Roundtable discussion on Prospects for international criminal justice in Africa: lessons from eastern and southern Africa, and Sudan 8 Dec 2008, Pretoria Summary of key points & outcomes Aims of the roundtable discussion To consider and debate the role of international criminal justice in promoting durable peace, stability and accountability in Africa, with specific reference to recent controversial developments that have taken place on the continent. To discuss practical ways in which lawyers from national and sub-regional Bar Associations and Law Societies can co-operate to promote an African-driven response to international crimes, including the establishment of an African action network. Key points 1. Although Africa and the SADC region in particular played a critical role in the development of the Rome Statute and other regional and sub-regional justice mechanisms, international criminal justice on the continent is now facing new challenges, largely as a result of the pending indictment by the Prosecutor of the International Criminal Court (ICC) of President Al-Bashir of Sudan. Nevertheless and without discounting the legal and political challenges facing the ICC Africa has much to gain from the Court, which together with domestic, sub-regional and regional justice mechanisms, can contribute towards the achievement of sustainable peace, justice and accountability. 2. The recommendations of the Waki Commission relating to the establishment of a special tribunal to try those who bear the greatest responsibility for the post election violence in Kenya, reinforces the important role that justice mechanisms (including locally crafted ones) must play in ending impunity and pursuing accountability for gross human rights violations particularly when such crimes are committed by people in positions of leadership and authority. 3. Rather than placing peace and justice as opposing aims in situations of conflict, the discussion should be framed as peace with justice. This provides scope for considering not only the issue of timing and sequencing (when to deploy the varying mechanisms of justice and of peace) but equally important, what form these 1
mechanisms should take. Justice in this context is clearly not only about the ICC rather it includes restorative justice mechanisms (truth commissions), regional and sub-regional judicial institutions (like the SADC Tribunal, East African Tribunal, and the various regional structures like the African Court), and domestic mechanisms (special tribunals such as that proposed by the Waki Commission, national courts and appropriate traditional justice mechanisms). 4. An understanding of the role of justice mechanisms in promoting durable peace should as far as possible be context specific. Generalisations and platitudes about peace vs justice are academically interesting but are of little benefit to the people of Sierra Leone, Rwanda, Uganda, DRC, Sudan, Kenya and Zimbabwe. Generalisations about Africa are seldom useful, and notions that Africans have a different sense of justice (implying a preference for reconciliation rather than retribution), or that investigations and prosecutions will prevent or disrupt a peace process cannot be applied to the continent as a whole. The danger of doing so particularly from official sources is that such statements provide a form of refuge for the very people responsible for committing gross human rights violations or core international crimes (crimes against humanity, war crimes and genocide). 5. With regard to the impact of the ICC s work in Sudan, it would appear that the prospect of an arrest warrant being issued for President Al-Bashir has helped the peace process in that country. Just three supporting reasons for this view include: i) the president visited Darfur for the first time after the pending indictment was announced, and ii) the peace initiative put forward by the government came after the indictment rather than before, and iii) the government is exploring the establishment of domestic justice mechanisms, including a hybrid court model, that could possibly meet the complementarity standard of the ICC. Although further restrictions on rights and freedoms can be expected in Sudan if the arrest warrant is issued, the process is likely to help in attaining peace and justice for victims in the long term because Sudan has no independent criminal justice system or judiciary, and impunity for a range of crimes is widespread. Despite the potential positive consequences of the ICC s involvement in Sudan, there are some concerns about the path that international criminal justice has taken in Sudan. These include: i) outreach by the ICC has had limited impact ii) the ICC s jurisdiction does not allow for crimes committed before 2002 to be investigated, and there would appear to be no prospects of strengthening internal mechanisms to deal with these crimes such as reform of the security sector and the judiciary iii) international efforts should also focus on promoting a truth and reconciliation type process. All of these concerns create the impression that the referral of the situation in Darfur to the ICC by the UN Security Council was more for the benefit of the international community than for the Sudanese people. 6. One of the greatest challenges facing the ICC and any regional or domestic tribunal or court responding to serious violations is conducting investigations (and prosecutions) in situations of ongoing conflict or serious internal political instability. 2
The situations in Sudan, Uganda, the DRC, and Zimbabwe, are cases in point. Formal investigations are practically difficult to conduct and the process often contributes to new or existing political tensions between the conflicting parties. It is nevertheless important that interventions to end cycles of impunity for core international crimes happen as early as possible, rather than waiting for a conflict to worsen. The early involvement and focus by the regional and international communities makes it more difficult for perpetrators to carry out these types of crimes, and with the help of the media, some actions may be prevented. If levels of violence drop, this could provide the impetus for negotiations towards a peace settlement. It is also important that relevant information on the ground is collected, analyzed and preserved in a way that allows for early intervention whether by domestic, regional or international mechanisms or authorities. The impact of publicising the possibility that perpetrators of core international crimes could face justice should not be underestimated. It serves to remind those in positions of authority that they cannot act with impunity, and it provides hope to the victims that oppression can be overcome. 7. Another challenge facing the ICC is the accusation that the Court has become embroiled in, or indeed is being used for, purposes of both domestic political struggles (in DRC and Uganda for example) or international politics (in Sudan, given the role of the UN Security Council in that situation). These problems need to be addressed. It is nevertheless important to recognise that international criminal justice is most often needed because political leaders fail to adhere to the rule of law in their own countries (or, as in the case of Sudan and Zimbabwe, there is no independent criminal justice system). Indeed, as the Kenyan case shows, domestic judiciaries often fail to provide justice in cases which are highly politically charged. This is precisely when the ICC is called upon to investigate international crimes and, in so doing, to moderate political competition. In such circumstances it should come as no surprise that accusations about playing politics are raised by all parties concerned. 8. It is vital that political will and capacity to provide national justice and not just international justice for serious human rights violations, be strengthened. This will require raising awareness among the public, criminal justice officials, defence counsel, policy makers and political leaders. The challenge of outreach in conflict situations needs to be dealt with. The role of international institutions like the ICC as well as the special tribunals of Sierra Leone and Rwanda is crucial in this regard, to ensure that lessons are widely publicised and that knowledge and skills are transferred to local institutions. This leads to the question of strengthening capacity and ensuring practical action at the domestic level. Development of implementing legislation to domesticate the provisions of the Rome Statute is needed and where possible, specialised technical assistance and reputable model laws should be used to ensure consistency in implementation. In addition, countries also need both the political will and the capacity to apply the laws in practice when required. In this regard, the capacity (often 3
specialised capacity of law enforcement and legal sectors to deal with complex, transnational crimes) and independence of national criminal justices systems and judiciaries in general need to improve to ensure that these institutions are trusted by citizens and importantly, by victims. This will take political will, time and money, and until this is achieved, international mechanisms like the ICC and UN Security Council will remain important and must intervene. 9. The Responsibility to Protect provides a useful framework for civil society to intervene in the interest of promoting and securing justice. Both South Africa s Zimbabwe torture docket and the Chinese shipping case (in which civil society representatives from several southern African countries prevented a shipment of arms from reaching Zimbabwe) show the effect of civil society s participation and co-operation to hold governments to account. Civil society must and can act quickly and enduringly with regard to matters of international criminal justice. To act effectively, civil society needs to: know the law, think strategically, work together, and enlist the support of the media. As the Zimbabwe torture docket illustrates, having ICC implementing legislation in place will give civil society much more scope to act. Outcomes 1. An African action network and specialised resource group on international criminal justice should be established by the ISS. Made up of a core group of civil society and legal practitioners working to promote international criminal justice, the aims of the network could be to raise awareness, share experiences and expertise, keep abreast of the latest developments, and inform one another about upcoming activities and initiatives. Where appropriate, the network could facilitate and support the provision of technical assistance and training. The network should also work both proactively and reactively with the media. An important role for the network should be the establishment of a specialised resource group consisting of senior international criminal lawyers who will be in a position to provide pro bono services to ensure necessary and rapid responses to the potential commission of international crimes and mass human rights violations, including urgent judicial review and interdict action. Practical next steps include the establishment of the core group by February 2009, and the first planning meeting of the group within the first quarter of next year. The international launch of the network should take place by mid-2009. To promote the functioning of the network, an interactive web-based calendar could be developed to coordinate activities, events and research, and provide an updated database of experts and technical assistance providers. 2. Given the important role for the media in civil society s promotion of international criminal justice, a list of skilled lawyers across the continent who can be used by the media for commentary, clarification and in-depth analysis should be drawn up and widely distributed. In addition, there is a need for training on international criminal justice to be offered to members of the media. This could be developed as part of the Network s activities. 4
3. Recognising the need to develop national criminal justice and judicial capacity to respond to core international crimes and other serious human rights violations, national awareness and training programmes for investigators, prosecutors, lawyers, and the judiciary are required. Development of these skills will support efforts to both draft and pass national implementing legislation. 5