And justice for all

29 October 2015

Africa has a very serious justice deficit. That should really be the lens through which to view the controversy about the International Criminal Court (ICC) and its alleged bias against Africa. Justice simply cannot keep up with atrocities on the continent. This was again brought home forcefully by the horrifying details that are now officially emerging from the Obasanjo report into the civil war in South Sudan.

The report by the African Union (AU) Commission of Inquiry into South Sudan, headed by former Nigerian president Olusegun Obasanjo, found that the killings in Juba at the start of the fighting in December 2013 were carried out pursuant to a state policy; and that they were coordinated and possibly also planned.

Among the atrocities committed were, of course, thousands of murders. On the face of it, these amount to genocide since they were directed by the Dinka and Nuer against one other. There was also widespread rape, including with sharp objects, and a novel one – enforced cannibalism.

The report has been ready since January, but the AU postponed its release for fear that it would scupper the peace talks between President Salva Kiir and his fired deputy and archenemy, Riek Machar. It was finally made available this week under great pressure after the two sides reached a very fragile peace deal in August.

It is true that the AU has made a decision to establish a hybrid judicial court, the Hybrid Court of South Sudan (HCSS), to try the crimes committed and incidentally still being committed in the civil war. This court is to be created in accordance with the peace agreement reached by the South Sudanese parties, ‘as an African-led and Africa-owned legal mechanism.’ How it will go remains to be seen. One of the most intriguing things about the HCSS is that it explicitly stipulates that no one should enjoy impunity from prosecution.

That is a positive development, certainly. But it is a contradiction – and an implicit rejection – of the AU’s own very vociferous policy position in relation to the ICC, that sitting heads of state should be put beyond the reach of the court. In June 2014, the AU had adopted a protocol that expands the jurisdiction of the African Court to deal with criminal prosecution, but only for ‘lower level perpetrators.’ Indeed, the Court’s protocol grants immunity not only to incumbent heads of state and government but also to other government officials.

Understandably, there are some doubts about how determined the AU will be in pursuing the likes of Kiir and Machar. The Obasanjo report found that, ‘The evidence thus suggests that these crimes were committed pursuant to or in furtherance of a State policy. Indeed, the method under which these crimes were committed proves the “widespread or systematic nature” of the attacks. The evidence also shows that it was an organised military operation that could not have been successful without concerted efforts from various actors in the military and government circles.’

Professor Mahmood Mamdani, a member of the Commission of inquiry who authored a separate, minority opinion on the report agreed, said, ‘The targeted violence was organised, not spontaneous. It was directed from a centre.’ If this is not prima facie evidence of complicity by Kiir himself, it’s hard to imagine what would be. Machar’s faction is also accused of atrocities, but without quite the same implication of complicity at the very top.

But who will finance the HCSS? That is also the problem confronting the AU over the African Court now and when, or if, it acquires criminal jurisdiction. (The protocol must first be ratified by 15 countries before it does so.)

Professor John Dugard asked this question, and several others, said in an op-ed for the Daily Maverick this week when he said the African National Congress (ANC) – and other Africans who wanted to withdraw the continent from the ICC – were being ‘defeatist, naïve and reactionary.’

They were being defeatist because they had not used all the powers at their disposal to try to ensure that the ICC also indicted non-African perpetrators of war crimes, crimes against humanity and genocide. And in that regard, it is significant that the ICC recently moved one large step closer to launching formal investigations into the first case outside Africa.

The ICC prosecutor has asked the Pre-Trial Chamber to approve an investigation of the situation in Georgia surrounding the 2008 war between Georgia and Russia over Georgia’s ethnic-Russian majority enclaves. Though the ICC has undertaken preliminary examinations of several other situations, in Afghanistan, Columbia, Guinea, Honduras, Iraq, Nigeria, Palestine and Ukraine, the Georgia situation was the first where the prosecutor has gone as far as deciding to open a formal investigation, and asking the Pre-Trial Chamber to approve that decision.

The ANC’s decision that South Africa should withdraw from the ICC was reactionary, Dugard said, ‘in that it aligns itself with African dictators who seek to avoid accountability for their crimes. In so doing it abandons the legacy of Nelson Mandela who sought to place respect for human rights and accountability for international crimes at the top of his foreign policy priorities.’

The ANC position was also ‘naïve’, Dugard said, ‘because it is premised on the creation of an African international criminal court. The ICC has an annual budget of more than €120 million (US$160 million). Where would the financially restricted AU find funding for a budget of even a quarter of this amount? The sad truth is that Africa cannot afford a proper international criminal court of its own.’

That’s the practical truth. And it also will be fascinating to see where the AU tries to find the money to finance the HCSS which, on the preliminary evidence of the Obasanjo report, will confront an infinite number of suspects worthy of being charged.

The ICC is meant to serve as the court of last resort for the gravest international crimes. It is only supposed to intervene when national courts are deemed unable or unwilling to prosecute.

But, given its immense deficit of financial resources and the lack of much political will, one could argue that the African Court should instead regard itself – in a practical rather than judicial sense – as the continent’s criminal court of last resort, intervening only when all other courts – including the ICC – are unwilling or unable for any reason to take up a case. That would do more to reduce the huge justice deficit.

As Dugard implies, Africa needs more justice; not less. With some notable exceptions, such as the Kenyan government (a very interested party), few observers, even in Africa, would argue that crimes did not happen in the situations before the court – or that the court is not giving those which appear before it, fair and objective trials. They argue instead – clearly with some justification – that justice should be expanded to non-Africans: that it is not better justice, but more of it, that is needed.

One can of course understand the symbolic value of the AU insisting on trying the South Sudan situation itself. Yet that symbolic value is rather doubtful, given, as mentioned, that the HCSS is departing from the principle that the AU has just fought so hard for, that sitting presidents should enjoy immunity from prosecution.

The implication of this contradiction seems to be that the ICC is good enough for trying lower-order individuals, such as warlords in the Democratic Republic of Congo, but when it comes to our leaders, we will do so ourselves, thank you.

Would the AU not be better off leaving whatever cases it can to the ICC, and instead directing its scarce resources towards bolstering justice elsewhere, on the continent and beyond?

Peter Fabricius is an ISS Consultant.

This article first appeared in ISS Weekly, the online newsletter of the Institute for Security Studies.