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.

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