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BBC News – International justice – Is Africa on trial?

BBC News – International justice – Is Africa on trial?.

via BBC News – International justice – Is Africa on trial?.

Is Africa on trial?
No
Yes
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The International Criminal Court (ICC) was set up to try those responsible for the most serious crimes in the world – such as genocide, crimes against humanity and war crimes.

So far, all 24 people facing charges – and the only person convicted – are from Africa, leading to accusations of bias. The African Union has said members countries should stop cooperating with the Court.

We asked two experts whether Africa is on trial.

NO

Abdul Tejan-Cole says the African victims of war crimes welcome the perpetrators facing justice
Abdul Tejan-Cole is a former prosecutor at the Special Court for Sierra Leone.

Two weeks ago, the International Criminal Court (ICC) handed down its first judgment – finding Thomas Lubanga Dyilo guilty of war crimes in eastern DR Congo. While the decision was rightly hailed around the world as a landmark for international criminal justice and the fight against impunity for mass crimes, it also reignited the debate about the ICC and Africa – and particularly the notion that the continent is somehow “on trial”.

It is a version of events that has increasingly come to dominate the debate in Africa with political leaders past and present publicly accusing the ICC of anti-African bias and of persecuting the continent through its prosecutions. But it is almost certainly not the view of the majority of Africans, who want the political and military leaders responsible for international crimes brought to justice.

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It is farcical that we can equate the trial of 25 accused with the trial of an entire continent”

And it is definitely not the view of the victims of mass crimes – such as the 129 who participated in the Lubanga trial – who know that their national courts are invariably unable or unwilling to prosecute. And who celebrated when the ICC announced its landmark verdict.

Lubanga is the first person to have been convicted since the ICC was established in 2002. The Court found him guilty of enlisting, conscripting and using child soldiers between 2002 and 2003 when he was Commander-in-Chief of the notoriously brutal Patriotic Forces for the Liberation of Congo (FPLC). Multiple witnesses testified that Lubanga used these children as his bodyguards and that girl soldiers were subjected to sexual violence and rape.

But even as his victims were finally seeing justice being done, critics were condemning the ICC for taking so long and for costing so much, and castigating the prosecutor for not charging Lubanga with sexual violence crimes, despite allegations that women and girls were raped and abused by his forces. Others were wondering when some of Lubanga’s co-perpetrators, notably his Rwandan deputy, Bosco Ntaganda, might face trial.

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The Africa Debate

Tune in to the BBC World Service at 1900 GMT on Friday to listen to The Africa Debate broadcast from Nairobi: Is Africa on trial?

Or take part in Twitter – using #bbcafricadebate – Facebook or Google+

Until his conviction, Lubanga was one of 25 people facing trial in 14 different cases before the ICC. All 25 are Africans. This has generated increasing criticism. The African Union Chair, Jean Ping, has accused the ICC of targeting African leaders unfairly, while the Rwandan President, Paul Kagame, dismissed the Court saying it was made for Africans and poor countries.

‘White man’s Court’
Africa played a tremendous role in the establishment of the ICC, and only 11 African countries have not signed the Rome Statute while 33 have ratified its provisions, making Africa the most heavily represented region in its membership.

Ivory Coast’s Laurent Gbagbo ratified the ICC treaty but is now on trial at The Hague
Three of the seven current situations under investigations by the Court – DR Congo, Uganda and the Central African Republic – were self-referrals to the Court by the respective governments. According to the Court’s incoming Prosecutor, The Gambia’s Fatou Bensouda, “the high rate of referrals in Africa could just as easily show that leaders on the continent were taking their responsibilities to international justice seriously.”

Only two situations – Kenya and Ivory Coast – were opened at the instance of the prosecutor. The Kenya situation was opened after Kofi Annan, Chairman of the AU Panel of Eminent African Personalities, handed over a sealed list of suspects to the ICC and after the Kenyan parliament dithered over the establishment of a national tribunal.

In Ivory Coast, it was former President Laurent Gbagbo who accepted the jurisdiction of the ICC in April 2003 under the provisions of Article 12 (3) of the Rome Statute.

Like many other African leaders, Mr Gbagbo was quick to accept the jurisdiction of the Court so that it could prosecute rebels.

However, as soon as he was arrested and hauled off to The Hague, his supporters immediately began referring to the ICC as the “White man’s Court” and complaining about its “neo-colonialist” and “imperialist” agenda.

‘Western interests’
Contrary to popular opinion, the ICC is not a court of first resort. Entrenched in its statutes is the principle of complementarity – the ICC can only exercise its jurisdiction where the State Party of which the accused is a national or on whose soil the alleged crime was committed, is unable or unwilling to prosecute.

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International Criminal Court (ICC)

Set up in 2002
Ratified by 114 countries – but not US, Russia, Israel, Iran, Egypt, China, India, Pakistan, among others
Goal: To bring to justice those responsible for the worst crimes committed anywhere in the world
Only verdict – against DR Congo warlord Thomas Lubanga
24 others facing trial – all from Africa
Opened cases in Uganda, DR Congo, Sudan, Central African Republic, Kenya, Libya, Ivory Coast, Libya
Studying at least five situations outside Africa: Afghanistan, Colombia, Georgia, Honduras and South Korea
The Palestinian National Authority has asked the ICC prosecutor to accept jurisdiction over alleged crimes committed in Gaza
Many African countries will be unable to prosecute even if they want to because their judiciaries lack the capacity to prosecute the crimes in the Rome Statute and because their parliaments have failed to domesticate the relevant laws.

In the case of Kenya, even though Kofi Annan and others supported a “Kenyan-owned and Kenyan-led process”, the country’s parliament failed to pass the necessary laws to create a Special Tribunal thus giving the ICC jurisdiction.

Even though its criteria for selecting situations does not include geographical considerations, the perception that the Court is only targeting Africans will remain until it launches its first non-African prosecution.

And while it is true that the ICC can be lambasted for inconsistent case selection, there is not a single case before the Court that one could dismiss as being frivolous or vexatious.

They might all be African but they are also all legitimate. It is farcical that we can equate the trial of 25 accused with the trial of an entire continent.

Greater balance
In addition, the Court is currently analysing at least five situations outside Africa – including Afghanistan, Colombia, Georgia, Honduras and South Korea – all of which are awaiting determination by the prosecutor as to whether or not to open formal investigations.

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Ordinary Africans are not complaining”

The Palestinian National Authority has also petitioned the ICC prosecutor to accept jurisdiction over alleged crimes in Gaza from 1 July 2002, when the Rome Statute entered into force.

The Court has certainly made some missteps in its first decade. For example, the judges in the Lubanga trial were far from impressed by the prosecutor’s use of intermediaries during the investigation.

And there is clearly a need to ensure greater balance in the geographical scope of the ICC’s investigations and prosecutions. But there is not a case before the Court that critics can honestly argue should not be there.

And ordinary Africans are not complaining. Many have suffered at the hands of the perpetrators of mass crimes – and know that there is little chance that they will see justice done without international tribunals like the ICC.

Victims of the alleged atrocities of Chad’s former President, Hissene Habre, have for several years been lobbying the Senegalese government to ensure that justice is done – but to little avail.

Had Mr Habre’s alleged crimes been committed after 1 July 2002, his victims may have had their day in court just like Lubanga’s.

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Does the ICC have an Africa problem? – Opinion – Al Jazeera English

Does the ICC have an Africa problem? – Opinion – Al Jazeera English.

 

Does the ICC have an Africa problem?
All 28 people indicted by the International Criminal Court so far are from Africa.
Last Modified: 28 Mar 2012 11:33

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In the court’s first conviction, the ICC recently found Thomas Lubanga guilty of war crimes [Al Jazeera]
Cambridge, MA – When the Lubanga verdict was handed down at the International Criminal Court, rather than a chorus of celebration, there was qualified applause from pundits and publicists. Almost all the opinion pieces that examined the potential impact of the Lubanga verdict highlighted the oft-cited fact that all of the 28 people that have so far been indicted by the court have been Africans.

Does the ICC have an Africa problem? If it does, it is perhaps not the problem that analysts seem to be focusing on. Although the numbers on the surface imply that the ICC is going after African warlords disproportionately, it is important to recall that the African continent has also subscribed to the Court’s Rome Statute “disproportionately”.

There are 120 countries currently party to the Rome Statute and 33 African states comprise nearly 30 per cent of the court’s membership, or over 60 per cent of the continent’s states. By the numbers alone, assuming that conflicts occur with similar frequency in each inhabited continent, a national of a member state found to be in violation of the provisions of the statute is statistically more likely to be from Africa than from any other continent.

Inside Story – Can the ICC deter other despots?
More importantly, consider the reasons for which warrants have been issued thus far. These are not newly emerging crises that have just been brought to the world’s attention. Rather, with the notable exception of Kenya, these are intractable crises that the international community has struggled to resolve in a just and timely manner.

ICC warrants in these cases can be conceptualised as the next phase of international engagement and perhaps, no more invasive than the Security Council continuing to renew peace-keeping missions in the Congo, or the World Bank attaching democracy-based conditions to financial assistance.

In the Kenyan case, it is arguable that the ICC is to some extent playing into local politics in its decisions to charge certain individuals and not others. But no one who has ever studied the law will argue that it is anything but political.

The question for both domestic and international law is whether process sanitises the political to the point where it is predictable or internally consistent. The aspiration is to build a transparent procedural base, which contemplates human dignity and equitable access and treatment before the system, and is therefore just, if not always fair.

For Kenya, that means a system through which those who have been implicated in the darkest events of the 2007/8 post-election violence are asked to account for their actions in a space that is necessarily divorced from the inevitable heat of the upcoming election.

An equitable court?

Which recalls another point and it is that no informed person believes that the majority of the 28 indicted individuals are not at least presumptively blameworthy. Joseph Kony in Uganda hardly deserves the kind of protection that some African leaders are hoping to provide by shielding Africans from prosecution at the ICC.

In fact, he is emblematic of what was hoped to be a dying breed – the unrepentant mercenary who periodically pillages remote villages in central Africa and recruits children to his ranks using the most brutal methods available. Judicial processes are affording the likes of Kony far more dignity and procedural protection than he has offered any of his victims or hostage-soldiers, which is reflective of the aforementioned aspiration to a just, if not absolutely fair, system.

All of which is not to deny that the ICC may have an Africa problem, but the problem is that its largest constituency seems to have little or no confidence in the ability of the court to deliver the kind of protections it was designed to deliver, in an equitable way. I would posit that the efficacy of a judicial system lies in the confidence that those potentially judged by it have in the system’s ability to mete out justice.

In the US, despite an extensive history of judicial decisions that have upheld racial or sexual inequalities (for example, the Dred Scott decision) or seemingly endorsed campaign financing corruption (Citizens United), people continue to believe that the judiciary works and continue to bring their disputes before the system for arbitration.

“The answer may lie in investing universal jurisdiction in various African supreme or high courts.”

The ICC may never have had the total confidence of its members, primarily because every nation-state at the Rome Conference had a wildly different image of whom the court would go after and for what.

This lack of confidence or concordance plays out in the way that Western nations balk at the prospect of holding US citizens accountable at the court while African nations cheer, or when the West overtly uses the ICC to advance its goals in Sudan through the Bashir indictment, which Africa vehemently rejects.

The ICC may therefore never be able to solve its Africa problem. It is nearly impossible to build consensus on the nature of the court’s jurisdiction so far, after leaders of various regional groups seem to have concretised their positions.

An alternative forum may be the best way out of this problem – but given the rate at which people continue to die in central Africa and Sudan, not to mention the delicate balances in Cote d’Ivoire and Kenya, there isn’t time to wait for the formation of an African Criminal Court.

The answer may lie in investing universal jurisdiction in various African supreme or high courts, simply by passing statutes that give these courts authority to try cases related to the most egregious violations of human rights on the continent.

Using the judiciaries of smaller states in Africa that have succeeded in earning the confidence of their people provides an alternative that takes alleged offenders out of the immediate context of the crimes but still respects the idea of “African solutions for African problems”. Mauritius, Namibia, Botswana, Ghana – these are all nations with the capacity (albeit with significant assistance) to set up special chambers akin to those in Cambodia to try such cases.

Would it be a diplomatic, logistical and pragmatic nightmare? Absolutely. But no more painful to witness than hearing people criticise a court that holds a man accountable for incorporating children into a brutal conflict – rather than celebrate that something is finally happening to help end one of Africa’s most brutal conflicts.

Nanjala Nyabola, a writer and political analyst, is currently a graduate student at Harvard Law School.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.

allAfrica.com: Africa: Is Africa Being Victimised By the ICC?

Africa: Is Africa Being Victimised By the ICC?

BY CAROLINE KENDE-ROBB, 16 JULY 2012

Now in its tenth year, the ICC has faced criticism for a perceived bias towards prosecuting cases in Africa.

The decision by the African Union (AU) to shift its bi-annual Summit from Lilongwe, Malawi to Addis Ababa, Ethiopia in response to Malawi’s refusal to allow the participation of Sudanese Head of State Omar al-Bashir has thrown into sharp relief the potential of conflict between African regionalism and international mechanisms to promote and protect rule of law, justice, and respect for human rights. Omar al-Bashir is the first sitting Head of State to be charged by the International Criminal Court (ICC) and faces arrest warrants for genocide, war crimes, and crimes against humanity.

The situation is highly complex. On the one hand, rule of law, justice, and human rights are at the core of the AU’s 2000 Constitutive Act (2000), as well as ground-breaking standards such as the African Charter on Democracy, Elections and Governance (2007) and the African Charter on Human and People’s Rights (1981).

On the other, there is variable geometry among AU member states in terms of the extent to which they adhere to these laudable norms and standards in practice. On the Bashir question, Malawi has broken ranks with the AU, which is not to honour the ICC warrant. While some observers view this latest episode as yet another indication of the AU’s inability to practice what it preaches and what its member countries have signed up to, others argue that the problem lies with the ICC itself.

As it celebrates its tenth anniversary, there is a persistent refrain from the ICC’s critics that by focusing almost exclusively on pursuing and prosecuting Africans, the Court has shown itself to be complicit in an international conspiracy led by Western nations – some of whom have refused to sign the Rome Statute that established the ICC.

While few would condone many of the actions of the regime in Khartoum, Bashir’s defiance of the arrest warrant has made him something of a cause célèbre among those who see the ICC as anything but impartial. Indeed, and with the exception of a handful of African states, Malawi being the latest, the AU community has been consistent in its opposition to the ICC.

Most recently, Kenya (which faces the possibility of two of its presidential candidates being jailed by the ICC for alleged crimes against humanity) has sought to lobby for the ICC to be set aside in favour of regional alternatives – notably the Arusha-based African Court of Justice and Human Rights, and the East African Court of Justice. The problem is that neither of these bodies has as yet demonstrated an appetite to sanction offenders against the principles they were set up to uphold.

The decision to move the AU summit has sparked considerable debate. As Edge Kanyongolo argues in the July 1 edition of Malawi Today: “When African political leaders turn on their own citizens and subject them to oppression, violence and plunder, what should be the response of the genuine pan-Africanist? Surely, it cannot be to jump to the defence of those leaders in the name of pan-Africanism.” Malawian opposition leader, Friday Jumbe, is just as unequivocal, staring: “We cannot be forced to host a summit on the condition that al-Bashir, who everybody knows is hunted by the international community, should come to Malawi.”

Beyond Malawi, other civil society actors have seized on the controversy to step up demands for increased accountability from their governments on this front, including in Kenya, South Africa Uganda and Zambia.

It is unlikely that the stand-off between the anti-ICC majority of AU member states and the pro-ICC lobby will be resolved overnight. That said, and as further episodes of the story unfold, African and non-African states alike will be forced to confront the apparent contradictions between their rhetorical support for rule of law, good governance and human rights on the one hand, and what happens in the day-to-day realpolitik of international relations on the other.

Caroline Kende-Robb is Executive Director of the Africa Progress Panel. The Panel, chaired by Kofi Annan, promotes Africa’s development by tracking progress, drawing attention to opportunities and catalysing action. Its latest annual report, “Jobs, Justice and Equity,” can be read at http://www.africaprogresspanel.org/en/pressroom/press-kits/annual-report-2012/

via allAfrica.com: Africa: Is Africa Being Victimised By the ICC?.

via allAfrica.com: Africa: Is Africa Being Victimised By the ICC?.

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Kenya invades Somalia: A big gamble | The Economist

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