Address by Judge Barney Afako on the occasion of the 7th Thabo Mbeki Africa Day Lecture at the University of South Africa, Pretoria Campus: May 27, 2016

It is a great honour and privilege to be here in South Africa, and to have been invited to deliver tonight’s lecture on a subject that is both topical and important for Africa. I am grateful to the Thabo Mbeki Foundation and especially to the Patron, President Mbeki, for making this possible, and to all of you for the warm welcome to South Africa.

Tonight’s lecture is about Africa. This bears repeating because our discussion will focus on this continent; on how we can better protect and defend it people, and create a better future for our societies.

Our topic tonight tells us two specific things about the African continent: it tells us that Africa is restless. A ‘quest’ suggests a serious and ongoing search for something – in this case, for answers to the important questions about Justice, Peace and Security in Africa.

We will also all agree, I think, that Justice, Peace and Security are, each one, essential ingredients for the transformation of Africa.

Tonight, though, we are asked to look at these three elements – Justice, Peace, Security – not in isolation, but to ask what is the proper place of the search for justice on the Continent. We are asking in particular, what is the significance of the International Criminal Court for Africa’s efforts to achieve justice, peace and security?

The African Context

We begin with the context in which this debate about the quest is taking place. This week we commemorate 53 years of the founding of the Organisation of African Unity, the continental body that, in 2002, was transformed into the African Union here in this country, under the leadership of President Mbeki.

On this Continent of 54 countries, we speak well over 1000 languages―up to 3000 if you count the dialects. This is a diverse home to beautiful tongues and identities: from Alexandria to Cape Town, from Dakar to Hargeisa.

We know, however, that alongside this beauty of diversity, Africa has faced immense challenges in its quest for stability and prosperity. We struggled for years to shake off the yolk of colonialism, and it was a particular joy when in Southern Africa: Mozambique, Angola, Zimbabwe lowered colonial flags and raised national flags.

The highest point for all Africans was when we saw the pictures of black South Africans queuing patiently in the sun for the new experience of casting a vote in the first democratic elections, which finally banished apartheid from the face of this continent. Those images are stored with pride in the memory of all Africans (and millions of others) who witnessed this final vindication of the dignity of black South Africans: free at last from the yolk of apartheid!

But even as we celebrated South Africa’s rebirth, we were returned at the same time to grim reality: over in the central African country of Rwanda, a terrible genocide was unfolding.

The story of how South Africa shook off apartheid, while Rwanda struggled to recover from the genocide represent two African responses, to two different situations of grave violations against Africans. South Africa and Rwanda illustrate that no two situations are the same, and response to crimes can vary from context to context.

Africa’s response to violations

Having grown up in Uganda, in the period of dictatorship and political upheaval since her independence in the early 1960s, I have witnessed the consequences of the OAU’s policy of non-interference in the internal affairs of member states, when Ugandans died at the hands of their state with little response from other African governments – except when Mwalimu Julius Nyerere intervened, going against the prevalent approach.

With the transformation to the African Union, Africa learnt those lessons and reversed non-interference, replacing it with non -indifference to the commission of serious crimes committed Africans anywhere. It is now a tenet of the Union – enshrined in its Constitutive Act, that other Africans will become involved in a robust manner, as appropriate, whenever fellow Africans are subjected to heinous crimes.

It is easily, and perhaps conveniently, forgotten that the African Union has been at the forefront of protecting African lives: in Darfur, Burundi, the Central Africa Republic, Sierra Leone, Somalia or the Democratic Republic of Congo. In many cases, this has required the ultimate sacrifice of our soldiers in the defence of fellow Africans. This is no longer a Continent of indifference.

We have, however, come to learn that to address conflict effectively, takes more than sending troops into the situation, important as these protection efforts are. It has become quite clear that in order to stop permanently the often understand each situation in which violations have taken place.

Increasingly, it has become clear that at the heart of these contestations, is the failure to manage that beautiful diversity of Africa to which we referred earlier. The failure to build credible democracies in which all are equal citizens, feeds grievances that can trigger and sustain conflict.

This was the conclusion that the African Union reached when it came to look into the conflict in Darfur; in the report of the Panel that President Mbeki led in 2009.

In our quest for peace and security, the Continent is therefore becoming impatient with solutions that do not go to the heart of the challenges that Africa faces. African needs durable solutions.

International criminal law in a world

The International Criminal Court operates in a world in which powerful states continue to shape the world based on their own interests, while weaker states, acting on their own, have little influence beyond their borders

This imbalance of power is reflected, among others, in the way that the United Nations Security Council is organised, where a few countries wield disproportionate influence and can instigate or block the interventions responding to the world’s crises.

These observations are not a digression from the topic of justice; it is essential to understand that the system of international law, of which international criminal law and the ICC is a part, reflects this global power imbalance. The very establishment of the ICC was itself a manifestation of the changes within that power structure.

With the end of the Cold War, the development of international criminal law received a major spurt of growth in the wake of the collapse of the Soviet Union. Suddenly, there was new space for international action on strengthening the enforcement of international human rights and a regime for international criminal justice.

It is not a coincidence that the United Nations set up the International Criminal Tribunals for Yugoslavia, and for Rwanda (in Arusha) after the collapse of the Berlin Wall. Such a move, including the Sierra Leone Special Court of 2002, would not have received international consensus in the Cold War political dispensation.

The new-found momentum led to the revival of efforts to establish a permanent international criminal court, and the Rome Statute of the ICC in 1998.

Africa and the ICC

Africa has been at the centre of the activity to establish the ICC. It is worth recalling that African states, led by South Africa, were key participants in the Rome Statute process. Today, 34 African States have ratified the Rome Statute and constitute the largest regional bloc of members of that Court.

When the ICC was created, the Statute was based on the following key principles:

  • that some crimes were now of concern to the international community as a whole;
  • that the ICC would be a court of last resort and not first option – this was to address the concerns about sovereignty and to ensure that states did not lose their prerogative to exercise criminal jurisdiction unless they were unable or unwilling to deal with the situation (this became known as the principle of complementarity);
  • an independent prosecutor and judges who would be elected by members and would not act under the operational direction of any other authority;
  • the possibility for the UN Security Council to bring or discontinue cases before the Court in certain circumstances.

As you all recall, the ICC was formally established in 2002, after sixty signatories of the ratified the Rome Statute. South Africa was, I think, the first African Country to ratify the Statute and the first to introduce national legislation aligning its laws with the ICC.

Since then disquiet has developed, because although the Court has been operational since about 2003, and has opened cases in Uganda, Democratic Republic of the Congo; Darfur, Sudan; Central African Republic (twice), Kenya, Libya, Côte d’Ivoire, Mali. All of these are African countries.

Most recently it has made a start on preliminary investigations in Georgia; the first outside the African Continent after more than 10 years of existence. Some have said that this is in reality an African-focused court.

Supporters of the ICC

The reason that Africans supported the court was that they wanted to be part of a bigger international system for justice, and readily assumed that the new system of international criminal justice would serve the interests of the Continent, and certainly it would not impede the African priority in that quest for peace and security, which we are discussing tonight.

Speaking here in South Africa at the University of Witwatersrand in 1998, about the what Africa could expect from the future Court, whose statute had just been adopted, UN Secretary General Kofi Annan, an esteemed supporter of the ICC, sought to reassure Africa that countries, like South Africa, grappling with transitions and adopting careful compromises like the Truth and Reconciliation Commission process would have no need to fear interference from the court. Annan said:

No one should image that it [ICC justice] would apply to a case like South Africa’s, where the regime and the conflict which caused the crimes have come to an end, and the victims have inherited power. It is inconceivable that in such a case the Court would seek to substitute its judgment for that of a whole nation which is seeking the best way to put a traumatic past behind it and build a better future.”

This was the consensus expectation of the time: that the Court of last resort would not impede important African transformations. The practice has been quite different: the tensions have arisen from the reality of the implementation of the Statute.

Even today, for supporters of the Court, the ICC remains necessary because it has given greater visibility to situations of violations on the African Continent, which might not have been addressed with the same vigour and commitment to justice in the absence of the ICC.

They argue that the prosecution of “big men” in good for democracy and the rule of law, because when leaders like President Charles Taylor, President Hissene Habre, Vice President Jean Pierre Bemba, President Laurent Gbagbo; President Muammar Gaddafi, President Omar Hassan Al’Bashir become the subjects of criminal justice, this sends the message that no one is above the law.

Another claim on behalf of the Court is that it has ensured that justice remains a priority on the agenda of the peace talks. Examples they cite include negotiations in Uganda, Sudan, Colombia, Congo, South Sudan are cited as some of the examples of how the ICC has influenced the content of peace agreements to prioritise justice issues. Without the ICC, dangling above as a Sword of Damocles, justice would be dropped from the agenda.

The Criticisms

After more than 10 years of operations, the ICC has attracted controversy, and some of that has played out here in South Africa quite recently. Beyond the media characterisation of the drama of these contestations, there are serious questions involved, and the criticisms need to be properly understood, particularly the position of the African Union on the Court.

In line with our earlier discussion of international power relations, the ICC is perceived as a tool of powerful, and more likely to be used to achieve the objectives of the strong and wielded against the comparatively weaker states.

More directly, the critics point to the power under the Rome Statute of the Security Council of the UN to initiate cases, which it used in Sudan and Libya, but not in other non-African contexts. Moreover, three of the permanent members of the Security Council have not themselves ratified the Statute of the ICC.

There is also a perception that the powerful states influence the operations and choices that the Court makes. Those who provide the budget as well as the political and diplomatic clout to facilitate the work of the Court, it is said, exert an indirect influence on the work of the Court, since the Court will tend to avoid decisions that might conflict with the interests of their key supporters. With Africa no such inhibitions exist.

While these are perceptions, they nevertheless affect the estimation of the Court, particularly when bystanders observe that for years no cases are being brought outside of Africa.

The second category of criticism relates to the way that ICC has performed its functions: it is said that even where the court has acted, it has approached African situations in a less than thorough, even naïve, manner. Here, the situation in Uganda is often cited.

I know something about that situation, and can say that the Court misread the political situation, particularly the views of victims of the conflict, who had wanted a peaceful settlement of the war, and saw the ICC as giving ammunition to those who wanted a military victory and were prepared to subject the population to a protracted conflict to achieve this elusive goal.

The ICC seemed unprepared for these criticisms and its staff had clearly not done their homework. A further criticism in Uganda, which is also heard in relation to Cote D’Ivoire and other situations, is the criticism that the cases were brought selectively.

In relation to Libya, the Court is said to have acted in haste after the Security Council referral, and seemed to believe that speeding up indictments would hasten the de-legitimation and collapse of the regime. No one can look with satisfaction at the outcome of NATO’s war in Libya, and it is a matter of concern for the reputation of the Court that the ICC was in the thick of that project.

Other criticisms relate to the practices of the court, and in particular its treatment of defendants: it is pointed out that individuals who face charges are held for long pre-trial periods without release. Judges often appear reluctant to release individuals even where the evidence is insufficient to convict; often giving the impression that acquittals or releases are not a welcome outcome at the Court, even though the Rome Statute enshrines the presumption of innocence.

On the African Continent, however, the key objection to international justice (and not just the ICC) is not procedural: rather, it relates to the question of the prioritisation of justice in contexts of instability. The reality is that in Africa’s quest for Justice, Peace and Security, the contribution of the ICC thus far has been quite controversial.

These are not just concerns of Africans: former international prosecutor for the Yugoslav Tribunal, Louise Arbour of Canada, is one of those who now questions whether the current international justice system has “resolved the tensions between the pursuit of peace and of justice in a workable fashion.” In recent writings, including in a 2013 lecture, she is critical in particular of the UNSC referrals in Darfur and Libya which she considers have not succeeded in contributing to peace, deterrence or reconciliation in those contexts.

Ms Arbour urges that neither peace nor justice can be achieved in crises such as Syria’s unless advocates of each (peace or justice) are willing to make some pragmatic compromises as part of coherent strategies to address conflict. In her view, if we do not acknowledge the severe shortcoming of the current approaches, the goals of international justice will remain elusive.

The African Union’s response

When the ICC started its work in Africa, the AU did not become involved in those decisions; there was, for example, no AU position on the ICC’s intervention in Uganda, the DRC or the Central African Republic.

The African Union became alarmed over the ICC involvement in Sudan only when the prosecutor decided to indict the president of Sudan in the middle of the delicate process of negotiating implementation of the Comprehensive Peace Agreement of Sudan.

The stance on the AU was not, as some have suggested, because the AU was indifferent to the plight of Darfurians. Most people do not realise that it was the African Union that first sent troops to Darfur, when Rwandans were dispatched to protect civilians. Nigerian troops later died in Darfur before the UN started to contribute to that process.

As in Darfur, African forces have served in dangerous parts of Africa, including Somalia; South African forces have been dispatched to several hotspots on the Continent. Quite clearly, therefore, the notion of AU indifference to the lives of African civilians does not survive scrutiny.

In Sudan, as in other parts of Africa, the AU was concerned because it did not agree that justice should jeorpardise, the peace and transition process in Sudan and between Sudan and the then Southern Sudan. When the AU cited customary international law immunities for heads of state, they were invoking the legal expression of the real politik case that sitting heads of state are often essential actors in affairs of their countries and in situations of conflict, they are quite key to the transformations that African countries are trying to achieve.

For the AU, removing heads of state without a serious consideration of the destabilising impacts of such an act, particularly in transition contexts is a reckless endeavour whose consequences are borne by the affected societies and not the ICC or the Security Council.

It is for this reason that the AU called upon the UN Security Council to act under article 12 of the Rome Statute to suspend ICC action in relation to President Bashir (but not the other Sudanese indictees). The AU has never sought to prevent the cases against others proceeding.

The search for African alternatives

Beyond its criticism of the ICC and the Security Council, the AU has sought to contribute to the quest for justice, peace and security in a coherent manner.

In May 2013, the AU Assembly requested the African Union Commission to collaborate with the African Union Commission on International Law, to organize a broad ‘brainstorming session’ to consider three issues: (a) the international criminal justice system (insofar as it impacts upon the Continent); (b) the pursuit of peace, justice and reconciliation; and, (c) the impacts and actions of the ICC in Africa.

This little-publicised decision is significant because at the very highest level, the AU was calling for the kind of serious intellectual reflection that is necessary if satisfactory answers are to be found to the issues of priority between justice, peace and security on the Continent. This is a call for analysis.

Wherever conflict has visited on the Continent, it has laid waste to whole communities: leading to displacement, damage of infrastructure, high mortality rates from preventable disease. In northern Uganda years ago, when visiting another of those bleak camps of displaced humanity, another visitor pointed out to me: “there are no flowers”.

This ‘extinguishing of colour’ and the fast and slow death in Africa’s wars, must drive us beyond slogans to ask what is it that needs to be done to stop the wars and then to achieve the transformation and security that will prevent the return of violence.

As Louise Arbour illustrated, these are difficult questions that cannot be answered by ignoring either peace or justice.

The options Africa faces regarding the ICC: The choices that are currently being presented to dissatisfied African countries are: (i) to abandon the Rome Statute, and thus pull-out of the ICC; or (ii) to amend the Rome Statute so that in its implementation the concerns about interference with necessary transitions are addressed; (iii) to revisit the interpretation of the Rome Statute to re-orient its jurisprudence to enable the ICC to better respond to transitional situations.

The first option is borne of immense frustration by the African Union that the ICC and the Security Council are not listening to Africa. However, this option is not a full answer, even if it is achieved. The quest for the justice, peace and security, will remain challenging in situations requiring transition from conflict and repressions.

Moreover, the alternative cannot be simply replicating the ICC on the continent: an African Criminal Court that applies the same principles and approach will not meet the needs of African transitions. In any event, a withdrawal from the Rome Statute would still leave the Continent vulnerable to Security Council referrals.

The second and third options for reform, hold out some promise, although they are not straightforward roots. Amendments of the Rome Statute are not easy to achieve, and require consent of the other signatories. Up to this point, there has been little appetite for amendment of the Statute.

A more plausible root is to influence the decision-making of the Court by helping the judges and prosecutors of the court to interpret the Rome Statute in a manner that will serve the needs of African and other situations of transition.

Elements of an African Response

The primacy of African analysis: Taking seriously the call for the AU Assembly for analysis, Africans must organise ourselves, and solicit the solidarity of others, to identify principles that will inform our own responses to the consequences of conflict, and beyond that to re-direct the international criminal justice project to contribute more consciously to successful transformations.

Drawing on varied experiences and contributions from across the continent, we must, within our academic and legal institutions, ponder the limits and potential of law and legal processes for dealing will transitions, and identify some principles that will guide decisions on how to respond to crimes while at the same time protecting and even enhancing the prospects of peaceful transition to stability.

In this endeavour, we must acknowledge that some of the current thinking on how to navigate between the demands of justice, peace and stability, have become formulaic and incapable of providing any real guidance to policy-makers.

Only by such reflection will Africa be able to shape the direction of international criminal law, making it relevant to the challenges the continent, and indeed the world, faces today, including rise of violent extremism. We should not imagine that we will be able to indict Boko Haram, Al Shabaab and Daaesh out of existence.

The centrality of the Political context: If any African perspective has already emerged in the contestation surrounding the ICC, it is the conviction that to put a permanent stop to violations associated with a conflict, it is imperative that we understand and address the causes of the violence.

One of the effects of the rise of international criminal justice is an increased tendency to separate the justice question from other solutions; to de-contextualise the crimes with which justice is concerned. This narrow approach inevitably heightens tensions between justice and peace-making, because it foists impractical solutions on complex contexts.

Africans are discovering, at some cost, that leaving the solutions to the judgement of prosecutors and judges, can produce unsatisfactory results. An African response must therefore re-infuse the notion of the political into understandings and goals of accountability.

This must involve finding the language and propositions by which prosecutorial and judicial decisions relevant to transition contexts, can take account of political contexts, including the potentially adverse impacts of justice interventions on a transition. It is not enough to leave political out of the consideration of the judicial.

Reclaiming Reconciliation: If the starting point must be to understand the political context, there is also a need for greater clarity about the goals of transition contexts, which in our topic tonight are encapsulated in the concept of “security”.

Classically, criminal justice aims, among others, to punish crimes as a vindication of the values of society; in order to deter others; and to contribute to the rehabilitation of offenders, and thereby protect society.

International criminal law, on the other hand, emphasises the need to vindicate the values of humanity – since some crimes are of concern to international community as a whole.

Whether they seek to describe a political goal or a social process, Africans are able to continue to use words like ‘reconciliation’ and ‘healing’ which do not find expression in international criminal law. In referring specifically to reconciliation in its May 2013 decision, the AU Commission was acknowledging that violations arise in the context of political divisions, and that crimes cause deep disruption to the fabric of society.

The idea that all divisions can be transcended, and that no wound is beyond repair is woven into the African worldview, and already shapes responses to serious violations. Thus, in northern Uganda, Mozambique and other contexts, communities have called upon traditional rituals of social repair to serve their need for healing and social repair after periods of turbulence and violence. As I once heard a mediator say to the negotiating parties: ‘African disputes always end up under a tree’.

We therefore need to find a way of translating these profound African understandings of reconciliation and healing into principles that our own criminal justice systems reflect, and into language and concepts that international criminal justice can appropriate.

What is required is clear principles to inform the policy and judicial decisions on the role and when criminal justice interventions might be inappropriate, and not in the interests of justice.

Finding Africa’s voice

In examining the International Criminal Court and Africa’s quest for Justice, Peace and Security, we must conclude that the ICC is indeed a court located in a global system that remains deeply imbalanced and in which Africa’s influence is still peripheral. Moreover, the ICC, as a court of last resort with limited operational capacities, cannot be the principal forum for accountability in African contexts.

Therefore, to state Africa needs its own solutions is not a subversion of the Court but the assuming of African responsibility for managing its transitions. Thus while the argument continues regarding African membership of the Rome Statute, the more important debate that should animate us is how Africa can formulate, and then propagate, viable policy alternatives on how to reconcile peace and justice.

We can already state from what is already apparent on the Continent that the answer in our quest will include: a commitment to accountability; sensitivity to political context; and, a priority to reconciliation.

There will need to be more refinement and elaboration of the answer, but if Africans are to shape the evolution of international criminal law, including the reform of the Rome Statute system, the Continent will need to mobilise her legal minds and draw support from others, to articulate the priorities, values and needs that should inform African jurisprudence and guide African transitions.

None of this will happen without strong leadership within and outside the African Union based on strong analysis and a clear strategy to reclaim this territory. In this task, we will rely on our academic institutions, especially the universities across Africa, and such entities as the Thabo Mbeki Foundation to help in mobilising progressive African thinking on these questions, so that Africa can find her own voice in her quest for justice, peace and security.

Thus shall we re-claim: “There is always something new coming out of Africa.”

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