of the International Criminal Court’s Rome Statute, both of which have dealt with the concept of justice in varying ways. The International Criminal Court (ICC), for instance, determines that justice means “the ending and preventing of impunity of serious crimes” through prosecution (Article 4, Rome Statute, 1998). This is in line with the Preamble of the Rome Statute and in line with article 53 of the Rome Statute (OTP Policy Paper, 2007, pp. 8-9). In other words, the ICC makes it clear that justice should not be relegated to moral or practical disagreements of the term, but rather to the law which is the Rome Statute. Transitional justice proponents on the other hand see justice as “the full set of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale abuse in order to secure justice, achieve accountability and achieve reconciliation” (Annan, 2004, p. 4). In other words, transitional justice proponents rely on both judicial and non-judicial processes to successfully realise justice needs for post-conflict societies and their citizens (Villaba, 2011).

These differing views on justice effectively open the meaning of the term to scrutiny and debate. From current postmodern viewpoints many theories substantiate these variations and often hold that the concept of justice is open to some degree of personal interpretation (Young, 1997). Justice is thus open to change, critique and the diverse accommodation of social forms, meaning that the term cannot mean the same thing to different people, races, cultures, groups or societies (Young, 1997). For instance, justice could mean something very different to a person who has faced an ordinary crime in a context of normality, in comparison to a person who has faced massive and atrocious crimes in exceptional contexts of transition (Uprimny and Saffon, 2006). Justice also holds differing and varied connotations for societies on the brink of transition in comparison to societies which have remained in peace for years or decades (Mbeki and Mamdani, 2014).

Currently however, it is generally understood that the term justice represents morality, ethics, rationality, law, religion, equity and fairness, and that the two most important variations or discourses that pervade contemporary criminal justice processes are the retributive and restorative justice models (Rawls, 1981). The right to justice, as we currently understand it, basically means that individuals must have the ability to have effective access to justice, which forms a fundamental part of the rule of law (American Bar Association, 2018). Where access to justice is not readily available, victims in particular are at a disadvantage, because they cannot exercise their rights nor challenge any type of discrimination effectively enough (American Bar Association, 2018).

Currently, there is a presumption that justice can be best secured primarily through a retributive system advocating for prosecution and punishment (Moscati, 2015, p. 9). However, considering the complexity of post-conflict societies, where often the role of victim and perpetrator are switched during conflict and where roles have become blurred during ongoing hostilities, ensuring adequate access to justice for both victim and perpetrator is no easy task, and a purely prosecutorial or retributive approach to justice may not in each and every instance be suitable (Morgan, forthcoming, p. 141). This would be the case especially if prosecutions threaten to undermine or destabilise a country or if they threaten to marginalise or disempower the main stakeholders in the justice process, such as victims (Morgan, p. 141). As a result, more holistic approaches to justice have been advocated for, where in some instances both retributive and restorative elements of justice feature (Villaba, 2011). The interaction and interdependence of both theories of justice has accordingly paved the way towards the discipline of transitional justice as we know it today where, because they face complex internal disputes, states are burdened with the responsibility of moving their societies from chaos to stability. As a result, states are expected to find the right reconstructive measures to secure peace, reconciliation and justice for successful transition to take place (Morgan, p. 141).

In the context of Africa, transitional justice has essentially found its roots in the use of traditional justice. Since the 1990s there have been a plethora of judicial and non-judicial mechanisms employed by African states, which very often featured restorative tenets of justice such as forgiveness, friendship and compassion between victim and perpetrator, thus mimicking transitional justice as we know it today (International Peace Institute, 2013, p. 27). These justice mechanisms have been referred to by a variety of names including traditional justice mechanisms, alternative justice mechanisms and local justice mechanisms. The goal of traditional justice mechanisms as understood from an African perspective must be seen to secure reconciliation and national unity by drawing on cultural or religious linkages (Morgan, p. 141). Examples of the latter mechanisms include several truth commissions that have been employed in various African countries such as in Uganda, Zimbabwe, Nigeria, Ghana Sierra Leone and South Africa over the years. Other examples include Gacaca courts in Rwanda, Magamba spirits in Mozambique, Mato oput in Northern Uganda, Kpaa in Sierra Leone and Bashingantahe in Burundi (Huyse, 2008).

The purpose of using such mechanisms has essentially been to address large-scale justice needs, keep the cost-effectiveness of the justice system in check, and most importantly ensure that political reconciliation is achieved as a final goal (Huyse, 2008). But these objectives alone do not necessarily suggest that traditional justice mechanisms provide an adequate measure of justice to victims and survivors of mass atrocities undergoing transition, especially when the context of violence far exceeds crimes that would ordinarily occur on a regular basis (Morgan, p. 141).

Proponents of traditional justice mechanisms nonetheless have stressed the inclusiveness of such systems, which incorporates both victims and perpetrators within the justice process so that these main stakeholders can meaningfully engage and further empower survivors of mass violence. This in turn is beneficial in that it enhances the legitimacy of the justice system in place (Morgan, p. 141). Many of these mechanisms have also been praised for their participatory nature, their flexibility to include both restorative and retributive strands of justice, their high level of truth telling, their ability to secure ‘negotiated settlements’ essential for maintaining peace, the practical implementation of the judgments handed down, and also the very important space that rituals create for discussion on accountability, guilt and restoration (Villa-Vicencio, 2002).

However, based on my recent research into the role and value of such systems it has become clear that these justice mechanisms may function more effectively if they contain elements of both restorative and retributive strands of justice rather than only restorative elements alone (Morgan, p. 141). My findings reveal that purely restorative models of justice will not be able to meet victims and survivors’ justice needs in contexts of mass violence simply because perpetrators wield a diminished sense of personal, moral and legal responsibility characterised by the type of crimes they have committed, where in comparison to ordinary crime, the scale, nature, gravity, and the manner in which the crime has been committed is exceptional (Morgan, p. 141). Furthermore, not all victims find themselves in a position to pardon or forgive their offender, a requirement that is often implicit in a restorative system of justice that functions without any retributive strands (Morgan, p. 141). Additionally, states have a further obligation under international law to prosecute perpetrators of mass atrocities in order to prevent similar crimes from occurring on their territories in the future. In this way, they cannot violate their legal and human rights obligations and thus prosecution is difficult to forego in light of these international obligations (Orentlicher, 1991).

Thus, in order for traditional justice mechanisms to be of value within the transitional justice landscape they would need to undergo “revision” with some form of prosecutorial option at hand to meet the tensions between tradition and modernity. Indeed, complications arise when these justice mechanisms become subject to scrutiny at the international level when for instance they are accompanied with blanket amnesties for perpetrators or when they cannot supposedly meet due process standards of the law (Morgan, p. 141).[2]

At the level of the ICC, this would further suggest that states who proffer the use of traditional justice mechanisms in a challenge of admissibility would need to overcome certain limitations; namely that the justice system in question must meet the requirement of genuineness as elaborated under the ICC’s principle of complementarity as per article 17 of the Rome Statute, and that furthermore such a mechanism should ensure a level of due process of the law (Morgan, p. 141). In terms of the genuineness requirement, this would mean that a mechanism set up hastily and entirely for political reasons without a genuine bona fide intention on the part of the state in question will not qualify. So, for instance, a mechanism set up to shield an accused under the guise of justice to ensure political reconciliation will not qualify under ICC standards if the intention of the state in question to set up such a justice system is only for political purposes and/or to shield the perpetrator from justice and/or to fail to secure justice as an end goal (Morgan, p. 141).

In terms of due process standards, many scholars have been concerned with whether such mechanisms actually need to guarantee a defendant international due process standards. According to my findings, nothing under article 17 requires a state to guarantee international due process of the law, especially because most states parties in a challenge of admissibility would not in reality be able to satisfy such standards. In fact, a proper interpretation of article 17 renders that most states should have a minimum guarantee of due process in place at the national level, which should be afforded to a defendant in order to qualify such a mechanism at the level of the ICC (Morgan, p. 141). Thus, in this regard, the ICC may offer some measure of leeway. Essentially, the quality of justice will be assessed by the ICC as a whole, considering the broader political implications that these justice systems hold individually for victims and survivors and separately for the country on the whole (Morgan, p. 141).

So, in closing, the benefit of traditional justice for transitional contexts may be meaningful if such mechanisms can address both societal reconciliation, which is arguably one component for justice for survivors, and then individually target the justice needs of survivors, contingent of course upon a prosecutorial option being included within the framework of such a mechanism (Morgan, p. 141). When both these tiers of justice can be adequately satisfied then such a justice mechanism may be considered valuable by the ICC. Equally of importance will be the value of these mechanisms to victims and survivors of mass violence, and thus to transitional justice on the whole (Morgan, p. 141). In other words, the use of traditional justice mechanisms in light of the aforementioned assessments should not necessarily be dismissed prematurely based on their often romanticised cultural and religious linkages, but rather they should be thoroughly assessed on their merits and ability to genuinely support both societal reconciliation and individual justice needs, thereby qualifying a deeper definition of justice that post-conflict societies must ensure in general.

[2] Due process includes amongst others the right to counsel, the presumption of innocence, independence and impartiality of judges, right to an adequate defence, the right to testify in one’s defence, the right against self-incrimination, the right to be present at one’s trial, the right not be arbitrarily detained and protection from double jeopardy.

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Annan, K. 2004. The Rule of Law in Conflict and Post-Conflict Societies, New York, United Nations.

Article 4 of the Preamble of the Rome Statute of the International Criminal Court.

Article 53 of the RS and Office of the Prosecutor, Paper on Some Policy Issues Before the Office of the Prosecutor. September 2007.

Huyse, L. February 2008. Traditional Justice and Reconciliation after Violent Conflict: Learning from Experiences, Institute of Democracy and Electoral Assistance (IDEA).

Mbeki, T, and Mamdani, M. February 5th 2014. Courts Can’t End Civil Wars, The New York Times, Op-Ed.

Morgan, I. Forthcoming. The Road to Reconciliation? Optimizing the Legitimacy and Efficacy of the ICC Within the African Union and Africa.

Moscati, M. May 2015. The Role of Transitional Justice and Access to Justice in Conflict Resolution and Democratic Advancement, Democratic Progress Institute.

Orentlicher, D. 1981. Settling Accounts: The Duty to Prosecute Human Rights.

Rawls J, A Theory of Justice, Howard Press, Cambridge.

Report of the AU Panel of the Wise, Peace, Justice and Reconciliation in Africa. February 2013. Opportunities and Challenges in the Fight Against Impunity, International Peace Institute.

Uprimny, R, and Saffon, M. 2006. Transitional Justice, Restorative Justice and Reconciliation: Some Insights on the Colombian Case, Coming to Terms with Reconciliation, Working Paper, National University of Colombia.

Villaba, CS. 2011. Transitional Justice: Key Concepts, Processes and Challenges, Briefing Paper, Institute for Democracy and Conflict Resolution, University of Essex, Knowledge Gateway.

Villa-Vicencio, C. 2002. Walk with Us and Listen: Political Reconciliation in Africa, Georgetown University Press.

Violations of a Prior Regime. June 1991., The Yale Law Journal, Vol.100, No. 8, Symposium International Law, pp. 2537-2615.

Young, T.R.A. June 1997. A Constitutive Theory of Justice, Architecture and Content, Red Feather Institute.

‘This delicate mosaic may be shattered at any time’: The ICC, technocracy and the liberal West’s moral imperialism

By Margot Tudor 

Margot is an ESRC-funded PhD candidate in Humanitarianism and Conflict Response with the HCRI at the University of Manchester. Her main research areas of interest are peacekeeping, global governance, colonial continuities and the history of humanitarianism.

This article argues that the colonial continuities present in the operations and ideologies within the structures of the international justice system have diplomatic implications. By investigating the International Criminal Court’s (ICC) attempts to prosecute the President of Sudan, Omar al-Bashir, it seeks to verify accusations of anti-African bias and neo-colonialism. Additionally, the historical roots of these imperial legacies and their contemporary double standards have provided political weight to those attempting to evade international law. This project presents a uniquely holistic and interdisciplinary approach to unite the fields of global justice, transitional justice and post-colonialism through utilising the frameworks and literature from international law, history, international relations and politics. It intends to build upon the burgeoning literature considering the connections between ‘new imperialism and histories of humanitarianism’ (Edmonds and Johnstone, 2016, p. 1). It will be argued that the transitional justice process excludes victims from the production process of justice through legalistic and technocratic approaches which present Western approaches to justice as superior. This, therefore, divorces victims from their access to the judicial process. In this way, this project hopes to build upon post-colonial frameworks and use them to view the power sources within global structures and institutions, particularly those within the morality industries (humanitarian, governance or judicial).

Introduction

To them it is our part to give wise laws, good government, and a well-ordered finance, which is the foundation of good things in human communities… where the light of morality and religion can penetrate into the darkest dwelling places. This is the real fulfilment of our duties; this, I say again, is the true strength and meaning of Imperialism. – (Lord Carnarvon, cited in Cain, 2012, p. 563)

The International Criminal Court’s (ICC, or the Court) case against Sudanese President Omar Hassan Ahmad al-Bashir sits at the crux of several geopolitical and legal dilemmas currently holding the attention of the international community. News of al-Bashir’s arrest warrants – the second warrant added the genocide charge in 2010 (ICC, 2010) – echoed around the globe and yet the Court still awaits his presence in The Hague and his victims await justice (ICC, 2009). Eight years after the first warrant was issued on several charges of crimes against humanity and war crimes, al-Bashir walks free, retains his Head of State status and has regularly travelled outside Sudan to attend international conferences and diplomatic engagements (Nuba Reports, 2016). By examining the political stances of the African Union (AU), Sudan and the Court, the article will show how the Court’s procedures and theoretical approach to justice retains problematic elements of the historical evolution of international justice, diplomatic paternalism and moral imperialism within the Westphalian system. By examining the aftermath of the failed arrest warrants, it will demonstrate how far victims have been ignored in preference of a morally imperialistic and technocratic approach to justice. Overall, it will be shown that the ICC’s less-than-subtle approach to international criminal justice has aided al-Bashir in his evasion of justice as it has fractured diplomatic relations between the AU and the international community.

Recent accusations of neo-colonialism and excessive Western influence on the Court have contributed to negative media and diplomatic thought regarding the independence of the ICC (Peskin, 2009, p. 307). The perceived impartiality of the Court, as an arbiter of objective justice, is crucial to its success as a popular organ within the United Nations (UN) system and thus these criticisms have shaken the core of the beliefs which uphold the ICC’s operations. Victor Peskin’s interviews have shown how these allegations have influenced those who work for the Courtp.  ‘“It is a very harmful debate for us…and it is harmful to perceptions,” of the Court, lamented a high-ranking official in a December 2008 interview’ (Peskin, 2009, p. 307). It is with concerns of exploitation within the international legal system in mind that this article seeks to determine how far accusations of colonial continuities within the Court can be verified. In this way, this article argues that transparency and removal of all double standards is the only method available for improving participation in the endeavour of international criminal justice and ensuring that victims’ rights are prioritised. 

By looking at the African Union High-Level Panel on Darfur (AUPD) report in detail, this article will examine how the international intervention of the ICC in this case has not permitted ‘African solutions for African problems’ and how, instead, the Court has pursued a paternalistic attitude in its interactions with the AU (Maathai, 2010). It will show that the ICC’s preference for legalistic and technocratic approaches to justice have, in the tradition of Western international criminal justice cases, instrumentalised the victims within the court and oversimplified their experiences of the conflict for the ease of legal binaries. It will also explore how far the Court’s assumptions regarding liberal democracy can be seen as part of the broader peacebuilding strategy of the UN. Although peacebuilding intends to ensure stability for the future of a region, it also assumes that the Western vision of civilisation, as outlined in Fukuyama’s thesis, is the ‘end of history’ (Fukuyama, 1989, p. 3). Thus this attitude can lead to justice processes seeking morally imperialistic results (Marks, 1997, p. 474-475). As a UN representative of Sudan commented when the Security Council (UNSC) referred the case to the ICC:

The Council today did not settle the question of accountability in Darfur. Rather, it exposed the fact that this Criminal Court was originally intended for developing and weak states, and that is a tool for the exercise of the culture of superiority and to impose cultural superiority. It is a tool for those who believe that they have a monopoly on virtues in this world, rife with injustice and tyranny. (UN Doc S/PV.5158, 12)

Unpicking the assumptions that underlie the rhetoric, beliefs and therefore operations of the Court is crucial for understanding the implicit liberalistic attitudes towards non-Western approaches to justice. Filtering down through the global governance system are the preferences for legalistic, ‘expert’ and bureaucratised processes. Due to the ‘one-size-fits-all’/‘toolbox’ approach towards international criminal justice, the complexities of individual societies and the needs of minorities are ignored in preference of establishing a liberal democracy. These abbreviated approaches to justice, as part of the peacebuilding endeavour, remove all legitimacy from alternative judicial processes. As Rubli argues, ‘Social change is considered to be an outcome of legal-institutional reforms and hence, transitional justice is often externally imposed in a paternalistic and top-down way’ (Rubli, 2012p.  11).

Historical context

The development of international criminal justice

Establishing the historical context of the al-Bashir case is important for understanding the complex political circumstances of al-Bashir’s warrant. Before briefly describing the alleged crimes of al-Bashir’s government, it is important to analyse the ideologically fraught arena of international criminal justice, within which al-Bashir’s case will be deconstructed. The development of international criminal justice processes at the beginning of the Twentieth Century accelerated following the Second World War as transitional justice became a tool for the post-war Allies. Nuremberg served as an experiment into the foray of international criminal justice (Jackson, 1945), its first lesson being that the role of history, memory and victimhood are at the centre of its endeavour. Prosecuting a crime that holds such historical and political symbolism presents many unique obstacles that differ from domestic criminal proceedings. Appearances of objectivity are even harder when those at home might not fully understand the difficulties of working within legal frameworks where, ‘…emotions are “regulated” and subject to the requirements of the legal settings and procedures’ (Karstedt, 2016, p.  51). 

Additionally, the role justice plays in keeping the peace within a post-conflict society is paramount. The catharsis of a justice system can serve to aid a community in rebuilding and regaining stability; ‘In the long run, the absence of a fair judicial and penal system results in a failure to provide a sense of justice for the victims of war crimes, human rights violations, and other criminal activities, and that sense of justice is essential to achieving sustainable security’ (Field and Perito, 2002-2003, p. 81). The securitisation of justice – i.e. discussions about how far justice processes are an important tool for preventing further conflict – has been an area of scholarship that has grown in tandem with the peacebuilding rhetoric that will later become crucial to this article’s discussions of neo-colonialism. In this way, Nuremberg was the first site where international lawyers discovered the complex and unique requirements that (successful) transitional justice processes demand.

However, the advent of the Cold War caused the international community to reprioritise their diplomatic efforts, and prosecutions of Axis powers were no longer deemed necessary unless they incriminated those who occupied the Eastern European border (Bazlyer, 2016, p. 111). During the decolonising period, this pause of prosecutions seemed to indicate that international justice was no longer a luxury that could be afforded. The juxtaposition of the growing human rights rhetoric in Western politics jarred with the realities of their imperial crimes abroad (Klose, 2013, p. 48). As Sartre argues, ‘You who are so liberal, so humane, who take the love of culture to the point of affection, you pretend to forget that you have colonies where massacres are committed in your name’ (foreword of Fanon, 1963, p. 12). Only once the Berlin Wall was brought down in 1989 was the West keen to reignite its role as legal arbiter of human rights through the means of international justice processes (Kaptenijns, 2013, p. 425). To this end, the UN Charter’s Chapter VII was increasingly interpreted more flexibly as the global push for humanitarian interventions fought against the post-colonial struggle to protect sovereign integrity (Ayoob, 2002, p. 83). As Mamdani argues, ‘[t]he transition from the old system of sovereignty to a new humanitarian order is confined to those states defined as ‘failed’ or ‘rogue’ states. The result [was] a bifurcated system whereby state sovereignty [is obtained] in large parts of the world but is suspended in more and more countries in Africa and the Middle East’ (Mamdani, 2010, p.  54).

The development of international criminal justice systems throughout the latter decades of the twentieth century has, therefore, taken place within the environment of a post-Cold War victory, a ‘New World Order’ narrative which has allowed the West to set the tone for what international justice entails and who it is for. The signing of the Rome Statute in 1998 and development of a permanent International Criminal Court in 2002 with the role of prosecuting individuals (as opposed to the mandate of the International Court of Justice which prosecutes member-states of the UN in a civil court) was quickly perceived as representative of much of the global community’s philosophical attitude towards international criminal justice:  the supremacy of globalised legalism over other forms of reconciliatory processes (Bongiovanni et al, 2014, p. 760). The ICC’s mandate was seen by many as ‘…the missing link in the international justice system’ (United Nations, 1998-1999). However, hopeful beginnings began to crumble as the ICC’s actions proved no more enlightened than the colonial biases and double standards inherent to the Permanent Members (P5) and veto structure of the UNSC. As Thakur argues, ‘…there is a growing perception that an initiative of international criminal justice, meant to protect vulnerable people from brutal national rulers, [that] has been subverted into an instrument of powerful against vulnerable countries’ (Thakur, 2016, p.  372).

Darfur and the alleged crimes of al-Bashir

The roots of the conflict in Darfur begin long before 2003 with the extreme political and economic marginalisation and oppression of the Western region of Sudan by government forces in the capital city, Khartoum. However, in February 2003 the Sudan Liberation Army attacked the government forces, which had been dominating their communities for years and utilising colonial economic and political structures. This initiated a disproportionate counter-response by the government who were keen to protect their social and political hierarchy within the region. The government utilised local ‘Arab’ militias, the Janjaweed, to attack those in the Darfur region. Al-Bashir’s government is accused of ordering the militias to terrorise the Darfur communities by burning villages, encouraging sexual violence and murdering thousands (Austin and Koppelman, 2004, p. 26). Mills has commented on the international response to the conflict, saying ‘The world was slow to respond. First came humanitarian assistance… A year or so later, newspaper editorial pages started referring to the conflict as genocide’ (Mills, 2012, p. 414). 

Legalism ‘barbarises’ its own victims 

In 1998, the ICC was hailed as the ‘Victim’s Court’ (Human Rights Centre UC Berkeley School of Law, 2015, p. 1), intending to put survivors and their families’ experiences of the international criminal justice system at the forefront of its priorities. Therefore, ‘In addition to being called as witnesses, victims would have the right to be heard by ICC judges at all stages of the proceedings’ (Human Rights Centre UC Berkeley School of Law, 2015, p. 1). Moffett argues that ‘The broadening of international criminal justice to be more responsive to victims brings challenges of its own in reconciling the need to deliver justice to potential thousands of individuals, against the logistical and financial limits of a single international institution’ (Moffett, 2015, p. 283). Perhaps a national court could hope for this level of victim support, but an international court with only five field offices has virtually set itself up for failure. 

Despite the recent ‘local turn’ (Mac Ginty and Richmond, 2013, p.  763) in peacebuilding in response to ‘frustrations at the technocratic and unresponsive aspects of orthodox peacebuilding policy’ (Firchow and Mac Ginty, 2013, p. 232), international justice practitioners have yet to respond to its critics with its own evolution. Human rights defenders on the ground have argued that ‘the Court remains too far removed from the field and from the concerns of the affected communities. Largely absent from the regions where the victims live, the ICC has not as yet succeeded in making itself known’ (Glasius, 2009, p. 510). In this way, the victims are removed from the consultation and procedural process and their experiences filtered through a Western legalistic process which has constructed tropes of African victims of conflict which are often found in ‘humanitarian’ marketing – often infantalised and in need of parental guidance (Kennedy, 2009). Apoliticising victims removes their identity which may have been the reason for their victimhood in the first place. Removing a victim’s political agency from their involvement in the Court process is not only offensive to their capacity for autonomous voice (Moffett, 2015, p. 286) but is also detrimental to the Court’s understanding of the conflict. As was seen in the Nuremberg Tribunals, many Jewish victims felt that the prejudice against their identity had been erased in preference of interpreting the Holocaust as ‘yet another manifestation of the atrocities performed by the Germans in the countries they occupied’ (Yablonka, 2012, p. 303).  

One of the reasons for the Court’s detached attitude in regards to victims and their families is its idea that they would complicate the judicial process as they do not fit neatly into legalistic language. Instead, their narrative is co-opted and manipulated to suit the Western framework of justice. Thus, they ‘were treated as objects of moral concern, rather than subjects with any rights to present their own interests’ (Moffett, 2015, p. 283). In addition to logistical issues such as language interpretation and physically encouraging a witness to attend the trial at The Hague, there are power imbalances which intentionally attempt to remove the ‘local’ from the Courtroom, which arguably derives directly from the colonial experience. As Doughty argues, ‘Ethnographic work on bilingual courtroom transitional in post-colonial or colonial contexts emphasises power-laden linguistic shifts that occur between ‘local’ language and ‘courtroom’ language, where ‘local’ means both ‘nonlegal’ and ‘nonwestern’’ (Doughty, 2017, p. 245). This sanitised approach favours Western assumptions of what victims want rather than including them within the consultation process. As Rubli has discovered, ‘The lack of context knowledge is mostly substituted with expert knowledge. It is often based on ‘received wisdom’ and assumed causal beliefs about transitional justice or ‘experts’ simply evoke international norms and standards without linking them to the context. Thereby external ‘expert’ knowledge is considered to be superior and trump popular and indigenous conceptions about how to deal with the past’ (Rubli, 2012, p. 11).

Attitudes towards transitional justice and international law – and decisions over who is allowed in the process and to what degree – are directly involved in constructing the political narrative of the community’s future (Tietel, 2002, p. 385). The recurrent exclusion of victims from the future narrative of their own communities’ possible reconciliation highlights the paternalism of this approach. Impartiality, within the ‘uneven moral economy of international justice’ (Doughty, 2017, p. 246), is illusory, as it sets out to silently bias the more powerful approach (i.e. the status quo of international justice – a Western approach) and ignores the structural imbalances which remove victims from their intended procedural role and agency within their own historical and legal narrative (Moffett, 2015, p. 287). Therefore, ‘The legalist lens that transitional justice takes limits the focus to specific sets of actors for specific sets of crimes committed within a rather artificial period of time, and thus determines the categories of when, to whom and for what transitional justice applies’ (Rubli, 2012, p. 10). 

Legalism has also encouraged the structural preference of legal binaries:  innocent/guilty, victim/perpetrator, bystander/rescuer, etc. With her new studies of the realities on the ground, Lee Ann Fujii has shown that genocidaires should not be painted as wholly evil as this erases the reality of their behaviour. Appreciation of the reality of complex wrong/right-doing during conflict would help to bring the Court’s interpretation of the conflict into better alignment with the actions in the conflict. As Fujii has explored, ‘…even the most active killers – those who clearly fall under the category of “perpetrator” – were capable of acts of rescue when the circumstances allowed them to do so. Acts of rescue, to be sure, did not absolve or make up for their participation in mass murder. Yet, to overlook these acts of rescue would be to overlook the extent and form of rescue activities during … genocide’ (Fujii, 2014, p. 157-158). In this way, the legal binaries of Kohn’s described ‘epochal contest’ allow those in power to choose who it is politically advantageous to demonise through unrealistic assumptions about behaviour in conflicts.

Ignoring the complexities on the ground for the ease of fitting into the ‘one-size-fits-all’ legal framework will do little to aid the additional reconciliation efforts that are performed in addition to judicial routes (Rubli, 2012, p. 11). This bureaucratised method of peacebuilding through justice dehumanises those who are experiencing conflict by using metaphors like picking and choosing peacebuilding ‘tools’ with which to ‘[mix] paint’ (Goetschel and Hagmann, 2009, p. 62). These detached metaphors further patronise the locals’ failure to solve the complexities of the political situation. The political and emotional influence of the trial should not be neglected and more holistic approaches must be employed to better perform justice for victims on the ground – distant from the Court and yet directly influenced by its outcome. Thus, ‘[t]ransitional justice mechanisms have all too often been introduced without regard for the internal dynamics of the society for which they were intended, and thus are “abstract from lived realities”’ (Rubli, 2012, p. 11).

The Mbeki Report and the power of self-determination

The Mbeki Report (also known as the African Union High-Level Panel on Darfur or AUPD) was the result of the Peace and Security Council’s (PSC) decision to confront ‘issues of accountability and [combat] impunity…and reconciliation and healing…’ whilst simultaneously requesting a deferral from the UNSC (Mbeki, 2009, p.  205). Some have argued that the report was supposed to replace the need for the ICC’s intervention but this section will argue that the report clearly seeks justice and accountability from those guilty of crimes in Darfur; it simply requests that it be an African process so as to be part of a cathartic process of healing for Sudan.

As an influential politician, Thabo Mbeki’s comments have had a wide reach within the AU and those interested in the geopolitical shift towards ‘African Solutions for African problems’. The (physical) fight for self-determination in post-colonial years has been seen as an encouraged method of rebuilding oneself following the oppressive psychological damage of colonial rule (Fanon, 1963, p. 94). As such, the battle continues for autonomy within the humanitarian sphere:  the right to protect one’s neighbour. Mbeki writes that he believes ‘it is Africa’s crisis and, as such, Africa has a duty to help the people of Sudan to achieve a lasting solution’ (Mbeki, 2009, p. 206). In this way, the AU is establishing itself as a defender of human rights, determined not only to investigate the truth of the crimes committed, but also to ensure that those believed guilty will face a courtroom. As an ‘idiom in most African cultures [states,] you do not fold your hands and just look on when your neighbour’s house is on fire’ (Kiokio, 2003, p. 820). Mbeki’s report reads as a manifesto for the AU’s increased role in global governance, recognising the need for support from the international community whilst establishing itself as a respected party with a significant stake in the case. Therefore, understanding that ‘the task [of implementing their Recommendations] also requires commitment from, and action by, various actors and entities, especially the Government of Sudan and other Sudanese stakeholders, the neighbours of Sudan and the rest of the international community, including the United Nations’ (Mbeki, 2009, p. 206). 

Ignoring the potential for self-determination, or encouraging it only through conditionality, can be damaging to the independent stability of a post-conflict state, which in turn ignites development debates surrounding dependence (Brett, 2016, p. 3). Paradoxically, by removing autonomy from the victims, the West both highlights its fears of a ‘un-modern’ post-conflict state whilst also picturing post-conflict states as political ‘blank slates…[implying] that post-conflict societies represent a social and political vacuum’, fertile for transformation into liberal democracies (Rubli, 2012, p. 16). In reality, the AUPD has stated that this belief, and the paternalistic steps that often follow the assumption of apolitical post-conflict states, is dangerous to the future of an independent Sudan. They argue that, ‘Both the Sudanese actors and players in the international community should understand that what Sudan needs is strong and cohesive leadership collectives which enjoy the necessary confidence of the constituencies they lead, to enable them to ensure that these constituencies participate seriously as agents of change in the process of giving birth to a new Sudan’ (Mbeki, 2009, p.  210). 

In line with the principle of complementarity, Sudanese opposition politician Sadiq al-Mahdi has argued that a hybrid court (with both Sudanese and international judges) may provide the best solution for encouraging greater Darfurian consultation, and most importantly, may be the only logistical option that could physically put al-Bashir in the dock (The Economist, 2008). 

The Court and its ‘Mission Civilisatrice’ 

The history of geopolitical movements in the twentieth century have directly influenced how we determine success in justice processes today. Rubli states that ‘The dominant normative lens (to facilitate transitions to democracy) determined which kind of justice measures were considered as appropriate and why certain measures were recognised as the legitimate justice initiatives during a time of political change’ (Rubli, 2012, p.  5). The rhetoric of liberalism and what we determine as a ‘successful’ state is at the core of international justice discourse since the Court’s involvement is part of a larger political endeavour to ‘transition’ a ‘failing’ state into a liberal democracy (Sooka, 2006, p. 313). As Fletcher et al.’s empirical study argues, ‘if states are closer on the continuum of liberal democracies, the necessity for an intervention seems to be less immediate… This raises the question of whether universal principles can be enforced and whether that is even a desired goal’ (Fletcher et al, 2009, p. 217). This is despite the fact that, ‘[marketisation and democratisation are] often more destabilising and may even provoke a return to conflict [when believed to be, in of themselves, sources of peace]’ (Sriram, 2007, p. 579). 

In this way, the Western desire for cultural, political and moral supremacy over other states – through the judicial expansion of liberal market ‘human rights’ rhetoric – seeks in reality to limit the autonomy of more fragile states in a paternalistic fashion (Paris, 2002, p. 638). Therefore, in a palliative sense, the West manipulated its ‘White Man’s Burden’ of fighting for universal rights into a method of utilising justice systems to ‘resign’ from the ‘systematic economic abuses and the legacies of inequality and poverty,’ which lie at their door (Rubli, 2012, p. 15).

The roots of many conflicts within ex-colonial countries, including Sudan, are permeated with the injustices experienced due to colonial territorial or economic divisions (Mbeki, 2009, p. 207-208). One could argue that the hypocrisy of these impunities, which remain largely unknown and through which the disastrous consequences of self-interested censorship missions like Operation Legacy (Sato, 2017, p. 5) have been made visible, has contributed to outrage over the lack of non-African prosecution within the ICC (Thakur, 2016, p. 372). Although the ICC has restricted itself to crimes from 2002 onwards, it is not the first criminal justice strategy that has been manipulated by the international community so as to protect Big Interest states and ensure their cooperation with the globalisation vision. The legal strategies constructed by the international community to hide violence in the colonies exemplify the double standards that are implicit in the definitions of what a ‘war crime’ has come to mean in contemporary international criminal justice. It seems that the power of colonial nations, and their authority over the construction of the Geneva Conventions, the UN and global humanitarian norms, has allowed Britain and France to forge the laws of war to their benefit and to the detriment of their combatants. Utilising their position as leaders of the new humanitarian movement of the post-World War II international community, they have been able to manipulate the legal definitions that we still use today. Indeed, by: 

[d]escribing the situation with euphemisms like “civil unrest” and “events,” the governments in London and Paris attempted not only to cover up the true nature of the conflicts but also to criminalize their opponents and deny them any legitimation… Because the insurgents lacked the status of combatant, they could not assert a claim to the protection accorded by international humanitarian law. (Klose, 2011)

Violence was a common tool for imperialists in their approach to expansion, oppression and the civilising mission, and they manipulated legal boundaries to ensure their right to use force. During the decolonising period, their definitions were used to carefully curtail details of reprisals to demonise the ‘savage’ indigenous people who were painted as the truly violent ones; mass murder, genocide and eugenics programmes were redefined as benevolent policies of education or policing (Monbiot, 2005). Indeed:

[s]everal passages of the Geneva Convention drafts, such as the prohibition of “collective punishment,” gave the British Colonial Office especially big headaches since this and other prohibited measures were common and efficient instruments used by the colonial governments to squelch unrest. The burning down of entire villages in Malaya and the punitive bombardments in the Protectorate of Aden illustrated, in the eyes of the Colonial Office, the value of collective punishment measures, and the authorities fought resolutely to prevent such effective means from being taken away from the local security forces (Klose, 2011).

Equally, as Mamdani has argued, this moral supremacy of the West’s ‘civilised’ violence versus the ‘immoral’ reprisals of those in more unstable countries speaks volumes towards the political power of legal rhetoric and the implicit biases in the chosen definitions. Only through transparency and increased democratisation of global governance structures can sovereign equality be achieved in a system built to allow international justice to become a tool of manipulation for imperialists to avoid accountability. Additionally, ‘[o]ne should not forget that the ex-colonial powers – especially France – continued to play strong economic and military roles in their former colonies, making the introduction of accountability measures very difficult’ (Arthur, 2009, p.  342). Definitions for international crimes – and the legal parameters protecting Western strategies of war that remain indiscriminate against civilians on the ground – remain the purview of the states who see their use of violence as somehow more necessary and acceptable than that of less powerful states (Anghie, 2006, p. 744). In this way, ‘[t]he point of the distinction is to reserve universal condemnation for only one form of mass violence… but at the same time to treat both counter-insurgency and war between states as normal developments’ (Mamdani, 2010, p. 57).

Contemporarily, these definitions continue to allow the West to avoid accountability for their methods of violence (i.e. drone attacks, counter-insurgency and unauthorised interventions) which are legally determined as normal standards of the use of force in warfare, rather than considering these violent strategies as similar to other war crimes due to their indiscriminate nature (Maurer, 2013). In this context, the ICC’s influence has been to reinforce the definitions which provide immunity to the most historically powerful nations. As Thakur argues, ‘Self-evidently, only non-Western governments can be norm-violators; Western governments—Abu Ghraib, Guantánamo Bay etc. notwithstanding—can only be norm-setters and norm-enforcers’ (Thakur, 2016, p.  372). 

These legal frameworks also encourage the international community to view violence in more unstable regions as ‘backwards’ or ‘tribal’, as seen with the Rwandan genocide (Des Forges et al, 1999), versus the ‘modern’ and more technologically advanced weapons of the West which are supposedly seen as more morally robust. In the eyes of the Western powers, ‘[s]uch technological prowess holds the seductive promise of ‘war lite’ and ‘morality lite’ with respect to blood, treasure and conscience’ (Thakur, 2016p.  374). Yet this is a legal and rhetorical difference rather than a material one, and it is a double standard that is attracting the condemnation of many African nations who hope that ‘[soon] the discrepancy between the West’s universalistic rhetoric of principles and particularistic pursuit of interests is going to be increasingly unsustainable’ (Thakur, 2016, p. 371).

Conclusion

When the law is applied selectively, the result is not a rule of law, but a subordination of law to the dictates of power so flagrant that the outcome is more reminiscent of feudal privilege than of a bourgeois rule of law. – (Mamdani, 2010, p.  62)

In conclusion, the bureaucratic and technocratic preferences of the West in their peacebuilding strategies implicitly encourage a top-down and distant approach to justice which is at odds with the requirements of the justice processp.  prioritising the victims’ solace (Moffett, 2015p. 281). In this way, the most logistical, diplomatic, and least damaging option would be for the establishment of a hybrid court under the control of the AU. If the ICC continues its stalemate with the pro-sovereigntist contingency of the AU, al-Bashir will never face justice, which is to very few people’s benefit. As Stephen Lamony argues, ‘Omar al-Bashir’s fugitive status is more than just a political or legal issue, it is an affront to all the victims that have suffered, continue to suffer, and will suffer from his brutal reign over Sudan’ (Lamony, 2015).  In this way, the AU has not ignored the horrific crimes al-Bashir has been accused of in Darfur but rather has been at the forefront of the crisis despite being ignored by the UNSC. This is not to say the AU has presented the ultimate solution to the Darfurian crisis, but to ignore its involvement and the power it holds over its member states, is to be diplomatically ignorant of the considerable tensions involved when indicting a sitting President. As Mamdani has argued, ‘The decision as to who to target, and who not to, is inevitably a political decision’ (Mamdani, 2010p. 62). This point is especially prudent considering that al-Bashir’s case involves the indictment of a sitting head of state, rather than an already incarcerated leader.  Peace is sought by the AU and ‘While the AU has requested that the arrest warrant be suspended, it has not suggested that Bashir not face justice. Indeed, it even debated whether the AU could try him. This is not the sign of an Africa that is turning its back on justice. Rather, it indicates an Africa that is arguing with itself and the international community over how best to proceed (Mills, 2012p. 445). 

If the West provided genuine support for ensuring that the ICC enact justice without resistance from African nations, it could compel the UN to bring an end to some of the more glaring double standards that are currently protected by their legal and institutional structures. Currently, the ICC is subject to many of the ideological vulnerabilities and colonial continuities which have filtered down from the colonial history of the UN, therefore causing diplomatic tensions and preventing the effective operations of the Court. More importantly, al-Bashir’s victims are caught in the middle as international law is restricted by differing interpretations. As examined in this article, the colonial selectivity of international law procedures has a long history of protecting powerful nations (Anghie, 2006p.  741), and it is unlikely that the P5 nations will be willing to loosen their grip on these benefits. However, with the current trends in geopolitics indicating that the West is no longer in the honeymoon period of the post-Cold War victory years, it is thought that ‘[a]s relative power shifts away from the West, the ability of the latter to exempt themselves from the reach of global norms will lessen. They will have to accommodate to the new normal either by bringing their conduct within the operation of international normative instruments, or by accepting a softening of the latter’ (Thakur, 2016p. 376). 

As this article has explored, there is a political momentum within African nations which is seeking to deconstruct the liberal and neo-colonial biases and structures at the core of the international criminal justice system. As Anghie argues, ‘Rather than adopting the traditional view of sovereignty as an exclusively European product extended into a non-European world that was somehow, naturally, non-sovereign, we might see sovereignty doctrine as consisting in part of mechanisms of exclusion which expel the non-European society from the realm of sovereignty and power’ (Anghie, 2006, 741). It seems that non-Western states will no longer accept the double standards which inherently prejudice their experience with international law and political norms. 

The current impasse between the AU and the ICC is not a topic to be wholly demonised by the international community as many of the AU’s criticisms have been verified. In this way, double standards are further protected and P5 members are able to strategically protect or target those which best suit their interests through the power of the UNSC veto. The colonial structures of these procedures are concerningly visible in their influence despite efforts during the decolonisation period to exclude imperial influence. Greater international acknowledgement of the violence and war crimes caused by colonial powers during the decolonising period would also help to balance the scales of global justice, and perhaps open discussions regarding the structural harms of colonialism (Blanton et al, 2001, p. 475). The assumptions at the heart of the ICC, and the transitional justice industry more broadly, encourage paternalistic and neo-colonial policies which directly prevent victims from experiencing justice for their own sake, the transitional justice process only playing a small part of the broader peacebuilding effort. Although it is accepted that the judicial process is intentionally built alongside other reconciliatory approaches, it would be wise for the transitional justice industry to learn from the mistakes of the peacebuilding field in its apolitical-and-yet-political endeavour to spread liberal democracy via ‘impartial’ humanitarian vehicles. 

This article has sought to provide an initial study into the diplomatic implications and pervasive legacies of colonialism within the spheres of global justice and governance. Overall, it is clear that the processes of international justice are political, and that the legalistic preference of Western judicial procedures is largely unsuited for the holistic and contextual needs of post-conflict international justice (Rubli, 2012p.  11). In this way, the Court’s bureaucratised approach to the al-Bashir case has only aided its critics in highlighting its liberal and technocratic assumptions when it comes to international criminal justice: victims excluded, peace negotiations stymied, and the AU ignored. In its simplest form: whilst most agree that al-Bashir should face justice for his crimes in Darfur, the crux of the debate centres on what the judicial process should look like. ICC, AU Court, AU-Sudanese hybrid, or even an AU-ICC hybridp.  none of these present a universally accepted model. However, as a final recommendation, it could be suggested that a greater investigation into the diplomatic collaboration of the AU-UN’s hybrid peacekeeping mission (UNAMID) may indicate that perhaps an AU-ICC court could be the most logistically and theoretically successful option for al-Bashir’s prosecution.

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Torn between political interests and upholding legal responsibilities? A critical examination of African states’ frustrations with the International Criminal Court

By Zeinab Drabu

Zeinab Drabu is a recent graduate from the University of Leeds, where she achieved a First Class Honours in her BA degree in German and International Relations. Her academic and research interests include international politics, international law and international ethics.

The International Criminal Court is currently facing its most serious reputational crisis concerning its role and impact in relation to international criminal justice within the international arena. Nowhere is this crisis more profound than amongst African States that are both party to the International Criminal Court as well as the Constitutive Act of the African Union. Criticisms articulated by African states, including the labelling of the International Criminal Court as an ‘International Caucasian Court for the persecution and humiliation of people of colour, especially Africans’ (Al Jazeera, 2016) by the Gambian Information Minister Sheriff Bojang, are above all symbolic of the mounting frustrations that African states exhibit towards the Court. This essay will assess whether and to what extent such frustrations are justified in terms of their credibility and legitimacy. For this, the analysis will seek to determine whether these frustrations have been elicited due to the Court’s inability to fulfil its aims and objectives as outlined in the Rome Statute. Firstly, frustrations surrounding the Court’s alleged bias in terms of its selection of predominantly African cases will be reviewed. This essay will then critique frustrations regarding the International Criminal Court’s relationship to the United Nations Security Council, particularly through an examination of the case of the indictment of Sudanese President Omar Al-Bashir. As the ‘Court operates at a crossroads between law and politics’ as noted by scholars such as Arbour (2014, p.201), this essay will contend that existing frustrations articulated by African states towards the International Criminal Court are on the whole juridically unjustified, as they stand in opposition to structural limitations imposed by the Court’s jurisdiction as outlined in the Rome Statute. Furthermore, this essay will demonstrate that existing frustrations are principally politically motivated, with the purpose of delegitimising the Court to serve the political interests and objectives of African states inherent in the Court’s handled cases.

Is the International Criminal Court exclusively targeting Africa? 

In view of the submission of withdrawal notices from the International Criminal Court by the African states of Burundi, Gambia and South Africa in October 2016, despite eventual revocations in the cases of the latter two, scholars such as Werle and Vormbaum (2014, p.181) contend that the ‘Afro-centric focus of the International Criminal Court has created a distorted perception within the African continent about the intentions underlying the establishment of the Court’. The Court was initially founded to prosecute the most serious crimes facing the international community, including ‘the crime of genocide, war crimes and crimes against humanity’ (ICC, 2011, p.3), following the entry into force of the Rome Statute on the 1st July 2002. Objectively it is evident that all cases pursued to date have been directed towards African nationals. Specifically, submissions have included ‘those by individual governments in the cases of Uganda, the Democratic Republic of the Congo [DRC] and the Central African Republic [CAR], self-initiated interventions by the ICC chief prosecutor, Louis Moreno Ocampo in Kenya and Côte d’Ivoire and two UN Security Council referrals in Sudan and Libya’ (Murithi, 2012, p.4). Taking such observations into account, frustrations concerning the Court’s disproportionate focus on Africa are empirically justifiable. However, the first three situations outlined were self-referrals and therefore investigated at the request of the respective states themselves. In addition, crimes committed in all cases fell under the jurisdiction of the International Criminal Court.

Currently there are 124 State Parties to the Rome Statute of the International Criminal Court, of which 34 are African. Hence, quantitatively, Africa constitutes the most heavily represented region in the International Criminal Court, which not only recognises its permanency and legitimacy, but also accepts and emulates its jurisdiction. In addition, the International Criminal Court benefits extensively from the expertise of African professionals, with numerous Africans occupying high-level positions in all its organs. This includes Ms. Fatou Bensouda of the Gambia, who was instated as the Chief Prosecutor of the Court in 2012. In light of these structural and demographic contributions, African recognition of the legitimacy and authority of the International Criminal Court as an institution is significant.

The contributions of African states during the establishment of the International Criminal Court are also imperative to consider when assessing the extent to which their frustrations with the Court’s allegedly selective approach are justified. Indeed, whilst numerous African states were present for the drafting of the Rome Statute, the founding treaty of the International Criminal Court at the Rome Conference in July 1998, the clear majority voted in favour of adopting the Rome Statute and establishing the International Criminal Court. Such extensive support suggests that the objectives and purpose of the Court at the time of its establishment aligned with the interests of the majority of African states. In addition, on the 2nd February 1999, Senegal ratified the Rome Statute of the International Criminal Court, becoming the first State Party to ratify the Statute (United Nations, 2014), encapsulating and reaffirming African support for the Court. Furthermore, it is important to note that current efforts by the International Criminal Court to expand its international outreach are actively being pursued in terms of its prosecution of mass atrocity crimes. As well as the recent initiation of a proprio motu investigation into crimes against humanity and war crimes committed in Georgia in 2008, a Report on Preliminary Examination Activities (2016, p.6) issued by the Chief Prosecutor outlines ‘preliminary examinations currently underway in a number of states across different continents including Afghanistan, Colombia, Guinea, Iraq/UK, Nigeria, Palestine, Ukraine’.

Nevertheless, dismissals to date by the International Criminal Court of cases outside Africa have triggered frustrations from African states that the ‘International Criminal Court is practicing a form of “selective justice” which purposely avoids the prosecution of diplomatically, economically, financially and politically strong countries’ (Mbaku, 2014, p.10). A key example highlighted by Dugard (2013, p.563) which illustrates this is the Prosecutor’s failure to investigate alleged war crimes committed by Israel and Hamas during Operation Cast Lead in 2008. Whilst Dugard (2013, pp.567-569) emphasises the Prosecutor’s weakness in confronting Israel and its allies such as the United States as a key causal factor in the case’s dismissal, what is most interesting to note is the Prosecutor’s decision to investigate crimes committed in Mali instead, where the evidence is less clear. Whilst this example bolsters the credibility of frustrations regarding the International Criminal Court’s active preference in prosecuting African cases, scholars such as Saltzman (2013, p.164) counter this contention. Saltzman contends that at the time of the offensive, although the Palestinian National Authority had recognised the International Criminal Court’s jurisdiction, it was not a party to the Rome Statute and therefore not under the Court’s jurisdiction. Thus, although the structural limitations of the Rome Statute can be universally applied to different cases in assessing whether African state frustrations are justified, this example highlights the necessity to equally explore case-specific political dynamics in conjunction with the subject matter of the case. It further illustrates an instance where structural limitations of the International Criminal Court have delegitimised rhetoric regarding the selective targeting of African states by the International Criminal Court.

The Paradox of state co-operation: an analysis of the case of Omar Al-Bashir

On the 4th March 2009, the International Criminal Court issued a warrant of arrest for President Omar Al-Bashir of Sudan on charges including genocide, crimes against humanity, and war crimes. As these are all crimes that fall within the jurisdiction of the Court in accordance with the Rome Statute, the case possesses legitimate prerequisites for investigation. As well as being the first case in which a sitting head of State has been issued with an arrest warrant, scholars such as Mills (2012, p.407) acknowledge that it is also the first in which a ‘case before the ICC has forced states to confront their multiple interests and responsibilities in light of global power dynamics’. This is due to the fact that African states are required to overcome the conflict between their legal obligations under the Rome Statute and their political commitments as member states of the African Union in determining their involvement and approach respective to the case of the indictment of Al-Bashir. 

Frustrations concerning the alleged ‘political abuse of universal jurisdiction against African officials by Western states’ (Van der Wilt, 2011, p.1044) appear to oppose the African Union’s policy asserting that ‘heads of state enjoy diplomatic immunity’ when confronted with arrest warrants (Akande and Shah, 2010, p.815).  The case of the South African government’s failure to arrest Al-Bashir during his visit to an African Union summit in Johannesburg in 2015 highlights the discrepancies between Article 27 and Article 98 (1) of the Rome Statute in relation to diplomatic immunity. It further demonstrates South Africa’s voluntary violations of its legal responsibilities as outlined by the Rome Statute in favour of complying with the African Union’s policy of non-cooperation, which provides support for the contention that African State frustrations towards the International Criminal Court’s jurisdiction are not justified. 

As illustrated by Article 27 of the Rome Statute, there is an ‘absolute prohibition on immunities for crimes falling within the jurisdiction of the ICC at the international level’ (Bekou and Shah, 2006, p.513). South Africa is also a State Party to the Rome Statute and therefore falls under the jurisdiction of the International Criminal Court. Hence some scholars argue that the removal of diplomatic immunity for perpetrators of mass atrocities is also mandatory at the national level. From this, it is evident that there is a comprehensive legal basis obligating the South African government to arrest Al-Bashir. Yet upon examination of Article 98 (1) of the Rome Statute, it can be argued that the removal of diplomatic immunity from a head of State such as Al-Bashir violates other key principles of international law, including territorial sovereignty and non-interference, producing a ‘scenario of forced regime change by one country on another’ in the words of South Africa’s Masutha (Feldman, 2016). Article 98 (1) states that

‘the Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity’ (International Criminal Court, 2011, p.69).  

That said, according to scholars such as Van der Vyver (2015, p.574), ‘the obligation of non-party states to execute the arrest warrant of President Al Bashir should rest with Security Council, acting under its Chapter VII powers, which has instructed all states and non-party-states included’. From this perspective, it can be contended that the ultimate authority and legitimacy of State Parties legal obligations take precedence, delegitimising African state frustrations’ regarding the diplomatic immunity of Heads of State such as Al-Bashir.  

The obligations of non-state party co-operation within the Rome Statute further highlight weaknesses regarding African state frustrations concerning the jurisdiction of the International Criminal Court in its relationship with the United Nations Security Council. On one hand, contentions regarding the obligations of non-state parties, specifically in situations where they have been referred to by the United Nations Security Council to co-operate with the Court, have often been manipulated by African states, as in the case of Al-Bashir, to justify and legitimise such frustrations. Firstly, Bekou and Shah (2006, p.541) assert that as ‘Sudan is not a State Party to the Rome Statute, there is no obligation for the state to fulfil requests for cooperation from the Court’. However, due to the referral mechanism used in the case to the Prosecutor of the International Criminal Court through U.N. Security Council Resolution 1593 under Chapter VII of the U.N. Charter, scholars such as Schabas (2011, p.418) draw attention to Article 12 of the Rome Statute which ‘opens up the possibility for the Court to exercise jurisdiction if a matter is referred to it by the Security Council’. This obligates Sudan as a non-state party to cooperate with the Court by placing it under the same jurisdictional obligations as existing State Parties of the International Criminal Court. However, it can be contended that a closer examination of the duties entailed in the resolution reveal a degree of ambiguity. As stated in Paragraph 2 of the resolution, ‘Darfur shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution’ (United Nations Security Council, 2005). Additionally, the resolution ‘urges all States and concerned regional and other international organizations to cooperate fully’ (United Nations Security Council, 2005). 

Taking this into account, it can be argued that the wording of the resolution merely encourages states to cooperate with the Court but does not necessarily compel them to do so. This exhibits weakness in the Court’s power of enforcement of state co-operation for the successful resolution of cases. However, when considering the votes in favour of the resolution by African states that were members of the Security Council at the time, it can be argued that the majority were supportive of the resolution. Both Benin and the United Republic of Tanzania voted in favour of the resolution, with Algeria abstaining. Although Algeria’s abstention stands contrary to African states’ support for the resolution, it appears principally politically driven, favouring alternative prosecution options to be determined by the African Union. In contrast, Benin refers to the ‘Ezulwini Consensus of 8 March 2005 in which the AU recognizes the right of the UNSC to protect a population when its government cannot or will not do so’ (Mutton, 2015) in its defence of the International Criminal Court’s decision following the U.N. Security Council resolution vote. Benin’s stance not only highlights the legal obligation of African states’ to act in accordance with the U.N. Security Council in this case but also affirms African states’ collective recognition of the International Criminal Court’s jurisdiction over Sudan. 

At the time that the arrest warrant against Al-Bashir was issued in Sudan, African states requested for the arrest warrant against Al-Bashir to be deferred. According to scholars such as Oette (2010, p.348) this was due to concerns regarding the arrest warrant’s impact on the peace process being mediated by the African Union and on Sudan’s political stability in accordance with Article 16 of the Rome Statute. Yet the rejection of the deferral request by the United Nations Security Council triggered notable frustrations from African states, who turned to label the International Court as a ‘neo-colonial Court’ (Wegner, 2015, p.297) used as a tool to impose Western imperialism, as well as an institution that practices double standards regarding its relationship with the United Nations Security Council.  

Although examples such as the adoption of Security Council Resolution 1422 following Article 16 of the Rome Statute to grant immunity for U.S. soldiers in Bosnia and Herzegovina (Heyder, 2006, p.657) legitimate such frustrations, when examining the conflict between the pursuit of retributive justice in the attainment of peace in the Court’s prosecution of Al-Bashir juxtaposed with the structural limitations of the Court, such frustrations are not entirely justified. As Bensouda has pointed out, the ‘ICC is a judicial institution and cannot take into consideration the interests of peace’ (Buchanan, 2015). Thus, the United Nations Security Council’s decision to avoid accommodating political considerations in its decision to reject the deferral request is arguably valid in order to avoid the politicisation of justice, thereby safeguarding the legitimacy of the Court. However, as the case remains deadlocked at the Pre-Trial stage, although African State frustrations’ in general may have been unjustified, their implications on State cooperation appear to have had a profound, delegitimising effect on achieving progress within the case.

To conclude, over the course of this essay, the justification of various African states’ frustrations regarding the functionality and objectives of the International Criminal Court, in addition to frustrations that have arisen as a result of the Court’s interaction with international political organisations including the United Nations Security Council and the African Union, have been analysed. Whilst the first section does, to an extent, concur with frustrations concerning the International Criminal Court’s exclusive selection of cases within Africa, it also highlights the progress of the Court, which has begun to expand preliminary examinations and investigations into other continents. The second section of the essay focuses on the case of Omar Al-Bashir. Despite State Parties’ entailed obligations within the Rome Statute, this section illustrates that frustrations regarding sovereign immunity and universal jurisdiction are prevalent. This is due to African states’ conflicted and often politicised interpretations of these concepts, despite on the whole being juridically unjustified, which has provided impetus to a lack of State Party cooperation.

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African states’ frustrations with the ICC: justifiable or misdirected and overstated?

By Oliver Cotton

Oliver Cotton is a law conversion course student. He graduated with a BA degree in International Relations from the University of Leeds in 2017, with a particular interest in terrorism, R2P and humanitarian law. 

Despite the significant role that African states have had in both the creation of the ICC and its ongoing support, African nations and as a collective, the African Union (AU) have become increasingly frustrated with the International Criminal Court (ICC). This essay, primarily focusing on the ICC’s Sudan investigation, posits that African states have two core complaints and that neither is justified. The first complaint is that the ICC undermines African peace and violates the immunity of heads of state, particularly those not party to the ICC’s founding treaty, the Rome Statute, through continuing to investigate African conflicts when the African Union requests deferral. For instance, several African states’ have argued that the ICC hampers peace processes by compromising leaders’ immunity through indictment. It will be asserted, however, that this frustration is unjustified in two ways. Firstly, the structural inequalities of the United Nations Security Council (UNSC) would be a more appropriate target for criticism, because African states were primarily concerned with deferral in the case of Darfur, which was a UNSC failing. Secondly, the AU’s request for deferrals of ICC investigations on the grounds of stability are unjustified because their premises are ill-defined and erroneous. The second core complaint from African states is that the Court unfairly targets and discriminates against Africans. However, despite the disproportionate number of investigations within Africa, the fact that many African states trust the ICC’s judgement brings this claim into question.  

The AU’s frustration with the UNSC’s role and deferral process

A principal frustration that some African states and the AU have directed towards the ICC, is their vexation towards the Security Council’s and, concomitantly, the ICC’s dismissal of their demands for a deferral of African investigations for a year long period, in line with Article 16 of the Rome Statute (1998). The effect of which has been the perceived marginalisation and lack of authority that African states consider themselves to have over the justice proceedings of their own affairs and crimes, despite their influence in the formation of the Court (Mills, 2012). This frustration should be directed towards the role of the Security Council and the structural inequalities and power imbalances that it represents, underscored by all five of the permanent UNSC members emanating from outside of Africa. Beyond their misplaced frustration with the role of the ICC instead of that of the UNSC, this essay asserts that the necessity of deferrals, notably in Sudan, was not adequately established. At its 2009 Summit in Sirte, the AU expressed and posited two principal reasons for its non-cooperation stance towards the ICC in reaction to the Security Council’s decision not to defer the Sudan investigation that it referred to the Court in 2005 (Jalloh et al, 2011; Ssenyonjo, 2013). They are: the belief that incumbent heads of state not party to the Rome Statute are immune from the Court’s jurisdiction under Article 98(1) (Rome Statute, 1998); and the perspective that prosecutions during ongoing conflicts hinder the achievement of peace. In terms of the former, the AU argued that the ICC’s jurisdiction should not extend to states that have not ratified the Rome Statute, in line with the sovereign principle of non-intervention (Akande and Shah, 2011). This argument is premised on the logic that in international law, ‘generally only parties to a treaty are bound by its provision’ (Sirleaf, 2016, p.751). There is significant contestation regarding the complexity of whether senior members of governments should be immune from ICC prosecution if they have not consented to the Court’s jurisdiction. However, given that the Security Council referred the case to the ICC under Resolution 1593 (UNSC, 2005) and that Sudan is a member of the UN and thus subject to the UN Charter, it is posited that Sudan’s immunity has been waived in a similar way to those of state parties, pursuant to Article 27 (Rome Statute, 1998), thereby legitimising the indictment (Du Plessis, 2010; Ciampi, 2008).  

It is also important to stress that African states are not just frustrated with the UNSC’s and the Court’s role in by-passing the lack of jurisdiction that the ICC has over non-state parties, but also the more general indictment of incumbent heads of state. African leaders, party to the Rome Statute, for instance Malawi’s president, Bingu wa Mutharika expressed that, ‘to subject a sovereign head of state to a warrant of arrest is undermining African solidarity’ (Mills, 2012, p.436). African states’ criticism of the indictment of incumbent leaders, whether party or not to the ICC, is premised on the crippling effects that arresting a head of state has upon the credibility of the states themselves. However, implicit in the opposition of African countries to the ending of the impunity that leaders enjoy is also the fear amongst heads of state who have committed mass atrocities that ‘their number might be next’ (Mills, 2012, p.430). This is exemplified by the AU’s formation of the Malabo regional court in 2014 and its incorporation of an immunities provision, which states that ‘no charges shall be commenced or continued before the Court against any serving African Union Head of State or Government’ (Amnesty International, 2016). This veiled effort to further embed the impunity of African leaders is unjustifiable and starkly inconsistent with the ICC’s principal aim to eradicate the immunity of all individuals under its jurisdiction, set out in the Rome Statute (Sirleaf, 2016). 

The principal reasoning expounded by the AU for the deferral of African cases is that the arrest of officials or even leaders of African governments during conflict situations is detrimental to the brokering of peace, which African governments argue should be the primary concern of the international community. The AU expressed that its objection to the prosecution of Sudanese leader, Omar al-Bashir and other officials lay in the timing of Bashir’s indictment as opposed to the case itself. Indeed, in line with the AU’s opposition to external interference and desire for greater autonomy, the regional institution discussed whether, instead of the ICC, it could alternatively prosecute Bashir, implying that African states are willing to prosecute war criminals themselves (Mills, 2012). The organisation nonetheless called for the arrest of Bashir to be deferred in the interest of establishing peace in Sudan. It cited that the investigation could ‘seriously undermine the ongoing efforts aimed at facilitating the early resolution of the conflict in Darfur and the promotion of long-lasting peace and reconciliation’ (AU, 2008, p.2). Support for a deferral in order to benefit the Sudanese peace efforts extended beyond African states. Russia, for instance stressed its opposition to the ICC’s interference in Sudan, instead emphasising the importance of Sudan investigating its own crimes and the ICC acting as a court of last resort, in line with the principle of complementarity (UNSC, 2008). 

The elevation of peace above judicial action in order to end immunity, and the perception of irreconcilability between them are popular views among academics. It is contended that the ICC’s involvement acts as an obstacle to establishing peace (Rothe and Collins, 2013; Kastner, 2007) on the basis that its indictments have incentivised violence in: Sudan, Colombia and Uganda (Sirleaf, 2016; Riveros, 2009; Belloni, 2006). For instance, in Uganda, the ICC’s indictment of Joseph Kony was conceptualised as leading to the cessation of the Juba peace negotiations (Rothe and Collins, 2013). Likewise, in Sudan, it is noted that the arrest warrant for Bashir plausibly reinforced the rebels’ cause, in turn, resulting in the Justice and Equality Movement eliminating the possibility of negotiations (Simons et al, 2008). Despite the relative credibility of this argument in theory, in practice, there was little tangible evidence to validate the necessity of a deferral (Oette, 2010). It is important to stress that the legitimacy of a deferral following a UNSC referral of a situation to the ICC is dependent upon a change in the circumstances of a case. That is, from one that has already been considered to warrant ‘effective prosecution by the ICC into one in which the Court’s exercise of jurisdiction threatens the peace and security of the world’ (Ciampi, 2008, p.891). The Sudan situation did not merit a deferral as the AU failed to highlight any tangible change in circumstances that could plausibly justify the postponement of the ICC’s investigation in Darfur. Equally, there was no clear evidence that the ICC’s involvement obstructed peace processes or that peace would be more likely to prosper in the case of a deferral, undermining the AU’s frustration. Indeed, the Darfur conflict has persisted since 2003, highlighting the opportunity that Sudan’s government has had to foster peace and to prevent the direct involvement of the ICC through the prosecution of its own offenders, under the principle of complementarity (Jalloh et al, 2011; Fritz, 2012). Yet, it has failed to do so, illustrated by the failure of the 2006 Darfur Peace Agreement (Oette, 2010) and the unstable, violent conditions prior to the ICC indictment, underscored by the eruption of conflict in Omdurman and Abyei in 2008 (HRW, 2008). The failure of Sudan’s domestic proceedings, or more fittingly, its lack of willingness to indict its own officials, justifies the need for the ICC’s external involvement (Jalloh et al, 2011). 

The ICC’s credibility has been weakened by the lack of support from the Security Council and African states in arresting Bashir. Nonetheless, as has been argued, in the absence of a justifiable explanation for a deferral of the Sudan case, the ICC’s continued investigation was warranted and prevented the Court from setting a precedent of subordinating impunity in favour of political expediency (Oette, 2010). Furthermore, in contrast to the argument that peace should be prioritised above the prosecutorial duties of the ICC, this essay elucidates that alternatively, peace and justice are inseparable goals. As opposed to facilitating the establishment of peace, deferring cases against heads of state in the absence of exceptional circumstances would have the perverse effect of encouraging leaders to sustain conflict in order to delay their prosecution indefinitely (Oette, 2010). 

The perception of the ICC as a Western tool of African oppression 

African leaders and academics alike have cited the ICC as a tool of Western oppression that selectively and unfairly discriminates against African nations, particularly in the wake of Bashir’s 2008 indictment. Indeed, the African scholar Eberechi (2011) stressed that the ‘ICC is rapidly turning into a Western court to try African crimes against humanity’ (p.55). Rwandan president, Paul Kagame even stressed that the ICC’s unfair targeting of Africans has colonialist and racist overtones (Steinberg, 2016; Sudan Tribune, 2009). The extent of this frustration is encapsulated by the African Union passing a resolution in 2008 to appeal to the European community to halt the indictment of Africans (Mills, 2012). The pinnacle of this frustration and subsequent opposition to the ICC’s operational functioning by African states came with South Africa’s, the Gambia’s and Burundi’s announcement of their plans to withdraw from the Court (Keppler, 2017). Although the AU has consistently found issue with the Court’s work, its endorsement of the withdrawal of African states collectively from the ICC at the 2017 AU summit signaled the culmination of the continent’s frustrations with universal jurisdiction and the role of the ICC (Jalloh et al, 2011; Maasho, 2017). This has even prompted commentators to question whether such action signals the end of the ICC (Allen, 2016; Cronin-Furman and Schwartz, 2016). This is grounded in the logic that international institutions, such as the League of Nations have historically become redundant and perished once members have flouted their jurisdictions and withdrawn their membership (Murithi, 2012). 

Both Gambia’s and South Africa’s decision to withdraw from the Court have since been revoked, however, it is clear that the frustration amongst African governments regarding its perceived biased targeting has damaged the ICC’s credibility. This is particularly apparent, given that African membership and support for both the ICC’s founding and ongoing execution have been integral to its relative success as an institution to date. Nevertheless, upon analysis, the perspective that such frustration could beckon the ICC’s demise is thoroughly futile and simplistic. It obscures the disparity and disagreement amongst African states regarding their support for the ICC. For instance, the majority of African states either opposed the decision by Gambia, South Africa and Burundi to declare their withdrawal from the ICC or reaffirmed their support for the Court (Momoh, 2017; AU Summit, 2017). Thus, the AU’s declaration of non-cooperation and withdrawal from the ICC did not represent the majority view.

The ICC’s selectivity and Western bias is supported by nine out of ten of the situations under investigation by the Court residing on the African continent (ICC, 2017a). Nonetheless, the African frustration regarding the perceived oppression of the ICC grossly misrepresents the reality. Although Western, powerful states are more capable of averting the Court’s jurisdiction and justice, the ICC is far from a Western institution, represented by the Gambian nationality of its incumbent prosecutor, Fatou Bensouda (Smith, 2012). Furthermore, it is clear that this perceived Western oppression of Africans masks the accountability, autonomy and transparency inherent in the ICC (Du Plessis, 2010). The frustration is additionally flawed, given that far from unfairly targeting the continent, African states have, in fact, requested the ICC’s investigation into their own affairs, confirming that the ICC purely acts in the interests of African victims. This is signified by self-referrals marking five out of the nine African situations under investigation (ICC, 2017a). The fact that the Security Council has only referred two out of these nine cases to the ICC brings into question Mamdani’s (2009) narrative of the ICC as a tool of the West. The imbalance in the Court’s prosecutions and investigations into African situations is predominantly explained by factors outside of its control and its limited jurisdiction, marked by neither America, China, nor Russia being party to the ICC Statute (ICC, 2017b). Notably, in the absence of a Security Council referral, the ICC can solely prosecute individuals from its state parties via self-referrals or the proprio motu capabilities of the ICC Prosecutor. The Court is thereby heavily dependent upon state support and power politics. Nonetheless, the frustration of African states is further undermined by the ICC’s evident willingness and intent to prosecute the most heinous war crimes wherever they occur when the Court has both the jurisdiction and the authority to do so (Jalloh, 2010). This is evidenced by five of the ten situations under preliminary investigation coming from outside of Africa, notably, Bensouda’s reopening of the case against British nationals in Iraq, previously closed by her predecessor, Ocampo in 2006 (ICC, 2017c). The higher prevalence of conflict and, concurrently, war crimes, coupled with Africa representing the region with the most signatory states to the Rome Statute, further justifies the disproportionate number of African cases investigated by the ICC (Jalloh et al, 2011; Brock-Utne, 2001). 

Conclusion 

In examining the justifiability of African states’ frustrations with the ICC, this essay has evaluated two overarching dissatisfactions which have impaired the relationship between the ICC and the African Union. It has concluded that neither frustration, nor the broader discontent that African governments have directed towards the ICC are justifiable. The AU’s frustration regarding the overlooking of its appeal for the deferral of African cases under ICC investigation should be re-directed towards the role of the Security Council and its embodiment of structural inequalities. African governments’ vexation towards the ICC for pursuing cases despite AU opposition is additionally unwarranted, premised on two shortcomings. They are: The African Union’s failure to expound the necessity of deferrals in the interest of peace; and some African states’ incompatible and flawed belief that incumbent heads of state should enjoy impunity, given that the ICC was definitively set up to end the immunity of all individuals under its jurisdiction and remit. African states’ criticism of the Court as a Western tool that is biased against and seeks to oppress Africans is an equally misplaced frustration. For, the ICC’s sizeable jurisdiction within Africa, coupled with the greater willingness of African states to self-refer cases justifies the disproportionate number of prosecutions and investigations on the continent. Nevertheless, going forward, it is important that the ICC builds upon and translates some of its five preliminary examinations from situations outside of Africa into fully fledged investigations. Pursuing cases beyond Africa more diligently and purposefully would advance the ICC’s inherent goals of ending the immunity of war criminals and protecting victims globally, whilst simultaneously acting to thwart African states’ increasing opposition towards the Court. In a similar vein, African governments can alleviate their frustrations by increasingly adhering to the ICC’s role as a court of last resort and its principle of complementarity by emboldening their domestic judicial systems and, concurrently, progressively prosecuting their own crimes. 

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