The last few years have witnessed much debate and controversy over the implementation and institutionalisation of international criminal justice in Africa. This was in great part triggered by the International Criminal Court’s perceived bias against the continent.
Until early 2016, all situations under investigation by the Court were exclusively in Africa (Uganda, Democratic Republic of Congo, Central African Republic, Sudan, Kenya, Libya, Côte d’Ivoire and Mali). The Court’s decision to prosecute a sitting head of state (Omar al-Bashir of Sudan) and a then sitting deputy prime minister and aspirant president (Uhuru Kenyatta of Kenya) further fuelled tensions between the ICC and Africa’s leaders, with some calling for a collective withdrawal of membership.
However, that call has so far not materialised. While South Africa, The Gambia and Burundi officially notified the United Nations of their intention to withdraw from the ICC in October and November 2016, Burundi is the only country to have maintained its decision, which will be effective from October this year. Following the electoral demise of long-time president Yahya Jammeh, The Gambia rescinded its withdrawal notification, while a ruling by the High Court of South Africa declared that country’s withdrawal illegal.
Even more tellingly perhaps, the reach of international criminal justice in Africa, whether carried out by the ICC or other ad hoc institutions, has expanded over recent years. This is true at the level of the institutions themselves, but also in terms of the nature of the crimes being investigated by the ICC and the support offered to the victims.
The case of Hissène Habré
One very clear, if somewhat isolated, sign of this institutionalisation has come in the form of Africa’s first homegrown international criminal justice institution and trials. During 2015-2017, the Extraordinary African Chambers (EACs) tried the former president of Chad, Hissène Habré. He was convicted, in both the first and the appeal trials, of crimes against humanity, war crimes and torture.
The EACs, based in Dakar where Habré had been living in exile since his demise, were created under very specific circumstances and after a long struggle led by the victims themselves and civil society actors, notably in Chad and Senegal. It is unlikely that such a model will be reproduced any time soon and it could also be interpreted as a gesture of good will by African leaders whose growing opposition to the ICC has been attracting considerable criticism from their own civil societies, as well as from the donor community and international NGOs.
Nonetheless, the fact that the EACs were created under pressure from the African Union and with a majority of African funds suggests that Africa’s leaders have come to the realisation that there is a popular and international demand for criminal justice at the highest levels.
The Malabo Protocol
Another sign of this institutionalisation of international criminal justice by and in Africa is the plan to extend the jurisdiction of the African Court of Justice and Human Rights to include international criminal law. Of course, this too may be read as an attempt by African leaders to reign in and better control an international criminal justice that has not hesitated to target them, especially as the Malabo Protocol includes a clause which gives immunity to sitting heads of state.
So far little progress has been made in implementing the Malabo Protocol and creating the promised, expanded Court. Many say this is essentially due to a lack of political will to fight impunity in Africa. If the Court ever came into existence though, it seems very likely that victims and civil societies would soon take cases to it and test the continent’s readiness to take international criminal justice into its hands.
Expanded landscape of crimes
The institutionalisation of international criminal justice is also visible in the nature of the crimes that are being investigated and prosecuted on the African continent. The ICC and the EACs have innovated by adding new types of crimes to the crimes against humanity and war crimes that have belonged to the international criminal justice repertoire ever since the post-Second World War Nuremberg Trials.
During Habré’s trial, the EAC judges agreed to add the crime of sexual violence to the long list of crimes for which the former leader was answerable. While the condemnation for sexual violence was upheld in the appeals verdict, that for rape was not (for procedural grounds, as new facts had come to the knowledge of the courts very late in the trial, once one of the victims had found the courage to testify).
In 2016, the ICC prosecuted Islamic militant Ahmad al-Faqi al-Mahdi for the war crime of cultural destruction against world heritage sites in Mali’s Timbuktu. At a time when similar world heritage sites were destroyed or threatened in Iraq and Syria, the Court was thus unambiguously, if not uncontroversially, expressing its willingness to deter such a crime by adding it to international criminal justice’s purposefully limited repertoire of serious crimes.
In a further sign of the Court’s desire to widen its scope, prosecutor Fatou Bensouda announced in May that her office was considering launching an investigation into alleged migrant-related crimes in Libya.
The victims
International criminal justice has also extended its presence in Africa by reaching out more effectively to the victims and the civil society organisations that support them. Habré’s victims and their supporters played a determining role in bringing him to trial and pushing Senegal and the African Union into agreeing to an Africa-based trial. The victims were able to participate in the court proceedings as civil parties (a provision that does not exist in the ICC’s Rome Statute), and could thus play a more active role in the preparation of, and during, the trial.
The judicial work carried out by the EACs, like the ICC, is also increasingly being complemented by outreach activities meant to reduce the distance inherent in an international justice carried out far away from the countries where the crimes were committed, and thus from their victims and the societies that were most directly affected by them.
In the Habré case, for example, video summaries of the trial were shown by the EACs’ outreach programme to communities across Chad and were followed by discussions and debates.
In several recent cases, finally, this official recognition of the victims has also come in the form of financial reparations. The EAC verdict against Habré awarded reparations of 10 to 20 million CFA francs (US$16,350 to US$32,702) to his victims and their family members.
Similarly, in its first decision awarding financial compensation, the ICC ruled in March this year that the victims of Germain Katanga, an ex-militia leader in the Democratic Republic of Congo, should each be awarded a sum of US$250.
This was followed by a landmark ruling on 17 August 2017 in which the ICC found al-Mahdi liable for €2,7 million US$3,1 million) in personal damages for the destruction of Timbuktu’s religious and historic buildings. They emphasised that his poor financial standing did not absolve him from paying. The Trust Fund for Victims, which implements the judge’s rulings, must now decide on how the reparations will be paid.
Challenges
The extension of international criminal justice’s reach as described here comes with its own, new challenges. The first and most obvious risk is that the judicial actors, in the hope of increasing their legitimacy and credibility, may be tempted to overstretch their already very limited resources. With new investigations, cases, types of crimes and (outreach) activities come additional workloads – which ICC funding, provided by UN member states, does not always cover. Paradoxically there’s also the risk that an increasingly complex and extended judicial machinery, in wanting to cater for all and extend its reach, could become more difficult to comprehend and lose sight of its primary raison d’être.
Amnesty International thus expressed reservations at the opening of al-Mahdi’s trial for cultural destruction, noting that while the case broke new ground, the world should not “lose sight of the need to ensure accountability for other crimes under international law, including murder, rape and torture of civilians that ha(d) been committed in Mali since 2012”.
While reports of the death of international criminal justice in Africa are therefore greatly exaggerated, it is no doubt a fragile work in progress, one whose means, reach and coherence are to be usefully and frequently reviewed.
(Main image: AFP/Seyllou Giallo via Getty)
The opinions expressed in this article are those of the author(s) and do not necessarily reflect the views of SAIIA or CIGI.
