The international criminal justice project can only be sustained when all the stakeholders play their part – governments, civil society organisations and international bodies, courts and tribunals. Unfortunately some governments refuse to play ball, international courts do not have the requisite support and civil society have their names dragged through the mud and face reprisals when they stand up for justice and accountability.
Africa’s most infamous fugitive, President Bashir of Sudan, who is wanted for war crimes, genocide and crimes against humanity, continues to be a thorn in the side of his fellow African leaders as he visits Rome Statute signatory states. His visits continue to put his peers in a precarious position, where many end up flouting the law by failing to arrest him.
President Bashir’s visit to South Africa in June 2015 for the 25th African Union Summit continues to cause trouble for the South African government as the legal battle moves to the Constitutional Court. The Southern Africa Litigation Centre (SALC) took the South African government to task for its failure to arrest President Bashir, which was in direct contravention of domestic and international criminal law.
The High Court and the Supreme Court of Appeal both ruled that the government’s failure to arrest President Bashir was unlawful. The government has appealed to the Constitutional Court and the matter will be heard in November 2016. The consequences of the government’s actions have raised deep concerns about the rule of law in South Africa and whether the South African government prioritises human rights and accountability.
President Bashir was recently welcomed in Uganda (another signatory to the Rome Statute) for President Museveni’s swearing in ceremony, and again no handcuffs were produced. Instead President Museveni took it as an opportunity to make disparaging remarks about the ICC in a ceremony that saw several delegates leave in silent protest. Ironically Museveni was one of the first African leaders to refer a situation to the ICC in 2004, making use of the court Africans helped create.
As a result of its failure to arrest President Bashir, Uganda has been referred to the Assembly of States Parties to the Rome Statute and the United Nations Security Council and it is up to these bodies to decide what measures will be taken. A similar fate could befall South Africa, pending the outcome of the domestic litigation and other factors.
President Bashir is not the only one causing trouble for the international criminal justice project. The United Nations Security Council (UNSC), which referred the situation of Sudan to the ICC, has provided little or no support to the ICC’s case in Darfur. On several occasions the ICC Prosecutor has briefed the UNSC asking for support in the pursuit of justice, yet her pleas seem to fall on deaf ears. In accordance with the Rome Statute, the UNSC can financially support investigations into situations they have referred to the ICC, yet they have not been very forthcoming in this regard.
The UNSC remains silent on Sudan’s noncompliance and lack of cooperation with the ICC, when they should instead be encouraging compliance and using their influence to support international criminal justice.
The UNSC also attracts further censure as three of its five permanent members refuse to be a part of the international criminal justice system. The US, China and Russia refuse to join the community of nations in the united goal to end impunity and bring justice to the victims. In addition to their poor performance as “team players” they also see fit to refer situations to the very Court they refuse to be a part of. The controversial UNSC referral mechanism continues to threaten the legitimacy of the ICC. The UNSC is a political body empowered to veto referrals to a judicial institution. Political considerations and alliances unfortunately dominate the affairs of the UNSC as is evident from the Council’s failure to refer the situation in Syria to the ICC.
The same dilemma of UNSC referrals leads to the next challenge faced by the international criminal justice project, the fact that only African states (Libya and Sudan) have been referred to the ICC by the UNSC. Other referrals of situations that warrant international attention, such as Syria, have not made it past the hurdles put in place by dangerous and self-serving politics. The UN Special Envoy to Syria’s personal estimate of the death toll in April 2016, was a staggering 400 000 and yet accountability and a cessation of hostilities seem far from becoming a reality.
The fact that the UNSC has only referred African nations to the ICC contributes to the overall unfounded allegation that the ICC itself (over and above UNSC referrals) is targeting Africa. This is factually incorrect. A majority of the cases before the ICC are a result of independent African governments referring the situations in their own countries to the ICC. This includes Uganda, the Democratic Republic of Congo, Central African Republic and Mali. This fact is conveniently and regretfully left out when ICC detractors accuse the court of bias. That being said, the ICC does truly need to expand the geography of its docket.
There are other areas where the ICC needs to improve and certainly the unfortunate exposure of witnesses in the case against Laurent Gbagbo is an example of the mistakes a court of this stature cannot afford to make. It was reported that after moving into a closed session during the trial, the microphones in the Court were left on and the names of certain witnesses were revealed.
The ICC is not perfect, but it is the only permanent court aiming to secure accountability for egregious crimes. The African continent in particular is in need of such a court as there is currently no continental court with criminal jurisdiction and many domestic African courts lack the requisite legislation and judicial infrastructure to tackle crimes of genocide, war crimes and crimes against humanity. This justice vacuum leaves the perpetrators with free rein to terrorise their people and the victims with nowhere to turn.
The African Union hopes to change this situation by vesting the African Court with criminal jurisdiction. A protocol adopted in Malabo and known as the “Malabo Protocol” includes this bold endeavour but with the unfortunate inclusion of immunity for sitting heads of state and senior government officials.
The difficulty with this provision needs no further elucidation. The number of African leaders who are attached to the idea of being presidents for life, juxtaposed with the fact that it is often senior government officials and heads of state who perpetrate these crimes, reveals just one of the challenges. In addition, memories fade, victims die, and evidence disappears. Can there truly be justice in such a situation?
It is not all doom and gloom. There have been significant victories for victims of atrocity crimes this year, including the 2016 conviction and sentencing of Hissene Habre. This was a historic and monumental example of justice. Hissene Habre is believed to be responsible for the deaths of over 40,000 Chadians, and the torture of thousands more, during his time as the President of Chad. After 25 years of dedication and perseverance from the victims and human rights groups, he was sentenced to life in prison in May 2016.
The International Criminal Tribunal for the former Yugoslavia has recorded a significant number of justified convictions and the International Criminal Tribunal for Rwanda has closed its doors after developing important jurisprudence and holding groundbreaking cases.
The victories for international criminal justice are few and far between, but they must be celebrated. Let this World Day of International Justice be a reminder of how far we have come and how far we still have to go. DM
The Hindenburg had a smoking room.