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From: "Jean Bosco Sibomana sibomanaxyz999@gmail.com [Democracy_Human_Rights]"
Has Kenya Destroyed the ICC?
Foreign Policy (blog) - 4 hours ago
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 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.
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