Has Kenya Destroyed the ICC?
The body blows dealt by Nairobi have human rights groups questioning whether
the court can -- or should -- prosecute atrocities in South Sudan and other
African states.
BY MICHELA WRONG JULY 15, 2014
When the supporters of Uhuru Kenyatta and William Ruto began systematically
attacking the International Criminal Court (ICC) as a neo-colonialist
institution biased against Africans in the run-up to Kenya's 2013 election,
their prime concern was domestic: to ensure their champions escaped
prosecution at The Hague. A publicity campaign that made clever use of
social media was transformed into government policy once the two men were
inaugurated president and deputy president, respectively. It then acquired
diplomatic wings, with envoys from Nairobi crisscrossing the continent to
drum up support, culminating with an extraordinary African Union summit last
October at which it was agreed that African heads of state would no longer
face ICC prosecution during terms in office.
So effective has the anti-ICC campaign proved that it is now having
repercussions its originators probably never foresaw: South Sudan is likely
to be just the first in a series of new African conflict zones where human
rights groups and civil society organizations find themselves nonplussed,
unsure what to advocate in light of the body blows dealt the ICC.
"The ICC backlash has created a major dilemma for us, no doubt about it,"
acknowledged the head of one human rights organization I spoke to, who asked
not to be named. "Deciding the appropriate course of action has become a
very difficult question."
Their quandary, however, is no philosophical abstraction -- the privilege of
Western-funded NGOs with headquarters in Washington and Brussels. Every
journalist is familiar with the experience of returning to the scene of an
atrocity and interviewing a cowed survivor who quietly mentions that, in the
street, they regularly pass men who raped a daughter, killed a father. If
the ICC no longer holds out even the slim hope of eventual retribution for
those who funded and armed such thugs, what alternatives exist?
***
In many ways, the series of abuses committed in South Sudan after fighting
broke out in mid-December would be well suited for referral to the ICC,
which currently can prosecute war crimes, crimes against humanity, and
genocide. First in Juba and then in dusty towns like Bor, Bentiu, and
Malakal, opposing forces loyal to President Salva Kiir and his former
deputy, Riek Machar, carried out tit-for-tat massacres and gang rapes, with
atrocities targeted along ethnic lines. Victims were shot in hospital beds,
outside churches, and within sight of United Nations compounds.
For human rights activists, the sheer brutality of the violence, in a region
scarred by 22 years of civil war between Khartoum and southern rebels,
confirms a long-voiced argument that preventing fresh abuses means ending
impunity. It is vital, many argue, to avoid the example set by Sudan's
Comprehensive Peace Agreement, which gave birth to Africa's newest state in
2011 while largely sidestepping the issue of accountability for past crimes.
"We've had 10,000 dead in less than three months. It's been very fast, very
aggressive, and the massacres have been ethnically targeted because that's
the way the leadership presented it," says Wani Mathias Jumi,
secretary-general of the South Sudan Law Society. "In the past there was no
accountability at all, and that has been carried forward. If this country is
to exist anywhere but on paper, we have to see redress this time."
South Sudan possesses other characteristics that make it suitable for ICC
referral. The three-year-old country's judicial system is still in embryonic
form. No legal provision for crimes against humanity exists, and legal aid
and witness protection programs have yet to be established. Judges,
prosecutors, investigators, and clerks are in short supply and were often
trained in the north, and so are accustomed to legal documents written in
Arabic and the workings of sharia law. In South Sudan, where most
inhabitants are either Christian or animist, the official language is
English and the legal system is based on common law.
"Even before the latest conflict, South Sudan was struggling to cope with
prosecuting ordinary crimes," says Amnesty International's Elizabeth Ashamu
Deng. "It's clear that the normal justice system would not be able to deal
with this latest challenge without significant external input." Daniel
Bekele, the director of the Africa division at Human Rights Watch, describes
South Sudan's judiciary as "one of the weakest in the region," adding, "In a
new country, that's not surprising."
Always envisaged as a "court of last resort," the ICC was set up in 1998
with precisely such circumstances in mind, offering justice to people in
states too fractured to deliver it themselves. South Sudan may not be a
signatory to the Rome Statute that established the ICC (neither, of course,
is the United States), but the U.N. Security Council can refer a situation
to the ICC, thereby establishing jurisdiction.
Yet in spite of South Sudan's apparently meeting many ICC criteria, leading
human rights and policy advocacy groups are skirting calls for the court's
involvement. Human Rights Watch says it is still assessing the situation.
The International Crisis Group is calling instead for a tribunal on the
lines of that staged in Sierra Leone after its civil war. Amnesty
International, for its part, says it is waiting on the final recommendations
of the Commission of Inquiry on South Sudan, set up by the African Union.
This wariness is rooted in recent, scarring experience. Shocked human rights
groups are still digesting the African Union's decision to rally behind
Kenyatta and Ruto, accused by the ICC of organizing the violence that
claimed more than 1,000 lives in the wake of Kenya's 2007 elections and
nearly tore the country apart.
The African Union's hostile stance successfully branded the ICC across the
continent as a racist institution, fixated with prosecuting African leaders.
The African Union's hostile stance successfully branded the ICC across the
continent as a racist institution, fixated with prosecuting African leaders.
"The ICC has, unfortunately, become a toxic brand in much of Africa," says
John Ryle, of the Rift Valley Institute think tank. "This is due to the
ineptitude of its former chief prosecutor, Luis Moreno Ocampo, and to the
skillful political maneuverings of a number of ICC indictees, who have
managed to represent the court as an instrument of Western intervention in
the affairs of sovereign nations. The vulnerability of the ICC to this
backlash has been a blow for African civil society activists who seek
justice and accountability from their leaders."
Indeed, aware that three of the regional states now attempting to mediate a
peace deal between Kiir and Machar -- Sudan proper (where President Omar
al-Bashir himself faces ICC prosecution), Kenya, and Uganda -- have been
particularly vocal in their hostility toward the ICC, many human rights
groups are seeking cover behind the African Union's commission of inquiry,
which is seen as a classic "African solution to an African problem." Led by
former Nigerian President Olusegun Obasanjo and launched in March, the
commission includes Ugandan academic Mahmood Mamdani, who has made his
impatience with the ICC clear, arguing that a fixation with delivering pure
justice can clash with the political accommodations necessary for peace.
Influenced by South Africa's post-apartheid experience, the commission's
members see reconciliation as their overriding priority. It is already
running months behind schedule, but its final report, due in September, is
expected to reiterate initial support for a "hybrid court" as the most
appropriate way of delivering justice to South Sudan.
Hybrid, or "ad hoc," courts usually involve a mix of domestic judges and
international magistrates, prosecutors, and investigators flown in to
bolster a weak local legal system. The aim would clearly be to deliver a
form of justice that would be both credible and recognizably local.
But many in the human rights sector see the championing of the hybrid-court
model as deeply ironic -- history turning full circle. Ad hoc courts of
various kinds were experimented with in Africa during the 1990s as reactions
to abuses committed in Sierra Leone, Rwanda, and, more recently, Chad. The
ICC formula came to be seen as far preferable as a result.
"It seems we've gone right back to the 1990s," says Casie Copeland, an
analyst with the International Crisis Group. "The problem with the ad hoc
courts was that they were tremendously expensive and that cash" -- usually
provided by the United States, European Union, or United Kingdom -- "just
isn't on the table now."
"Decisions to appoint ad hoc courts were often highly political, whereas
with the ICC system everyone knew they were dealing with international
treaty bodies," she adds. It can sometimes prove impossible to set up a
hybrid court in the country where the atrocities were committed, leaving
proceedings looking just as remote to the local population as those in The
Hague. Another problem with hybrid courts has proved to be the often-tense
relationships that develop between internationally funded employees and
local staff working in cash-strapped, demoralized courts -- tensions that
undermined the ambition to build up a legacy of skills, resources, and legal
expertise.
"The hybrid-court approach might be one useful model, but it is no panacea
for all situations," warns Human Rights Watch's Bekele. "The relevance of a
hybrid-court model needs to be assessed on a case-by-case basis."
Wary of being associated with another high-profile ICC debacle -- one many
observers predict could effectively spell the end of the court -- human
rights workers say the ball on South Sudan is now in the African Union's
court. But they privately express concerns about the commission of inquiry's
scarce resources and the modest amount of time spent on the ground. "The
African Union really needs to step up to the plate on this and demonstrate
it can push for accountability," said one activist who wished to remain
anonymous.
***
History may well come to see Kenya as the place where an idealistic -- but
perhaps naive -- drive for universal justice was checked by the realities of
entrenched elite power. The notion that sitting heads of state or popular
ethnic champions would meekly allow themselves to be prosecuted seems
extraordinarily starry-eyed now. But that realization still leaves
unanswered the practical question of what is to be done when fresh conflicts
break out and abuses are committed in traumatized African states that lack
either infrastructure or political will to deliver accountability. This
question is immediately pressing in South Sudan, as well as the Central
African Republic, but will inevitably arise in other parts of the continent
before too long.
Expect years of debate. "The end goal is that there should be justice," says
Copeland. "If there's a way of achieving that without involving the ICC,
then let's do it. But we're going to see plenty of efforts to find ways of
working around the ICC that will be confronted with the same facts that
motivated the establishment of the ICC in the first place."
The author is a trustee of Human Rights Watch's Africa Division, serving in
an independent, advisory capacity.
Thé Mulindwas Communication Group
"With Yoweri Museveni, Ssabassajja and Dr. Kiiza Besigye, Uganda is in
anarchy"
Kuungana Mulindwa Mawasiliano Kikundi
"Pamoja na Yoweri Museveni, Ssabassajja na Dk. Kiiza Besigye, Uganda ni
katika machafuko"
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