African NGOs Speak Out on International Justice
Refugee Rights News
May 2009
Recently, there have been growing indications that support for international justice in Africa is waning. Concerns about the use of universal jurisdiction in Europe and about the lack of political sensitivity of the International Criminal Court (ICC), have been building. Since the announcement that the ICC was pursuing a case against Sudanese President Omar Al Bashir in July 2008, these voices have been heard increasingly loudly.
There have been suggestions that an African court could alternatively, and perhaps more effectively, address the need for justice. Since the African Union (AU) summit in January and February, the AU has officially resolved to explore the possibility of the African Court on Human and People’s Rights hearing criminal cases and to convene a meeting to discuss the work of the ICC in Africa.
In this context, advocates seeking effective justice mechanisms have increasingly looked to target African Union member states to uphold their commitments, including through the 45th Ordinary Session of the African Commission on Human and People’s Rights (ACHPR) in May, the Ministerial Meeting on the ICC and the African Union Summit of Heads of State and Government on 24 June-3 July, African NGOs.
Advocacy at the ACHPR
For two weeks beginning 13 May 2009, the 45th Ordinary Session of the African Commission on Human and People’s Rights (ACHPR) united African Union member states in the Gambia under the theme of human rights. In the days leading to the event, prominent African civil society organisations met in Banjul.
The participating NGOs adopted a resolution on international justice in Africa on 10 May, including recommendations directed to the ACHPR itself. The “Resolution on Strengthening International Justice in Africa” called on AU member states to take concrete steps to end impunity for the crime of genocide, crimes against humanity and war crimes and asked the ACHPR to “[u]rge the member states of the African Union that have not yet done so to ratify the Rome Statute and to ensure its effective implementation at the national level.” The Rome Statute of International Criminal Court (Rome Statute) is the treaty which established the ICC.
On 10 May, Crisis Action, Human Rights Watch, International Federation for Human Rights (FIDH) and the Darfur Consortium met with the President of the ACHPR, Ms. Sanji Mmasenono Monageng of Botswana, to inform her about the resolution and ask for her support. According to Darfur Consortium West Africa Focal Point, Djibril Balde, Ms. Monageng, who is now a judge at the ICC, was supportive of the resolution but expressed concern over rumours that the 30 AU member states of the Rome Statute might withdraw.
FIDH, Darfur Consortium and the African Centre for Democracy and Human Rights Studies organised an event titled “International Justice and Africa” on 15 May 2009. Former Gambian Minster of Justice Ms. Fatou Bensouda, currently the Deputy Prosecutor of the International Criminal Court, was among the panellists, as was Amir Suleiman of the Khartoum Centre for Human Rights and Environmental Development.
In her presentation, Ms. Bensouda stated that Africa had played a crucial role in the creation of ICC with 47 African states were present for the drafting of the Rome Statute in 1998. Of these 47 African countries, the large majority voted in favour of adopting the Rome Statute and establishing the ICC. Currently, 30 African states are party to the Rome Statute and an additional 13 are signatories.
Addressing concerns that the ICC was violating sovereignty, Ms. Bensouda noted that the ICC as an international justice system was created to be complementary, and that national systems should take up the primary responsibility of investigating and prosecuting war crimes, genocide and crimes against humanity. The ICC would only initiate proceedings when national systems are unwilling or unable to handle a case. She noted that, along with the ICC’s limited mandate, the Court had limited capacity to proceed with investigations and trials. As a result, the court requires the full cooperation of states parties as indicated in Part 9 of the Rome Statute which details requirements for international cooperation and judicial assistance.
Ms. Bensouda vowed the ICC would continue the fight against impunity and work to end the occurrence of war crimes, crimes against humanity and genocide.
Gathering International Justice Advocates
While advocates gathered in Banjul tried to push the Commission to take a stand supportive of justice, a number of NGO gatherings sought to coordinate and empower African advocates supportive of international justice. On 11 May, the Institute for Security Studies (ISS) hosted a meeting of representatives of African civil society organisations in Cape Town. The participants at that meeting acknowledged serious concerns about the functioning of the Court. They noted objections “expressed by various African leaders that Africa appears not to be treated as an equal participant in the application of international criminal justice”; however, the 39 signatories to the statement called for constructive engagement and “urge[d] the 30 African States Parties to use their powerful position on the ICC’s Assembly of States Parties to constructively address the concerns about the Court”.
The representatives gathered in Cape Town also called on African states to take steps to promote justice and facilitate the “development of domestic, regional and international criminal justice mechanisms and capacity to respond to international crimes”.
In late May, the Coalition for the International Criminal Court (CICC) brought together another group of advocates for its African Strategy Meeting in Kampala. 24 African NGOs participated. Recognising the resolution from the NGO Forum, the group urged African states parties to “[c]ommit to respect the principles established under the Rome Statute and not to take any steps that could undermine the functioning of the Court”.
In addition to making recommendations to African states, the CICC called upon the ICC to improve its outreach campaigns to elected officials, civil society and the public in Africa.
On 6 June, the International Refugee Rights Initiative joined together a number of legal experts to consider the possible role for African regional and sub regional mechanisms in contributing to the cause of accountability for serious crimes in Darfur and elsewhere on the continent. The session sought to address the appropriate role for these institutions in the context of the contention often made at a political level within the African Union and among African states that African mechanisms might more appropriately address questions of justice on the continent.
The session issued a public letter to the meeting convened by the AU on 8-9 June, acknowledging the difficulties facing the ICC's operations in Africa, but urging states parties to engage with the appropriate mechanisms within the framework of the Rome Statute to improve the court's performance in Africa. In particular, the letter noted that states had both a responsibility and an entitlement to participate "in debate and decision-making within the relevant Bureaux and organs of the ICC Assembly of State Parties". The letter also noted that the ICC review conference, slated to take place in Kampala in 2010, would offer an important forum for stock taking and possible reform of the ICC. The letter also noted the need to strengthen regional and sub-regional mechanisms. (The full letter is available here)
African Voices in the Media
The decision to issue a warrant of arrest for the Sudanese President Omar Al Bashir sparked a strong debate in Africa regarding the appropriateness of the ICC’s action (see “The Reaction to the Arrest Warrant Against Sudanese President Al-Bashir” in Refugee Rights News, Volume 5, Issue 2, April 2008). The debate has continued in the run up to the 8-9 June AU meeting.
In Jeune Afrique, Nobel Prize winners Dr. Wangari Muta Maathai, Wole Soyinka and Archbishop Desmond Tutu wrote in support of the ICC: “[w]e are convinced that the ICC is an effective vehicle towards achieving justice on a global level…The victims of every nation deserve access to justice, and the ICC provides a forum for those who have nowhere else to turn.” Lucile Mazangue, a member of the Association of Female Lawyers of the Central African Republic, writing for AllAfrica, noted that critics of the ICC should work with it in order to promote justice for victims of mass crimes: “[i]nstead of trying to weaken the court, they should proudly support its mission, building its strength to a point at which nations refusing to subscribe to its jurisdiction will be under pressure to join.”
The Way Forward
Although there were that the AU's meeting to assess the ICC's work in Africa, held on 8-9 June, might become a venue for the withdrawal of some of the 30 African states parties from the Rome Statute, the ICC’s establishing treaty. Withdrawal, although it would not take practical effect for a year, would undermine the ICC and call its future into question. This threat, however, did not materialise at the session, where states expressed concern about the Court's move against Bashir, but supported the notion of deferral for one year under the terms of the statute, rather than outright rejection.
These are trying times for international justice mechanisms, particularly the ICC. As African civil society organizations and African media continue to call for accountability for unspeakable crimes, political figures will be forced to listen and develop mechanisms to promote justice.