Isaac Mangena
Isaac Mangena

The trouble with international justice

This month marks 10 years since the International Criminal Court first opened its doors at The Hague in Netherlands.

The court was created under the Rome Statute to prosecute serious international crimes like war crimes and crimes against humanity. It has 121 member nations, with Guatemala being the latest.

With a decade gone since the court started its work, there is no better time to gauge its successes, or lack of, than now.

Since it started its work the court has issued 20 arrest warrants, has 15 cases on its roll and seven investigations, including the ones in Libya and Cote d’Ivoire.

But regardless of the high hopes and rhetoric that accompanied its launch in July 2002, the court only managed to complete one trial – with $1 billion in budget spent.

The only case completed is that of former DRC rebel leader Thomas Lubanga, convicted of enlisting child soldiers in a rebel war in the eastern Congo. Sentencing is due in a few days, but he’s indicated he will appeal, which means more drag on a single case.

Now with that, it would seem the International Crime Court (ICC) has just turned into another international institution which over-promised when it started, but under-delivered.

There have been many questions about the role of this court, with others saying it was created as a tool for the powerful Western nations to “police” the Africans, or as Rwandan President calls it, a new form of imperialism, slavery, and modern-day colonialism. I will come to that a little bit later.

I want to start by the argument about local solutions for local problems and whether this would be ideal for some of the African cases currently at the ICC.

Last week I went to Kigali in Rwanda to attend the closure of the Gacaca Courts. These are local courts, examples of a collaborative justice based on traditional system of settling community disputes.

These courts were reintroduced in 2001 to try those accused of taking part in the 1994 genocide – in which over a million Tutsis and moderate Hutus were killed – when the country realised that modern courts were buckling under the weight of the many cases.

The courts, according to those who took part in them – including the scholars and international experts – managed to resolve over two million cases in less than ten years, and with a fraction of a billion USD spent by the ICC. It’s even less than what the UN-backed International Criminal Tribunal for Rwanda which has spent $1.7billion USD and only resolved 60 cases. Eleven trials are still in progress.

But what interested me apart from just putting suspects and witnesses through court, the Gacaca courts offered not only justice, but reconciliation between both perpetrators and the victims. It also acknowledges and addresses the challenges of reintegrating perpetrators of genocide into society. They are sentenced to love and be part of their society again.

During my visit I spoke to the locals, survivors and perpetrators most of whom sat throughout the duration of the proceedings under the acacia trees, on benches borrowed from the churches in which most massacres of 1994 took place. The sense I got from them was that they pride themselves in this local justice system.

Now the question is, is the Hague-based court not preventing alternative locally-based settlements such as the one Rwanda embarked upon?

Would it have not cost less and worked as some form TRC if Sierra Leone and Liberia tried Charles Taylor and others in its courts? Or would it not been worth-while for the sake of unity, if Kenya was given the first priority of trying the so-called the “Ocampo-Four”?

Or as David Davenport puts it in Forbes, the ICC can better use its resources to deal with Somali pirates or drug lords or “supporting more localized tribunals such as those that brought hundreds of people to trial in Rwanda, Sierra Leone, the former Yugoslavia?”

And based on the willingness of some African countries to take over the cases, isn’t it time the court invests in local criminal justice systems, and be part of them, and only drag people to the Hague when all fails? The Rome Statute clearly states the ICC does not supersede the authority of national courts, but it’s a “court of last resort.”

Examples are countries like Kenya, which is proving it is willing to go through reforms, creating a constitution that stood the public test in a referendum, and has even went as far as requesting the ICC opportunity to deal with its own problems. And true to its bullying tag, the ICC instead refused.

Since the end of the Libyan civil war, the government has indicated its preference to try Muammar Gaddafi’s son, Saif al-Islam in Libya.

And is Ivory Coast incapacitated to try former president Laurent Gbagbo in their country?

There are regional courts as well, if the West and ICC think local courts are not good and independent enough.

The AU has emphasized it be given a chance to solve its own issues instead of importing justice, even resolving to expand the jurisdiction of the African Court of Justice and Human Rights, known as the African Court, at the summit in Equatorial Guinea in 2011, to include prosecutions of individuals for genocide, war crimes and crimes against humanity – the same crimes dealt by the ICC.

Analysts view this as an attempt by the AU to circumvent the ICC and as an attempt to protect comrades from ICC investigations – like the SADC Tribunal was.

But what the ICC can do is to either help beef up the African Court with personnel, and finances, or create something like a satellite court – to give Africans some sense of ownership in the international justice system. The African Court currently is underfunded, under skilled, and under resourced. The court has issued only six rulings since 2006. It also needs to change few things on how it conducts its business, including its refusal of oversight and non-state parties to submit complaints, leaving only the leaders to forward complaints against their neighbours – which has proved problematic.

“Typically, African leaders have tended to protect their neighbours from international investigations. This is unlikely to change,” said Tom Maguire, Politics lecture at University of Leeds.

Another problem with the ICC is the suspicion that it’s increasingly been used by western NGOs and incumbent leaders against their opponents.

For example in Ivory Coast, after a conflict perpetrated by both sides, only Gbagbo has been hauled before the court – a payback for incumbent Alassane Ouattara; in DRC this has benefited Joseph Kabila against Jean-Pierre Bemba; in Kenya the Prime Minister, Raila Odinga, has seized the initiative over his deputy, Uhuru Kenyatta, his likely opponent in the forthcoming elections. In Libya any person whose last name is Gaddafi had to be hauled before the ICC, evidence they helped their father or not.

The truth is as it celebrates ten years of existence, most Africans who played a role in its creation feel betrayed. Currently the continent is the scene of all the cases being investigated or prosecuted – including Sudan President Omar al-Bashir whose warrant is not recognized by the AU. This is surely going to make the ICC’s work difficult on the continent.

And how is the court expecting to be taken serious as a credible international institution if major powers are not part of it?

Its funders are mostly European countries, and gets its cues from the UN Security Council, where three of the five permanent members – including the US and China – have not ratified the court. So in essence, those who don’t recognize the court, give orders on how it should conduct its business. And the fact that the same security council selectively refers cases in non-state parties (Libya, Sudan) to the court, while others, notably the US’s invasion of Iraq and Afghanistan, and Israel’s killing of Palestinians, are not referred, doesn’t help.

All is not lost. As the court mark ten years, the new prosecutor Fatou Bensouda should not shy away from frank discussions on the court’s relevance, especially in relation to Africa.

Tags: , , , , , , , ,

  • The decline of the American Empire
  • Trump’s global gag rule puts safe abortion in jeopardy
  • Modern slavery: The beast of our time
  • Trump’s America: No country for old women
    • Sterling Ferguson

      @Issac, I would agree with you that a person should be tried in the country that the crime was committed, however, one must deal in reality that most of Africa are failed states. In most African countries there is no independent justice system to try people for crimes like the ICC. You spoke of the AU not recognizing the charges against Bashire but, that shouldn’t surprise you, because these countries are all ruled by strongmen with corrupted governments.

    • http://none Lyndall Beddy

      I don’t support the ICC at all – witch-hunting never solved any civil war; and only creates martyrs and bad bloodfor generations, but even less do I support an African Court.

      I don’t support having an African Union either – we should all be under the UN. Africa is not on a different planet to the rest of the world.

      What I do support is the International Civil Court – which we hear very little about.

      And I am extremely interested in the latest international case which might land up exactly in that court – Germany is suing Zimbabwe for dispossessing Germans of farms in terms of the Bi-Lateral Agreement signed by Mugabe with Germany.

      An interesting precedent for South Africa, who has signed Bi-Lateral Agreements with probably every country in the world, yet the ANC now speaks of restricting foreign ownership?

    • http://none Lyndall Beddy

      There never was one Pan-Africanist Africa. That is a Black American myth made up as a result of American slavery and the American Civil War.

      Africa has over 1000 languages and over 3000 tribes, only half of which are Bantu.

      Google the Taureg and the Dogon – both fascinating tribes with nothing in common,with each other, and nothing in common with the Bantu either.

      Or look at Barack Obama and Zuma standing side by side. Obama’s father was a Lao, not a Bantu. In his aurobiographical book about going to Kenya to find his father’s family, Obama has a bit of difficulty about glossing over how his father’s people, the Lao, subjujated the Bantu when they migrated into the area. The Lao are tall and dark skinned, the Bantu are brown skinned and shorter. As I said look at Obama and Zuma side by side and the difference is obvious.

      The whole idea of the African Union is ridiculous – Africa is the most diverse of all the continents and many tribes have nothing in common with each other.

    • http://thoughtleader Mike Morrell

      Re Lyndall: Luo, not Lao. Lao = pertaining to Laos (Southeast Asia).

    • Sterling Ferguson

      @Beddy, you are right to a certain degree but, I think you are mixing color with civilization. Obama is part of the Western civilization and his relatives in Kenya are not western. When Du Bois coined the phrase Pan Africanists, he was talking about a condition that existed in 1903.

    • http://none Lyndall Beddy

      Mike – Thanks! Even if I had used spellcheck, which I didn’t, it would not have picked up the difference between Luo and Lao.

    • http://none Lyndall Beddy

      During the whole period of the Cold War Russia armed tribes to fight for communism, and America armed tribes to fight for capitalism, including Russia arming the ANC. A few thousand whites got killed, but millions of blacks killed each other.

      China entered later, and like always when 2 dogs figh over a bone, the third walks off with it. China simply bribed the chiefs of the victorious tribe to get control of the land and minerals with the biggest bribes.

      Now the ICC must sort out who was responsible? What a collosal and expensive waste of time!

      There has never been a war without atrocities on both sides; nor a war that has not used child soldiers.

      And from what I hear of the first 5 cases reported to the ICC, 4 were from Africa, and 3 of those were the victorious tribe reporting their opposition – when both were guilty of atrocities.

    • cyberdog

      The Irony of your criticism of the international justice system is really, really thick. It was exactly the breaking down and failure of the local justice and government systems that has caused the problems. And you are now expecting everyone to have faith that the same institutes which were meant to avoid these outcomes, and failed, to now deal with and resolve these issues in untested and unscientific ways. The rest of the commentators here can babble all they want about the face paint of history, it doesn’t change that fact that these people, as well as communities are broken and have failed to boot. And there is no possible way that they suddenly have become educated and experienced enough to deal with these complex issues. Yes the International law systems will be expensive, it requires expensive and knowledgeable consultants, and will always be more expensive to deal with cross border issues. If it was not for the total failure from the locals, there would be no need for the international justice interventions or whatever fancy title you would like to use. The fact that there is even a need for the international community to get involved points out the glaringly obvious issue that Africa still has such a painfully far way to go… What Africa desperately needs is more education, to pull themselves out of the shithole they are in. And yet here we are, throwing away our books, and boycotting the very institutes that are our life line. Than again, looking at it from that…

    • rmr

      Thank you Mr. Mangena for a thought provoking article. I would be interested on your views on the shutting down by the powers that be of the Southern African Regional Court system? How does one create enough of a buy in for governments to support such courts even when decisions go against them? This, of course, is also the problem with a country such as the USA who refuses to submit to international jurisdiction and even sanctions invasion of the Netherlands were a citizen of the USA to be tried in the Hague.

    • Paul

      Absutely agree, the ICC is a sham and essentially a scam, picking and choosing its targets, disabling states who should try their own criminals – who cares if they impose justly deserved death penalties – the “West” still appears to be deciding what’s “good” for third world or ex communist bloc states, rather rich given their own morally inept interventions elsewhere in the globe.

    • http://hismastersvoice.wordpress.com/ The Creator

      You can’t have international justice until you have some kind of international government. Otherwise the judges will just do the bidding of their governments.

    • LittleBobPete

      The ICC is a disappointment, and ideally one would want each Country to try their own criminals. The issue however is that the victorious party in a civil war would just eliminate their opposition “under the guise of a legal system”……..most of Africa is broken and most new incumbent Presidents have not had the moral fibre to develope a truly independant justice system, lest it be used against them down the line……..crime pays…….and in Africa it pays allot. The West flourishes with the fact that most African states/ governments can be bought and bribed…..and they will support a side that favours their cause, and if it becomes too expensive, they’ll create an uprising by supporting another side, until a new government is in place to support their cause……all under the guise of United Nations causes and the ICC.
      Sadly for Africa and Africans as a whole…..democracy is a culturally uncomefortable system……its always been a system of “he who is the strongest by force”…..these days…….force is not with a spear, but an AK…….maybe its time to ask……should those who fund and arm these war criminals not be held accountable…….what about a few class action law suits against some of the US and Europe’s/Russia’s top arms manufacturers……and their governments????

    • Enough Said

      1) Hopefully the ICC will try George W Bush and Dick Cheney for their illegal war based on the lies of weapons of mass destruction in Iraq that has left up to one million Iraqis dead.

      2) Hopefully the ICC will get mandate to cover other crimes against humanity such as leaders that allow technologies for example nuclear energy that lead to disasters such as Chernobyl and Fukushima.

      3) Leaders of countries that do not do enough to stop human caused climate change should also be tried by the ICC. While the industrial nations are the biggest greenhouse gas polluters, Africa will be the continent worst affected by climate change.

      As long as the ICC focuses only on a few African war lords it a farce.

      >>>>

    • Chopper4

      At Enough Said. your point number 1 has no standing. I do not want to go off topic but if you go to the Iraq statistics website, you will see the US is only accountable for a small percentage of Iraqi deaths. Bashaar Al Assad has killed more people in 16 months than the US has killed in Iraq over the past 5-6 years.

      I think that if the country has an objective court system then they should not be scrutinised by the ICC as in African countries and developing countries that do not have the proper court systems. I do however think it will be hard to differentiate between proper and improper court systems.

      One thing which I did not like about this article is the mentioning of Israel killing Palestinians, yet Isaac does not include the vice versa or the fact that Palestinians kill Palestinians. There is hardly a justice ministry in the PA, yet Isaac is quick to display that Israel needs to be taken to the ICC.

      The ICC will continue to be a farce until a proper system is put in place. No first world countries would ever use the ICC and therefore it is kind of set up only for dictators and autocratic regimes. Then again once the dictators are gone then the ICC will crumble. If the UN was to be hijacked then you never know what can happen.

    • Liqourice All Sorts

      @Chopper4

      “Greenspan admits Iraq was about oil, as deaths put at 1.2m”
      http://www.guardian.co.uk/world/2007/sep/16/iraq.iraqtimeline

      This report appeared on 16 September 2007 making a mockery of what you say.

      Leaders of western nations that go to war illegally should be tried in international criminal courts as well. Fair is fair, and leaders of nations and CEOs of corporations should be held responsible for environmental catastrophes that could have been avoided like global warming, nuke disasters etc.

    • LittleBobPete

      @Chop/Chopper4
      Iraq and Syria are 2 totally different places………and in fact both should be prosecuted. That the US lied to the World makes an immediate case for ICC, even if Saddam Hussein did kill his own, they went in to destabilise the area and secure oil. If they were so morally concerned then there are many other places they could have gone into, Zimbabwe……and….and….and…..
      In so many of the conflicts there are two sides, Palestine/Israel…..Isaacs comment was probably for reference, each has their own side/point of view……neither can claim moral highground.
      Ask youself this…….if the greatest export from the UK is military equipment, surely its in their interests to keep many parts of the world destabilised and “wanting” weapons…..both the UK and the USA will play both sides of the same coin to sell weapons!!! Who then are the real criminals?????

    • Enough Said

      @Chopper4

      You say “No first world countries would ever use the ICC and therefore it is kind of set up only for dictators and autocratic regimes. Then again once the dictators are gone then the ICC will crumble.”

      For your information, an excellent book to read is “Rogue State: A Guide to the World’s Only Superpower” by US historian William Blum. Blum documents the cold blooded history of regime changes and assassinations of his own countries armed forces and secret services. Spine-chilling facts and intense reading. Not for the faint hearted or weak of intellectual ability.

      In support US academic and human rights activist Noam Chomsky says “If the Nuremberg laws were applied, then every post-war American president would have been hanged.”

      Chomsky has also written several brilliant analysis/interviews (On Youtube or in books) on Israel/Palestine.

      No debate on the US war by proxy using Jewish Israelis as cannon fodder to protect US oil interests in the Middle East is complete without Chomsky brilliant analysis.

      First world country war lords (George W Bush [& Dick Cheney], Tony Blair, Nicolas Sarkosy et.al ) should be tried before the ICC before any tin pot African war lords are to set an example. Then we the global citizens of the world will have faith in the ICC.

      The ICCs powers need to be extended and extended until justice prevails internationally.

      What about a global International Truth and Reconciliation Commission like South Africa had…

    • Enough Said

      Chopper4 – continued……

      What about a global International Truth and Reconciliation Commission like South Africa had after apartheid? We the ordinary people don’t want revenge; we just want international criminals like those fascists mentioned in my post above to stop committing crimes against humanity.

    • LittleBobPete

      @Enough Said…………brilliant, well said!

    • http://none Lyndall Beddy

      Enough Said

      Every Country has survived on historical myths created by the “victors” usually after a Civil War.

      None of them will be happy to abandon their myths and those “heros”.

      But I forsee that historical myths will not last long in the future – thanks to increased literacy, increased communications, and the internet bypassing the “People after Power”- the Priests, Princes, and Policians – and their gullible lapdogs, the media!

    • http://none Lyndall Beddy

      There is nothing new about child soldiers in history.

      There were child soldiers in the American Civil War – on the losing side of the South, of course.

      There were child soldiers in the Second World War – in the losing side of the Germans.

      There were child soldiers in the war between the Soviet Bolsheviks and the White Russians – on the side of the losing White Russians.

      They were all regarded as heros.

      So why is it different when the child soldiers are black?

    • Ricky

      Lyndall Beddy, are you for real? Do you really think that it is ok to use child soldiers, just because children fought in the US Civil war? Why not let children also work in dangerous mines and factories because that is what they did in Dicken’s novels?

      Do you think that children decide themselves to fight wars? And even if they do, do you think a child has the capacity to understand what it means to fight a war?

      Frankly, I am disgusted that you can be in favour of adults using children to fight their wars.

      But I assume it must be a joke?