The Hague University of Applied Sciences and the School of Human Rights Research cooperated with the Netherlands Association of African Studies to host a fascinating, interdisciplinary conference exploring the deterioration of Africa’s relationship with the International Criminal Court.
Professor Makau Mutua delivered a keynote lecture titled “Africans and the ICC: Hypocrisy, Impunity, and Perversion” which explained the ironic situation in which the ICC is now being accused by African leaders of committing the same crimes as is its mandate to prosecute. He gave an overview of the historical perspective that international law was applied to maintain Northern hegemony and control over African natural resources resulting in the trauma of slavery, colonialism, and the Cold War. He outlined the dilemmas resulting from the phenomenon of autocracy and hypocrisy within African leadership, pursuing human rights language when its suits them but also engaging in critical narratives against the international system to secure self- interests. Nevertheless, the ICC is gravely marked by the appearance of selective prosecutions and raced-based justice. Further, he argued that the AU is satisfied with the ICC as long as it only prosecutes Africans who are not heads of state, hence it is viewed as legitimate when pursuing non-state actors. He emphasized the importance of distinguishing the African Union from African society, as there was no monolithic African view on the ICC.
The conference included papers addressing alternative dispute resolution mechanisms which seek to offer restorative justice, such as the “Judia System” as described by Professor Mohamed Abdelsalam Babiker. He explained the advantages of greater accessibility, transparency, and opportunity for participation and control by victims in the proceedings and award of compensation. Nevertheless, one may argue that there is a need to ensure a means by which to ensure gender equality in customary proceedings and this may require incorporating international standards.
Augustine Hungwe characterized the ICC as suffering from an “institutional superiority complex” in which it appears to “talk down “ to Africa by providing unsolicited lectures on international law to African leaders, several of whom actually have Phds in Law. He stated that the ICC seemed preoccupied with law when the solution to the problem will actually not be a legal one. This was complemented by Keynote speaker Solomon Ayele Dersso who lamented the ICC’s “isolationism” which appears to be unconcerned with local peace processes, thereby resulting in clashes due to lack of proper timing and sequence. At the same time he recognized the lack of credible domestic legal systems in several African nations.
Matthew Kane explained the lack of accessibility of ICC judgments and gave suggestions as to how to improve their quality, including summarizing key facts and findings of law, providing the human story, recognizing background historical events and larger conflicts, and reducing the length of judgments.
Associate Professor Charles Jalloh gave a stirring “keynote via Skype” in which he underscored the dysfunctional interplay between the ICC and the Security Council due the latter’s selective referrals, resulting in significant legitimacy costs. He highlighted the political nature of the Security Council and called for its reform, as well as potential for engagement by the General Assembly. He also called upon the Security Council to improve enforcement for the ICC pursuant to Chapter VII.
Professor Kamari Maxine Clarke gave a third keynote lecture addressing “Legal Encapsulation and the Anti-ICC Pushback” in which she delineated the ICC as pursuing a narrow definition of justice (to be equated with law but self-characterized as imbued with moral authority) which seeks to help victims and save lives via deterrence. Nonetheless, the ICC has experienced problems in its management of victims and witnesses calling into question its legitimacy. The ICC’s rhetoric of “legal encapsulation” is countered by African “politics of affect” which play on the history of colonialism and perception of global marginality. One may argue that the ICC prosecutor is countering the counter by emphasizing its role in vindicating women and children subjected to sexual violence, thereby providing another version of affect.
Corinna Frey explained that there is no general African opposition to the ICC, that opposition depends on context. She outlined how some governments (eg Uganda, DRC, and Ivory Coast) benefitted from ICC investigations because they addressed rebel groups, whereas the Kenyan case is the first in which both sides to a conflict are targeted for prosecution. In her opinion, the legitimacy challenges arise from the practice of victor’s justice.
Dorothy Makaza presented the potential for a regional African supranational criminal jurisdiction, discussing the proposals for the protocol extending the mandate of the African Court of Justice and Human Rights (with 15 additional crimes, including piracy, terrorism, trafficking in persons, unconstitutional changes of government, and corruption.) She noted that the African protocol seeks to grant heads of state immunity so there is concern. Nevertheless, she supported the idea of a regional body as enjoying greater legitimacy than the ICC due to greater access, participation, and proximity to local communities. One is left with the concern that there is a need to significantly improve national justice systems before embarking on expanding the regional level, otherwise it is likely that the regional court will be unable to enforce its orders.
The final keynote was provided by Shamiso Mbizvo on behalf of the Office of the Prosecutor (ICC) who emphasized the inclusion of Africans as judges and staff within the ICC, as well as the contact with African victims who insisted that the ICC was the most legitimate institution they could rely on. She stated that critiques about selective prosecution should be directed at the Security Council. She also pointed out the failure of several states to sign and ratify the Rome Statute or to conduct genuine national criminal proceedings. In contrast, she also noted the efforts of other states, such as Colombia, to pursue national prosecutions while consulting with the ICC, thereby providing good examples of the potential for complementarity initiatives.
The conference also included an exhibit of African political cartoons addressing the conflicts between African leaders and the ICC; as well as a stunning photo exhibit titled “Rwanda 20 Years” in which photographers-Pieter Hugo and Lana Mesic- captured Rwandan perpetrators and survivors pursuing reconciliation. Both exhibits were designed by Creative Court.
Congratulations to Froukje Krijtenburg, Eefje de Volder, Abel Knottnernus, Ingrid Roestenburg, and Jos Walenkamp for their innovative vision!