Debating International Justice in Africa - Foundation for Law, Justice ...

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Debating International Justice in Africa - Foundation for Law, Justice ...

4 . CONTENTSHead of State Immunity and the ICC: Can Bashir be Prosecuted? 85Pondai BamuThe Bashir Indictment: Are Serving Heads of State Immune from ICC 87Prosecution?Dapo AkandePart ThreeThe Politics of Violence and Accountability in Kenya 90The Normalisation of Violence 90Daniel BranchDIY Violence is Corrosive of Nationhood 92Daniel WaweruKenya Post-2008: The Calm before a Storm? 95Gabrielle LynchThe Spectre of Impunity and the Politics of the Special Tribunal in Kenya 97Tim MurithiWatu Wazima: A Gender Analysis of Forced Male Circumcisions 99during Kenya’s Post-Election ViolenceWanjiru Kamau-RutenbergKenya: Our Possible Futures; Our Choices 102Sisule MusunguAccountability Debate in Kenya Unfolds in a Near Policy Vacuum 104and Ethnic TensionGodfrey M. MusilaTruth, Justice, Reconciliation, and… Land Tenure Reform? 107Chris HugginsSpecial Tribunal Enactment: Why Cabinet, MPs are Misleading Kenyans 110Ndung’u Wainaina and Pamela Chepng’etichIncremental Judicial Reforms in Kenya 111Charles A. KhamalaDecreeing and Establishing a Constitutional Order: Challenges Facing Kenya 114Yash GhaiA Radical Proposal to Deal with our Prejudices 117Lukoye Atwoli


LOOKING TO KAMPALA: THE CHALLENGES OF INTERNATIONAL JUSTICE IN AFRICA . 9Looking to Kampala: The Challenges ofInternational Justice in AfricaPARTONEThe Standoff between the ICC andAfrican Leaders: The Debate RevisitedEmmanuel Saffa Abdulai10 March 2010On 3 July 2009, at the 13th African Union (AU)summit of Heads of State in Sirte, Libya, Africanleaders resolved to “denounce the InternationalCriminal Court (ICC) and refuse to take action on theCourt’s order that should Sudan’s President Omar al-Bashir land in their territories, he should be arrested,and extradited for prosecution by the ICC, for crimesagainst humanity, allegedly committed in the Darfurregion of southern Sudan.”This essay argues that despite the fact that Africanleaders have subscribed to the ICC Treaty, emergingdevelopments show that African leaders have resortedto protecting themselves, implicitly sanctioning humanrights violations. As a result, they continue to spreada protective umbrella over their peers such as Bashir,even when there exists strong evidence of genocide inthe Darfur region, and mass displacements continueunabated. 1 It is important to note that in 2000 theleaders in the Organization of African Unity (OAU)created the African Union (AU) with the coming intoeffect of its Constitutive Act. The new institutionshowed determination to embark on reform. TheMechanism for Conflict Prevention, Management andResolution under the OAU was changed to the Peaceand Security Council (PSC), as a “standing decisionmarkingorgan for the prevention, management andresolution of conflicts.” 2 The PSC enshrines “therights…to intervene in a Member State pursuant to adecision of the Assembly” 3 in respect of gravecircumstances, namely war crimes, genocide andcrimes against humanity, in accordance with Article 14(h) of the Constitutive Act.” 4 The AU also establisheda standby force. 5 Among the functions of the StandbyForce is to intervene in countries where there is a“grave circumstance”, at the request of a memberstate, to restore peace and security. 6 Additionally, theforce can provide humanitarian assistance to civilianssuffering in conflict situations and in naturaldisasters. 7 Upon the coming into force of the ICC,African leaders endorsed it, ascribing in their majorityby having thirty signatories, and by signing the DakarDeclaration. 8 These developments solidified the AU’smove away from the doctrine of non-intervention inthe territorial integrity of each other’s countries. Theywere hailed by human rights activists all over Africaand seen as recognition of the real threat posed byinaction which creates regional insecurity in Africa.There was hope that African countries would take thelead in intervening to end brutal ethnic and politicalsuppression and civil wars by African leaders. The AUresolved that it would “take rights seriously”, in linewith the emerging norm of “humanity first”; andreplacing “the culture of impunity with the culture ofaccountability….” 9 This transformation was supposedto send a strong signal that African leaders could nolonger hide behind the principles of state sovereigntyand non-intervention to oppress their own people.So, why should the same leaders of Africa who only afew years earlier had shown such resolve to end massmurder, genocide, and heinous crimes within Africancountries now band together to defend one of theirown kind? Is it because they see the ICC as a non-African institution designed to prosecute mainlyAfricans?One reason may be that the prosecution of formerLiberian President Charles Taylor and the indictmentby the ICC of the Sudanese President illustrate thebeginning of a trend against which they must unite.Consequently, African leaders have argued that theSudanese indictment was mis-timed because theplight of the people of Darfur would worsen withreprisals from Bashir-supported militia. This argumentacknowledges that crimes against humanity were


10 . DEBATING INTERNATIONAL JUSTICE IN AFRICAunderway in Darfur, but those crimes against thehapless people are swept under the carpet, andrationalized according to the outdated doctrine ofterritorial integrity and sovereignty concerns. Theargument does not hold water, of course. For if theSudanese president were arrested and prosecuted, itwould send a message to whoever would succeedhim, and in turn that person would be unlikely towreak vengeance on the Southern Sudanese people.For instance, lessons learned from the indictment ofCharles Taylor have seen the West African sub regionbecome relatively quiet in terms of heinous crimescommitted by leaders against innocent civilians. Evenas recent events in Guinea-Conakry raised concerns,reference to mechanisms that are geared to stampingout impunity such as the Special Court for SierraLeone and the ICC quickly saw the quelling of whatwould have otherwise become a clampdown on civilsociety and a full blown crisis.Now, African leaders are calling for a negotiatedsettlement to the almost endless conflict in Darfur. Indoing so, they are displaying insensitivity to theenormous suffering of ordinary people who, even inthe best of times, are periodically murdered, andfrequently displaced into fetid refugee camps, withlittle or no access to health care, or food. Justice hasbeen slaughtered on the altar of internationaldiplomacy. In my view, African leaders refer to“negotiations” merely to buy themselves time, so thattheir fellow Head of State in Sudan will bestrengthened. With time, they hope the ICC net will bebroken, and they will thwart its wide sweep that mightcatch them when they suppress their own people andgovern outside the dictates of the rule of law.African leaders appear repulsed by what theyperceive as the ICC treating them as if they were stillcolonies of Europe. They appear united against theICC to protect their dignity as nations, and, with a nottoo subtle revulsion against what they consider to bea biased stance of the ICC. In taking up this position,African leaders have apparently forgotten that“individual state sovereignty can be overriddenwhenever the behaviour of the state even within itsown territory threatens the existence of theelementary human rights abroad and whenever theprotection of the basic human rights of its citizenscan be assured only from the outside.” 10 The era ofindividual sovereign discretion on how to treatcivilians in a given country is gone and what operatesnow in the international arena is an imperative toprotect human rights. This imperative enshrines theresponsibility of the international community toprotect vulnerable groups in conflicts if the states inquestion fail to do so. Hence, African leaders haveindividual and collective responsibility to ensure thatrules of jus cogens, especially the rule on theprevention of genocide, are upheld. 11If African leaders have legitimate concerns over anaffront to the dignity of African nations, they haveother options like the platform they created manyyears ago, namely the Ezulwini Consensus, whichresolved that the United Nations Security Councilshould be reformed, including expanding itsmembership. 12 But one of those options must neverbe to undermine the international global justicemechanisms which stand on universal principles ofjustice and which cannot be particularized to onegroup of people. There is no “African Justice” or“European Justice” or “Asian Justice” – there is“Universal Justice” which must abhor not onlyinternational economic injustice, but must beuncompromising against all forms of crimes againsthumanity. What the leaders of the continent shoulddo is to table an alternative mechanism to the ICCthat will uphold the prevention of war crimes, crimesagainst humanity and genocide. Or if the AU canbuild up a case of injustice, even racism, against theICC then they have the option of the platform of theEzulwini Consensus. African representation in theSecurity Council could lay to rest some of the cries ofinjustice in the international justice system today, ofwhich the ICC’s indictment of the Sudanese presidentis seen as a manifestation.With the present stance, indisputably, Africa isreverting to a past where African leaders havecolluded to slaughter their kinsmen with impunity. TheAU appeared to have escaped from its murky depthsafter former Tanzanian President Julius Nyerere


LOOKING TO KAMPALA: THE CHALLENGES OF INTERNATIONAL JUSTICE IN AFRICA . 11derided it as “a trade union of the current Heads ofStates and Governments, with solidarity reflected insilence if not in open support for each other”. Now, inits position on the ICC’s decision to indict theSudanese President, the AU has regressed to aposition that allows gross violations of human rightswithin each other’s countries.1. Report of the International Commission of Inquiry on Darfur tothe United Nations Secretary-General, The executive summarysurmises that two elements of genocide can be deduced fromthe gross violation of human rights. See page 4.2. Nsongurua J. Udombana, “When Neutrality is a Sin: The DarfurCrisis and the Crisis of Humanitarian Intervention in Sudan,”Human Rights Quarterly 27 (2005), pp.154-55. Also seeNsogurua Udombana, “Pay Back Time in Sudan? Darfur in theInternational Criminal Court,” Tulsa Journal of Comparative &International Law 13 no. 1 (2006), 2.3. Nsongurua J. Udombana, When Neutrality is a Sin” The DarfurCrisis and the Crisis of Humanitarian Intervention in Sudan,1151, (2005).4. The Assembly of Heads of States and Government of the Africanis called “The Assembly” and is the highest decision making bodyin the AU, which composed of heads of states or governments orrepresentatives of governments.5. PSC Protocol, art. 13 (1).6. Udombana, quoting PSC Protocol 13 (2).7. PSC Protocol, Article 13 (3) (c).8. Ibid Art. 13 (3) (f).9. The African Commission on Human and Peoples’ Rights (“theCommission”) in collaboration with the African Society ofInternational and Comparative Law and Interights organised aseminar on the right to fair trial from 9-11 September 1999 inDakar, Senegal.10. Michael J. Smith, Humanitarian Intervention, An overview of theEthical Issues (1998), Ethics & International Affairs, 12, p.77.11. Convention on the Prevention and Punishment of the Crime ofGenocide, Adopted by Resolution 260 (III) A of the U.N. GeneralAssembly on 9 December 1948. Entry into force: 12 January1951.Article 1.12. The Common African Position on the Proposed Reform of theUnited Nations: “The Ezulwini Consensus” Ext/EX.CL/2 (VII)Emmanuel Saffa Abdulai is a Barrister and Solicitor atLaw in Sierra Leone and an LLD Candidate inInternational Law. He is also the Executive Directorof Society for Democratic Initiatives (SDI) working ontransitional justice issues in Sierra Leone. Prior to hisworking for SDI, he worked at both the Truth andReconciliation Commission in 2004 and the SpecialCourt for Sierra Leone in 2006 and 2007. He can becontacted on measdrb@yahoo.co.ukUnderstanding Africa’s Position onthe International Criminal CourtComfort Ero10 March 2010INTRODUCTIONMuch of the debate around the International CriminalCourt’s (ICC) relationship with Africa has tended tofocus on the case of Sudan’s Darfur region and theCourt’s decision to issue an arrest warrant for thecountry’s President, Omar al-Bashir. At the July 2009African Union (AU) Assembly of Heads of States andGovernment summit in Libya, Libyan PresidentMuammar al-Gaddafi rallied his counterparts to signonto what became known as the “Sirte decision”, inwhich AU states resolved not to cooperate with theICC.As a matter of international law, the Sirte decisionwas hollow. But as a political decision, it was clear:international justice on the continent is now at amajor crossroads. This should not be misconstrued,however, as the continent being against the ICC. Infact, it is important to note at the outset that thetensions between the ICC and African governmentsoften disguise an important underlying fact: Africa’sstates are divided about the role that internationaljustice should play in contributing to the continent’sfight against impunity for mass crimes.Africa comprises fifty-three states whose views onthe ICC’s role are more varied and complex than isoften imagined. This was evident in Sirte where somestates (e.g. Botswana) had a different view fromothers (e.g. Rwanda and Libya) on the ICC’s role inSudan. African states, like others, approachinternational relations, including international justice,based on their individual interests. Their posturestowards the ICC are not homogenous. Each Africancase before the ICC is premised on varyingcircumstances and reasons, and so the ICC’srelationships with individual African countries alsovary. Yet, the Sirte decision also demonstrated thatAfrica’s leaders are becoming bolder and more vocalin their criticism and rejection of the ICC’s actions.What does this mean for the ICC’s role in Africa?


12 . DEBATING INTERNATIONAL JUSTICE IN AFRICAAWKWARD BUT VARIED RELATIONSHIPSIf judging only by the Sudan case, one would beforgiven for believing that the AU backlash againstthe Court renders its fate in Africa precarious. Onecould also argue that the initial backlash at Sirte isblowing over in the absence of a unified position onhow to respond to the Court. A fairer assessment ofthe continent’s relationship with the ICC is that it isawkward.On one hand, the relationship is based on theaspiration that Africa should never again witness thehorrors of genocide or apartheid, and shouldtherefore support the design of mechanisms toprevent such heinous crimes. On the other hand,states remain undecided about the types ofinterventions necessary to prevent such crimes,especially if such interventions originate externally.This ambivalence is shown by the fact that of Africa’sfifty-three states, thirty have signed the RomeStatute – but only three (Senegal, South Africa andKenya) have enacted legislation to incorporate theStatute’s provisions into domestic law.Further evidence of African governments’ unevenposture is that three African states – Uganda,Democratic Republic of Congo (DRC) and the CentralAfrican Republic (CAR) – voluntarily referred theircountry situations to the ICC for investigation andprosecution. This point is often used by those whoargue that the Court is not out to target Africa’sleaders. The important fact here is not that threeAfrican countries referred cases to the Court, butrather leaders in two countries, Uganda and DRC,used it as an additional tool against their adversaries.Another important issue is that leaders are far lesswilling to cooperate with the Court if the spotlight isturned on them or their acts.WORSENING DIFFICULTIES: THE AU’S SUDANCONCERNSSome African state parties to the ICC have becomesceptical of the ICC because of the arrest warrantagainst al-Bashir. While they have not openly supportedsome of the vociferous attacks against the ICC, statesconsidered ICC proponents such as South Africa andSenegal have expressed reservations about the arrestwarrant, arguing that is shows the Court’s lack ofpolitical insensitivity and poor judgement. PresidentAbdoulaye Wade of Senegal, head of the first Africanstate to ratify the Rome Statute, voiced his frustrationby saying that the Court “only tries Africans”. 1The AU says it remains committed to the fight againstimpunity and cites its Constitutive Act – which gives theAU the right to intervene to protect citizens againstgenocide, war crimes, and crimes against humanity – asevidence. It also states that its frustration is limited onlyto the Sudanese case and not to ICC interventions inUganda, the DRC and CAR (situations of State referral),and Kenya, where the Prosecutor has applied on hisown initiative to open an investigation against thealleged perpetrators of post-election violence. 2 So whatare the AU’s objections to the ICC in Sudan?First, it is concerned about the timing of the ICC’sarrest warrant against a sitting head of state in aconflict country. 3 It argues that securing peace shouldbe the first priority and that with time justice willalways reach those who have committed crimes. Onecannot dismiss the AU’s concern that the executionof an arrest warrant without a carefully managedtransition could lead to further instability in Sudanand its nine neighbouring countries. But thisargument is a variation of the numerous excuses forinaction that inevitably accompany justice measuresagainst a head of state.Second, the AU questions whether the Rome Statuteshould be binding on non-State parties (thecontentious Article 98 on cooperation with respect towaiver of immunity and consent to surrender). 4 Thequestion is a complex one and as yet, there remainsome doubts among States as to whether the arrestwarrant against President al-Bashir can be enforced ineither State Parties or non-State Parties.Third, the AU is disappointed with the UN SecurityCouncil’s “refusal” to acknowledge its request for adeferral under Article 16 of the Statute which grantspower to the Council to defer cases for one year. 5Related to this is the fact that only two of the


LOOKING TO KAMPALA: THE CHALLENGES OF INTERNATIONAL JUSTICE IN AFRICA . 13permanent five members of the Security Council –Britain and France – are signatories to the Statute,while the United States, Russia and Africa’s newestfriend China have yet to ratify the Statute.Finally, the AU criticises the major imbalance in theinternational arena in responding to justice. Onecannot dismiss the AU’s criticism about Westernhypocrisy and double standards especially in theaftermath of the Iraq and Afghanistan wars, as wellas the serious violations of international law by theUnited States – particularly the universal prohibitionagainst torture — in the context of the post 9/11 waron terror.The fact that international justice is powerless tobring action against powerful nations like the UnitedStates strengthens perceptions that internationaljustice is selectively pursued against weak statessuch as in Africa – and feeds accusations that theCourt represents a new form of neo-colonialism orjudicial imperialism.AVOIDING AFRICAN EXCEPTIONALISMThe AU’s concerns should not be dismissed, but thedecision of member states in July not to cooperatewith the ICC sent the wrong message to perpetratorgovernments and their allies. The South Africangovernment’s decision to distance itself from thisposition, after the urging of South African civilsociety organisations and prominent dignitaries, wasa welcome move. The impact of the Sirte decision onthe future of international justice remains to be seen,but it is part of a trend by African leaders to seekways to avoid accountability. Instead, they assert thatAfrica has its own brand of justice that espousesreconciliation over sanctions or punishment. It isunmeritorious and discriminatory to claim that Africanvictims do not deserve to seek criminal accountabilityfor serious international crimes with standing equal tothose of other victims of grave abuse.WELCOME RELIEF: THE WORK OF THE AFRICANUNION PANEL ON DARFURThe report of the AU High-Level Panel on Darfur,however, is a welcome relief because a group ofAfrican leaders have not shied away fromrecommending accountability measures. Headed byformer South African President Thabo Mbeki, thePanel was mandated by the AU Peace and SecurityCouncil (PSC) in July 2008 to examine the situation inSudan and submit recommendations on an effectiveand comprehensive means to address accountability,reconciliation and healing. It began its work in March2009 and submitted its report to the PSC in October2009. It recommends balancing the need for justice,peace and reconciliation by establishing a hybridcourt composed of Sudanese and non-Sudanesejudges and legal experts; the introduction oflegislation to remove all immunities of state actorssuspected of committing crimes in Darfur; and a‘Truth, Justice and Reconciliation Commission’.On the ICC, the Panel diplomatically avoids taking aposition. Rather, it provides carefully crafted languageby drawing attention to the fact that the ICC can dealwith only a limited caseload. It appears to offer anavenue to seek an Article 16 referral from the SecurityCouncil if a credible hybrid court is established. At thesame time, it asserts the Court’s independence on thequestion of complementarity by making it clear that itis for the Court’s judges to decide whether theSudanese government has made genuine efforts todeal with crimes in Darfur (Articles 17 and 19 onadmissibility). 6 President Mbeki’s recommendationsmay reach farther than the ICC if they are allowed towork, but there is a real possibility that they will beblocked by the Sudanese government.THE ICC REVIEW MEETING: A MEANS TO ADDRESSCONCERNS?I began this essay by stating that, while the relationsbetween the AU and ICC were more polarised overthe question of President al-Bashir, this should not bemisconstrued as a continental backlash against theCourt. Despite some real tensions and differences inapproach between the AU and the ICC, they do nothold competing views on dealing with impunity.Indeed, as noted, the AU’s Constitutive Act stillremains a vital document that binds, if sometimesloosely, its member states to the need to deal withmass violations of human rights similar to the ICC.


LOOKING TO KAMPALA: THE CHALLENGES OF INTERNATIONAL JUSTICE IN AFRICA . 15General of the United Nations Mission in Liberia(UNMIL), as well as a Political Affairs Officer for thesame Mission. Previously she was Project Director atthe West Africa office of the International CrisisGroup. In London in the 1990s she conductedresearch at King’s College, University of London andthe International Institute for Strategic Studies. Sheholds a Ph.D. in International Relations from theLondon School of Economics, University of London.This paper is adapted from a presentation made atthe Wople Open Dialogue in Cape Town on 17November 2009. I would like to thank my ICTJcolleagues for their comments: Mirna Adjami,Suliman Baldo, Olivier Kambala, Miranda Sissons andMarieke Wierda.Saving International Justice in AfricaChidi Anselm Odinkalu5 August 2009At the conclusion of its Summit in Sirte, Libya, on July1, 2009, the Assembly of Heads of State andGovernments of the African Union (AU) decided that“AU Member States shall not cooperate … in thearrest and surrender of President Omar al-Bashir ofThe Sudan“. In a press release issued two weeks later,on July 14, the organisation explained that thisdecision “bears testimony to the glaring reality thatthe situation in Darfur is too serious and complex anissue to be resolved without recourse to anharmonised approach to justice and peace, neither ofwhich should be pursued at the expense of theother”.This AU resolution responds to the decision of thejudges of the International Criminal Court (ICC) inMarch 2009 to issue a warrant for the arrest ofSudan’s President, al-Bashir, in connection withalleged war crimes and crimes against humanity inDarfur, Western Sudan. The AU’s decision has rightlybeen criticised on legal and policy grounds. The AUSummit is not the place to decide issues about theICC because 23 of the 53 members of the AU havenot yet accepted the ICC and this decision is capableof giving the unintended impression that the AUtolerates impunity for mass atrocities in Africa. Whatit does, however, is provide an opportunity toacknowledge and confront the many challengescurrently facing international justice in Africa.The greatest fears about the role that internationaljustice is playing in Africa arise not from crimesbehind us but in connection with a mass atrocity thatsome informed people foresee and all must work toprevent – a disintegration of Sudan into a regionalkilling field.I was born a refugee into the Nigerian civil war inwhich an estimated two million were killed in 30months. Most people in our continent are, like me,children of war, want, and deprivation caused mostlyby bad government. Like the rest of the world, our


16 . DEBATING INTERNATIONAL JUSTICE IN AFRICAneeds are basic. We desire a world in which ourpeople, families and ourselves can harness ourabilities in dignity, peace and justice undergovernment that is for us not against us.In most of our countries, these basic expectations ofcitizenship are illusory. This is why most of ussupported the establishment of the InternationalCriminal Court (ICC). For us, justice for mass atrocitiesis intimately personal. We believed the Court wouldhelp to end high level impunity for mass atrocities,enabling us to attain the best we are capable of. Yeta little over five years since the Court received its firstcase from Uganda in 2003, the initial optimism fromAfrica that greeted it has been replaced by hardenedskepticism from traditional opponents and, mostworryingly, by fear among victims and hostcommunities uncertain whether the Court can helpthem.The establishment of the ICC represented a majorbreakthrough in international diplomacy: the creationof a mutually respectful consensus around thecompelling idea of bringing to account those whobear the greatest responsibility for the worst crimesknown to humanity. But today mutual recriminationhas replaced respectful dialogue, debates on the ICCoften degenerate into epithets and supportivediplomacy is absent. Criticism of the Court, no matterhow constructive, risks being denounced as endorsingimpunity; support for it, no matter how reasonable, iseasily branded imperialism or its agent.Undoubtedly, the ICC has implacable enemies drivenby desire for unaccountable power but there are alsoreasonable fears about how the Court’s work couldaffect a precarious regional situation.Consequently, all nine countries that share a borderwith Sudan are on a war footing. Without agovernment for two decades, nearby Somalia isalready a major destabilising factor in the region.Uganda’s murderous Lord’s Resistance Army, longsupported by Khartoum and whose leaders are alsowanted by the ICC, is re-grouping in vast ungovernedborder territory between Sudan, Uganda and DRC.The 2005 ‘comprehensive’ peace agreement (CPA)that ended Sudan’s half century-long north-southwar risks breakdown, while the Darfur crisis inwestern Sudan remains active.These uncertainties drive an undisguised arms race inthe region. If the CPA collapses, many fear atransnational atrocity site like none this region hasknown.I recognise most of those who harbour these fears.They are neither pillaging presidents nor ravagingrebels. Like the child refugee I was a few decadesago, they are victims driven by neither Dollar norDinar; widowed refugees from their homesteads,unsure whether the next meal will come or whetherthey will be alive at the next dawn.Victims now seem to be the people paying thehighest cost for international justice. They sufferthreats of death, exile, and other forms ofpersecution for their commitment to justice with littleprotection, assistance or acknowledgement fromgovernments or international institutions. I haveheard claims that those who express uncertaintiesabout the work of the ICC in Africa may have beenpurchased by powerful enemies of justice. This makesvictims seem expendable and discredits their wellfoundedfears as dubious. They are neither.In authorising the arrest of Sudan’s President al-Bashir, ICC judges agreed that he had a case toanswer for his alleged role in war crimes and crimesagainst humanity committed in Darfur. But theexecution of the warrant without an adequatelymanaged transition could create a power vacuum inKhartoum, unleashing destabilising tremors beyondSudan’s borders.Most victims need reassurance that when theneighbourhood mass murderer arrives their onlydefence is not the promise of a warrant from adistant tribunal on thin resources. They are right inasking that the promise of justice should beaccompanied by credible protection from reprisals.The ICC’s friends must address this.


LOOKING TO KAMPALA: THE CHALLENGES OF INTERNATIONAL JUSTICE IN AFRICA . 17While the misbegotten duel between supposedimperialists and alleged impunity apologists persists,the deadly business of mass atrocities continuesunchecked, its victims in Africa fret, and thecredibility of the ICC suffers.To overcome these difficulties, four things areneeded. First, the ICC’s resources must be improvedto focus more on winning back the trust of victimsthrough better outreach and effective protection.Thus, better co-ordination is needed between Africangovernments, the ICC, the UN at its highest levels,governments and philanthropies. Next, the AfricanUnion must translate its rhetoric against impunity intoa programme of action, showing that African livesmatter and it will not issue a free pass to those – bigor small – that violate Africans.Third, principled multilateral diplomacy is needed toreassure both governments and victims that the GreatLakes countries will not be allowed to become a levelkilling field. In particular, the five permanentmembers of the Security Council should use theirstrategic heft to engage intensively with this loomingcrisis. Finally, we must re-establish mutual respectamong people in the advocacy communities whosometimes disagree as to means but mostly agree asto ends.Odinkalu heads the Africa Programme of the OpenSociety Justice Initiative and Co-Chairs the DarfurConsortium in Kampala (Uganda) and New York(USA).International Criminal Justice andNon-Western CulturesTim Kelsall12 April 2010When signatories to the Rome Statute meet inUganda later this year, one of the tasks confrontingthem will be to take stock of progress in internationalcriminal justice (ICJ). ICJ has advanced in leaps andbounds over the past ten years, and yet a significantnumber of voices – activists, academics, statesmen –continue to debate its relevance to African conflictcontexts. To date much of the discussion, emanatingin particular from Uganda and the Sudan, has centredon the trade-offs between peace and justice, and onthe distinction between restorative and retributivejustice (see for example Allen 2006, 2008; Branch2004; Huyse and Salter 2007; Baines 2007; Otim andWierda 2008; Edozie 2009; Johnson 2009; Mamdani2008). In this, my own brief contribution, I want topick up this debate, but provide a different angle,drawing on research conducted at the Special Courtfor Sierra Leone. That Court, now entering its finalstages, raised a number of questions about criminaljustice and cultural dissonance, questions of ajurisprudential, procedural, and normative kind.I turn first to jurisprudential matters. Althoughinternational criminal law strives to borrow from andlegitimate itself via a plurality of legal systems, thefact remains that its basic doctrines are Western inorigin. This can cause problems when the jurisprudencehas a poor sociological fit with the non-Westernsocieties to which it is applied. Take for instance thedoctrine of ‘superior responsibility’, one of the modesof liability under which international criminal suspectsare commonly tried. Although the case law on superiorresponsibility is increasingly sophisticated, and thedoctrine has been applied with sensitivity andintelligence by some judges, it remains the case that itevolved in the context of well-drilled Western-stylebureaucratic and military organisations, in which itmade sense to think that a superior could be heldresponsible for the actions of his subordinates, nomatter how far physically removed (Knoops 2007).


18 . DEBATING INTERNATIONAL JUSTICE IN AFRICAIn Africa, however, well-drilled hierarchies of thisnature are a rarity. Over the past forty years manyAfrican governments, armies and guerilla movementshave found it tremendously difficult to create stableorganisations, and authority relations tend to beinformal and fluid instead (for introductions to a vastliterature see Chabal and Daloz 1999; Clapham 1985;Jackson and Rosberg 1982; Médard 1982; Migdal1988; Murphy 2007). This was certainly the case inSierra Leone, where authority in at least one of thefighting factions – the Civil Defence Forces – wasbased on patron-client or neo-patrimonial ties, andwas more akin to a ‘militarised social movement’ thana conventional army (Hoffman 2007; Kelsall 2009).While it is not impossible that superiors in suchnetworks should have the ‘material ability to preventor punish’ the crimes of their subordinates, as thesuperior responsibility doctrine demands, it is muchless likely than in a Western context. Nevertheless,some international prosecutors have sought, ratherunthinkingly, to gain convictions under this doctrineeven when the evidence for it was flimsy. This, in myopinion, has led to a waste of time and resourcesand, in the worst cases, some highly questionablejudicial decisions (Kelsall 2009, 71-104). A relatedproblem, although I lack space to address it here, isthat the superior responsibility doctrine as currentlyconceived is ill-equipped to deal with the exercise ofcharismatic authority, which is rather more common inAfrica than it is in the West (see for example Ellis1995, 2001; Ellis and ter Haar 2004, 90-113). InSierra Leone it played a part in the trial of AllieuKondewa, alleged by the Prosecution to haveauthority over his subordinates by virtue of the‘mystical powers’ he possessed, and it is arguablethat it would also be significant were Joseph Konyever brought to trial (Kelsall 2009, 105-145).The next issue I would like to raise is procedural. Justas most of the jurisprudence used in internationalcriminal trials is Western in origin, so is theprocedure. Legal anthropologists have long pointedto the more informal and inquisitorial style of Africancustomary courts as compared with Western ones,especially in adversarial, common law contexts (Gibbs1963; Gluckman 1964). It is difficult for most of us toimagine how unnerving international trials must befor many African witnesses, who find themselvesmiles from home, in a courtroom of extraordinarygrandeur, confronted with robed judges and lawyerswho speak a foreign language, and who subject themto highly unusual communicative practices includingfrequently hostile cross-examination. It is no wonderthat getting clear testimony in such circumstanceshas often proved difficult (Cryer 2007), a problemcompounded in contexts, not uncommon in Africa,where secrecy is prized as a high social ideal, and inwhich there have developed a repertoire ofdissembling rhetorical techniques (Ellis and ter Haar2004, 70-89; Ferme 2001; Murphy 1980; Shaw2000).Things are made worse where local conceptions ofspace and time are at variance with Westerncoordinates, as they are in many rural Africancontexts, such as in Sierra Leone. Existing attempts toput witnesses at ease by concealing their identities,paying them allowances, and proofing them beforetestifying, create their own problems. In my analysisthese communicative troubles, in addition to makingtrials slow, laborious, and expensive, can seriously callinto question the quality of the evidence on whichjudicial decisions are based (Kelsall 2009, 171-224).Finally, I turn to normative issues. While some of thecrimes adumbrated under the Rome Statute aredoubtless regarded abhorrent by all but the mostdeviant sub-cultural groups or individuals, the samecannot be said for all of them. The issue here turnson the relation between the international‘community’ that makes international law –comprising activists, academics, statesmen andlawyers, at the pinnacle of which are the StatesParties themselves – and the less cosmopolitancommunities existing on their periphery. Take forinstance the crime of enlisting children under acertain age (the age has varied over time) into anarmed force. Anthropologists and historians haveshown that the very conception of what it is to be achild varies cross-culturally, as do the expectations ofwhat a ‘child’ can legitimately be expected or forcedto do (Archard 1993; Boli-Bennett and Meyer 1978;


LOOKING TO KAMPALA: THE CHALLENGES OF INTERNATIONAL JUSTICE IN AFRICA . 19Hoffman 2003; James and James 2005; Rosen 2007).Such appeared to be the case in rural Sierra Leonewhere, in the case of the Civil Defence Forces,commanders enlisted and communities volunteeredyoung fighters, apparently not knowing that this wasa morally or legally wrong act. By prosecutingindividuals for this crime, the Special Court arguablyheld those concerned to an alien standard of justiceof which they knew nothing, imposing internationalnorms and law on people, raised in a differentculture, with contrasting moral ideas. Rather similarpoints could be made in respect of the crime of‘forced marriage’ (Kelsall 2009, 146-170, 243-254).To conclude, at the same time as the States Partiesreflect on some of ICJ’s recent achievements, theymight also consider some of its difficulties, includingthose problems that are not prominent on the agendabut become apparent when we dig deep intointernational trials. These difficulties concern theappropriateness of international criminaljurisprudence, procedure, and norms to African andother non-Western contexts. Is it within the power ofthe States Parties to recommend a more sociologicallyattuned use of the existing jurisprudence? Can they,by addressing the entire ecology of the courtroom,make international criminal procedure as friendly andproductive as possible for witnesses unfamiliar with aWestern courtroom setting? And can they advise amore sensitive enforcement of those laws which,although regarded as universally abhorrent by the‘international community’, have yet to penetrate theconsciousness of communities on its fringe? In short,is a more genuinely international, multicultural typeof justice attainable than the kind we have now?SOURCESAllen, Tim. 2006. Trial Justice: The InternationalCriminal Court and the Lord’s Resistance Army.London: Zed Books.———. 2008. Ritual (Ab)use? Problems with tradtionaljustice in Northern Uganda. In Courting Conflict?Justice, Peace and the ICC in Africa, edited by N.Waddell and P. Clark. London: The Royal AfricanSociety.Archard, David. 1993. Children: Rights andchildhood. London and New York: Routledge.Baines, Erin K. 2007. The haunting of Alice: localapproaches to justice and reconciliation in NorthernUganda. International Journal of Transitional Justice1 (1):91-114.Boli-Bennett, John, and John W. Meyer. 1978. Theideology of childhood and the state: rulesdistinguishing children in national constitutions,1870-1970. American Sociological Review 43(6):797-812.Branch, Adam. 2004. International justice, localinjustice. Dissent (Summer):22-28.Chabal, Patrick, and Jean-Pascal Daloz. 1999. AfricaWorks: disorder as political instrument. Oxford:James Currey.Clapham, Christopher. 1985. Third World Politics: Anintroduction. Madison: University of WisconsinPress.Cryer, Robert. 2007. A long way from home:witnesses before international criminal tribunals.International Commentary on Evidence 4 (1):1-4.Edozie, Rita Kiki. 2009. Globa citizens and Sudanesesubjects: reading Mamdani’s Saviours. AfricanAffairs 108 (433):661-668.Ellis, Stephen. 1995. Liberia 1989-1994: a study ofethnic and spiritual violence. African Affairs 94(375):165-198.———. 2001. Mystical weapons: some evidence fromthe Liberian war. Journal of Religion in Africa 31(2):222-236.Ellis, Stephen, and Gerrie ter Haar. 2004. Worlds ofPower: Religious thought and political practice inAfrica. London: Hurst.Ferme, Mariane. 2001. The Underneath of Things:Violence, history and the everyday in Sierra Leone.Berkeley: University of California Press.Gibbs, James L. Jr. 1963. The Kpelle Moot. In Law andWarfare: Studies in the anthropology of conflict,edited by P. Bohannan. Austin and London:University of Texas Press.


20 . DEBATING INTERNATIONAL JUSTICE IN AFRICAGluckman, Max. 1964. The judicial process among theBarotse. In Law and Warfare: Studies in theanthropology of conflict, edited by P. Bohannan.Austin and London: University of Texas Press.Hoffman, Daniel J. 2007. The meaning of a militia:understanding the Civil Defence Forces of SierraLeone. African Affairs 106 (425):639-662.———. 2003. Like beasts in the bush: synonyms ofchildhood and youth in Sierra Leone.Postcolonial Studies 6 (3):295-308.Huyse, Luc, and Mark Salter, eds. 2007. TraditionalJustice and Reconciliation After Violent Conflict:Learning from African examples. Stockholm:Institute for Democracy and Electoral Assistance.Jackson, Robert H., and Carl G. Rosberg. 1982.Personal Rule in Black Africa: Prince, autocrat,prophet, tyrant. Berkeley: University of CaliforniaPress.James, Allison, and Adrian James. 2005. Introduction:the politics of childhood – an overview. In ThePolitics of Childhood, edited by J. Goddard, S.McNamee, A. James and A. James. Basingstoke:Palgrave.Johnson, Douglas H. 2009. Mamdani’s ‘settlers’,‘natives’, and the War on Terror. African Affairs 108(433):655-660.Kelsall, Tim. 2009. Culture Under Cross examination:International justice and the Special Court forSierra Leone. Cambridge: Cambridge UniversityPress.Knoops, Geert-Jan Alexander. 2007. The transpositionof superior responsibility onto guerilla warfareunder the laws of the international criminaltribunals. International Criminal Law Review 7:505-529.Mamdani, Mahmood. 2008. The new humanitarianorder. The Nation, September 29.Médard, J-F. 1982. The underdeveloped state inTropical Africa: political clientelism or neopatrimonialism.In Private Patronage and PublicPower: Political clientelism in the modern state,edited by C. Clapham. London: Pinter.Migdal, Joel S. 1988. Strong Societies and WeakStates: State society relations and state capabilitiesin the Third World. Princeton NJ: PrincetonUniversity Press.Murphy, William P. 1980. Secret knowledge asproperty and power in Kpelle society: elders versusyouth. Africa 50 (2):193-207.———. 2007. The powerful presence of the past:historical dimensions of integration and conflict inthe Upper Guinea Coast. Conference paper. MaxPlancke Institute for Social Anthropology,Halle/Saale, Germany.Otim, Michael, and Marieke Wierde. 2008. Justice atJuba: international obligations and local demands inNorthern Uganda. In Courting Conflict? Justice,peace and the ICC in Africa, edited by N. Waddelland P. Clark. London: The Royal African Society.Rosen, David. 2007. Child soldiers, internationalhumanitarian law, and the globalization ofchildhood. American Anthropologist 109 (2):296-306.Shaw, Rosalind. 2000. “Tok Af, Lef Af”: a politicaleconomy of Temne techniques of secrecy and self.In African Philosophy as Cultural Inquiry, edited byI. Karp and D. A. Masolo. Bloomington: IA.Tim Kelsall has taught politics at the Universities ofOxford and Newcastle, is a former editor of thejournal African Affairs, and is the author of CultureUnder Cross-Examination: International Justice andthe Special Court for Sierra Leone (CambridgeUniversity Press, 2009)(http://www.cambridge.org/9780521767781). He iscurrently living in Phnom Penh, Cambodia, workingfreelance as an Associate of the Africa, Power andPolitics Programme (http://www.institutionsafrica.org/)and as a Visiting Fellow of the WarCrimes Studies Center, University of California atBerkeley (http://socrates.berkeley.edu/~warcrime/).


LOOKING TO KAMPALA: THE CHALLENGES OF INTERNATIONAL JUSTICE IN AFRICA . 21The Limits of ProsecutionsOkechukwu Oko10 March 2010There exists in Africa a general agreement about theneed for accountability, but a divergence exists as tohow this could be pursued. Some countries usecriminal prosecutions to address the aftermath ofmass violence. Others prefer non-punitivemechanisms, like truth commissions and amnesty, asalternatives to criminal prosecutions. Some countriesuse truth commissions in combination with criminaltrials to address the aftermath of human rightsviolations. Most recently, traditional methods ofconflict resolution feature prominently in the antiimpunityarsenal of some African countries. Itappears, however, that the preferred mechanismadopted by the international community to addressimpunity is criminal prosecution. Currently,investigations and prosecutions of serious crimes aretaking place in post-conflict African societies beforethe ad hoc international tribunals in Rwanda, theSpecial Court for Sierra Leone and the InternationalCriminal Court at The Hague.I concede that prosecuting perpetrators of humanrights violations is definitively a viable mechanism forcombating impunity. In appropriate cases, the criminalprocess can be deployed to engineer compliance withthe law and to deter would-be perpetrators of humanrights violations. In this essay, however, I argue thatthe objectives of using criminal prosecution toreestablish social equilibrium and promotereconciliation, though laudable and rhetoricallyinspiring, are simply unattainable. The hope thatinternational criminal prosecutions will reconcilemutually distrustful ethnic groups with a long historyof reciprocal antagonism is quaint, perhaps evennaive. International criminal prosecutions launched inAfrica amid much publicity and high expectations areon the verge of irrelevance. After more than ten yearsof international criminal prosecutions in Africa, it isbecoming increasingly obvious that criminalprosecution is a weak reed on which to hoist thestrategy of reestablishing social equilibrium andreconciling intergroup hostilities in post-conflictAfrican societies. A confluence of systemic andenvironmental factors has whittled down theinfluence of international criminal prosecutions inAfrica.First, efforts to use criminal prosecution to modifybehaviour and contribute to social equilibrium rest ona failure to appreciate that causes of conflict in Africacannot be resolved through the criminal process. Theoverarching goal of criminal prosecution is toapportion blame and punish the guilty. Criminalprosecutions are not designed to address or alleviatethe underlying social problems that lead to andperpetuate violence. Violence may be morepronounced in some parts of Africa, but its causesremain mostly the same in virtually every Africancountry: ethnic distrust, corruption, marginalization ofethnic groups and inequitable allocation of a nation’sresources. The frequency, resilience and indeed theincentive to resort to violence will shrink byaddressing the underlying causes of violence. Theseproblems cannot be addressed comprehensivelythrough the prosecution of selected perpetrators ofhuman rights violations. The underlying culture thatsustains social disequilibrium must be counteracted ifaccountability is to take roots in Africa.Second, criminal prosecution is a poor vehicle forrestoring social equilibrium in increasingly fragmentedsocieties where violence is viewed as a legitimatemeans to attain desired objectives. In a fledglingdemocracy fractured along ethnic lines with a historyof mutual ethnic hostilities, international criminalprosecutions may end up becoming an impetus for,not a deterrent to, extra-legal violent conduct. Somewarlords have apocalyptic goals and readily resort toviolence to mould the society according to theirimage. Faced with the threat of prosecution, andsensing their inability to negotiate with a determinedworld community, warlords with everything to losemay decide that it is in their best interest to fight tillthe end. Also, criminal trials can have adverse impactson relationships. They can often involve accusationsand counter accusations, rehashing of facts that


22 . DEBATING INTERNATIONAL JUSTICE IN AFRICArekindle old hostilities and reigniting passions thatultimately make reconciliation difficult.Third, the causes of violence in Africa areconsiderably different from causes of deviantbehaviour elsewhere, and are therefore more difficultto address via criminal trials. The dynamics ofviolence in Africa challenge the expectations of aWestern-type criminal justice system and raise seriousquestions about the assumptions that undergirdcriminal prosecution. Violence in Africa is the productof a different phenomenon; Rwanda, Sudan andSierra Leone result not from deviant behaviour ofcitizens but from tensions at the armature of thesociety: ethnic distrust. Its dynamism is sustained bythe belief that violence in defense of ethnic interestsis a moral imperative, even a legal obligation.Decades of ethnic distrust and rivalries coupled withthe central government’s inability to deal fairly withthe ethnic groups provide further impetus for theapocalyptic dynamism of violence. The traditionalcriminal process fails to address the broad range ofways in which situational cultural pressuresexacerbate violence. Violence created by underlyingsocial problems and perpetrated by several citizenswith varying degrees of culpability cannot beaddressed by criminal prosecution designed toaddress individual misconduct, especially in caseswhere the causes of deviant conduct reside not atthe individual level but at the communal level.Moreover, whether international criminal prosecutionactually serves as deterrence is unclear because itseffect cannot be empirically verified.Fourth, the effectiveness of international criminalprosecutions depends on support both from thepublic and state governments. In Africa, publicsupport has been low because of negative attitudesof African leaders towards the West shaped byhistorical circumstances, especially the adverse effectsof colonialism. Public support continues to dwindlebecause of prevailing attitudes which viewinternational criminal tribunals as agents andsymptoms of imperialism, and as attempts by theWest to reestablish influence over Africa. Theeffectiveness of international criminal prosecutionsalso depends on support from African governmentswhich has been less than enthusiastic. African leadersare reluctant to support the prosecution of theirbenefactors, tribesmen or warlords who have thecapacity to cause troubles for the fledglinggovernment. Whether ad hoc or permanent,international criminal tribunals based on Westernnotions of justice, can do very little to reestablishsocial equilibrium and arrest the advancingdecrepitude threatening to engulf Africa.I acknowledge that international criminal prosecutioncan play significant roles in promoting accountabilityin Africa, so long as it is properly structured andundertaken with some sensitivity to the sentimentsand feelings of Africans who live with the painfulrealities of violence. But, for all the above reasons,international criminal prosecutions have neitherdelivered on the promise of social equilibrium norserved as a chastening influence on impunity inAfrica. Wholesale adoption of Western models ofjustice may not work in Africa given the prevailingsocial, political and cultural realities. Concerns foraccountability offer no license for the internationalcommunity to arrogate to itself the right todetermine what is best for Africa. Imposing thepreferences of the international community withoutdue consultations with affected African nations willrevive poignant painful memories of colonialism andreignite negative sentiments that will ultimatelyundermine efforts to promote accountability. I urge allthose involved in the fight against impunity in Africato rethink the deeply flawed assumptions about thecapacity of international law to bring abouttransformative changes in the conduct of citizen andgroup relations in Africa. Violence is so interwovenwith the maladies in the continent – corruption,poverty, ethnic tensions – that it is doubtful thatcriminal prosecutions alone can serve as a chasteninginfluence on the behaviour of the leaders or thecitizens trapped within the society. Building aneffective strategy to reestablish social order in postconflictAfrican societies requires an understanding ofthe idiosyncratic environmental factors that animateviolence, as well as recognition that criminalprosecutions cannot address the social pathologies


LOOKING TO KAMPALA: THE CHALLENGES OF INTERNATIONAL JUSTICE IN AFRICA . 23that have disfigured Africa. It is these pathologiesthat will define and shape Africa’s future, not thelegacy of criminal prosecutions.It is my submission that a single-minded pursuit ofcriminal prosecutions as the panacea to impunity inAfrica, regardless of the anguishing realities, carriesthe dangerous and unacceptably high risk of furtherdeterioration, anarchy and bloodshed in Africa. It isimportant, therefore, to confect a strategy that cansimultaneously promote accountability and addressthe social pathologies that undermine efforts toreestablish social equilibrium and reconciliation.Okechukwu Oko is a Professor of Law at theSouthern University Law Center, Louisiana.Note on State Policy and Crimesagainst HumanityLarry May10 March 2010On 18 February 2010, the International CriminalCourt’s (ICC) Pre-Trial Chamber II issued a DecisionRequesting Clarification and Additional Information inthe Situation in the Republic of Kenya. Paragraph 12states: “the Chamber notes that to meet therequirements of a crime against humanity under theStatute, the acts committed must, inter alia, becarried out ‘pursuant to or in furtherance of a Stateor organizational policy’ within the meaning of article7(2)(a) of the Statute.”There is an ambiguity in article 7 of the ICC’s Statutethat is glossed over by the Pre-Trial Chamber II.Article 7(1) states:For the purpose of this Statute, “crime againsthumanity” means any of the following acts whencommitted as part of a widespread or systematicattack directed against a population…And then 7(2) states:For the purpose of paragraph 1:a) “Attack directed against a population” means acourse of conduct involving the multiplecommissions of acts referred to in paragraph 1against any civilian population pursuant to or infurtherance of a State or organizational policy tocommit such an attack.The ambiguity concerns whether the State policyrequirement means the same thing for both thecondition of “widespreadness” as well as for“systematicity,” or whether different things aremeant. An attack can be widespread without beingbased in a State or organizational policy, whereas it isvery difficult to conceive an attack being systematicthat was not based in a State or organizational policy.For an attack on a population to be widespread it isconceptually sufficient that many people be affected.


24 . DEBATING INTERNATIONAL JUSTICE IN AFRICAIn the pre-ICC debates about crimes against humanityit seemed that the “or” in “widespread or systematic”could be interpreted to mean that State policy wasnot required to prove a crime against humanity, sinceonly in a systematic attack on a population was theState policy required, not in widespread attacks. Thewording of the ICC Statute takes away that ambiguity.But it is replaced with a concern about what the “or”now means. If the Statute drafters wanted toeliminate the distinction between widespreadness dueto State policy and systematicity due to State policy itwould have been easy to do by substituting “and” forthe “or” that was used in “widespread or systematic.”The kind of State policy that is widespread but notsystematic is not easy to conceptualize, but thelanguage of the Statute as well as the history of howcrimes against humanity have been defined calls forsuch a conceptualization. And this in turn suggeststhat there could be two different understandings ofthe requirement of State policy: one for widespreadattacks and one for systematic attacks.It might be that the State policy requirement of crimesagainst humanity that is associated withwidespreadness is considerably easier to meet thanthat for systematicity. If there is police involvement orthe involvement of various politicians, this might besufficient in and of itself to establish the weak Stateinvolvement associated with widespread attacks,whereas such involvement by police or politicians wouldhave to be linked to a specific policy of the State tosatisfy the more stringent State involvement associatedwith systematic attacks. Yet, the Pre-Trial Chamber IIDecision seems not to accept the weaker State policyrequirement since it appears that evidence supportingthis has already been offered by the Prosecutor andacknowledged but rejected as insufficient by theChamber in paragraph 13 of the Decision.There is a considerable amount at stake here sinceState policies do not often manifest themselves inways other than the behaviour of politicians andpolice. Similar worries can be expressed about thisissue as have been expressed about the debate aboutwhether “or” or “and” should occur in the crimesagainst humanity definition. As I have argued in mybook, Crimes Against Humanity: A NormativeAccount (Cambridge University Press, 2005), it isgenerally preferable that the attack be shown to beboth widespread and systematic, but such arequirement is extremely hard to meet, and so itmight be advisable to allow some cases to go forwardwhere only one of the conditions is proven.It might be thought that this issue can be resolved bylooking to Article 17 of the Statute of the ICC thathas been interpreted to require an addition element,gravity. On 10 February 2006 the ICC’s Pre-TrialChamber I issued a Decision on the Prosecutor’sApplication for Warrants of Arrest in the Situation inthe Democratic Republic of Congo. Paragraph 51 ofthat Decision states:The Chamber considers that the additionalgravity threshold provided for in Article 17(1)(d)of the Statute is intended to ensure that theCourt initiates cases only against the most seniorleaders suspected of being responsible for thecrimes within the jurisdiction of the Courtallegedly committed in any given situation underinvestigation. And paragraph 51 suggests thatthis heightened gravity standard applies to bothsystematic and widespread crimes.Yet, the issue that remains unresolved is whether theState policy requirement is always strong orsometimes weak. The gravity threshold concerns whoshould be prosecuted not the character of the largercrime that the defendant participated in. Stateleaders can participate in, and be prosecuted for,crimes that have both a strong and a weak Statepolicy. Gravity seems to go to the type of defendant,not the type of crime.Regardless of how one comes down on theinterpretive questions addressed above, defendantsand prosecutors are owed some clarity on exactlywhat the Pre-Trial Chambers will expect concerningthe stringency of the State policy requirement forestablishing crimes against humanity. It remainsunclear how to understand the State policy


LOOKING TO KAMPALA: THE CHALLENGES OF INTERNATIONAL JUSTICE IN AFRICA . 25requirement given paragraphs 12 and 13 of the 2010Pre-Trial Chamber II Decision.Larry May is W. Alton Jones Professor of Philosophy,and Professor Law, Vanderbilt University, andProfessorial Fellow, Centre for Applied Philosophyand Public Ethics, Charles Sturt and AustralianNational Universities.Inside the Minds of the ICC Judges:Will They Give Ocampo the Benefit ofthe Doubt in Kenya?Lionel Nichols10 March 2010On 26 November 2009, the International CriminalCourt (ICC) Prosecutor, Luis Moreno-Ocampo,requested permission from Pre-Trial Chamber II toconduct formal investigations in Kenya, the first timehe has sought to use his proprio motu powers toinitiate an investigation. When the Pre-Trial Chamberreconvenes this week to consider the Prosecutor’srequest to conduct formal investigations in Kenya, itwill have the opportunity to clarify a number ofcontentious issues of international criminal law,including the principle of complementarity, the gravitythreshold, the meaning of “interests of justice” andthe definition of “crimes against humanity.” The Pre-Trial Chamber’s forthcoming decision is likely to beone of the most significant in the Court’s shorthistory. After providing a brief background on theconflict in Kenya and describing the applicableprocedure from the Rome Statute, this essay considerssome of the issues likely to be occupying the minds ofthe three judges of the Pre-Trial Chamber.BACKGROUNDFollowing the disputed presidential and parliamentaryelections in Kenya in 2007, the country experiencedtwo months of brutal violence. According to theCommission of Inquiry on Post Election Violence (WakiCommission), 1,113 people were killed, manyhundreds were raped, and 650,000 were lefthomeless. On 28 February 2008, a power-sharinggovernment was formed; and on October 15, 2008,the Waki Commission report recommended that aSpecial Tribunal for Kenya be established to try thoseresponsible for the post-electoral violence. It furtherstated that if the Grand Coalition Government failedto establish a Special Tribunal, a list of the names ofsuspected perpetrators would be forwarded to the ICCProsecutor. Since no Special Tribunal was established,on 9 July 2009, Ocampo received the list. Fourmonths later, Ocampo for the first time elected to use


26 . DEBATING INTERNATIONAL JUSTICE IN AFRICAhis own powers under Article 15 of the Rome Statuteto initiate proceedings proprio motu. On 18 February2010, however, the Pre-Trial Chamber used itspowers under Rule 50(4) and Regulation 28(1) torequest clarification and additional information fromthe Prosecutor. The Prosecutor submitted therequested information on 3 March 2010, therebyinviting the Pre-Trial Chamber to provide someimportant guidance on the most fundamental aspectsof the Rome Statute.APPLICABLE PROCEDUREArticle 15(1) provides that the Prosecutor may initiateinvestigations proprio motu on crimes that fall withinthe jurisdiction of the Court. Article 15(3) provides that“if the Prosecutor concludes that there is a reasonablebasis to proceed with an investigation, he or she shallsubmit to the Pre-Trial Chamber a request forauthorisation of an investigation, together with anysupporting material collected.” Once such a requesthas been made, the Pre-Trial Chamber shall, inaccordance with Article 15(4), authorise theinvestigation if it is satisfied that there is a “reasonablebasis to proceed with an investigation” and that thecase “appears to fall within the jurisdiction of theCourt.” Rule 48 of the Rules of Procedure and Evidenceprovides that in determining whether there is areasonable basis to proceed with an investigationunder Article 15(3), the Prosecutor is required toconsider the matters set out in Article 53(1), namely:(a) Whether there is a reasonable basis tobelieve that a crime within the jurisdiction of theCourt has been committed;(b) Whether the case would be admissible underArticle 17; and(c) Whether, taking into account the interests ofvictims and the gravity of the crime, it would bein the interests of justice to proceed with aninvestigation.WITHIN THE JURISDICTION OF THE COURTAs the alleged crimes were committed on Kenyanterritory more than two years after Kenya ratified theRome Statute, the only issue to be determined inorder to satisfy Article 12 is whether the allegedcrimes amounted to crimes against humanity.Article 7 defines “crimes against humanity” to meanthe commission of one of the acts in the Article“when committed as part of a widespread orsystematic attack directed against any civilianpopulation with knowledge of the attack.”In Bemba, Pre-Trial Chamber III held that “widespread”referred to the “large-scale nature of the attack andthe numbers of targeted persons.” According to theWaki Commission, the post-electoral violence lastedtwo months, occurred in six of Kenya’s eight provincesand resulted in deaths, displacement and rapes andsexual assaults. The Pre-Trial Chamber shouldtherefore be satisfied that there was a “widespread”attack against a “civilian population.” The same Pre-Trial Chamber stated that “systematic” referred to the“organised nature of the acts of violence and theimprobability of their random occurrence.” The WakiCommission identified several factors indicating that atleast some of the post-electoral violence in Kenya wasplanned, including incitement to violence by politiciansand business leaders, warnings sent to victims of theimpending attacks, and the organised andorchestrated nature of the violence itself. It wastherefore possible for the Pre-Trial Chamber to alsoconclude that the attacks were “systematic.”In his initial Request for Authorisation, however, theProsecutor elected not to name individual suspects orgroups. This exemplified a divergence ofinterpretation between the Prosecutor and the Pre-Trial Chamber. The difference of opinion concernedthe mens rea requirement for crimes againsthumanity. Article 7(2)(a) requires that the attackagainst a civilian population be “pursuant to or infurtherance of a State or organisational policy tocommit such an attack.” The Prosecutor argues thatthe authorisation of an investigation pursuant toArticle 15 “is not the opportunity to proceed with theidentification of individual criminal liability.” (Requestfor Authorisation, para 102) Instead, the Prosecutor isasking the Pre-Trial Chamber to find that there is areasonable basis for believing that some persons inKenya committed crimes in furtherance of a State ororganisational policy, even if the Prosecutor is


LOOKING TO KAMPALA: THE CHALLENGES OF INTERNATIONAL JUSTICE IN AFRICA . 27unwilling or unable to disclose which persons inparticular may have had this mental element. For thePre-Trial Chamber, the failure of the Prosecutor toidentify those who are alleged to have beenresponsible is unsatisfactory. The judges were likelyto have been influenced by the ICC’s ExplanatoryNote on Elements of Crimes, which looks to themental element of the alleged perpetrator. Further,the approach of other Pre-Trial Chambers has been toconsider whether there were reasonable grounds forbelieving that the alleged perpetrator knew that theacts being committed were part of a widespread orsystematic attack. (See, for example, Katanga; Chui;and Bemba). Consequently, so that it could decidewhether there is a “reasonable basis” for believingthat crimes against humanity have been committed,in its Request for Clarification, the Pre-Trial Chamberrequested that further information be provided on theidentity of the local leaders, businessmen andpoliticians alleged to have been responsible for theviolence. On 3 March 2010, the Prosecutor providedthe Pre-Trial Chamber with this information, stating inits response that “senior leaders from both PNU andODM parties” are believed to have been responsiblefor the violence, before providing the names of 20persons in a confidential annex. The Pre-TrialChamber will now consider this list of 20 persons todetermine whether there is a reasonable basis forbelieving that attacks were made “in furtherance of aState or organisational policy.”ADMISSIBILITY: UNDER ARTICLE 17Assuming that the Pre-Trial Chamber finds that thereis a reasonable basis for concluding that crimesagainst humanity have been committed, it must thenconsider whether the case would be admissible underArticle 17. This essentially requires the Pre-TrialChamber to consider two issues:(a) Whether the principle of complementarity hasbeen satisfied; and(b) Whether the requirement of sufficient gravityhas been satisfied.(a) The Principle of ComplementarityPre-Trial Chamber I, in Lubanga, stated that theprinciple of complementarity is the “first part of theadmissibility test.” Article 17(1)(a) provides that acase will be inadmissible where it is “beinginvestigated by a State which has jurisdiction over it,unless the State is unwilling or unable genuinely tocarry out the investigation or prosecution.”In Katanga, the Appeals Chamber stated that“inaction on the part of a State having jurisdiction …renders a case admissible before the Court.” In hisRequest for Authorisation, the Prosecutor argued thatthe failure of the Grand Coalition Government toestablish a Special Tribunal for Kenya amounted toinaction because it has resulted in no investigationsor proceedings pending against those bearing thegreatest responsibility for the crimes allegedlycommitted.The Pre-Trial Chamber’s first concern in relation tocomplementarity was revealed in its Request forClarification where it requested the Prosecutor toprovide further information on the specifics of thealleged incidents and the identity of the allegedperpetrators. The Pre-Trial Chamber appears to be ofthe view that it is not possible to identify whetheralleged suspects have been investigated andprosecuted, without first knowing who those allegedsuspects are. As mentioned above, this information wasprovided to the Pre-Trial Chamber on 3 March 2010.Many other thoughts are now likely to occupy thePre-Trial Chamber judges’ minds. First, can it be saidthat a State is “willing” to prosecute when leaders ofits government publicly support the trial of suspectedperpetrators but then fails to establish the necessaryimplementing legislation? Second, how long shouldthe ICC be expected to wait for domesticinvestigations and prosecutions to commence? Finally,in the absence of any prosecutions, does theexistence of the Truth Justice and ReconciliationCommission, which begins its work later this year,make the Kenyan cases inadmissible under Article 17?


28 . DEBATING INTERNATIONAL JUSTICE IN AFRICAWhile it has been nearly 18 months since the WakiCommission recommended the establishment of aSpecial Tribunal, of concern to the Pre-Trial Chamberis that discussions on how to establish a SpecialTribunal are likely to continue in Cabinet meetings.Indeed, it may well be that the very process of theProsecutor initiating a proprio motu proceedingrestarts the debate on the Special Tribunal. It istherefore possible that, following the decision of thePre-Trial Chamber to authorise formal investigations,a Special Tribunal may be established, therebyrendering the Kenyan cases inadmissible before theICC. The Pre-Trial Chamber may therefore be reluctantto authorise official investigations while domesticinvestigations and prosecutions remain a possibility.(b) The Principle of Sufficient GravityArticle 17(1)(d) provides that a case will beinadmissible where it is “not of sufficient gravity tojustify further action by the Court.” The term“gravity” is not defined in the Rome Statute, nor inthe Rules of Procedure and Evidence, but in Lubanga,the Pre-Trial Chamber held that “gravity” requires twofactors to be considered:(1) whether the situation was “systematic” or “largescale”;and(2) whether the situation caused “social alarm” in the“international community.”question with other situations and cases to ensurethat those that are selected for prosecution are the“most grave”. By contrast, the latter involves theCourt in measuring the situation and cases inquestion against some objective criteria to determinewhether a particular threshold of gravity has beenmet. It would appear that the use of the word“sufficient” in Article 17(1)(d) suggests that thesecond test of gravity is the appropriate test to adoptat the admissibility stage. The Request forAuthorisation provides the Pre-Trial Chamber with anopportunity to define the threshold that must bemet, and the criteria that must be considered whendeciding this question.This raises many interesting questions for the Pre-Trial Chamber. First, to whom is the situation requiredto be grave – the affected population, the region, orthe international community? Second, what factorsare relevant in determining gravity – the crimescommitted, the identity and rank of the perpetrator,the number of victims, the geographical scope, thetemporal scope, or a combination of each? The Pre-Trial Chamber is likely to be conscious of the need toavoid adopting any sort of rigid test to determine“gravity”. While such a test would not be binding, itmay create a persuasive authority that prevents theCourt from hearing certain serious cases in thefuture.This approach, however, was rejected by the AppealsChamber in a decision delivered on 13 July 2006.Despite rejecting the approach of the Pre-TrialChamber, however, the Appeals Chamber did nothand down an alternative test, thereby leaving someuncertainty over how Article 17(1)(d) should beinterpreted. In his Request for Authorisation, theProsecutor makes no submissions on how the term“gravity” should be interpreted, merely stating inparagraph 20 that “the gravity threshold establishedby the statute is reached.”As deGuzman has argued, it may be necessary todistinguish between gravity in a relative sense andgravity in a threshold sense. The first involves theCourt in comparing the situation and cases inINTERESTS OF JUSTICEOnce the Prosecutor has taken into account thegravity of the crime and the “interests of victims”,Article 53(1)(c) then states that the Prosecutor mustconsider whether there are “substantial reasons tobelieve that an investigation would not serve theinterests of justice.” The Prosecutor is of the opinionthat, where the other criteria in Article 53 have beensatisfied, there is a presumption in favour ofinvestigation. In other words, the Prosecutor believesthat he is not required to establish that aninvestigation or prosecution is in the interests ofjustice, but rather he shall proceed with theinvestigation unless there are particular circumstancesthat provide substantial reasons why it is not in theinterests of justice to do so.


LOOKING TO KAMPALA: THE CHALLENGES OF INTERNATIONAL JUSTICE IN AFRICA . 29As there is no real threat of ICC investigations furtherdestabilising the region, it seems reasonable to assumethe proceeding with investigations in Kenya would be inthe interests of justice. The Request for Authorisationnevertheless provides the Pre-Trial Chamber with theopportunity to state whether its understanding of theprovision is the same as the Prosecutor’s.CONCLUSION – IS THERE A “REASONABLE BASIS”UPON WHICH TO PROCEED?Ultimately, the decision of the Pre-Trial Chamber inrelation to each of these issues identified in thisessay will be heavily influenced by how it chooses todefine “reasonable basis.” The Rome Statute providesfour different standards of certainty, depending onthe issue under consideration. In descending order,these are:(1) Conviction of the accused where his guilt is“beyond a reasonable doubt” (Article 66(3));(2) Confirmation of charges against the accusedwhere there are “substantial grounds” forbelieving he committed the crimes charged(Article 61(7));(3) Issue of a warrant against the accused wherethere are “reasonable grounds” for believing hecommitted the crimes charged (Article 58(1)); and(4) Initiation of an investigation where there is a“reasonable basis” for believing crimes werecommitted.With the Prosecutor only being required at this stageof the proceedings to satisfy the lowest of these fourstandards of certainty, the Pre-Trial Chamber mayhave concerns over whether each of the elements ofArticle 53 are satisfied, but may nevertheless grantthe Request for Authorisation, thereby providing theProsecutor with the benefit of any doubt. Regardlessof the Pre-Trial Chamber’s conclusion, the reasoningin the decision may provide greater clarity on severalcrucial elements of the Rome Statute.Lionel Nichols is an MPhil student at the Centre forSocio-Legal Studies at the University of Oxford andadministrative manager of Oxford Transitional JusticeResearch.The Contribution African States CanMake to the ICC Review ConferenceValentina Torricelli10 March 2010In the short life of the International Criminal Court(ICC), the Review Conference of the Rome Statutescheduled to take place in Kampala from 31 May to11 June 2010 represents an historic moment. Africawill not only host the Conference, but will also becentral to the stocktaking exercise, as to date all ofthe situations investigated by the prosecutor involveAfrican victims. This essay argues that African statesshould also seek to play an active role supporting theICC during the months leading up to the ReviewConference.The support of African states for the ICC was crucialboth during and after the Rome DiplomaticConference in 1998, where delegates debated thewording of the ICC Statute. Three African statesthereafter referred situations in their countries to theCourt. The Minister of Justice of Kenya also invitedthe Prosecutor to use his powers under Article 15 toseek permission to investigate the crimes committedduring the post-electoral violence in 2007. Africanstates should therefore, as they did in Rome andsubsequently, stand on the side of African victims,recognize that justice lays a firm foundation forlasting peace and act fully in support of the ICC.Initiatives that could harm the integrity of the RomeStatute such as considering the creation of a regionalcriminal court, might undermine the effectiveness ofthe ICC and its efforts to deliver justice to victims ofthe worst imaginable crimes in Africa and elsewhere.Recently, the extent of African support foraccountability rather than impunity has been clear. InJuly 2009 the African Union (AU) reiterated “theunflinching commitment of Member States tocombating impunity and promoting democracy, rule oflaw and good governance throughout the continent”.The ministers participating in the session of the AU–EU Troika on 14 October 2009 “underlined theircommitment to fighting impunity at the national,regional and international level in conformity with the


30 . DEBATING INTERNATIONAL JUSTICE IN AFRICAprinciples of international law”. The communiquéissued on 3 February 2010 reemphasised the AU’s“commitment to justice and its total rejection ofimpunity”. Widespread African support for the ICC hasrecently been highlighted by an Institute for SecurityStudies briefing paper in October 2009, followingextensive consultation with African civil society. Anumber of African states, including Botswana, Kenya,Senegal, and South Africa have stated that theywould comply with their obligations under the RomeStatute to arrest and surrender anyone named in anICC indictment, and Burkina Faso recently adoptedlegislation implementing the Rome Statute.However, in many instances AU members have raisedconcerns that “the search for justice … [should] bepursued in a manner not detrimental to the searchfor peace.” The contention that justice must besacrificed to ensure peace and reconciliation must berejected. Sustainable peace is based on re-building asociety in which individuals can live their lives freefrom fear; in which perpetrators know that impunitywill not be tolerated; and in which victims can see theperpetrators brought to justice and be provided withprotective measures and reparations. As UNSecretary-General Ban Ki-moon said in a speechdelivered on the 60th anniversary of the GenevaConventions, “the debate on how to ‘reconcile’ peaceand justice or how to ‘sequence’ them has lastedmore than a decade. Today, we have achieved aconceptual breakthrough: the debate is no longerbetween peace and justice but between peace andwhat kind of justice.”opposed as it would allow the General Assembly tostand in the way of international justice.Another set of concerns over recent reactions to theICC in Africa regards the issue of immunities. Eachstate party to the Rome Statute has a legal obligationunder Article 27 of the Statute to cooperate with thearrest and surrender of any person charged by theICC, even if the accused is a head of state. However,the AU decision on 3 July 2009, calling upon statesnot to cooperate with the ICC in the Bashir case,could be misinterpreted as a sign that African statesparties to the Rome Statute oppose the Court’s workto bring to justice those responsible for committingthe worst imaginable crimes against African victims.Although an analysis of the proposal to give theAfrican Court of Justice and Human Rights jurisdictionover crimes under international law such as genocide,crimes against humanity and war crimes goes beyondthe scope of this essay, such a decision wouldcomport a huge cost to the AU, distract the AfricanCourt from an effective pursuit of its mandate, andduplicate the work of the ICC, which already enjoysactive contributions and widespread support amongAfrican states (30 out of the 110 states parties to theRome Statute and 5 out of 18 ICC judges are African).Furthermore, the perception among African civilsociety seems to be that the proposal regarding theAfrican Court has been put forward to score politicalpoints rather than address the need for justice andinternational accountability for crimes underinternational law committed in Africa.The Rome Statute is not perfect. It represents adelicate compromise, balancing many unrelatedarticles and provisions. However, at this early stage inthe ICC’s history, any attempt to make substantivechanges would be very risky and could destabilize thearchitecture designed in Rome. We should thereforereject the recent submission by South Africa onbehalf of the AU to amend Article 16 of the RomeStatute in order to allow the UN General Assembly todefer cases for one year when the Security Councilhad failed to take such decision within a specifieddeadline. Any proposal of this nature must beAU member states that have ratified or signed theRome Statute must now commence a constructivedialogue with the ICC, to promote greaterunderstanding of its jurisdiction and role, and improvecooperation. In this light, the AU Assembly’sencouragement to member states in its 3 July 2009decision to improve state-to-state cooperation in theinvestigation and prosecution of crimes underinternational law should be greatly welcomed.Although there are a number of regional treatiesproviding for extradition and mutual legal assistance,there is no single international or regional treaty that


LOOKING TO KAMPALA: THE CHALLENGES OF INTERNATIONAL JUSTICE IN AFRICA . 31has effective extradition and mutual legal assistanceprovisions with regard to all crimes underinternational law. The members of the AU shouldbegin consultations internally and with the ICC onhow to take this proposal forward.The stock-taking component of the Review Conferencethis year offers an unparalleled opportunity for states toassess how vigorously and effectively the ICC has beenfulfilling its responsibility to investigate and prosecutecrimes under international law committed against victimswhen their own states fail to do so. It also is anunparalleled opportunity for each state participating inthe Review Conference to assess how well it has beenfulfilling its own complementarity obligations toinvestigate and prosecute these crimes and then torededicate itself to bringing those responsible to justice.In short, Africa needs to re-discover its enthusiasm forthe ICC as a necessary part of a comprehensive, longtermglobal action plan to end impunity.SOURCESAmnesty International, International Criminal Court:Security Council renewal of unlawful Resolution1487 providing impunity for peace-keepers wouldbe a further set-back for international justice, AIIndex: IOR 51/006/2004, May 2004, athttp://www.amnesty.org/en/library/info/IOR51/006/2004/enAmnesty International, Ending impunity: Developingand implementing a global action plan usinguniversal jurisdiction, AI Index: IOR 53/005/2009,October 2009, at http://www.amnesty.org/en/library/info/IOR53/005/2009/enAmnesty International, International Criminal Court:Concerns at the eight session of the Assembly ofStates Parties, AI Index: IOR 40/011/2009, October2009, at http://www.amnesty.org/en/library/info/IOR40/011/2009/enAmnesty International, International Criminal Court:The Contribution Africa can make to the ReviewConference, AI Index: IOR AFR 01/017/2009,October 2009, at http://www.amnesty.org/en/library/info/AFR01/017/2009/en13th Africa-EU Ministerial Troika Meeting,Addis Ababa, 14 October 2009, athttp://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/en/er/110576.pdfAfrican Union, Communiqué on the 3 February 2010Judgment of the International Criminal CourtAppeals Chamber on Darfur, Addis Ababa, 4February 2010, at http://www.africa-union.org/root/UA/Actualites/2010/fev/Communique%20Feb%204%202010%20eng.pdf.Assembly of the African Union, Assembly/AU/Dec.243-267 (XIII) Rev.1, Thirteenth Ordinary Session1-3 July 2009, Sirte, Great Socialist People’s LibyanArab Jamahiriya, at http://www.africa-union.org/root/au/Conferences/2009/july/summit/decisions/ASSEMBLY%20AU%20DEC%20243%20-%20267%20%28XIII%29%20_E.PDF.Institute for Security Studies, Briefing paper on AUmeeting 3-6 November to prepare for ICC ReviewConference, 22 October 2009.“Kenya backs poll violence trials”, BBC World, 2October 2009, at http://news.bbc.co.uk/1/hi/world/africa/8286733.stmPress Conference by the Prosecutor of theInternational Criminal Court Luis-MorenoOcampo, 26 November 2009, athttp://www.icc-cpi.int/NR/rdonlyres/21A59DA2-F207-4A69-96D9-E445311BBB5C/281314/OTPNotesfortheMediaBackgrounderonly26112009FINALEN.pdf.Statement by Representatives of African CivilSociety and the Legal Profession on theImplications of the African Union’s RecentDecisions on Universal Jurisdiction and theWork of the International Criminal Court inAfrica, 11 May 2009, at http://allafrica.com/stories/200906040135.htmlStatement Expressing African Civil SocietySupport for International Justice, Kampala, 29May 2009.


32 . DEBATING INTERNATIONAL JUSTICE IN AFRICAUN Conference of Plenipotentiaries on theEstablishment of an International Criminal Court,15 June-17 July 1998, Rome, speeches andstatements available at http://www.un.org/icc/index.htm.UN Secretary General, SG/SM/12494/L/T/4417/HR/5002, 26 September 2009, at http://www.un.org/News/Press/docs/2009/sgsm12494.doc.htm.Valentina Torricelli is Assistant Legal Adviser in theInternational Justice Project, Amnesty International:vtorrice@amnesty.org.What the ICC Review Conference Can’tFixAdam Branch15 March 2010At a meeting with Africanist scholars in London in2007, Luis Moreno-Ocampo faced tough questioningover why the ICC had decided to pursue only theLord’s Resistance Army (LRA) and ignore the Ugandangovernment’s alleged war crimes and crimes againsthumanity, particularly its devastating policy of massforced displacement and internment. Finally, hispatience apparently having run out, Ocampointerrupted one of his most insistent questioners and,pointing an accusatory finger, burst out: “If you wantto support the LRA, fine! But you should know theyare a criminal organization.” This type of response –ad hominem attacks on those who question hisactions – appears to be part of a wider pattern ofbehaviour on the part of the Prosecutor, charted mostdamningly by Alex de Waal and Julie Flint, and hasdone much to undermine the legitimacy of the ICC.This has led some ICC supporters to maintain that theCourt’s problems will be greatly ameliorated once anew Chief Prosecutor takes the reins. As much as Iagree that Ocampo represents a major problem forthe ICC, I also believe that focusing on his personalfailings obscures the deeper, structural problems withthe Court as it is constituted. These problems will notbe solved by the appointment of a new Prosecutor,nor will the upcoming Review Conference in Kampalabe able to address them. An honest assessment ofthese problems, I believe, should lead us to ask toughquestions about the Court as an institution of globaljustice, particularly in terms of its work in Africa.The first of these inherent problems stems from thefact that the ICC, like any international mechanismintended to promote or protect human rights, facesthe impossible task of acting morally in a politicalworld rent by power inequalities, domination, andviolence. Thus, because it lacks a coercive capacity ofits own, the ICC, in its quest for efficacy, mustaccommodate itself to political power, which it hasdone through two routes. First, the ICC hasprosecuted only Africans. This decision has been a


LOOKING TO KAMPALA: THE CHALLENGES OF INTERNATIONAL JUSTICE IN AFRICA . 33function of international power relations which makeAfrica the only region weak enough so that Westernintervention and experimentation can take place therewithout accountability, and unimportant enough sothat the West will allow the ICC to act as its subcontractorthere in place of more direct forms ofintervention. Second, the ICC has accommodateditself to political power within Africa – this is veryclear in Uganda, where the ICC eagerly became aninstrument of the Ugandan government’scounterinsurgency so as to ensure Uganda’scooperation with its prosecution of the LRA. In doingso the ICC also further proves its willingness tocooperate with US military interests in the region.The ICC and its supporters have had to respond tothese accusations of politicization. They have done so– when not resorting to ad hominem attacks –through a rhetorical strategy of shifting back andforth between declarations of outright denial andinvocations of pragmatic exigency, between denyingthat ICC decisions have anything to do with politicalconsiderations and instead derive from legalreasoning alone, and admitting that the ICC goesafter accessible targets in order to ensure its ownsurvival. The denial side of this rhetorical strategy isevident when ICC supporters contend that the Court’sexclusive focus on Africa stems from the continent’sbeing the site of the most cases of extreme violencewhich require international legal intervention, andfrom the fact that African states have voluntarilyreferred these cases to the ICC. Thus, the ICC’saccommodation to political power is denied, thefocus on Africa is cast as a purely legal decision, andthe Court’s prosecution of certain parties to theexclusion of others is explained through reference toan obscure calculus of the gravity of crime.But that is a hard line to maintain when the ICC ispressed on its decision to get involved in violence inGuinea and not in Iraq, Afghanistan, or Israel, or onits decision to ignore mass violence against civiliansin Somalia by Ethiopian and US forces, or to dismissviolence by the Ugandan government against its ownor neighboring peoples. Faced with such evidence ofthe ICC’s accommodation to power, the Court’ssupporters tend to shift their argument from outrightdenial to an admission of the necessity ofpragmatism on the ICC’s part in order for it to get anycases tried, but justify that pragmatism on the basisthat it will result in some justice being done, which isbetter than no justice at all.This rhetorical strategy of alternation betweendenying that pragmatic considerations influence ICCdecisions and admitting that the Court must conformto political exigencies in order to get anything done,between dismissing its critics with self-righteousdeclarations of the ICC’s role as the instrument ofglobal justice and dismissing its critics with thedemand that they be realistic – this strategy mustitself be dismissed. We need an honest assessment ofthe ICC’s capacity to be an instrument of universaland impartial justice, a need that cannot be avoided,as some ICC supporters attempt to do, by translatingthe gap between the ICC’s current – partial – practiceand impartial justice into a temporal gap between theimperfect present and an inevitable future in whichthe ICC will overcome the political interests of weakand strong states alike. This untenable evolutionarynarrative lacks empirical grounding, and thosefocused on bringing justice to the world they live innow cannot afford such an ill-conceived faith.Instead, we need to throw light on the consequencesthat result from the ICC’s very real need to abide bythese strict political limitations in order to ensure itsown efficacy and survival. For those who argue thatsome justice is better than no justice, the ICC’saccommodation to power is not a bad thing butrather simply the constitutive condition for the partialbut genuine justice of the ICC. In the same way,according to those espousing the evolutionarynarrative, Allied victory in WWII provided theconstitutive condition for the partial but genuinejustice of the Nuremburg trials.The argument that some justice is better than nojustice, however, does not hold. First, from theperspective of the survivors of conflict, criminalprosecutions of one side and not the other canappear a travesty of justice instead of its partial


34 . DEBATING INTERNATIONAL JUSTICE IN AFRICArealization – “some justice” may not be justice at all.More generally, the problem is that the assertion thatsome justice is better than no justice proclaimslegitimate any politicization of justice, anyinstrumentalization of legal institutions to politicalinterests, however unjust those interests are. Fromthis point of view, it simply does not matter thatjustice conforms completely to repressive, violentpolitical power locally or globally; as long as cases aretried and “some justice” is done, everything is fine.This is problematic morally, but also very dangerouspolitically since it declares international justiceavailable as a mantle to be draped at will over politicalinterests by those with the power to do so. As aresult, the doctrine that some justice is better than nojustice can end up not only making justice conformunapologetically to power, but also making justice anunaccountable tool of further violence and injustice.The second inherent problem is that the ICC and itssupporters have defined “global justice” for Africa asa goal that is to be pursued exclusively through theICC and other formal legal mechanisms, thusrestricting those issues that can be addressed andthose actors who can be held accountable. Inmonopolizing the discourse of global justice in Africa,the ICC has placed certain fundamental issues outsidethe scope of what can be defined as unjust and thussubject to challenge and contestation through thepursuit of global justice.This becomes obvious in terms of the ICC’s subjectmatter jurisdiction: the forms of violence, repression,and inequality that can be challenged as “unjust” arerestricted to the most spectacular forms of overtviolence. Less spectacular forms of domination,repression, and violence – such as economicexploitation, Western sponsorship of violent and antidemocraticpolitical forces, internationally enforceddisparities in access to medicines, trade regimes thatundermine development and food security – none ofthese can be challenged through the pursuit ofglobal justice when global justice is defined by theICC. Global justice is exclusively associated withpunishing the “most serious crimes of concern to theinternational community as a whole,” conceived of asmass atrocities, while those crimes that serve theinterests of the “international community” areconveniently outside the ICC’s scope. Mass atrocity isnaturalized as the most pressing form of globalinjustice, and its prevention and punishment arenaturalized as the most pressing issue for the pursuitof global justice, trumping all other concerns.Personal jurisdiction under the ICC is similarlyrestricted, focusing as it does on placing the entireblame for violence on a few particularly “savage”Africans – whether Omar al-Bashir or the LRA – bymisrepresenting situations and reducing the wide setof actors and structures involved in violence to one ortwo individuals. By focusing on those (Africans) with“greatest responsibility,” the ICC simply ignores thecriminal responsibility of Western states, donors, aidagencies, and corporations even in those episodes ofviolent atrocity that the Court is willing to investigate.And finally, the ICC’s limited temporal jurisdictionexcludes centuries of injustice, an entire history ofWestern violence in Africa.Now, if the ICC were conceived as simply a technicalmechanism for use in specific circumstances, therewould be less of a problem. The problem, however,results from the ICC’s effective monopolization of thelanguage of global justice in Africa. Thus, there is avast regime of institutions and organizations engagedin a massive pedagogical project trying to buildsupport for the ICC as the exclusive arbiter of globaljustice. It is precisely through the ICC’s mechanismsfor victims’ “participation” and “empowerment” thatthe Court restricts people’s concepts of injustice andjustice to those provided by the ICC and thus to putentire forms of domination, violence, and inequalitybeyond the scope of justice. This pedagogical“empowering” project thus furthers the managementof Africa in the service of Western political andeconomic domination through the very discourse ofglobal justice. The irony is that the discourse ofglobal justice is uniquely positioned to challengethose forms of Western domination and internationalinequality, and so the ICC ends up impoverishing whatshould be the radical and emancipatory language ofglobal justice.


LOOKING TO KAMPALA: THE CHALLENGES OF INTERNATIONAL JUSTICE IN AFRICA . 35It seems clear that neither of these two inherentproblems – the ICC’s counterproductiveaccommodation to power and its impoverishment ofthe discourse and practice of global justice – can bedealt with through reform of the ICC’s Statute, letalone through a new Chief Prosecutor. Instead, theseare problems fundamental to the ICC as aninternational legal institution, and they may in someform undermine any effort at finding global justicethrough law. Thus, the ICC’s interventions need to berestricted to those cases where African citizenriesthemselves request that it play a role so that itspoliticization is minimized, and its self-serving claimsneed to be brought under control so that it does notmonopolize the discourse of global justice. At thesame time, these problems point to the need foralternative, democratic projects of justice to bearticulated and developed, projects within which theICC, perhaps, will play a part.Adam Branch is assistant professor of politicalscience at San Diego State University and has aPh.D. in political science from Columbia University.His work has examined the politics of humanitarianand human rights intervention into civil war in Africa.He has published widely in political science andinternational studies journals and recently finished abook manuscript on the civil war and Westernintervention in northern Uganda. In addition to hisacademic work, he has also worked extensively withlocal human rights organizations in Uganda. Moreinformation can be found at his webpage:http://www-rohan.sdsu.edu/~abranch/.Peace, Justice and the InternationalCriminal CourtSara Darehshori and Elizabeth Evenson19 March 2010INTRODUCTIONThe long-running debate about whether seekingjustice for grave international crimes interferes withprospects for peace has intensified as the possibilityof national leaders being brought to trial for humanrights violations becomes more likely. TheInternational Criminal Court (ICC), which is mandatedto investigate and prosecute war crimes, crimesagainst humanity, and genocide, began operations in2003 and has already issued its first arrest warrantfor a sitting head of state – Sudan’s President Omaral-Bashir. That the ICC operates while armed conflictsare ongoing fuels the justice versus peace debate.Notwithstanding the general recognition thatinternational law obliges countries to prosecutegenocide, crimes against humanity, and war crimes,some diplomats tasked with negotiating peaceagreements have argued that the prospect ofprosecution by the ICC has made achieving theirobjectives more difficult. 1 Those negotiating peacehave tended to view the possibility of prosecution asa dangerous and unfortunate obstacle to their work.Some fear that merely raising the spectre ofprosecution will bring an end to fragile peace talks.The temptation to suspend justice in exchange forpromises to end a conflict has already arisen withrespect to the ICC’s work in Darfur and Uganda, andthreatens to recur in coming years as parties andmediators struggle to negotiate peace deals.In the short term, it is easy to understand thetemptation to forego justice in an effort to end armedconflict. However, Human Rights Watch’s (HRW)research demonstrates that a decision to ignoreatrocities and to reinforce a culture of impunity maycarry a high price. Indeed, instead of impedingnegotiations or stalling a peaceful transition,remaining firm on the importance of justice – or atleast leaving the possibility for justice open, whethermeted out by national or international prosecutions –


36 . DEBATING INTERNATIONAL JUSTICE IN AFRICAcan yield short- and long-term benefits. HRW findingsabout the relationship between peace and justice arediscussed at length in a July 2009 report “SellingJustice Short: Why Accountability Matters for Peace.”While there are many factors that influence theresumption of armed conflict, and we do not assertthat impunity is the sole causal factor, a review ofHRW experience shows that the impact of justice istoo often undervalued when weighing objectives inresolving a conflict.Case studies in the HRW 2009 report are drawn from20 years of research in as many countries. The ICC’sreach has understandably been more limited to date.Six years after the court’s operations began, itsprosecutor is carrying out investigations in foursituations (Uganda; Democratic Republic of Congo;Central African Republic; and Darfur, Sudan) and theICC’s first trial began in January 2009. Theprosecutor’s request to open a fifth investigation – inKenya – is pending before a pre-trial chamber at thetime of writing.Thus far, however, the ICC’s engagement in thesecountries lends support to the themes identified inHRW’s broader review of the impact of national andinternational justice processes on – and, critically,their absence from – peace processes. Drawing onthe findings of “Selling Justice Short”, we illustratebelow three of these themes with examples drawnfrom the ICC’s experience to date.First, arrest warrants do not necessarily hinder, andhave at times benefited, peace processes through themarginalization of leaders suspected of seriouscrimes. Justice is an important objective in its ownright and this marginalization effect should notmotivate the commencement of justice processes. Atthe same time it has been a side effect of theissuance of arrest warrants in some cases. In theUganda situation before the ICC, arrest warrants forleaders of the rebel Lord’s Resistance Army (LRA)appear to have played a role in marginalizing the LRAby isolating it from its base of support in Khartoum.This, as well as an interest in seeing the ICC arrestwarrants lifted, appears to have increased the LRA’sinterest in participating in peace talks held in Juba,Sudan between 2006-2008. While the Juba talks didnot ultimately lead to a final peace agreement,interim agreements – including on the issue of justicefor crimes committed during the conflict weresuccessfully concluded over the course of the talks,suggesting that peace processes can be conducted inthe shadow of ICC arrest warrants.Second, foregoing accountability does not alwaysbring hoped-for benefits. In the Democratic Republicof Congo (DRC), the inclusion of alleged perpetratorsin government – granting de facto amnesties,including to Bosco Ntaganda, a former rebelcommander wanted by the ICC but integrated into theCongolese army in early 2009 – has had far-reachingnegative consequences. Successive attempts to buycompliance with post-conflict transition processes byrewarding criminal suspects with positions of powerand authority have only allowed these individuals tocontinue committing crimes or encouraged others toengage in criminal activity in the hope of receivingsimilar treatment. Far from bringing peace, this hasinstead allowed lawlessness and human rightsviolations to persist.Third, pursuing international justice can have longtermbenefits necessary to sustainable peace,including the reinstatement of the rule of lawthrough domestic prosecutions. ICC investigations inthe Central African Republic, for example, have placedpressure on national authorities to take at leastnominal steps toward enforcing internationalhumanitarian law. While this has not yet yieldeddomestic prosecutions, it seems to have at leastraised awareness of serious international crimes andthe rule of law, which may be the first step towardpreventing future crimes. These three themes andexamples are dealt with one by one in the threesections below.IMPACT OF ARREST WARRANTS ON PEACE TALKSRequests for warrants for high-ranking leaders areoften opposed by those who believe that these willresult in more violence and a prolonged conflict. Theyargue that leaders facing the possibility of trial and


LOOKING TO KAMPALA: THE CHALLENGES OF INTERNATIONAL JUSTICE IN AFRICA . 37likely conviction have little incentive to lay down theirarms. Instead, they contend, these leaders will clingall the more tenaciously to power. The prospect ofarrest may even spur them to continue to fight a warin an effort to maintain their position. 2The ICC has already created considerable controversyover whether its arrest warrants stand in the way ofpeace. ICC Prosecutor Luis Moreno-Ocampo’s requestfor an arrest warrant against Sudan’s President al-Bashir in July 2008 triggered a backlash by numerousactors, including the African Union (AU) and theOrganization of the Islamic Conference, which askedthe United Nations (UN) Security Council to defer theICC’s work in Darfur for 12 months. 3 Alex de Waal andJulie Flint, experts on Sudan, publicly criticized the ICCprosecutor for pressing charges against high officialsin the government of Sudan, stating that, “[a]ttemptsto deploy UNAMID [the AU/UN peacekeeping missionin Sudan] in Darfur are at a critical point. At thissensitive time, to lay charges against seniorgovernment officials, and to criminalise the entiregovernment, will derail attempts to pull Sudan fromthe brink.” 4 They argued that justice should wait untilafter those culpable are no longer in positions ofauthority, since seeking to prosecute while al-Bashiris still in control risks retaliation, including againstthose who work for humanitarian agencies. 5Negotiators and community leaders working for peacein northern Uganda had claimed that the ICC warrantsfor the rebel Lord’s Resistance Army (LRA) leadershipjeopardized peace prospects, and that startinginvestigations before the war ended risked both justiceand peace. 6 Variations of these arguments have beenused elsewhere, and as the ICC’s operations increase,particularly in situations of ongoing conflict, the issueis likely to continue to arise.However, limited experience – primarily outside theICC context – shows that the assumptions madeabout the effect of an arrest warrant are notnecessarily correct. Rather than scuttle peace talks orundermine a transition to democracy, an indictmentmay facilitate these processes by altering the powerdynamics. The fear that the International CriminalTribunal for the former Yugoslavia’s (ICTY) indictmentof Slobodan Milosevic for crimes in Kosovo during hisnegotiations to end the conflict with NATO wouldimpede negotiations proved unfounded. Only daysafter the warrant for Milosevic was announced, apeace agreement was reached. 7 In Bosnia andHerzegovina, the indictment of Radovan Karadzic bythe ICTY marginalized him and prevented hisparticipation in the peace talks, leading to thesuccess of the Dayton negotiations to end theBosnian war. 8 Similarly, the unsealing of the arrestwarrant for Liberian President Charles Taylor forcrimes in Sierra Leone at the opening of talks to endthe Liberian civil war was ultimately viewed as helpfulin moving negotiations forward. 9Within the ICC context, arrest warrants for LRA leadersin Uganda coincided with peace initiatives, includingthe Juba talks that began in mid-2006. The Juba talksdid not lead to a final peace agreement; althoughviolence has subsided in northern Uganda, the LRAcontinues to carry out attacks on civilians in the DRC.In light of these realities, claims about the positiveimpact of the ICC’s involvement must necessarily belimited. At the same time, the ICC’s arrest warrantsdid not block peace negotiations despite fears to thecontrary. Moreover, the warrants appear to havecontributed to isolating the LRA from some of itssupport base, 10 encouraging, at Juba, the mostpromising talks since the start of the 20-year conflictin Northern Uganda, and ensuring that accountabilityformed a major part of the agenda for those talks.Driven by regional inequality, the conflict in northernUganda intended to depose President YoweriMuseveni, began immediately after he took power byforce in 1986. The rebel LRA, rooted in northernUganda, struck fear in the civilian population bycarrying out mutilations, killings, and forcedrecruitment of child soldiers mostly from their ownAcholi people. Ugandan soldiers of the UgandanPeople’s Defense Forces (UPDF) committed numeroushuman rights violations during the war as well,including willful killing, torture, and rape of civilians.The government forcibly displaced the civilianpopulation of Acholiland into squalid camps, arguing


38 . DEBATING INTERNATIONAL JUSTICE IN AFRICAthat the move was needed to protect the populationfrom the LRA and to cut off any civilian assistance tothe LRA. Both sides committed numerous graveabuses during this protracted conflict . 11Efforts – including a national amnesty act in 2000 12 –to end the conflict decisively failed, and in December2003 Museveni tried a new tack. He invited theInternational Criminal Court to investigate the LRA. InJuly 2005 the Court issued sealed warrants for thearrest of the top five LRA leaders – Joseph Kony(head of the LRA), Vincent Otti, Okot Odhiambo,Raska Lukwiya, and Dominic Ongwen – for crimesincluding widespread or systematic murder, sexualenslavement, rape, and war crimes such asintentionally attacking civilians and abducting andenlisting children under the age of 15. 13The announcement of the referral to the ICC inJanuary 2004 and the ICC’s unsealing of warrants inOctober 2005 were met with a great deal of criticism.Numerous local nongovernmental organizations,international humanitarian organizations, academics,mediators, and others argued that ICC warrants woulddestroy the LRA’s will to negotiate since they wouldultimately end up on trial. 14 From 16 March to 18March 2005, Acholi leaders met with the ICCprosecutor in The Hague in an effort to dissuade himfrom requesting arrest warrants. 15 Later, Acholileaders said that the issuing of “international arrestwarrants would practically close once and for all thepath to peaceful negotiation as a means to end thislong war, crushing whatever little progress has beenmade during these years.” 16 The Roman CatholicArchbishop in northern Uganda, John Baptist Odama,saw the ICC’s decision to issue indictments againstthe LRA leadership as “the last nail in the coffin” ofefforts to achieve dialogue. 17 One-time Chief Mediatorbetween the government and the rebels, BettyBigombe, responded to the news of the warrants inOctober 2005 by saying, “[t]here is now no hope ofgetting them to surrender. I have told the court thatthey have rushed too much.” 18 Others feared thatdefenceless, displaced northern Ugandans wouldbecome prey to further LRA attacks: 19 The Chairmanof the Amnesty Commission, Justice Peter Onega, saidthat the ICC’s decision could encourage moreatrocities as the LRA leadership could act as“desperately as a wounded buffalo.” 20 Indeed, LRAattacks on international humanitarian workersin October 2005 were linked by some to the ICC’sarrest warrants. 21 Justice Onega was also amongthose who argued that the ICC’s involvement wasinconsistent with the 2000 Amnesty Act and Acholiprinciples of traditional justice. 22 At the very least,many felt that the timing was “ill-conceived.” 23Human Rights Watch expressed frustration that theprosecutor had not also adequately explained hismandate to investigate crimes by the UPDF. 24In fact, the warrants have not proved to be asdetrimental as many had feared. Since the mid-1990s the LRA’s only state supporter has been theSudanese government in Khartoum, supportreportedly offered in retaliation for the Ugandangovernment’s support of the rebel SudanPeople’s Liberation Movement/Army (SPLM/A). 25 Notlong after the ICC referral was announced, Sudanagreed to a protocol allowing Ugandan armed forcesto attack LRA camps in southern Sudan. 26 This accessweakened the LRA’s military capability. Following thesigning of the Comprehensive Peace Agreement inJanuary 2005, which ended hostilities between theKhartoum government and the SPLA, Sudanese armedforces withdrew from Southern Sudan, furtherweakening the LRA by depriving it of bases andsupport that it had enjoyed for years. 27The International Crisis Group (ICG) notes that theICC’s involvement “upped the stakes” forKhartoum as it could fall within the ICC’s criminalinvestigation in Uganda for supporting theLRA. 28 In October 2005 the government of Sudansigned a memorandum of understanding with thecourt agreeing to cooperate with arrest warrantsissued against LRA commanders. 29 Though theSudanese government continued to support the LRAto some degree, it did so in a much moresurreptitious manner. 30 By severing most of its ties,Sudan significantly weakened the LRA, forcing it – atleast temporarily – into “survival mode.” 31


LOOKING TO KAMPALA: THE CHALLENGES OF INTERNATIONAL JUSTICE IN AFRICA . 39The increased isolation of the LRA may have alsocontributed to significant defections, including by twomembers of Kony’s negotiating team. 32 Father CarlosRodriguez, a Spanish missionary who was based innorthern Uganda for many years, stated:“Between April and September [2004] 500 or socombatants have come out of the bush withtheir guns including senior officers. So the ICCmight not be so discouraging as we thought.Also those who have come out of the bush havetold us that the Sudan Government has not beengiving them anything since January this year. Sothe ICC may have had an influence on Sudan.The LRA will only reduce violence out of pressureand Sudan has changed its attitude because ofthe ICC. They are concerned about beingprosecuted.... Now that Sudan is not involved, itforces the LRA to talk about peace.” 33However, many of these defectors were givenamnesty under the Amnesty Act of 2000, a provisionwith broad applicability within Uganda and which hadnot been used frequently up to that point in time inthe context of the LRA insurgency. 34The issuance of arrest warrants has been cited as oneof a number of factors (including the US governmentdecision to list the LRA as a terrorist group) thathelped to push the LRA and the Ugandan governmentto the negotiating table in Juba, Sudan, in mid-2006.Despite rebel leaders’ claims to the contrary, 35individuals close to the peace process believe thatLRA leaders decided to enter talks in part as a resultof the ICC warrants. 36 The investigation by ICG intothe peace talks led it to conclude that the threat ofprosecution, and the issuance of warrants inparticular, provided pivotal pressure propelling therebels towards peace talks. In speaking withcommanders in the bush or their delegates at thenegotiations, ICG found that “‘ICC’ is usually the firstand last word out of their mouths.” 37In addition, the prospect of prosecution by the ICChelped to insert the issue of accountability into theJuba peace negotiations and resulted in an importantframework for holding all parties accountable fortheir actions. In February 2008 the parties agreed topursue domestic trials of the ICC cases in Uganda viaa special division of the Ugandan High Court createdto try war crimes committed during the conflict. 38 Thiswas an approach that, at least in principle, couldsatisfy LRA demands to avoid trial in The Hague whilemeeting requirements under the ICC statute. 39The parties concluded negotiations on all agendaitems in March 2008, but Kony failed to appear tosign the final agreement. Although violence hassubsided in northern Uganda, civilians in the DRC(where the LRA is now based) continue to bevictimized by the insurgents. 40The LRA’s demands at Juba that the ICC arrestwarrants be removed, and the prominence given toaccountability in the final agreement, raise importantquestions as to whether the ICC is to blame for theultimate breakdown of the peace talks. In our view,discussed in greater detail elsewhere, severalimportant factors mitigate against this conclusion,including that LRA leaders have never made cleartheir reasons for refusing to sign the final peaceagreement, and that interim agreements includingjustice provisions were successfully concluded overthe course of two years of negotiations. 41 Theimpact of the insistence on prosecutions moregenerally (as opposed to ICC prosecutions) is lessclear. Meanwhile, the resumption of LRA attacks oncivilians and the failure of the LRA to implementcommitments to assemble their forces in specifiedlocations while the talks were ongoing reinforcedconcerns about the sincerity of the LRA’scommitment to conclude peace under anycircumstances, despite the robustness of thenegotiations. 42Firm conclusions about the impact of the ICC’sarrest warrants on peace prospects for northernUganda are difficult to draw, not least because theconflict remains unresolved and civilians remain atrisk. Contrary to some fears, however, the ICC’sarrest warrants did appear to benefit the Juba talksin the ways described above and may yet help


40 . DEBATING INTERNATIONAL JUSTICE IN AFRICAencourage national accountability efforts through theUganda High Court Special Division agreed at Juba. 43The Uganda experience – and the several examplesfrom outside the ICC context touched on above –suggests at a minimum that indictments have notprecluded peace talks. Justice is an important end inand of itself, and we do not advocate for theissuance of arrest warrants as a means of bringingabout marginalization. Rather, we note that arrestwarrants sought primarily as a means of bringing toaccount leaders responsible for serious internationalcrimes have also at times had the side effect ofmarginalizing those leaders in ways that may benefitpeace processes.THE PRICE OF INCLUSIONIn contrast to situations where alleged war criminalshave been marginalized through indictments or arrestwarrants, negotiators elsewhere have opted toinclude human rights abusers in a coalitiongovernment or a unified military in the hope ofneutralizing them or enhancing stability (in effectgranting them a de facto amnesty). In situations asdiverse as Afghanistan, the DRC, and Bosnia andHerzegovina, however, Human Rights Watch hasdocumented how, in post-conflict situations, leaderswith records of past abuse have continued tocommit abuses or have allowed lawlessness topersist or return. 44 Far from bringing peace, thisstrategy instead encourages renewed cycles ofviolence.The DRC has paid a particularly high price. While anumber of other key factors have contributed to thebrutal violence in eastern DRC, including competition forcontrol over natural resources, land rights, and ethniccohabitation, a pervasive culture of impunity has beenone of the greatest obstacles to sustainable peace.Rwanda and Uganda, who in turn launched the secondCongo war, which lasted from 1998 to 2003.Sometimes referred to as “Africa’s first World War,” thesecond war drew in six other African countries,spawned a host of rebel groups and local militias, andultimately resulted in the deaths of an estimated 5.4million people. 45 In 2002, international pressure led topeace talks between the national government and themajor rebel groups in Sun City, South Africa, whichpaved the way for the establishment of a transitionalgovernment in June 2003.While the ICC has carried out two investigations andissued four arrest warrants for crimes committed inIturi, often described as the bloodiest corner of theDRC, 46 – and has launched an investigation in the Kivuprovinces 47 – Congolese authorities have rarelyconducted their own investigations andprosecutions. 48 Instead, the government gave posts ofnational or local responsibility, including in the armyand police, to dozens of people suspected ofcommitting international human rights violations in aneffort to buy compliance with the transition process. 49A Congolese lawyer, dismayed by such promotions,remarked, “In Congo we reward those who kill, wedon’t punish them.” 50By offering to integrate commanders with abusiverecords into the government and armed forces,however, the government has reinforced the messagethat brutalities would not only go unpunished, butmight be rewarded with a government post. Theexamples of Bosco Ntaganda, wanted by the ICC sinceAugust 2006 for the alleged use of child soldiers byhis militia during the Ituri conflict in 2002-2003, andLaurent Nkunda, for whom Ntaganda served as chiefof staff in military operations in the Kivu provinces in2006-2009, illustrate the potential dangers ofchoosing to overlook abuses.The DRC has been wracked by two wars over the pastdozen years. The first, from 1996 to 1997, ousted longtimeruler Mobutu Sese Seko and brought to powerLaurent Désiré Kabila, the leader of a rebel alliancesupported by the Rwandan and Ugandan armies. A yearlater, Laurent Kabila turned on his former backersIn June 2003, for example, the transitionalgovernment named Laurent Nkunda as a general inthe new Congolese army despite his track record ofabuses. Among other things Nkunda had beenresponsible the previous year for the brutalsuppression of a mutiny in which at least 80 people


LOOKING TO KAMPALA: THE CHALLENGES OF INTERNATIONAL JUSTICE IN AFRICA . 41were summarily executed. 51 This included over twodozen people who were beaten, bound, and gaggedbefore being executed and their weighted bodiesthrown off a bridge into the water below. 52 Nkunda, aCongolese Tutsi, refused to take up his post citingconcerns for his own safety. 53 In subsequent militaryoperations commanded by Nkunda, Human RightsWatch researchers documented that forces underNkunda’s command in a military operation in Bukavukilled civilians and carried out widespread sexualviolence during their operations. 54UN peacekeepers were unable to stop Nkunda’soffensive on Bukavu and the resulting crisis nearlyderailed an already weak transitional government. InOctober 2004 the Security Council directed UN forcesto cooperate with Congolese authorities “to ensurethat those responsible for serious violations of humanrights and international humanitarian law are broughtto justice,” 55 and a year later, in September 2005, theCongolese authorities issued a warrant for the arrestof Nkunda. 56 However, international diplomats madeno concerted efforts to follow up on the SecurityCouncil’s request. 57Throughout 2005 and into 2006, the internationalcommunity’s attention was focused on presidentialand parliamentary elections in DRC, the firstdemocratic elections in over 40 years. Caught up inthe political and logistical challenges of the electionprocess, many Congolese leaders, as well asrepresentatives of the donor community and theUnited Nations Organization Mission in the DemocraticRepublic of Congo (Mission de l’Organisation desNations Unies en République démocratique du Congo,MONUC), accepted that little progress would be madeon such major issues as army reform or establishing afunctioning judicial system. Diplomatic representativesstated that it would be unproductive to push too hardon such issues, including seeking to arrest thosesuspected of serious crimes, preferring not to “rockthe boat.” 58 With respect to Nkunda, MONUC decidedto pursue a strategy of containment: take no action toarrest or confront him, but use deterrent action tocontain his activities and zone of influence tominimise possible disruptions to the elections. 59 Thestrategy was ill-advised and short-sighted. Nkundaused the time to found the National Congress for theDefense of the People (Congrès National pour laDéfense du Peuple, CNDP) with a program ofpreventing the exclusion of Tutsi from national politicallife and assuring their security. 60 In 2006 and 2007,Nkunda’s CNDP enlarged the area that it controlled,effectively creating a state within a state. Humanrights abuses by the CNDP and other armed groupsincreased, especially when the Congolese governmentlaunched failed military operations to attempt todefeat Nkunda. Horrific attacks on civilians – includingmurders, widespread rape, and the forced recruitmentand use of child soldiers – by all sides to the conflictfollowed. Hundreds of thousands of people wereforced to flee their homes. 61 A peace agreementnegotiated in Goma, North Kivu on 23 January 2008,with 22 armed groups, of which the CNDP was themost influential, did not hold. Conflict resumed, and,so too did attacks on civilians in the Kivus (see below).Faced with the possibility of losing eastern DRC, andwith no support coming from other African allies orthe European Union, Congolese President JosephKabila struck a secret deal with his former enemy, theRwandan government. DRC would allow Rwandantroops to return briefly to eastern DRC to pursue theirenemy – the Rwandan Hutu militia the DemocraticForces for the Liberation of Rwanda (ForcesDémocratiques de Libération du Rwanda, FDLR) – inexchange for arresting Nkunda. On 22 January 2009,Nkunda was called to a meeting in Gisenyi, Rwanda,and detained by Rwandan officials. 62Instrumental in Nkunda’s downfall was Ntaganda,formerly a senior military commander from the Union ofCongolese Patriots (Union des Patriotes Congolais, UPC)armed group in Ituri who had fallen out with the UPCand had joined Nkunda in 2006, becoming his militaryChief of Staff. Ntaganda had already been implicated inbrutal human rights abuses, but was one of five Iturileaders who in December 2004 had been grantedpositions as generals in the newly integrated Congolesearmy. Ntaganda had not taken up this post: fearing forhis security in the capital, Kinshasa, he had refused toattend the swearing-in ceremony.


42 . DEBATING INTERNATIONAL JUSTICE IN AFRICAIn January 2009, in an effort to divide Nkunda’s CNDP,Ntaganda, with support from Rwanda, led a putsch tooust Nkunda from leadership and to install himself asthe group’s military commander. In exchange, theCongolese government rewarded him for a secondtime with the post of general in the Congolese army.Like Nkunda, Ntaganda’s track record is one ofwidespread human rights abuses. In November 2002,Ntaganda, then in charge of military operations forthe UPC in Ituri, led troops in attacks on the goldmining town of Mongbwalu, where at least 800civilians were brutally slaughtered on an ethnic basis.Such attacks were repeated in dozens of otherlocations. 63 According to UN peacekeepers, troopscommanded by Ntaganda were responsible for killinga Kenyan UN peacekeeper in January 2004 and forkidnapping a Moroccan peacekeeper later that year. 64Ntaganda was placed on the UN sanctions list inNovember 2005 for breaching a UN arms embargo. 65While Ntaganda acted as military Chief of Staff in theCNDP, troops under his command were responsiblefor the 4-5 November 2008 massacre of 150 civiliansin Kiwanja in North Kivu. 66While Nkunda’s removal might have opened upnew possibilities for finding peace in eastern DRC,political expediency rather than the interests ofjustice have determined both his and Ntaganda’scontrasting fates.As indicated above, Laurent Nkunda has beenimplicated in numerous serious crimes since May2002, and, in spite of repeated calls by the UN andothers for those responsible for the crimes inKisangani to be brought to justice, Nkunda was notinvestigated or prosecuted. The government soughtto accommodate him, but that accommodation wasunsuccessful: rather than preventing further crimes,the opposite occurred. Nkunda’s forces went on tocommit additional crimes and to contribute to a majorpolitical, military, and humanitarian crisis. ArrestingNkunda in 2002 when he was first implicated inperpetrating war crimes would likely have hadsubstantially lower political and diplomatic costs.As for Bosco Ntaganda, in August 2006 theInternational Criminal Court issued an arrest warrantagainst him for the war crime of enlisting andconscripting children under the age of 15 and usingthem in hostilities between 2002 and 2003 in Ituri. 67The Congolese government, which requested that theICC investigate crimes in DRC, and which to date hasbeen cooperative with the Court, in this case faileddramatically in its legal obligation to arrest Ntaganda.In a televised press conference on 31 January 2009,President Joesph Kabila invoked the peace versusjustice dilemma, stating that he faced a difficultchoice between justice or peace, stability, andsecurity in eastern DRC. He said his choice was toprioritize peace. Ntaganda is reported to have servedas a high-ranking advisor to UN peacekeeping forceson their operations in DRC, despite his status as awanted man at the ICC. 68Congolese authorities attempted to legitimizeNtaganda as a “partner for peace,” reinforcing theperception that those who commit heinous crimesagainst civilians in Congo will be rewarded rather thatpunished. Dozens of local human rightsnongovernmental organizations condemned thedecision. HRW experience in the Congo andelsewhere suggests that rewarding human rightsabusers does not tend to bring the hoped-for peaceor a cessation of abuses.STRENGTHENING THE RULE OF LAW: ENHANCEDDOMESTIC CRIMINAL ENFORCEMENTAs the examples cited above suggest, demurring onjustice issues in the context of peace processes doesnot necessarily bring hoped-for benefits in terms oflasting peace, while remaining firm on the importanceof justice – including where international arrestwarrants are at stake – may ultimately facilitate peaceand security. The latter appears to be particularly truein the long run: HRW research suggests that thepromotion of international justice for serious crimesmay have a positive impact on the development ofdomestic law enforcement tools. 69 Prosecutions incourts far from the places where the crimes occurred– whether at ad hoc international tribunals for theformer Yugoslavia and Rwanda or through universal


LOOKING TO KAMPALA: THE CHALLENGES OF INTERNATIONAL JUSTICE IN AFRICA . 43jurisdiction – have played a role in strengthening orgalvanizing the establishment of domesticmechanisms to deal with these crimes, in turnconsolidating the rule of law and fostering stability. 70Even at this early phase of its development, theInternational Criminal Court has spurred at leastnominal steps toward domestic proceedings in eachcountry in which it is investigating.The experience in Central African Republic (CAR) isillustrative. 71 On 25 October 2002, the Central AfricanRepublic’s former army Chief of Staff, Gen. FrancoisBozize, launched a rebel offensive against then-President Ange-Felix Patasse. Unable to rely on hisarmy, which had been weakened by several mutiniesand military coups, Patasse obtained support fromforces of the Congolese rebel Jean-Pierre Bemba’sCongo Liberation Movement and a mostly Chadianmercenary force. Both groups committed widespreadatrocities, including massacres and rapes. Fightingcontinued sporadically from October 2002 to 15March 2003, when Bozize finally seized power.On 22 December 2004, the CAR government referredthe events in 2002-03 to the Office of the Prosecutorat the ICC after CAR’s Court of Appeal recognized theinability of domestic courts to investigate andprosecute war criminals effectively. Two and a halfyears later the ICC prosecutor announced that hewould investigate crimes committed during the 2002-03 fighting and would monitor more recent events todetermine whether crimes committed in the north aspart of a counterinsurgency campaign would warrantinvestigation.The possibility of ICC prosecution (an issue stressedby victims’ associations calling for justice) increasedpressure on the CAR government to respond toabuses committed in the north as part of a conflictthat began following the May 2005 elections. HumanRights Watch’s September 2007 report on violence inthe CAR, 72 which named suspects and emphasized ICCjurisdiction, generated a great deal of publicityaround the question of whether the ICC wouldinvestigate leaders of the elite Presidential Guard(which is under the president’s control) and made itmore difficult for the government to turn a blind eyeto crimes. Following the publication of Human RightsWatch’s report, President Bozize admitted that CARforces had committed abuses and said that thoseresponsible will be held to account. 73 The ICCprosecutor put direct pressure on the CAR authoritiesto follow up on prosecution for the more recentcrimes, including in a 10 June 2008 letter. In responseBozize sought the United Nations’ assistance insuspending ICC investigations, arguing in a letter tothe UN Secretary General that the CAR justice systemis competent to investigate and prosecute morerecent crimes itself. 74 Though there has been littleevidence of genuine will to prosecute in CAR (by mid-2009 only individual low-ranking members of the CARsecurity forces had been prosecuted and convicted ofordinary crimes such as assault, battery andmanslaughter) in September 2008 the CARgovernment established an office for internationalhumanitarian law within the army, which isresponsible for cononveying the laws of war to itsmembers. 75 Abuses in the north diminished afterinternational pressure caused the government towithdraw much of the Presidential Guard from thearea. 76 The involvement of the ICC has at least servedto increase awareness of crimes, which may be thefirst step in preventing them.CONCLUSIONWhile limited, the experience of the ICC to date bearsout three important findings of Human Rights Watch’sbroader survey of the impact of justice efforts onpeace processes. First, the existence of arrestwarrants for leaders suspected of war crimes doesnot necessarily preclude peace talks. ICC arrestwarrants played a role in isolating Uganda’s LRA fromits base of support in Khartoum; this, along with theLRA leaders interest in leveraging peace talks to havethe ICC arrest warrants rescinded, may have increasedthe willingness of LRA leaders to engage in peacetalks with the government of Uganda. While the talkswere ultimately unsuccessful, a number of interimagreements – including provision for national cases asa possible substitute for those brought by the ICC –were concluded during the talks notwithstanding theexistence of the arrest warrants.


44 . DEBATING INTERNATIONAL JUSTICE IN AFRICASecond, ignoring justice does not necessarily benefitpeace processes. In the DRC, incorporating suspectedwar criminals into positions of power in order to buycompliance with transitional processes has done littleto stem cycles of human rights violations. Instead,pervasive impunity has been a key factor in renewedcycles of violence that continue to this day.Third, pursuing international justice can translate intoenhanced domestic law enforcement efforts. This canreassert and strengthen the rule of law, a key factorin long-term stability. In the CAR, ICC investigationsappear to have been a factor in decisions byauthorities there to commit rhetorically (if not yet inpractice) to holding those responsible for crimes toaccount and to raise awareness of crimes, includingthrough the establishment of an office forhumanitarian law within the army. At least nominalsteps toward national prosecutions have beenundertaken in all other ICC country situations underinvestigation as well.We recognize that it remains too early to draw firmconclusions about the ICC’s legacy in countries whereits investigations are ongoing. Justice – regardless ofthe contributions it makes to peace and stability – isan important objective in its own right. At the sametime, given that sacrificing justice in the hope ofsecuring peace is often projected as a more realisticroute to ending conflict and bringing about stabilitythan holding perpetrators to account, we find it usefulto put important facts and analyses on the table tobetter inform the debate about accountability andpeace. Those who call for forgoing justice in or out ofthe ICC context need to address the facts thatcontradict their oft-repeated assumptions and theevidence that suggests that pursuing justice cancontribute in many ways towards building andsustaining peace. Because the consequences forpeople at risk are so great, decisions on theseimportant issues need to be fully informed.*This article is adapted from a lengthier HumanRights Watch report, Selling Justice Short: WhyAccountability Matters for Peace, July 2009,http://www.hrw.org/node/84264. The report reliesheavily on past reports by numerous Human RightsWatch researchers across the organization and overmany years.1. Former United States special envoy to Sudan, Andrew Natsios,for example, writes “They [the leaders of Sudan’s NationalCongress Party] are prepared to kill anyone, suffer massivecivilian casualties, and violate every international norm of humanrights to stay in power, no matter the international pressure,because they worry (correctly) that if they are removed frompower, they will face both retaliation at home and war crimestrials abroad.” Andrew Natsios, “Beyond Darfur: Sudan’s SlideToward Civil War,” Foreign Affairs, May/June 2008,http://www.foreignaffairs.com/articles/63399/andrewnatsios/beyond-darfur(accessed December 14, 2009), p. 82.2. For a short discussion of the differing reactions to these types ofwarrants see Helene Cooper, “Waiting for Justice,” New YorkTimes, July 27, 2008.3. See,for example, African Union Peace and Security Council,“Communique of the 142nd Meeting of the Peace and SecurityCouncil,” PSC/MIN/Comm (CXLII), July 21, 2008,http://www.iccnow.org/documents/AU_142-communique-eng.pdf(accessed November 4, 2009); Letter from the PermanentRepresentative of Uganda to the United Nations addressed to thePresident of the Security Council, July 22, 2008 (copy on file withHuman Rights Watch).4. Julie Flint, Alex de Waal, and Sara Pantuliano, “ICC approach riskspeacemaking in Darfur,” letter to the editor, Guardian (London),June 10, 2008, http://www.guardian.co.uk/world/2008/jun/10/sudan.unitednations (accessed June 16, 2009).5. Julie Flint and Alex de Waal, “Justice Off Course In Darfur,”commentary, Washington Post, June 28, 2008,http://www.washingtonpost.com/wp-dyn/content/article/2008/06/27/AR2008062702632.html (accessed June 16, 2009).6. “Uganda: Acholi leaders in The Hague to meet ICC over LRAprobe,” IRINnews, March 16, 2005, http://www.globalsecurity.org/military/library/news/2005/03/mil-050316-irin03.htm (accessedMay 11, 2009); “Uganda: ICC indictments to affect northernpeace efforts, says mediator,” IRINnews, October 10, 2005,http://www.irinnews.org/report.aspx?reportid=56654 (accessedMay 11, 2009); Richard Dowden, “ICC in the Dock,”commentary, Prospect Magazine, May 2007,http://www.prospectmagazine.co.uk/article_details.php?id=9269(accessed May 12, 2009).7. Human Rights Watch, Selling Justice Short, pp. 18-19.8. Ibid., pp. 25-27.9/ Ibid., pp. 20-25.10. Payam Akhavan, “The Lord’s Resistance Army Case: Uganda’sSubmission of the First State Referral to the International CriminalCourt,” American Journal of International Law, vol. 99 (April2005), p. 404; Nick Grono and Adam O’Brien, “Justice in Conflict?The ICC and Peace Processes,” in Nicholas Waddell and Phil Clark,eds., Courting Conflict? Justice, Peace and the ICC in Africa(London: Royal African Society, March 2008), pp. 15-16; andO’Brien, ICG, “The impact of international justice on local peaceinitiatives.” See also Gareth Evans, “Justice, Peace and theInternational Criminal Court,” International Crisis Grouppresentation to the Second Public Hearing of the Office of theProsecutor, September 25, 2006, http://www.crisisgroup.org/home/index.cfm?id=4431&l=1 (accessed May 18, 2009).11. Human Rights Watch/Africa, The Scars of Death: ChildrenAbducted by the Lord’s Resistance Army in Uganda (New York:Human Rights Watch, 1997), http://www.hrw.org/en/reports/


LOOKING TO KAMPALA: THE CHALLENGES OF INTERNATIONAL JUSTICE IN AFRICA . 451997/09/18/scars-death; Human Rights Watch, Stolen Children:Abduction and Recruitment in Northern Uganda, vol. 15, no.7(A), March 2003, http://www.hrw.org/reports/2003/uganda0303/uganda0403.pdf; Abducted and Abused: RenewedConflict in Northern Uganda, vol. 15, no. 12(A), July 2003,http://www.hrw.org/sites/default/files/reports/uganda0703.pdf;Uprooted and Forgotten: Impunity and Human Rights Abuses inNorthern Uganda, vol. 17, no. 12(A), September 2005,http://www.hrw.org/sites/default/files/reports/ uganda0905.pdf.12. Lucy Hovil and Zachary Lomo, Refugee Law Project, “WhoseJustice? Perceptions of Uganda’s Amnesty Act 2000: the potentialfor conflict resolution and long-term reconciliation,” workingpaper no. 15, February 2005, http://www.refugeelawproject.org/working_papers/RLP.WP15.pdf (accessed May 15, 2009), p. 24.The chairman of the Amnesty Commission, Justice Peter Onega,described the passage of the Amnesty Act as “a deliberate effortto try and find a peaceful way of ending the conflicts andrebellions the country has had.” See “UGANDA: Forgiveness as aninstrument of peace,” IRINnews, June 9, 2005,http://www.irinnews.org/report.aspx?reportid=54859 (accessedMay 15, 2009). Two years later, however, Justice Onega called foran end to blanket amnesty because “former rebels grantedamnesty were going back into rebel activities and committinggreater crimes against humanity.” Josephine Maseruka andCharles Ariko, “Scrap blanket amnesty, says Onega,” New Vision(Kampala), August 14, 2007, http://www.newvision.co.ug/D/8/13/581394 (accessed May 26, 2009). See also The UgandaHuman Rights Commission, Fifth Annual Report to parliament forthe period of January 2001-September 2002, http://www.uhrc.ug/uploads/Chapter3-8.pdf (accessed May 15, 2009), p. 56 (“Thepassing of the amnesty law showed the government’s desire [to]implement a policy of reconciliation to establish peace, securityand tranquility”); and Amnesty International Report 2001,Uganda chapter, reproduced athttp://www.unhcr.org/refworld/pdfid/3b1de3914.pdf (accessed May 15, 2009).13. Prosecutor v. Kony, Otti, Odhiambo and Ongwen, ICC, Case No.ICC-02/04-01/05, Decision on the prosecutor’s application forthe warrants of arrest under Article 58, July 8, 2005. Lukwiyadied in 2006 and Otti in 2007. Once the court exercises itsjurisdiction, it has the authority to prosecute crimes by anyindividual, regardless of affiliation, provided the crimes werecommitted after 2002.14. For a summary of the many criticisms, see Tim Allen, Crisis StatesResearch Center, “War and Justice in Northern Uganda: AnAssessment of the International Criminal Court’s Intervention,”February 2005, http://www.crisisstates.com/download/others/AllenICCReport.pdf (accessed May 15, 2009), pp. 49-64.15. “UGANDA: Acholi leaders in The Hague to meet ICC over LRAprobe,” IRINnews, March 16, 2005, http://www.globalsecurity.org/military/library/news/2005/03/mil-050316-irin03.htm (accessedMay 15, 2009).16. “UGANDA: Amnesty and Peace groups urge ICC to probegovernment army too,” IRINnews, February 3, 2004,http://www.globalsecurity.org/military/library/news/2004/02/mil-040203-irin03.htm (accessed May 15, 2009), quoting astatement issued by a chief negotiator of the Acholi ReligiousLeaders’ Peace Initiative.17. “Justice for a Lawless World? Rights and reconciliation ina new era of international law,” IRIN In-Depth, July 2006,http://www.irinnews.org/pdf/in-depth/RightsAndReconciliationPart1.pdf (accessed May 15, 2009), p. 72.18. “LRA talks over, says Bigombe,” New Vision, October 10, 2005,http://www.newvision.co.ug/D/8/12/460057 (accessed May 15,2009).19. Cassandra Veney, “Between the Devil and the Deep Blue Sea:Internally Displaced Women and Girls in Liberia and Uganda andthe Role of the International Community,” Journal ofInternational Women’s Studies, vol. 7 (May 2006), p. 214; AdamO’Brien, “The impact of international justice on local peaceinitiatives: The case of Northern Uganda,” International CrisisGroup (ICG) expert paper for International conference: Building aFuture on Peace and Justice, June 2007,http://www.crisisgroup.org/home/index.cfm?id=4927 (accessed June 18.2009).20. “ICC Indictment to affect northern peace efforts, says mediator,”IRINnews, October 10, 2005, http://www.irinnews.org/report.aspx?reportid=56654 (accessed May 19, 2009).21. See, for example, “NGO attacks condemned in Uganda,” BBCNews Online, October 27, 2005, http://news.bbc.co.uk/2/hi/africa/4383150.stm (accessed June 11, 2008); “Uganda: Two aidworkers killed in north by suspected LRA rebels,” IRINnews,October 27, 2005, http://www.globalsecurity.org/military/library/news/2005/10/mil-051027-irin01.htm (accessed May 30,2008); Jason Beaubien, “Uganda rebels step up attacks whileoffering talks,” NPR, January 3, 2006, http://www.npr.org/templates/story/story.php?storyID=5080409 (accessed May 30,2008).22. “ICC Indictment to affect northern peace efforts, says mediator,”IRINnews, October 10, 2005; Frank Nyakairu, “Uganda: VictimsWant Special Court for Kony,” Monitor (Kampala), August 30,2007, http://allafrica.com/stories/200708291083.html (accessedMay 18, 2009); and Refugee Law Project, “ICC statement:position paper on the announcement of formal investigations ofthe Lord’s Resistance Army by the Chief Prosecutor of theInternational Criminal Court and its implications on the search forpeaceful solutions to the war in northern Uganda,” July 28,2004, http://www.refugeelawproject.org/archive/2004/RLP.ICC.investig.pdf (accessed May 15, 2009), pp. 7-9. Despitethe calls for traditional justice, a survey (and Human RightsWatch’s own research) indicates only a small percentage ofpeople in northern Uganda believe that traditional justicemechanisms are the most appropriate means for dealing withthose responsible for human rights violations. See Patrick Vincket al., “Research Note on Attitudes about Peace and Justice inNorthern Uganda,” Human Rights Center at UC Berkeley report,August, 2007, http://hrc.berkeley.edu/pdfs/Uganda-surveyresearch-note.pdf(accessed May 18, 2009). See also Allen, CrisisStates Research Center, “War and Justice in Northern Uganda,”p.87 (“Many individuals we interviewed are very interested in thepunishment of Kony and his commanders, and forgiveness is byno means as prevalent as is asserted by some activists andinterest groups.”).23. Refugee Law Project, “ICC statement: position paper,” July 28,2004.24. Human Rights Watch has called for the ICC Office of theProsecutor to look into crimes by all sides, and if it determinesthat abuses by the government forces do not meet the criteriafor ICC cases, to encourage the national authorities to investigateand prosecute them. See, for example, “ICC: Investigate All Sidesin Uganda,” Human Rights Watch news release, February 4,2004, http://www.hrw.org/en/news/2004/02/04/icc-investigateall-sides-uganda(“‘Human Rights Watch has documented manyshocking abuses by the LRA in Uganda,’ said Richard Dicker,director of the International Justice program at Human RightsWatch. ‘But the ICC prosecutor cannot ignore the crimes thatUgandan government troops allegedly have committed.’”).See also Human Rights Watch, Courting History: The Landmark


46 . DEBATING INTERNATIONAL JUSTICE IN AFRICAInternational Criminal Court’s First Years, 1-56432-358-7,July 2008, http://www.hrw.org/sites/default/files/reports/icc0708_1.pdf, p. 42, which recognizes that as a result of theprosecutor’s failure to adequately explain his investigation ofUPDF crimes, “the prosecutor’s work in Uganda is perceived bymany of those in affected communities as one-sided and biased.”25. See Gerard Prunier, “Rebel Movements and Proxy Warfare:Uganda, Sudan and the Congo (1986-99),” African Affairs, vol.103 (July 2004).26. Robert Smith, “Consolidated Appeals Process 2004: Mid-YearReview Uganda,” UN Office for the Coordination of HumanitarianAffairs, May 2004, http://ochadms.unog.ch/QuickPlace/cap/Main.nsf/ h_398ED03F0BFE3FDCC1256DC2004EAC51/02DAEC2B53577A41C1256EA1004D2140/$FI LE/MYR_2004_Uganda_PRINT.pdf?OpenElement (accessed May 18,2009), p. 3; and “Uganda thanks Sudan for allowing its army topursue rebels over border,” Sudan Tribune, April 16, 2004,http://www.sudantribune.com/spip.php?page=imprimable&id_article=2511 (accessed May 18, 2009).27. “UGANDA-SUDAN: Optimism that Sudanese peace deal couldhelp pacify northern Uganda,” IRINnews, January 11, 2005,http://www.irinnews.org/Report.aspx?ReportId=52628 (accessedMay 18, 2009).28. O’Brien, ICG, “The impact of international justice on local peaceinitiatives.”29. Grono and O’Brien, “Justice in Conflict? The ICC and PeaceProcesses,” in Waddell and Clark, eds., Courting Conflict? Justice,Peace and the ICC in Africa, p. 16.30. Ibid.; and O’Brien, ICG, “The impact of international justice onlocal peace initiatives.”31. John Prendergast, “End This African Horror Story,” WashingtonPost, April 7, 2005, http://www.washingtonpost.com/wp-dyn/articles/A32735-2005Apr6.html (accessed May 18, 2009).32. Akhavan, “The Lord’s Resistance Army Case,” American Journalof International Law, pp. 404, 417-418.33. Allen, Crisis States Research Center, “War and Justice in NorthernUganda,” p. 58.34. Abigail Moy, “The International Criminal Court’s Arrest Warrantsand Uganda’s Lord’s Resistance Army: Renewing the Debate overAmnesty and Complementarity,” Harvard Human Rights Journal,vol. 19 (2006), p. 271. Between January 1, 2000, and January19, 2009, 12,503 former LRA combatants have received amnesty.Statistics provided by the Amnesty Commission, Kampala, January19, 2009.35. Peter Clottey, “Uganda’s LRA Rebels Say ICC Arrest WarrantsObstacles to Peace,” radio report, Voice of America, November13, 2007, http://www.voanews.com/english/archive/2007-11/2007-11-13-voa2.cfm?CFID=201871731&CFTOKEN=11796895&jsessionid=8830a01d1ac6a00475005f774865744b5f39(accessed May 18, 2009); and Peter Clottey, “Uganda’s LRARebels Displeased with ICC Chief Prosecutor,” radio report, Voiceof America, 15 October 2007, (accessed May 18, 2009).36. Human Rights Watch interview with western diplomats (nameswithheld), Kampala, March 2 and 15, 2007.37. O’Brien, ICG, “The impact of international justice on local peaceinitiatives.” See also Grono and O’Brien, “Justice in Conflict? TheICC and Peace Processes,” in Waddell and Clark, eds., CourtingConflict? Justice, Peace and the ICC in Africa, pp. 15, 19; andEvans, ICG, “Justice, Peace and the International Criminal Court.”Ironically, shortly before these peace talks, Museveni had againoffered LRA leader Kony amnesty. “U.S. Position on LRAAmnesty,” US Department of State press release,http://northernuganda.usvpp.gov/lraamnesty.html (accessed May19, 2009); and Frank Nyakairu, “Uganda: Museveni amnesty toKony illegal – ICC,” Monitor, July 6, 2006, http://www.afrika.no/Detailed/12493.html (accessed May 18, 2009). This offer,however, did not become the focus of accountability discussionsin Juba. Negotiations instead centered on the possibility ofnational alternatives – including the use of traditional justicemeasures – to trial by the ICC.38. Agreement on Accountability and Reconciliation between theGovernment of the Republic of Uganda and the Lord’s ResistanceArmy/Movement, Juba, Sudan, June 29, 2007, paras. 4.1-4.2,6.1-6.2; and Annexure to the Agreement on Accountability andReconciliation between the Government of the Republic ofUganda and the Lord’s Resistance Army/Movement on 29th June2007, Juba, Sudan, February 19, 2008, paras. 7, 10-14.39. For a more detailed discussion of these issues, see Human RightsWatch, Benchmarks for Justice for Serious Crimes in NorthernUganda: Human Rights Watch Memoranda on Justice Standardsand the Juba Peace Talks, May 2007 – February 2008,http://www.hrw.org/legacy/pub/2008/ij/uganda_memos_cover.pdf.40. Uganda, Sudan, and the Democratic Republic of Congo launcheda joint operation on December 14, 2008, against the LRA. Due topoor planning and logistical challenges, the operation failed toapprehend LRA leaders indicted by the ICC. The LRA responded bykilling at least 865 civilians and abducting several hundredpeople. See Human Rights Watch, The Christmas Massacres: LRAattacks on Civilians in Northern Congo, 1-56432-438-9,February 2009, http://www.hrw.org/sites/default/files/reports/drc0209web_0.pdf.41. See Elise Keppler, “Managing Peace and Justice in the JubaProcess,” (forthcoming) (manuscript on file with Human RightsWatch). At the same time, communication between LRArepresentatives in Juba and the LRA leadership appeared to beintermittent and suffered from a relative breakdown in the finalmonths of the talks, raising questions as to the degree ofinvolvement of the LRA leaders in negotiating the agreements,especially the February 2008 agreement on accountability. SeeInternational Crisis Group, “Northern Uganda: The Road to Peace,With or Without Kony,” Africa Report No. 146, December 2008,pp. 1-4; and Joe Wacha, Institute for War and Peace Reporting,“Kony Adds to Peace Process Turmoil,” July 3, 2008,http://www.globalpolicy.org/component/content/article/207/39840.html (accessed September 23, 2009).42. Keppler, “Managing Peace and Justice in the Juba Process.” 43Ibid.44. See Human Rights Watch, Selling Justice Short, part IV.45. Many of the deaths were due to hunger and lack of medicalcare, others due to direct violence. Benjamin Coghlan et al.,International Rescue Committee and Burnet Institute,“Mortality in the Democratic Republic of Congo: An OngoingCrisis,” January 2008, http://www.theirc.org/resources/2007/2006-7_congomortalitysurvey.pdf (accessed May 20, 2009),pp. ii, 16.46. Tens of thousands were brutally slaughtered on an ethnic basisbetween 1999 and 2009. At this writing, killings continue in Ituriwith at least two militia groups continuing to fight the Congolesearmy. There has been considerably less violence since 2007 thanin previous years. See “Top UN official signals improvement, toughchallenges in eastern DR Congo,” UN News Service, April 9, 2009,http://www.un.org/apps/news/story.asp?NewsID=30442&Cr=democratic&Cr1=congo (accessed May 20, 2009); Médecins SansFrontières, “DRC: LRA Attacks’ ‘Lasting Effect,’” May 18, 2009,http://www.doctorswithoutborders.org/news/article.cfm?id=3626&cat=voice-from%20the%20field&ref=home-sidebar-right(accessed May 20, 2009).


LOOKING TO KAMPALA: THE CHALLENGES OF INTERNATIONAL JUSTICE IN AFRICA . 4747. Office of the Prosecutor, International Criminal Court, Statementof Mrs Fatou Bensouda, Deputy Prosecutor of the InternationalCriminal Court, Sixteenth Diplomatic Briefing, Brussels, May 26,2009, http://www.icc-cpi.int/NR/rdonlyres/302CA5E0-E2B5-4663-96DE-93E55B1FD26C/280424/DP_ENG.pdf, p. 2.48. At times, Congolese judicial officials with the help of UN humanrights specialists tried to stem the wave of impunity, notablyincluding the March 2009 conviction of Mai Mai commanderGedeon Kyungu Mutanga on charges that included crimes againsthumanity. See “DR Congo: Militia Leader Guilty in LandmarkTrial,” Human Rights Watch news release, March 10, 2009,http://www.hrw.org/en/news/2009/03/10/dr-congo-militialeader-guilty-landmark-trial.But too often their efforts wereundermined by political interference, corruption, or prison breakswhere some militia leaders who had been arrested managed toescape. See further discussion in Human Rights Watch, SellingJustice Short, pp. 49-50.49. See extended discussion of several such cases – including thoseof Gabriel Amisi, Jerome Kakwavu, Floribert Kisembo Bahemuka,and Peter Karim – in Human Rights Watch, SellingJustice Short,pp. 45-40.50. Human Rights Watch, Democratic Republic of Congo – RenewedCrisis in North Kivu, vol. 19, no. 17(A), October 2007,http://www.hrw.org/reports/2007/drc1007/drc1007web.pdf, p. 59.Despite the government’s policy of appeasing human rightsabusers, an August 2008 survey by the Berkeley-Tulane Initiativeon Vulnerable Populations found that in eastern DRC, 85 percentof the population believes that it is important to hold those whocommitted war crimes accountable and that accountability isnecessary to secure peace. Patrick Vinck, Phuong Pham, SulimanBaldo, and Rachel Shigekane, “Living With Fear: A Population-Based Survey on Attitudes About Peace, Justice, and SocialReconstruction in Eastern Democratic Republic of Congo,” August2008, http://hrc.berkeley.edu/pdfs/LivingWithFear-DRC.pdf(accessed May 20, 2009), p. 2.51. “DRC: Controversy Surrounds Certain Military Appointees,”IRINnews, August 26, 2003. The UN special rapporteur indicatedher unhappiness at seeing Nkunda, who had been accused ofcrimes and human rights violations, being appointed togovernment institutions. See “DRC: Three RDC-Goma officerssummoned before military court,” IRINnews¸ September 10,2003, http://www.irinnews.org/PrintReport.aspx?ReportId=46037(accessed May 21, 2009). On the crimes committed in Kisangani,see Human Rights Watch, Democratic Republic of Congo−WarCrimes in Kisangani: The Response of Rwandan-backed Rebelsto the May 2002 Mutiny, vol. 14, no. 6(G), August 2002,http://www.hrw.org/legacy/reports/2002/drc2/DRC0802.pdf, p. 2.The UN later put the figure at 163, including civilians. See also“Death Toll in Congo Raid,” New York Times, July 17, 2002,http://www.nytimes.com/2002/07/17/world/death-toll-in-congoraid.html(accessed May 20, 2009).52. Human Rights Watch, War Crimes in Kisangani, p. 19.53. The new military leader called for the arrest of Nkunda and twoother officers who refused to attend the ceremony. “Congo’s armyorders arrest of three rebel officers,” Reuters, September 10, 2003.54. Human Rights Watch also documented serious crimes committedby the Congolese army during the Bukavu crisis. See HumanRights Watch, D.R. Congo: War Crimes in Bukavu, June 2004,http://www.kongo-kinshasa.de/dokumente/ngo/hrw_110604_en.pdf.55. United Nations Security Council, Resolution 1565 (2004),S/RES/1565(2004), http://daccessdds.un.org/doc/UNDOC/GEN/N04/531/89/PDF/N0453189.pdf?OpenElement (accessed May21, 2009), para. 5(g).56. The warrants for Nkunda and Jules Mutebesi included war crimesand crimes against humanity. They were issued by thegovernment but were not supported by appropriate substantivejudicial investigation. Implementation of the warrants withoutadditional legal procedures would not have met necessary fairtrial standards. Human Rights Watch, Renewed Crisis in NorthKivu, pp. 59-60.57. The Security Council repeated its call to bring those responsiblefor violations of human rights and international humanitarianlaw to justice on 21 December 2005. United Nations SecurityCouncil, Resolution 1649 (2005), S/RES/1649(2005),http://daccessdds.un.org/doc/UNDOC/GEN/N05/658/00/PDF/N0565800.pdf?OpenElement (accessed May 21, 2009),preamble.58. Human Rights Watch, Democratic Republic of Congo – Electionsin sight: “Don’t Rock the Boat”? December 15, 2005,http://www.hrw.org/legacy/backgrounder/africa/drc1205/drc1205.pdf, p. 3.59. Human Rights Watch interview with MONUC officials (nameswithheld), Goma, February 9 and May 12, 2007.60. He claimed that other ethnic groups too had a role in his newmovement. See, for example, Congrès National pour la Défensedu Peuple, “Cahier de Charges du Congrès National pour laDéfense du Peuple (CNDP),” October 2006, condensed versionavailable in French at http://www.cndp-congo.org/index-fr.php?subaction=showfull&id=1220528453&archive= &start_from=&ucat=6& (accessed May 21, 2009).61. In a report to the UN Security Council in June 2007, the UNsecretary-general noted with concern increased recruitment ofchildren in the DRC and Rwanda for service with Nkunda’s units.He remarked that “commanders loyal to Laurent Nkunda” andNkunda himself actively obstructed efforts to remove childrenfrom military ranks. He called for the arrest of Nkunda and othersinvolved in recruiting and using child soldiers and asked MONUCto assist in making such arrests if necessary. Human RightsWatch, Renewed Crisis in North Kivu, pp. 49-54; and UnitedNations Security Council, “Report of the Secretary-General onchildren and armed conflict in the Democratic Republic of theCongo,” S/2007/391, June 28, 2007, http://daccessdds.un.org/doc/UNDOC/GEN/N07/390/16/PDF/N0739016.pdf?OpenElement(accessed May 21, 2009), paras. 22-23, 29, 72.62. John Kanyunyu and Joe Bavier, “Congo rebel leaderNkunda arrested in Rwanda,” Reuters, January 23, 2009,http://www.reuters.com/article/worldNews/idUSTRE50M14N20090123 (accessed June 26, 2009). To date, no charges have beenbrought against him. The DRC requested his extradition to standtrial for war crimes and crimes against humanity, but without theestablishment on an ad hoc court or major reform to the DRCjudicial system, Nkunda is unlikely to get a fair trial there.63. Human Rights Watch, Ituri:”Covered in Blood”: EthnicallyTargeted Violence in Northeastern DR Congo, vol. 15, no.11(A),July 2003,http://www.hrw.org/sites/default/files/reports/DRC0703.pdf, pp.23-27; and The Curse of Gold: Democratic Republic of Congo(New York: Human Rights Watch, 2005), http://www.hrw.org/en/node/11733, pp. 23-34.64. Letter from Human Rights Watch to all EU Foreign Ministers,“Urge Congolese Government to Enforce ICC Arrest Warrant onWar Crimes Charges,” February 2, 2009, http://www.hrw.org/en/news/2009/02/02/urge-congolese-government-enforce-iccarrest-warrant-war-crimes-charges.65. Ibid. See also United Nations Security Council, Resolution 1857(2008), S/RES/1857(2008), http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/


48 . DEBATING INTERNATIONAL JUSTICE IN AFRICADRC%20S%20RES%201857.pdf (accessed May 21, 2009), para. 5.66. Human Rights Watch, Democratic Republic of Congo – Killings inKiwanja: The UN’s Inability to Protect Civilians, 1-56432-422-2,December 2008, http://www.hrw.org/sites/default/files/reports/drc1208web.pdf, p. 10.67. Prosecutor v. Ntaganda, ICC, Case No. ICC-01/04-02/06, Warrantof Arrest, August 22, 2006, http://www2.icc-cpi.int/iccdocs/doc/doc305330.PDF (accessed May 21, 2009).68. “Congo ex-Rebel ‘working with UN,’” BBC News Online, April 29,2009, http://news.bbc.co.uk/2/hi/africa/8023978.stm (accessedMay 21, 2009). The government’s inclusion of abusive leaders inthe army has also set the stage for further atrocities by its ownforces. Human Rights Watch research over the course of 2009has documented the deliberate killing of more than 1,400civilians between January and September 2009 during twosuccessive Congolese army operations against a Rwandan Hutumilitia, the Democratic Forces for the Liberation of Rwanda(FDLR).Ntaganda served as the de facto deputy commander ofthe second operation, Kimia II. See Human Rights Watch, “YouWill Be Punished”:Attacks on Civilians in Eastern Congo,December 2009, http://www.hrw.org/sites/default/files/reports/drc1209web_1.pdf.69. Our research indicates that other long-term benefits includeprotecting against revisionism. In addition, successfulinvestigations and prosecutions may ultimately have somedeterrent effect in the long term by, at a minimum, increasingawareness of the types of acts that are likely to be punishableoffenses. See Human Rights Watch, Selling Justice Short, pp.117-27.70. Ibid. pp. 93-100 (ad hoc tribunals), 108-16 (universaljurisdiction).71. The impact on national proceedings of ICC investigations inUganda, Democratic Republic of Congo, and Darfur, Sudan, aswell as on two situations under preliminary examination by theICC prosecutor–Kenya and Colombia–are discussed in HumanRights Watch, Selling Justice Short, pp. 100-03, 105-08.72. Human Rights Watch, Central African Republic – State ofAnarchy:Rebellion and Abuses against Civilians, vol. 19, no.14(A), September 2007,http://www.hrw.org/sites/default/files/reports/car0907webwcover_0.pdf.73. Human Rights Watch, World Report 2008 (New York: HumanRights Watch, 2008), Central African Republic chapter,http://www.hrw.org/legacy/englishwr2k8/docs/2008/01/31/carepu17887.htm.74. Letter from Francois Bozize to Ban Ki-moon, August 1, 2008, onfile with Human Rights Watch. See also Human Rights Watch,World Report 2009, Central African Republic chapter,http://www.hrw.org/sites/default/files/related_material/car.pdf.75. Human Rights Watch, World Report 2009, Central AfricanRepublic chapter, http://www.hrw.org/sites/default/files/related_material/car.pdf.76. Ibid.; and Human Rights Watch, World Report 2008, CentralAfrican Republic chapter, http://www.hrw.org/legacy/englishwr2k8/docs/2008/01/31/carepu17887.htm.Sara Darehshori is senior counsel and ElizabethEvenson is counsel in the International JusticeProgram of Human Rights Watch.


DARFUR, BASHIR AND THE INTERNATIONAL CRIMINAL COURT . 49Darfur, Bashir and the InternationalCriminal CourtPARTTWOIf Ocampo Indicts Bashir, NothingMay HappenPhil Clark13 July 2008Regarding the ICC’s likely indictment of SudanesePresident Omar al-Bashir, one of the main concernsexpressed is that it would cause Khartoum to lash outand inflict further atrocities on civilians, worseningthe security and humanitarian situations in Darfur.While it is near-impossible to predict the impact thatpursuing international justice will have on domesticpolitics and peacemaking, I propose that quite adifferent problem may emanate from the Bashir case:Because of the ICC’s failures in Sudan and elsewhereto date – especially its inability to arrest key indictees– its move against Bashir may represent a hollowthreat which Khartoum could easily ignore and whichmay ultimately have little impact on the political andconflict situation in Sudan. The concern is not thatthe indictment of Bashir may have a negative effectbut that it may have no effect at all, raising questionsabout the fundamental purpose of the ICC inresponding to mass atrocity.My argument here leads on from debates in therecent Royal African Society collection, CourtingConflict? Justice, Peace and the ICC in Africa, inwhich Alex de Waal and I disagree on the role of theICC in pursuing major suspects, especially sittingheads of state such as Bashir, Congolese PresidentJoseph Kabila and Ugandan President YoweriMuseveni. In his chapter in the collection, de Waalpraises the ICC for its initially ‘cautious step-by-stepstrategy’ in Sudan. He argues that the ICC’s‘politically astute’ approach of issuing arrest warrantsfor two middle-ranking figures, Amhed MohamedHaroun and Ali Mohamed Abdel Rahman ‘Kushayb’,while not indicting individuals at the highest level ofgovernment such as Bashir and thus avoidingexplosive confrontation with Khartoum, judiciouslybalanced concerns for justice and peace. In contrast,in my chapter I criticise the ICC for its generally timidapproach in the Democratic Republic of Congo (DRC)and Uganda, where the Court has eschewed the mostdifficult cases – principally those concerning suspectsin the Congolese and Ugandan governments – infavour of those that could have been ably handled bythe domestic courts. In the process, the ICC hascontravened its own principle of complementarity, asoutlined in Article 17 of the Rome Statute, whichholds that the Court should not investigate orprosecute cases when domestic institutions aregenuinely willing and able to do so. By avoiding casesthat a global Court is mandated to pursue,particularly those involving high-ranking nationalofficials who have insulated themselves from domesticjustice, the ICC has also forfeited much of itslegitimacy among populations affected by conflict.To fulfil its mandate and maintain its legitimacy in theDarfur situation, the ICC should indict Bashir. Thisrepresents precisely the sort of case for which the ICCwas created, holding accountable a head of state forcommitting grave crimes against his own citizens,while the domestic courts display no genuinewillingness or ability to investigate or prosecute thecase. Unlike the DRC or Uganda situations, where theICC has intervened following state referrals that weregained after sustained diplomacy between the Courtand local political officials (my research indicates thatthe ICC spent almost a year trying to persuade theUgandan government that a referral was in itsinterests), the Darfur situation was referred to theCourt by the UN Security Council. The Court has neverhad to maintain positive working relations with theSudanese government, either at the referral stage orduring its investigations. Although Sudan’s noncooperationwith the ICC greatly hampers the Court’sgathering of evidence, the flipside is that it faceslittle domestic political impediment to indicting Bashiror other senior Sudanese figures. Meanwhile


50 . DEBATING INTERNATIONAL JUSTICE IN AFRICAconcerns about the ICC’s impact on the pursuit ofpeace in Sudan may be overstated. Commentatorsopposed to the indictment of Bashir on the groundsthat it would lead to further violence are right toemphasise that the ICC is a political as well as legalinstitution and that the impact of the Court must beassessed in political and peacemaking terms beforethe Court decides to intervene domestically. However,the impact of the ICC so far in Sudan and elsewheresuggests Khartoum has little reason to take theCourt’s indictment of Bashir seriously. If theSudanese government interprets this as an emptythreat, it will have little reason to react to it byunleashing further mayhem on civilians.In the Sudan and Uganda situations, the ICC hasproven to be a toothless tiger, issuing warrants formajor perpetrators – Haroun, Kushayb and theleadership of the Lord’s Resistance Army (LRA) – whoremain at large and are unlikely to be transferred toThe Hague any time soon. The ICC relies on nationaland international police and military actors to captureand arrest suspects. However, the Court has generallyfailed to foster meaningful relations with UNpeacekeeping missions and other ground-levelinstitutions that are vital to its cause. Officials fromMONUC, the UN peacekeeping mission in the DRC,told me in 2006 that they were deeply frustrated bythe ICC’s unilateralism. One MONUC official in Bunia,the main town in Ituri province, said ICC investigatorshad “arrived out of the blue” in 2004 and demandedevidence regarding serious crimes in Ituri whichMONUC had systematically gathered with theintention of aiding the local judiciary’s prosecution ofmajor atrocity perpetrators. Another official statedthat the ICC had failed to adequately recognise therole that MONUC and the Congolese army played inarresting key suspects, including Thomas Lubangaand Germain Katanga, who were subsequentlytransferred to the ICC for prosecution. The official saidthat the ICC’s failure to build strong relations withMONUC made the peacekeeping force reluctant toassist with other ICC cases, for example capturing andarresting the leaders of the LRA who have beenbased in north-eastern DRC since 2005. A breakdownin cooperation between MONUC and the ICC is a keyreason why the UN is currently refusing to allow theCourt’s chief prosecutor, Luis Moreno Ocampo, tomake public UN-gathered evidence regarding theLubanga case. Without the UN’s permission forOcampo to hand over key documents to Lubanga’sdefence team, this case – which was supposed tolead to the ICC’s first-ever trial – is on the brink ofcollapse and Lubanga may soon walk free.At a meeting in May 2008 hosted by OxfordTransitional Justice Research, Ocampo stated that thefundamental role of the ICC is to coordinate itsactivities with government and non-governmentactors in order to help end conflict. The Court,Ocampo said, is simply one piece of the peacemakingpuzzle. Evidence from the ground, however, suggeststhat the ICC has not always sought this collaborationand often perceived itself as the lead organisation towhich all others are answerable. Without reliablepolice and military allies, the ICC cannot deliverjustice for individuals such as Haroun and Kushayb.Bashir may therefore interpret an ICC indictment asmere bluster; an attempt by Ocampo – who is facingincreasing pressure over the Lubanga and LRA casesand his overall failure to get ‘judicial results’ – toshow that the Court is willing to prosecute thehighest-ranking officials but without the practicalcapacity to do so. Given these calculations, it is thelikelihood that the ICC’s indictment of Bashir wouldhave little impact at all on the behaviour of theSudanese government – neither producing a violentbacklash in Darfur nor deterring future crimes – thatshould cause alarm.Dr. Phil Clark is a research fellow in courts and publicpolicy at the Centre for Socio-Legal Studies, Universityof Oxford, and convenor of Oxford Transitional JusticeResearch: philip.clark@csls.ox.ac.uk.


DARFUR, BASHIR AND THE INTERNATIONAL CRIMINAL COURT . 51Dilemmas of Confrontation andCooperation: Politics in Sudan duringOcampo v BashirSharath Srinivasan18 July 2008Important debates about peace versus justice do notget us very far in understanding what is happening inSudan after the ICC Prosecutor outlined chargesagainst President Bashir. Sudan, for its entireunrelenting calamity, has frequently exhibited apractice of well-oiled political calculation. To knowwhat lies ahead, it is these calculations that we mustfocus on. I begin by making the case for Ocampo’spolitical objectives in boldly seeking justice in the wayhe has. Well-prepared days before the Prosecutoroutlined his charges, Khartoum is employing welltestedstrategies of confrontation and cooperation.Similar strategies adopted by those opposed to Bashirand his National Congress (NC) party explain thecurrent state of calm, but also portend the challengesahead. Justice is indeed having an impact politically,and it may yet turn out to be a positive one.Any outside actor foraying into Sudan is highlypoliticised, whatever its business: ‘humanitarians,’‘peacemakers,’ and now the ‘justicemaker’. WhenKhartoum failed to hand over two middle-levelindicted suspects and dismissed the ICC, Ocampo firstsuccessfully buttressed his mandate with a statementfrom the UN Security Council in June that all parties inSudan must ‘cooperate fully with the Court’. He thenwent for the jugular and ‘command responsibility’: thePresident; Genocide. Mired by doubts over his abilityto deliver the critical successes needed by a nascentICC, Ocampo has gone for bust. But surely this cannotbe because he banks on Bashir’s arrest or surrenderfollowing any future indictment? And the genocidecharge too is, for reasons most accept, not the easywin option in Darfur.The risk of nothing happening is high, as Phil Clarkexplains in the previous essay, but perhaps it is thereward of something not necessarily judicialhappening that Ocampo finds tantalising. HasOcampo wagered that an indictment will be a dam-breaker, possibly in obtaining Khartoum’s cooperationon the two already indicted suspects, but morehopefully in making the ICC a player in conflictmanagement? In a BBC interview on Monday, he wasat pains to emphasise that it was the Security Councilwith its referral that decided that justice was an‘important component of conflict management’ and‘genocide management’. Ocampo focused on this, notfuture legal proceedings: ‘If the judges confirm thecharges, I’m sure the Security Council will take themeasures to stop the genocide’. Seen from thisperspective, even an Article 16 deferral is a possiblesuccess: if it prompts international action and comesat a price for Khartoum. Ocampo might well settle forbeing Bashir’s Damoclean sword for an indefiniteperiod.If this assessment of Ocampo’s strategy is right, it isrisky to play such politics with Khartoum. Bashir’s NCcertainly sees Ocampo as a minion in its longstandingbattle with a liberal interventionist West. For 19 years,Bashir and company have seen off more potent‘aggressors’. We can expect a wily mix ofconfrontation and cooperation that is purposefullycontradictory, fits-and-starts-then-fits-again, goodcopbad-cop. It has worked before: humanitarianaccess, peace talks, peacekeepers, counter-terrorism.Externally and internally, the NC will choose to keepthe ICC political, because that is the game it playsbest.Externally, confrontation has been the first line ofdefence. Already Khartoum has drummed up supportagainst the ICC and for an Article 16 one-year deferralof the Bashir case by the UN Security Council. OnKhartoum’s side are the African Union, the ArabLeague, Russia and China. The strength of thissupport dilutes any need to cooperate with the Court.Thus, the NC has refused to bite on hints that it couldhand over the two indictees as part of a deal onBashir. This will not change unless the NC feels underfar more pressure. A key question is whether theArticle 16 debate in the Security Council happensbefore or after the three trial judges decide about anindictment.


52 . DEBATING INTERNATIONAL JUSTICE IN AFRICAOther, messier avenues for external confrontationplay to the fears held by many diplomats andcommentators: Vice-President Ali Osman Taha said,‘Southern Sudan are the first to be harmed by thedisruption of the peace implementation if theprocedure is engaged to its end’; on the currentAbyei dispute, Sudan’s ambassador to the UN said, ‘Itwill create a very bad situation within the presidency’;a wait-and-see approach by Darfur rebels on peacetalks, a senior official predicted, ‘produces astalemate’. Violence, to civilians or to peacekeepersor humanitarians, looms silently but darkly over all ofthis.Internally, so far confrontation has taken the guise ofsuccessful reaching out to political adversaries tobuild united opposition to an indictment of Bashir.And cooperation has focused on showing progress onDarfur and the Comprehensive Peace Agreement(CPA) to demonstrate what is at stake and to expandthe divide between the ICC and its detractors. Thereis a new national unity government initiative forpeace in Darfur headed by Saddiq al-Mahdi, formerprime minister and opposition Umma party leader. Themuch-heralded adoption of election laws was timedto be on 14 July, the day Ocampo filed his charges.So why the level of cooperative support that Bashirenjoys against the ICC from northern oppositionparties, and even the southern-based Sudan People’sLiberation Movement (SPLM)? Surely this is a preciouschance for them to confront their old foe? Saddiq al-Mahdi, hitherto a vocal supporter of the ICC, has nowdeclared for constitutional stability over justice. TheCommunists, Democratic Unionists and al-Turabi’sPopular Congress all agree. Northern oppositionparties are collectively far more popular than Bashir’sNC but toothless in the face of the latter’s militarysecuritydomination. They are banking on elections in2009 or a new unity government, stubbornlyoptimistic that the NC may yield its absolute power. Apresidential palace besieged by the ICC, they know,will batten down the hatches. Hardliners willdominate decisions, probably given succour by theemboldened belligerence of Darfur rebel groups.When politics gets more violent, these northernopposition parties become less relevant. Mixed with astrong patriotism, to date they have stood behind thestate and its president. But they have yet to nametheir price.For the SPLM, a Bashir indictment would be a newaddition to the ‘can’t live with or without you’ CPAdilemma. Bitterly or not, the NC is their ‘partner’ inthe national ‘unity’ government; the sole co-signatoryto their precious peace deal. With much to lose,confrontation is not an option. Not yet. Althoughthey talk up the country’s unity, the SPLM is splitbetween secessionists and ‘New Sudanists’. Thelatter, especially those in northern Sudan frustratedwith the CPA, have a lot more to gain by capitalisingon NC vulnerability. So far, after heated debates inJuba, the SPLM is backing its partner. Again, the SPLMwill expect the NC to pay up, starting perhaps withresolving the Abyei dispute.As for the Darfur rebel groups, they have predictablyrejoiced with loud support for a possible indictmentof Bashir, but so far they have limited themselves towords. JEM won few friends in Sudan or abroad withits recent attack on Khartoum, and right now a repeateffort would be very risky given northern oppositionand SPLM support for the NC.Thus far, things are much calmer than predicted. Butwe should remember that the trajectory of events inSudan before 14 July was already dire. The CPA wasshaky at best after the Abyei crisis in May. Last week,the NC railed against SPLM secretary-general PaganAmoum for calling Sudan a ‘failed state’. As fordemocratisation, the security crackdown on Darfurisafter the JEM attack, redoubled attacks of pressfreedom, a shambolic census and bitter debates overthe election laws all boded badly. A peace deal forDarfur was more of a long shot than ever. And theunconfirmed defection of sole rebel signatory MinniMinawi to the ‘bush’ may kill off the Darfur PeaceAgreement once and for all.Vulnerable and distrusted, the NC needs to offer moresubstantial concessions and guarantees on Darfur,Abyei, and democratisation and reform under the CPA


DARFUR, BASHIR AND THE INTERNATIONAL CRIMINAL COURT . 53to maintain vital domestic support ahead and beyondany Article 16 decision by the Security Council. Even aone-year deferral puts Bashir in an invidious positioncome the time of elections next year. Relinquishpower and he is exposed to the indictment.Gerrymander the elections and lose importantdomestic support. Northern opposition parties coulddecide that justice now trumps stability. Darfur rebelscould go for broke, while SPLM ‘New Sudanists’ mightresurrect the objective of the Movement’s latefounder to take Khartoum. Bashir could dig in andfight but, 20 years on, one wonders whether he hasthe wherewithal. And a lurking fear would be thatsome quarters in the NC might decide to sacrificehim.Bashir’s best option may be accepting an inclusivenational agreement that deals him and his lot somekind of enduring role in government and a localreconciliatory version of justice. It will cost himserious reforms and the NC’s relinquishing itsabsolute hold on power. It would have to bring in thenumerous armed Darfur political groups and protectthe CPA gains for the southerners. This is improbableand hard to stomach for those in the NC used to afree hand. If an indictment, deferred or not, isconsidered to have played a role in delivering any ofthis, Ocampo may yet have cause to argue that hiswas a job well done. The deterrence effect may flownot only from successful prosecutions but becausepowerful politicians are forced by internationalinstitutions to respond and change their behaviour.Sharath Srinivasan is a doctoral researcher ininternational development at the University ofOxford: sharath.srinivasan@sant.ox.ac.uk.Ocampo v Bashir: The Perspectivefrom JubaNaseem Badiey18 July 2008The perspective on the ground in Juba regarding theICC prosecutor’s request for an arrest warrant forPresident Bashir is very different from that inKhartoum and Europe. Here there is concern about theimpact of the warrant on the fragile ComprehensivePeace Agreement (CPA) signed in 2005. Thisagreement has only recently saved the people ofSouthern Sudan from the same suffering anddeprivation that has prompted international outcryover Darfur. What is the point, ask some SouthernSudanese, of taking action in support of Darfuris if itis at the expense of the people of the South?While the situation in Darfur seems only to getworse, Southern Sudan can be cautiously viewed as asuccess story. Within three years, Southern Sudan hascome to look and feel like a separate country. Roadshave been de-mined and paved for the first time,buildings are going up everywhere, people arereturning, jobs abound. While international agencieshave evacuated staff from Khartoum, life in Juba goeson as usual: peaceful, hopeful, and now evenbustling. This is in stark contrast to life here only afew years ago.For the past few days, people in Juba have beenreading the newspapers and watching the news onsatellite television, and many conclude that theycould do without both Bashir and Ocampo. Whilesome Jubans support the purpose and aims of the ICC– and certainly few have any sympathy for Bashir –many shake their heads at international actors sofocused on symbolism and lofty ideals that they failto consider the practical impact of their actions onthe people of this region. Here justice is a pipedream, a luxury few can afford. What people want ispeace and development. They want healthcare, cleanwater, education, and most of all security.The conflict in Darfur has raged for the last fiveyears. The civil war between the ‘North’ and the


54 . DEBATING INTERNATIONAL JUSTICE IN AFRICA‘South’ lasted 22 years, involving various rebelfactions, regular forces, and counterinsurgency forceswith ‘Northerners’ and ‘Southerners’ on both sides.Since the CPA, Southern Sudan has been occupiedwith the task of rebuilding a region lackinginfrastructure, but there are many complex issues thatremain to be worked out. Foremost among them isthe relationship between the new Southern state andthe region’s many communities. Institution-building,the resettlement of refugees and IDPs, developing aland policy, drafting legislation, building humancapacity, providing much-needed services, preparingfor elections – these are the immediate issues thatconcern Southern Sudanese, not exposing Bashir’scrimes or punishing him for his role in Darfur.Here, many people bear responsibility for atrocitiescommitted during two decades of war. Almost all ofthe Southerners now in the Government of SouthernSudan fought either with the Sudan People’sLiberation Army or in Khartoum’s counter-insurgencycampaigns. That the success of ‘South-Southreconciliation’ has brought together the likes ofPaulino Matiep (former commander of the SouthSudan Defence Forces), Clement Wani (formerSudanese Armed Forces General and leader of theMundari Militia), Salva Kiir and Riek Machar to worktowards a common goal is a remarkable feat. Indeed,it is a model of a successful reconciliation process,led by Southern Sudanese themselves, and a gainworth protecting.The atrocities in Darfur and the role of theGovernment of Sudan certainly warrant internationalaction. Yet just as the conflict in Darfur cannot bedivorced from its domestic and regional contexts,neither should international involvement be pursuedwithout consideration of its domestic and regionalconsequences. So far the only hope of a future peacein Darfur, and indeed of stability in the region, is astrong, developed Southern Sudan, with political tiesto its neighbours and to the international community.This is the only objective that seems achievable. It isreckless to jeopardise this possibility in an effort tosecure justice in Darfur.Naseem Badiey is a doctoral researcher in politics atthe University of Oxford and currently based in Juba,southern Sudan: naseem.badiey@pmb.ox.ac.uk.Here abstract ideals of international constitutionalismare far from most people’s minds. Having experiencedthe cynical realities of post-independence politics andtoo familiar with the harsh realities of war, manypeople do not want their lives to become test casesfor theoretical debates on the future of internationallaw. Jubans recount tales of the war, meanwhilehoping the judges of the ICC will exercise restraint.The ICC will not necessarily bring Bashir to justice, butit will certainly have an immense impact on hopes fordemocracy here, and may in the end destroy whatSouthern Sudan has only just started to build.


DARFUR, BASHIR AND THE INTERNATIONAL CRIMINAL COURT . 55What Does it Mean for theProsecutor to be a Political Actor?Teddy Harrison21 July 2008In the wake of Luis Moreno Ocampo’s application foran arrest warrant for Sudanese President Omar alBashir, a number of commentators have been keen topoint out that the prosecution of a state’s leadershipis always an inherently political act. While thisobservation has the potential to be an illuminatingstarting-point for analysis, it is instead frequentlypresented as an unexamined basis for entirelyseparate arguments. Too often it is presented as ifboth the meaning and consequences of such astatement were self-evident; they are not. We shouldbe asking, in what ways is such prosecution political?Crucially, what follows from the realisation that therole of the ICC prosecutor is, in at least some ways, apolitical one?That ICC prosecution of a head of state has politicalconsequences is undeniable, but this alone does notqualify such prosecution as a political act. Politicalconsequences can exist in the total absence ofagency, as with natural disasters that alter thepolitical landscape (take, for instance, the 2005Indian Ocean tsunami). Action in various fields, takenfor apolitical reasons, can also have politicalramifications. This is frequently the case with newscientific discoveries or technical innovations.Likewise, this could be the case with prosecutionspursued entirely according to norms of justice. Theimpartial prosecution of domestic politicians fordomestic abuse, for instance, could change theoutcome of an election but will often not be apolitical act.When consideration of political consequences plays arole in prosecutorial decisionmaking, a line is crossedinto political action. The thrust of much criticism isthat it would be irresponsible for the prosecutor tofail to do so. Thus, many critics would see theprosecutor play a role as a fully-fledged politicalactor. This brings us to a series of importantquestions: Should the prosecutor play such a role as apolitical actor, or attempt to leave politicalconsiderations to others (such as the UN securitycouncil)? If the prosecutor is to be a political actor,which considerations are relevant?There are certainly political considerations that wewould not want to enter into prosecutorial decisionmaking.Great care has been taken to ensure theindependence of the office of the prosecutor fromundue political influence. If the prosecutor is to bemaking political decisions, some way must be foundof ensuring that such decisions are not taken tofurther the interests of powerful actors or to pursueagendas other than those for which the court wasestablished.There is also a political role for the prosecutor that ismore ambiguous. When the prosecutor acts to bolstersupport for his fledgling institution, he acts politically.This can be helpful; when the prosecutor engageswith the media to act as an ambassador for thecourt, he may be acting entirely within his mandate.However, if decisions on whom and how to prosecuteare made in order to secure support from powerfulstates or to ensure new signatories, it is likelier thatthe integrity of the prosecutor’s office is undermined.Nevertheless, the prosecutor may have an importantrole to play in ensuring the survival and success ofthe court. Once again, serious discussion is necessaryabout how to ensure that the prosecutor exercisesappropriate political agency.The prosecutor of the ICC is not unique in having apolitical role that includes substantial discretion.However, he differs from prosecutors in domesticcourts in some important ways. First, because the ICCcan initially take on so few cases and there are,regrettably, so many crimes being committed,prosecution is much more selective than is usually thecase. This greatly increases the scope of discretion; ifpolitical factors are allowed to influence decisions,they could be making the difference betweenprosecution and no action. Second, the prosecutioninvolves an international actor (the prosecutor andICC) affecting domestic and international politics. Indomestic prosecutions, political consequences flow


56 . DEBATING INTERNATIONAL JUSTICE IN AFRICAdirectly from the structure they affect, greatlyreducing the resultant controversy; exogenous actionis much more likely to be seen as disruptive andpolitical in a negative sense. Third, the ICC remains arelatively new entity in which, in the absence ofregularised institutional patterns and standards ofbehaviour, there is great scope for individual action.On the other hand, new institutions are much lessresilient – and therefore cannot as easily affordindividual error.I suggest, then, that it is appropriate to focus moreon the (political) conduct of the prosecutor as anindividual – and as more than just a metonym for theICC. Simply stating that his action is political does notget us very far. If he is to be a political actor, what isthe appropriate form of agency? How can we ensurethat such agency is exercised appropriately? Theseare difficult questions to which we do not, as yet,have ready answers. Yet the controversy over thelatest indictment shows that it is important that wefind them.Teddy Harrison is a masters student in politicaltheory at the University of Oxford:teddy.harrison@keble.ox.ac.uk.Understanding Darfur’s Saviours andSurvivors 1Harry Verhoeven, Lydiah Kemunto Bosire andSharath Srinivasan3 August 2009Crises in African countries are too often given a mediaattention-span of a couple of days. Millions of deathsin the Democratic Republic of Congo, Somalia’s twodecades of disorder, and the famines in Ethiopia onlycapture the imagination when related to gorillas,pirates and rock stars, respectively, before they returnto their footnote status. Darfur, however, is different.A resource-poor region of Africa is at the centre ofthe most vibrant student activist campaign in ageneration. In a unanimous vote in mid-2004, boththe US House of Representatives and the Senatelabelled it “genocide” (before sending out a missionto inquire into whether it really was, but no matter).For five years since and counting, Darfur has topbilledthe agenda for human rights activists, mediaoutletsand the Western-led international community:aid organisations have set up the world’s largesthumanitarian operation and more than 15,000 UNand AU peacekeepers now operate in Western Sudan.To cap it all, the International Criminal Court hasissued an arrest warrant for Sudanese president Omaral-Bashir and is appealing to add a charge ofgenocide. What is going on?“Saviours and Survivors” is Prof. Mahmood Mamdani’sanswer to this question. This is a book about thenaming and framing of violence, and itsconsequences: it explains why this war in particularhas received such unusual publicity and become theobject of international political and judicial activism.Through an investigation into the roots of theviolence, Prof. Mamdani challenges the moral,apolitical rendering of the conflict in the activist –consequently global – consciousness. Combininganalytical strength and historical knowledge with aprovocative tone, this book has unleashed, since itspreview essay in the Nation and the LRB a year ago,one of the most heated discussions of an Africanconflict in recent time.


DARFUR, BASHIR AND THE INTERNATIONAL CRIMINAL COURT . 57According to Mamdani, the ICC’s arrest warrants, thecampaign of the Save Darfur Coalition (SDC), and theprinciple of the ‘Responsibility to Protect’ should beunderstood in the context of a wider emergingWestern thinking and discourse epitomized by theGlobal War on Terror (GWOT).“Saviours and Survivors” does not try to tie aconspiratorial thread between the GWOT, the ICC andthe SDC as some of its critics allege. Rather, itexplicitly aims to highlight the problematic nature ofthe increasing tendency of the Western-ledinternational community to remove the ‘political’ – theadversarial, the contestable – from key areas of publiclife and public decision-making. The SDC, just likeGWOT-theorists, depoliticises conflicts, preferring tocast them in intellectually easy, intuitively appealingand politically convenient terms of ‘good’ and ‘evil’.What is effectively a technocratic banner of ‘globaljustice’ and ‘universal values’ obscures quintessentiallypolitical questions about the who, what and why of‘global’ interventionism and thereby also veilspowerful interests and highly partisan decisions. In theGWOT-Zeitgeist, complex violent processes areradically simplified and packaged in catchy soundbitesand emotionally charged messages. The contradictionsand particular stakes of politics are removed from thewar setting and replaced by absolutist norms thatleave us with only one ‘a-political’ (and hence morallyobvious) choice: military action. And just like theGWOT, the supporters of military intervention in Darfurcannot be bothered with local nuances, sociohistoricalprocesses and the messy nature of on theground conflict realities that do not fit nice legal orethical categories. There can be no discussion of howcertain ‘perpetrators’ were once ‘victims’ and how the‘victims’ are at risk of becoming ‘perpetrators’ due tooutside intervention; or of how the ‘saviours’ of somecontinue to be the oppressors of others.The reason for action is moral. Politics is to be kept atbay; it is too messy, analysing and understanding ittakes too long; look where politics got us in Rwanda.And Rwanda is particularly emotive for the Darfuractivists. As Mamdani notes, “The lesson is to rescuebefore it is too late, to act before seeking tounderstand. Though it is never explicitly stated,Rwanda is recalled as a time when we thought weneeded to know more; we waited to find out, to learnthe difference between Tutsi and Hutu, and why onewas killing the other...What is new about Darfur,human rights interventionists will tell you, is therealisation that sometimes we must respond ethicallyand not wait. That time is when genocide isoccurring.” In other words, prescribe the solutionwithout understanding the problem. What “Savioursand Survivors” suggests is that an understanding ofthe problem would lead to a vastly differentunderstanding of what solutions are necessary.Mamdani perceptively contrasts the current wave ofDarfur activism with the anti-war campaign regardingVietnam, or the struggle against apartheid – SDC’sbottom-line is about military intervention: it mobilisesfor war, not for peace. The tactics used to influencepublic opinion too are very different – a particularlystriking paragraph is Mamdani’s description of how theSDC, in its early days, distributed ‘action packets’according to faith with a specific message tailored toreligious stereotypes: if Christians were asked to lead(cf. the burden to save) and Jews were uniquely placedto bear witness (cf. the Holocaust), then Muslims, castin the GWOT-framework, were asked to fightoppressors in their midst and identify perpetrators.SDC’s mischaracterisation of the Darfur conflict asbeing about ‘Arabs’ committing genocide againstDarfur’s ‘African’ population was meant to appeal to avery broad albeit only American audience, unitingEast Coast liberals, African-American churches andDeep South nativists behind Congress resolutions.Lead by movie stars and campus activists who decriedDarfur as an ‘African Auschwitz’, Mamdani rightlycriticises this ad hoc coalition of right-wingconservatives and youthful Western progressives forturning Darfur into a place and an issue ‘to feel goodabout yourself because we’re doing the “right” thingand not engaging in politics’. Put differently,intervention in this brave new post-9/11 world claimsto destroy evil, not to tackle a political problem. Quodnon, of course.


58 . DEBATING INTERNATIONAL JUSTICE IN AFRICAThe outcome? Humanitarian impunity. Here, Mamdanipoints out that Africa is the site of experimentation:the logic of societal experimentation in the form ofStructural Adjustment Programmes that led to collapsein the public sector continues in the work of thehumanitarians. Today, in the messy situations ofongoing conflict, a new idea is being advocated, thatof prosecutions at all cost, even when increasedviolence – as seen with the murderous rebels of theLord’s Resistance Army now engaged in violence inthe Congo – becomes a real outcome. What are theimplications for the institution of accountability itselfand our hierarchies of principles when we embracethe dogma of unconditional, immediate justice –justice by force or through the suspension of peacefulnegotiation if necessary? Who gets to decide whichright trumps others? And before we say ‘theinternational community’, what legitimacy andaccountability have those who constitute this group,assuming we can agree to the analytical content ofthis ‘international community’? In theory, prosecutionand military intervention are elegant interventions.However, if they go wrong – and humanitarianism islittered with interventions gone wrong – architects donot have to live with the consequences of their action.Whereas “Saviours and Survivors” offers someexcellent reflections on the ideological background ofthe international community’s role in the Darfurconflict, it is less good at analysing what has actually(not) happened. For all Mamdani’s claims about theextraordinary efficiency of the SDC and its Congressresolutions, the policy of Washington (and byextension, other Western countries) towards Sudanover the past years has been incoherent and deeplyineffective. Nor has the principle of the‘Responsibility to Protect’ (R2P) and its definition ofsovereignty transformed the will of interveners. Inmaking a case for the concept, one of R2P’sphilosophical fathers, Gareth Evans said, “While theprimary responsibility to protect its own peopleproperly lies with the sovereign state, if thatresponsibility is abdicated, through ill-will orincapacity, then it shifts to the internationalcommunity collectively – who should respond withforce if large scale killing or ethnic cleansing isinvolved, and that is the only way to halt or avert thetragedy.” While Mamdani sees this discourse asthrusting open doors for the violation of Africansovereignty, this outcome has not been forthcoming.Instead, America has swung back and forth betweenlong periods of silence, outright confrontation withal-Bashir, support for the former rebels of the SudanPeople’s Liberation Army, and attempts at normalisingdiplomatic relations with Khartoum. It initiallysupported African Union troops, then consideredthem to be inadequate, subsequently lobbied for aUN peacekeeping force only to fail to seriouslysupport it when it finally took over in January 2008;simultaneously the Bush administration invitedSudan’s intelligence chief to Langley, Virginia forcollaboration in the context of the GWOT. Overallthen, Washington and other stakeholders who haveembraced the genocide-label have struggled tomanage competing interests – the Khartoum-SPLApeace agreement, terrorism, regional stability, Darfur– and have failed to develop a coherent long-termpolicy that really improves the human security ofSudanese civilians. It has been exactly this problem ofinconsistency, confusion and the exigencies ofRealpolitik, rather than bellicose confrontationalisminspired by militant activism, that has dominated realworld Western actions.This brings us to the second of three majorshortcomings of the book: its own portrayal of theviolence in Darfur. While “Saviours and Survivors”does a masterful job of exposing the flaws in theorthodox ‘genocide’-narrative of the Darfur conflict,demanding that history and politics are injected intoour understanding, it offers an account of its ownthat lacks engagement with critical parts of thehistorical context of violence in Sudan. In effect,Mamdani diminishes the importance of contemporarySudanese politics that do matter to theunderstanding of Darfur.For Mamdani, Darfur is, essentially, a two decades oldwar over land, caused by the nefarious interplay ofprolonged drought, the colonial legacy of retribalisationand the Cold War’s negative impact.


DARFUR, BASHIR AND THE INTERNATIONAL CRIMINAL COURT . 59Building on earlier scholarship, he argues thatDarfur’s history cannot be constructed as a simplesettler (Arab) vs native (African) narrative, as the SDCdoes, with a bad ‘Arab’ government as spoiler-inchief;we need a far more sophisticated analysis inboth space and time to understand the contemporaryviolence. While Darfur served as a launching pad forproxy warfare in neighbouring Chad between France,America and Libya, displacement throughdesertification in the 1980s unleashed a struggleover ever shrinking quantities of land: as Darfuriansresponded by resorting to increasingly narrow racialethnicconstructs, the Malthusian trap became evermore violent. For Mamdani then, the nationalgovernment’s role in all of this has largely been oneof misreading local dynamics and failed attempts tobroker negotiated settlements. By 2003, the violencehad spiralled out of control and acquired broadernational implications; the rise of two potent rebelmovements lead to a brutal counter-insurgencymarked by gross human rights violations.The problem is not so much that these claims arewrong (though some scholars have taken issue withits reconstruction of the history of land and identity inDarfur), but that through their selectiveness, theycould be seen as absolving the current regime inKhartoum from its devastating political, moral andlegal responsibility for the atrocities and displacementin the region. Mamdani effectively diminishes theimportance of recent deliberate political actionsthrough an under-analysis of why Darfur is notexceptional and of why Sudan has been torn apartsince independence by countless macro and microconflict:war in Sudan – whether in the East, in theSouth or in the West – is fundamentally not a “clashof (Islamic and Christian) civilisations”, nor a questionof irreconcilable ‘Arab’ and ‘African’ cultures, but aresult of the brutal exclusionary rule of a faction ofSudanese elite who control the country. “Saviours andSurvivors” overlooks how since coming to power in1989, the ruling National Congress Party (NCP) hasradicalised these core-periphery tendencies under thebanner of militant Islam, rhetorically welcoming asequals all those from the peripheries who wanted tojoin its cause, but in reality deepening the political-economic realities of exclusion and wealthaccumulation in Sudan. During the last decades,Darfur, like other ‘backward’ parts of Sudan, has beentotally deprived of public goods like security provision,decent health care and roads, while its people havebeen excluded from government jobs at the centre.Historically, Darfurians had a wide range ofmechanisms to deal with both climatic changes andtribal-political upheaval and did so without falling intoethno-ecological conflicts; the intensification ofviolence from the mid-80s onwards has thus less todo with creeping desertification and ‘unfortunate’governmental misunderstanding, then with a contextof structural exclusion that makes, and keeps, peoplevulnerable to disasters, whether natural or political.The ruling NCP did not merely fail to ‘think through’the colonially crafted divide, as Mamdani sees it, but itreinforced and exploited divisive ideas of race, identityand citizenship in order to manage patronage politics,as it has done elsewhere in Sudan.The similarities between the tragedy in Darfur andwars elsewhere in the country go beyond theirposition in the Sudanese state and relate to thedynamics of the conflict itself: there is a vicious anddeliberate interlocking of decentralised violence,forced migration, racialised language and ethnicdivide and rule. The scorched earth tactics in whichdisplacement and terror are often more importantthan actual killing; the dehumanising discourse thatstirs up hate and antagonises communities; the useof proxy militias, composed of marginalised groups intheir own right, who are given total impunity tocombat the enemy; the systematic transfer of assets(cattle, land, water holes...) from those targeted bythe government to those fighting for Khartoum; theaerial bombardment of civilians and the use of aid asa weapon against people; the false cease-fires andthe relentless obstruction of humanitarian operationsto wear down the international community and rebelopposition: the pattern of violence in Darfur eerilymimics that of war in the 80s and 90s in SouthernKordofan, Equatoria and Bahr al-Ghazal. AhmedHaroun (who has been indicted by the ICC on chargesof crimes against humanity), exemplifies how thehorrors of Darfur are connected to massacres in other


60 . DEBATING INTERNATIONAL JUSTICE IN AFRICAparts of Sudan. Haroun was not only one of the chieforganisers of the Janjaweed in 2003-2004, he alsoled the government militias in their 1990s jihad in theNuba Mountains, raping, pillaging and killing to breakthe soul of the local communities.None of this is to be found in “Savours and Survivors.”While Mahmood Mamdani rightfully criticises theinternational community’s simplistic account of‘genocide’ in Darfur, he engages in his own distortionthrough his downplay of the agency of those factionsof the Sudanese elites in control of the state. War,exclusion and underdevelopment in Sudan have ahistory that needs to be told. And Darfur is now morethan ever before an integral part of that history.The third problem with the book is in its vision of thecontents of accountable politics. For Mamdani, thereare three kind of justice possible – political, criminaland social. Quite apart from the problem of the Courtbeing an extension of the antipolitical humanitarianfundamentalist Zeitgeist – after all, the ICC considerscases according to technical specifications of gravityand applies the appropriate procedures,unencumbered by the politics that produced theviolence – the ICC’s focus on criminal justice isinadequate. Seeking to deliver justice in accordanceto the ‘Nuremberg Model’, the court assumes it ispossible to tell apart good and evil, perpetrators andvictims. It also assumes that the survivors do nothave to live together, that the violence has endedand that there is a winner. In Darfur, as South Africa,Mamdani offers, the situation is different. Right andwrong, perpetrator and victim, are far more fluid.People have to live together, there are no winnersand losers. Everyone is a survivor. The solution lies inthe establishment of political change and inclusiveinstitutions, with an acknowledgement that amnestymay be a price to be paid. Instead of criminal justice,the focus should be political justice based on whatMamdani calls the Kempton Park model that broughtan end to Apartheid in South Africa. There, the focuswas on political justice, not criminal justice. Theprocess focused on the political needs of the nation,privileging the sovereignty of the country over theprinciples of the amorphous international community.What Mamdani does not address is that the ‘KemptonPark’-choices of apartheid South Africa, Mozambiqueand Southern Sudan were easier to make because theoutside world was not all mobilized behind oneprinciple, right or wrong. Is Kempton Park still on thetable now that the rules of peace negotiations – andof who should end up in parliament and who shouldbe in jail – have been transformed? Might theactivists be satisfied with delayed justice, whereamnesty and political transformation are privileged,with the knowledge that later, whenever domesticpolitics allows it, prosecutions can take place? Afterall, many countries are recently revisiting their oldamnesty provisions. Mamdani does not make thisproposal but it might be one worth considering,including its moral hazard. Further, South Africa hasdemonstrated that the Kempton Park model does notautomatically address social justice, the other pillar ofjustice that is often part of the root causes of violence.Where does this leave us? This is not addressed.In conclusion, “Saviours and Survivors” demonstrateshow the humanitarian project – with SDC and ICCbeing just two examples thereof – has shifted andcontinues to shift the vocabulary through which alllocal claims are made, how people understand theirproblems, and what solutions are availed to them andwhich ones are excluded. This thought-provokingbook leaves us with an existential question: what arewe to do with a humanitarianism which, instead ofincreasing the agency of those it hopes to support,removes from them the possibilities of acting out oftheir predicament, turning them into wards, passivesubjects in need of saving?1. This essay appeared originally in Sudan Tribune, 3 August 2009:http://www.sudantribune.com/spip.php?article32018.Harry Verhoeven, PhD student, Dept of Politics & IR,St Cross College, Oxford University; Lydiah KemuntoBosire, PhD-student, Dept of Politics & IR, St CrossCollege, Oxford University and Sharath Srinivasan,PhD, Department of International Development, StAntony’s College, Oxford University. The authors ofthis article can be reached atHarry.Verhoeven@politics.ox.ac.uk.


DARFUR, BASHIR AND THE INTERNATIONAL CRIMINAL COURT . 61The Force of Law and Problem ofImpunityYvonne Malan25 July 2008‘But this is a new world – we are trying toestablish a global community based in law.’ LuisMoreno Ocampo (interview with CNN)The storm that has broken out over ICC ProsecutorLuis Moreno Ocampo’s decision to file genocidecharges against Sudanese president Omar al-Bashir isintriguing for a number of reasons, not least becauseof what it says about the role of criminal trials intransitional justice.This essay focuses on why non-judicial approaches totransitional justice are less effective than is oftenclaimed and why prosecutions are an important way ofdealing with past injustice. It is often overlooked thatarguments in favour of reconciliation have become auseful way to defend amnesty and impunity. Part ofthe uproar over Ocampo’s decision is based on aschool of thought that has demonised criminal trialsas a way of dealing with the past. There are of courseother arguments against the ICC’s decision, but what Iwant to focus on is the prejudice against criminal trialsand the dangers of non-judicial approaches.Non-judicial ways of facilitating political transitionshave predominated in recent decades, truthcommissions being the most prominent transitionalmechanism. More than thirty such commissions havebeen established since 1990. They are largely nonconfrontationaland follow in the wake of amnesty forperpetrators. Their main purpose is usually to uncoverthe ‘truth’ about the past in a context where criminaltrials will not be held. 1Of these commissions the South African Truth andReconciliation Commission (TRC), established nearly ayear after the country’s transition to democracy, hasbecome the dominant global model. 2 This modelmanifested two primary features: the enormousemphasis on reconciliation; and the TRC’s particularbrand of restorative justice. Both of these werestrategies to defend the TRC process against claimsthat, because of the amnesty provisions, it hadcompletely abandoned the notion of justice. Amnestyfor perpetrators who had committed acts of grosshuman rights violations (for example, torture, murder,kidnapping) was the founding reason for the TRC. Theamnesty deal was not struck at the multi-partynegotiations that decided on other aspects of thetransition but instead behind closed doors betweenthe major political parties, the African NationalCongress and National Party, that stood to gain themost from an amnesty. Initially the amnesty deal wasdefended on pragmatic grounds (even by thecountry’s Constitutional Court): it was necessary toensure a peaceful transition to democracy, lest theapartheid security establishment revolt and it was thebest mechanism to uncover the truth about the past.Yet, what was initially a political compromise becamegradually portrayed as a form of forgiveness, typicalof the reconciliatory nature of the ‘Rainbow Nation’.Perpetrators had to apply for amnesty individually(which would give them immunity against criminalprosecutions and civil suits) and they had to meetcertain requirements. This included making a fulldisclosure about the acts they had committed. Onpaper this seemed to add some balance toproceedings and would give victims the opportunityto learn the truth about the past. In reality,perpetrators disclosed the bare minimum in order togain amnesty. A member of the TRC stated that 99%of victims gained no new information about theircases. The TRC – whose Investigation Unit was quicklyoverwhelmed – did not, in most cases, have thecapacity to challenge perpetrators’ version of eventsand determine whether a full disclosure was made. 3Still, by far the majority of applicants receivedamnesty and, regardless of the atrocities they hadcommitted, were allowed to slip away into obscurity.Accused of abandoning justice, the TRC concocted aparticular brand of restorative justice. Some of thekey assumptions of this approach included thatvictims valued truth over justice; the choice foramnesty and forgiveness was not a politicalcompromise, but a moral triumph; and virtues such as


62 . DEBATING INTERNATIONAL JUSTICE IN AFRICAreconciliation and forgiveness trumped human rightsand the rule of law. It demonised criminal trials as alust for revenge.The emphasis on reconciliation and disdain forcriminal trials marginalised debates about humanrights and responsibility. This failure defines thelegacy of this allegedly successful truth commission.Nearly a decade after the commission’s final reportwas released, victims are still angry about the lack ofjustice (as seen after the farcical trial of apartheidminister Adriaan Vlok 4 ). As Dorota Gierycz, who wasinvolved with the Liberian truth commission, noted ina recent interview: ‘I have doubts as to whether it isreally the people on the ground that wantperpetrators of atrocities to be forgiven. Who isspeaking on behalf of these people? Did anybodyreally talk to them?’ 5Amnesty and attempts to redefine justice as a form ofrestorative justice provide shaky ground on which tobuild a new society. Richard Wilson, in his book onthe South African TRC, makes a crucial point that isoften overlooked:The appropriation of human rights by nationbuildingdiscourse and their identification withforgiveness, reconciliation and restorative justicedeems social stability to be a higher social goodthan the individual right to retributive justice andto pursue perpetrators through courts. Thisimage of human rights underminesaccountability and the rule of law and with it thebreadth and depth of the democratizationprocess. 6that following orders is not an excuse, those whocommit genocide will be held accountable, andinjustice will not be ignored. However, with theprominence of truth commissions and an emphasis onamnesty-for-reconciliation the world has becomecomfortable with the notion of impunity. If nothingelse, Ocampo’s bold decision is a serious and timelychallenge to this.1. For an extensive background on truth commissions, see PriscillaHayner, Unspeakable Truths: Confronting State Terror andAtrocity – How Truth Commissions Around the World areChallenging the Past and Shaping the Future (New York:Routledge, 2001)2. It should be noted that, according to Alex Boraine, who served asdeputy chairperson of the TRC, the South Africa Commission wasgreatly influenced by those of Chile and Argentina.3. See for example, Zenzile Khoisan Jakaranda Time: AnInvestigator’s View of South Africa’s Truth and ReconciliationCommission (Cape Town: Garib Communications, 2001)4. Vlok is a former apartheid era police general and cabinet ministerwho, among other things, authorised bombing campaigns andassassinations. He was tried in 2007 for his role in the attempt toassassinate Frank Chikane (a former activist, now director generalin the Office of the President). He was given a suspendedsentence. He made no disclosures. In the plea agreement a greatdeal of emphasis was once again placed on the importance ofreconciliation.5. Gierycz is the former representative of the UN high commissionerfor human rights in Liberia.6. Richard Wilson, The Politics of Truth and Reconciliation in SouthAfrica (Cambridge: Cambridge University Press, 2001), p. 26.Yvonne Malan is a DPhil student in Politics at theUniversity of Oxford: yvonne.malan@politics.ox.ac.uk.Furthermore, attempts at redefining justice cannotsimply exclude the notion of the law as easily as theproponents of ‘reconciliation’ assume. As Pascalnoted, ‘force without justice is tyrannical…justicewithout force is contradictory, as there are always thewicked’. Justice without the force of law becomestoothless.For all of their failings and political complexities, theNuremburg trials at least established the principle


DARFUR, BASHIR AND THE INTERNATIONAL CRIMINAL COURT . 63Bashir and the ICC: The Aura orAudition of International Justice inAfrica?Stephen Oola15 October 2008The recent move by the prosecutor of theInternational Criminal Court (ICC), Luis MorenoOcampo, seeking the indictment of SudanesePresident Omar al-Bashir on grounds of his aiding andabetting the commission of war crimes, crimesagainst humanity and genocide in Darfur has takenthe world by storm. Ocampo has stated that over35,000 Darfuris have been killed and another 2.5million subjected to a campaign of rape, hunger andfear by Sudanese armed forces and the Janjaweedmilitia in what he calls “genocide by attrition.”This move was not unprecedented since Bashir ispoised to become the third sitting head of state to beindicted by an international court after Yugoslavia’sSlobodan Milosevic and Liberia’s Charles Taylor.Nonetheless, this is a controversial move, as Bashirhas allowed the United Nations to send a joint UN-AUpeacekeeping force to stabilise Darfur amid severalpeace initiatives that some commentators believe theICC charges could jeopardise. This move also followedthe indictment of two Sudanese ministers in Bashir’sgovernment, Ahmed Haroun (Humanitarian Affairsminister) and Ali Kushayb (Janjaweed militia leader)and the secret indictment and surprise arrest inBelgium of former Congolese rebel-leader-turnedopposition-politician,Jean Pierre Bemba. The recentICC charges have fuelled an already heated debate(and growing scepticism among African observers)about the ICC’s involvement in Africa.The ICC’s uncompromising search for justice in Africain places such as northern Uganda, ravaged by theLord’s Resistance Army (LRA), Central African Republic(CAR), the Democratic Republic of Congo (DRC) andSudan’s Darfur region – has startled many observers.Are we witnessing in Africa an end to impunity orsimply a test-run of an international justice system?There is no doubt that, in only six years of operation,the ICC has drawn attention to concerns about justiceand impunity in Africa and beyond. It has highlightedthe malevolence humanity endures every day, andhas awakened the international community to theneed to fight injustice. The ICC has also signalled thatimpunity shall not be tolerated and no individual isabove the law.Nonetheless, the ICC has thus far controversiallyinvolved itself in only a few situations in Africa butleft Iraq, Afghanistan, Burma and other areasuntouched. Of the over 139 complaints made to theICC, it has managed to investigate and find evidencewarranting indictments only in Africa, although warcrimes are being committed all over the world. Thissuggests that the ICC is more concerned withimpunity in Africa than addressing war crimes andcrimes against humanity committed in other parts ofthe world.By disproportionately focusing on Africa, the ICCprosecutor seems to have reduced the problem ofimpunity to an exclusive African phenomenon. EvenAfrican states such as Sudan which did not ratify theRome Statute are being subjected by the UnitedNations Security Council to a system they do notrecognise. However, some permanent members of theSecurity Council do not themselves recognise theRome Statue. And, moreover, in the case of Sudan,not only has the Security Council referred a dissentingsovereign state to the ICC, but it did so against abackdrop of international outrage over itsacquiescence to the international crimes beingcommitted by some of its own permanent members,such as the US, Russia and China (with China evenanswerable for its support of the Sudanesegovernment).Over the last four years, Ocampo’s ICC hasincreasingly resembled a misguided missile. Toadvocate for punitive justice only for Africa is to missthe target of comprehensive justice in the fightagainst impunity. Africa comprises societiesaccustomed to restorative justice approaches. Havingsuffered atrocities and abuses over decades, the


64 . DEBATING INTERNATIONAL JUSTICE IN AFRICAfabric of African societies is torn and demandssomething more than convictions and imprisonment.The restoration of peace might be the first measureof justice in all of the African situations currentlyunder investigation by the ICC.Furthermore, the ICC’s very involvement might be partof the suffering as it often constitutes an obstacle toan immediate cessation of hostilities and long-termend to conflict. The ICC prosecutor might well bear noresponsibility for renewed and heightened violenceand atrocities in conflict situations under hisinvestigation, for example in Darfur and northernUganda, even when his continued involvement mayfrustrate a realistic chance of ending the commissionof international crimes. The fear of ICC prosecutionmight scare indicted parties from engaging in ameaningful peace negotiation. Some people affectedby the LRA insurgency in northern Uganda, forexample, blame the ICC for their continued plight.Many northern Ugandans initially believed that theICC would arrest Kony and bring the war to an end.They now know that there can be no permanentpeace in the region as long as Kony and the LRAremain at large. The recently concluded Juba peaceprocess may have had a different outcome had it notbeen for the ICC’s indictment of Kony and his topcommanders.Norbert Mao, chairman of Gulu district in LRAaffectednorthern Uganda, once wrote that Ocampowould not hesitate to drop or suspend the chargesagainst the LRA commanders for the sake of peace,had Ocampo’s own mother been decaying in a squalidIDP camp. A caller to the “Beyond Juba Project” talkshow on Mega FM, a local radio station in Gulu,complained, “We would not be dying of this HepatitisE disease had the ICC not frustrated the Juba peacetalks. We would all be back in our villages and not inthese congested camps. But how can we go backwhen Kony is not coming back home fearing the ICC?How sure are we that he is not going to decide tofight forever to die rather than be taken to the ICC?”The mechanical pursuit of punitive justice by the ICCin complex situations like northern Uganda andDarfur, where victims want an immediate end to theiranguish, is iniquitous, especially in the presence ofmore pragmatic efforts like peace negotiations.Whereas the ICC’s involvement may have forced theparties to the negotiating table, peace talks havehappened before and succeeded without any threatfrom the ICC, and none has so far succeeded in itspresence.Meanwhile, Ocampo’s move to indict Bashirrepresents an empty threat; simply part of the ICC’sunrealistic desire to pursue punitive justice in allsituations. In light of many African leaders’ sugarcoatedapproach to Robert Mugabe in Zimbabwe, theICC did not expect pressure or cooperation againstBashir from any other African leaders. Most Africanheads of states are (potential) criminals in the eyesof the ICC and the leaders are well aware of this.What happened to Charles Taylor is fresh in everyAfrican leader’s mind, and the irresponsible quest forjustice by the ICC prosecutor reminds them of Taylorbeing whisked off in handcuffs to The Hague aboarda United Nations helicopter. Like Mugabe, Bashir andhis cohorts will stop at nothing to retain power. Theywill stifle opposition groups and rig elections withimpunity, while those engaged in a liberation struggleor military rebellion like that of Kony’s LRA andBemba’s Mouvement de Libération du Congo (MLC)will be labelled terrorists and referred to the ICC. Theregime in power might even create conditionsconducive to the commission of atrocities, whilefeigning some willingness to cooperate with the ICC.For example, Presidents Yoweri Museveni of Ugandaand Joseph Kabila of the DRC – who referred theconflict situations in their countries to the ICC – havethemselves committed international war crimes.Before the recent aggressive pursuit of punitivejustice by Ocampo and the ICC, it was thought thatan effective international justice mechanism wouldhelp maintain global stability, stop impunity andcomplement states’ efforts to administer justice. Forsixty years, since the adoption of the UniversalDeclaration of Human Rights (UDHR), severalinternational and regional instruments foraccountability, including the International Court of


DARFUR, BASHIR AND THE INTERNATIONAL CRIMINAL COURT . 65Justice (ICJ), existed without igniting a globallypolarising debate as the ICC has done. However, thestructure and impact of the ICC on states’ sovereignty,compounded by the uncompromising stance of itsprincipals such as Ocampo, is calamitous given thecurrent global political situation, which includes Chinaand the US squabbling for oil in Sudan.Until the adoption of the Rome Statute, internationallaw and conventions – and the institutions in chargeof their enforcement – recognised the importance ofstate sovereignty, especially where there was agenuine willingness and attempt to redress a wrongand move forward. Many states struggled withinjustices and atrocities meted out in conflictsituations but ultimately made progress becausethere were no threats of international prosecutions.Domestic struggles and peace talks, not internationaljustice, ended a century of apartheid in South Africaand led to an ongoing process of reconciliation. InAngola, Sierra Leone, Liberia and Rwanda, attemptsare now being made to heal divisions and meet theneed for justice without the involvement of the ICC,and only after direct hostilities have ceased.Negotiations halted the 23-year-old violent conflictbetween the northern Khartoum government andsouthern Sudan People’s Liberation Army (SPLA),producing an agreed solution to the oldest Afro-Arabconflict. Protracted talks between the government ofUganda and the LRA ushered in three years ofunprecedented peace and facilitated the cautious butgradual return of IDPs to their villages, leaving behindthe inhumane conditions in the camps. The abovecases emphasise the need for promotion of localsolutions and flexibility on the part of theinternational community in order to nurture localsolutions to the often complex conflicts in Africa.They underscore the need to carefully sequencepeace and justice and pave the way for a situationwhere the search for justice does not perpetuateconflict nor ignore the ongoing suffering of victims.southern Sudan. It also undermines the ICC’s owninterests in arresting the LRA indictees becauserealistically only Sudan could have captured them.The statement by Ocampo that he does not have theluxury to look away since he has evidence of seriouscrimes with which to indict Bashir, highlights hisinsularity. He risks portraying the ICC as detachedfrom present global political and conflict realities.The world now waits to see how the Sudanesegovernment will react. The immediate effect though isthat many aid agencies are frightened andthreatening to withdraw from Darfur, thus affectingthe delivery of much-needed food aid and other reliefservices. The United Nations has raised its securityalert in the region and started evacuating nonessentialstaff. The ruling National Congress Partyremains defiant and has warned of further violence.An impending referendum on independence forSouthern Sudan now appears fraught and may nottake place at all if Bashir feels threatened. The impactof the ICC’s approach is that Darfuri victims may beleft without relief supplies and without hope for apeaceful solution to the conflict.Stephen Oola, Project lawyer – Beyond Juba Project.Research and Advocacy Officer on Transitional Justice,Refugee Law Project, Faculty of Law, MakerereUniversity, Uganda: oolalawyer@yahoo.com.By seeking the arrest and prosecution of Bashir atthis particular time, the ICC now risks thwarting theon-going peace initiatives not only in Darfur but alsothe fragile Comprehensive Peace Agreement in


66 . DEBATING INTERNATIONAL JUSTICE IN AFRICAAnother Piece in the Puzzle:Accountability and Justice forInternational Crimes in SudanLutz Oette29 October 2008An important aspect that has been neglected in thedebate triggered by the recent decision of theProsecutor of the International Criminal Court (ICC) toapply for an arrest warrant against Sudan’s Presidental-Bashir is its impact on the ongoing quest foraccountability for international crimes in Sudan itself.It is true that the referral of the Darfur situation tothe ICC and the bringing of charges against allegedperpetrators may be taken as an indication of theabsence of effective domestic accountabilitymechanisms. However, the latest events also providea timely opportunity to assess how Sudan hasresponded to the broader challenge of holding toaccount those responsible for international crimescommitted anywhere in Sudan.In light of responses to the application by the ICCProsecutor, it is pertinent to ask about the prospectsof accountability and justice for such crimes generallyin Sudan. Seeing such justice done is an essentialprerequisite for a lasting peace, not least becauseimpunity has arguably contributed to theperpetuation of conflicts and violations. Given thecontroversy surrounding the latest charges, it is alsoappropriate to consider how the ICC proceedingsthemselves may contribute to the development of therule of law and accountability in Sudan.Human rights lawyers, NGOs, the United Nations, theAfrican Commission for Human and Peoples’ Rightsand other bodies have documented a range of grossviolations of international human rights and seriousviolations of international humanitarian law in Sudanthat may constitute international crimes. This includesviolations committed in the course of variousconflicts, particularly in the South (1955-1972 and1983-2005), in the Nuba Mountains (1985-2002),and in Darfur (2003-present). Violations havereportedly consisted of, inter alia, indiscriminatekillings of civilians, summary executions, forceddisappearances, torture, systematic rape, arbitraryarrests, destruction of livelihood and forceddisplacement. These crimes have resulted in hundredsof thousands of civilians killed and injured, andmillions of displaced persons. In parallel, a series ofviolations such as arbitrary arrests, torture,extrajudicial killings and lack of fair trials against alarge number of individuals, especially thoseconsidered political opponents, and wholecommunities have been reported over the past twodecades. To date the perpetrators of these crimeshave enjoyed almost complete impunity. There areonly few cases where largely low-ranking officershave been held to account.This impunity can be attributed to a series of factors,namely: deficiencies in the legal framework; the lackof transparency and effective monitoring; theabsence of an independent judiciary; and the failureto establish adequate accountability mechanisms inresponse to violations committed in the course ofconflict. The Comprehensive Peace Agreement (CPA)that ended the North-South conflict in 2005triggered the adoption of the National InterimConstitution (NIC) and envisaged reforms to bring keynational laws in line with human rights standards. TheBill of Rights in the NIC guarantees fundamentalrights, including human rights binding on Sudan as amatter of international treaty law. The NIC alsoprovides for institutional changes to strengthen therule of law, such as the establishment of aConstitutional Court and a National Human RightsCommission.However, three years on, reforms undertaken orunder consideration have failed to address the keylegal obstacles that perpetuate impunity. This is dueto a combination of factors, including a lack of a clearpolitical commitment, a prevailing mindset ofshielding members of law enforcement agencies fromlegal responsibility as well as delays and othershortcomings in the law-making process. The ArmedForces Act enacted in 2007 incorporates internationalcrimes for the first time in Sudanese legislation butits definition of international crimes is not inconformity with international and comparative


DARFUR, BASHIR AND THE INTERNATIONAL CRIMINAL COURT . 67statutes and jurisprudence. The definition andevidentiary requirements of the criminal offences ofrape and torture still contained in the 1991 CriminalCode are such that there have been very fewsuccessful prosecutions. Proposals to reform therelevant provisions, particularly on rape and sexualviolence, have made limited progress to date.The Armed Forces Act and the Police Act of 2008retain immunity provisions, and there are justifiedconcerns that the same will be the case in theNational Security Forces Bill to be considered despiterepeated calls by civil society organisations and UNhuman rights bodies to abolish these immunities. Therule that any official can be prosecuted only with theapproval of his or her superior effectively creates aseparate legal regime that is not subject to judicialreview and has in practice resulted in impunity.Immunities are seen as necessary for lawenforcement agencies to function and are deeplyengrained in Sudanese legal culture. Taken togetherwith the wide-ranging powers enjoyed by the lawenforcement agencies, including in emergencylegislation, immunities are one of the most visiblemanifestations of a system of opaque andunaccountable exceptionalism. This system has beenallowed to operate without any effective restraints todate, as the National Human Rights Commission is yetto be appointed and the Constitutional Court is stillfinding its feet. Suits are pending that challengeimmunity and emergency legislation as well asstatutes of limitations for the crime of torture but itis at present unclear what role the ConstitutionalCourt will play in upholding fundamental rights.The CPA contains a strong commitment to humanrights but is, as other peace agreements in Sudanbefore and after, silent on accountability. This is notleast because omitting any reference to accountabilityfor violations of international humanitarian law andinternational crimes seemingly served the mutualinterest of both parties, i.e. the Government of Sudanand the Sudan People’s Liberation Movement/SudanPeople’s Liberation Army (SPLM/SPLA). As a result,there has been no truth mechanism, investigations,prosecutions or trials of the thousands ofperpetrators responsible for the most seriousviolations committed in one of the longest lastingconflicts in Africa.The Darfur Peace Agreement concluded in 2006between the Government of Sudan and the MinniMinawi faction of the Sudan Liberation Army (SLA) isequally silent on the question of accountability. ASpecial Criminal Court had been set up in June 2005in Darfur following the opening of an investigation bythe ICC prosecutor into international crimes committedduring the conflict. This step was ostensibly designedto show that domestic courts were able and willing totry such crimes, which, if it were the case, wouldhave rendered ICC prosecutions inadmissible by virtueof the principle of complementarity in the RomeStatute. However, the Special Criminal Court has hadthe jurisdiction and capacity to try only a smallnumber of cases, which have mainly concernedcharges for ordinary criminal offences rather thaninternational crimes. To date, these cases have notaddressed the bulk of instances in which internationalcrimes are alleged to have been committed in Darfurand have not dealt with the perpetrators suspectedof bearing the greatest responsibility for such crimes.By all accounts, the Court and other related measureshave failed to constitute a credible accountabilitymechanism.The ICC proceedings on Sudan take place against ahistorical backdrop of a lack of accountability andserious concerns about the rule of law and theprotection of human rights in the criminal justicesystem. Defendants in criminal trials, particularly inconflict-related cases, have been subject to thejurisdiction of special courts and denied their right toa fair trial. Given the adverse publicity that the ICCfaces in Sudan and other countries in the region, it isimperative that all its organs adhere strictly to fairtrial standards and clearly explain the rationale forany measures taken. By so doing, it can set anexample of taking a rule of law approach to justicethat seeks to investigate and, where sufficientevidence is available, prosecute even-handedly thoseresponsible for having committed international crimesin Darfur. Such an approach will assist, or at least not


68 . DEBATING INTERNATIONAL JUSTICE IN AFRICAhinder, domestic civil society efforts aimed atfostering a culture of accountability that signifiesrespect for the rule of law and human rights inSudan.Implications of the Absence ofGenocide Charges for Bashir 1Zachary Manfredi20 March 2009Dr. Lutz Oette is Programme Advisor (NationalImplementation and Capacity Building) at REDRESSand Lecturer in Law (part-time), School of Law,School of Oriental and African Studies (SOAS),University of London: lutz@redress.org.The ICC prosecutor’s request for an indictment ofOmar al-Bashir charged the Sudanese president withthree distinct categories of crimes: war crimes, crimesagainst humanity, and genocide. The Pre-TrialChamber of the Court, however, granted an indictmentonly on the grounds of crimes against humanity andwar crimes, stating that “the material provided by theProsecution in support of its application for a warrantof arrest failed to provide reasonable grounds tobelieve that the Government of Sudan acted withspecific intent to destroy, in whole or in part, the Fur,Masalit and Zaghawa groups.” 2The allegation of genocide has prompted greatcontroversy in the Darfur case, and the Pre-TrialChamber’s ruling will undoubtedly contribute furtherto this. While an international legal consensusappears to be emerging that the violence in Darfurdoes not constitute genocide, the political use of theterm by certain advocacy groups is unlikely todiminish as a result of the Pre-Trial Chamber’s ruling.The schism between legal and popular use of“genocide” may ultimately pose a serious problem forthe advocacy movement and lead to tensionsbetween international jurists committed to upholdingstrict standards of law and human rights activistsdemanding accountability for mass atrocities.While activist groups and government officials in theUS have labelled the Darfur conflict “genocide” foryears, the 2005 UN investigation into the conflict,while confirming possible war crimes and crimesagainst humanity, found that “the Government ofSudan has not pursued a policy of Genocide [inDarfur].” 3 Prominent critics of international interventionin Darfur such as Mahmood Mamdani have alsodecried the use of the term in describing the conflict. 4The crime of genocide, as defined in international lawby the 1948 Genocide Convention, requires a standardof specific intent (dolus specialis): the perpetrators of


DARFUR, BASHIR AND THE INTERNATIONAL CRIMINAL COURT . 69the genocide must act with “intent to destroy, inwhole or in part, a national, ethnical, racial orreligious group, as such.” Despite its restricteddefinition in international law, in political discourse thegenocide label is applied more liberally to a vast arrayof conflicts. For example, activist groups once labelledboth the Australian government’s policy towardsaboriginal peoples and the 1990s internationaleconomic sanctions regime against Iraq as genocides. 5Political mobilisation around the Darfur conflict inparticular has relied heavily on the fact that genocidegenerates near unparalleled moral outrage andconcern. In the US, the Genocide-InterventionNetwork (GI-Net) and STAND (GI-Net’s studentdivision) both describe their organisations as “antigenocidecoalitions”. While some major internationalNGOs like Human Rights Watch and AmnestyInternational have not described the violence inDarfur as genocide, an entire community of nichegroups specifically devoted to Darfur advocacy makesubiquitous use of the word “genocide” in discussingthe conflict. Even the Enough Project, whichdescribes itself as “a project to end genocide,” hastaken to characterising the violence in Darfur as agenocidal campaign. The popular “never again”slogan of activist groups also seeks to link Darfur tohistorical cases of genocide in Rwanda and NaziGermany. In political discussion about Darfur, theword “genocide” is ever-present, appearing in mostof the literature of activist organisations and in manyspeeches by Western political leaders.Increasingly, however, it appears that the politicalperspective of groups seeking international actionconcerning mass atrocities diverges from the legalperspective of international jurists about thespecificity of the crime of genocide. While the Pre-Trial Chamber did note that future evidence could beintroduced to charge Bashir with genocide, therefusal to grant Ocampo’s initial request willcomplicate the agenda of activist organisations. Whilehuman rights groups appear to have universallytrumpeted the ICC announcement as a success for therule of law, the absence of the genocide charge maycast a spectre over their celebration.It may become more difficult for activist groups tocontinue to rely on support from international legalinstitution in their campaigns if there is increasingdissent about whether the conflict can be accuratelyviewed as genocide. Activist groups appear to haveinitially viewed the ICC’s warrant as a victory, but overtime international legal precedent may impair theability of these groups to continue to describe theviolence in Darfur as a genocide. Political leaders andeven constituent groups could make use of the Pre-Trial Chamber’s ruling as a way to downplay thegravity of the violence in Darfur and dispute activistgroups’ claims for the necessity of immediateintervention.There is little dispute that serious crimes have beencommitted in Darfur, but crimes against humanity andwar crimes do not posses the same power asgenocide in terms of political mobilisation. Otherinstances of mass atrocities in the DemocraticRepublic of Congo (DRC), Sierra Leone, Colombia,Uganda and Afghanistan have not garnered anythingclose to the attention political activists and popularmedia, especially in the United States, have devotedto Darfur, despite the fact that in the case of theDRC, civil war death tolls from direct violence farexceed those in Sudan. While it is not immediatelyclear that the label of genocide alone constitutes thereason for the greater attention paid to Darfur vis-àvisother serious international conflicts, the findingsof the Pre-Trial Chamber might potentially decreasethe potency and momentum of some campaigns forhumanitarian intervention in Darfur. Should theDarfur conflict, as a result of international legalconsensus, begin to lose its popularly perceived preeminentstatus as the world’s only ongoing genocide,activists may be forced to develop new tools andstrategies to encourage political and humanitarianaction in Darfur.1. A shorter version of this essay appeared on the OxfordTransitional Justice Research “ICC Observers” website:http://iccobservers.wordpress.com.2. ICC-02/05-01/09 Case The Prosecutor v. Omar Hassan Ahmad AlBashir Situation in Darfur, Sudan. Public Court Records – Pre-TrialChamber I. 04 March 2009. At http://www.icccpi.int/iccdocs/doc/doc639078.pdf


70 . DEBATING INTERNATIONAL JUSTICE IN AFRICA3. ‘Report of the International Commission of Inquiry on violations ofinternational law and human rights law in Darfur,” UN Doc.S/2005/60. http://www.un.org/News/dh/sudan/com_inq_darfur.pdf4. Mamdani, Mahmood. “The Politics of Naming: Genocide, Civil War,Insurgency.” The London Review of Books, March 2007.5. See Hirsh, David. Law Against Genocide. Glasshouse Press:London, 2003. pp 51 for these and other examples.Zachary Manfredi is an MPhil candidate in PoliticalTheory at the University of Oxford:zak.manfredi@politics.ox.ac.uk.The Perils of an Article 16 Deferralfor Bashir 1Zachary Manfredi20 March 2009Leaders from the African Union (AU) have assembleda delegation to argue for a deferral of the ICC arrestwarrant for Sudanese president Omar al-Bashir on thebasis of Article 16 of the Rome Statute. Previously,China, Egypt and other members of the Arab Leaguehad failed to successfully delay the investigation ofcrimes in Sudan. While Article 16 does allow the UNSecurity Council (UNSC) the option of delaying an ICCinvestigation for twelve months, the issue of deferralis both unprecedented and highly contentious.Article 16 states, “No investigation or prosecutionmay be commenced or proceeded with under thisStatute for a period of 12 months after the SecurityCouncil, in a resolution adopted under Chapter VII ofthe Charter of the United Nations, has requested theCourt to that effect; that request may be renewed bythe Council under the same conditions.”To invoke Article 16, nine members of the fifteenmemberUNSC must vote for the delay. Furthermore,the five permanent members of the UNSC must alleither assent to the resolution or abstain from thevote. In addition to the five permanent members ofthe UNSC, Austria, Burkina Faso, Costa Rica, Croatia,Japan, Libya, Mexico, Turkey, Uganda and Vietnamcurrently serve as non-permanent members. Thecurrent makeup of the UNSC raises doubts overwhether Sudan could garner the necessary nineaffirmative votes for a deferral; earlier attempts byChina and Egypt to invoke Article 16 in the Bashircase have thus far all failed. Austria, Burkina Faso,Costa Rica, Croatia, Japan, Mexico, Uganda, the UKand France have all ratified the Rome Statute.Assuming that ratification implies a serious politicalcommitment to ending international impunity, thesestates are less likely to vote for delaying itsinvestigations except in the most extremecircumstances covered under Chapter VII of the UNCharter. A successful Article 16 deferral is even lesslikely given that political pressure from domestic


DARFUR, BASHIR AND THE INTERNATIONAL CRIMINAL COURT . 71constituencies in the US, UK, and France will make itexceedingly difficult for those three permanentmembers of the Council to either abstain or vote infavour of a deferral. The Obama administration willfind it particularly difficult to support a deferral giventhe public statements by high-ranking officials,especially UN Ambassador Susan Rice and VicePresident Joe Biden, arguing for the necessity ofaccountability for violence in Darfur.Despite the political obstacles facing the AU in tryingto implement Article 16, there will no doubt beintense debate and great diplomatic energy exertedto delay the ICC investigation. Given the willingnessof AU, Arab League and Chinese leaders to rally insupport of Sudan, a pause to the proceedings againstBashir is not impossible.Article 16 deferrals grant the UNSC the ability to actin accordance with Chapter VII provisions of the UNCharter. Chapter VII empowers the UNSC to act to“maintain or restore international peace and security”when it has found “the existence of any threat topeace, breach of peace or act of aggression.” Humanrights groups have thus argued that Article 16 shouldbe used only in the most extreme conditions in orderto avoid the collapse of international peace andstability. 2Sudan has responded to the ICC indictment by so farexpelling thirteen international NGOs operating in thecountry. Some could argue that the loss of servicesprovided by these organisations and possibleescalation of violence against civilians in Darfurconstitute precisely the type of exceptionalcircumstance Article 16 was designed to address.Human Rights Watch and others have described theexpulsion of groups as an additional war crime. Still,those who advocate for a deferral on such groundswill have to contend with the argument that Sudan’saction would effectively have cowed the ICC and set adangerous precedent of impunity for regimescommitting mass atrocities. It is deeply unsettlingthat Bashir might gain an Article 16 deferral as aresult of committing new war crimes; such aprecedent could establish a perverse incentivestructure whereby those indicted by the ICC mighthave reason to commit additional atrocities in orderto avoid prosecution. This would greatly underminethe authority and efficacy of the ICC.The potential loss of life that Sudan’s policies mightinflict, however, makes the peace versus justicedebate palpable in this case. While a deferral at thispoint does seem an unconscionable action for thosewho are seriously committed to strengthening theauthority of international criminal law andestablishing international norms that challengeimpunity, it is also naïve to deny that the ICC effort toprosecute Bashir may result in an increase in violenceand suffering in the short term. Those committed toadvancing the goals of the Court will have to considerthe full range of consequences of the Court’sdecisions regarding both the future legitimacy ofinternational criminal justice and the future wellbeingand security of those communities sufferingfrom mass atrocities. In the Bashir case, however, thestakes may simply be too high for the Court’s futureto risk a deferral. In order for the ICC to establishitself as a legitimate and independent actor on theinternational stage it must avoid being manipulatedby particular political interests. Should the AU, ArabLeague and China manage to delay Bashir’sindictment it will, in this case, undoubtedly representa victory for impunity and political power overaccountability and judicial independence.1. A shorter version of this essay originally appeared on theOxford Transitional Justice Research “ICC Observers” website:http://iccobservers.wordpress.com/.2. See Human Rights Watch, “Article 16 Q&A,” http://www.hrw.org/en/news/2008/08/15/q-article-16Zachary Manfredi is an MPhil candidate in PoliticalTheory at the University of Oxford:zak.manfredi@politics.ox.ac.uk.


72 . DEBATING INTERNATIONAL JUSTICE IN AFRICAActivism, Genocide and DarfurMarc Gustafson24 March 2009Two weeks ago, the ICC Pre-Trial Chamber elected notto include genocide charges in the arrest warrant forSudanese president Omar al-Bashir. Since then, manyobservers have wondered what this will mean for theDarfur activist movement in the United States. Theanswer to this question depends on the type ofactivist group one is referring to. Since 2004, mostAmerican activist groups have typically advocated foreither military intervention in Darfur or an increase inpeace-keeping troops. To these activists, using theword ‘genocide’ has been central to their campaignof attracting followers and to their lobbying efforts.International consensus against using the word‘genocide’, however, is quickly building, which mayforce these groups to reevaluate the use of the wordand their overall strategy. Nevertheless, it is unlikelythat the ICC’s decision to exclude genocide chargeswill have an impact on the activist campaigns becausethe relevance of using the word ‘genocide’ hasalready come and gone.In 2004 and 2005, use of the term ‘genocide’ was anessential part of the marketing strategy for the SaveDarfur Coalition and the Genocide InterventionNetwork, which are the two largest American activistcampaigns for Darfur. By the end of 2006, thesegroups had reached out to tens of millions ofAmericans and collected almost $100 million dollars incontributions, according to publicly available reportsfrom the Internal Revenue Service. At this point, theuse of the term ‘genocide’ arguably became lesscritical because the activists had already achievedtheir goal of raising public awareness.Today, the strategy of the American campaignsdiffers greatly from a few years ago. Instead offocusing on public awareness, the activist groupsare now using the funds and energy they haveraised to lobby Congress for a change in US policytoward Darfur. They are putting tremendouspressure on Congress to stop the ‘genocide’ inDarfur, even though the majority of institutionsmonitoring the crisis, including AmnestyInternational, Human Rights Watch, the UnitedNations, the European Union, the ICC, MédecinsSans Frontières and the African Union, have declaredthat genocide did not occur in Darfur.These groups have concluded that genocide did notoccur based on three criteria. The first and mostcommonly cited criterion is the fact that thegovernment of Sudan did not demonstrate genocidalintent, but rather, as the 2005 United Nations Reportof Inquiry stated, it “pursued the intent to drive thevictims from their homes, primarily for purposes ofcounter-insurgency warfare.” 1 The second criterion,less commonly cited, concerns the identity of thetargeted groups. Some observers still question thatthe targeted groups’ nationality, religion, race and/orethnicity are different than that of theirperpetrators. 2 Lastly, critics, such as Alex De Waal,argue that the commonly used definition of genocidefrom the Genocide Convention is too broad andambiguous to be used to describe what is happeningin Darfur.The only investigation that concluded that genocidehad occurred in Darfur was the one conducted by theUnited States and led by former secretary of state,Colin Powell, in the summer of 2004. 3 The evolutionof this study, however, was peculiar. Immediatelyfollowing the investigation and before the resultswere finalised, Powell announced on National PublicRadio that genocide had not occurred. 4 After twomonths of intense pressure and protests fromactivists, particularly from the Sudan CampaignCoalition and the Congressional Black Caucus, Powellchanged his mind and declared in front of the SenateForeign Relations Committee, on 9 September 2004,that genocide had occurred. In light of Powell’sreversal and the vociferous calls from activists, it iseasy to see why Congress, shortly after Powell’sspeech, unanimously passed Senate ConcurrentResolution 133 to use the word ‘genocide’ to describethe situation in Darfur. 5 No congressperson wanted tobe identified with voting against fighting genocide.


DARFUR, BASHIR AND THE INTERNATIONAL CRIMINAL COURT . 73Regardless of whether or not the word ‘genocide’does or does not accurately describe the situation inDarfur, there have been many problems with usingthe word to raise awareness and mobilise activists.While the use of the word was helpful in the nascentstages of the US awareness campaign, it becameproblematic when the activist groups began toinfluence policy-making. Over the past few years,activist groups, particularly the Save Darfur Coalition,have pressured the US into sending over $1 billiontowards funding peace-keeping troops in order tostop the ‘genocide’ in the Darfur region. If theactivist campaigns, however, had not been sofixated on stopping the ‘genocide’, then theywould have realised that the violent crime andviolent deaths caused by the government of Sudanand the Janjiweed had almost completely ceasedin April of 2004, months before the activistcampaigns began. 6The other problematic byproduct of using the word‘genocide’ was that it highly mischaracterised theconflict in Darfur. Using the word ‘genocide’ oftencomes with the Manichean implication that the actionincludes a villain and its victims (i.e. the governmentin Khartoum and the innocent black Africans,respectively). Therefore, most American advocatesand the general public, who received theirinformation through the prism of the activists’marketing campaigns, were oblivious to the fact thatthe government in Sudan had not even started thecivil war in Darfur and that many of the Darfurianinsurgents were responsible for crimes as heinous asthe ones committed by the government. Had theword ‘genocide’ not been used, then the activistsmay have recognised that, (a) there were two sides inthis conflict, (b) a comprehensive peace process wasunderway, and (c) most of the violence had alreadystopped by the time their campaigns began. Instead,the activists continued to advocate for militaryintervention and peace-keeping long after theviolence had stopped.If stopping the ‘genocide’ had not been the centralfocus of the US activist campaigns, then perhapsmore effort and money could have been put towardthe underfunded and often ignored peace process inAbuja, Nigeria in 2005, which involved all of the keySudanese parties. Furthermore, more could have beendone to address the rising death rates in the refugeecamps due to disease and malnutrition.The growing international consensus against usingthe word ‘genocide’ to describe the situation inDarfur may allow the activist groups to reflect on thesuitability of their response to the situation inDarfur. In this regard, the ICC’s decision not tocharge Bashir with genocide should be a signal forthe campaigns to retool their strategy, moving fromadvocating for military intervention and peacekeepingto peace-making and providing humanitarianassistance.On the other hand, if Bashir continues to block thelifeline of humanitarian aid to the refugee camps inDarfur, as he has been doing since the ICC chargeswere filed, then the case for military intervention inDarfur may become more potent. Casualty rates willlikely rise and the international community will notwant to stand idly by. This is especially true because,unlike during the first few years of the conflict,outsiders now have a window into what is happeningin Darfur. United Nations and African Union monitorsare stationed in every region of Darfur and they arepublishing their observations monthly. If casualtyrates rise again, the world will know immediately andthe activist campaigns’ efforts will be strengthened.1. “Report of the International Commission of Inquiry on Violationsof International Law and Human Rights Law in Darfur,” UN Doc.S/2005/60. http://www.un.org/News/dh/sudan/com_inq_darfur.pdf2. This concern was cited in line 135 and 136 of the ICC’s Pre-trialChamber’s Decision of the Prosecutor vs. Bashir case. It is oftendifficult in Darfur to positively identify differences in race andethnicity because of the history of intermarriage and the artificialconstruction of race labels. For example, the Masalit tribe has attimes referred to itself as Arab and at times referred to itself asBlack African.3. The report was conducted by the State Department’s Bureau ofDemocracy, Human Rights, and Labor. The report and commentaryon the report’s findings can be found in Samuel Totten, “TheDarfur Atrocities Documentation Project”, Social Education, vol.68, 2004.4. National Public Radio Transcript from 30 June, 2004:http://www.npr.org/templates/story/story.php?storyId=30500595. Senate Resolution 133: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=108_cong_bills&docid=f:sc133ats.txt.pdf


74 . DEBATING INTERNATIONAL JUSTICE IN AFRICA6. The sudden drop in violent deaths after April of 2004 is apparentin the study, Darfur: Counting the Deaths conducted by theCentre for Research on the Epidemiology of Disasters (CRED) atthe University of Louvain. This has been the most comprehensivestudy of Darfur casualties to date. It uses the data from 24surveys conducted in every region of Darfur and eastern Chad.The most logical reason for this drop was the ceasefire agreementof 8 April 2004.Marc Gustafson is a 2007 Marshall Scholar at St.John’s College, Oxford University. He is currentlywriting his dissertation on the impact of Americanactivists on the Darfur conflict:marcgustafson@gmail.com.Would al-Bashir Get a Fair Trial?Lessons from Guantánamo or the ICC 1Rid Dasgupta20 August 2009ICC prosecutor Luis Moreno Ocampo’s decision on 14July 2008 to seek an arrest warrant for SudanesePresident Omar al-Bashir on ten counts of genocide(under Article 6 (a) of the Rome Statute, whichgoverns the ICC), war crimes (under Article 8(2)(e)(i)), and crimes against humanity (under Article7 (1)) has given rise to much brouhaha in the politicalblogosphere. Commentators such as Phil Clark andTeddy Harrison have focused on the politics (both realand perceived) of the prosecutor’s role. On thedoctrinal front, Han-ru Zhou argues that the RomeStatute’s “deferential stance towards collectiveenterprises of states … weakens the ICC’s ability toenforce international criminal justice.” Naseem Badieytouches upon the international legal ramifications ofthe sought arrest warrant but ultimately concludesthat, at least from the contemporaneous vantagepoint of Southern Sudan, this daring ICC prosecutorialdecision is quixotic “legal adventurism.”Few observers have spoken on the legal methodologyto be employed if, in fact, such a trial gets underway– understandably so, as Ocampo’s warrant request tothe Pre-Trial Chamber will be granted only if theprosecutor’s summary of evidence constitutes“reasonable grounds to believe” al-Bashir’scommission of the crimes enumerated in theindictment. The current enforcement quagmire maybe resolved and the Sudanese head of state might beextradited (now or after his official tenure ends). Thisessay addresses how we can transport the lessons ofcertain deficiencies in the United States’ militarycommission proceedings in Guantánamo Bay, Cuba, 2to the context of the ICC’s moves against al-Bashir.The international community must focus on twocommonalities regarding both systems: (i) amorphousinternational legal structures susceptible to insidermanipulation and political expediency; (ii) trials ofpolitically unpopular defendants likely to receiveprejudiced judicial fora. Neither the ICC norGuantánamo is free of these two concerns.


DARFUR, BASHIR AND THE INTERNATIONAL CRIMINAL COURT . 75TASK AHEADCertainly the legal process attending the GuantánamoBay military commissions is not easy to transpose tothe ICC system. The Guantánamo commissions weredesigned to try alleged enemy combatants withprocedures deliberately speedy or slow to suitprosecutorial needs. They are fundamentally differentfrom a courts-martial system where criminally accusedmilitary personnel enjoy the full panoply of legalprotections.Let us survey the notion that the ICC could beconsidered superior to the Guantánamo militarycommissions. The ICC is a formal institution with rulesand procedures entrenched in the Rome Statute,while the Guantánamo commissions were the UnitedStates Government’s ad-hoc response to the U.S.Supreme Court’s pronouncements in Hamdi v.Rumsfeld (2004) 3 and Rasul v. Bush (2004) 4 . Thesecases opened United States courts to detaineechallenges from Guantánamo and required a “neutraldecision-maker” to decide culpability. A third case,Hamdan v. Rumsfeld (2006), 5 referenced CommonArticle 3 of the Geneva Conventions 6 and the UniformCode of Military Justice (UCMJ) (rights protected byU.S. federal law) 7 in striking down the Guantánamomilitary commissions’ trial procedures as lawfullywanting. Suggesting, however, that the ICC inherentlyis a better alternative is an oversimplification. Certainscholars, such as Giovanni Conso, Gerhard Hafner,and Anita Ramasastry, offer reasons suggesting whythe United States has not signed the ICC Treaty, but alarger doctrinal compatibility also appears to bepresent.Certain protections at the core of an Americancriminal trial and considered fundamental judicialguarantees are not secured to an ICC defendant. First,the ICC’s Rules of Procedure and Evidence (“ICCRules”) do not guarantee the defendant a speedytrial, a right preserved by the Sixth Amendment tothe U.S. Constitution. Rules 117-120 permit pre-trialrestraint of the defendant. An ICC detainee isallowed, once every six months, to request releasepending bail. The ICC, however, is not obligated togrant that request. Nor is there a stipulation aboutthe maximum length of time that a prisoner may bedetained, thus causing significant delay in thecommencement of a trial. Second, Rule 150 allowsprosecutors to appeal a criminal defendant’sacquittal. In the United States, the Fifth Amendmentto the Constitution categorically forbids such doublejeopardy, fearing the vexation likely to result fromincessant government efforts to convict.Third, Rule 74 enables the ICC to require witnesses toprovide self-incriminating testimony, only if the Courtitself privileges the testimony as classified andsecretive, including from the defense itself. The FifthAmendment to the U.S. Constitution expressly rulesout all judicial or governmental efforts to compel selfcrimination.Fourth, either individually or in tandem,Rules 81 and 82 allow secret trials, the use ofhearsay or anonymous testimony, or narrow therights of defendants to confront their accusers. Incontrast, the U.S. Constitution guarantees the right toa public trial (Fifth Amendment), bans hearsay oranonymous testimony (Sixth Amendment), andpromises the actual confrontation by the accusers incourt (same). Finally, the ICC trials are adjudicated byfive judges, of whom a majority must vote to convict.In the United States, however, the constitutionalrights to jury trial (Sixth Amendment) and dueprocess (Fifth Amendment) have been construed torequire a unanimous vote to convict by the jury ofone’s peers, not judges. Granted that some of thesedifferences, i.e., trials by judges rather than juries,regulations weakening the defendant’s right to crossexaminewitnesses, and no prohibition against doublejeopardy, result from the distinctions inherent inAnglo-American common law versus continentalEuropean civil law. From the standpoint ofdefendants’ rights, then, these points of tensiondemonstrate that the ICC proceedings are notcategorically superior to American criminal trials.Structural reasons, too, militate against summarilypreferring the ICC structure over the Guantánamocommissions. The Rome Statute’s precedential historyis far from time-tested; in fact, the Statute itself isonly six years old. 8 On the other hand, unlike the ICC,the body of case-law (stare decisis) germane to


76 . DEBATING INTERNATIONAL JUSTICE IN AFRICAGuantánamo is substantial. As noted earlier, the legalbases for the Guantánamo challenges were theGeneva Conventions and the Uniform Code of MilitaryJustice (UCMJ). The Geneva Conventions, adopted in1949, concern the treatment of non-combatants andprisoners of war. Their precursors were the HagueConventions of 1899 and 1907. 9 The UCMJ’s roots runeven deeper, before the founding of the AmericanRepublic and before the Declaration of Independence.In 1775, the Continental Congress passed 69 Articlesof War to govern military conduct; in 1806, Congressfirst enacted 101 Articles of War into federal law; andin 1951 the modern-day UCMJ became effective. 10The Rasul-Hamdi-Hamdan line of precedent tracedthe American court cases that have helped developthis strain of jurisprudence. The ICC, by comparison, isrelatively new.Certainly both the Rome Statute and U.S. laws affordthe defendants certain basic safeguards. The RomeStatute in Article 66 (2) provides that the prosecutionbears the burden of proof throughout the trial and inArticle 67 (3) (i) states that the accused must notbear any reversal of the burden of proof or any onusof rebuttal. Presuming innocence, Article 67 (3) (g)gives the accused the right to remain silent. AndArticle 55 states that no person shall be compelled toincriminate herself or to confess guilt; be subjectedto coercion, duress, threat, torture or ill-treatment; orbe subjected to arbitrary arrest or detention. Thesame protections, preserved in American law and nowapplicable to Guantánamo by virtue of the SupremeCourt’s decisions, are “closely linked historically withthe abolition of torture,” and are regarded as a“landmar[k] in man’s struggle to make himselfcivilized.” 11However, the protections will mean very little if theenforcement mechanism, the threat ofinadmissibility, is not strong enough to deterprosecutorial overreach. According to both dueprocess in American courts and Article 69 (7) of theRome Statute, evidence obtained in a mannercontrary to universal human rights is inadmissible ifthe violation would mar the integrity of theproceedings. But, then, who determines when therisk of error is substantial if certain evidence were tobe admitted? And what salience would the theoreticalprotections have for an individual defendant if theadmissibility criteria themselves were opaque,malleable and susceptible to insider manipulation byexperts versed in the field? 12 A prime example derivesfrom the text of the ICC prosecutor’s application foran arrest warrant against al-Bashir: as evidence forthe “fate of the displaced persons,” the applicationpresents “[d]ata from refugee camps in Chad andcamps for internally displaced persons … withinDarfur.” 13 Simply owing to the difficult situation onthe ground, the reliability of this data is likely to beimperfect. Yet there might be pressure to admit thisor other forms of evidence, including anecdotaltestimony, in order to make a morally compelling caseagainst al-Bashir. Similarly, there might beinternational insistence from many quarters to ignorerules concerning hearsay as well as victim impactstatements (VIS) 14 which, in ordinary cases, arescrutinised rigorously before being admitted into acriminal proceeding.A (NECESSARY) CONVERSATIONWhatever becomes of the prospect of trying al-Bashirin the ICC, a conversation is needed to decide uponthe prerogatives of the prosecutor and of the Court,the protections to be afforded this defendant (or asimilarly situated defendant in the future), and howbest judicial impartiality and independence may bepreserved. These concerns have less to do with howpolitical the prosecution is and more to do withwhat, according to the international legal norms, isthe remedy if an intolerable conflict of interest orother deviation from lawful prosecutorial behaviouris uncovered. In other words, the cautionary concernof this essay is less theoretical in nature and centredmore on the pragmatic legal considerations likely toarise. The Guantánamo example is undoubtedlyrecent, but that is not the only reason that it isinformative in the current ICC context. In short, whatwent “wrong” (at least through the often cloudedlens of international law) in Guantánamo could recurhere.


DARFUR, BASHIR AND THE INTERNATIONAL CRIMINAL COURT . 77Which elements constitute the charges against al-Bashir and what are the evidentiary burdens that theICC prosecutor must carry? First, since the RomeStatute pertains to all persons irrespective of theirofficial capacity and since Article 27 expressly refusesto exempt heads of state from ICC prosecution, anargument could be made that the ICC retainsjurisdiction over al-Bashir. Second, genocide isdefined as the pervasive commission of certain acts,executed with the specific intent to eliminate a groupbased on nationality, ethnicity, race or religion. Theacts specified by the Rome Statute are killing, causingserious bodily or mental harm, deliberately inflictingconditions of life calculated to facilitate physicaldestruction, inflicting measures intended to preventbirths, and forcibly migrating children beyond theircommunity. To prove genocide, the ICC prosecutormust prove that some or all of the above acts werecommitted and that they were committed with theparticular intent of obliterating a population.Third, to meet the burden of proving a crime againsthumanity, the prosecutor must demonstrate that theaccused committed one of a number of acts (such asmurder, extermination, deportation or forcible transferof a population, rape, torture, persecution, or otherinhumane acts) as part of an extensive or methodicalattack against civilians. The prosecutor must alsoshow that these acts were committed as part ofgovernmental or organisational policy with theaccused’s knowledge. Under the Rome Statute thereare two forms of criminal liability. Article 25 statesthat individual responsibility is triggered when theperson commits a crime individually or jointly, byordering, soliciting, or inducing the commission of acrime; by aiding and abetting the crime; or byotherwise contributing to the commission. Commandresponsibility, according to Article 28, is at issuewhen an actual or de facto military commander doesnot control (or punish) forces subordinate to himwho, in his knowledge, were committing or wereabout to commit crimes against humanity.These questions could be murky in a criminal caseagainst al-Bashir, and decided by convenience ratherthan truth-seeking. In a prospective al-Bashir trial,the presiding judges will discern whether particularevidence is exceedingly prejudicial or otherwisereliable or the extent to which a certain Exhibit Xdenotes culpability. Since the judges will almostcertainly be subject to immense international scrutinyand political expectations, the inevitable subjectivityof these judgements will provide opportunity totinker with the procedural rules. This is especiallyproblematic given that the data accumulated by theICC prosecutor is almost entirely secondary, and basedon evidence from the Sudanese diaspora rather thanindependent investigations on the ground. Otherweaknesses of the ICC include an inability toeffectively communicate information to victims andcommunities affected by the crimes, an incapacity toprotect witnesses (making consequential andforthcoming testimony in the future more difficult toobtain), and the ICC’s frequent failure to apprehendsuspects.As a supranational judicial body, the ICC ishandicapped by its reliance on the cooperation of theUnited Nations and of constituent states. Accordingto a July 2008 report by Human Rights Watch (HRW),“the international community has too oftendownplayed justice amid other important diplomaticobjectives, such as peace negotiations and thedeployment of peacekeeping forces.” 15 The remedyfashioned by the Rome Statute to neutralise some ofthese deficiencies is to enable victims of humanrights violations to be parties to the trials. In al-Bashir’s case, this panacea might have theunintended effect of supplanting demanding rules ofevidence entirely with anecdotes, hearsay andotherwise questionable testimony – concerns familiarto the military commissions at Guantánamo.PROBLEMS WITH THE MILITARY COMMISSIONS ATGUANTÁNAMOLet us now trace the development of theGuantánamo commissions and their legal deficiencies.More than four years ago, the U.S. Supreme Courtruled in Hamdi and Rasul that Guantánamo issovereign American territory; that habeas corpus, thecommon law right of the accused to have herdetention challenged in court, applies there; and that


78 . DEBATING INTERNATIONAL JUSTICE IN AFRICA“a state of war is not a blank check for the Presidentwhen it comes to the rights of the Nation’s citizens.”Responding to these decisions, the President and theU.S. Department of Defense created the CombatantStatus Review Tribunals (CSRTs) to determine whetherindividuals detained at Guantánamo were “enemycombatants” who took up arms against the UnitedStates.Indeed, the detainees whose case led to the SupremeCourt’s latest word on the legality of the Guantánamomilitary commissions, in Boumediene v. Bush(2008), 16 had been detained for more than two yearswithout significant judicial review. Boumediene foundthat Congress could not suspend the constitutionallysecured right to habeas corpus for Guantánamodetainees and that the alternative provided byCongress, a federal statute named the MilitaryCommissions Act (MCA), 17 was an inadequatesubstitute for habeas.What, then, were the CSRT system’s shortcomings?Why did the Supreme Court nullify the CSRT remedyas an insufficient surrogate for habeas? And mostimportantly, what temptations are likely to presentthemselves in an ICC trial of a reviled perpetrator ofgenocide? In Hamdan, the Guantánamo militarycommissions were judged by the Supreme Court to beunlawful by providing fewer jury members, distinctiverules of evidence (including allowing hearsay incertain situations), and greater flexibility regardingthe defendant’s presence at trial than wouldotherwise be permissible. Unlike the Guantánamocommissions, the Rome Statute in Article 24proscribes retroactive prosecutions and states clearlythat “in the event of a change in the law … the lawmore favourable to the person being investigated,prosecuted or convicted shall apply.”An overarching problem lies in the concentration ofpower in the structure of the Guantánamocommissions. The “Appointing Authority … whoconvenes and refers charges against individuals tothe military commissions” also decides the questionsover the “establishment and proceedings of thecommissions”: the selection of jurors to vote on theaccused’s culpability, how to exercise oversightconcerning the chief prosecutor, whether to permitplea agreements between the prosecutors and theaccused, to decide when the fact-finding mission hasbeen exhausted, and to respond to the presidingofficer’s interlocutory questions. 18But these were not all. Other deficiencies may includethe limitations placed upon the accused’s ability torebut the allegations; evidence that has been labeledclassified is not accessible to the defendant whoconsequently cannot deny or disprove theaccusations. It may appear tempting, purportedly forpreserving international security, to deter the accusedfrom obtaining evidence to challenge the ICCprosecution’s case. In Guantánamo, for instance,“[r]epresentation by counsel, even with securityclearance, was expressly forbidden. Instead, the rulesonly allowed [the detainees] to meet briefly with a‘Personal Representative,’ who was not a lawyer, didnot represent the [accused]’s interests, and could nothave confidential communications with him.” 19 Article67.1(d) of the Rome Statute – enforced by Rule 22(1)of the ICC Rules – recognises the defendant’s right tobe represented by preferred counsel, but offers onlyvague notions of fundamental justice to govern thetrial itself. But the extent of attorney-client privilege,privacy, and confidentiality are unclear. Moreover,interests of witness or victim protection against publichumiliation (particularly relevant for rape victims) orphysical danger, or other security concerns could beshown as adequate to deprive even counsel of theright to examine evidence and witnesses to beoffered against their clients.The theoretical admissibility of hearsay (or evidenceprocured by torture and other coercive techniques)implies that the accused will be unable tomeaningfully confront and cross-examine witnesses.In July 2008, military commission judge Navy Capt.Keith Allred, presiding in the Guantánamo trial ofSalim Hamdan (a former chauffeur to Osama binLaden, the leader of the al Qaeda terrorist network),was compelled to exclude certain pieces of evidencebecause of “the highly coercive environments andconditions under which [the statements] were made.”


DARFUR, BASHIR AND THE INTERNATIONAL CRIMINAL COURT . 79Hamdan was “kept in isolation 24 hours a day withhis hands and feet restrained, and armed soldiersprompted him to talk by kneeing him in the back. Hesays his captors at Panshir repeatedly tied him up,put a bag over his head and knocked him [to] theground.” 20 Such an interrogative environment canintroduce the risk of factual error in confessions,testimony, or other evidence exacted from theaccused.CONCLUDING THOUGHTSThese procedural guarantees largely followed incivilian trials are not merely academic; they form thebackbone of a fair trial consisting of rights, bothprocedural and substantive, to which even adefendant accused of the most reprehensible crimesis entitled. When trying al-Bashir, who is suspected ofcommitting or negligently standing by genocide, warcrimes, and crimes against humanity, it will beenticing to afford him a cursory and incompleteprocess. However, the protections, if whittled away,stand to benefit no one in the long term. Some wordsof the American patriot Thomas Paine are instructive:“He that would make his own liberty secure, mustguard even his enemy from opposition; for if heviolates this duty he establishes a precedent that willreach to himself.”9. “Geneva Convention relative to the Treatment of Prisoners ofWar,” United Nations: Office of the High Commissioner forHuman Rights.10. “Index & Legislative History of the UCMJ (1950)” in MILITARYLEGAL RESOURCES, Library of Congress.11. E. Griswold, The Fifth Amendment Today 7 (1955); see id., at 8(Fifth Amendment expresses “one of the fundamental decenciesin the relation we have developed between government andman”).12. See, e.g., John McGinnis and Ilya Somin, Should InternationalLaw be Part of Our Law?, 59 STAN. L. REV. 1175, 1181 (2007).13. See Prosecutor’s Application for Warrant of Arrest under Article58 Against Omar Hassan Ahmad al-Bashir, p. 4.14. Even though the U.S. Supreme Court upheld the facialadmissibility of VIS in criminal proceedings, if “a witness’testimony or a prosecutor’s remark so infects the sentencingproceeding as to render it fundamentally unfair” then thatevidence is inadmissible. See Payne v. Tennessee, 501 U.S. 808,831 (1991) (O’Connor, J., concurring).15. “Courting history”: Human Rights Watch Report on the ICC (July2008).16. 553 U.S. ___ (2008).17. Military Commissions Act of 2006 (MCA), Pub. L. No. 109-366,120 Stat. 2600 (codified at 10 U.S.C. § 948-50; 18 U.S.C. §2441; and 28 U.S.C. § 2241(c)-(e)) (2006).18. Hamdan v. Rumsfeld: Establishing a Constitutional Process,Hearing before the S. Comm. on the Judiciary, 109th Cong. (July19, 2006) (statement of Neal Katyal).19. Brief for Petitioners 6 (in Boumediene).20. See Melia, Mike. “Gitmo trial begins for bin Laden’s driver,”Associated Press, July 21, 2008.Rid Dasgupta (rd2136@columbia.edu) is a Mastersstudent at Oxford. He will commence his doctorate atCambridge this autumn.1. A different version of this paper is being processed as a Note bythe Nottingham Human Rights Law Review for publication in itsnext autumn issue.2. Operated by Joint Task Force Guantánamo (JTF-GTMO), this U.S.detention centre is located in Guantánamo Bay Naval Base, whichis on the shore of Guantánamo Bay, Cuba. Since thecommencement of the present U.S. hostilities in Afghanistan,775 detainees have been brought to Guantánamo and 420detainees have been released. As of May 2008, 270 detaineesremain.3. 542 U.S. 507 (2004).4. 542 U.S. 466 (2004).5. 548 U.S. 557 (2006).6. Geneva Convention (III) Relative to the Treatment of Prisonersof War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, T. I. A. S. No.3364 (Third Geneva Convention).7. 10 U.S.C. § 801 et seq. (2000 ed. and Supp. III).8. The historic roots of both the Rome Statute, starting with theInternational Committee of the Red Cross in 1872, and theGeneva Conventions run deep. See “History of the ICC,” Coalitionfor the International Criminal Court. However the latter has beendeveloped doctrinally more than former. This process wasfacilitated by linking Common Article of the Conventions todomestic law. No such development has occurred for the RomeStatute.


80 . DEBATING INTERNATIONAL JUSTICE IN AFRICAThe Security Council, Article 16 andDarfurRobert Cryer29 October 2008In mid 2004, the issue of the humanitarian crisis inDarfur was expressly linked to international peaceand security by United Nations Security CouncilResolution 1556 (30 July 2004). This paved the wayfor the Security Council to decide, in Resolution1593, that the situation in Darfur should be referredto the International Criminal Court (ICC). Hence, thelink was made between international peace andsecurity and the prosecution of crimes in Darfur.However, there have recently been suggestions thatto encourage peace in Sudan the Security Councilshould request, under Article 16 of the ICC’s Statute,deferral of the prosecution of Sudanese governmentofficials for one year. Prominent commentators suchas Professor David Scheffer believe this would beunlawful, and unwise. This piece seeks to show that,while it may be ill-advised, it would be lawful for theSecurity Council to make such a request.Under Article 13(b) of the Rome Statute of the ICC,the Court is entitled to receive referrals of situationsfrom the Security Council, irrespective of whether ornot they involve the territory or nationals of a StateParty to the Statute. The ICC did this in the case ofSecurity Council Resolution 1593. Nonetheless,predictably, the Sudanese government reactedfuriously, calling the referral part of an imperialistagenda. The government’s concerns aside, someaspects of Resolution 1593 were certainlydiscomforting, in particular its exemption ofpeacekeepers from the referral and the refusal offunding for the investigation. However, it has beengenerally accepted that owing to the referral, the ICCmay lawfully invoke its jurisdiction over Sudanesenationals acting in Darfur.The issue of the referral has continued to unfold, withSudan periodically denouncing the Court, refusing toco-operate with it, and at times seemingly actingcontemptuously towards it (for example, by namingAhmed Haroun as Minister for Humanitarian Affairsafter his indictment for crimes against humanity). Thequestion of the referral flared again in July 2008when the ICC Prosecutor asked a Pre-Trial Chamber toconfirm charges (including genocide) against theSudanese President, Omar Hassan al-Bashir, and toissue an arrest warrant against him. The response ofthe Sudanese government was multifaceted, butincluded a thinly veiled threat to peace processesthroughout the country. Sudan argued that theComprehensive Peace Agreement (CPA), as well aspeace in Darfur, rested on a knife edge, and that anywarrant would undermine those processes.As a result, there have been suggestions that theSecurity Council should, at least, defer any furtheraction against al-Bashir. These suggestions have comefrom various parties, including the African Union. TheSecurity Council initially responded to these calls, inResolution 1828 (31 July 2008), with language thathad all the clarity of a compromise:Taking note of the African Union Communiqué ofthe 142 nd Peace and Security Council…[whichasked the Security Council to issue a deferralrequest compliant with Article 16 of the RomeStatute]…having in mind concerns raised bymembers of the Council regarding potentialdevelopments subsequent to the application ofthe Prosecutor of the International Criminal Courtof 14 July 2008, and taking note of theirintention to consider these matters further…This language led the US, rarely the ICC’s greatestsupporter, to abstain from the vote on this resolutionand to express displeasure at the possibility of theCouncil deferring any proceedings by virtue of Article16 of the ICC Statute, which reads:No investigation or prosecution can becommenced or proceeded with under this Statutefor a period of 12 months after the SecurityCouncil, in a Resolution adopted under ChapterVII of the Charter of the United Nations, hasrequested the Court to that effect; that requestmay be renewed by the Council under the sameconditions.


DARFUR, BASHIR AND THE INTERNATIONAL CRIMINAL COURT . 81One of the most well-known contributors to thedebate over the ICC and Darfur is David Scheffer,previously the lead US delegate at the RomeConference that adopted the ICC Statute. Schefferopines in a carefully worded piece in Jurist that “theoriginal intent underpinning Article 16 was to grantthe Security Council power to suspend investigationsor prosecutions of situations before either islaunched if priorities of peace and security compelleda delay of international justice.” 1 Scheffer arguesthat, since Article 16 was based around ajurisdictional compromise over the US position atRome that no investigation or prosecution shouldoccur in the absence of Security Council consent, itshould also have no relevance to a situation referredby the Council itself. Scheffer is deeply concernedthat seeking to defer proceedings against al-Bashir“is…rolling the dice with an individual whose trackrecord is deplorable”, and might lead to abuse ofArticle 16, by using it beyond the purpose for whichit was drafted.Scheffer concedes that Article 16 might be read asgiving the Council the authority to request an ICCdeferral at this stage, and perhaps even when anarrest warrant is issued. However, in his view thiswould amount to a “technically manipulative” readingof Article 16, similar to the one adopted in Resolutions1422 and 1487, which were deeply controversial and,in my view, inconsistent with that Article. 2Contrary to Scheffer, on the basis of the language ofArticle 16 (which is perhaps the best indicator of theintention of the drafters), I believe that, at leastbefore an arrest warrant is issued, and perhapsbeyond, the Security Council can intervene by virtueof that Article. If the drafters had intended Article 16to apply only to State referrals or to investigationsinitiated by the Prosecutor under his proprio motupowers, it was open to them to say so. The fact thatthat they did not at least gives reason to believe thatthey did not seek to limit the authority in Article 16to those referrals.This view is bolstered by the fact that, although areferral can relate only to a “situation”, the ICCProsecutor can prosecute only a case. As MortenBergsmo and Jelena Pejić explain, “an investigationinvolves action that may be taken with respect to asituation and/or an individual, whereas a prosecutioninvolves only actions taken with respect to a specificperson.” 3 The language of Article 16 (referring to aninvestigation or prosecution), and the change thatreflects from the wording of Article 13 was notaccidental. 4 The drafters of Article 13(b) intended theterm “situation” to exclude individual cases beingsent to the Court. 5 Article 16, on the other hand, wasintended precisely to permit the Security Council to,if required, defer prosecutions that relate to oneperson. Hence, it is not necessarily inconsistent forthe Security Council to determine that the referral ofa situation is in the interests of international peaceand security, and later take the view that thoseinterests require a temporary deferral of a particularcase.Turning to the question of whether the SecurityCouncil’s authority under Article 16 extends only tothe period before an investigation or prosecution hasbegun, it is important to note that Article 16 statesthat “no investigation or prosecution can becommenced or proceeded with [emphasis added]”for a year when the Council has made an Article 16request. It seems difficult, given the reference toproceeding with an investigation or prosecution, tomaintain that Article 16 is thus limited to stoppingeither before it has begun.It is possible, on examining the facts, to agree withScheffer that the Security Council should not deferthe case against al-Bashir, while accepting that itmight be lawful to do so. The fact that the situationin Darfur has been ongoing for around five years andpeace seems a long way off might imply that arequest to defer action by the ICC is ill-advised. It isalso questionable whether a body such as theSecurity Council is an appropriately objective forumfor determining such sensitive matters (although itmight also be questioned if there is any other bodythat could do so wholly objectively. The UN GeneralAssembly, for example, is hardly apolitical). However,the Council is the body that has been legally


82 . DEBATING INTERNATIONAL JUSTICE IN AFRICAentrusted with such a decision. Therefore, at leastuntil an arrest warrant is issued (a decision that hasbeen put off, for the moment, by virtue of thedecision of the Pre-Trial Chamber dealing with thematter, to request more information from theProsecutor) the Security Council may lawfully issue adeferral request to the ICC under Article 16.1. Available at http://jurist.law.pitt.edu/forumy/2008/08/securitycouncils-struggle-over-darfur.php2. The controversies over both resolutions related particularly to thefact that the Security Council did not determine a threat tointernational peace and security, as is required for Chapter VIIaction. Furthermore, the Resolutions were both advance, blanket,requests for deferral of all possible cases against peacekeepersfrom non-State parties to the ICC Statute, rather than one basedon a specific case or investigation.3. Morten Bergsmo and Jelena Pejić, “Article 16”, in Otto Triffterer(ed.), The Rome Statute of the International Criminal Court,2nded., Oxford: Hart, 2008, p.600.4. Ibid, pp.600-601.5. Lionel Yee, “The International Criminal Court and the SecurityCouncil: Articles 13(b) and 16”, in Roy Lee (ed.), The Making ofthe Rome Statute, The Hague: Kluwer, 1999, p.148Ocampo’s Darfur Strategy Depends onCongoPhil Clark20 August 2008The 14 July application by the Prosecutor of theInternational Criminal Court (ICC), Luis MorenoOcampo, for an arrest warrant against SudanesePresident Omar al-Bashir represents a key moment forthe nascent and increasingly embattled Court. Manycommentators have questioned why the Prosecutor ispursuing Bashir, given the unlikelihood of everarresting him. To understand what the Prosecutorhopes to gain from this move, we should interpret itin the wider context of the ICC’s prosecutorialstrategy to date. In particular, we should focus onhow the Prosecutor’s intentions in the Bashir casehinge on his handling of cases from the DemocraticRepublic of Congo (DRC).Robert Cryer is Professor of International andCriminal Law at the University of Birmingham. He isthe author of various books and articles oninternational criminal law, including ProsecutingInternational Crimes: Selectivity and the InternationalCriminal Law Regime (Cambridge: CUP, 2008) and(with Håkan Friman, Darryl Robinson and ElizabethWilmshurst) An Introduction to International CriminalLaw and Procedure (Cambridge: CUP, 2007):r.cryer@bham.ac.uk.The application to indict Bashir represents a majorgamble by the Prosecutor who believes that, eventhough Bashir may never face trial, indicting anincumbent head of state will inherently bolster theICC where it is currently weak: on issues ofinternational legitimacy and problematic relationswith the UN Security Council and key states,principally the US. The gamble is separate from themost common criticisms of the Prosecutor’s strategyin Sudan. The move against Bashir is unlikely toprovoke instability or violence in Darfur and southernSudan, as some commentators have argued. TheSudanese government’s withdrawal two weeks ago oftroops from Abyei, the most recent flashpoint in thenorth-south conflict, highlights the unpersuasivenature of those predictions. Similarly unconvincinghave been the self-serving accusations by theSudanese and other African governments – several ofthem with their own citizens’ blood on their hands –that the ICC’s moves constitute nothing more thanneo-colonialist meddling in Sudan’s domestic affairs.Even though the Prosecutor can easily side-step suchcriticisms, the success of his strategy in Sudan willrely heavily on his ability to convict the fourCongolese suspects currently in ICC custody (ThomasLubanga, Germain Katanga, Mathieu Ngudjolo and


DARFUR, BASHIR AND THE INTERNATIONAL CRIMINAL COURT . 83Jean-Pierre Bemba) and thus produce tangible judicialresults in order to give full force to the symbolicvalue of the Bashir case. Meanwhile, as long asBashir remains at large, the pressure will increase onthe Prosecutor to secure those results in the DRCsituation.The Prosecutor believes that he has sufficientevidence to convince the three Pre-Trial judges toissue the warrant against Bashir, which they are likelyto do within the next month – possibly as early as 1September. The Office of the Prosecutor (OTP) hashad to rely on investigating crimes in Darfur viatestimony from Sudanese exiles and other distancedsources because of Khartoum’s refusal to allow ICCinvestigators on the ground. Nevertheless, theProsecutor would not risk approaching the judgeswithout strong evidence of systematic crimes inDarfur – including of genocide – that are feasiblytraceable to the highest levels of the Sudanesegovernment. 1 The Prosecutor is still smarting fromtwo embarrassing exchanges with the Pre-Trial judgesinvolved in the DRC situation. First, on 29 January2007 when handing down their decision on theconfirmation of charges in the Lubanga case, thejudges criticised the Prosecutor for charging Lubangaonly with domestic crimes committed in Ituri provinceand for failing to recognise the internationaldimension of the Ituri conflict, implying the role ofUganda and Rwanda in funding and training localrebel groups, including Lubanga’s Union des PatriotesCongolais. Second, the judges criticised theProsecutor on the eve of the Lubanga trial on 16 June2008 for failing to make key evidence available toLubanga’s defence team; a move that threatened thecollapse of the trial. Following these difficulties, theProsecutor would not approach the judges in theDarfur situation unless he believed he had awatertight case for the issuance of the Bashirwarrant.The Prosecutor recognises that few national orinternational actors will be willing and able to arrestBashir – the same problem he has faced sinceindicting leaders of the Lord’s Resistance Army (LRA)in the Uganda situation. Khartoum will not hand overits leader, just as it has refused to surrender the twomiddle-ranking Sudanese officials currently indictedby the ICC, Ahmed Mohamed Haroun and AliMohamed Abdel Rahman ‘Kushayb’. The two relevantpeacekeeping missions – the joint UN-African Unionmission in Darfur (UNAMID) and the UN mission inSudan (UNMIS) – are also unlikely to actively pursueBashir. Neither mission is mandated to enforce ICCwarrants, and both suffer severe personnel andlogistical shortages and constant obstruction byKhartoum.Nonetheless, the Prosecutor is using the Bashir caseto pressure the UN Security Council into greaterpeacekeeping cooperation on the ground in Sudanand more generally in situations under ICCinvestigation. As the Darfur situation was referred tothe ICC by the Security Council – the first suchreferral in the Court’s history – the Prosecutor islobbying the Council to help enforce the warrantagainst Bashir. If such support is not forthcoming, theProsecutor will argue that the OTP has done its job aseffectively as possible but suffered from a lack ofpolitical will in the Security Council. This is a likelyoutcome, given the improbability of China and Russiasupporting cooperation between the ICC and UNpeacekeeping missions in Sudan.While Washington is still opposed to the existence ofthe ICC, it may cautiously support more activeSecurity Council involvement, given the importance ofthe Darfur situation for US domestic constituencies,particularly conservative Christians, who wereinstrumental in George W. Bush’s rise to thepresidency and are central to John McCain’s prospectsin November. The US abstained from the 31 Julyrenewal of UNAMID’s mandate, in protest against theinclusion in the resolution of a paragraph notingsome Security Council members’ concerns over theOTP’s investigations. This implicit US support for theICC in the Darfur situation is vital in pressuring thepeacekeeping missions to enforce the Court’s arrestwarrants. The Prosecutor may also hope that a BarackObama victory in the presidential race ushers in anera of greater US – and consequently Security Council– support for the ICC. However, opposition to the ICC


84 . DEBATING INTERNATIONAL JUSTICE IN AFRICAin Congress remains severe, and the fact that Obamahas so far avoided all discussion of the Court duringthe presidential campaign highlights how politicallyfraught the subject remains in the US. Nevertheless,successful diplomacy by the Prosecutor on the Bashirissue could lead to stronger relations with theSecurity Council and establish precedents for futureUN peacekeeping missions, which will be crucial forthe ICC’s ability to transfer indictees to The Hague.The Prosecutor recognises that the ICC – and the OTPin particular – currently requires a major boost ininternational legitimacy. When the Prosecutor openedinvestigations into LRA crimes in northern Uganda in2004, he stated that the rebel leaders would bebrought to trial within six months and, as a result,the twenty-year conflict would soon end. Four yearslater, the LRA indictees are still at large (or dead) andthe OTP does not anticipate their arrest any timesoon. The Prosecutor may be tempted to write thosecases off unofficially – claiming that the threat ofprosecution of the LRA leadership helped drive themto the (ultimately unsuccessful) Juba peacenegotiations with the Ugandan government – anddivert the OTP’s limited resources toward other cases,either in situations where investigations are alreadyunderway or in new situations, such as Colombia andCôte d’Ivoire, which the ICC has been monitoring forseveral years, or its latest country under analysis,Georgia. 2 Compounding the LRA problem, in both theUganda and DRC situations, the OTP has beencriticised for failing to pursue government actorscomplicit in serious crimes – preferring to go afterrelatively ‘small fish’ such as Lubanga, Katanga andNgudjolo.the OTP’s legitimacy among the ICC states partiesthat have been demanding for several years that itproduce tangible legal results. Convictions of theCongolese suspects, the Prosecutor expects, will allowhim to use the Bashir case symbolically to gaininternational legitimacy by pursuing a sitting head ofstate and to build stronger relations with the SecurityCouncil and key states such as the US. As thedifficulties with the Lubanga case so far highlight,however, the Congolese cases may not be asstraightforward as the Prosecutor expects. Failure tosecure convictions in any of these supposedly ‘easier’cases will increase international pressure on the OTPto achieve the highly unlikely result of a trial – andconviction – of Bashir. Without success in the Congocases, the Prosecutor’s calculated risk in pursuingBashir could backfire badly.1. Whether the evidence is sufficient to ultimately convict Bashir isan entirely separate question; the key for the moment is that theProsecutor is convinced that it justifies a warrant for Bashir’sarrest.2. Office of the Prosecutor, “ICC Prosecutor confirms situation inGeorgia under analysis”, ICC-OTP Press Release, ICC-OTP-20080820-PR346 ENG, 20 August 2008,http://www.icccpi.int/press/pressreleases/413.html&l=en.3. While a Congolese national, Bemba is charged with crimescommitted in CAR.Dr. Phil Clark is a research fellow in courts and publicpolicy at the Centre for Socio-Legal Studies, Universityof Oxford, and convenor of Oxford Transitional JusticeResearch: philip.clark@csls.ox.ac.uk.The move against Bashir is intended to show that theICC is willing to pursue difficult cases of high-rankingofficials and to regain some of the legitimacy that theCourt has lost in Uganda and the DRC. TheProsecutor’s strategy is to secure results by convictingthe four Congolese suspects currently in custody –cases he believes are relatively straightforward, giventhe extensive evidence gathered against them by theOTP and the DRC and Central African Republic (CAR)governments. 3 Successes in these cases will secure


DARFUR, BASHIR AND THE INTERNATIONAL CRIMINAL COURT . 85Head of State Immunity and the ICC:Can Bashir be Prosecuted?Pondai Bamu1 August 2008The ICC Prosecutor’s request for an arrest warrant forthe President of Sudan, Omar al-Bashir, raisesimportant issues for transitional justice scholars andpractitioners. One important issue concerns theextent to which the ICC should operate strictly in theinterests of justice to the detriment of the interestsof peace. The view of the ICC Prosecutor, as stated inhis office’s policy paper on the interests of justice, isthat the ICC is not concerned with the interests ofpeace but justice. 1 However, my main concern here isnot whether the case actually will take place andnothing will happen, as adequately addressedpreviously in this debate by Phil Clark. Rather, Iexplore here what might happen if the ICC judgesgrant the arrest warrant and the trial proceeds.In the first instance, the ICC must determine whetherthe immunity of a head of state constitutes a defenceat all. Article 27 of the Rome Statute establishing theICC holds that neither the immunity of a head ofstate nor the official position of a suspectedinternational criminal will bar the Court fromexercising its jurisdiction. Even though this position islaudable, it can face practical and pragmaticdifficulties, as highlighted in the Sudan situation. Thisposition also differs significantly from the traditionalinternational legal position on immunity. Customarylaw on the immunity of heads of state andgovernment stipulates that a head of state hasimmunity, which includes personal inviolability, specialprotection for his or her dignity, immunity fromcriminal and civil jurisdiction, and from arrest and/orprosecution in a foreign state on charges concerningall crimes, including international crimes. The RomeStatute therefore constitutes a break from traditionalinternational law.The Arrest Warrants case at the International Court ofJustice (ICJ), as well as the Tachiona case in the UScourts, are informative on this. In the Arrest Warrantscase, the ICJ held that Foreign Affairs Ministers enjoyfull immunity from criminal jurisdiction andinviolability while in office since this immunity isimportant for the exercise of their duties. Thisimmunity ensures that Foreign Affairs Ministers cantravel without hindrance in the performance of theirduties. Heads of state are by nature of their officerepresentatives of the state wherever they are andalso enjoy this immunity. Even though the case beingdealt with in the Arrest Warrants case concerned aForeign Affairs Minister, the same immunities wouldbe accorded heads of state. This immunity is onlyfunctional, since it accords heads of states freeexercise of their duties in representingtheir state. The Tachiona case in the US courts dealtwith torture and civil action against the Mugaberegime for having tortured Tachiona’s family inZimbabwe. Following the precedent in the ArrestWarrants case, the US courts held that a sitting headof state has immunity from criminal and civilproceedings abroad. However, the Arrest Warrantscase dealt with criminal or civil prosecution in anational court, not an international one.Should the same principles apply to an internationalcourt? On any reasonable interpretation of the RomeStatute, the same principles do not apply to the ICC.What are the consequences therefore of such a policyof prosecuting even sitting heads of state andgovernment and stripping them of their immunity,which is regarded as important for the exercise oftheir duties? If the ICC Prosecutor had sought thearrest warrants when Bashir had left office, thatwould have been a different issue. But right nowBashir is still in office, and notwithstanding therepercussions for the Darfur peace process, is such agamble likely to succeed even if the warrants areissued and Bashir is taken to the ICC?Many practical difficulties exist. It is doubtful whetherany state can arrest Bashir without violating theinternational law on immunity, which means that thesupport of other states in arresting Bashir will beunlikely. The ICC relies on states to enforce andimplement its warrants. The failures in arresting theLord’s Resistance Army leader Joseph Kony areinstructive here. The ICC has not been able to bring


86 . DEBATING INTERNATIONAL JUSTICE IN AFRICAKony to The Hague because of the failure tophysically arrest him. One wonders if it would beeasier to arrest Bashir. It seems the ICC has learntlittle from its experiences in the Uganda situation.The ICC itself is based in the territory of anotherstate. Whether the Netherlands, where the ICC ishoused, would violate its international legalobligations by allowing the ICC to go ahead andprosecute a sitting president who has immunity withinits territory is also yet to be seen. Even thoughscholars and commentators have challenged thisposition on immunity, in terms of law and theprecedent set by the Arrest Warrants case, for thetime being the position stands that a sitting head ofstate is immune from prosecution and/or arrest in theterritory of another state. The ICC often overlooksthat, even though it is an independent court, itoperates within the comity of states, which haverules that pre-date the ICC.Most likely, the ICC Prosecutor did consider all ofthese eventualities. If so, then, why did he seek thewarrant for Bashir’s arrest and also publicise the fact?One is tempted to arrive at the conclusion that theICC Prosecutor is playing politics rather than law – inan attempt to intimidate Bashir into faster negotiationof a peace deal and resolution of the Darfur conflictand possibly handing over the other two suspectsfrom Sudan. The ICC is also playing politics by tryingto force the Security Council into engaging fully inSudan to end the conflict. The Security Council has sofar exhibited very little political will to involve itselfwholeheartedly in resolving conflict in Sudan – hence,the referral to the ICC, the mere support role playedby the UN in assisting the African Union force, andthe continued debate over whether the violence inDarfur constitutes genocide. This is a gamble by theProsecutor, and whether it will trigger the SecurityCouncil’s full engagement remains unclear. It isinstructive that while the ICC includes genocide on itslist of crimes allegedly committed in Darfur, the UNhas not considered the crimes as genocide on thegrounds that there is no genocidal “intent”. Eventhough some members of the UN, particularly the US,have publicly referred to the crimes committed inSudan as genocide, there has not been in the UNSecurity Council or General Assembly a responseworthy of the crime of genocide. The Security Councilhas not invoked its powers under Chapter VII of theUN Charter to protect a people in danger from itsown government and to maintain peace and securityin Sudan. There has not been the sense of urgencythat a response to genocide necessitates.Clark is right in saying that nothing will happen, if“nothing” refers to “nothing judicial”. If the ICCProsecutor’s gamble is to yield results, thensomething political will have to happen. Bashir willhave to seek a quick end to the conflict by expeditingthe peace process, and the Security Council will haveto move faster than it has so far. That is hoping thatboth Bashir and the Security Council take theProsecutor seriously – otherwise, one can concludethat nothing political will happen either.1. International Criminal Court-Office of The Prosecutor, Policy Paperon the Interests of Justice, September 2007Pondai Bamu is an LLM Human Rights Law student atthe Transitional Justice Institute, Ulster University:bamujeef@yahoo.com.


DARFUR, BASHIR AND THE INTERNATIONAL CRIMINAL COURT . 87The Bashir Indictment: Are ServingHeads of State Immune from ICCProsecution?Dapo Akande30 July 2008If the Sudanese President Omar al-Bashir is indictedby the International Criminal Court, it will not be thefirst time that an international tribunal has indictedand issued an arrest warrant for a serving head ofState. The International Criminal Tribunal for theformer Yugoslavia (ICTY) indicted Slobodan Milosevicwhilst he was still the head of State of the FederalRepublic of Yugoslavia. Likewise, the Special Court forSierra Leone (SCSL) indicted and issued an arrestwarrant for Charles Taylor while he was President ofneighbouring Liberia. However, in both of thesecases, custody of the accused was only secured afterthey had been removed or stepped down from power.Thus their trials commenced when they were formerheads of State.The question arises whether an international criminaltribunal can indict, issue arrest warrants for, orprosecute a serving head of State. It is generallyaccepted that under international law, serving headsof State are immune from the jurisdiction of otherStates. Therefore, they are not subject to arrest orthe criminal processes of other States. This immunityfor serving heads of State is a right which accrues notto the individual but to his or her State. The reasonfor the immunity is that the effective conduct ofinternational relations requires that those seniorofficials charged with the conducting of thoserelations be able to travel freely and without otherStates’ harassment. The International Court of Justice(ICJ) has ruled that this immunity is absolute and thatserving heads of State, heads of Government andforeign ministers may not be prosecuted in foreignnational courts or arrested abroad even when chargedwith international crimes. This was the decision in theArrest Warrant case (2002) which concerned whetherBelgium could issue an arrest warrant for the thenforeign minister of the Democratic Republic of Congowith respect to war crimes and crimes againsthumanity. However, in that same case, the ICJ wenton to say that immunity does not mean impunity andsuggested that serving heads of States may beprosecuted before “certain international tribunals”,referring to the ICC as well as other tribunals. Inparticular, the ICJ referred to Article 27(2) of the ICCStatute which provides that:Immunities or special procedural rules which mayattach to the official capacity of a person,whether under national or international law, shallnot bar the Court from exercising its jurisdictionover such a person.Whether or not a serving head of State has immunitywith respect to prosecution by the ICC hassignificance for the Bashir case at two levels. First,the competence of the ICC to issue the arrest warrantand to actually prosecute depends on a finding thatBashir is not immune before the ICC. Second, andperhaps as importantly, whether or not Bashir isimmune affects the obligations of States parties tothe ICC to arrest him and surrender him to the ICC ifhe were to come within their territory. If Bashirretains his immunities under international law thenother States are not entitled to arrest him if he is ontheir territory. Indeed Article 98(1) of the ICC Statuteprovides that:The Court may not proceed with a request forsurrender or assistance which would require therequested State to act inconsistently with itsobligations under international law with respectto the State or diplomatic immunity of a personor property of a third State, unless the Court canfirst obtain the cooperation of that third Statefor the waiver of the immunity.However, one may not read too much into thedecision of the ICJ in the Arrest Warrant case when itspoke of prosecutions before certain internationaltribunals. There is no general principle that servingheads of States possess immunity only beforenational courts and that they do not have immunitybefore international tribunals. The statement thatinternational law immunities do not apply beforeinternational tribunals must be read subject to the


88 . DEBATING INTERNATIONAL JUSTICE IN AFRICAfollowing conditions. (i) The instruments creating orconferring jurisdiction on the tribunal must expresslyor implicitly remove the immunity of the head ofState or other official. (ii) The State concerned mustbe bound by that instrument removing the immunity.The argument that as a general matter internationallaw immunities only apply before national courts andnot before international tribunals is unpersuasive. Itsuggests that two States may combine to create, bytreaty, an international tribunal to prosecute the headof State of another State. That would be regarded asuntenable as those States would simply be gettingaround a constraint that would exist if they actedindividually, in order to override rights conferred on athird State. It is difficult to see why it makes adifference if there are 60 States (as required for theentry into force of the ICC Statute) or 106 (as arecurrently parties to the Statute). The AppealsChamber of the ICTY (in Prosecutor v. Blaskic case)accepted that international law immunities can bepleaded before an international tribunal. TheChamber was not talking about immunity from thecriminal charges in question but rather aboutproduction of documents and other official acts.Nonetheless, the point is that they accepted thatindividuals can be immune from the jurisdiction ofinternational tribunals; hence the immunity issuearises there.The second condition stipulated above suggests thatArticle 27 of the ICC Statute which removes immunityof serving heads of States is only effective regardingheads of States that are parties to the Statute. Nonpartiesremain entitled to the immunities that theywould possess under customary international law.This is because the immunity is a right of the Stateand not that of the individual. Other States cannotremove that immunity or affect the right of that nonpartyby a treaty to which the State possessing theimmunity is not a party. Sudan is not a party to theICC Statute and the Court has jurisdiction over thesituation regarding Darfur by virtue of a SecurityCouncil resolution (SC Res 1593).Does all this mean that Bashir is immune from ICCjurisdiction? No, it only suggests that there is aserious issue to be discussed. Under customaryinternational law as well as under Article 98 of theICC Statute, the immunity of non-party States is to berespected both by the ICC and by ICC States partiesseeking to carry out arrests. However, the question iswhat happens when the head of State of that nonpartyis sought by the Court as a result of a SecurityCouncil referral. Neither the ICC Statute nor theparticular resolution by which the Security Councilreferred the situation in Darfur to the ICC explicitlydeals with this question.It is generally accepted that the Security Council inthe exercise of its powers under Chapter VII of theUN Charter is competent to remove the immunity ofserving heads of State. This follows from the fact thatthe Security Council may affect the rights of Stateswhen taking measures under Chapter VII which itdeems to be necessary for the maintenance ofinternational peace and security. Ultimately thatremoval of immunity is based on being a party to theUN Charter and accepting the binding authority ofthe Security Council under Chapter VII. The questionis whether the Security Council has removed theimmunity in the Bashir case. When Milosevic wasindicted it was assumed that the Security Councilresolutions which embodied the Statute of the ICTYand which required cooperation by the FederalRepublic of Yugoslavia had removed any immunities.There are three possible ways of arguing that Bashiris not immune despite the fact that Sudan is not aparty to the Statute of the ICC.(i) There is a good argument to be made thatwhenever the Security Council refers a situationto the ICC, the State concerned is bound by theprovisions of the Statute as if it were a party tothe Statute. This argument suggests that theprovisions of the Statute (including Article 27)operate in the same way regardless of how theCourt acquires jurisdiction over the case;(ii) It may be argued that when the Security Councildecided in Resolution 1593 (operative para. 2)that the Government of Sudan must cooperate


DARFUR, BASHIR AND THE INTERNATIONAL CRIMINAL COURT . 89with the Court that this provision includes alifting of the immunity.(iii) It could be argued that in cases where anaccused before the ICC is charged with genocide(as Bashir is) and the case comes by referralfrom the Security Council, the GenocideConvention 1948 lifts immunity. This argumentdraws on Articles IV and VI of the GenocideConvention. The former provision says thatpersons committing genocide shall be punishedeven if they are constitutionally responsiblerulers. The latter provides that such prosecutionsare to take place either before the nationalcourts of the country where the genocideoccurred or before an international penal tribunalwith respect to which the State has acceptedjurisdiction. Although Sudan has not acceptedICC jurisdiction, the ICJ has held in the GenocideConvention case (Bosnia v. Serbia) that the ICTY(which was created by Security Council resolutionand not by treaty) falls within the scope ofArticle VI of the Genocide Convention because ofthe obligations that States have accepted underthe UN Charter. Precisely the same argumentcould be made regarding the ICC in cases wherethe Security Council has referred the situation tothe Court.Dapo Akande is University Lecturer in PublicInternational Law and Yamani Fellow at St Peter’sCollege, University of Oxford. His publicationsinclude (i) “The Jurisdiction of the InternationalCriminal Court over Nationals of Non-Parties”,(2003) 1 Journal of International Criminal Justice618-650 for which he was awarded the PremioRegione Toscana Giorgio La Pira Prize in 2003; and(ii) “International Law Immunities and theInternational Criminal Court”, (2004) 98 AmericanJournal of International Law 407-433.


90 . DEBATING INTERNATIONAL JUSTICE IN AFRICAPARTTHREEThe Politics of Violenceand Accountability in KenyaThe Normalisation of ViolenceDaniel Branch17 July 2009Writing more than twenty years ago about Idi Amin’sUganda, Ali Mazrui observed that:Everyone was talking about the tyrant. Isuggested that more people had died in thesecond half of the Amin years as a result ofanarchy than as a result of tyranny. Many of thekillings were not orchestrated orders from thetop. Soldiers perpetrated them in night clubs, atroad-blocks, in the villages. Yet the cases due toanarchy were not conspicuous politicalsignificance. They were cases of a basic moralcollapse among those who wielded weapons. 1While the labels of ‘anarchy’ and ‘tyranny’ do notapply to the Kenyan case, Mazrui’s underlyingargument does. Much of the attention of the media,civil society and donors has focused on the behaviourof elites in the run-up to, and the aftermath of, the2007 elections. Too little time has been spentexamining why it was hundreds of ‘ordinary’ Kenyans,be they police, members of militias or simplymembers of the public, perpetrated acts of violenceagainst other Kenyans.Until sustained fieldwork or investigations areundertaken during which the motivations and actionsof perpetrators of the violence of 2007-8 arediscussed with the perpetrators themselves, then anyinferred motives remain mere speculation. However,recent research into participation in civil warssuggests that any attempt to impose upon a wide anddiverse body of individuals singular explanations fortheir actions is myopic. Participants in politicalviolence, such studies suggest, act for very manymore reasons than simply their membership inparticular social groups. Indeed, there can be as manycombinations of causes of violence as the number ofindividual perpetrators. 2 Identifying just one cause ofthe violence, be it corruption, ethnicity, inequality,demography or political ideology, is unlikely tocapture the complexity or reality of the nature of theviolence witnessed after the 2007 elections.Any debate about political violence and its preventionin future must go beyond a simple discussion offormal politics and state institutions. The emphasisgiven to the prevalence of violence within the realmof high politics misses a broader point about theprevalence of violence within society more generally.To return to Mazrui’s arguments about Uganda, hesaid that in the aftermath of Idi Amin’s downfall, ‘wewere not, as yet, thinking at all about how to dealwith the society’s moral collapse. We kept on thinkingabout how to deal with bad governments. At somestage one has to begin to worry about alternativeideas for the self-discipline of the country.’ 3 Whileagain Mazrui’s exact terminology may not sitcomfortably in this case, his argument should providecause for thought on the part of any individualinterested in contemporary Kenya.Put simply, Kenyans have become accustomed toendemic social and political violence. In the weeksand months prior to the 2007 elections, significantviolence occurred on Mount Elgon and in Molo.Similarly, the state and Mungiki became embroiled ina bitter conflict in Nairobi and its periphery. Yet suchincidents were generally treated as localisedphenomena and caused little of the more generalintrospection and alarm that greeted the violencethat was to come. In this way, the public reaction tothe pre-election violence of 2007 resembled that tothe long-running insecurity in the borderlands to thenorth and west. Incidents of violence there are givenbarely a second thought by most residents of themore densely populated areas of the country’shighlands. They do, however, worry a good deal, and


THE POLITICS OF VIOLENCE AND ACCOUNTABILITY IN KENYA . 91have reason to, about the high rate of violent crime.In 2004, Kenyans respondents to the Afrobarometerwere more fearful of crime than any of theircounterparts from 14 other countries. Kenyans (withZambians) were the most likely to have experiencedproperty theft. Moreover, after Nigerians, Kenyanswere the most likely to have experienced physicalviolence. 4That violence is often suffered in the home andfrequently in the form of sexual violence. Accordingto Kenyan government statistics published in 2003,half of all Kenyan women were thought to have beenvictims of sexual violence during their adult lives. 5And violence is clearly visible in other social settings,such as schools, which experienced their most recentbout of recurrent rioting a year ago, and universities.Generally considered to be distinct from one another,these different forms of violence need to beconsidered collectively alongside political violence ifKenyans are to enjoy a more peaceful future. Derivedfrom a range of historical causes, which certainlyinclude colonialism, violence has become a wellestablishedmeans by which power and authority inKenya is contested in a variety of settings. That itshould have been used to dispute or assert the claimsto presidential office is not then surprising. Efforts toprevent future recurrences of political violence mustthen also address the wider prevalence of violencewithin society at large.should shame their political leaders into constructivemeasures to avoid a repeat of the bloodshed in 2012.1. Ali A. Mazrui, ‘Is Africa Decaying? The View from Uganda’, inHolger Bernt Hansen & Michael Twaddle (eds), Uganda Now:Between Decay and Development (James Currey, London: 1988),352-3.2. Stathis Kalyvas, The Logic of Violence in Civil War (CambridgeUniversity Press, New York: 2006).3. Mazrui, ‘Is Africa Decaying’, 353.4. Michael Bratton et al, ‘Afrobarometer Round 2: Compendium ofComparative Results from a 15-Country Survey’, AfrobarometerNetwork working paper no.34, 25 (available athttp://www.afrobarometer.org/papers/AfropaperNo34.pdf).5. IRIN, ‘Kenya: Sexual and Domestic Violence Prevalent’, 27 October2005 ( http://www.irinnews.org/Report.aspx? ReportId=56856).Daniel Branch is an assistant professor in history atthe University of Warwick. He is the author of theforthcoming Defeating Mau Mau, Creating Kenya:Counterinsurgency, Civil War, and Decolonization,which will be published by Cambridge UniversityPress later this year. He is currently writing apolitical history of post-colonial Kenya, to bepublished by Yale University Press in 2011.Despite the tone of this piece so far, returningattention to the grassroots provides reasons foroptimism as well as alarm. Policy-makers andrepresentatives of civil society should speak to thethousands of Kenyans who chose to not participate inthe violence of 2007-8. It is easy to lose sight ofsuch individuals in the rush to establish whathappened in those tumultuous weeks. Yet it shouldnot be forgotten that unknown numbers of Kenyanschose not to take up arms against their neighboursand offered assistance of all kinds to those in peril.By a whole range of actions, from donations to theRed Cross through to providing shelter to those madehomeless, ordinary Kenyans acted in a fashion that


92 . DEBATING INTERNATIONAL JUSTICE IN AFRICADIY Violence is Corrosive ofNationhoodDaniel Waweru17 July 2009It is not often that participants in ethnic cleansingconfess to it openly, but William ole Ntimama hasmanaged it twice: in a 1996 interview, and morerecently. The brazenness of the impunity is revolting:it is natural to want accountability and reform, andequally natural to think we can have both. This,unfortunately, is a bit of a farce: stable reform andcalling the violent to account are incompatible. Thekey is to see that the main strand of political violencein multiparty Kenya is unified by a stable and clear setof aims: majimboism, understood to mean theKenyan form of exclusive ethnic federalism whichfinds its most fervent advocates in Rift ValleyProvince’s political class. In the 1990s, the violencewas driven and supported by the majimboistcontrolledstate; it didn’t require mass mobilisation.2007 was a genuine departure because the extentand intensity of majimboist violence demonstratedthat communal mobilisation for violence is aneffective substitute for state support. Thebeneficiaries have no incentive to give it up, andevery incentive to avoid the consequences of pastviolence by holding onto power. Since theirparticipation is necessary for reform, we can haveeither reform or accountability but not both.My first task is to show that despite appearances(diversity of actors) the violence was actually unifiedin aim. The argument is simple: Rift Valley province isthe centre of political violence in multi-party Kenya.The easy metric is deaths: even in 2007, when theviolence is supposed to have been much betterspread, 65% (744/1133) of recorded murdershappened there (Waki: 309). We’re now eighteenyears into the violence: it has broken outintermittently since 1991. Prolonged violence of thissort – locally specific, ethnically targeted, lethal, andcarried out by a number of coordinated small groups– is organized and backed by some sort of ideologicalstructure. That follows from the fact that mostunplanned violence is difficult to start or maintain,tends to be brief, and is usually non-lethal (Collins2008: 14-16). The exceptions to the rule of brevity(for small-group violence) occur where:either (a) the fight is highly circumscribed, sothat it is not really “serious,” or it is clearlyunderstood that there are safeguards to limit thefighting; or (b) the type of exception describedby the expression “hitting a man when he isdown” (although the victim may well be awoman or a child), where in effect there is noreal fight but a massacre or punishment (Collins2008: 16).Repeated bouts of this kind of sustained lethalviolence require planning and preparation; planningand preparation for violence require coordination andjustification, and hence institutionalisation. Thejustification is fairly clear: a middle-aged maninterviewed by Al-Jazeera in Kibera, and Jason Kosgeiin the Christian Science Monitor, gave almost identicalanswers: the violence was to end state-backed Gikuyudomination, which had begun with Kenyatta andnever ended. As Lynch 2008 reports (Lynch 2008:567), a significant portion of Kalenjin backed theviolence, and have fairly specific reasons for doing so.Those reasons aren’t significantly different from thosereported in Multiparty Politics in Kenya: In 1992,Biwott promised that non-Kalenjin trading licenceswould be revoked, and Lotodo demanded that allGikuyu leave West Pokot (Throup and Horsnby 1998:543). Then, as now, the immediate aims of theviolence – to remove non-Kalenjin from the RiftValley, and to place the remainder, if any, in asubordinate and dependent position – were clear.The state did outsource violence in the 1990s; muchless so afterwards. Why? In the face of the state’ssignificantly increased capacity for repression (Branchand Cheeseman 2008: 20), why was the violence somuch worse in 2007? And why was violence muchbetter controlled in the 1990s than it was later? Mostanalyses of the violence have proceeded byidentifying the actors, on the reasonable assumptionthat pinpointing the actor is a good proxy forpinpointing the motive. Going directly to motives,


THE POLITICS OF VIOLENCE AND ACCOUNTABILITY IN KENYA . 93however, has some explanatory advantage: itpromises informative answers to each of thosequestions.Susan Mueller’s The Political Economy of Kenya’sCrisis may be the most comprehensive analysis of theunderlying causes of the post-election violence. Herargument is pretty much that three factors –privatized, diffused, extra-State violence; ethnicclientelist parties; and the high-stakes prize of theImperial Presidency – conjoined (with a very closeelection) to blow things up in 2007. The obviousresponse is to ask why nothing similar happened in1997, and why all the factors she mentions arestructural: the explanation, as given, would still workif the agents were switched. Every factor she lists waspresent then – if anything, the Presidency was evenmore imperial, the ethnic clientelist parties even moreintensely ethnocentric. Yet there was relatively littleviolence around election time in 1997: most of theviolence came well before or well after polling day. Inparticular, the announcement of the results in 1997 –results which in several cases were known to beentirely fraudulent – passed without incident.This lack of specificity leaves the analysis lesscompelling than it might be; nowhere more so thanher analysis of the state’s cession of its monopoly ofviolence. It is one thing to observe that the stateoutsourced violence; quite another to ignore the factthat the first Kibaki administration sought, verycrudely, to re-establish the monopoly of violence. It ismore accurate to attribute the cession of the state’smonopoly of violence to the Moi state – the state inthe hands of the majimboist faction. That move –appeal to the motives of the faction in control of thestate, rather than the state itself – explains why thestate acted so differently either side of 2002, and itoffers a direct explanation for the state’s choice andmethod of outsourcing violence. Moi’s outsourcing ofviolence in the 1990s is often explained as apragmatic choice: irregular gangs and militias areuntraceable; in employing them, the state got itsextra-legal coercion done while minimizing itsexposure. This is utterly unconvincing. A quick flickthrough the Akiwumi report demonstrates that civilservants openly participated in the violence. NicholasMberia – then the District Commissioner in Kericho –and 29 APs in his command violently evicted tenantsfrom Buru farm on the morning of 13 December1993. Not long after, he was promoted to ProvincialCommissioner, Rift Valley Province. Several witnessesto the evictions in Enoosupukia testified that theNarok County Council wildlife ranger Johnson olePunywa shot dead three residents. He too was laterpromoted. (Klopp 2001: 496). If the point ofoutsourcing violence was to conceal the state’s hand,then the state made a fearful mess of it. It’s likelierthat the outsourcing of violence was driven, at leastin part, by ideological motives – the drive to weakenand personalize the centre of the state, whilestrengthening the majimboist periphery.Branch and Cheeseman account for the upsurge inviolence by appeal to elite fragmentation. That’s anecessary rather than a sufficient condition.Remember that what’s wanted is an answer to whythe violence crossed a certain threshold – why itescaped control of the state.Without an underlying capacity for violence, elitefragmentation need not have violent consequences,and it certainly need not have consequences soviolent that the state struggles to control them.Appeal to a generalised diffusion of violence is nearerthe mark, but it still underdetermines the quality ofthe violence in the Rift Valley: if elite fragmentationwere sufficient to explain the escape of the violencefrom state control, then that would have happened inmore than one place. It didn’t, so it isn‘t. Capacity forviolence matters; appeal to majimboist motives issufficient to predict it.After nearly 20 years or so of intermittent ethnicviolence with zero consequences, with and withoutstate support – and since much of the Kalenjinpolitical class (and William ole Ntimama) is on boardwith the violence – it is difficult to avoid theconclusion that the violence has communal approvaland support (Lynch 2008: 566-7; Ashforth 2009: 16).Some significant proportion of Kalenjin opinionleaders outside the political class – the rural middle


94 . DEBATING INTERNATIONAL JUSTICE IN AFRICAclasses, in particular – have been radicalised. Thathas been a necessity: when the violence had statesupport, it did not need communal mobilisation, andthere was no need for the ideological backing.Absent state support, communal backing is necessary:the violence has become more ideological as it hasbecome more popular. The balance of power is suchthat Kalenjin opinion leaders who support ethnicviolence, and the majimbo project which justifies it,lack effective internal constraints.The view that majimboist violence is driven by eliteincitement is false: rather, majimboist aims are nowwidely popular outside the political class, and arecaptured by it (Ashforth 2009: 18-19). Majimboistswilling to resort to violence are well-mobilisedbecause they’ve had to be: without state patronage,the fervour of their cause has had to cover for theorganizational goodies the state would have brought.The underlying strategy of reform-by-coalitiongovernmentin Kenya is to get the big beasts of thepolitical jungle into government, so that they’re allbought into the new constitutional order. If they areto feel invested, they must be free to manoeuvre; formajimboist politicians, that freedom of action isdirected, as it must be, to avoiding accountability forthe violence. There can be no new constitutionalorder without majimboist involvement; since most ofthe violence has been in majimboist areas,accountability and reform are incompatible.Randall Collins (2008). Violence: A Micro-sociologicaltheory. Princeton: PrincetonCommission of Inquiry into Post Election Violence(2008). Report of the Commission of Inquiry intopost-election violence (“Waki”). October 15 2008. (08 July 2009).Jacqueline Klopp (2001). “Ethnic Clashes’ andWinning Elections: The Case of Kenya’s ElectoralDespotism.” Canadian Journal of African Studies,35(2): 17.Gabrielle Lynch (2008). “Courting the Kalenjin: Thefailure of dynasticism and the strength of the ODMwave in Kenya’s Rift Valley province.” AfricanAffairs, 107(429): 541-568.NTV Kenya (2008). “William ole Ntimama WarMonger or responsible minister?“ 24 July 2008.(08 July 2009).David Throup, Charles Hornby (1998). Multi-partyPolitics in Kenya. Oxford: James Currey.Akiwumi Judicial Commission of Inquiry on TribalClashes (1999). Report of the Judicial Commissionappointed to inquire into tribal clashes in Kenya:Rift Valley. Date of publication unclear. (08 July 2009).SOURCESAdam Ashforth (2009). “Ethnic Violence and theProspects for Democracy in the Aftermath of the2007 Kenyan Elections.” Public Culture, 21(1): 9-19.Daniel Waweru is the Chief Editor of KenyaImagine.Shashank Bengali (2009). “One year after themassacres, Kenya’s runners reflect.” The ChristianScience Monitor, February 25, 2009 (8 July 2009).Bill Berkeley (1996). “An Encore for Chaos?“ TheAtlantic Monthly, February 1996. (08 July 2009).


THE POLITICS OF VIOLENCE AND ACCOUNTABILITY IN KENYA . 95Kenya Post-2008: The Calm before aStorm?Gabrielle Lynch17 July 2009Nineteen months have passed since Kenya’s contested2007 election, when the rapid re-inauguration ofPresident Mwai Kibaki heralded an outburst of postelectionviolence – characterised by targeted attackson ethnic ‘others’, an overzealous state securityresponse, and retaliatory attacks on ‘aggressor’communities – which left over 1,000 people dead andmore than 350,000 displaced. The violence ended inFebruary 2008, when a coalition government wasformed, but ‘deep peace’ remains elusive and reformsunlikely. What is left is only rhetoric differentiatingthis administration from post-Mau Mau amnesia andinvestigative committees without reforms, as after the‘ethnic clashes’ of 1991-1993.Bloated, divided, racked by corruption scandals andlacking a clear policy agenda, the coalition’s responseto the immediate humanitarian crisis was inadequate.IDPs were moved to unmanned ‘satellite camps’without concerted efforts to reconcile them with formerneighbours, amid threats of violence and corruptdistribution of a paltry KSHS 10,000 ‘compensation’.The government has responded to underlying causesby establishing four commissions: an IndependentReview Commission to examine the electoral process(Kriegler Commission); a Commission of Inquiry intoPost-Election Violence (Waki Commission); aConstitutional Review Commission (CRC); and Truth,Justice and Reconciliation Commission (TJRC).In theory, such inquiries can play an important role,providing a public account and acknowledgement ofthe past, which may be cathartic and provide somesolace. Thus, the Waki Commission has beencommended for its criticism of state security servicesand politicians, and attention to underlying issues ofimpunity, poverty, underemployment and the ‘landissue’. Much more importantly, commissions can makerecommendations – yet, while Kenya has held manycommissions, successive governments have usuallyfailed to introduce any suggested reforms.Unfortunately, this record continues. The most notableabsence is of a Special Tribunal – recommended bythe Waki Commission to investigate 10 individuals whomay have incited, organised and/or financed theviolence – with the threat that the ‘list’ would go tothe International Criminal Court (ICC). However, in June2009 the government agreed to a tribunal by July2010, which renders any high-level prosecutions priorto the 2012 election campaigns extremely unlikely,while few citizens or police officers have been chargedor even investigated.Unfortunately, the CRC seems set to suffer a similarfate to its predecessor; especially its continuedunwillingness to address why Kenyans are divided oncertain issues, such as the benefits, dangers andmeaning of devolution. Consequently, there is heavyreliance on the TJRC to solve underlying issues.However, the TJRC suffers from a paucity of resourcesand a massive mandate, which includes the need toestablish an accurate, complete and historical recordof violations of human and economic rights inflictedby the state between December 1963 and February2008, a picture of possible causes, and investigatecorruption and irregular acquisitions of land. Thedanger is thus that the TJRC will add little to the‘truths’ established by earlier commissions, while theircollective recommendations are delayed until after thenext election or indefinitely. Added to this is adeteriorating security situation – with the police andmilitary increasingly acting as a law unto themselvesand spread of the mungiki model of gang crime andterror – while politicians seem blissfully unaware ofseething resentments or, more likely, believe that theycan use them to their own advantage.The unfortunate consequence is that violence, whilefar from inevitable, seems increasingly likely. At theheart of the problem lies a corrupt and tarnishedpolitical system characterised by an ‘ethnic logic’ ofpolitical mobilisation and support. To understand localpotential for violence one must recognise theinterplay between: a highly centralised system inwhich real power lies with the Office of the President;a lack of faith in key institutions (such as the anti-


96 . DEBATING INTERNATIONAL JUSTICE IN AFRICAcorruption and electoral commissions, parliament,judiciary and security services); a perception that thepost-colonial state is (and has been) ethnicallybiased; communal discourses of past injustice andmarginalisation regarding ‘lost lands’ and politicalpatronage; pressure on elites to present and furtherethnic claims; the use of inflammatory andchauvinistic or defensive ethnic language by politicalcandidates and local opinion formers; the use ofviolence as a political and economic strategy; aculture of impunity for corruption, ethnic incitementand organisation of violence; the subsequentnormalisation of violence; and finally, but not least,high levels of poverty, inequality, and un- (andunder) employment especially among the youth.Given this litany of interwoven factors and longstandingissues it is clear that far-reaching reformsare required. The most important of these are:(i) Institutional and constitutional reforms to reducepresidential powers and increase faith in keyinstitutions. The colonial administrationbequeathed a highly centralised system, whichrespective presidents have used in the name ofunity and development. This has encouraged anobsession with personalities as the problem andpotential salvation, and created a zero-sum gamewith all eyes on the presidency.(ii) The government needs to end the culture ofimpunity for participation in violence by policeand citizens, and the use of violence as apolitical strategy. Despite evidence that KANUpoliticians incited, organised and financed ‘ethnicclashes’ in the early 1990s, no investigationstook place. This history has encouraged anormalisation of violence, such that it isincreasingly part of political and socio-economicstrategies, and has spiralled out of control – asthe growth of ethnic militias (such as mungiki)prompts an increasingly violent state securityresponse, and yet more militia activity.(iii) Finally, the government must look beyondeconomic growth to realities of poverty andinequality along with perceptions of state biasand historical injustice. This requires much morethan donor rhetoric of ‘poverty reduction’ andpraise for impressive growth rates withoutnoticeable trickle-down, but also a deepunderstanding of the link between perceptionsof past and present injustice and thepoliticisation of ethnicity and the ethnicisation ofpolitics. At present, there is a tendency toexplain African politics by a simple ‘politics ofpatronage’, or the notion that politicians useethnicity to mobilise support and rewardsupporters with state largesse. While important,this narrative ignores bottom-up pressures andthe broader base of political accountability, andencourages a simplistic dichotomy between ‘bad’politicians and ‘good’ citizens. More specifically,this approach ignores ways in which narratives of‘shared pasts’ – of displacement, injustice,marginalisation and/or achievement – providepeople with a means to lay claims to ownershipand control of space, and rights to assistance.Too often ignored, this dynamic produces acomplex political terrain in which politicians useethnicity to mobilise support, and ordinarycitizens use communal discourses to furtherclaims to rights and resources.To tackle all of these areas in a coherent andaggressive manner is clearly no small task, especiallygiven the unwieldy coalition government, theworldwide recession, and competing claims toresources and representation. Nevertheless, theurgency for reform renders the government’s lacklustreperformance in all these areas a source of considerableconcern, as failing to deal with underlying problemsand new layers of grievance raises numerous reasonsto worry about future electoral cycles.Gabrielle Lynch is a Lecturer in Africa and the Politicsof Development in the School of Politics andInternational Studies, University of Leeds, and hasbeen conducting research on politics and ethnicity inKenya since 2003.


THE POLITICS OF VIOLENCE AND ACCOUNTABILITY IN KENYA . 97The Spectre of Impunity and thePolitics of the Special Tribunal inKenyaTim Murithi17 July 2009On 9 July 2009, Kofi Annan the former chief mediatorin the aftermath of Kenya’s post-electoral violence,transferred an undisclosed list of senior politicians tothe Prosecutor of the International Criminal Court,Luis Moreno-Ocampo. These politicians are alleged tohave committed crimes against humanity during thepost-electoral violence between December 2007 andFebruary 2008. What prompted Annan’s actions?The Office of the Special Adviser of the UnitedNations Secretary-General on the Prevention ofGenocide (OSAPG) has developed a framework ofanalysis which includes indicators regarding theproclivity to genocidal acts in a particular country.Among these indicators are the prevalence ofatrocities and extra-judicial executions, the presenceof illegal arms, armed elements formed around aparticular identity group, a break-down in inter-ethnicrelations and exclusionary political practices. However,the most salient issue that the OSAPG framework ofanalysis identifies is the persistence of impunity foratrocities committed, particularly those targetingparticular ethnic groups. As far as this framework ofanalysis is concerned, Kenya’s political situation,especially following the post-electoral violence of2007 and 2008, contains all of these indicators andmore. The question is therefore whether the currentclimate in Kenya can be described as one in which theproclivity towards genocidal acts remains high.In order to remedy this predisposition and the legacyof the crisis, the National Accord and ReconciliationAgreement was signed on 28 February 2008 betweenthe Party of National Unity (PNU) and the OrangeDemocratic Movement (ODM), following the Annanledmediation effort. This Agreement identified arange of measures that were necessary in order toprevent the future outbreak of inter-ethnic violence.The Commission of Inquiry into Post-Election Violence(CIPEV) also known as the Waki Commission produceda series of ‘recommendations concerning measures tobe taken to prevent, control, and eradicate similarviolence in the future; bring to justice thoseresponsible for criminal acts; eradicate impunity andpromote national reconciliation’. 1 The WakiCommission also recommended the establishment ofa Special Tribunal of Kenya to try suspected sponsorsand organisers of the post-electoral violence. Thiswould serve as an in-country legal framework for theadjudication and administration of justice for thealleged suspects and thus confront the spectre ofimpunity which threatens to foster future violence. 2Specifically, the Waki Report insisted that ‘it isimperative to guard against further encouragement ofthe culture of impunity by granting blanket amnestyto all and sundry in the post-election mayhem’. 3Astutely, the Waki Commission ensured that therecommendations in its report were accompanied bysunset clauses that would initiate consequences forinaction or intransigence. The Report stated that if‘an agreement for the establishment of the SpecialTribunal is not signed, or the Statute for the SpecialTribunal fails to be enacted’, then ‘a list containingnames of, and relevant information on, thosesuspected to bear the greatest responsibility forcrimes falling within the jurisdiction of the proposedSpecial Tribunal shall be forwarded to the SpecialProsecutor of the International Criminal Court’. 4 Thislist was in the hands of Annan who has now deliveredit to the Prosecutor of the ICC in The Hague.The Grand Coalition Government failed to establish aSpecial Tribunal when the proposed Constitution ofKenya (Amendment) Bill 2009 was defeated by 101 to93 votes in the Kenyan parliament, on 12 February2009. The deadline that the Waki Commissionstipulated had passed, but the Grand CoalitionGovernment did not seem capable of re-visiting theissue. A number of senior political figures in both thePNU and ODM camps have allegedly been implicatedin organising and instigating the post-electionviolence. Specifically, this included Kalenjin leadersfrom the Rift Valley Province who allegedly financedand organised pogroms against supporters of thePNU. It also included leaders in the Central Province


98 . DEBATING INTERNATIONAL JUSTICE IN AFRICAwho in retaliation allegedly organised and financedrevenge attacks on Kalenjin, Luo, Luhya and otherpro-ODM communities in the province. According toanalysts, Kenya politicians on both sides wereconcerned that the local tribunal would be open tomanipulation and therefore preferred the Hagueoption.The OSAPG framework of analysis also notes that atrigger event, such as an election, is often necessaryto unleash political tensions and to foment violentacts between people and ethnic groups. Theimpending Kenyan presidential and general electionsof 2012 may turn out to be the trigger event thatunleashes political violence on a scale not witnessedbefore in the country. Regrettably, a number of thecountry’s politicians believe that by frustrating theimplementation of the provisions of the NationalAccord and Reconciliation Agreement and the specificrecommendation to establish the Special Tribunal,they would improve their chances or those of theirco-conspirators to capture the presidency. However,there is still time to avert this scenario. In particular,the issue of impunity has to be addressed as a matterof urgency.4. The Waki Commission Report, p.473.Dr. Tim Murithi is Head of Programme at the Institutefor Security Studies Office in Addis Ababa, Ethiopia,and author of The Ethics of Peacebuilding (EdinburghUniversity Press); and The African Union: Pan-Africanism, Peacebuilding and Development(Ashgate). He has held posts at the Universities ofBradford and Cape Town, the UN Institute forTraining and Research and as a consultant for theAfrican Union.The failure of the Grand Coalition Government toestablish a Special Tribunal forced Annan’s hand. TheCoalition had continued to pay lip service to the needto end impunity without any genuine commitment topunishing those who were guilty of crimes againsthumanity. Several politicians argued that it wasnecessary to promote healing and reconciliationthrough the proposed Truth, Justice andReconciliation Commission rather than pursuingjudicial persecution. Others argued that theprosecutions would threaten the stability of thecountry, but this revealed a lack of understandingthat the short-term neglect of justice for the victimswould lay the foundation for future violence andinstability in the Kenya.1. Government of Kenya, Report of the Commission of Inquiry intoPost-Election Violence (CIPEV – The Waki Commission), Nairobi,Kenya, 2008, p.21-22.2. The Waki Commission Report, p.i.3. The Waki Commission Report, p.468.


THE POLITICS OF VIOLENCE AND ACCOUNTABILITY IN KENYA . 99Watu Wazima: A Gender Analysis ofForced Male Circumcisions duringKenya’s Post-Election ViolenceWanjiru Kamau-Rutenberg17 July 2009Stories of men being forcibly circumcised and evencastrated peppered news accounts of the madnessthat overtook Kenya in the aftermath of theDecember 2007 elections. 1 According to the Wakicommission that investigated the Post ElectionViolence (PEV), by January 2008 the ethnic militia ofthe Kikuyu ethnic group, Mungiki, used blunt objectssuch as broken glass to forcibly circumcise at leasteight men, some as young as eleven and five yearsold. 2 While exact numbers are hard to come by, onecan deduce that tens of men endured genitalmutilation during the first three months of 2008.Forced circumcisions were not new in Kenya. Therehad been previous reports of high school boys beingforcibly circumcised at school and the now infamousMungiki sect had made their mark on the Kenyanpsyche by forcibly circumcising Kikuyu women. Butthis seemed the first time that forced circumcisionwas being used as a political tool. It was beingdeployed as a weapon of inter-ethnic war.How can we understand the forced circumcisions inthe context of gendered and ethnic politics in Kenya?Better yet, what would a gendered exploration ofKenya’s PEV that placed these forced circumcisions atthe center of analysis look like? This question doesnot pre-suppose that others have not offered agendered analysis of those gory months in 2008.Indeed, many brilliant authors have written incisivereports focusing a keen eye on the varied forms ofbrutality that women especially endured. 3Still, I find that much of gender analysis today stillleans too heavily towards a discussion of women’sexperiences. While a focus on women has yieldedenormous insight into the ecology of gender, the waysociety’s power is distributed among the genders, westand to gain even more if we also pay attention tomen’s experiences. It is with this critique of the fieldthat I offer what I hope is a different kind of genderanalysis to Kenya’s PEV. Mine is a gender analysiscentered on men’s experiences.If we are to take seriously that gender is a socialconstruct that assigns different power values to themasculine while usually devaluing the feminine thenthere are some very serious gender implications forwhat happened in Kenya on those fateful days inearly 2008. I argue that a gendered analysis ofKenya’s PEV that centers on men’s experiences revealswhy all Kenyans, even men, should care about, andstruggle for gender equality. Indeed, the Kenyanexperience shows how, in a moment of politicaltension, anyone, even men, can be feminized, andonce that is achieved, brutalization and violation is aneasily justified next step.December school holidays bring with them a wave ofcircumcision ceremonies across many of Kenya’sethnic communities. Young men mark the verge ofadolescence with the cutting of their foreskin often inelaborate ceremonies. Often the rite of passage fromchildhood to adulthood begins with a sequesteringwhere the initiates are taught ‘how to be men’ andclimaxes with the ceremonial cutting. From theelaborate ceremonies in rural Kenya to the sterilesurgical cuts in genteel urban Nairobi, circumcision isa Kenyan institution with those few communities thatdo not practice it excluded in certain ways. It isimportant to note that among the first wave of riotersduring PEV in January were young Kalenjin men, whohad just completed their initiation rites in circumcisioncamps in Eldoret that December. Infused with anewfound sense of male identity, these young menrampaged through the Rift Valley province attemptingto cleanse it from ‘outsiders’ from other ethniccommunities. 4Circumcision in Kenya is more than a cultural act. Thepractice has a long political history. A quick glance atKenyan political history from colonialism onwardsshows that circumcision, both male and female, hasbeen wielded as a political tool during moments ofintense conflict. Circumcision, especially femalecircumcision, was deployed as a weapon of anticolonialstruggle. The country’s founding father, Mzee


100 . DEBATING INTERNATIONAL JUSTICE IN AFRICAJomo Kenyatta, wrote about it in glowing terms,deriding those communities that did not make men oftheir boys. Meru women hid and circumcised eachother when the practice was banned by the colonialBritish. President Moi’s insistence on banning femalecircumcision only served to drive it furtherunderground and throughout the cutting of genitalflesh has served as an act of resistance.Then Mungiki came. They wore dreadlocks, invokedMau Mau, inhaled tobacco snuff, and agitated for areturn to what they saw as the pristine original stateof Kikuyu natural identity. Kikuyu women became thetargets. They were not to wear trousers and thosewho did were stripped naked and beaten publicly.Stories began emerging of Mungiki forciblycircumcising Kikuyu women.Strangely, few spoke up. Some women’s rightsactivists protested, but within the larger publicsphere, in those early days, Mungiki was a Kikuyuproblem and only a menace to Kikuyu women.Then came those shocking days in early 2008 whenKenyans took to crude knives, seeking to make menof each other. Mungiki was at it again, only this timethe Kikuyu militia were circumcising Luo men,accusing them, as Kenyatta had alluded long before,of being mere boys. Circumcision was supposed torender them men. These circumcisions, of course,were torturous acts of violence that often turned outto be castrations calculated to kill their haplessvictims.whispered under Kikuyu breaths during thereferendum on the Draft Constitution, that Kenyacould not be led by mtu mzima. The Kiswahili term,meaning whole person or adult, was usedeuphemistically to refer to ODM’s leader Raila Odinga.The term was used as a double entendre in deridingOdinga, who, by virtue of being Luo, wasuncircumcised hence anatomically ‘whole’ while atthe same time pointing to the contradiction that hecould not be adult because he was uncircumcised.Interestingly, rather than challenge the discursiveprivilege accorded to circumcision as a measure ofmanhood, Odinga has continued to insist that he ishimself circumcised. He has also become one of thestaunchest advocates of circumcision as a method ofpreventing HIV/AIDS transmission in line with recentscientific findings.Once the construction of Luo men as feminine wasfirmly entrenched, there was almost no defenseneeded for brutalizing them. Gender theory andanalysis has shown that feminization comes beforebrutalization. For so long Kenyan society has failed toprotect its feminine dimension. Mungiki hadbrutalized Kikuyu women with forced circumcisionwith impunity for years. Society as a whole had neverspoken up. Not even those Kikuyu men who were notMungiki had seriously challenged Mungiki on theissue. The police barely acted on reports of womenbeing forcibly circumcised. Emboldened, it was only amatter of time before Mungiki wielded this weapon ofterror on other targets.Why did these Kikuyu men deploy the rhetoric ofcircumcision? What social context renderedcircumcision a resonant frame within which toarticulate their actions as part of the ethnic warfarethat was going on? It is here that gender analysishelps us understand that Mungiki were able to kill bycircumcision by first feminizing their victims.The construction of Luo men as feminine was aprocess that had begun long before in Kenya’s ethnicpolitics. This construction ranged from Kenyatta’srhetoric in newly independent Kenya to the murmurs,The forced circumcisions were not just acts ofviolence; they must be understood as occurringwithin the context of Luo feminization. Thisfeminization fit within the context of a biased historythat tells Kenya’s story as that of brave Kikuyuwarriors, the Mau Mau, who rescued the state fromits colonial masters. From this biased Kikuyuperspective, Kenya’s history has been told as a storyof Kikuyus as more hardworking than all the rest.Other ethnic groups are constructed as weaker,belonging less, having less of a stake in: as feminine.The forced circumcisions represented Kikuyu men


THE POLITICS OF VIOLENCE AND ACCOUNTABILITY IN KENYA . 101declaring that they wield a masculine power over thefeminized Luo men whose flesh they mutilated.When Mungiki started by forcibly circumcising Kikuyuwomen, men, especially Luo men, hardly thoughtthey had a stake in the issue. Gender is about theecology of power. The economy of gender functionsin ways that devalue the feminine even as itsimultaneously empowers the masculine. That was atthe heart of the forced circumcisions. The Kikuyu menwere, at the moment of violence, rendering their Luovictims feminine. Unless we understand how thisprocess works, how the feminine is automaticallyweaker and of less value, we remain a long way fromachieving true gender equality. This is why, allKenyans, even men, should care about issues ofgender.Dr. Wanjiru Kamau-Rutenberg is an assistantprofessor in the Politics department at the Universityof San Francisco. Her research and teaching interestscenter on issues of gender, women’s politics, ethnicpolitics, and human rights and she is currentlywriting a book on the impact of ethnic politics onthe struggle for women’s rights legislation in Kenya.She is also the founder and executive director ofAkili Dada, an international NGO empowering thenext generation of Kenyan women leaders(www.akilidada.org).These issues of the gendered ecology of power inKenya’s ethnic politics remain as urgent today as theywere in 2008. Kenya’s ethnic politics continues tofeminize some ethnic communities whilesimultaneously casting others as more masculine. Inthe absence of justice for the victims andperpetrators of the violence, the same ecology ofgender power not only remains but is getting furtherentrenched. The continued silence around the forcedcircumcisions and castrations speaks to our collectiveacceptance that the practice is a relevant weapon ofethnic war which bodes ill for the 2012 elections.1. Kenyans for Peace through Truth and Justice urges fullimplementation of Waki Report. Press Statement. Nairobi, October30, 2008.http://www.pambazuka.org/en/category/elections/517172. “Police On the Spot Over the Number of Deaths in Nairobi”, TheDaily Nation, October 15 2008.3. Commission of Inquiry into the Post Election Violence(The Waki Commission); Sumission by FIDA-Khttp://www.humanitarianreform.org/humanitarianreform/Portals/1/cluster%20approach %20page/Kenya/GBV/Sexual%20%20GBV-%20Waki%20Commission.pdfRape on the rise in post-election violence,http://www.irinnews.org/Report.aspx?ReportId=76068.4. “Writers’ Stories Go to Commission on Violence”, Inter PressService, August 4, 2008.


102 . DEBATING INTERNATIONAL JUSTICE IN AFRICAKenya: Our Possible Futures;Our ChoicesSisule Musungu17 July 2009We knew or should have known that it was coming.But somehow we believed, as the most corruptcountry in the region, that we could bribe our wayout of catastrophe. That was the 2007 post-electionviolence in Kenya. Then, as now, we knew what ourpossible futures could be and what choices we had tomake. We made bad choices or refused to make realchoices at all. To avoid the recurrence of the 2007events and to reach true and full reconciliation,Kenyans will have to make real choices about whatfuture they want individually and as a community; asa nation. We have powerful insights and tools, butwill we use them?OUR POSSIBLE FUTURES: THINKING THROUGHSCENARIOSOn 14 April 2000, the Society for InternationalDevelopment (SID) and the Institute of Economic Affairs(IEA) launched “Kenya at the Crossroads – Scenariosfor our Future” (http://www.kenyascenarios.org/default.html). This work, the result of intenseresearch, analysis and workshops of Kenyans fromvarious ages, backgrounds and professions, presentedfour possible futures for Kenya. While this was duringthe days of the KANU regime, Kenya remains, more orless, at the same crossroads. Following the violenceof 2007/2008, the stakes are even higher. We hadthe tools, we had the insight but we didn’t act oracted too late. We have a second chance at modellinga prosperous future – will we take it?While scenarios are not predictions of the future,they are challenging, relevant and plausible storiesabout the future. They are concerned with thehistorical, political, economic, societal, ethical,technological and environmental pressures that couldaffect Kenya, as a country, and the way it functions.As we look at the future of Kenya, thinking throughscenarios offers a tool to generate constructive policydialogue. They offer realistic outcomes with whichKenya might be faced and can therefore help Kenyansmake more informed decisions about their actionstoday.Kenya at the Crossroads – Scenarios for our Futureexamined four possible scenarios of Kenya’s future,namely:■ El Nino – a future characterised by maintaining thestatus quo leading to heightened tensions and,ultimately, a country fractured into regional andethnic enclaves. It is a future of decline anddisintegration.■ Maendeleo – a future where transformationconcentrates on reordering the economy whilepostponing agreements on needed political reform.It is a future of rapid gains but full of inequalitiesand instability.■ Katiba – a future where the focus is on institutionalreorganisation and creation of democratic andlocally accountable institutions. It is, however, afuture of responsive institutions with littleeconomic transformation and heightened poverty.■ Flying Geese – a future defined by a departurefrom destructive politics; reorganised institutionsthat improve representation and participationreflecting the diversity of Kenya’s people; andradical economic transformation. It is a future ofinclusive reforms of both the major political andsocial institutions and the economy.The choices Kenyans are making today, as they argueabout a local tribunal versus the International CriminalCourt (ICC) to try post-election violence suspects; anew constitution; truth and reconciliation and amyriad other issues under Agenda Four of theNational Accord will determine whether we can hopefor a Kenya at peace with itself, a regional leader anda constructive player on the international stage.OUR CHOICESThere are many forces and pressures that will impactKenya going forward. These include historical,political, economic, social, environmental andtechnological forces and pressures. Kenyans mightnot have full control of these forces or pressures.But, by clearly identifying the main drivers of these


THE POLITICS OF VIOLENCE AND ACCOUNTABILITY IN KENYA . 103key forces and pressures; the key actors; and theearly signals for each scenario, as is done in theKenya at the Crossroads booklet, we can start tothink more clearly about the future and prepare forwhat might happen. Most importantly, we can makedecisions now that are painful and costly but whichwould save us from an El Niño scenario.Kenya’s possible paths into the future are fairly wellarticulated in Kenya at the Crossroads. In addition,the possible paths of East Africa, as a region, havenow also been articulated in “What do we want?What might we become? Imagining the future ofEast Africa” (http://www.sidint.org/Content.aspx?IdArea=15&IdCat=47&IdScat=45&Type=S), the outcomeof a scenario project on the future of East Africa.of these problems, and develop a coherent strategy.Scenarios can make three contributions. First, theycan help Kenyan decision-makers explore thecountry’s problems by combining knowledge frommany perspectives. In this way, scenarios help usrecognise uncertainty: both the known unknowns andthe unknown unknowns. Second, scenarios canprovide a platform for discussing different worldviewsmore constructively. This is because the process ofprojecting into the future and examining multiplepossibilities can help transport people out of theirworldview that is only based on the knowledge theyhave about today. Finally, by asking the question“what if”, we can better frame the challenges we faceand prevent critical mistakes.There is no doubt that the Flying Geese scenariooffers the most desirable outcome for Kenya. Equally,however, judging by the political actions of the GrandCoalition government and the general focus ofKenyans today (mainly political and institutional),steering Kenya’s path towards the Flying Geesescenario will require new leadership, new thinkingand an ability to dare to think and live differently onthe part of the majority of Kenyans. Since 2000, wehave made choices that resulted in some form ofcombination of the El Nino and Maendeleo scenarios.We know where those decisions took us in December2007.Sisule Musungu is the President of IQsensato(www.iqsensato.org), a Geneva-based researchorganisation that serves as a platform for promotingthe research and thinking of developing countriesexperts in international policy discussions on arange of development-related issues. A detailedbio can be found on the IQsensato website at.Our choices as Kenyans, if we are to avoid what wesaw after the 2007 elections or worse, will have to bethose that lead us away from the path of decline anddisintegration and towards the path of inclusivedemocracy and growth. We cannot hope to ignorehistory (in its fullness) and make bad choices inpolitical leadership, economic stewardship, social,environmental and technological policies and thinkthat we can always bribe our way out.How can thinking through scenarios help Kenya makethe right choices in the future? To address thechallenges that Kenya faces, we have to be able tonavigate through the complexity of the problems andthe underlying drivers, build a shared understanding


104 . DEBATING INTERNATIONAL JUSTICE IN AFRICAAccountability Debate in KenyaUnfolds in a Near Policy Vacuum andEthnic TensionGodfrey M. Musila2 November 2009There seems to be consensus around the need todeal with injustices – gross human rights violations,economic crimes and abuse of power – perpetrated inKenya over the last 35 years. However, Kenya lacks acoherent policy on the broader question oftransitional justice: which institutions should be used(Special Tribunal for Kenya, 1 Truth, Justice andReconciliation Commission 2 [TJRC] or criminal courts),how these mechanisms should be deployed, how theywould relate to each other, and how suchmechanisms would fit within the ongoingconstitutional and institutional reforms proposedunder Agenda Four of the Kenya National Dialogueand Reconciliation (KNDR) process that produced thecurrent Government of National Unity (GNU). 3While Agenda Four of the KNDR 4 prescribes severalmeasures including broad institutional reforms,transparency, accountability and ending impunity –measures usually associated with transitional justiceapproaches in their broadest conception – it cannotbe regarded as a transitional justice policy. Otherthan the resolution adopted by the KNDR for theestablishment of a TJRC that prescribes the grantingof amnesty for crimes against humanity and attemptsto enunciate broad ‘principles’ on the operation ofthe TJRC, 5 Agenda Four lacks specificity on any of thecrucial questions relating to transitional justice.Further, since the decisions to establish a SpecialTribunal and the TJRC were taken, the governmenthas made no attempt to enunciate such a framework.While recent crisis talks in the Cabinet on the role ofthe International Criminal Court (ICC) yielded varyingsuggestions from different Ministers on what shouldbe done, 6 it was not intended as a policy forum. ThePresident convened the meeting in order to fashion aresponse to the handing over to the ICC Prosecutor ofthe list of key suspects (prepared by the Commissionon Post Electoral Violence) by Kofi Annan, themediator of the KNDR. The tense and rancorousexchanges reported to have happened in the meetingwere perhaps not conducive to sober reflection.Moreover, the sharp disagreements within Cabinetover how to deal with post-electoral criminality havenot been conducive to a coherent approach. Nowhereis this more evident than in the government’sapproaches to the Special Tribunal and the TJRC.Government démarches relating to the twomechanisms seem to proceed in isolation from eachother. As a result, discussions on the questions oftransitional justice itself remain largely impoverished,focusing – even in this case indecisively – on only ona select number of politically contentious issues suchas amnesty and the ICC, and exclude ‘alternative’mechanisms such as ‘ordinary’ criminal courts.A number of reasons can be proffered for the lack ofan official transitional justice policy – in whateverform – and the resultant incoherence in approach.First, the decisions to establish both mechanismswere taken in the middle of a national crisis. Theimmediate purpose of the KNDR was to bring an endto violence and to install a broad-based GNU. Suchcircumstances were clearly not conducive to areasoned articulation of a transitional justice policy.Second, the debate on transitional justice – to theextent that it exists within government – is takingplace within a polarized political environment. Beyondthe convergence of views on the need to addresspast injustices, the GNU partners do not seem toagree on much. As elaborated in the discussion ofvarious mechanisms, there are competing notions ofjustice that dictate different approaches. Lack ofagreement also stems from the fact that thePresident, the Prime Minister and those who readilydo their bidding are engaged in a vicious powerstruggle. For the President, who has previouslyenjoyed unfettered executive power inherited under adraconian constitution, the idea of sharing suchpower does not seem to have sat well with him. Forhis part, the Prime Minister has been keen to assertexecutive power – albeit for the most part ill defined 7– vested in the new office by the national accord thatcreated the GNU. In an event that underscored the


THE POLITICS OF VIOLENCE AND ACCOUNTABILITY IN KENYA . 105nature of these struggles in government, in April2009, the Speaker of Parliament was forced to enterthe fray by deciding in a historic ruling on whetherthe President was entitled to appoint the powerfulLeader of Government Business in Parliament (whichcomes with potential control over the government’slegislative and reform agenda) without consulting thePrime Minister in terms of the KNDR Act; and whetherin fact the Prime Minister, rather then the VicePresident (affiliated to the Party of National Unity[PNU]) should assume that position. 8Third, the apparent attempt by one side of thegovernment – the PNU – to shape the course oftransitional justice seems to have reduced the chancesof what should be a cooperative effort, especially inthe context of a government of national unity. 9 Fromthe author’s discussions with a number ofstakeholders, it emerged that the then Minister ofJustice, Ms Martha Karua (PNU), had drafted the firstTJRC Bill without sufficiently involving coalitionpartners, civil society or other key stakeholders.Heated parliamentary debates relating to keyprovisions of the bill reflected dissatisfaction with thisapproach. The few members of civil society who werecontacted by the author suggest that it was too latefor them to provide any input, having been given lessthan two days to respond before the bill waspresented to Parliament. 10 Similarly, the defeat inParliament of the bill aimed at entrenching the SpecialTribunal law in the Constitution can be attributed inpart to the failure by government to engage withrelevant actors, including MPs across the politicalparty divide. Some MPs have suggested that they didnot have enough time to familiarize themselves withthe contents and voted against the bill because oftheir suspicion of the government’s true intentions. 11It is noteworthy that President Kibaki and PrimeMinister Odinga have lobbied their constituencies inParliament to pass the law after the two principalscame under sustained pressure from internationalactors. No sooner had President Kibaki named thecommissioners and chair of the TJRC (22 July 2009)than they (the commission and its chair) came underattack from various quarters. The credibility crisis 12that has engulfed the TJRC reflects at least one of thepitfalls of a government-driven transitional justiceprocess (real or perceived): the possibility that theinstitution could lack total legitimacy, a necessaryingredient for a successful transitional justice process.Fourth, while most Kenyans want justice in one formor another, an interesting dynamic has developed inthe context of ethnic-based contestation within thecurrent political sphere. 13 Those clamouring for justiceon occasion recede into ethnic constituencies whereaction against particular individuals is invariably seenas a witch-hunt. Since questions of accountabilityseem inextricably linked to political succession andreorganization of the state, at a certain level, justicehas an ethnic dimension whose contours must beinternalized and acknowledged. Few can deny thatthis renders the task at hand even more complex anddifficult to realize. For one, the result of this ethnicdimension is the dilution of civil society pressure ongovernment and subsequent lack of incentive fortimely and appropriate government action to driveaccountability processes forward.Apart from the lack of agreement on how the pastshould be reopened for scrutiny, and whether anypenal consequences should apply as one of theprescriptions, post-Kibaki succession scenarios andbroader issues of institutional and constitutionalreforms also underpin the actions of various actors inthe transitional justice debate. When one dissects thetransitional justice debate – itself inseparable fromthe wider context of constitutional and institutionalreforms – it emerges that transitional justicequestions invariably rally ‘reformist forces’ against anilliberal, pro-status quo group that does not favourthe dissolution of the oppressive post-independencepolitical and economic order that has operated to thebenefit of a few. 14 The forces opposed to institutionalreforms seem by extension inimical to anyaccountability process that would open and in atransparent manner scrutinise the numerous closetsof historical injustice. Together with this historicallegacy, the dynamics of a coalition government andsuccession battles that come with it are defining notonly the ‘kind’ of justice that Kenya might pursue butalso the roles of various actors in that process.


106 . DEBATING INTERNATIONAL JUSTICE IN AFRICA1. Recommended to try those who bear the greatest responsibilityfor alleged crimes against humanity committed between 27December 2007 and 28 February 2008 by the Commission ofInquiry into Post Electoral Violence (Waki Commission) appointedby President Kibaki. See Government of Kenya, Report of theCommission of Inquiry into Post Electoral Violence (2008).2. To be established in terms of the Truth Justice and ReconciliationAct 2008.3. For the National Accord and Reconciliation Act 2008, and otherdocumentation related to the Kenya National Dialogue andReconciliation, see 4. Agenda Four of the National Dialogue and Reconciliation processrelates to ‘Long-Term Issues and Solutions’.5. See Kenyan National Dialogue and Reconciliation Truth, Justiceand Reconciliation Commission. The ‘principles’ are:independence [of TJRC]; fair and balanced inquiry; [grant of]appropriate powers; full cooperation [from government and allconcerned]; strong financial support [from government anddonors].6. Cabinet Meeting, July 14 2009. It is reported that Cabinet is dividedinto various camps: between those who favour prosecutions(before the ICC, the Special Court or before national courts);and those who oppose prosecutions and favour an expanded rolefor the TJRC to deal with postelection Kenya National Dialogueand Reconciliation, see http://www.dialoguekenya.org/agreements.aspx>7. S4 (a) of the National Dialogue and Reconciliation Act, 2008provides, without elaboration that the PM ‘shall have authority tocoordinate and supervise the execution of functions and affairsof the Government of Kenya including those of Ministries’. Whilethis suggests a parliamentary system in which the PM should rungovernment while the President maintains a backseat, the NDRAct leaves intact other powers of the President that undercutthose vested in the PM. While ODM has favoured this wideconstruction, PNU has sought to limit the PM’s functions as muchas possible. The struggle has pitted the PM and the head of theCivil Service and Secretary to the Cabinet (a Presidentialappointee, who under the old dispensation supervisesministries), with the latter accused of undermining the PM.8. See Decision of the Speaker of Parliament on the Interpretationof the Constitution and the National Dialogue and ReconciliationAct (Speakers Communication’) of April 28 2009 availableat (accessed on 12 July2008).9. A number of civil society representatives working on issues ofjustice and victims had expressed concern over their exclusionfrom the legislative process, both for the Special Tribunal Bill andTJRC Bill. At the height of controversy over the amnesty question(against which the Justice Minister Martha Karua, (PNU), stoodvehemently opposed), it emerged that the ODM – supposedly anequal partner in terms of the National Accord – had not beeninvolved in the formulation of the draft law.10. See for instance, Amnesty International, ‘Concerns about theTruth Justice and Reconciliation Bill’ May 21, 2008 at 11-12raising concerns over limited CSO involvement in the preparationof the TJRC Bill.11. Standard Reporter ‘Bill: What went wrong with the big guns?’The Standard (Nairobi) February 15 2009.12. See author’s comments on this issue at:http://rethinkingjustice.blogspot.com/13. On the lingering role of ethnicity in the political discourse inKenya see various in George Wachira (ed) in Ethnicity, HumanRights and Constitutionalism in Africa (2008).14. On historical injustice and the nature of the post-independencestate see generally See generally Makau Mutua, Human Rightsand State Despotism in Kenya: Institutional Problems, 41 AfrToday 5 0 (1994) and Republic of Kenya, Report of theCommission of Inquiry Into Land Clashes (Akiwumi Report), 1999.Godfrey M. Musila is a PhD Candidate (InternationalCriminal Law and Justice), Oliver Schreiner School ofLaw, University of the Witwatersrand, Johannesburgand a Senior Researcher, International Crime in AfricaProgramme at the Institute for Security Studies,Pretoria. He has authored two articles on the Kenyantransitional justice process (African RenaissanceJournal Vol.5 No.1 2008 and South African Year Bookof International Affairs 2008/2009). Sections of thisWorking Paper are drawn from his forthcomingarticle ‘Options for Transitional Justice in Kenya:autonomy and the challenge of externalprescriptions’ International Journal of TransitionalJustice (Oct 2009).


THE POLITICS OF VIOLENCE AND ACCOUNTABILITY IN KENYA . 107Truth, Justice, Reconciliation, and…Land Tenure Reform?Chris Huggins29 July 2009The Kenyan Truth, Justice and ReconciliationCommission (TJRC) is mandated to enquire into humanrights violations, including community displacements,settlements, evictions, historical land injustices, andthe illegal or irregular acquisition of land, especiallyas these relate to conflict or violence. Disputedaccess to land is often cited as one of the keystructural causes of violence in Kenya. However,political figures have manipulated and misrepresentedthe ‘land issue’ in the country, to the extent that itoften seems to be an excuse, rather than a validgrievance. How should the TJRC address the landissue, which is so easily instrumentalized and sodeeply linked to problematic conceptions of ethnicity?In order to answer this question, we first have to ask:why is the land issue relevant today?The British colonial regime in Kenya caused significantdisruptions to landholding patterns in many parts ofthe country, which still reverberate today, at the levelof ‘high politics’ as well as ‘folk politics’. Land heldunder customary tenure by Kenyan communities wastreated as ‘vacant’ by the colonial regime andappropriated for ranching and farming by whitesettlers. Even when the colonial government created‘native reserves,’ land remained under the control ofthe Crown and hence vulnerable to alienation by thestate at any time. Large parts of the centralhighlands, historically home to the Kikuyu and othercommunities, were appropriated for settleragriculture. Former inhabitants of these areas wereforced into farm labour elsewhere in the country.Parts of the Rift Valley were also greatly affected.During the war of resistance, the members of theLand and Freedom Army fought for a restoration ofland rights as part of a wider liberation fromcolonialism.Under the terms of the independence agreementnegotiated at Lancaster House, the administration ofPresident Kenyatta pledged to respect ‘privateproperty’, without regard to the ways in which landhad been acquired. Rather than returning the areasappropriated by white settlers to customary tenure,the government accepted a ‘willing buyer, willingseller’ approach. Former farm workers, many of themKikuyu, took advantage of the land-buying schemesoffered by President Kenyatta to purchase plots inareas which remain a focus of discontent and periodicviolence today.Like the colonial Governor before him, the Presidentheld great powers over land distribution, with fewchecks and balances. Land owned under customremains the private property of the government, andpastoralist land is supposedly held ‘in trust’ for localcommunities by the government. However, in practiceTrustland is often sold-off, whether or not the sale isin the public interest. Official policy has always beento replace customary tenure with a freehold titlesystem. This has left many communities, particularlypastoral groups in the Rift Valley, feeling that landcustomarily held ‘in common’ by their communitieswas vulnerable to alienation. Public land has beenillegally distributed by the political elite in order tobuy the loyalties of their ‘clients’. Prominent familiesamassed huge farms and ranches under bothKenyatta and Moi. Government resettlement schemeswere affected by corruption, leading to furtherinequality in landholdings. More generally, corruptionbecame entrenched in the surveying and cadastralservices, casting doubt on the validity of titles andcreating serious land tenure insecurity which persiststoday.Grievances over land access have regularly beenmanipulated by politicians in order to foment politicalviolence. In 1992, KANU politicians organizedviolence against Kikuyu communities in ethnicallymixed areas to displace potential opposition voters.Some 1500 people died in 1992. Land-relatedgrievances were used to mobilize mobs and justifyviolence, often wrongly described in the media as‘land clashes’. Following incitement by KANUpoliticians during the 1997 elections, hundreds ofthousands of people were forced from their homes.However, little was done to find long-term solutions


108 . DEBATING INTERNATIONAL JUSTICE IN AFRICAto the resulting internal displacement problem. TheAkiwumi Commission of enquiry into the violencerecommended that the role of specific individualadministrative and political figures in planning thekillings be investigated. However, theserecommendations were ignored.Land issues are multidimensional: at the micro levelland is an economic asset which benefits individuals,and land access becomes an increasingly importantpolitical issue as land-scarcity increases. At the mesolevel it represents an intangible ‘community territory,’which perhaps explains why major land-owners areable to publicly articulate ‘communal’ grievances overland. It is undeniably linked with the calls forMajimbo, discussed by Daniel Waweru in his paper.However, it is not just about ‘sons of the soil’controlling land. When land uses change – forexample, when pastureland is converted to farmland,or vice-versa – there are real social andenvironmental repercussions for neighbouringcommunities.So, land issues are clearly important, in the sensethat they are both deeply-felt, and have been usedto mobilize violence. How then has the governmentof Kenya addressed these problems? The NationalRainbow Coalition (NARC) came into power on ananti-corruption platform. The new governmentexpressed early support for a truth commission;however, it failed to establish one. Some of thealleged perpetrators of violence in the 1990s wereincorporated into the NARC government. NARC alsofailed to adequately provide for those who had beendisplaced in political violence, and who continued tolive in terrible conditions. The government created aTask Force on Displaced People, but its work has beenvery heavily criticized. President Kibaki’s governmentdid establish the ‘Ndung’u’ Commission’ into illegalallocation of land, which recommended that ultimateresponsibility for land rest with a National LandCommission, rather than the president, and that areview of land titles be initiated. The findings of theCommission were largely welcomed by Kenyan landspecialists. However, few of the report’srecommendations were implemented. While thefundamental and systemic aspects of the landproblems identified by the Commission’s report havebeen left to fester, evictions of communities from‘gazetted’ (protected) forest areas such as the MauForest and Mt. Elgon Forest have been implementedwith excess force and without resettlement of manyof those evicted. In some cases, evictions exacerbatedlocal ethnic and political tensions. Gains from illegalland acquisition have since been utilized to fundelection-related violence.The government also formed a Committee of EminentPersons in 2006 to report on the key concerns ofKenyans and their implications for constitutionalreform. This report was written, but has never beenreleased. To date, the establishment of ad hoccommissions of enquiry appear to have served asuseful diversions, tying up the resources ofgovernment and other stakeholders in thedevelopment of recommendations which are rarelyimplemented. Despite these disappointments, theexistence of those reports in the public domain doesrepresent a basis for advocacy and debate. The issuesare out in the open, and the major land-grabbers andthe flashpoints of conflict are known.Therefore, if the TJRC is to address land issues, will itjust produce more empty recommendations, destinedto be ignored? Several truth commissions in otherparts of the world, such as Timor-Leste, haveidentified land-related inequality and human rightsabuses as a root cause of conflict, but their calls forfurther action have not always been implemented.Those implicated in land-grabbing and other injusticesare typically amongst the political elite, and able toblock reforms.However, despite Kenya’s history of ‘paper tiger’commissions, there are glimmers of hope that theTJRC could go further than that: First, the nationalLand Policy, drafted in 2006, was finally approved inJune 2009. The policy is seen by many as aprogressive document providing protection for thosecommunities using land under communal tenuresystems, and calls for compensation and reparationfor historical injustices. The country now has a


THE POLITICS OF VIOLENCE AND ACCOUNTABILITY IN KENYA . 109practical framework for the implementation of theTJRC’s recommendations regarding land. Second, theChair of the TJRC, Ambassador Bethuel Kiplagat, is anexpert on the causes of conflict in Africa and is nodoubt well-aware of the socio-economic dimensionsof violence in Kenya, including land issues. He shouldbe able to guide the TJRC towards the development ofpractical and far-reaching recommendations. Third,there are a sufficient number of skilled people, ingovernment and civil society, who are committed toland tenure reforms. They should ensure that the TJRCdoes not turn into a gravy train for land experts, butresults in clear outcomes. Fourth, it is reasonable toexpect that international donors, who have supportedthe Land Policy development process, will use theirleverage to ensure that land reform happens. Donorswere united in the face of the 2008 violence; theyshould unite on the land issue, and refrain fromletting their own ideological positions get in the wayof Kenya’s much-needed reforms.There are compelling reasons to address the landissue in a comprehensive way. Reform will reducepopular grievances, and take away one of the mosteffective rallying cries available to those incitingviolence. Seizing ‘grabbed’ land will remove a sourceof revenue from corrupt politicians and businessmenwho are willing to pay unemployed youth to engagein violence. Punishing those who have committedland-related crimes will be a concrete step towardsreinforcing the rule of law for all and doing justice onbehalf of all those who have struggled, since the preindependencedays of the Land and Freedom Army, toclaim their rights. Applying legal sanctions against themajor land-grabbers will also defuse the perceived‘ethnic’ aspects of the land question. Those guilty ofinjustices around land are not, after all, entire ethniccommunities, but specific members of the elite whoabuse their economic and political power. The TJRCshould prevent them from doing so, throughrecommending effective land tenure reforms.East Timor. Dili: CAVR. Available online athttp://www.cavr-timorleste.org/chegaFiles/finalReportEng/07.9-Economic-and-Social-Rights.pdfKamungi, P. and J. M. Klopp. (2007). “Failure to protect:Lessons fromKenya ‘s IDP network”, Forced MigrationReview, 28. 52-53 Available online athttp://www.fmreview.org/FMRpdfs/FMR28/29.pdfRepublic of Kenya (2009) National Land Policy. Nairobi:Ministry of Lands. Draft version available online atwww.ilegkenya.org/pubs/docs/DraftNationalLandPolicy.pdfSouthall, R. (2005) ‘The Ndungu Report: Land & Graftin Kenya”. Review of African Political Economy, 103,March 2005, pp.142-51. Available online atwww.oxfam.org.uk/resources/learning/landrights/downloads/ ndungu_report_land_graft.rtfWakhungu, J., and E. Nyukuri and Huggins, C. (2008)Land Tenure and Violent Conflict in Kenya:Consultative Conference Proceedings Report. Nairobi:ACTS Press. Available online at www.landcoalition.org/pdf/ACTS_LandConflict_report.pdfChris Huggins was based in Kenya from 1998-2005.He is a specialist in conflicts over land and naturalresources, particularly in Africa, and a PhD candidateat Carleton University, Ottawa. He recentlycontributed a chapter on “Linking BroadConstellations of Ideas: Transitional Justice, LandTenure Reform, and Development” to Pablo de Greiffand Roger Duthie, (eds), Transitional Justice andDevelopment: Making Connections (New York: SocialScience Research Council, 2009).SOURCESCommission for Reception, Truth and Reconciliation inEast Timor (CAVR) (2005) Chega! The Report of theCommission for Reception, Truth and Reconciliation in


110 . DEBATING INTERNATIONAL JUSTICE IN AFRICASpecial Tribunal Enactment: WhyCabinet, MPs, are Misleading KenyansNdung’u Wainaina and Pamela Chepng’etich31 July 2009Kenyans are very suspicious of the rare unity betweenthe Cabinet and the Parliament as they jointly dismisscalls for the prosecution of the perpetrators of postelectionviolence atrocities. This unscrupulousbehaviour is not coincidental, but a well craftedstrategy: the Cabinet and Parliament are distortingfacts on the requirements for a local tribunal, in orderto escape accountability. Politicians are satisfied thatthey are now sharing the spoils and that it isbusiness as usual. They prefer to push the issues thatcontributed to the crisis under the carpet in order tofocus on efforts to capture power in 2012. While wecommend the Kenyan government for renewingefforts to enact the Special Tribunal to try thoseresponsible for the 2007 election violence, we believethat nothing short of momentous symbolic shocktherapy to the political elite would incentivizeformation of an effective, independent and impartialTribunal locally. Here, we believe the InternationalCriminal Court (ICC) continues to have a major role.In order to expose the devious political maneuveringof the Cabinet and Parliament in opposing theenactment of an effective, credible and independentlocal Tribunal, we note that there is tremendousimprovement on the current Bills being debated byCabinet compared to the ones defeated in Parliamentin February 2009. We are happy to observe that thecurrent Bills, which we have seen and scrutinizedsubstantively, reflect the recommendations of theInternational Center for Policy and Conflict (ICPC) andother civil society groups.Following demands made by civil society groups onhow to ensure independence and credibility of theTribunal, major progress has been made: for instance,the Constitution Amendment Bill 2009 (amendmentof section 3A of the Kenyan constitution) protects theStatute and the Tribunal from constitutionalchallenge, and ensures that the majority of judges,as well as the prosecutor, registrar and investigators,are foreigners. The Special Tribunal Statute and thebodies that it establishes respect human rightsincluding the right of suspects to a fair trial; theyobserve principles of equality and non-discriminationand the issue of retroactivity (section 77) and timelimitation do not apply. Where any law is in conflictwith the Special Tribunal Statute, the Tribunalprovides that the provisions of the Statute shallprevail: no Act, including an Act to amend the SpecialTribunal Statute, may alter any decision of theTribunal or relieve any person of any penalty imposedby the tribunal; no executive act, whether under theauthority of current Constitution or any other law,may alter any decision of the tribunal or relieve anyperson of any penalty imposed by the tribunal,except as provided by the Special Tribunal Statute;and that No Kenyan Court including the High Court ofKenya shall interfere with proceedings or the work ofthe Tribunal (section 60). Further, the bills providethat no powers under sections 26 (Attorney-General),or 27–29 (Presidential Prerogative of mercy andpardon) shall be exercised with respect to thetribunal; independent funding shall be provided; andwatertight victims’ and witnesses’ protection will beprovided. Moreover, the Tribunal has the primacy andexclusive jurisdiction powers on all matters relating topost-election violence atrocities; the president doesnot enjoy immunity under section 14 (Protection ofPresident in respect of legal proceedings duringoffice). Finally, The Bills define the crimes, address,individual criminal responsibility, commandresponsibility, and resignation of the suspects frompublic office.With these provisions, it is our view that a SpecialTribunal with major international representation is thebest option for justice for the victims of violence andpreferable to a transfer of jurisdiction outside ofKenya.Regrettably, the enactment of the Tribunal has begunon the wrong footing, failing the most basic test ofits independence and credibility. The Cabinet isturning into a hub of impunity, horse trading in thefull sight and knowledge of the two principals,President Kibaki and Prime Minister Odinga. Kenyans


THE POLITICS OF VIOLENCE AND ACCOUNTABILITY IN KENYA . 111strongly condemn the Cabinet for allowing politicalconsiderations to block the raising of the bar of theSpecial Tribunal in order to meet the mandatoryinternational standards. It is our expectation that theCabinet and Parliament will act in a sense of sobrietyand responsibility in the pursuit of national goals andobjectives. No efforts should be spared in confrontingtheir insidious game of self preservation at theexpense of the wheel of justice and accountabilityefforts against impunity. Kenyan legislators are amongthe highest paid in the world; the least they shoulddo is to deliver quality legislation. Their ability todeliver an effective Tribunal should be the test oftheir legislative competence.We believe that bringing the perpetrators of postelectionviolence and gross human rights violations tojustice will contribute greatly to preventing futurehuman rights violations in Kenya. However, thefragmentation and absurd protection rackets in theCabinet and Parliament are likely to be the singlebiggest impediment to the crucial exercise. For thisreason, we emphasize that the ICC and Special Tribunalare not mutually exclusive but rather complementary: ifthe local tribunal is not enacted as seems increasinglylikely, the ICC should pursue the prime suspects. If theTribunal is enacted, the ICC should still continue itsmonitoring role, as Kenyans do not want ‘show’ trials;they want fair trials. The Tribunal cannot bring justiceto the thousands of post-election violence victims if ittries only a handful of the most notorious individuals,while scores of top officials and other prime suspectsremain free. No court, including the proposed Tribunal,should fall short of the international standards whichthe Kenyan government is bound to uphold. The ICCmust bear the burden of responsibility in ensuring thatall the international standards that form the basis ofother international and mixed criminal processes areexplicitly incorporated in any process of accountabilityfor Kenya.Wainaina is Executive Director and Pamela AssistantProgramme Director at International Center for Policyand Conflict.Incremental Judicial Reforms in KenyaCharles A. Khamala2 August 2009Judges deal in fear, pain and death. Howeverexercised, judicial power has a tremendous impact onthe socio-economic, political and cultural systems ofa nation. Kenyan masses remain alienated not merelyby the foreign language and condescendingdemeanor of courtrooms but also the centralizationof justice. Consequently, we must ask: is the qualityof justice determined by the performance of anincumbent occupant of a judicial position? If so, whoshould appoint judges? What is to be done when theactions of a politically partisan Chief Justice cow anentire judiciary to bow to executive whims?These questions have come to focus among theKenyan legal fraternity following recent appointmentsof High Court Judges in April 2009: Joseph Nyamu andAlnashir Visram gained appellate status; ChiefMagistrates Aggrey Muchelule and Maureen Oderoand Senior Principal Magistrate Florence Muchemibecame judges; as did Abida Ali-Aroni, former chairof the Constitutional Review Commission, and SaidChitembwe, Cooperation Secretary of The NationalSocial Security Fund. Rife speculation and intenselobbying ensuing among prospective candidates reopensthe old debate regarding deficiencies afflictingthe appointment process. As legal power is derivativeof judicial power, the Law Society of Kenya (LSK) atits 2009 Annual General Meeting passed threeresolutions. First, the LSK proposed the establishmentof transparent criteria to guide the Judicial ServiceCommission (JSC) in its recommendations of suitablyqualified individuals. Second, the LSK resolved torecompose the JSC so as to include two of its ownmembers. Third, members mandated their Council topetition President Kibaki to convene a tribunal toinquire into the conduct of the Honourable ChiefJustice Evans Gicheru whom they consider unfit tohold that lofty office. Such radical stance ispredicated on the grounds that the Chief Justice isperceived to have directly compromised theindependence of the bench by centralizing justice andby swiftly swearing-in President Kibaki for a second


112 . DEBATING INTERNATIONAL JUSTICE IN AFRICAterm, thereby precipitating the degeneration ofwidespread post-election violence.In justification of LSK’s first resolution, the commonlaw training and JSC’s confidential appointmentcriteria lends loyalty to the President as appointingauthority and should be reformed. Repeal of jurytrialsin 1967 and gradual replacement of laymagistrates both Africanized and professionalized thejudiciary. The constitutional qualification ofappointing judges with at least seven years of legalpractice effectively standardized the culture ofappointees to persons assimilated into middle-classvalues who are not only well-connected amonglawyers but also politically and ethnicallyrepresentative. Recently, a Ministry of Justice taskforce suggested that the minimum qualifications beraised to advocates of 10 and 15 years standing forhigh court and appellate judgeship respectively. Nomention was made to institutionalize gender-parity,ethnic or religious balance considerations reflected inrecent appointments. Given Kenya’s volatile postconflict heterogeneous society, there is clear need forbroad political and ideological diversity. To secure theappearance of justice, it is not sufficient to merelyresolve disputes objectively, according to primaryrules prescribed in advance. Our constitution mustalso ensure that laws are democratically made. JohnRawls’ justice as fairness therefore encompassestolerating subjective values which conditionexperiences perceived by the most vulnerable socialclasses. Significantly, the Kenyan struggle forindependence from colonial rule was waged partly toremove a sense of injustice emanating from theappearance of a discriminatory judicial system whichrestricted Supreme Court access to minority Whitesonly. One alternative would be to take the path ofthe US and elect judges; however, such a processpromotes political acumen over constitutionalinterpretation. A middle ground could work in Kenya;requiring parliamentary vetting of proposednominees.In answer to LSK’s second resolution, criminologistClive Walker would argue that the vital role ofjudiciaries is to guard against majoritarianism and itscrude impact on individual rights and unpopularminorities. Human rights violations are primarilycaused by the criminal justice machinery. Adjustingpublic perceptions of the JSC currently constituted bythe Chief Justice, an Appellate Judge, the AttorneyGeneral, the head of the Public Service Commissionand a High Court Judge, may restore publicconfidence in our courts. Reconstitution of the JSCmay widen the pool from which potential judges areselected so as to include liberal judges.The LSK’s third resolution aims to dislodge ChiefJustice Gicheru ostensibly partly for renderingopposition candidate Raila Odinga’s genuine post-2007 election complaint fait accompli, whichultimately contributed to over 1000 deaths and theforcible displacement of 350,000 people. Furthercomplaints against the Chief Justice include the factthat in early 2007, he directed that all cases lodgedto question administrative action, be heard exclusivelyin Nairobi, requiring all up-country litigants to travelto the capital city and engage expensive lawyers. Thisis unconstitutional. Obviously, every judge has equalpowers to hear any dispute. In February 2009,following a two year stand-off, the Chief Justicesuddenly but sullenly reversed his irrational decreethus re-diverting judicial review cases to their originallocations. Yet much damage was already done. Hehas inflicted irreparable hardship on up-countrylitigants who were alienated from obtainingprerogative orders during the post-election violence.Further, the Chief Justice declined to allocate anyjudge to listen to the LSK’s application challenging hisillegal centralization order. Instead, policemen teargassedprotesting lawyers inside Nakuru courts. Inretaliation, Mombasa practitioners boycotted probono services traditionally rendered in capital murdercases. Yet in reality, even LSK’s three resolutionspreferring incremental “quality control” throughapparent piecemeal constitutional amendmentspreceding the awaited real maximalist overhaul, areconservative. Such interim reforms represent wellintentionedattempts to circumvent anticipatedpolitical obstacles presented by contentiouscomprehensive constitutional review issues.


THE POLITICS OF VIOLENCE AND ACCOUNTABILITY IN KENYA . 113While the Chief Justice may not be personallyresponsible for the reality of corruption and bribery inour courts at individual magisterial or para-legallevels, his leadership personifies the appearance ofthe judicial institution as a whole, yet he publiclydismissed the new Grand Coalition Government’s planto compel judges to sign performance contracts, asunconstitutional. Nonetheless, members of his Kikuyuethnic group within the LSK published a double pageadvertisement in the Daily Nation seeking signaturesdefending the Chief Justice’s security of tenure. Histrack record? Since appointment to the bench in1982 Justice Gicheru has delivered one memorablejudgment. His dissenting ruling in the 1994 case ofRepublic v The Post on Sunday where, to his credit,out of seven appellate judges he disagreed with thegovernment’s attempts to silence a publisher throughcontempt of court. That case ironically involved aneditor, Tony Gachoka’s, allegations that the then CJ,Zacheus Chesoni, received a Kshs. 30 million bribefrom Goldenberg Scandal architect Kamlesh Pattni. Anunfortunate precedent was subsequently set by theKibaki administration in 2003 which forced theresignation of Gicheru’s predecessor Chief JusticeBernard Chunga for his association with the infamousNyayo House torture chambers during his reign as theDirector of Public Prosecutions. Gicheru subsequentlyappointed an ad hoc Committee into JudicialCorruption chaired by Judge Ringera to conduct apurge. In October 2003, 18 High Court and fiveAppellate Judges, 82 magistrates and 142subordinates resigned upon being publicly named andshamed in the Report. Following this “radicalsurgery,” Ringera’s majority decision in the Njoyacase deflated the Bomas Draft constitution whichthreatened devolution of Kibaki’s power. Worse still,on the eve of the 2005 national constitutionalreferendum, the Referendum case instead validatedthe executive-driven “Wako Draft New ProposedConstitution.”conceded that appointments are predicated onfavouritism, cronyism and incompetence. Upon herswift rebuff by the President’s mysteriousappointment of seven new judges recommended by aconservative JSC, she resigned in a huff. The presidentunceremoniously trashed all three LSK resolutions.Now, a Truth, Justice and Reconciliation Commissionhas been established to supplement the failedjudiciary, alongside a range of other prosecutorialarrangements. The legal profession should urgentlyprovide a lead not only on how to deal with realintransigent institutions and apparent individualimpunity so as to inspire accountability and personalresponsibility in the attitudes of incumbents but alsoto infuse real transparency into our structures.Charles Khamala is an advocate of the High Court ofKenya, and has been a practicing lawyer since 1994.His research interests include international criminallaw, human rights, criminology and jurisprudence.He is currently a Ph.D. Candidate at the Univeristy ofPau (Private Law).The failure of the judiciary to cope with electionpetitions has led former UN Secretary-General KofiAnnan to act as our receiver-manager. Former Justiceand Constitutional Affairs Minister Honourable MarthaKarua, in a scathing attack on the judicial corruption


114 . DEBATING INTERNATIONAL JUSTICE IN AFRICADecreeing and Establishing aConstitutional Order: ChallengesFacing KenyaYash Ghai10 August 2009There is a renewed interest in a new constitutionalorder in Kenya. A bad constitution is blamed for thepost-election crisis, allowing the president to packthe electoral commission with his cronies shortlybefore the election; a largely unaccountable electoralcommission declaring presidential election resultswithout proper counting or reliable records; enormouspowers vested in the office of, or illegallyappropriated by, the president; the centralisation ofpower in Nairobi; the lack of public participation; thelack of autonomy, effectiveness and legitimacy ofstate institutions, particularly those for accountabilityand justice, principally judges, police, prosecution andthe attorney general; opportunistic political partiesand unprincipled politicians; and resulting corruptionand widescale impunity.People often ask: would Kenya have been a betterplace today if the Bomas draft had not beensabotaged? This essay argues that a goodconstitution, while critical, is not equivalent toconstitutional order. Enactment of a constitution isdistinct from the adherence to its values, institutionsand procedures. A constitution by itself makes nodifference. Kenyan society determines the extent towhich the constitution will be observed, manipulated,or disregarded, and therefore the extent to whichconstitutional reforms will have meaning.The notion of a constitutional order is broader thanmerely the text of the constitution. It represents afundamental commitment to the principles andprocedures of the constitution and thereforeemphasises behaviour, practice, and internalisation ofnorms. A central feature is the depersonalisation ofpower. Power belongs to state offices, not toindividuals, however exalted. The purpose for whichpower must be used and the mode of its exercise areset out in the law. The holders of even the higheststate offices are subject to the law, not above it. Thisaspect of constitutionalism has proved extremely hardto realise in Africa, where public office has its ownaura, and expectations of the people merelyencourage the whimsical, or capricious and biased,exercise of state power.Most elements of the framework of constitutionalismare unacceptable to those who gain access to statepower, for they interfere with their primary objectiveof accumulation. This has been the essence of theKenya experience. Constitutionalism has beenrejected, and constitutionally sanctioned power hasbeen exercised or abused in the name of ethnicitybut in practice deployed for personal aggrandisement.The politics of the ‘Bomas’ process demonstrate thisrejection of the values of the constitution: aprofessional phase where independent expertsconsulted with the people in accordance with nationalgoals and prepared a draft constitution, and adeliberative and consensus-building phase with therepresentatives of the people, regions/communities,and civil society, were followed by a parliamentaryphase where, against logic and democracy, politicianshad a veto. It was illogical because all the Membersof Parliament (MPs) were automatically members ofBomas where they had ample opportunities to havetheir say and to persuade others of the rightness oftheir positions. It was undemocratic because MPscould override a decision of a much larger, and moredemocratic and legitimate body than Parliament.While the Bomas process afforded Kenyans for thefirst time ever the chance to decide on the valuesand rules by which they wished to governthemselves, politicians held a narrow interest in theconstitution, focusing on access to state power, andtheir own personal prospects of securing that access.During the Bomas, most politicians, includingministers, about half of whom barely ever enteredBomas, showed little interest in human rights andsocial policies, including environmental and landpolicies. But they were passionately opposed topopular participation in and controls over the exerciseof state power. They had little time for fairadministration and public accountability of stateofficials.


THE POLITICS OF VIOLENCE AND ACCOUNTABILITY IN KENYA . 115As the analysis in the Waki Report on Post ElectionViolence in Kenya so vividly demonstrates, the processof accumulation cannot easily be secured within theparameters of a democratic constitution throughmechanisms and procedures for accountability.Indeed the point that emerges with sharp and sadclarity is that it is only by constant and systemicviolations of the constitution and the law that thispolitical class is able to accumulate and establish itscontrol over society, and its opponents. Thehorrendous consequences of these violations aregraphically described in the Waki Report: corruption,institutionalisation of violence, the extensive use ofmilitias, and the loss of the state monopoly of force(with weaknesses and divisions in state securityforces). In particular the Report emphasises the roleand prevalence of violence in Kenyan politics andsociety. It attributes many failings of the state to thepersonalisation of power in the president (and with itthe absence of the separation of powers). Theeconomy has become closely intertwined with statepatronage and ethnic politics, and leadsbusinesspeople to become architects of violence, andto collude in other violations of the law. There is littleaccountability for the exercise of public power.Impunity for the friends of the regime and forcompliant state officials is rampant, and indulgeddespite public outcry. All these demonstrate theabsence of the rule of law. The way successivepresidents have misgoverned Kenya is proof thatthese violations are in fact the norm.Serious consequences follow from this, not least theloss of state legitimacy. The state is not perceived asa social and political force for the common good. It isregarded, accurately, as partisan, throwing its weightbehind specific communities and interests. Thesubordination of the electoral commission, the police,and the judiciary to the executive has resulted intheir inability to resolve national problems, thoughthis is why they are set up, with independent powers.The police are particularly singled out by the WakiCommission for their failure to ensure Kenyans’security, and consequently are held responsible fornumerous murders, rapes, and the displacement ofthe people. They are no longer able or willing toprotect the people against violence and plunder byprivate and politically sponsored militias. The judiciaryis so discredited that no one believed that it wascapable of impartial adjudication of election disputes.The Waki Commission doubts the veracity of thestatements of the attorney general about hisattempts to enforce the law. The Waki Commissionconcludes, “Over time, this deliberate use of violenceby politicians to obtain power since the early 1990s,plus the decision not to punish perpetrators, has ledto a culture of impunity and a constant escalation ofviolence.” The government and politicians have notonly sanctioned violence, but they have alsoethnicised politics and violence. Consequently thestate has failed to perform functions intimatelyconnected with the exercise of public power, indeedmajor reasons why we establish a state in the firstplace.Despite the emphasis placed on constitutional reformby Kofi Annan, other eminent Africans, Kenyans andthe international community, there is no guaranteethat many of the reforms proposed by them and theKriegler and Waki Commissions will help to get Kenyaout of the hole in which successive regimes haveplaced it. I have said enough to indicate how vestedinterests, among politicians, businesspeople, and thebureaucracy will sabotage reforms (as they have doneever since Kenya’s independence). Despite theravages wreaked upon the state, it still remains theprimary means to accumulate wealth and power –and those who are in control of it will fight tomaintain their control, regardless of the rules of theconstitution.It is hard to provide the answer to this dilemma, thatthe very sponsors of reform are its principalsaboteurs. What we know is that constitutionalismcannot be willed; it must be established by deepcommitment and sustained activity. The constitutioncannot achieve anything by itself: like Marx’scommodities, it does not have arms and legs. It mustbe mobilized, acted upon, used, etc. This idea is alsoexpressed by Granville Austin (2000), in hismonumental study of the working and impact of the


116 . DEBATING INTERNATIONAL JUSTICE IN AFRICAIndian Constitution, in which he says that aconstitution, however living, is ‘inert’. A constitutiondoes not work, it is worked. He says his book is‘about those who acted upon the Constitution, howand why they did so, and about those theConstitution acted upon, or neglected. It is aboutIndians working their Constitution…’One way to understand the potential of a constitutionto impose its imprint on state and society is toexamine two key factors. One is internal to theconstitution, and the other, external (society). Theinternal concerns the ways in which the constitutiondistributes power, the institutions it sets up fordifferent tasks, modes of accountability, and methodsfor the enforcement of the constitution, includingrespect for and protection of human rights. Thebalances within the constitution can do something toguide state institutions and empower the people. It issafe to say that constitutions may succeed in settingup institutions and giving them authority, but theyoften fail in the fulfilment of national values ordirective principles –for the paradoxical reason thatthose who accede to these institutions may have littlecommitment to the values. It is interesting to note inthis context that at Bomas, politicians paid almost noattention to values, but were obsessed aboutinstitutions – knowing well that if they got hold ofinstitutions, they would be able to ignore values. Aswe know, most African constitutions contain excellentvalues and procedures, but, for the most part, theyhave failed to produce excellent states. In Kenya,even the essential pre-conditions of a constitutionalstate are missing: an independent judiciary, honestelectoral commissioners, absence of impunity, policiesthat are inclusive, the rule of law – and mostimportantly, ethical and moral standards in public life.These difficulties are compounded by manyunresolved historical injustices.They have failed in substantial part because of thesecond factor, which is external to the constitution,namely society. The constitution operates withinsociety and seeks to influence its development. Thedistinguished Indian sociologist, Andre Beteille,believes that a constitution can provide directions forthe national development and self-realization, butwhether, and the pace at which the developmenttakes place depends on society. The constitution mayset out guidelines for the exercise of power and theaspirations that the state must fulfil. But society alsoaffects the constitution, sometimes pushingpolicymakers to uphold the principles enshrined inthe constitution and sometimes negating thoseprinciples. I have already indicated that in Africa wehave placed unjustified reliance on the capacity ofthe constitution to influence society. I have alsoindicated that the political order intended to be setup by the constitution competes with other modelsand realities – and in the end it is society thatdetermines the extent to which the constitution willbe observed, manipulated, or disregarded.The African constitution not only fails to mould civicvalues or the behaviour of key political actors, it alsofails to generate a state that is capable of soundsocial policies and fair and honest administration.Andre Beteille’s brilliant insight needs to besupplemented by a consideration of the obstacles toprogress placed by the inherited, pre-constitution biasof the state apparatus. Perhaps inadequate attentionhas been paid to these obstacles, as opposed tosocietal obstacles, because it is assumed that theconstitution, par excellence, designs and structuresthe state. However, as I have mentioned above, itmay structure institutions, but may fail to infuse themwith values and principles. The constitution tends tostructure macro institutions but often says little aboutvalues and procedures of the administration of thestate (which may persist from one constitution toanother).The implication of this is that political reform has togo beyond the constitution. It is one thing to make aconstitution. It is quite another to breathe life into it,making it a living, vibrant document which affects,and hopefully improves, the reality of people’s lives.A living constitution is one that citizens use in theirdaily existence, that governs and controls the exerciseof state power, and promotes the values andaspirations expressed in it.


THE POLITICS OF VIOLENCE AND ACCOUNTABILITY IN KENYA . 117For these reasons, implementing a constitution is notabout this or that provision, or even the totality ofthe constitution, important as these are. It is aboutthe inculcation of a culture of respect for anddiscipline of the law, acceptance of rulings by thecourts and other bodies authorised to interpret thelaw, giving effect to judicial decisions, acceptance ofthe limits on the government, respecting andpromoting human and collective rights, theparticipation and empowerment of the people.Ultimately the people have to be guardians of theconstitution.Professor Emeritus Yash Ghai chaired both theConstitution of Kenya Review Commission and theKenya National Constitutional Conference (“Bomas”).His areas of research and publication include publiclaw, ethnic relations, autonomy and federalism,human rights, comparative constitutions, andsociology of law. He has taught at the Law Facultyof a range of universities including the University ofHong Kong University and Uppsala University, andbeen a visiting scholar in Harvard and Yale. In 2005-2008, Prof. Ghai was the Special Representative ofthe UN Secretary General for human rights inCambodia.A Radical Proposal to Deal with ourPrejudicesLukoye Atwoli21 August 2009The truth about the beliefs and perceptions of themajority of Kenyans is not to be found in eruditeforums and debates such as this one. To reallyunderstand the Kenyan mind, one needs to visit themarketplaces and the pubs in ethnically homogenousregions of this beautiful country. A recurring theme inmany marketplace and bar-room debates is the needforforeigners’ who have settled in other people’s‘territory’ to learn to respect the ‘indigenous’ people.In this view, the ‘foreigners’ must not compete forpolitical power with the ‘locals’, and whenever anational issue requires a vote, they must vote withthe ‘host’ community or face dire consequences.Below, I suggest a radical measure to dealcomprehensively and transparently with the hiddenand overt prejudices that fan periodic eruptions of‘political violence’ in Kenya.Views expressing a preference for ethnic homogeneitymay be forgiven if expressed only by ignorant villagefolk. Unfortunately these views are held by individualswho are expected to be opinion leaders in theircommunities, and actively reinforced by the mosteducated and urbanized Kenyans. It must also benoted that this view prevails not just in the Rift Valley,but across the entire country. Sayings such as ‘bloodis thicker than water’ have taken on new meanings,often suggesting exclusion of ethnic others and thepromotion of narrow supposedly ethnic interests thatoften benefit only a few (mostly) political elite. Thisreality raises fundamental questions about thehonesty behind public protestations of patriotism andKenyanness, particularly when many proponents ofthese divisive perspectives are received as heroes intheir communities.Taken to its logical conclusion, this thinking seems tosuggest that what needs to be done to rid thiscountry of the periodic orgies of bloodshed


118 . DEBATING INTERNATIONAL JUSTICE IN AFRICAassociated with electioneering and politics wouldnecessarily include radical legislative measures.If Kenyans prefer ethnic homogeneity, then a lawshould be urgently enacted in parliament barringanyone whose ethnic origin cannot be traced to aparticular area from vying for a post in that location.Everybody should be compelled to contest electoralposts only in the areas from which they can trace theirancestry. Thus, all elected leaders in Central Provincewill only be Kikuyu, in Western, Luhya, in North Eastern,Somali, and so on. As to what to do with relatively deethicizedurban centers like Nairobi, this question wouldbe left to the proponents of this ethnocentric thinkingto resolve as they partition the country into‘comfortable’ ethnically homogenous zones. Such a lawwould protect innocent voters from the ambitions offoolish Kenyans who still hold that democracy meansthat one can contest a post anywhere, every votecounts, and that the winner is decided by the vote. Asthis is indeed the current practice in most of thiscountry, such legislation would only be formalizingwhat many Kenyans think is the best approach.Indeed, the law should go further and enact a formof governance that does not require people to votedirectly for the national leadership, because this isanother area of contention. When the so-calledforeigners vote for a candidate of their choice whohappens not to be the favorite of their ‘hosts’, itoften results in animosity and chaos. Therefore,legislation that ensures that a president or primeminister is elected or selected far away from the voterwould safe-guard the poor citizens who go intopolling booths thinking that their vote is truly free ofcoercion and strikes a blow for democracy.These suggestions are not just the idle musings of adisturbed mind. They are informed by opinions andactivities that have taken root on the ground. Thecountry has already been secretly zoned into tribalenclaves, and the enclaves have identified theirchampions and leaders who are busy fighting fortheir ‘rights’. Indeed, at every constitutional reviewattempt over the last fifteen years, intelligent debateon devolution has been contaminated by a pedestriandefinition of majimbo whose very thrust has been‘our region for our people’, and assertions that‘outsiders’ must go back to their ‘home’ areas.Pretending that a different course is possible wouldbe a waste of valuable national time that could bespent more productively pursuing real developmentand change in the lives of individual citizens. Asolution such as that proposed above would go along way in eliminating the use of elections andpolitics as an excuse for murders and rapes that hasbeen deployed since the advent of multi-partyism.Legalization of our secret prejudices would thusexpose the criminals among us who take advantageof politics and elections to commit heinous crimesthat are then labeled ‘political violence’ and leftunpunished. In one fell swoop, we would haveaddressed the twin issues of violence and impunity,and hopefully Kenyans would become more honest intheir speech and intentions.Finally, this move would expose the true nature ofthe Kenyan Republic, and invite those like myself whodisagree with this sort of arrangement to activelyseek another place to call home. Attempting to dealwith this ogre of ethno-political balkanization inconventional ways of exhorting patriotism andnationalism will only end in more loss of life andproperty, since the citizens would remain deludedthat they can practice their freedoms of associationand assembly anywhere in this land.Dr Lukoye Atwoli is a Consultant Psychiatrist andLecturer at Moi University School of Medicine:.


THE POLITICS OF VIOLENCE AND ACCOUNTABILITY IN KENYA . 119Misconceptions I – The ICC and theTruth, Justice and ReconciliationCommissionLydiah Kemunto Bosire21 August 2009The Kenyan Cabinet recently resolved to put forwardthe Truth, Justice and Reconciliation Commission(TJRC) as a way to address the post-election violence.In this first of three essays looking at some of themisconceptions in the transitional justice debate inKenya (the next two contributions will considerdomestic and international prosecutions respectively),I evaluate whether the establishment of the TJRCmakes the Kenyan situation inadmissible before theInternational Criminal Court (ICC). Given the state ofthe debate about whether non-prosecutorialmeasures can demonstrate “an intent to bring theperson concerned to justice”, and the increasingdelegitimisation of the TJRC, the commission isunlikely to be seen as fulfilling the complementaritycriteria of the ICC.The debate about “credible” independent processesthat “meet international standards” that hasdominated Kenyan discussions about accountabilityoptions is in part a debate about complementarity –the idea in the Preamble of the Rome Statute of theICC that the Court “shall be complementary tonational criminal jurisdictions”. The complementarityprinciple preserves the primacy of domesticprosecutions for those responsible for internationalcrimes. Assuming “sufficient gravity” (an importantconsideration I do not address in this essay), theCourt can only act under Article 17(1)(a) if Kenya is“unwilling or unable genuinely to carry out theinvestigation or prosecution”. Unwillingness is definedin Article 17(2) as the initiation of proceedingscreated “for the purpose of shielding the personconcerned from criminal responsibility”, or in acontext where proceedings are unduly delayed orconducted in a manner “inconsistent with an intent tobring the person concerned to justice”. Inability isdefined under Article 17(3) to include a lack ofinstitutional capacity, as well as the “availability” ofthe national judicial system – in the sense of enablinglegislation, for instance – to carry out proceedings.Does the TJRC meet the complementarity criteria? Putdifferently, can a non-prosecutorial mechanismconduct “genuine” investigations with the “intent tobring the person concerned to justice”?The dominant perspective is that non-criminalproceedings generally are inconsistent with thecomplementarity doctrine. Under Article 17(1)(a), acountry can argue that a case is inadmissible beforethe ICC on the grounds that “the case is beinginvestigated or prosecuted by a state which hasjurisdiction over it”. As Scharf offers, because theArticle “requires an investigation but does not specifya criminal investigation…a state could argue that atruth commission (especially one modeled on that ofSouth Africa) constitutes a genuine investigation”(Scharf 1999:525). However, he proceeds to showwhy this could be a difficult line of argument tosustain, particularly because the Article further statesthat investigations should be consistent with “anintent to bring the person concerned to justice”, andthis phrase can be interpreted as requiring criminalproceedings. Similarly, under Article 20 whichprovides that a person who has been “tried byanother court” shall not appear before the ICC, acountry can argue that a person who has appearedbefore a truth commission is ineligible to stand beforethe Court. However, this argument would still have todemonstrate an intention to bring a person to justice.Besides, a truth commission is not a “court” (Scharf,1999:525-526).The view that prosecution is essential tocomplementarity was held by many in the antiimpunitycommunity in the situation of NorthernUganda. Here, it is worth noting the exchangebetween those who suggested that in a contextwhere prosecutions were thought to have thepotential to derail a critical peace process, the Courtcould, within its complementarity provisions, defer toalternative justice processes, and those who arguedthat such a deferral would amount to an abdicationof the Court’s core obligation to prosecute. While thisdiscussion was mostly appealing to prosecutorial


120 . DEBATING INTERNATIONAL JUSTICE IN AFRICAdiscretion under Article 53, where the Prosecutor candetermine to halt proceedings if they would not serve“the interests of justice”, the views expressed againstnon-prosecutorial measures were general to theconduct of the Court. According to Human RightsWatch (2005):the prosecutor may not fail to initiate aninvestigation…because of developments at thatnational level such as truth commissions, nationalamnesties, or the implementation of traditionalreconciliation methods, or because of concernsregarding an ongoing peace process.Leading advocacy organisations (including AmnestyInternational, Human Rights Watch) argued that tomake determinations about the merits and legitimacyof alternatives to prosecution would amount to theProsecutor making a political judgment, which wouldopen the Court to potential manipulation. From thisview, the complementarity language of the statutedoes not distinguish democratically demandedamnesties (such as those of the South African TRC)from the illegitimate amnesty of the Pinochet regimein Chile, viewing them both as unacceptable (Rodman2009: 103). This position was also confirmed byJudge Richard Goldstone, the former prosecutor atthe International Criminal Tribunal for the formerYugoslavia, who argued that if the South African TRCwere implemented in this age of the ICC, it would notbe acceptable. He argued that countries mustprosecute, political feasibility notwithstanding.Despite the dominance of this narrow view ofcomplementarity, a competing view argues for a rolefor non-prosecutorial processes in the age of the ICC,and advocates for a broader understanding of thenotion. This second view starts from the perspectivethat the Court was not established to overturn andcontradict the decisions of democratic states where,for instance, victims may decide to set up crediblenon-prosecutorial processes, or, as in South Africa,pursue prosecutions only against those who do notreceive amnesty. Further, this argument goes, a casecan be made that the “interests of justice” pursuedby the Court could be broadened to include therestorative justice pursued by institutions like TRCs byshowing that such alternative mechanisms are not“just a way of protecting the guilty from prosecution”(Roche 2005:568-569), but rather valid avenuesthrough which to address calls for truth, reparationand reconciliation. Further, given that theparticipation of perpetrators in TRCs is thought to becritical to the success of these mechanisms, the ICCcould target those who have not received amnestythrough this process, thereby providing an incentivefor such perpetrators to participate in national TRCs.Another suggested approach for collaborationbetween the ICC and a TRC could be one in which theICC collaborates with it to address those mostresponsible for violations (rather than just those whodo not receive amnesty). Here, cooperation of theperpetrator with the TRC “could be a mitigating factortaken into account by the ICC Judges in sentencing”(Roche 2005: 575).The call for collaboration between the ICC andlegitimate non-prosecutorial measures positions itselfas being pragmatic and principled. The argument ispragmatic in the sense that in a context of scarceresources, it would suggest that collaborativerelationships with mechanisms like TRCs can be usefulin ensuring as many victims as demand alternativeprocesses can receive them. Further, in a contextwhere scholars on the ICC are suggesting that theCourt should offer assistance to states to carry outtheir domestic prosecutions in a policy of “proactivecomplementarity” (Burke-White, 2008) even where itis clear that national processes in many resourcepoorcountries with weak justice systems will mostlikely fall short of “international standards”, thisbroader conceptualisation of complementarity may betimely. The argument also tries to shield itself againstattacks of politicisation by proposing a principledprocess of determining legitimate non-prosecutorialprocesses: those with the broadest support possiblein a society, and that are inclusive, supportive ofvictims, and complementary to other political reforms.Further, it suggests, credible alternatives are thosewhose merits would be vouched for by the broadestlevel of civil society (Roche 2005: 574-579).


THE POLITICS OF VIOLENCE AND ACCOUNTABILITY IN KENYA . 121The debate between the narrow and broaderinterpretation of complementarity continues part of abroader ongoing discussion about politics and theICC: while the Prosecutor remains firm that his duty isto “apply the law without political considerations”,one set of critics tell him that this position rangesfrom unhelpful to dangerous, and another set arguenot all non-prosecution amounts to a breach ofinternational legal obligation. But seriousshortcomings remain unaddressed in both the narrowand broader view of complementarity – the formercan be antidemocratic, while the latter canunderestimate the agenda-setting power ofinternational civil society in supplying empiricallyunproven “universal” models to local communities.at the International Criminal Court. Leiden Journalof International Law 22, no. 01: 99-126.Scharf, M. P. 1999. The Amnesty Exception to theJurisdiction of the International Criminal Court.Cornell International Law Journal 32: 507.Lydiah Kemunto Bosire is reading for her doctorate inpolitics at the University of Oxford, with a researchfocus on transitional justice in Kenya and Uganda.She is also the co-founder of Oxford TransitionalJusitice Research (OTJR). Previously, she worked atthe International Center for Transitional Justice, theWHO and the UN.Nonetheless, even if the Court were to find asymbiotic relationship with institutions like TRCs, theKenyan TJRC in its current form would be unlikely tomeet the proposed principled criteria in the broaderinterpretation, in part because those whose supportis necessary for the TJRC to be legitimate – mainly thevictims and civil society – have withdrawn theirsupport from the institution. Gravity aside, anincreasingly delegitimised, non-prosecutorialmechanism is unlikely to keep the ICC away; domesticprosecutions can.SOURCESHuman Rights Watch. 2005. The Meaning of “TheInterests of Justicein Article 53 of the RomeStatute. Human Rights Watch, June. Online:www.iccnow.org/documents/HRWInterestsOfJusticeJun2005.pdf.Burke-White, W. 2008. Proactive complementarity:The International Criminal Court and national courtsin the Rome system of international justice. HarvardInternational Law Journal.Roche, D. 2005. Truth Commission Amnesties and theInternational Criminal Court. British Journal ofCriminology 45, no. 4 : 565-581.Rodman, K.A. 2009. Is Peace in the Interests ofJustice? The Case for Broad Prosecutorial Discretion


122 . DEBATING INTERNATIONAL JUSTICE IN AFRICALeashing Kenya’s Dogs of War: ATheoretical AssessmentKorir Sing’Oei9 September 2009From the standpoint of constitutional law, thehanding over of the Waki envelope to the prosecutorof the International Criminal Court (ICC) representsthe ceding of judicial autonomy of the state to an‘exceptional court’. The establishment of a domesticspecial tribunal which supplants the supervisoryjurisdiction of the High Court and strips the presidentand attorney general of constitutional powers andimmunities has a similar effect. What would motivatea country like Kenya – by all indicators anauthoritarian regime – to delegate judicial powers?This essay reviews some of the key literature on whystates delegate judicial processes to auxiliary courts,interrogates some of the constraints, and providespossible pointers to successful trials in the Kenyancontext.At one end of the spectrum, Tamir Moustafa’sresearch on judiciaries in transitional contextssuggests that even though courts are oftentransformed into spaces for reinforcing the role oflegal norms in mediating politics, authoritarianregimes generally use courts for at least five reasons:social control, legitimation, controlling administrativeagents, creating credible commitments in theeconomic sphere and delegation of controversialreforms (Mustafa & Ginsburg 2008:1). While some ofthese reasons may not hold in the Kenyan context,some could. For instance, it is possible to imaginethat ‘disciplining’ political elites otherwiseuntouchable by the political system could secure elitecohesion. Similarly punishing the perpetrators of theviolence would reinforce commitment to the rule oflaw; an important ingredient in the stability ofproperty rights and an incentive to economicinvestments. This position seems to find support fromtransitional justice scholars such as Bronwyn AnneLeebaw, who argues that law (and by extension,courts) can be ‘utilized to obfuscate and legitimateabuses of power’ (Leebaw 2008:97). The offshoot ofthis position is that it is possible to have trials ofsuspects of the post-electoral violence without anycorresponding attainment of their transformativeintent. Consequently, Kenyan civil society should bealive to this possibility.A view opposite to Mustafa’s would be that Kenya isgenuinely keen on meeting its internationalobligations under both the Rome Statute and theGenocide Convention as evidenced by its willingness,albeit unsuccessful, to establish a national mechanismfor the trial of post-electoral violence perpetrators. Inthis sense, Kenya can be said to be committed toensuring adherence to international criminal law.Kenya’s attempted judicialization of politicaldifferences through an international criminal processcan be seen as compliance with such norms (Downs etal. 1996: 389).This argument is however unconvincinggiven the glib manner with which proposals at thecabinet level have been made to the effect that Kenyashould withdraw from the Rome Statute in order todeny the ICC jurisdiction over the Kenyan situation. Acountry buoyed by aspirations to comply withinternational standards would be unlikely to proposesuch actions. Instead, what emerges from this positionis that the Kenyan state will not pursue normativecompliance if the associated political and social costis, in the short term, onerous. Any cost-benefitanalysis is likely to centre around the succession ofPresident Kibaki: the cabinet’s latest decision toabandon the pursuit of a local special tribunal stemslargely from the perceived impact of any such trials onthe strategic and vote-rich Rift Valley province. Indeed,Prime Minister Raila Odinga appears to have lost thesupport of Rift Valley political barons due to hisenthusiastic support for such trials.The most common justification currently advanced insupport of international trials for Kenya’s war crimessuspects is based on the desire to end impunity. Whatthis means, among other things, is that by punishingperpetrators, retributive justice is effected for thevictims, and an increase in likelihood of punishmentof political elites will ensure that such crimes do notrecur. Deterrence theory in criminology, on which thisproposition is based, does not anticipate that officialswho have already committed human rights violations


THE POLITICS OF VIOLENCE AND ACCOUNTABILITY IN KENYA . 123will be stopped from committing further violations.Rather, the concern is how sanctions will affect thefuture behaviour of other actors. Of particularrelevance is the finding that beliefs about thelikelihood or probability of arrest and punishment inhuman rights cases, rather than the severity ofpunishment, have a greater deterrent effect (Buenode Mesquita 1995: 485). Deterrence research alsosuggests that deterrence is more effective forindividuals who have higher stakes in society (Nagin1998), which would seem to include the kinds ofstate officials complicit in Kenya’s killings. Sikkink’slatest research on the effects of human rights trials atthe domestic level provides quantitative support infavour of the deterrence effect of such trials. One ofher hypotheses is that countries that have heldhuman rights trials will see greater improvements inhuman rights practices than those countries that havenot held human rights trials. Her research, based on asurvey of 192 countries, including a good number ofAfrican states, suggests that those states with moreaccumulated years of trials after transition are lessrepressive than countries with fewer accumulatedyears of trials, and that truth commissions areassociated with improvements in human rightspractices, but that trials have a stronger effect thantruth commissions (Sikkink & Kim 2009). Similarly,Roht-Arriaza (2005) argues that human rights trials,either domestic or international, are both legally andethically desirable and practically useful in deterringfuture human rights violations.Although deterrence and compliance theories mayconverge at the level of impact, the latter looks moreat state conduct in the international sphere while theformer considers social transformations engenderedat the domestic level by targeted criminalproceedings. Both deterrence and compliancetheories are further consistent with rational choicethinking on this issue which suggests that stateofficials and politicians choose impunity andrepression because the benefits of such actionexceed the cost (Poe et al. 1999).Realizing deterrence in the Kenyan context, however,will be problematic if the current collectivization ofculpability or victimhood is not halted through bothcoercive and persuasive means. By ascribing blanketguilt or innocence to ethnic groupings, it is likely thatcollective mobilization of communities will dull theanticipated deterrent effect of such trials. Instead,the outcomes of such trials will be rationalized awayfrom justice and towards vindictiveness. Deterrencecan be nurtured, however, if prosecutions are seen toapply across ethnic cleavages so that the sting ofvictors’ justice is stayed. Nonetheless, this approachmay not be practical, especially if aggressioncontinues in a particular community more than inothers, a most likely scenario in the Kenyan case.In contrast to deterrence and compliance supporters,realist scholars problematize trials as a vehicle forattaining social cohesion. For instance, some scholarsof this persuasion argue that trials or threats thereofcould destabilize new democracies and lead to coups.They hold that ‘fragile states’ that undertake suchtrials could ‘commit suicide’ by dramatizing highprofilepersons’ arrests and incarcerations. Theyfurther argue that the threat of prosecution couldcause powerful dictators or insurgents to entrenchthemselves in power rather than negotiate atransition from authoritarian regimes and/or civil war(Goldsmith & Krasner 2003:49). Snyder and Vinjamuriposit that ‘Policies and institutions of humanitarianjustice are destined to fail’ and that ‘recentinternational criminal tribunals have utterly failed todeter subsequent abuses in the former Yugoslaviaand in Central Africa’ (Snyder & Vinjamuri 2003:40).In the same line of thinking, Mahmood Mamdani hasdisputed the efficacy of indicting Sudan’s PresidentOmar al-Bashir on the grounds that such attempts willneither secure stability in Sudan nor halt the bloodletting in Darfur. In this regard, he called for thesubordination of criminal accountability to the largerpursuit of political reforms. While no coup is likely tohappen in Kenya, the salience of this theory isobvious, and could explain the cabinet’s decision toshelve the pursuit of a local tribunal. Indeed, manycalling for justice to be tempered with reconciliationhave argued that the pursuit of justice should notcome at the expense of the survival of the state.However, proponents of this view have failed to show


124 . DEBATING INTERNATIONAL JUSTICE IN AFRICAhow such trials will imperil the Kenyan state. UnlikeIraq, Sudan, the Democratic Republic of Congo oreven the former Yugoslavia, Kenya has strongerinstitutions, notably an independent military, that canprovide relatively apolitical, even if sometimes heavyhanded,security arrangements. The assumption hereis that pressure emerging from high-profileinternational criminal trials could re-ignite ethnicbloodletting and trigger a military intervention. Bethis as it may, what is certain is that without thepolitical commitment to the impartial use of suchinstitutions, it is possible for state action to bemisjudged as serving partisan interests.This paper has presented a diverse body ofknowledge that could be deployed in the assessmentof Kenya’s decision whether or not to try the leadperpetrators of the post-electoral violence. Such anassessment must be alive to emerging empiricalevidence in favour of the deterrence effect of trials.The success of the Kenyan trials will depend largelyon the extent to which ethnic mobilization is checkedex ante. A comprehensive and sophisticated outreachstrategy is an important coefficient to this, as is aframework for prosecutions or other forms oftransitional justice that is consultative, accountableand above reproach. Kenya’s fractured politics wouldundoubtedly be tested most severely by a localtribunal whose proceedings Kenyan and internationalmedia cover extensively. Consequently, a responsivemedia able to provide balanced and sensitivereporting that would give dignity to the victims ofviolence and hate will be important. In the end,Mamdani’s assertion that deterrence may result fromprosecution only when the same rules apply for allwar criminals, regardless of national origin or politicalorientation, is appropriate for the Kenyan cases as inSudan’s Darfur.SOURCESDe Mesquita, B. B., & Cohen, L. E. (1995). Selfinterest,equity, and crime control: A gametheoreticanalysis of criminal decision making.Criminology, 33, 483.Downs, G. W., Rocke, D. M., & Barsoom, P. N. (1996).Is the good news about compliance good newsabout cooperation? International Organization,379-406.Goldsmith, J., & Krasner, S. D. (2003). The Limits ofIdealism. Daedalus, 132(1), 47-64. Kim, H., &Sikkink, K. (2007). Do Human Rights Trials Make ADifference? In Annual Meeting of the AmericanPolitical Science Association.Leebaw, B. (2008). The Irreconcilable Goals ofTransitional Justice. Human Rights Quarterly, 30(1),95.Moustafa, T., & Ginsburg, T. (2008). The Functions ofCourts in Authoritarian Politics. In Ginsburg, T., &Moustafa, T. (eds), Rule by Law: The Politics ofCourts in Authoritarian Regimes. CambridgeUniversity Press.Nagin, D. S. (1998). Criminal deterrence research atthe outset of the 21st century. Crime and Justice: aReview of the Research, 23, 1-42.Roht-Arriaza, N. (2005). The Pinochet effect:transnational justice in the age of human rights.University of Pennsylvania Press.Sikkink, K., & Walling, C. B. (2007). The impact ofhuman rights trials in Latin America. Journal ofPeace Research, 44(4), 427.Snyder, J. L., & Vinjamuri, L. (2004). Trials and Errors:Principle and Pragmatism in Strategies ofInternational Justice. International Security, 28(3),5-44.Korir Sing’Oei is co-founder of the Centre forMinority Rights Development (CEMIRIDE) and ahuman rights Attorney. His current research focus ison universality, citizenship, and indigenous peoples’rights in Africa.


THE POLITICS OF VIOLENCE AND ACCOUNTABILITY IN KENYA . 125Misconceptions II – DomesticProsecutions and the InternationalCriminal CourtLydiah Kemunto Bosire11 September 2009This is the second of three essays on misconceptionsin debates over transitional justice in Kenya. The firstessay considered complementarity and the Truth,Justice and Reconciliation Commission (TJRC), andargued that, if Kenya’s situation was otherwiseadmissible to the International Criminal Court (ICC),the TJRC in its current form is unlikely to satisfy theCourt’s complementarity test. This essay considers thediscussion on domestic prosecutions in Kenya. It pointsto some challenges in the proposed relationshipbetween the Imanyara Bill for the Special Tribunal forKenya (STK) and the ICC, and argues that the Billenvisions a relationship with the ICC which is bothoutside the Rome Statute and the current, narrowpractice of complementarity. Kenyan victims and antiimpunityadvocates depending on the ICC to give theSTK teeth are likely to be disappointed unless theCourt embraces a broader, more politically consciousengagement with Kenya. The next essay in the serieswill make the case for such an engagement.The Waki Report recommended the STK as theinstitutional response required to prevent the ICC’sinvolvement in Kenya. That initial coercive tactic failedto catalyse domestic prosecutions when the KenyanParliament rejected a constitutional amendment Billbrought by former Justice Minister Martha Karua inFebruary 2009. Subsequently, in what appeared to be“promises as usual”, the government agreed by theend of September to give the ICC Office of theProsecutor (OTP) a summary of progress towardsinvestigations and proceedings conducted “through aspecial tribunal or other judicial mechanism adoptedby the Kenyan Parliament”. In the event of a failure toinstitute domestic proceedings, the Kenyangovernment would refer the situation to the Court inaccordance with Article 14 of the Rome Statute.If the initial failure of the Waki envelope to trigger adomestic judicial response resulted in part from thefact that domestic actors perceived the ICC to be aremote threat, that perception was expected tochange when the Waki list of suspects was given tothe ICC. The ICC’s opening of the Waki envelopebecame the second (bigger) “stick” in the hands ofprosecutions advocates. This stick served to frame allpolitical struggles in the language of “impunity” v“justice”, as NGO statements cautioned that Kenya’sfailure to institute “genuine” proceedings that meet“international standards”- terms whose meaningswere assumed to be objectively understood – meantthat the ICC would now “step in” and “take over”.Nonetheless, the coercive force of the Court receivingthe list (and the accompanying headline photographsof the Prosecutor scrutinizing the names of suspectson the list) turned out to be overestimated, and theCabinet resolved to reject the STK, cooperate with theICC, strengthen the domestic judiciary, and revisit themandate of the TJRC.But the direct involvement of the OTP was notwithout effect. It provided the background againstwhich the use of the apolitical discourse of “genuine”proceedings in accordance with “international bestpractices” by the Minister of Justice in his push for hisvision of the STK within Cabinet meetings resonated.This, combined with the unrelenting internationalfocus on the desirability of domestic trials,contributed to shifting domestic anti-impunityadvocates from a perspective which primarilyendorsed ICC-only action, to one which included thepossibility of robust domestic prosecutions. This ishow Imanyara explained his personal change inpreference from “The Hague option” to the STK: anindependent domestic process obviated the need foran ICC-only position. Accordingly, the Imanyara Bill (of24 August 2009) proposed a two-tiered structurewhere the ICC and the STK would operateconcurrently in a division of labour: the ICC wouldprosecute authors of crimes, and a domestic processwould take charge of lower perpetrators. When askedabout the Bill in an interview with The Nation,Imanyara summarised the relationship as follows: “Inour revised Bill, we have introduced a clause to


126 . DEBATING INTERNATIONAL JUSTICE IN AFRICAleverage on the International Crimes Act, whichdomesticates the ICC, to have the ICC try themasterminds while the tribunal goes for the smallfish.” In this innovative partnership, Imanyaraconcluded, “Serious crimes will just have to go to TheHague.” This does not intend to give an historicallyefficient reading of the process – at thegovernmental level, a cynic might represent whathappened as simply a case where sections of afractured elite who were politically unhappy aboutdomestic prosecutions for a number of reasonsunrelated to “international standards” suddenly foundin the ICC and subsequently the STK a justificatoryframework for their uncompromising politicalpositions and a possibility of refashioning themselvesas reformists. Instead, it sketches one version of howthe ICC was eagerly woven into the narrative of whataccountability in Kenya must look like, and how itfound its way into Imanyara’s STK and into civilsociety discourse.Leaving aside the discussion about the accuracy ofthe analogies upon which Imanyara’s team draw instructuring the STK (“Remember, the Sierra Leonegovernment worked with the United Nations to set uptheir tribunal. The Rwanda tribunal was set up by aresolution of the UN Security Council. We’ll work withthe ICC”), this proposed relationship is captured intwo sections of the Bill. Section 3(a)(2) of theConstitutional Amendment Bill provides that the ICCwill maintain,concurrent jurisdiction to investigate, indict andprosecute persons bearing the greatestresponsibility and the Tribunal may at anystage, make a referral to the InternationalCriminal Court as set out in Article 14 of theRome Statute... if it deems it expedient....Further, Section 7(5) of the proposed STK statuteoutlines the jurisdiction of the Court, and states thattheTribunal may invoke Article 14 of the RomeStatute if deemed necessary and for avoidanceof doubt it is declared that the person orpersons on the list submitted to theInternational Criminal Court by the Chair of thePanel of Eminent African Personalities shall bedeemed to have been referred to theInternational Criminal Court.While some commentators hail this proposedrelationship as one that “cleverly marries the ICC andthe tribunal routes to justice” and “leaves opponentsof justice without any credible arguments against it”(see Human Rights Watch), both these sectionsarticulate a relationship with the Court that goesbeyond the confines of the Rome Statute. Article14(1) of the Statute provides that “a State Party mayrefer to the Prosecutor a situation in which one ormore crimes within the jurisdiction of the Courtappear to have been committed....” The referralprovided for by the Statute is from a “State Party”,not an independent institution such as the STK (noteven if the STK is mandated by the KenyanParliament). It is such an official state referral thatthe minutes of the ICC Prosecutor’s meeting with theKenyan Ministers envisioned, in which they statedthat Kenya will demonstrate its progress towardsending impunity and “in the alternative...theGovernment of Kenya will refer the situation to theProsecutor” (emphasis added). The head of theJurisdiction, Complementarity and CooperationDivision of the ICC was also quoted in the SundayNation stating that the OTP expected to meet withthe government at the end of September over thereferral. It is because of developments such as thesethat Adam Branch has labelled the Court “antidemocratic”because, he argues, in Uganda, theCourt served the unilaterally expressed interests ofPresident Museveni against the wishes of theUgandan people and their Parliament.Further, contrary to what the Bill suggests, thesubmission of the Waki list cannot constitute areferral, but rather is a transmission of“communications” to the Prosecutor; the listconstitutes one more piece of information to beconsulted (alongside the reports from NGOs, etc) inthe Prosecutor’s determination regarding whetherthere exists a reasonable basis to open an


THE POLITICS OF VIOLENCE AND ACCOUNTABILITY IN KENYA . 127investigation. These procedures are explained in greatdetail in the ICC paper, ‘Annex to the “Paper on somepolicy issues before the Office of the Prosecutor”:Referrals and Communications’.A further challenge to the STK’s proposed structure isthat it pays little attention to the contingent natureof the ICC’s involvement in a situation. Even ininstances of sufficient gravity, the determination ofwhether as a state is “unable” or “unwilling” toconduct “genuine” investigations can only be madeby the Court. In Kenya, “gravity” will also have to bedetermined. Given the nebulous nature of all thedefinitional terms and the conditions under whichthey are sufficiently satisfied to give the Prosecutorreasonable basis to proceed, there is an arguable riskthat Kenyan civil society and other pro-prosecutionsforces that rely on the ICC for the prosecution ofthose most responsible will be disappointed. In a2007 policy address in Nuremberg, the Prosecutorclarified the role of the Court:My duty is to apply the law without politicalconsiderations. I will present evidence to theJudges and they will decide on the merits ofsuch evidence. And yet, for each situation inwhich the ICC is exercising jurisdiction, we canhear voices challenging judicial decisions, theirtiming, their timeliness, asking the Prosecutionto use its discretionary powers to adjust to thesituations on the ground, to indict or withdrawindictments according to short term politicalgoals. …These proposals are not consistent withthe Rome Statute.While what was most relevant at the time of thisaddress was the peace process between the Lord’sResistance Army(LRA) rebels and the government ofUganda (where many advocates argued that the LRAwould not sign the peace agreement unless the ICCarrest warrants were deferred, and the ICC Prosecutorreminded them that his mandate did not extend tosuch ‘political’ considerations), the spirit of theassertion remains the same for Kenya: it is thesufficiency of the evidence, not the special politicalsituation of Kenya nor the role scripted for the Courtin the STK that will determine whether and how theProsecutor will proceed.Whereas the legal issues raised above can beamended in a future version of the Bill, the STK’sbroader challenge of proposing a relationship outsidethe current (narrow) practice of complementarityremains. To date, the Court’s practice ofcomplementarity has involved attempts to catalysedomestic prosecutions through threatening judicialintervention using the proprio motu powers of theProsecutor; setting standards for “genuine” domesticproceedings whose disregard can trigger a judicialintervention by the Court; and acting as the platformof last resort in cases where the national authoritiesare unable or unwilling to prosecute (Perrin 2006).Given this practice, what the Imanyara Bill calls“concurrent jurisdiction” requires a much widerinterpretation of complementarity.To be sure, the Bill derives its strength mainly fromthe proposed changes in domestic power structuresthat are not addressed in this paper: among otherthings, it seeks to remove the potential influence ofthe executive on the judiciary, makes the STKindependent of the Kenyan High Court, and requiresthe resignation of officials who are underinvestigation. However, critical aspects of itsperformance – such as the prosecution of the “bigfish” – appear to depend on a collaborativerelationship with an unpredictable ICC. Given thecurrent practice of complementarity, this proposedstructure may be mistaken. This is not to advocate fora particular prosecutorial platform, nor to suggestthat prosecutions secure particular social outcomes;such assertions would require an analysis that goesbeyond the technical processes that are the focus ofthis paper. Rather, it is to point out that, if domesticprosecutions through the STK are thought to requireexternal coercive force in order to be successful (inthemselves, quite apart from the social impact theymay or may not have), the current practices of theCourt make it an unpredictable source of suchcoercive force.


128 . DEBATING INTERNATIONAL JUSTICE IN AFRICAThe STK Bill – with the ICC written into it – constitutesanother attempt at coercing the Kenyan governmentto institute domestic proceedings. This time, the OTP(and the ICC by extension) is directly implicated in theKenyan narrative, and is likely to be affected by boththe success and failure of Kenya’s anti-impunityproject. Consider one likely scenario: if Kenya fails toestablish “genuine” domestic proceedings by the endof September, it has agreed to refer the situation tothe ICC in accordance with Article 14 of the RomeStatute. If the government makes the referral (ratherthan trying to prove the complementary nature ofany measures that may be underway by that point,including the TJRC), paradoxically, such a referralwould signal a failure of the Court in catalyzingcomplementarity, and would allow the government tooutsource to the Court the financial and politicalcosts of domestic prosecutions (Burke-White, 2008).Further, if, following such a referral, the Prosecutoranalyses the Kenyan evidence, finds no reasonablebasis to proceed, and communicates such a findingback to the state, the Prosecutor can find himself in amoral hazard of potentially emboldening domesticperpetrators. Such a determination is also likely toreduce the probability of successful domesticprosecutions. Consequently, the Court could losefurther legitimacy in the eyes of victims and civilsociety (even despite the fact that the Prosecutor canalways revise his decision not to proceed in light ofnew information), who may question, as victimselsewhere have, whether the Court serves theirinterests. Under these circumstances, and against thebackground where important constituencies of theCourt are increasingly engaged in public withdrawalsof consent to the institution, the ICC must engage inKenya in a politically conscious manner. In this spirit,the Imanyara Bill may offer the beginnings of a modelfor operationalising a broader understanding ofcomplementarity, or perhaps revisiting the ICC’sneglected vision of “positive” complementarity. It issuch a politically aware engagement that will be thefocus of my third essay.SOURCESBurke-White, W. W. (2008). Proactive complementarity:The International Criminal Court and national courtsin the Rome system of international justice. HarvardInternational Law Journal.Perrin, B. (2006). Making Sense of Complementarity:The Relationship between the International CriminalCourt and National Jurisdictions. Sri Lanka J. Int’l L.,18, 301.Stahn, C. (2005). Complementarity, Amnesties andAlternative Forms of Justice: Some InterpretativeGuidelines for the International Criminal Court. J IntCriminal Justice, 3(3), 695-720.Lydiah Kemunto Bosire is reading for her doctorate inpolitics at the University of Oxford, with a researchfocus on transitional justice in Kenya and Uganda.She is also the co-founder of Oxford TransitionalJusitice Research (OTJR). Previously, she worked atthe International Center for Transitional Justice, theWHO and the UN.


THE POLITICS OF VIOLENCE AND ACCOUNTABILITY IN KENYA . 129Kenya’s Economic Crimes: Can aConditional Amnesty be Meaningful?Kisiangani Emmanuel18 September 2009When a Kenyan Cabinet minister suggested in early2007 that perpetrators of corruption be pardoned ifthey confessed their guilt and returned the spoils,there was surprisingly little public reaction. This wasperhaps taken with a pinch of salt given that Kenyanpoliticians are good at talking but then doingnothing. But when former anti-corruption chief JohnGithongo (accused by some of behaving like a dramaqueen and self-appointed high priest), made a similarstatement in mid August 2008, his view madeheadlines that drew sharp reactions. One opinionpiece employed the headline, “Kenya to become aLooters’ Paradise.” Githongo, who fled to Britain in2005, claiming he feared for his life after accusingsenior members of President Mwai Kibaki’sgovernment of massive looting, had observed thatpast inquiries to establish culpability in Kenya had notonly delayed justice but often made accountabilitymuch more difficult. As the government’s permanentsecretary for ethics and governance, he exposed thenotorious Anglo-Leasing scandal, which involved statecontracts worth more than $1bn being secretlyawarded to phantom firms. The exposure forced theresignation from Cabinet of several ministers closelyassociated with President Kibaki, including ChrisMurungaru, David Mwiraria and Kiraitu Murungi,although the last two were later reinstated, afterinquiries failed to find them guilty.Interestingly, Githongo’s amnesty call receivedsupport from the then Justice and ConstitutionalAffairs Minister, Martha Karua, who observed thatgranting amnesty was the only sure way for thegovernment to win the war against corruption. Karuapromised to have the Cabinet approve laws to grantamnesty in exchange for the stolen wealth. Previouslyconsidered a member of Kibaki’s inner circle, Karuaresigned in April 2009, before the amnesty law couldsee the light of the day, citing frustrations indischarging her duties. The question that emerges is:what are the prospects for corruption prosecutions inKenya? This paper argues that while corruption is oneof the most significant contributors to structuralinequalities, extreme levels of poverty, and thedecayed state of Kenya’s economy, there are anumber of legal and political constraints that makeprosecutions unproductive. Instead, the countryshould consider using conditional amnesty to recoverthe stolen property and public funds.In the course of debates on the amnesty-for-economiccrimes proposal, members of civil society accusedthose behind the call of disingenuity and beingmotivated by vested political interests. Mwalimu Matiof Mars Group Kenya, an anti-corruption pressureorganisation, opposed the proposal, arguing that theKenyan government had consulted no one aboutabandoning its duty to investigate and prosecutecrimes of corruption. He maintained that bysupporting Githongo’s proposal, the government wasacting as if “Kenyans had nothing to do with decisionson their own resources which were stolen from them.”Mati argued that the amnesty provision would giveeconomic criminals and looters of public funds “a getout-of-jail-freecard while hungry chicken thievescontinue to be automatically sent to jail to pay fortheir petty crimes”. Writing in the Business Dailynewspaper, Jim Onyango likewise observed that theplan to offer amnesty to the architects of pastcorruption could wipe out the taxpayers’ hopes ofrecovering more than KSh200 billion (about2,909,937,160 USD) lost to plunderers in the past twodecades. Githongo’s suggestion was also dismissed byanother columnist as laughable: “If I steal a mobilephone but could be let off the hook if I makerestitution, then we make a mockery of the judicialsystem. Theft has to be punished no matter what.”While prosecuting perpetrators of past economiccrimes remains appealing to the majority of Kenyans,several past and present factors pose monumentalchallenges to this strategy. Many of the casesinvolving influential individuals have often ended upin acquittals due to technicalities or insufficientevidence, as evidence is normally destroyed orcorrupted beforehand. Indeed many past cases ofgrand corruption in Kenya remain unresolved, with


130 . DEBATING INTERNATIONAL JUSTICE IN AFRICAlittle to show from the myriad of government anticorruptioninitiatives. This is certainly not a problemunique to Kenya: in most developing countries withweak institutions, attempts to use the judiciary andordinary criminal law to fight large-scale corruptionhave often failed due to procedural technicalitiesemployed by defence lawyers, lethargic prosecutions,and ingratiating judicial systems.In Kenya, the problem is illustrated by one of theCommissions of Inquiry set up by the Kibakiadministration to investigate the ‘Goldenbergscandal’, a case in which the Moi government lostbillions of Kenyan shillings through compensation forfaked export of gold. The Commission’s inquiry washeld in public, and uncovered the intricate websurrounding the looting of public funds from theCentral Bank of Kenya. However, in the report,Commission Chairman Justice Samuel Bosire observedthat while massive sums of money had been siphonedout of the country by the Goldenberg scheme, theCommission was unable to trace it.In 2003, the Kenyan government sought recourse toasset-tracing and recovery of looted funds and spentwell over Ksh 20m (approximately 273,973 USD) totrack the stolen billions in foreign accounts, with littlesuccess. Apparently, those who stashed this money inoffshore accounts were not only able to hire the bestdefence lawyers around, but actually frustrated thetracking effort by using third parties to transfer themoney to other accounts once they realised theywere being followed. The difficulties in pursuinginvestigations were compounded by foreign bankinglaws, which in some cases impeded investigations.Albert Mumma, a lawyer, argues that assets allegedlyacquired by means of corruption can only beconfiscated in Kenya, once a myriad of legalprocesses has been followed, and that the stateneeds to prove beyond doubt that the cash orproperty concerned was obtained through graft. Headds, “This would take a long, long time to prove. Wewould be sitting in court hearings for years.” In asimilar vein, Patrick Kiage has argued that duringKibaki’s time in power, there has been no flood ofcases dealing with the past economic crimes beingfiled in the Criminal Division because there is just“not enough time or resources to re-open files longclosedor open new ones in pursuit of trails long coldand dead.” To him, were the Kibaki’s Government topursue many of the past economic crimes throughcriminal proceedings, the government “may long havebeen shunted out of power before the first batch ofcases is complete.” Indeed, it would be just asdifficult to trace illegally acquired money deposited inKenyan banks, as there is currently no law thatsupersedes the confidentiality clause binding thesebanks to their customers. In addition, legislation isrequired to define how to treat persons whounknowingly bought property from those whoobtained it through graft, as this would certainlyinvite possible costly lawsuits.So while members of the civil society continue torightly accuse the Kenyan government of lackingpolitical will and commitment to uproot graft in thecountry, there is also need to appreciate the inherentdifficulties in pursuing the prosecutorial approachagainst perpetrators of economic crimes. Whilecorruption has been endemic and even threatens totear apart the entire country’s socio-economic andpolitical fabric, there is a need for prudent andpragmatic measures that would promote bothaccountability and social reconstruction. Eventually,the overriding consideration should be to secure thestolen assets. This is where the amnesty suggestioncan be meaningfully applied. A similar approach wasadopted this April 2008 in Kazakstan, allowing thosewho wanted to come clean to put their money inspecial accounts, which would then not be subject topenalty or taxation. Kazakh officials said some 500million USD was brought in while the law was ineffect.How can the provision of conditional amnesty inKenya be meaningfully and creatively applied torecover stolen property or public funds and underwhat conditions? One suggestion would be to carryout detailed investigations in order to gathersufficient information about those past corruptpractices and, if possible, freeze the related accountsand assets. Subsequently, with a damaging dossier, it


THE POLITICS OF VIOLENCE AND ACCOUNTABILITY IN KENYA . 131would be imperative to ask the suspected corruptindividual to voluntarily return the money and receiveamnesty or be prosecuted. This way, corruptindividuals are more likely to cooperate. The amnestyprovision can therefore be used as a leverage orcredible threat to have individuals cooperate in therepatriation of stolen national assets. Those who failto cooperate should then be threatened withprosecutions and such other measures like prohibitionfrom holding of public office.Dr Kisiangani Emmanuel is a Senior Researcher atthe Africa Programme of the Institute for GlobalDialogue, South Africa. His areas of interest includeTransitional Justice, Conflict Management and PeaceBuilding, Political Governance and DiplomaticDiscourse.When Truth-Seeking Efforts FaceChallenges of CredibilityLydiah Kemunto Bosire25 September 2009When Prof. Makau Mutua suggested that the LiberianTruth and Reconciliation Commission (TRC) may havelessons for Kenya, he focused on the robustrecommendations of the Commission. He did notexplore another reason why Kenya might look toLiberia: the crisis of credibility that plagued thebeginning of Liberia’s TRC process. This essay arguesthat there are good reasons to take seriously thechallenges to credibility, because they often denote ashortcoming in institutional legitimacy, itself thoughtto influence the effectiveness of transitional justiceprocesses. The essay does not intend to suggest thatcredibility causes, or can be equated to,effectiveness; while credibility can be thought of asnecessary, it is only one of a broad range of factorsthat affect the capacity of an institution to achievethe goals it pursues. Rather, this essay shows howTRC procedures in Liberia, the Democratic Republic ofCongo (DRC) and Serbia affected the manner in whichthe institutions were perceived and draws somelessons for Kenya.In Liberia, the Comprehensive Peace Agreement of 21August 2003 recommended the establishment of atruth commission as one of the institutions oftransition. Soon after, Gyude Bryant, the Chairman ofthe National Transitional Government (NTGL),appointed nine commissioners to a truth commissionin January 2004 – before there was even a TRC Act.This immediately created a significant challenge tothe credibility of the Commission, namely the lack ofselection criteria for the commissioners, publicconsultation, or clarity regarding the Commission’sgoals. Civil society pointed out that the Commission“lacked set objectives, mandate, jurisdiction or legalstatus” (TRC Report, Vol.2 p140, 8.1.1). Following aseries of civil society consultations and workshops, aTRC Act was drafted and presented to the Chairman inAugust 2004. More pressure resulted in the Chairmanforwarding the TRC Act to the Legislative Assembly in


132 . DEBATING INTERNATIONAL JUSTICE IN AFRICAApril 2005. After further lobbying by civil society, theTRC Act was finally signed into law on 10 June 2005.The TRC Act Section 9 (b) summarized the problem:Recognizing that the Chairman...appointedcommissioners before the enactment oflegislation establishing the Commission...[and]affirming the need for the TRC process to becredible and legitimate and accepted by thenation...the Commissioners appointed by theChairman…will be vetted.Accordingly, the first set of commissioners appointedby Chairman Bryant were vetted in accordance withthe guidelines of the Act to ensure that no memberof the Commission would be “known or perceived ashuman rights violators or members of groups involvedin human rights violations; and without priorconviction for a crime” (Section 11, Liberian TRC Act).Only two of the initial nine commissioners wereretained by the new selection panel. Indeed, theinitial chair of the initial Commission, Dr. CanonBurgess Carr, did not survive the vetting (TRC report,Vol.2, p142). The vacancies created allowed for sevennew commissioners to be selected by a representativepanel. It was this “second” TRC, inaugurated byPresident Ellen Sirleaf Johnson in January 2006 – twoyears after the “first” TRC – that delivered the reportto which Prof. Mutua referred.However, not all commissions with credibilitychallenges have recovered. Here, the examples of theDRC and Serbia are worth mentioning. Similar toLiberia’s initial process, in the DRC, seven members ofthe TRC Bureau were appointed directly by thewarring parties following the peace agreement,before the TRC law was promulgated. The seven hadformal relations to the groups implicated in thecrimes of the war, thereby leading to civil societyprotest about the integrity of the Commission.According to some observers, commissionercompetence and human rights records were alsoquestioned. The government eventually passed a TRCLaw that appointed 13 additional commissioners(without removing the first set of commissioners),but this action did not change the negativeperception of the Commission. Neither did theappointment of Reverend Jean-Luc Kuye-Ndondo asthe president of the Commission: while he was amember of the church, he was presiding over aninstitution whose moral authority was in question,and besides, some thought he lacked the “statureand charisma needed to provide symbolic unity” tothe DRC. Consequently, the TRC was criticized andmarginalized, becoming by some accounts a “stingingfailure”.In Serbia, the TRC project faced credibility challengesfrom which it never recovered. In March 2001,President Kostunica instituted the Yugoslav TRC. TheTRC was announced a day before the US was due tocertify continuation of financial support, and wastherefore seen by some as aimed at appeasing theUS. The Commission was lacking on many fronts. First,it was neither consultative nor inclusive: of the initial19 members appointed, there were “mostlynationalist conservative academics” (Subotic 2007:96), only two were ethnic minorities, and other civilsociety groups were under-represented. Second, itsmandate was seen as an attempt to attribute blamefor the war rather than an attempt to grapple withthe consequences for victims. Further, theCommission sought to shed light on a broaderYugoslav crisis from an ethnic Serbian perspective.Consequently, some commissioners resigned from theTRC, further affecting the credibility of the exercise.The TRC could not even organize a public hearing onthe Srebrenica massacre. It was disbanded in 2003when the office of the federal presidency wasabolished. The conclusion of observers is that inSerbia, the truth commission “brand” is “utterlydevalued” (Subotic 2007: 98).There are significant differences between Kenya andthe other TRC projects mentioned above: while Musilapoints out that in Kenya there was minimalconsultation with NGOs during the drafting of theTJRC Bill, the law nonetheless seemed to containreasonable procedures for commissioner selection.Section 9 of the Kenyan TJRC Act provided for aselection committee that was constituted by thenJustice Minister Martha Karua, and it consisted of nine


THE POLITICS OF VIOLENCE AND ACCOUNTABILITY IN KENYA . 133individuals: seven representatives from different socialgroups and two representatives from a list of sixKenya-based religious organizations. The role of theselection committee was to nominate the persons forthe Commission, in accordance with given selectioncriteria. The committee selected 15 names in April2008, from whom the president appointed sixcommissioners. However, upon the appointment ofthe commissioners on 22 July 2009 under theguidance of Ambassador Bethuel Kiplagat, prominentsurvivors of past state violence protested, citingKiplagat’s prominent role in the Moi regime. Theylaunched a law-suit against him. In this context, someobservers called for the deputy Chair, Ms BettyMurungi, to resign lest she tarnish her reputation.Given the detailed nature of the selection process, howcould controversial individuals have been picked to theCommission? One answer may lie in a minor change inthe criteria for Kenyans to serve on the Commission.While an earlier version of the Bill stated in Section10(5)(c) that commissioners must not have been“involved, implicated, linked or associated with theperpetrators or supporters of the acts, crimes orconduct under investigation”, the final TJRC Act statesthat the commissioners must not have been “involved,implicated, linked or associated with human rightsviolations of any kind”. With this change, it waspossible for possible actors associated with“perpetrators or supporters” of human rights violationswithin in the Kanu regime to become commissioners.Another reason why controversial commissioners werepicked despite a seemingly rigorous selection processmay be simply mathematical: the nature of realcompromise required for nine individuals to select 15names can be negligible.Perhaps a bigger challenge to the TJRC has been thevilification of its mandate, as “reconciliation” isincreasingly seen as a dirty term, synonymous with“impunity”. While these terms have flexible, politicallycontextual meanings, the current negative perceptionof the TJRC may stem in part from the possibility thatthe opportunity cost of the Commission issignificantly higher in 2009 than it was in 2003,when Kenyans initially advocated for the TJRC: in2003, the alternative to the TJRC was thecontinuation of the status quo. In 2009, in light ofthe Waki report and the subsequent public debate,the alternative to the TJRC is seen as prosecutions.This higher cost makes compromise harder to accept.Consequently, erstwhile advocates of the TJRC such asthe National Council of Churches of Kenya (NCCK)state that they “shall neither recognize [the TJRC’s]work nor engage with it when it commences itsproceedings unless the cabinet reverses its decision[to expand the TJRC’s mandate and representation]and either refers the matter to the InternationalCriminal Court at The Hague or establishes a credibleand effective local tribunal.”Is there a risk that the TJRC brand may become“utterly devalued” or a “stinging failure” in Kenya, aswas the case in Serbia and the DRC? From the threecases above, it appears that truth commissions cansucceed, underperform or fail depending on howcredibility challenges are addressed. Further, thesethree contexts highlight that “credibility” is oftenused as a synonym of “legitimacy”. If a legitimateinstitution is one that, among other things, pursuesthe general interest as understood by citizens (ratherthan by power-holders) and whose authority isconsented to by relevant constituencies (Beetham1991), the Kenyan TJRC faces a legitimacy gap. Andto the extent that legitimacy has a reciprocalrelationship with effectiveness (of the institution initself, outside any claims it may make about broadersocial impact and consequences), this gap ought tocause concern. Prominent Kenyan victims, whosecooperation is thought to be critical for the successof the TJRC, have publicly withdrawn support from theinstitution, and cast into doubt the ends it seeks.Such a withdrawal can affect the quality ofcollaboration the institution receives from suchstakeholders, and can result in the institutionexpending more time and resources counteracting theeffects of legitimacy gaps, rather than on the difficulttask of historical clarification. It is for this reason thatthe concerns about credibility should not bedismissed lightly.


134 . DEBATING INTERNATIONAL JUSTICE IN AFRICAYet the official response to these challenges has beenweak and uncertain, suggesting that the governmenthopes the questions will soon disappear. Thegovernment suggested (then discarded) a revision ofthe mandate of the TJRC. It also suggested expandingthe number of commissioners, a suggestion that wasbroadly rejected because it was read as having ethnicimplications. The latter proposal may have been useful:for instance, on the list of rejected potentialcommissioners were two clergymen – ArchbishopBenjamin Nzimbi and Reverend Timothy Njoya. Giventhe centrality of Christianity in Kenyan life, the absenceof religious representation in the Commission may bean oversight whose consequence has been theChurch’s rejection of the TJRC. However, there has notbeen a comprehensive suggestion of how to addressthe matter of the credibility of the individuals alreadyon the Commission. If the DRC has any lesson to offerthe Kenya case, it is that leaving this issueunaddressed can undermine the TJRC’s moral authority.Nor has any measure been taken to respond to theconflation in people’s minds of reconciliation andimpunity in the absence of prosecutions.Before making recommendations of potential avenuesfor relegitimation for the TJRC, it is important to notethat while the basic argument of this essay is that itmay be necessary for a commission to be credible inits initial set-up, it does not imply that suchcredibility is sufficient for the exercise to besuccessful in giving robust recommendations. Neitherdoes it suggest that such robust recommendationsactually make any difference for reconciliation, humanrights and democracy (or other goals of transitionaljustice), as such an assertion would require ananalysis of the interplay among broader political andsocial conditions beyond the scope of this essay.Nonetheless, it is reasonable to think that identifyingand addressing current and potential credibilitychallenges can increase support for the TJRC. Ifdissatisfaction about some TJRC office-holders ischanging to disaffection towards the institution as awhole, a procedurally transparent replacement ofthose commissioners whose integrity is in realquestion may help the project regain its moralauthority. While it is impossible for the Commission toplease everyone, the language of reconciliation isoften invoked in a moral register, and it would seemfoundational that the TJRC’s office-holders are heldup to the same standards that the people it iscreated to serve deem appropriate. Procedurally, theTJRC selection committee has the authority underSection 9(2)(b) of the Act to “consider an applicationfor the removal of the chairperson or acommissioner”. To date, there are no reports of theselection committee convening to address theseconcerns expressed by sections of the population.However, if compelling reasons make a revision to theinstitutional infrastructure of the TJRC undesirable topolicy makers (even after they take into account thepotential costs of embarking on the institutionwithout moral support), then alternative avenuesshould be explored through which to give therelevant constituencies opportunities to shape and“own” the TJRC process. As experts of Liberia pointout, the “new” Liberian TRC had to endure furthercredibility challenges in the course of its work,including disputes over how to hold public hearings,disagreements over which victims would testify, andtense relationships between the commissioners andtheir advisors. The Kenyan TJRC can anticipate thesepotential future challenges to its credibility andestablish appropriate participatory procedures. Forinstance, the TJRC could consult with victims ondifferent ways to conduct public hearings, as modelsrange from Ghana (formal court-room reproductionswhere perpetrators could cross-examine victims) toPeru (more informal sessions where victims couldnarrate their stories as they pleased). Finally, forKenyans more broadly, the cost of supporting the TJRCmay be perceived differently (and the flexiblemeaning of reconciliation adjusted accordingly) ifother judicial measures are also implemented.SOURCESBeetham, D. (1991). The legitimation of power.Macmillan.Subotic, J. (2007). Hijacked Justice: Domestic Use ofInternational Norms. University of Wisconsin–Madison.


THE POLITICS OF VIOLENCE AND ACCOUNTABILITY IN KENYA . 135The ICC and Moreno-Ocampo are alsoon TrialGabriel Dolan9 October 2009I don’t envy Louis Moreno-Ocampo in his position aschief prosecutor of the International Criminal Court(ICC). However, that is not to suggest that I will beeither sympathetic or forgiving if he botches theinvestigations of Kenya’s high-profile suspects. Thisarticle argues that Kenyans must monitor theapproach and performance of the ICC in the country.When the Rome Statute was enacted in 1998, humanrights advocates everywhere enthusiastically gloatedover the prospect of a World Court that would finallyconfront the demon of impunity. We began to believethat leading perpetrators might run but they could nolonger hide. Indeed, we thought that prosecuting‘those bearing the greatest responsibility’ for warcrimes, genocide and crimes against humanity, meantthat never again would the world witness atrocitieson the scale of the twentieth century.However, seven years after the ICC’s establishment,there is much more scepticism than delight over itscapabilities and performance. For most of that time,the Court has lacked staff, resources and internationalsupport. Paper pledges and political indifference havecharacterised most of its tenure.Beginnings are always difficult and admittedly, muchtime and effort have gone into establishing the Courtand enlisting member states. Currently, 110 stateshave ratified the Rome Statute. Missing in that list,however, are such superpowers as India, China, Russiaand the United States. No wonder then that USAmbassador to Kenya, Michael Ranneberger, couldissue only puerile threats about the reform agenda,and have nothing of substance to say about impunityand support for the ICC. Regrettably, this point wasmissed by most commentators in their debate on theletters sent by the US to blacklisted Kenyan politicians.Lacking support from the major powers, Moreno-Ocampo has spent most of his time acting more like adiplomat than a criminal prosecutor. His strategy hasfocused on persuasion and co-operation rather thanenforcement of the Rome Statute. In fairness, he hashad little option as the ICC mandate may well be clearand precise but it lacks enforcement powers. In otherwords without its own police force, the Court istotally dependent on international co-operation toapprehend suspects.As a result, he has been reduced to going about hiswork by trial and error. However, we have witnessedmore errors of judgment than court trials in the lastseven years. Indeed the only trial currentlyproceeding in The Hague is that of little knownThomas Lubanga of the Democratic Republic ofCongo (DRC), and that case is moving at a snail’space.Moreno-Ocampo hardly got off to a dream start in2004 with his handling of the conflict inneighbouring Uganda. Instead of using hisprerogative powers, he sought an invitation from theUganda government to investigate atrocities innorthern Uganda. President Museveni gladly acceptedthe opportunity to co-operate, since he believed theICC would focus only on atrocities committed byJoseph Kony’s Lord’s Resistance Army (LRA) with noinvestigations of atrocities committed by the Ugandanarmy. To date, the ICC’s prosecutorial strategy hasmirrored Museveni’s expectations. The ICC got its firststate referral case and Museveni got another weaponto attack the LRA. Moreno-Ocampo was thereafterwidely accused of reluctance to prosecutegovernment officials.However, in fairness, the indictments against Konyand four of his rebel leaders did have an impact onthe war in the region. The LRA became increasinglyisolated as Sudan could no longer grant it a safehaven, and with the signing of the ComprehensivePeace Agreement in 2005, Khartoum was obliged todisarm all militias and maintain peace. Consequently,Kony and company were forced to the negotiatingtable. Their arrests have remained elusive but theatrocities have considerably reduced.


136 . DEBATING INTERNATIONAL JUSTICE IN AFRICAThe ICC has also been accused of targeting Africanstates. However, the cases of Uganda, DRC andCentral African Republic have all been state referralcases. The case of Sudan, however, represents aserious change in approach. The Sudaneseindictments came as a result of a 2005 UN SecurityCouncil Resolution, as Sudan has not ratified theRome Statute. A UN resolution ostensibly has worldbacking and Moreno-Ocampo used that leverage toremove his kid gloves and openly indict current stateofficials for the first time in the ICC’s history.The first warrants of arrest for Sudan were issued forMinister Ahmed Haroun and Janjaweed leader AliKushayb in 2007. On 4 March 2009, the Pre-TrialChamber granted Moreno-Ocampo’s request to issuea warrant of arrest for President Bashir. That markedthe most significant achievement of the ICC to dateas a sitting head of state was indicted for the firsttime. It sent shock waves across the continent andbrought world attention to the ICC and Moreno-Ocampo, who had accused Bashir of ‘exterminatinghis own people’.At the African Union (AU) summit in Libya in July,continental leaders said they would not co-operate inthe arrest of Bashir. In reality the political leaderswanted to protect their allies and worried they couldbe the next ones arrested.So the Kenyan case comes at a very significantmoment in the ICC’s development. The ChiefProsecutor appears to have grown in confidence andis anxious to have a high-profile case to garnerinternational support for the Court. The question iswhether he can perform and deliver. The Kenyan casehas the potential to make or break the ICC andMoreno-Ocampo knows that.respect it has failed to do justice to victims. Moreno-Ocampo himself has stated that ‘arrests are essentialfor the ultimate efficiency and credibility of thecourt’.The ICC cannot be allowed to fail in Kenya. Moreinvestigators and professional staff need to beemployed while a regional office must be establishedas a matter of urgency. The International CriminalTribunal for Rwanda (ICTR) is scheduled to wind up itshearings in Arusha at the end of this year. Would theTanzanian city not be an excellent venue for ICCregional offices and local tribunal chambers?Elaborate plans for witness protection are alsoessential if we recall that after a commission ofinquiry into the assassination of Dr Robert Ouko, 42witnesses ‘died’ in a few years.Kenyans have great faith in the ICC’s ability toprosecute the principal perpetrators of the postelectionviolence. Those who suffered and survived,the internally displaced persons (IDPs) and thefamilies who lost lives and livelihoods deserve thebest justice the world can offer. However, when theICC begins its work, we must not let the virtual courtof the world’s political powers allow politicalexpediency to take over at a critical stage in theproceedings. That is why we must treat with suspicionEuropean, American and UN pledges to end impunity.This case is about Kenya, and Kenyans must not sitback passively and wait for the ICC to set the pace forinvestigations and prosecutions. They must be proactiveon every front to ensure that we have asatisfactory outcome. Kenyan civil society mustmonitor Moreno-Ocampo’s performance from theoutset and remind him and the ICC that they are alsoon trial in this country.To date, the ICC has at best operated as a deterrent.The stigmatisation of naming and shaming sittinggovernment officials has spread trepidationeverywhere. Arrest warrants have considerablyreduced the likelihoods of atrocities and that is aconsiderable achievement. Yet, the Court wasestablished to prosecute and punish and in thatGabriel Dolan has worked in Kenya since 1982,mostly with Catholic Justice and Peace Commissionon issues of human rights. Currently, he works onthe rights of slumdwellers’ rights in Mombasa.gdolan54@gmail.com.


THE POLITICS OF VIOLENCE AND ACCOUNTABILITY IN KENYA . 137Why Kenyans Must Embrace andSupport the TJRCGodfrey M. Musila2 November 2009The debates over transitional justice in Kenya havebeen largely silent on the issue of the Truth, Justiceand Reconciliation Commission (TJRC). It is evidentthat beyond the initial commentary at the TJRC’sinception – when the appointment of somecommissioners was vigorously queried – much of theattention has focused on possible prosecution of keyperpetrators either in The Hague or by the SpecialTribunal for Kenya. One could attribute this fixationwith The Hague, Special Tribunal and the envelopedelivered to the Prosecutor of the InternationalCriminal Court (ICC) to the contentious nature of theprocess, and the fact that the Prosecutor’s sights aretrained on some Kenyan principals. However, Isuggest that this sole focus on prosecutions – and inparticular the ICC – is somewhat misguided. Here, Iconsider, based on the strength of several legal,policy and practical considerations, why Kenyans needto embrace and own the TJRC.First, we need a comprehensive view of justice. Whileprosecutions are necessary, international law requiresthat we prosecute at least the most serious crimesand those who bear the greatest responsibility. Butjustice is not complete by only jailing a handful ofperpetrators. We need approaches that will attend tothe concerns of victims such as reparations,rehabilitation and truth telling. We also needapproaches that address the broader nationalquestions that foster inter-ethnic rancor, impedepeaceful coexistence and national reconciliation.Second, the ICC can and will only prosecute a fewindividuals. Even locally, a Special Tribunal andnational courts cannot prosecute all of those whowielded machetes, stones and homemade guns. Wemust find other options of accountability. This is whatthe recent endorsement by the ICC Prosecutor for a‘three-tier approach’ is about.Third, we must internalize the fact that trials will onlyyield judicial truth: truth relating to whether aparticular individual is guilty or not for a particularcrime. Trials will not tell us enough about context andhistory. Trials reveal little – and will leave unopenedthe closets of Wagalla, Likoni, Molo, Burnt Forest,Elgon and other places. Crucially, the law will preventus from prosecuting most – if not all – crimescommitted decades ago because of the problem ofretroactivity. But at the TJRC, we can open thoseclosets and ensure that the victims of Wagalla atleast know the truth, and have an opportunity toreceive reparations. We may know who perpetratedthe violence, and find ways of ensuring they accountfor it: for instance we can ban the public figuresamong them from running for public office.The TJRC’s process should not be equated toimpunity. One of the key functions of the TJRC is toensure this global truth comes to the fore, isrecorded and committed to national memory. It willensure that no one re-writes history to suit their ownbeneficial narrative. It will ensure that we come toterms with the past and begin to find ways of movingforward. The events of 2007 occurred partly becausewe have too many unaddressed instances of injustice.Fourth, we must embrace the TJRC because we as anation called for it. We must support it because weneed it. The TJRC is not a foreign imposition. It is noteven an imposition by politicians or the Kofi Annantalks. The TJRC has deep roots in batteredcommunities around the country. Since at least 1992,Kenyans thirsted for truth. The Mutua Task Force in2003 said as much. When Kenyans spoke to the GhaiCommission on constitutional reforms (CKRC), manysaid the same. It is safe to conclude that in 2003, theTJRC’s creation was merely suspended because ofpolitical games.Fifth, truth commissions – unlike trials – operateflexible procedures that allow for the widest possibleopportunity for victims to participate, tell their storiesand confront their tormentors in a less adversarialand friendly forum. Access to justice is of paramountimportance. Few victims can locate The Hague on a


138 . DEBATING INTERNATIONAL JUSTICE IN AFRICAmap. Even fewer will participate in The Hague orreceive reparations should trials commence. The TJRCcan – and should – bring a keen listening ear andjustice to a town they know near them.Sixth, as the cases of South Africa, Sierra Leone andothers demonstrate, truth commissions have theirflaws. While we may want as many people as possible– if not every perpetrator – to be prosecuted forcrimes, this may not be possible for some of thereasons suggested above. Further, insisting onprosecutions may not foster truth telling. That is whythe Truth, Justice and Reconciliation Act that createsthe TJRC provides that those who testify before theCommission will not incur criminal or civil liability. Iremain convinced that without a TJRC, where peoplecan talk without fear of prosecution and other harm,we are bound to repeat the murderous folly of 2007-2008. Truth can set Kenyans free.We must address the concerns of victims. Thisrequires different forms of unwavering governmentand civil society commitment. Those currentlygrappling with matters of constitutional and otherinstitutional reforms must act diligently and with asense of historic responsibility. They must considerthemselves part of, rather than separate from, thebroader transitional justice project that is unfolding inKenya.Dr Godfrey Musila is a senior researcher at theInstitute for Security Studies in Pretoria, SouthAfrica. A version of this opinion appeared inThe Standard on Wednesday 21 October 2009.The TJRC can only succeed if we want it to succeed.We may not like some commissioners for a range ofreasons, but we can make the process our own. Wemust publicly and critically ask piercing yetconstructive questions of the TJRC. Sometimes thesheep know best where the grass is greener, and theshepherd must follow.However, truth searching must be managed in atransparent and accountable manner. The huntermust have the right tools, and must know their craft.It is important that the Commissioners, especiallythose inexperienced in matters related to truthcommissions, gain a deep understanding of therelevant issues. The TJRC must have the right gearthat will enable it not only to open, scrutinize andrecord what lies within closets of historical injustice,but to commence a process though which at leastsome of its key consequences can be addressed. Itmatters what you do with the truth you haveunearthed. For these reasons, the TJRC must besupported, but it cannot stand alone. The ICC isrelevant, as are the Special Tribunal and the nationalcourts. Moreover, this comprehensive process must besupported by other related measures.


JUSTICE AND RECONCILIATION IN ZIMBABWE . 139Justice and Reconciliation in ZimbabwePARTFOURTransitional Justice Will Have to WaitIsmael Muvingi16 January 2009INTRODUCTIONTalk of transitional justice before political transition inZimbabwe is premature and possibly pointless. Thefocus of discussion therefore needs to shift towardthe more immediate and pressing imperative ofpolitical change. Zimbabwe stands on the brink of aSomalia-type disorder, and regional efforts have thusfar concentrated on pressing the Movement forDemocratic Change (MDC) into joining the Mugaberegime in the hope that this will facilitate an orderlytransition of power. For the MDC, that route isfraught with danger, but transition is fast becoming adesperate need rather than a political aspiration.In this essay, I highlight three arguments that militateagainst the pursuit of transitional justice at this point.First, holding ZANU-PF accountable for its criminalconduct is not feasible while the party still holds thereins of power. The ZANU-PF political elite will resistaccountability, the police and senior army personnelare complicit in criminal conduct, and the judiciary hasbeen co-opted by the government. Second, anyattempt at truth telling and reconstruction of theZANU-PF’s political, social and economic narrative is atthis point equally unfeasible and will pose seriousphysical danger to any potential participants. Third, thecountry is literally on its knees economically andcurrently has neither the political will nor the resourcesfor embarking on transitional justice processes.Repressive regimes rarely engage seriously inaccountability processes that focus on their ownactions. It is therefore hard to imagine ZANU-PFacceding to transitional justice processes in any formwhile it remains in power. Transitional justice, in itsnarrowest conception, is limited to the criminalprosecution of wrongdoers, but on morecomprehensive accounts, it encompasses a widerrange of processes as defined by Alex Boraine:accountability, truth recovery, reconciliation,institutional reform and reparations. 1 Taking each ofthese transitional justice options in turn, it is clearthat none of these can be envisioned in Zimbabwebefore a radical political transformation.UNFEASIBLE TRANSITIONAL JUSTICE OPTIONSFirst, accountability comes through the rule of lawand in Zimbabwe today that is seriously compromised,and is likely to remain so until there is genuinepolitical change. A partisan police force that is itselfone of the instruments of repression is unlikely tobring ZANU-PF personnel to justice, and even if it did,a judiciary that has been bought off with farms andsatellite TVs is not likely to mete out justice to itsbenefactors. Therefore, accountability based oncriminal prosecution is not an option.Second, there have been various experiments withprocesses for recovering the truth about pastviolations: truth commissions, trials, victim andoffender narratives and public discourses, amongothers. These mechanisms all presume an ability ofparticipants to speak with considerable freedom andsecurity. But, public disagreement with ZANU-PFremains a very dangerous enterprise and conditionsare not yet conducive for truth seeking. The dreadedCentral Intelligence Organisation (CIO) and the ZANU-PF militia (the so-called “green bombers”) must bedisbanded before anyone can feel safe aboutspeaking out against the government. Third, attemptsat reconciliation would be both potentially hurtful andpossibly counterproductive at this point as people’swounds are not only still open but are still beinginflicted. There cannot be reconciliation whilegovernment suppression continues unabated.Fourth, prosecution of ZANU-PF leaders requiresserious institutional reform, but this in turn requires


140 . DEBATING INTERNATIONAL JUSTICE IN AFRICAat the very least the political will for change and asignificant resource commitment. The MDC may havethe commitment and could conceivably mobiliseinternational aid and investment, but so far it has noteven gained a toehold on power. Mugabe’s conductduring the negotiations for a Government of NationalUnity indicates that ZANU-PF has no desire torelinquish political control. Meanwhile, ZANU-PF lacksthe resources to keep the existing institutionsfunctioning, let alone embark on any sort of reform.The government’s only answer to a collapsingeconomy has been to print more and more worthlessmoney.Finally, is it desirable for compensation or restitutionto be paid to those whose rights have been violated?Reparations are a symbol of contrition that helpsfoster reconciliation and in some cases they canconstitute substantive restitution for the lossesvictims suffer. But this is unlikely in Zimbabwe. Thestate coffers are empty and compensation raisesmany thorny issues, including questions of whowould pay for reparations; whether it can bejustifiable that public resources raised from taxingcitizens, some of whom have themselves beenvictims, be used for reparations; and in particular,whether there is sufficient acknowledgement ofwrongdoing and willingness to compensate on thepart of ZANU-PF.ADDRESSING THE HUMANITARIAN CATASTROPHEConcurrent to the political and economic dynamicsthat currently constrain the feasibility of anytransitional justice processes, there is a humanitariandisaster unfolding in Zimbabwe. This gives urgency tothe need for a political transition so that desperatelyneeded resources can be channeled into the country.The UN’s Food and Agricultural Organisation (FAO)states that droughts and floods as well as a shortageof necessary farming inputs have caused a seriousfood shortage. 2 As a result, the UN estimates that “inthe first quarter of 2009 more than 5.1 millionpeople, nearly half the population, will require foodassistance.” 3 Where food and other basic necessitiesare available in the country, they remain unattainableunless one has external sources of funding orprofesses allegiance to the ruling party. Given theunemployment levels and the record breakinghyperinflation, life for the ordinary person is nasty,brutish and, for many, short. Zimbabwe now has thelowest life expectancy rate in the world. 4The health situation in Zimbabwe is perilous. Thecountry already had one of the worst HIV-Aidsproblems and now, due to the failure of thegovernment to ensure sanitation, a cholera outbreak isdecimating urban populations. With the onset of therainy season, if there is no external intervention, thingswill only get worse. South Africa has so far resistedcalls for it to use its considerable leverage to bringabout political change in Zimbabwe, but the disaster isnow spreading into South Africa. Cholera-strickenZimbabweans are flocking south in their hundreds insearch of medical services. 5 Major Zimbabwe hospitalshave shut down and there are few medical facilities orsupplies within the country. As some reports haveindicated, hospitals have simply turned into morgues.It is so bad that Physicians for Human Rights has calledfor Zimbabwe’s collapsed healthcare system to beplaced under international receivership. 6The ZANU-PF government is incapable of addressingthese crises because it is a central part of theproblem. It has no money, no international political orsocial capital for securing aid and clearly has run outof ideas for tackling the collapse. The government didattempt to secure aid and investment from China asan alternative to Western human rights-conditionedassistance and dwindling investment. 7 So far however,the “look east” policy has not helped resuscitate thecollapsing economy. 8 In a desperate move, thegovernment is now trying to court Russia. Mugabehas never liked Russia, which as the Soviet Union,supported his political rival, Joshua Nkomo, and todate Mugabe has studiously avoided having any closerelations with Moscow. 9 The outcome of the newinitiative remains to be seen, but given pastperformance, hope in this latest venture would bemisplaced.These realities emphasise the need for politicaltransition before any talk of transitional justice. A


JUSTICE AND RECONCILIATION IN ZIMBABWE . 141famous community mobiliser stated, tongue in cheek,that ethics are the prerogative of the victor or at thevery least the successor. 10 That may sound cynical,but there is a logic to it. The very prospect of facingjustice ranks high if not top of the list in explainingthe intransigence of the Zimbabwean uniformed brassand political elite. They have much to fear from theirpast conduct. They would have to be extremely naïveor altogether out of touch with reality to expectforgiveness from the victims of state brutality. ZANU-PF will continue to use every conceivable tactic toavoid accountability.Zimbabwe is thus caught between the proverbial rockand a hard place. Should immunity and a goldenhandshake be promised to encourage ZANU-PF to letgo? That option is tempting and has driven the MDCto participate in a patently undesirable negotiationexercise and the resultant “government of nationalunity.” It is an unattractive proposition because theMDC risks contamination by association and, worse,inheriting the ZANU-PF mess without the power toclean it up. An outright electoral victory would havegiven the MDC a clean slate and a firm grip ongovernment, but clearly free and fair elections underZANU-PF control are not possible. The state ismilitarised and the population is terrified. TheNational Constitutional Assembly has started to talk interms of do or die: that it may be time to face armybullets and get real changes through a publicuprising. After all, people are dying anyway. But thisis a nation that has been traumatised by statebrutality and debilitated by hunger, disease and thememories of another recent war. And there is apolitical vacuum: the middle class and even asubstantial proportion of the working class have fledthe country.Archbishop Desmond Tutu and Kenyan Prime MinisterRaila Odinga have called for forceful intervention, withJulius Nyerere’s 1978 intervention in Uganda in mind.But as Mugabe has scornfully challenged the Africanleadership, who in Africa has the moral standing toforcibly remove him? Botswana has called for anAfrican blockade, which could conceivably work ifimplemented, but requires South African support,which will not happen. The South African governmentshouts the language of human rights and social justicebut its foreign policies betray a serious disregard forthe wellbeing of ordinary Zimbabweans. It has beenthe major stumbling block for United Nationsresolutions condemning Mugabe and ZANU-PF. 11That brings us to the harsh realities of politicalcompromises and the sacrifice of justice. Immunity forMugabe and ZANU-PF is what Thabo Mbeki’s quietdiplomacy sought to achieve: Mugabe gets a goldentwilight and ZANU-PF avoids accounting for itsmisdeeds through a long drawn out transition. That isa bitter pill for justice. But then the present is not agood place. Paradoxically ZANU-PF’s major bargainingchip has been the desperate condition of the masses:their salvation for ZANU-PF’s immunity.Perhaps as Boraine said of Afghanistan, whatZimbabwe currently needs most is food, medicationand good governance. 12 Transitional justice shouldtake second place to the need for political changethat will enable reconstruction to begin. The mainimperative now is literally survival. It is also social andpolitical order. If the disgruntlement in the army ranksspreads, the worst of the Zimbabwean situation mayyet be to come. Therefore, while transitional justiceremains desirable and important, what is currentlymore pressing is to determine how political powercan be transferred and the humanitarian crisisaddressed.The Southern African Development Community hasforced through a government of national unity. TheMDC’s Tsvangirai will be the prime ministerresponsible for rescuing the country from collapse,but he takes on the challenge without much poweras Mugabe remains president with the power ofdismissal. The international community has expressedscepticism and the EU has made clear it will notresume aid or investment unless there is evidence ofreal change. The sub-region is divided, with Botswanaopenly criticising the outcome of the negotiationsand Zambia and Tanzania reportedly unconvinced ofthe viability of this option. Internally, people areclinging to any source of hope, but there too,


142 . DEBATING INTERNATIONAL JUSTICE IN AFRICAscepticism is widespread. 13 A new and clean election,managed by the African Union or the United Nations,would have been ideal. As second best, somesignificant devolution of power from ZANU-PF wouldhave helped start the transition of power. Instead,Mugabe secured everything he wanted: somebodyelse to share the blame but not the power. SADC hasauthored a fait accompli and rendered an externallysupervised election near-impossible. Now we can onlyhope that Tsvangirai can work a miracle ofextraordinary proportions.1. Alexander L. Boraine, “Transitional Justice: A HolisticInterpretation”, Journal of International Affairs; Fall 2006; 60, 1.2. FAO report “Extreme dry weather worsens food situation inZimbabwe: Bleak prospects for the upcoming harvest” 10 April2008, Rome3. IRIN “Zimbabwe: Food relief operators are overwhelmed” UNOffice for the Coordination of Humanitarian Affairs 26 November2008 http://www.irinnews.org/report.aspx?ReportId=81475(visited 26 November, 2008)4. Bob Herbert “Zimbabwe Is Dying” New York Times, January 16,20095. Andrew Geoghegan, “Zimbabwe cholera outbreak a humanitariancrisis: S Africa” ABC News 26 November, 20086. Cape Times, Call to place Zimbabwe’s collapsed healthcare underworld receivership January 14, 20097. Friedrich-Ebert-Stiftung The ‘Look East Policy‘ of Zimbabwe nowfocuses on China Policy briefing paper Harare, November 2004http://www.nuso.org/upload/evento/Zimbabwe.pdf (visited 19thJanuary, 2009)8. Bayano Valy “Zimbabwe: ‘Look East’ Policy Pays Dividends –President The Herald 27 March 2008.9. Lebo Nkatazo “Mugabe set for rare visit to Russia”NewZimbabwe.Com 06/01/2009 http://www.newzimbabwe.com/pages/abramovich3.19232.html (last visited 19th January, 2009)10. Saul D. Alinsky Rules For Radicals 1989 Vintage Books, New York,pg 2611. Violet Gonda “South Africa blocks UN motion on Zimbabwe” SWRadio Africa Zimbabwe news 16 December 2008http://www.swradioafrica.com/news161208/sashame161208.htm(last visited January 20th 2009)12. Boraine supra 2713. IRIN “Zimbabwe: Underwhelming Confidence in Power-SharingDeal” 2 February 2009 http://allafrica.com/stories/200902021517.html (visited 3rd February, 2009)Ismael Muvingi is an Assistant Professor of ConflictResolution at Menno Simons College, affiliated withthe University of Winnipeg: imuvingi@gmail.com.Political Crisis, Mediation and theProspects for Transitional Justice inZimbabwe 1Shari Eppel and Brian Raftopoulos18 December 2008INTRODUCTIONOn 15 September 2008, the Zimbabwe AfricanNationalist Union Patriotic Front (ZANU-PF) and thetwo Movement for Democratic Change (MDC)formations signed a political agreement brokered byThabo Mbeki under the mandate of the SouthernAfrican Development Community (SADC). Theagreement was the culmination of a process thatbegan in March 2007, itself preceded by variousother attempts by African leaders, as far back as2004, to bring an end to the Zimbabwean politicalcrisis. The central aim of the September agreementwas to find a power sharing arrangement that wouldreflect the balance of political power in the countryafter the March 2008 elections, which, together withthe abortive presidential run-off election at the endof July 2008, left the issue of the presidential electionunresolved. While the Agreement left key areas, suchas the allocation of ministerial portfolios, unresolved,it also comprised a good basis for moving the politicalsituation forward in Zimbabwe.One of the major silences in the Agreement, however,was around the area of transitional justice. This wasnot surprising given that ZANU-PF, the majorperpetrator of human rights offences in the postcolonialperiod, was unlikely to support such aprocess. Moreover, the MDC for its part, with its ownproblematic history of intra-party violence, neithersought to make this issue a deal breaker in thenegotiations, nor had the political muscle to enforcesuch an inclusion. Thus, the September 2008Agreement contained one section that set out to:give consideration to the setting up of amechanism to properly advise on what measuresmight be necessary and practicable to achievenational healing, cohesion and unity in respectof victims of pre and post independence politicalconflicts. 2


JUSTICE AND RECONCILIATION IN ZIMBABWE . 143The context for this provision was a discourse in theAgreement that combined demands for dealing withhuman and civic rights abuses with the need toresolve issues around the redress of historicalinequalities. Thus, the language sought to encompassboth ZANU-PF’s redistributive demands around theland question, with the more political demands fordemocratisation that have become the hallmark ofthe MDC and civil society movements in Zimbabwe. 3 Itis around such tensions in the political struggles inthe country that discussions on transitional justiceneed to be contextualised.Within the framework of the broad structural andhuman rights abuses that were a constitutive part ofcolonial rule, there have been three major periods ofhuman rights abuses in Zimbabwe: the war ofliberation, 1965-79; the disturbances in Matabelelandand the Midlands, 1980-1988; and the era ofviolence since 2000. 4 The human rights abuses of thecolonial period were generated in the long strugglesbetween the violent structural exclusions of settlercolonial ideology and practice, and the oftenintolerant assertions for unity by a nationalistmovement that was “majoritarian withoutqualification.” 5 In the post-colonial period, acombination of the authoritarian legacy of settlerrule, the militarist forms of nationalist struggles andthe monopolisation of the state by the ruling partybred a new round of human rights abuses that havecontinued into the present period. Moreover, suchabuses have been embraced with various amnestylaws at the end of each period of state-led violence.Since the 1990s, with the emergence of vibrant civilsociety struggles around constitutionalism and humanrights in Zimbabwe, human rights organisations haveintensified their efforts to place transitional justicequestions on the national political agenda. Theofficial report on the disturbances in Matabelelandand the Midlands in the 1980s was arguably the firstmajor call for transitional justice in the independenceera, and remains a central reference point forcontinuing work in this field. 6 Its majorrecommendations centred on the following issues:national acknowledgement; human rights violators;legal amendments; identification and burial of theremains of missing persons and remains buried inunmarked graves; health; communal reparation; andconstitutional safeguards. Many of theserecommendations remain pertinent today.Following this report, an important symposium on“Civil Society and Justice in Zimbabwe” was held inJohannesburg in August 2003, assembling many ofthe key civil society organisations working in thisfield. This symposium set out severalrecommendations to deal with human rights abusesin both the colonial and post-colonial periods. 7 Manyof these recommendations were then included in therecommendations of a Harare workshop held by theZimbabwe Human Rights Forum on 9-10 September2008. The Forum called for transitional justicemechanisms that would recognise the followingprinciples: “Victim-centered; comprehensive; inclusive;consultative participation of all stakeholdersparticularly the victims; the establishment of truth;acknowledgement; justice, compensation andreparations; national healing and reconciliation, nonrepetition;gender sensitive; transparency andaccountability; and nation-building and reintegration.”8 The Forum also set what it termed“non-negotiable minimum demands for a transitionaljustice process,” including:(iv) No amnesty for crimes against humanity,torture, rape and other sexual offences, andeconomic crimes such as corruption;(v) No extinguishing of civil claims against theperpetrators or the state;(vi) Comprehensive reparations for victims ofhuman rights violations;(vii) No guarantee of job security for thosefound responsible for gross human rightsviolations and corruption;(viii) A credible and independent truth seekinginquiry into conflicts of the past which holdsperpetrators to account and which provides


144 . DEBATING INTERNATIONAL JUSTICE IN AFRICAvictims with the opportunity to tell theirstories with a view to promoting nationalhealing;(ix) Independent monitoring and reform ofoperations and structures of the police,army, paramilitary, security coordination,administration of justice, food distributionand other organs of state involved in theimplementation of the transition;(x) Development of interim or transitional rulesto guarantee the rule of law and upholdingof all basic rights during the transition,including the right to engage in politicalactivities. These rules must be enforceable.They must be encapsulated in amendmentsto the Constitution or an interimconstitution. Such rules must remain inplace until free and fair elections are heldand until a final Constitution, endorsed bythe people, is in place; and(xi) Gender equity in official bodies and fortransitional justice initiatives to payparticular attention to marginalisedcommunities in Zimbabwe. 9These demands comprised a wish list of desirableprocesses and outcomes for transitional justice andaccord with Alex Boraine’s conception of the five keypillars of what he calls a “holistic approach totransitional justice”: accountability; truth recovery;reconciliation; institutional reform; and reparations. 10However, it is also clear that such demands areunlikely to be implemented in Zimbabwe, given thenature of the September political agreement, and thebalance of political power in the country. Thus thereis a danger of setting out civic demands fortransitional justice that are, to use MahmoodMamdani’s critique of the ethos of the Truth andReconciliation Commission (TRC) in South Africa, a“combination of strong moral fervor and weakpolitical analysis.” 11Moreover, such transitional justice recommendationstend to gloss over the longer term structuralinjustices that have engendered Mugabe’sauthoritarian nationalism and the anti-colonialdiscourse that has constructed the human rightsquestion as a Western imposition. In the context ofthe failures of neo-liberal economic policies in Africa,the efficacy of transitional justice processes that arenot connected to broader structural changes in theeconomy can very quickly be undermined by revivednationalist politics around redistributive agendas. It istherefore important to understand the broader globalcontext for the emergence of TRCs in which the latterhave “served as instruments for re-establishingpolitical and institutional stability according to liberaldemocratic norms” and the discourses ofreconciliation, forgiveness and political consensus“have been understood as the basis for movingforward into an era of market-driven economicprogress.” 12 The Zimbabwe crisis and the repudiationof reconciliation politics that accompanied it at theend of the 1990s, emerged in the context of a failedeconomic liberalisation programme. 13 Given theenormity of the economic collapse that characterisesthe current situation in the country, and the globalcatastrophe around de-regulated finance capital in2008, measures around transitional justice that losesight of these major structural constraints have littlechance of success.It is therefore the major purpose of the rest of thispaper to set out the current political and economicconstraints on transitional justice in Zimbabwe inPart II, and then, in Part III, to suggest ways inwhich transitional justice options can begin to be setout. It is hoped that the analysis provided here willpresent a more realistic assessment of the prospectsof transitional justice processes being placed on thecurrent national political agenda in Zimbabwe.THE POLITICAL CONTEXT 2008The 29 March 2008 elections for parliament, senate,local government and the presidency led to the firstelectoral defeat for the ruling party ZANU-PF and itspresident Robert Mugabe. The two formations of theMDC, which split in October 2005, won a majority


JUSTICE AND RECONCILIATION IN ZIMBABWE . 145109 seats in parliament against ZANU-PF’s 97 seats,while the first round of the presidential vote gave theMDC leader 47.9% of the vote to Mugabe’s 43.2%.The remainder of the vote went to ZANU-PF dissidentSimba Makoni. However the inability of eitherpresidential candidate to win 50% plus one of thevotes necessitated a run-off. The state-led violencethat preceded this run-off at the end of June was ofsuch intensity that even Mugabe’s long standingsupporters in SADC and the African Union (AU) couldnot endorse his election “victory.”Mugabe’s failure to receive an endorsement in Africacombined with long-standing condemnation from theWest increased pressure for the Mbeki-led SADCmediation to find a political solution to the crisis. On21 July 2008 both ZANU-PF and the two MDCs signeda Memorandum of Understanding (MOU) committingtheir parties to “creating a genuine, viable,permanent, and sustainable solution to the Zimbabwesituation.” The agreement also set out to achieve theimmediate cessation of violence and the withdrawaland disbanding of militia groups, paramilitary campsand illegal blocks; the normalisation of the politicalenvironment; the reinstatement of access byhumanitarian agencies to the people of Zimbabwe inorder to provide food, medical and other criticalservices throughout the country; and the commitmentnot to take any decisions that would have a bearingon the agenda of the dialogue such as the conveningof parliament or the formation of a new government.On 24 July 2008 ZANU-PF and the two MDCs resumedthe negotiations that had broken down before theMarch elections. By 6 August the negotiatorsadjourned with several issues outstanding, including:the duration of the transitional government; the formand structure of the interim constitution; frameworkissues pertaining to the new government; the powersand duties of the president and the prime minister inthe transitional government; and the method andappointment or election of the prime minister andpresident. Whereas the South African mediators hadcrafted a compromise that attempted to spreadexecutive authority of an inclusive governmentbetween the President, Prime Minister and cabinet,the MDC of Morgan Tsvangirai saw the compromise asallowing Mugabe to retain too much power as theHead of State. For Tsvangirai and his party, anyagreement under the MOU needed to reflect theparliamentary and presidential outcomes of the Marchelections, effectively installing Tsvangirai as interimhead of state until a new presidential election couldtake place under a constitutional reform processendorsed by a referendum.In ZANU-PF’s view, Tsvangirai asked too much of theMarch elections, which had left the Presidencyundecided. The ruling party thus sought to retain asmuch power as possible under a government ofnational unity headed by Mugabe, with the JointOperation Command composed of the heads of thearmy, police and security services, continuing to playa central role. In the words of one of ZANU-PFsnegotiators, Patrick Chinamasa:There is no basis whatever to justify Tsvangirai’sdemands. He wants President Mugabe to become(former titular President Canaan) Banana. Butjudging by the March 29 Elections there can beno basis for these demands. What he is askingfor is a transfer of power, not a sharing ofpower. 14Mugabe’s negotiators felt that “no single party canargue for transfer of power to itself because nosingle party has the absolute majority to say we areentitled to have power transferred to us.” 15 Thegrowing congruence between the position of thesmaller MDC, on the one hand, and ZANU-PF andSADC on the other stemmed from several factors;including the increasing tensions and lack of trustbetween the two MDCs since the 2005 split; theshrinking of the support base of the Mutambaraformation; and the greater reliance on the mediationprocess by the Mutambara group to secure a footholdin a political settlement. That the minority MDCgained 10 seats in the March election also gave itimportant leverage between the two major politicalparties, since it held the votes that could swing themajority in parliament. Since the discussions beganunder the July MOU, the tensions between the two


146 . DEBATING INTERNATIONAL JUSTICE IN AFRICAMDC formations continued. Mugabe was quick tocapitalise on these tensions and attempted tocultivate a closer relationship with the Mutambaragroup, thus weakening the negotiation position ofthe opposition.against the executive, blocking attempts by Mugabeto govern outside of a broader agreement. The thirdpart of the MDC approach was a somewhat fatalistbelief that the crisis economy would effectivelyundermine Mugabe’s ability to govern.The result of these tensions between the two MDCswas exemplified in the vote for the speaker ofparliament on 25 August 2008. Both MDCs put uprival candidates for the post, with most of the ZANU-PF MPs voting for the Mutambara candidate PaulThemba Nyathi. The Tsvangirai candidate, LovemoreMoyo, won the speakership with additional votesfrom both ZANU-PF and the smaller MDC, dealing amajor blow to the smaller MDC. In the process ofMoyo’s winning the speaker position, Mugabe wasjeered and howled at during his speech in parliament,and suffered deep humiliation. This event evoked ashort-term sense of opposition victory. However, thesad irony of watching the two MDCs foreground theirown differences before the larger problem of theMugabe regime underscored the continuingdifficulties of building strong opposition politics inZimbabwe.With the continuing blockages in the mediationprocess, the Tsvangirai MDC formation adopted athree-pronged strategy against the Mugabe regime.First, it chose to reject the current terms of theagreement crafted through Mbeki’s mediation, and topush for the mediation process to be shifted fromSADC to the AU and the UN. This position accordedwith the MDC’s well known distrust of Mbeki’s “quietdiplomacy,” as well as with the tensions thatemerged between Mbeki and the EU/US on theZimbabwe question, with the latter pushing for a UNSecurity Council decision on sanctions against theMugabe government. Both the EU and the USrepeatedly stated that they would only accept anagreement on Zimbabwe that registered a decisivemovement of power away from Mugabe. This is theposition that the Tsvangirai MDC took in its attemptto move the negotiation initiative away from SADC.The second, and perhaps less important, prong ofattack by the MDC was to use its control of thelegislature to create an alternative centre of powerThe first prong of this strategy was unlikely tosucceed, given that the AU took its cue from SADC onthe Zimbabwe question, particularly sincerepresentatives of the AU had been part of theextended reference group attached to the SADCmediation. It would thus be very difficult for thecurrent Chair of the AU, Tanzanian President JakayaKikwete, who had been critical of Mugabe, to movethe AU away from the collective SADC position.Regarding the UN it was unlikely that either China orRussia, particularly in the context of the Georgiaconflict, would support another attempt by the EU/USto get a Scurity Council sanctions vote againstZimbabwe. On the Paliamentary strategy, Mugabe hadalready begun a process, after the March 2008elections, of whittling down the majority position ofthe MDC by arresting MDC MPs suspected ofengaging in election violence. 16 Such a strategy wouldalmost certainly intensify in the event of a persistentdeadlock in the mediation.Turning to the belief in the capacity of the economyto deal the fatal blow to the Mugabe government, itis clear that the majority of Zimbabweans face theprospect of continued devastation of their livelihoodsas a result of the disastrous policies of the incumbentregime. Beyond the profits being made by foreigncapital in the extractive sector, and the rent-seekingactivities of sections of the ruling elite, the majorityof the workforce in both the rural and urban sectorsface the likelihood of deepening poverty, if not massstarvation. Three characteristics stand out in theeconomic devastation that has taken place. First,hyperinflation of about 10 million percent has wipedout the savings and earnings of the workforce in thecontext of a serious drop in production, and majorshortages of food, electricity, fuel and all basicgoods. Consequently, most key transactions in theeconomy have been dollarised, resulting in rentseekingactivities, speculation, cross-border trading,


JUSTICE AND RECONCILIATION IN ZIMBABWE . 147dependence on remittances from outside the country,and criminal activity.Second, there has been a huge decline in formalsector employment and a corresponding growth inthe informalisation of labour. The indicators of thisprocess include: the shrinking of the formal sectorworkforce from 1.4 million workers in 1998 to998,000 in 2004, with the current unofficial dataindicating further decline; and the share of wagesand salaries in gross domestic income dropping froman average of 49% during the pre-structuraladjustment of 1985-90, to 29% in 1997-2003.Moreover, the production crisis resulting from theland occupations has created a double squeeze onthe livelihoods of workers as the breakdown ofproduction and incomes in both the agricultural andthe manufacturing sector has placed enormous stresson the reproduction of labour households.Third, the economy has witnessed a growingdisplacement of labour. During the structuraladjustment period in the 1990s the volume of urbanrurallabour circulation increased because of thedifficulties of sustainable livelihoods in the urbanareas. This trend has intensified by the greaterdisplacement of families since 2000 as a result of theland occupations, electoral violence, the growingdiasporisation of the labour force, and mass urbanevictions during Operation Murambatsvina in 2005. 17The latter, aimed at clearing away the informal sectorin the urban areas, and diminishing the opposition’sprimary constituencies, resulted in the loss oflivelihoods of some 700,000 people, and a labourmigration process that both pushed numbers ofpeople out of the cities and forced others to find newplaces in the urban spaces.While this enormous destruction of the economyeroded the support for the Mugabe regime, theprocess also presented challenges for the opposition.A central pillar of the MDC since its formation in thelate 1990s has been the labour movement. However,this base of opposition politics has been adverselyaffected by the economic crisis described above, andthis has in turn created difficult conditions forpolitical mobilisation in several ways. First, theshrinkage of formal sector employment has resultedin a drop in the rate of unionisation andsubscriptions, thus undermining the capacity ofunions to carry out various organisational andeducational activities for their members. Second, as aresult of this structural decline and more aggressiveattacks from the state on union leaders, the labourmovement has become more strategically defensive,and less able and willing to lead broad civic alliancesas it did from the late 1980s to 2000. Third, thestrikes and stay-aways that were such an effectiveweapon against the state in the 1990s, when theeconomy was more buoyant, were no longer viablemobilisation strategies in the context of a rapidlyshrinking labour force. The informalisation of thelabour force has moved workers away from formalisedlabour practices and protest actions in the publicsphere into more individualised and criminalisedstrategies of survival. The progressive regulation oflabour relations that was one of the earlyachievements of the post-colonial state has beenreplaced by growing uncertainties around work andformal labour organisation.This weakening of the labour movement and theculture of worker mobilisation and organisation thatwas central to it, has led to urgent appeals from theonce strong Zimbabwean Congress of Trade Unions(ZCTU), for international intervention in the Zimbabwecrisis. A report on a statement made by the Presidentof the ZCTU in 2008 to this effect noted that:Mr. Matombo said that many of his members aretoo brutalized by Zimbabwean forces to organizeeffectively. That is why he will push his group tosupport stronger international intervention,despite the short-term pain that a blockade orother action could cause to Zimbabwe’s poor. 18Given the serious weakening of this central MDCorganisational base, it is not surprising that thereemerged an almost desperate compulsion to view theeconomy as an active ally in the struggle againstMugabeism. What amounted to an admission of thediminished capacity of the opposition to mobilise


148 . DEBATING INTERNATIONAL JUSTICE IN AFRICApolitically at the national level was increasinglytranslated into an adamant assertion of the capacityof an economic crisis to complete the task of thatdepleted resistance. Several reports indicated thepervasiveness of this conception. Morgan Tsvangiraiwas recorded as saying that Zimbabwe’s rapiddownward economic spiral would “eventually forceMugabe to compromise,” 19 a view shared by key civicleader Lovemore Madhuku who stated:Mugabe will have a difficult time governingwithout a majority (in parliament), but that isnot his real problem. His main andinsurmountable problem is the crumblingeconomy. He has no room to move. 20Mugabe himself was aware of this argument and wasnot slow to link it to his view that this was part of a“regime change” strategy sponsored by the West. Inhis opinion, the MDC “have been promised by theBritish that sanctions would be more devastating,that our government will collapse in six months’time.” 21There was certainly a general opinion, in theopposition and the donor community, that theparlous state of the Zimbabwean economy wasunsustainable and that its disastrous deteriorationwould soon affect the capacity of Mugabe tocontinue in office. However, it was also apparent thatthe crisis was beneficial to key sections of the rulingelite, particularly in Mugabe’s major support base,the military. Additionally there was insufficientinformation on the survival mechanisms of the poorin Zimbabwe, and the different forms of economicrelations emerging out of the crisis, that would allowthe economy to persist, albeit at deplorably low levelsof survival. Thus, to predicate a strategy of change oneconomic decline risked underestimating the strengthof an authoritarian regime to persist.POLITICAL AGREEMENTGiven the above analysis, it was not surprising thatthe Mbeki mediation led to a political agreementbetween the major parties on 11 September 2008.With limited options available to the major politicalactors in Zimbabwe, Mbeki used such limits at thenational level and pressures for change from regionaland international forces to push for a politicalsettlement. The eventual agreement signalled theuneasy relations between a once dominant partyforced to concede to the sharing of power and anopposition unable to effect the decisive transfer ofthat power away from the ruling party.Among the major areas of the agreement are thefollowing:■ Mugabe will continue to be President with two vicepresidents from ZANU-PF.■ The new position of Prime Minister will be occupiedby opposition leader Morgan Tsvangirai with twodeputy prime ministers, one from each formation ofthe MDC.■ There will be 31 Ministers, with 15 nominated byZANU-PF, 13 by MDC (Tsvangirai) and 3 by MDC(Mutambara), and 15 Deputy Ministers with 8, 6,and 1 respectively from ZANU-PF, MDC (Tsvangirai)and MDC (Mutambara).■ The cabinet will be chaired by Mugabe withTsvangirai as his deputy and will have theresponsibility to “evaluate and adopt allgovernment policies and the consequentialprogrammes.”■ The Prime Minister will chair a Council of Ministerswhich will oversee “the formulation of governmentpolicies by the Cabinet” and “ensure that thepolicies so formulated are implemented by theentirety of government.”■ A new constitution will be agreed upon within 18months as a result of a process that will includethe participation of the Zimbabwean public and willculminate in a referendum.The implementation of the Agreement will bemonitored by a Joint Monitoring and ImplementationCommittee (JOMIC) composed of four senior membersfrom ZANU-PF and four from each of the MDCformations. 22 The Agreement leaves many areasunclear, such as the relation between the authorityand decision-making status of the Cabinet and theCouncil of Ministers, as well as which specific


JUSTICE AND RECONCILIATION IN ZIMBABWE . 149ministries will be allocated to different parties. Thelatter problem continues to delay the implementationof the agreement as the Mugabe regime persists inits efforts to retain control of key security andeconomic ministries. However, the agreement shouldbe viewed in the light of ongoing political strugglesfor state power that both parties will continue tofight, and in a situation where the ruling party stillhas the advantage of the control over the means ofcoercion. ZANU-PF is much weaker as a political partythan it was after the 2005 election, while the MDC isnot yet strong enough to exert its hegemony over thestate.zero-sum battles, with access to the state being thesine qua non for employment, patronage and futureaccumulation. For the ruling party, the danger oflosing control of this resource threatens to unravelthe rent-seeking structures of profiteering that havebecome the dominant feature of the fortunes of thepolitical elite. Both MDCs have a clear sense that aprolonged period in opposition cannot be sustained inthe current context of economic decline. Under theseconditions the challenges of introducing transitionaljustice issues into the political debate will beformidable, and it is this question that the nextsection addresses.There have been critical positions on the Agreementfrom some key voices in civil society. The ZCTUwarned:A Government of National Unity is a subversionof our National Constitution and only aTransitional Authority should be put in place witha mandate to take Zimbabwe to fresh, free andfair elections that will hopefully not be disputedby parties. 23Moreover, for the Chair of the National ConstitutionalAssembly (NCA), the Agreement represented a“capitulation by the MDC.” However, it is clear thatneither of these social forces has the capacity toresist this process, and indeed the alternativeproposed by the Chair of the NCA of “going back tothe trenches and putting pressure” 24 is, for themoment, more a harking back to past possibilitiesthan a realistic assessment of present challenges.Meanwhile, other voices in civil society haveexpressed a more cautious openness to theAgreement, willing to explore its capacity to open uppolitical spaces in the country, and aware also of thelack of political alternatives in the current politicalconjuncture.At the time of writing, the 11 September Agreementremains to be implemented, halted by a dispute overthe distribution of ministerial posts. That it should bemired in such a dispute reflects the tendency forstruggles over the post-colonial state to becomeTRANSITIONAL JUSTICE OPTIONS IN ZIMBABWE2009/10This paper began by referring to the demand fromcivil society in Zimbabwe for an end to impunity, forjustice and truth, and for reparations in the wake ofmany decades of state violence against its owncitizens. Both MDCs have stated in their policydocuments over the last nine years that a truthcommission should be instituted under an MDCgovernment, and civil society actors have stated thereshould be no amnesties. Interactions at thecommunity level by the authors and others for morethan a decade make it clear that many victimsurgently desire both justice and the chance to beheard. One of the primary criteria for the likelihoodof any formal truth-telling and/or prosecutorialprocess taking place and succeeding is thus in placein Zimbabwe – namely a strong desire on the part ofa significant segment of the population for such aprocess. 25However, there are other important preconditions andrealities to be considered in assessing whether anation is likely to succeed in adopting an officialpolicy of transitional justice processes, includingwidespread prosecution of senior leadership, or inestablishing a truth commission. The earlier sectionsof this paper have located the Zimbabweantransitional justice debate in the context of a neartotal collapse of the economy, including health,education and food production, and this collapse isitself indicative of longer term structural injustices


150 . DEBATING INTERNATIONAL JUSTICE IN AFRICAthat have enabled ZANU-PF to entrench itsauthoritarianism. Furthermore, any transitional justiceprocess under the current power-sharingarrangement risks being derailed by the ideologicalclash between the understandings of MDC and ZANU-PF regarding what it is that should be accounted for,and whether there should be any accounting at all,for example for post colonial abuses.There have been at least 25 official truth commissionsor commissions of inquiry into human rights abusesworldwide since the June 1974 Commission of Inquiryinto the Disappearance of People set up by Idi Aminin Uganda. The majority of these have been onlymarginally successful, or have failed to achieve much– including the 1974 Ugandan commission. The majorchallenges facing truth commissions include: theproblem of “over-reach” in the context of debilitatingeconomic and political conditions; lack of consultationwith a broad range of political and civic actors;inadequate preparation by groups hoping to makecontributions to the process; high expectationsparticularly around issues of reparation andprosecutions; the absence of long-term institutionalfollow-up to support the process; and avoiding thetemptation to use other countries’ experiences in thisarea as a model to be replicated in differentcontexts. 26Under the power sharing arrangement, ZANU-PFretains much control of the state and theaccompanying corrupt access to wealth. It is hard toimagine, therefore, that it will allow prosecutions of,for example, Perence Shiri, who was Commander ofthe 5 Brigade in 1983-4, when 10,000 Ndebelespeakers were massacred in the west of Zimbabwe,and who is now Commander of the Zimbabwe AirForce. 27 Emmersen Mnangagwa, who was head of theCentral Intelligence Organisation (CIO) in the 1980s,remains highly influential within the ruling party andhas allegedly played a key role in the violence of theJoint Operational Command during 2008. 28 Much ofthe Zimbabwean bureaucracy has been militarised,and military chiefs are to be found in many highplaces in parastatals and elsewhere, with a vestedinterest in maintaining the status quo of impunity, inorder to safeguard not just their freedom but alsotheir excessive, corruptly gained wealth. Previousreports by human rights organisations have shownclear links between many senior officials and grosshuman rights violations. 29 In terms of the powersharing deal, ZANU-PF retains control of the Ministryof Justice, the CIO, the army, and through the factthat the president appoints the Chief of Police, willcontinue to have close to blanket control of thewhole Joint Operational Command – now called theNational Security Council.How, in this situation, in which furthermore theimpartiality of the Courts has been shown to behighly suspect, does civil society intend to ensureprosecutions of senior perpetrators? As mentionedalready in this paper, it seems unlikely that MorganTsvangirai will push for any process of nationalaccountability at this stage. He has remained vaguerecently on the issue of amnesties and prosecutions,and has reiterated several times that ZANU-PF shouldnot fear the MDC having the Ministry of Home Affairs(including the police) as they would not use this toseek vengeance. 30 In the interests of maintaining thepower sharing deal, the MDC is unlikely to rock theboat by reminding ZANU-PF of their transgressions.Prosecution aside, a key criterion of a successful truthcommission is official support at the highest level. Ifthis is not the case, then the process is likely to bederailed by, for example: debates around itspreparation that last indefinitely; a toothless model;the suppression of the final report; or creatingunacceptable risks to those who come forward totestify.Zimbabwe already has a very bad record on officialcommissions of inquiry into human rights abusessince independence in 1980. There have been twoformal commissions of inquiry – the 1981Dumbutshena Commission of Inquiry into theDisturbances in Entumbane (Bulawayo) and the 1984Chihambakwe Commission of Inquiry into theDisturbances in Matabeleland. Both of thesecommissions have had their findings suppressed bythe State to date – in both instances to suppress


JUSTICE AND RECONCILIATION IN ZIMBABWE . 151state complicity in the abuses. The ChihambakweCommission investigated the massacres of what isnow believed to be around 10,000 people by the 5Brigade during 1983. Yet at the very same moment ascommissioners sat recording statements in February1984, the same Brigade was overseeing furthermurders in Bhalagwe Camp in Matabeleland South,less than 200 kilometres away from where the Inquirywas taking place in Bulawayo. The Legal ResourcesFoundation (LRF) recently took the government tocourt demanding the right of the nation to see theChihambakwe Report. The court ruled in favour of theLRF, but the government then announced that therehad only been one copy of the report and it had beenlost, so they were unable to comply.In short, even though it would be difficult for suchblatant suppression of proceedings and findings tooccur at this stage in Zimbabwe, we need to be surethat conditions are right for an official, full disclosureof truth before promoting a half-hearted process thataggravates and thwarts the nation’s ultimate need fortruth and accountability.COMMISSIONING A COMMISSIONIf one examines who creates and empowers a truthcommission, it can be seen that the majority of truthcommissions are established by presidential decree. 31This seems an unlikely prospect in Zimbabwe underMugabe. Less commonly, the national legislature maycreate a truth commission, as in South Africa.Although the MDC has a majority of support in theLower House, ZANU-PF still has the overall legislativepower to block such a move in the Senate, and towater down the terms of reference and powers ofsuch a commission, possibly rendering it a facesavingbut powerless event.Truth commissions can be introduced as part of apeace accord – however the power-sharingagreement signed by ZANU-PF and the MDC inSeptember 2008 does not clearly enunciate on theissue of a formal truth commission, as we havealready pointed out, making only a weak reference to“considering” a mechanism for national healing. Thisrather tentatively framed clause is a good indicationof the ambivalence with which ZANU-PF views such aprocess – an agreement to consider such amechanism is not an agreement to agree to such amechanism.Even though the likelihood of a strong frameworkfor a truth commission being developed at this stageis not strong, should some kind of an official processnonetheless be pushed for at this time?The shortcoming with such a proposal is that if acommission is instituted and is given a weakmandate, or if it turns out that the space, freedom ofmovement or security for victims does not currentlyexist for a successful inquiry, it is not likely that asecond commission will be set up when the timing isbetter. 32 Most seriously, testifying at a commissionshould not create risks for victims, and as long asZANU-PF remains in control of the army, CIO and theMinistry of Justice, the risk to victims, particularly inrural areas, cannot be ignored. While one can begenerally optimistic Zimbabwe will not soondeteriorate into widespread violence, it could bepragmatic to let events unfold over the next year ortwo and then reassess the degree of official space fora truth commission initiative. 33However, while an official truth commission may notbe possible or advisable at this time, civil society andthe opposition should continue to debate theparameters and mandate of a future truthcommission, which may become more possible in thefuture. Such discussions involving all Zimbabweanscould occur in the context of the forthcoming,officially mandated process of debating a newconstitution. In terms of the power-sharingagreement, this process will begin with theappointment of the new cabinet and run for eighteenmonths.TRANSITIONAL JUSTICE INITIATIVES POSSIBLENOWWhile official, national transitional justice processesare unlikely to take place, much can still be donetowards promoting accountability; truth recovery;reconciliation; institutional reform; and reparations.


152 . DEBATING INTERNATIONAL JUSTICE IN AFRICAAccountabilitySince the food riots of 1998, Zimbabwean civil societyactors have endeavoured to make the law work forvictims of political abuses by prosecuting identifiedperpetrators. While this has seldom proven successful,on occasion damages have been won through thecourts, notably for some of the victims of the foodriots. 34 Throughout the last eight years, civil societyhas continued to use the law to achieve moments ofjustice, but this has become increasingly difficult asthe impartiality of the judiciary has becomeundermined, and as the state has turned the tables bypassing repressive and unjust laws, which it has thenused to criminalise the opposition. The Public Orderand Security Act in particular has been used toprevent civic and political activity, with severalthousand political arrests since 2000. 35 However, legalrecords exist of many of these arrests, contributing todocumentation of events, and Zimbabwean lawyershave done a courageous job of trying to insist thatthe police and the courts hold people accountable,and exposing their failure to do so.While prosecutions of senior government officials areunlikely for the reasons given above, the prosecutionof many hundreds or even thousands of human rightsviolators at the community level is more likely to beaccomplished – and may well go a long way towardsfulfilling victims’ need for justice. A remarkable aspectof the violence of April-June 2008 is that the majorityof victims are able to name at least some of theperpetrators. This is the result of the tragic realitythat neighbours and even family members wereprimarily responsible for horrendous assaults,murders, and destruction of property within their owncommunities. 36Regarding the 2008 violence, there have alreadybeen arrests and prosecutions of handfuls ofindividuals who stole cattle from their neighbours orwho assaulted them in the context of the politicalviolence. Such prosecutions have depended heavilyon the cooperation of specific local policemen andmagistrates. 37 But the precedent has been set, and itis a straightforward strategy for civil society actors tocontinue to promote such arrests and trials across thecountry, in both urban and rural settings, by providingfree legal and moral support to those willing – andbrave enough to risk repercussions in the stillunstable current context – to go ahead with layingcharges. However, prosecution is more problematicfor victims whose attacks occurred more than threeyears ago, as for these the right to claim damageswill have been prescribed in terms of current laws.Truth recoveryCivil society in Zimbabwe has already done aremarkable job of keeping track of human rightsviolations, particularly over the last eight years, butalso before this.In 1998, the Catholic Commission for Justice andPeace and the Legal Resources Foundation released“Breaking the Silence, Building True Peace: a Reporton the Disturbances in Matabeleland and theMidlands, 1980 to 1988.” This report, and theprocesses undertaken to develop it, emulated manyof the characteristics of a formal truth commission.Over a thousand victims of the atrocities cameforward to testify to two interviewers over the courseof several months, and their testimonies togetherwith archival evidence were used to produce a historyand database of abuses. The report included asection on recommendations to heal the region.Interest in this report has not waned, as it remainsthe only concerted locally driven effort to documentevents of these years, and it was in fact reprinted in2007, ten years after its initial release. A summaryhas also been released in all three official languagesof Zimbabwe.In the late 1990s, state violence rose once more, andcivil society came together at that time to documentand prosecute state offenders where possible. Thismeant that in 2000, when abuses became rampantahead of the June election, civil society was wellsituated to document them.Since 2000, literally hundreds of documents andreports have been released by organisations such asthe Zimbabwe Human Rights NGO Forum, which doesmonthly violence reports, and Solidarity Peace Trust,


JUSTICE AND RECONCILIATION IN ZIMBABWE . 153which does two or three major reports a year oncurrent violence and related issues.The Crisis in Zimbabwe Coalition, the Zimbabwe PeaceProject, Zimbabwe Lawyers for Human Rights, theMedia Monitoring Project of Zimbabwe, the ZimbabweElectoral Support Network and the CatholicCommission for Justice and Peace have all producedperiodic reports over the last eight years, particularlydocumenting human rights abuses during electionperiods. These records importantly include thoroughmedical records of torture, murder and assault, aswell as lawyers’ records and sworn statements onabuses both in and out of state custody.The evidence from Zimbabwe is that formal reportscan be written that in many ways are identical tothose of official truth commissions, and can beundertaken by civic and church groups. Victims can begiven the chance to be heard and to have theirstories recorded, either by individual interviewers, orby their local communities, as a result of civicinitiatives. 38 If the intention of any truth tellingprocess is to ensure that the national memoryincorporates and acknowledges both the suffering ofordinary people during a time of oppression, theculpability of the state, and the consequences of thisfor the present and future, then formal but unofficialprocesses can make a significant contribution.“Breaking the Silence” managed to do that andensured that the Matabeleland massacres are nowvery much part of the national memory in Zimbabwe.However, the “Building True Peace” aspect of thisreport will rely on the goodwill of a future Zimbabwegovernment prepared to implement recommendationsof this report and those that may come from futurecivic initiatives linked to the more recent violations.“Reconciliation”A great deal has been written on how “reconciliation”should be defined in relation to transitional justiceprocesses, although the concept remains contested.However, most people broadly accept that a majorintention of transitional justice is to promotereconciliation at some level. After massive conflict,relationships between individuals and communitieswill be damaged and will need interventions to heal.Failure to attempt to do this could lead to long termnegative repercussions, such as further cycles ofviolence.Broadly speaking, reconciliation incorporates peacebuilding,victim empowerment, individual healing, butalso needs economic development and extensive socialreform. It is hard to imagine that any person orcommunity could begin a real process of reconciling, ina nation with 400 million percent inflation, no accessto health or education, no access to formalemployment, and with 45% of the country dependenton food donations. A recent pilot survey inMatabeleland in which people were asked to list theircommunities’ priorities found that 100% ofrespondents rated food as the current most urgentneed, followed by water at 87%. 39 This same surveyfound that most people rated their leadership either“Bad” or “Very Bad”, and similarly rated intracommunityrelationships as “Very Bad”, mainly becauseof the political violence and years of politicalmanipulation of access to resources by localleadership. Moreover, this survey did not manage tointerview anyone between the ages of 18 and 25 asthis age group was entirely absent in the villagestargeted, and women respondents predominated, as aresult of the diasporisation of Matabeleland’s ruralpopulation. Very few able bodied men remain in ruralareas, and this in turn impacts dramatically on thecapacity of communities to till land and grow crops –particularly bearing in mind that 9% of these samerespondents have no donkeys or cows.In the face of such extreme poverty, where people’spriority right now is to simply survive for another day,what interventions are sensible? We would suggestthat peace-building and leadership building areneeded, but that this needs to occur simultaneouslywith efforts to economically empower rural families,and to improve access to basic education and healthcare. Schools and clinics where they exist, are barelyfunctioning, with no staff or resources. It will takestate intervention and massive interventions bydevelopment organizations specialized in smallenterprise projects to begin to reverse this situation.


154 . DEBATING INTERNATIONAL JUSTICE IN AFRICAIt will also require the normalization of the macroeconomicenvironment, so that it becomes financiallypossible for a teacher or nurse to survive on a formalsalary.We would agree with Brandon Hamber thatreconciliation is “a voluntary act and cannot beimposed.” 40 It is also most difficult for the poorestpeople in a nation to “reconcile” to their pasts and toforgive the neighbours who burnt down their homeswhen they themselves have no prospect of replacingwhat was lost and are considering a bleak future.We need to begin developing a new culture ofleadership that is not about repression and bullying,exclusion and impunity. Many civic organisations inZimbabwe already undertake conflict resolutionprogrammes, inclusive of leadership training andempowerment of ordinary people to challenge theirleadership. Such organisations need to coordinatetheir activities and methodologies, and to expandthem to include more grassroots churches, forexample. The proposed constitutional consultationprocess, which is part of the September 2008Agreement, is ideally suited for civil society tocombine skills training with debate on constitutionalissues, including how to hold leadership accountablein the future in Zimbabwe.Civic organisations and churches already working inrural communities should discuss with communitiesthe possibilities of local solutions to the recentviolence, such as those who destroyed homes beingordered by local leadership to rebuild for theirneighbours, and to make other material reparationsat the local level, including of livestock and furniture,where the perpetrators own such things. There is noneed to wait for national consensus on this approach,but to explore over the next few months where andhow this might be adopted by villagers, eitherthrough communal court processes under cooperativetraditional leaders, or through church mediation atthe local level. In our experience, fear and angerremain high in villages affected by recent violence.There is a need for impartial mediation as soon aspossible in as many places as possible to preventfurther cycles of violence. In Matabeleland ZANU-PFis now afraid and being ostracised at the village level.ZANU-PF supporters are being thrown out of villagefuneral gatherings for example, their “ZANU” maizemeal being churned into the dust when they bring itas an offering to such gatherings. In a starvingcommunity this is an extraordinary act of contemptand rejection.In Matabeleland, the issue of mass graves in thecommunity setting remains a burning one. Once thepolitical situation allows, it will be a priority toresume the exhumations conducted by the AmaniTrust Matabeleland in the late 1990s in the region.This is a highly skilled task for properly trainedforensic experts, and requires extensive psycho-socialsupport, but Amani’s experience is that exhumationsand the accompanying “healing of the dead” is a lifechangingtool that lends itself to conflict-resolutionand truth-telling.In Mashonaland too, in the wake of the recentviolence, there are reports of shallow graves, and ofbodies being dredged out of dams in MashonalandEast. The problem of these recent enforceddisappearances must be dealt with, including theconstruction of a database to begin tracking whothese disappeared might be. There are wellestablished data formats for entering all relevantinformation including pre, peri and post morteminformation of disappeared people all over the world,and a request for training for interested persons inZimbabwe, to learn how to access and use such adatabase has already been activated.It would appear that the space exists for manydifferent types of community-based interventionsthat might contribute to the possibility of“reconciliation.” Many activities that could beclassified as transitional justice-oriented are alreadytaking place, including conflict resolution andleadership training. These need to be betterresourced and coordinated.


JUSTICE AND RECONCILIATION IN ZIMBABWE . 155Institutional reformInstitutional reform will need the cooperation of thestate. Many of the institutions most in need of reformseem likely to remain in ZANU-PF control. However, itis to be hoped that in a transitional phase, asnational polarisation declines, ZANU-PF will beamenable to suggestions regarding where and how toreform. The police and prison services are in a direstate of misadministration, politicisation and lack ofresources. The justice system barely functions, withmassive staff turnover, absenteeism, and emptyposts. The magistrate’s court in Bulawayo cannot finda simple sheet of A4 paper on which to type a letter.There is a need to de-politicise these institutions, andto try to reverse the tide of bribery and corruptionwhich currently predominates in all of them. This willtake massive resources, as well as the normalisationof the economy, so that police and court officials donot have to rely on bribes and goods stolen fromvendors to survive themselves.ReparationsMost victims of violence in Zimbabwe, whether recentor from the 1980s, raise the need for compensation.At the moment, apart from the desire for justice, thedesire for compensation rates most highly. However,Zimbabwe has a very poor history of individualcompensation, with the War Victims CompensationFund being looted in the 1990s by those withpolitical connections. In 1997, Mugabe also bent tomassive pressure from the War Veterans Associationand paid out Z$50,000 per ex-combatant; an act thatcaused a dramatic decline in the value of the Z$ atthat time. In both situations, many who did notqualify for benefits received compensation whileothers did not. In Matabeleland, the handful of exdissidentsfrom the 1980s who were also ex-membersof the Zimbabwe People’s Revolutionary Armyreceived payouts, while those whose lives they haddestroyed received no compensation, as this payoutwas only for ex-combatants and not their victims. 41Civil society can play a key role here in engaging therelevant ministries, in documenting the collapse andcorruption of state institutions and in insisting on astate response. A workshop took place in October2008 in Bulawayo involving senior prison officials andmembers of civil society organisations, includinglawyers and people who had recently beenincarcerated in the jails. The prison officials wereapparently open to comment. There is a need forrelevant civics groups in different sectors toundertake more discussions of this nature withofficials of all state institutions. We need to developcoherent policies and action plans on what can bedone, to de-politicise our High and Supreme Courts,for example. We need to develop and offer trainingprogrammes for police and prison officers, formagistrates and prosecutors. There are decades ofwork ahead, but it is possible to strategise aroundthis now. This does not require waiting for the stateto develop a broad policy, but developing workingrelationships with officials that can implementimmediate change at the micro level – such as fixingtoilets in remand cells, and reviving prisonprogrammes to grow food for prisoners’ consumption.Considering the scale of the violence in Matabelelandin the 1980s, and the scale of violence in certainparts of Mashonaland in 2008, there will be entireregions where almost every family may have alegitimate claim to compensation. The question thenhas to be raised whether individual compensation is apractical option. In the case of violations that tookplace more than a few years ago, including violencedating back to 2000, families may find it hard toprove their losses. Furthermore, a system of makingpeople individually responsible for recounting theirabuses, especially in a situation of dire poverty, willinvite fraudulent claims and invented histories, whichwill confound efforts to reach any kind of ‘forensic’truth in terms of patterns of violations in the future. 42The expertise and human resources that would berequired to thoroughly double check every such claimwould tie up such a process for years, resulting infrustration and disillusionment for genuine claimants.The concept of community compensation shouldtherefore be considered, with individual compensationbeing restricted to support for families of politicalmurder victims. As mentioned previously in this paper,individual compensation at the community level could


156 . DEBATING INTERNATIONAL JUSTICE IN AFRICAbe partly facilitated by perpetrators being forced tohelp with the rebuilding and restocking of homesthey have destroyed. Large government-driven urbanhousing initiatives could prioritise those who weredisplaced by Murambatsvina, and a proactive policyon vending and the informal sector could help thosewho lost livelihoods to rebuild them without stateharassment. Longer term skills training and possiblysmall business loans could help shift the informalsector back into the formal sector over time, and allof this could be done in the name of compensation.Compensation on the scale required will need to bedealt with at the level of government, and probablyinternational donors, but civil society can continue toconsult on community needs and priorities. In ourexperience over more than a decade, communities inMatabeleland are open to the idea of communalreparation, including improved access to health,education, small enterprises and in the urban setting,state housing.CONCLUSIONThere is an overwhelming cry for justice andcompensation in Zimbabwe in the wake of recentviolence. It is indeed necessary to end the pattern ofone hundred years of impunity, but the road toachieving this will be complex, particularly in thecurrent political context. The political space is notgoing to open up at the state level any time soon toenable the widespread prosecutions of seniorofficials. It may be highly problematic to push for atruth commission at this stage, as the currenttransitional government will be too weak andcompromised to give such a commission the powernecessary to make its outcomes useful. However,there remain many activities that civil society couldcurrently advocate; some will require governmentsupport, and others can proceed independently, aslong as some level of democratic space exists.Perpetrators could be held accountable at thecommunity level, either through the courts, or someform of local reparation. Truth recovery can be ongoing,and formal reports can continue to be writtenby civil society, although there is a need to return tofirsthand sources to validate claims that were made ata point in time when it was difficult to do so. Peacebuilding and leadership building activities that arealready taking place need to be expanded andmethodologies shared. Civil society needs to lobbyfor institutional reform, and to take part in thisprocess where feasible, with training and simpleresources. Above all, there is a need for civil societyto maintain a dialogue with victims and victimisedcommunities, to establish each community’s ownpriorities and understanding of what it is that hashappened in their area over the years, and whatneeds to be done about it now. This may varyconsiderably from one village to another, and thereshould not be an oversimplified approach to whatneeds to take place at this time.RECOMMENDATIONSThe battle for transitional justice issues to be placedmore squarely on the Zimbabwean political agendahas been going on in one form or another since the1980s. However as the country struggles to find away out of the current political quagmire, and todevelop a democratic discourse beyond the staleimperatives of an authoritarian nationalism trapped inthe narcissism of its narrow version of the past, theneed for a sustainable transitional justice processmust be pursued more vigorously. Moreover thepursuit of the process must be understood as aterrain of competing national agendas within aparticular historical and political context that will beone of the key determinants of future politicalstruggles in the country. 43 As a way forward thispaper recommends the following:1. Accountability: While prosecution of seniorgovernment and party officials is unlikely to bepossible under the current political conditions,the prosecution of perpetrators at communitylevel is more likely to be accomplished. This canbe done both through the court system andthrough forms of accountability developedthrough community structures.2. Truth Recovery: Civil society groups need tocontinue with the valuable work of truth recoverythat they have carried out since the 1980s.However, this work needs to move beyond the


JUSTICE AND RECONCILIATION IN ZIMBABWE . 157empiricist, forensic nature of evidence gathering,to more historical understandings of processes ofstate and community violence.3. Reconciliation: Processes of reconciliation aremore likely to succeed in conditions of economicrecovery where the hope of a better future canprovide a material basis for linking reconciliationto economic reconstruction. Moreover, at any onetime reconciliation is built around contestednotions of legitimacy, and building linkagesbetween different sites of legitimacy will demandcareful balancing between the state and differentsites of power within society. It will be importanttherefore not to reduce the debate onreconciliation to a moralising voice that places theburden of reconciliation on the victims. A muchmore sustainable process will link such a debateto material changes in power relations within asociety, ensuring growing empowerment for themarginalized and victimized.4. Institutional Reform: Indications of reformswithin the coercive arms of the state mustbecome immediately apparent in a politicaltransition in order to begin the long process ofbuilding trust in the state. Thus reforms in thejudiciary, the police and the army must begin topoint the way towards a greater respect for therule of law. Once again a stabilisation of theeconomy is an essential part of reviving thecapacity to deliver in these areas.5. Reparations: In Matabeleland and in some partsof Mashonaland, almost every family would havea legitimate right to claim that they have sufferedstate-orchestrated human rights violations atsome point since the 1960s. However, theproblems of how individual reparations should bevalidated and financed, together with thepressing demands for more general economicrecovery and development, mean that communalreparation could be explored as an alternative toindividual payouts. There is a need for extensiveconsultation with victims around any process ofreparation.1. This paper is a modified version of a document prepared bySolidarity Peace Trust for the SITO, Idasa Meeting on “TransitionalJustice Options in Zimbabwe”, Pretoria, 24 October 2008. Moreinformation on SITO can be found at: http://www.idasa.org.za/index.asp?page=programme_details.asp%3FRID%3D54.2. Agreement between the Zimbabwe African National Union-Patriotic Front (Zanu-PF) and the Two Movements for DemocraticChange (MDC) Formations, on resolving the challenges facingZimbabwe. 15th September 2008, Harare.3. For a discussion of the tensions around this debate in Zimbabwesee Brian Raftopoulos, “The Zimbabwean Crisis and theChallenges for the Left.” Journal of Southern African Studies, Vol32, No 2, June 2006, pp 203-220.4. Shari Eppel, “A Brief History of Violations of Human Rights inZimbabwe since 1965 to the Present.” Paper prepared for theInternational Center for Transitional Justice, New York, October2003.5. Terence Ranger, ‘Introduction’ in Terence Ranger (Ed) TheHistorical Dimensions of Democracy and Human Rights inZimbabwe, University of Zimbabwe Press, Harare, 2003, p.21.6. The Catholic Commission for Justice and Peace and The LegalResource Foundation, Breaking the Silence, Building the Peace:A Report on the Disturbances in Matabeleland and the Midlands1980 to 1988. CCJP/LRF Harare, 1997.7. Civil Society and Justice in Zimbabwe: Summary of theProceedings of a Symposium held in Johannesburg 11-13 August2003. Themba Lesizwe, Pretoria, 2004.8. Zimbabwe Human Rights Forum, Minimum demands adopted byparticipants at the Transitional Justice Workshop “Options forZimbabwe” held at the Holiday Inn, Harare 9-10 September2008.9. Ibid.10. Alex Boraine, “Transitional Justice: A Holistic Interpretation,” In ABoraine and S Valentine (Eds), Transitional Justice and HumanSecurity, International Centre for Transitional Justice, Cape Town,200611. Mahmood Mamdani, ‘Reconciliation without Justice.’ SouthernAfrican Review of Books, November/December 1996.12. Greg Grandin and Thomas Miller Klubock, “Editors Introduction-Truth Commissions: State Terror, History and Memory.” SpecialIssue, Radical History Review, Issue 97, Winter 2007, p5-6.13. Brian Raftopoulos and Tyrone Savage (Eds), Zimbabwe: Injusticeand Political Reconciliation. Institute for Justice andReconciliation Cape Town, Weaver Press, Harare, 2004.14. Jason Moyo and Mandy Rossouw, ‘MDC: Brown’s Trojan Horse?’Mail and Guardian, 22-28 August 2008.15. Interview of Welshman Ncube, Secretary General of theMDC(Mutambara), www.newzimbabwe.com/pages/mdc253.18653.html. 22/v111/2008.16. “ZANU-PF ‘plots to seize’ parliament.” Business Day, 1stSeptember 2008.17. ‘Operation Murambatsvina’ is the Shona term for ‘clear out thefilth’, an expression often used by the ruling party to refer to theurban support base of the MDC.18. Margaret Coker, ‘Powerful South African labour group pondershow hard to press Mugabe.’ Wall Street Journal, 9th July 2008.19. Basildon Peta, ‘Mugabe advised to quit talks.’ Cape Times, 22ndAugust 2008.20. Dumisani Muleya, ‘Mugabe to call new cabinet, dealing blow totalks.’ Business Day, 28th August 2008. This argument is alsoput forward by Piers Pigou, ‘Malice in Blunderland,’ MolotovCocktail, 05, September-October 2008. Pigou asserts that “ifMorgan Tsvangirai and the MDC can hold their nerve, the


158 . DEBATING INTERNATIONAL JUSTICE IN AFRICAeconomic pressure on the rulers of Zimbabwe will eventually payoff.” P15.21. Jason Moyo, ‘Mugabe prepares for the next move.’ Mail andGuardian, 29th August-4th September 2008.22. Agreement 15th September 2008 op cit.23. Statement by the Zimbabwe Congress of Trades Unions, Harare,16th September 2008.24. SW Radio Hot Seat Transcript of Interview with LovemoreMadhuku, www.swradioafrica.com/pages/hotseat250908.htm25. Priscilla Hayner, Unspeakable truths: confronting state terror andatrocity; Routledge, 2001.26. Ibid, page 214. (Also contribution by Priscilla Hayner at an IdasaMeeting on “Transitional Justice Options in Zimbabwe”, Pretoria,24th Octpber 2008.) The Uganda Commission was set up byAmin as a face saving measure because of international pressure,without political commitment to real change. It documented 308forced disappearances but did not prevent a worse wave ofabuses in its wake. Only one copy of the report is alleged to existin Uganda.27. CCJP and LRF, op cit.28. ‘Exposed: The Mnangagwa, Makoni Plot’, Zimbabwe Times, 17July 2008.29. See Zimbabwe Human Rights NGO Forum reports at;www.hrforumzim.com/frames/inside_frame_special.htm. See alsoAmnesty International, “Time for Accountability”, NovemberLondon, 2008.30. Most recently at a rally in Harare on Sunday 12 October 2008.Then on 1 November in Bulawayo, Tsvangirai called for a truthcommission and said that “without justice we cannot moveforward” [“Tsvangirai calls for truth commission, AFP, 1 November2008.] This immediately led to ZANU-PF accusing Tsvangirai oftrying to derail the unity agreement, ‘in illustration of the pointwe are making that a truth commission is too divisive to besuccessful at this point in time.’ [“Tsvangirai dabbling inperipheral issues”, ZANU-PF, www.zimonline.co.za, 4 November2008.]31. Ibid, page 214, for summary of most common histories of truthcommissions in section following.32. Hayner. Ibid, page 202.33. At the moment human rights violations continue in pockets ofthe country, notably in Manicaland.34. Zimbabwe Human Rights NGO Forum managed to win damagesfor a handful of victims, although this was then challenged bythe state and in the meantime inflation has rendered thedamages meaningless.35. See SPT, Policing the State, 2006, for an account of around2,000 political arrests.36. Human rights organizations have tracked the names ofperpetrators over the last few years, but in many instancesvictims have not been able to name their torturers.37. SPT, Desperately seeking sanity, July 2008.38. In Bulawayo, the Catholic Church began a process of encouragingvictims of abuses to testify in front of congregations in 2002,and these services for Justice and Peace were then replicated inother parts of Zimbabwe and even in London, where refugeesnow testify on UN Day in Support of Victims of Torture. Theexperience of Amani Trust Matabeleland with exhumations alsoresulted in mini truth telling processes in Matabeleland – seebelow under reconciliation.39. Masakhaneni Trust: “A base line report on the means andpriorities of targeted communities in Matabeleland North andSouth”, Bulawayo, October 2008.40. Brandon Hamber, “Evaluating projects and programmes forreconciliation and transformation: experiences from the field.”Cape Town conference, April 2007.41. It must be added that only 122 dissidents surrendered in 1988,but this example serves to illustrate the pitfalls of singling outcertain groups for individual monetary compensation and notothers.42. We were recently told in rural Matabeleland by a headman that itshould be expected that people would lie about being victims ifthey thought they stood to gain materially by doing so, aspeople are so poor. He claimed that when church officials cameasking about the post March violence, some families in his areahad falsely claimed to have been among those beaten, in thebelief that these officials were undertaking some sort of“registration for compensation” exercise – when in fact theywere simply trying to document what had happened in the area.Personal interviews, Lupane, October 2008.43. For an excellent discussion of the 1979 peace settlement and itsaftermath in Zimbabwe see Norma Kriger, Guerrilla Veterans inPost-War Zimbabwe: Symbolic and Violent Politics 1980-1987.Cambridge University Press, 2003.Shari Eppel is a clinical psychologist and director ofSolidarity Peace Trust.Brian Raftopolous is a former associate professor ofthe Institute for Development at the University ofZimbabwe and now Director of Research and Policyat the Solidarity Peace Trust in South Africa.


JUSTICE AND RECONCILIATION IN ZIMBABWE . 159Zimbabwe: Transitional Justicewithout Transition?Pondai Bamu18 December 2008The July 2008 Memorandum of Understanding (MoU)between the Zimbabwe African Nationalist UnionPatriotic Front (ZANU-PF) and the two factions of theMovement for Democratic Change (MDC) offered thefirst glimmer of hope in resolving the long-standingcrisis in Zimbabwe. With the signing of the MoU, theparties began to negotiate a settlement to the crisisunder the mediation of Thabo Mbeki, the then SouthAfrican President. However, it is still unlikely that thecurrent negotiations will lead to a political transitionin Zimbabwe. The current regime will remain in powerand block meaningful efforts at accountability forpast violations. Though a political transition remainshighly unlikely any time soon, it is important toconsider the form that transitional justice could takein Zimbabwe if ZANU-PF were to lose political power.This essay discusses what shape transitional justicecould take if some form of transition were to occur,while recognising the immense challenges to thisbecoming a reality.LIMITATIONS OF NEGOTIATED TRANSITIONALJUSTICETransitional justice processes generally depend on thenature of the political transition. In the case of anegotiated transition, there are usually limits toprosecutions and therefore alternative mechanismsare often considered, including various forms ofrestorative justice, truth commissions or evendeliberately ignoring the past. Where there is acomplete political break with the past, it is mucheasier for new leaders to opt for prosecutions ofviolations committed under the former regime. InZimbabwe, a debate is already taking place regardingthe possibilities for prosecutions 1 and the relativeadvantages of a truth commission. 2There are several factors to consider when evaluatingthe transitional justice mechanisms that areappropriate for, on the one hand, dealing with thepast while, on the other, safeguarding the democraticfuture. First, it is important to consider the timeframe that the transitional justice mechanism shouldcover. In Zimbabwe, gross human rights violationswere committed during the colonial era, against theNdebele in the early 1980s during the first years ofindependence, directly after the 1998 food riots, andduring the fast track land resettlement and theelection violence including Operation Murambatsvina 3in 2005. The colonial era violations cannot be ignoredsince they have created problems regardingdistributive justice and ensuing efforts to addressthese economic imbalances in the post-independenceperiod. The fast track land resettlement, moreover,could be traced back to the colonial period. The early1980s also left unhealed wounds among large sectorsof the Zimbabwean population.What is likely in Zimbabwe is reform short oftransition and this will shape how past violations arehandled and how the future is mapped. Reform shortof transition is likely because negotiated settlementsrarely bring about complete transition. Completetransition would mean dismantling the ZANU-PFedifice, which appears highly unlikely, given thenegotiations and agreements to date. ZANU-PF stillholds substantial power and will stop any forms oftransitional justice that would mean the punishmentof their own. This will mean that to have a semblanceof accountability, some form of commissions ofinquiry could be instituted, but they will not bringtangible results in terms of establishing the truth orgetting some form of justice for victims throughreparations.It would seem expedient to deal with past violationsusing a truth commission as well as offering victimseconomic compensation rather than pursuingprosecutions of perpetrators. In many ways,prosecutions may not be the ideal mechanism inaddressing the long history of violations in Zimbabwe.It can be onerous to gather convincing criminalevidence from events that occurred more than 30years ago and when most perpetrators are either tooold or dead. Prosecutions will only be symbolic in thisinstance. If one is to prosecute Mugabe, he is likely tobe released due to his age. Instead, a truth


160 . DEBATING INTERNATIONAL JUSTICE IN AFRICAcommission is more likely to establish the truth aboutwhat happened during Zimbabwe’s dark years, as wellas to recommend steps toward victim reparations.Indeed, most post-independence perpetrators arethemselves victims of the colonial past and will alsobe subjects of redress, including Mugabe and mostsenior security personnel in the current governmentwho are accused of perpetrating violations. This pasthas not been properly redressed for them or theblack population in Zimbabwe. A truth commissionwould provide the possibility at least of dealing withthese complicated dual victim/perpetrator identities.Furthermore, if prosecutions are pursued, they shouldnot target only a limited number of individuals.Advocates of prosecutions argue for the indictmentof Mugabe and the security personnel implicated inthe violations. While this may be noble, crimes werealso committed during colonialism, including theeconomic marginalisation of the black majority;admittedly a situation that Mugabe has abused, inparticular since the 2000 elections. The approach toredressing the violations in Zimbabwe must thereforebe holistic and not only an attempt to punish Mugabeor to seek revenge; otherwise, the chosen transitionaljustice mechanism will alienate other victims. In short,concentrating only on Mugabe and his regimerepresents an insufficient response to the plethora ofperpetrators and deep divisions in Zimbabweansociety. Instead, a comprehensive truth commission isnecessary to address all past violations, as well as torecommend the reparation policies necessary toaddress broader issues of economic justice.NEGOTIATIONS WITHOUT TRANSITIONIt is highly unlikely that the current agreementbetween ZANU-PF and the MDC will bring about apolitical transition in Zimbabwe. The earlynegotiations broke down because ZANU-PFconsidered the position of President Mugabe to benon-negotiable. There are indeed echoes from the1987 negotiations with the Zimbabwe AfricanPeople’s Union (ZAPU) under Joshua Nkomo, 4 butthere are obvious differences between 2008 and1987. Today, the parties are negotiating roughly froma position of equal strength: while Mugabe can counton the force of the coercive state apparatus and, ifthe March 2008 presidential elections are anything togo by, almost 50% of the electorate, MDC leaderMorgan Tsvangirai has the support of theinternational community as well as half of the votesin Zimbabwe. It now leaves the situation open toshrewd negotiating tactics; and on that score Mugabehas extensive experience.In the current negotiations, ZANU-PF seeks toincorporate the MDC into government rather than atransition to democracy since ZANU-PF argues thatdemocracy already exists. The MDC, at least theTsvangirai faction, seeks to take the reins of powerrather than be incorporated into a coalitiongovernment, since it believes it won the March 2008presidential election. For all its promise, thesenegotiations are not explicitly about democratisationbut about power-sharing, hence the continuedreference to a power-sharing arrangement. Whetherthis arrangement will be transitional or permanent, aswas the case with the 1987 Unity Accord, is currentlyunclear. ZANU-PF is negotiating only because it needsinternational legitimacy and has failed to rescue theeconomy. If ZANU-PF could achieve all of this withoutthe MDC, then there would be no negotiations. TheMDC factions are negotiating because there seems tobe no other means of attaining power. Theagreement reached in September this year isconfusing as it creates two opposing centres ofpower, the executive Presidency and the executivePremiership. How these two executives shouldoperate is not defined. However, already it seems theexperiment is having negative effects, since Mugabeand Tsvangirai are both exaggerating the reach oftheir powers; Mugabe more so. This tragic scenariohas played itself out in the appointments of Cabinetmembers.The current negotiations are not explicitly abouttransition to democracy – in fact ZANU-PF insists thatZimbabwe already has a democratic government. Anytransitional arrangement should ensure thedepoliticisation of the police, army, prisons, air forceand intelligence services specifically and reform ofgovernment structures in general. Institutional reform


JUSTICE AND RECONCILIATION IN ZIMBABWE . 161should not only be about changing the constitutionas the parties seek to do for different reasons, butalso depoliticising the security apparatus andgovernment structures to ensure they do not servicea particular leader but the people of Zimbabwe.FUTURE OF AGREED TRANSITIONAL JUSTICEMECHANISMSThe agreement reached in September does not covertransitional justice mechanisms in detail, but Articlevii (c) of the agreement states that the newgovernment shall “give consideration to the setting upof a mechanism to properly advise on what measuresmight be necessary and practicable to achievenational healing, cohesion and unity in respect of preand post independence political conflicts.” 5 Theagreement therefore does not mention justice as agoal but cohesion, healing and national unity, whichpoints towards a truth commission of sorts ratherthan prosecutions. In time we may see the structureand mandate of this commission. However, sucheventualities are doubtful, given the agreement’semphasis on consideration of a truth commissionrather than a dedication to establishing one.In terms of mechanisms to deal with the past, themost likely would be some form of commissions ofinquiry short of truth commissions and civilprocedures short of criminal prosecutions. These havebeen employed previously in Zimbabwe with little orno success. The civil procedures, which refer to civilsuits against violators of human rights, including thepolice, the army, war veterans and militias, may leadto compensation but without establishing criminalliability. As in the past, civil procedures are likely tocontinue informally through NGOs such as ZimbabweLawyers for Human Rights (ZLHR) and the ZimbabweHuman Rights NGO Forum. 6 Any compensation,however, will be paltry since the payments are usuallydelayed and thus eroded by inflation, rendering themsymbolic and a form of false victory for the victims.Commissions of inquiry would be set up to fosterlegitimacy and improve the government’s publicimage. It would be highly unlikely that any reports bysuch commissions be made public and they would notfacilitate meaningful redress for victims and positivechange nationwide. Whether the MDC will resist thisturn of events remains to be seen. It is unlikely thatthe MDC will succeed in opposing every decision byZANU-PF without a total breakdown in the fragilearrangement. Until Mugabe and ZANU-PF leavepower, there will be no real transition and no realtransitional justice in Zimbabwe.1. See, for example, Enough Project, “Seeking justice for Zimbabwe:a case for accountability against Robert Mugabe and others 1981-2008”, July 2008, http://www.enoughproject.org/node/9862. See for example Du Plessis M. & Ford J., “Justice and Peace in anew Zimbabwe: Transitional justice options”, ISS paper 16, 4 June2008 http://www.iss.co.za/dynamic/administration/file_manager/file_links/PAPER164.PDF?link_id=3&slink_id =6195&link_type=12&slink_type=13&tmpl_id=33. See UN report of the fact-finding mission to Zimbabwe to assess thescope and impact of Operation Murambatsvina by Anna Tibaijukahttp://www.un.org/News/dh/infocus/zimbabwe/zimbabwe_rpt.pdf4. The late Joshua Nkomo was the ZAPU leader who negotiated theUnity Accord in 1987 to end the Matabeleland atrocities; an erathat saw the murder, torture and violations of a large majority ofthe Ndebele ethnic group in Zimbabwe. Nkomo became one ofthe two Vice Presidents and Zimbabwe has had two VicePresidents since.5. See “The agreement between the Zimbabwe African NationalUnion Patriotic Front (ZANU-PF) and the two Movement forDemocratic Change (MDC) Formations on resolving the challengesfacing Zimbabwe”, signed on 15 September 2008.6. See, Zimbabwe Human Rights NGO Forum, “An analysis ofZimbabwe Human Rights NGO Forum Legal Cases 1998-2006”,June 2006.Pondai Bamu is an LLM Human Rights Law student atthe Transitional Justice Institute, University of Ulster.


162 . DEBATING INTERNATIONAL JUSTICE IN AFRICARoot and Branch, Tree of Life: Sowingthe Seeds of Grassroots TransitionalJusticeAndrew Iliff10 March 2009INTRODUCTIONZimbabwe’s acute need for justice and reconciliationhighlights a longstanding tension in transitionaljustice practice. The need for transitional justiceprocesses in Zimbabwe has been clear since at least2003, when Zimbabwean civil society articulated anambitious set of transitional justice objectives in theJohannesburg Symposium. 1 Yet nearly seven yearslater, this agenda remains in limbo, stranded by thefailure to find a political solution that might loosenthe grip of perpetrators on the reins of power.Practitioners and theorists assume that transitionaljustice cannot proceed until the individuals mostresponsible for rights violations cease control ofcrucial state functions, including the police, militaryand judiciary. This assumption has the ring ofcommon sense – you cannot expect the chief ofpolice to cooperate in his own arrest and prosecution.Yet this singular focus by international observers oninternational crimes and concomitant national orinternational accountability can be to the detrimentof more modest, local strategies that focus oncommunity level reconciliation, dialogue andaccountability. This essay outlines emerginggrassroots reconciliation strategies in Zimbabwe,which suggest that in situations of ongoing violationsin which international criminal accountability for grossviolations remains out of reach, transitional justiceadvocates should bracket international crimes untilmore propitious circumstances prevail. In themeantime, advocates should promote non-state,locally developed programs to promote communityhealing and reconciliation, which in turn lower thestakes of future political contests.BACKGROUND: THE ZIMBABWEAN CRISISThe contemporary Zimbabwean crisis is broadlycharacterised by a violent campaign to retain politicalpower on the part of the Zimbabwe African NationalUnion (Patriotic Front) (ZANU [PF]). While theimmediate crisis comes in the face of widespreadpopular dissatisfaction with thirty years of repressivesingle party rule, economic collapse, and a potentelectoral challenge from the Movement forDemocratic Change (MDC) the roots of the crisis,however, can be traced back to the liberation struggleof the 1970s and still further back. Since 2000,widespread political violence has marked eachelection; following parliamentary elections in 2005,the government launched the Murambatsvinacampaign of evictions that affected 700,000 people.In this context there are serious obstacles to manytransitional justice objectives. For example, there willbe no prosecutions of ZANU (PF)-affiliatedperpetrators of political crimes as long as both thesenior police leadership and the Attorney Generalowe their allegiance to that same party.Similar concerns are raised about truth-telling,reparations or lustration. In a climate of ongoingpolitical violence, participants in any such processmust fear reprisals, and there is concern thatpowerful perpetrators may dig their heels in or eveninstigate further violence in an effort to retain theprotections and privileges of power.But doing nothing – optimistically awaiting asuccessful political settlement – is indefensible inlight of the ongoing violence and deepening trauma.Southern African Development Community (SADC)leaders have shown no stomach for enforcing politicalreforms in the country, making only token gestures atrelaxing President Mugabe’s iron grip on power.Political violence abated somewhat in 2009 followingthe GPA, but it could quickly return to epidemiclevels, particularly when elections are called –probably in 2011, though Mugabe may call a snapelection sooner. There have been reports that ZANU(PF) youth militias have been redeployed in ruralZimbabwe to influence the outcome of theconstitutional review process and the election. 2Meanwhile, the GNU has emboldened some MDCsupporters to exact revenge against their erstwhile


JUSTICE AND RECONCILIATION IN ZIMBABWE . 163abusers. 3 One third of Zimbabweans have experiencedpolitically motivated threats or intimidation and 12%have experienced politically motivated assault. 4Unaddressed, the mental health consequences of thistrauma worsen over time. 5 Waiting for political partiesto take the lead in reconciliation is unrealistic.The persistence of the Zimbabwean conflict in theface of the weak political settlement presents severeobstacles to transitional justice programs. However,the urgent need for transitional justice is underscoredby the extent of trauma among Zimbabwean civilians,and the potential for the perpetuation of this traumathrough revenge crimes, the increased politicalpolarisation of youth, and the entrenchment ofviolent political engagement as a norm.TRANSITIONAL JUSTICE DURING CONFLICTFaced with this tension, and despite little publicaction by international NGOs, Zimbabweans havesought novel paths to reconciliation. Both civil societyand the compromised state are shaping transitionaljustice concepts. The GNU has created the Organ onNational Healing, Reconciliation and Integration, 6although to date it has maintained a low profile whileundertaking a series of consultative meetings withtraditional and civic leaders. Its prospects ofbecoming a powerful advocate for transitional justice,however, are hampered by its location within theoffice of the President, its limited budget andextremely cautious work, and the recent promotion ofZANU (PF) Minister John Nkomo from the Organ tothe office of the Vice President. If Zimbabweansinvest their hopes for justice in a body that remainsco-opted by ZANU (PF), they may become frustratedand disenchanted with the entire transitional justiceproject.GRASSROOTS TRANSITIONAL JUSTICEWith little prospect of centralised state support foreffective justice or reconciliation initiatives,Zimbabweans have seized on decentralised modes oftransitional justice. A diverse array of civic, church,traditional, business and community bodies havetaken advantage of the slight easing of the securityand political environment afforded by the GNU tobegin reconciliation programs, adopting a politicallyneutral community-based approach.The grassroots programs, strikingly similar instructure, have modest goals. They eschew attemptsat reparation or punishment in favour of restoring amodicum of tolerance and dialogue in dividedcommunities. The programs provide a forum forparticipants to speak out in small groups of theirpeers about their experience of trauma, includingpolitical violence. Critically, these organisationsengage both perpetrators and victims, recognisingthe complex intermingling of roles in which militiamembers may have been beaten and intimidated intoattacking others and ZANU (PF) supporters may havebeen the victims of revenge crimes. ManyZimbabweans have experiences of abuse dating fromthe liberation and Gukurahundi periods. 7 Politicaloperatives from outside the community are often theinstigators of political violence that leavescommunities fragmented long after they themselvesleave. MDC Minister Sekai Holland of the Organ onNational Healing has begun advocating communitybasedreconciliation programs mediated by traditionalleaders, citing a cultural model dubbed kusvitisanafodya, under which perpetrators and victims woulddiscuss and resolve their grievances before sharingtobacco in a sign of their reconciliation. This model isproblematic, as many traditional leaders are viewedas compromised by their complicity in politicalviolence. Given their historical stature, however,traditional leaders are a necessary component of thereconciliation process.TREE OF LIFEThe work of the Tree of Life (ToL) organisationillustrates the potential for innovative communitybasedreconciliation processes tailored to theZimbabwe crisis. ToL began conducting workshopswith Zimbabwean victims of political violence in SouthAfrica in 2003, and has since conducted workshopsacross Zimbabwe, focusing on hotspots of politicalconflict in both urban and rural areas. Oxford ToLworkshops take place over two to three days,consisting of a series of circles (dare in Shona) thatare organised around the analogy between


164 . DEBATING INTERNATIONAL JUSTICE IN AFRICAindividuals in a community and trees in a forest.Participants discuss their roots (ancestry), trunk(childhood), leaves (important features) and fruit(family and future plans), and explore the benefits ofdiversity and collective action.Working with one facilitator to four participants, thedare agrees at the outset on rules of conduct,including the use of a “talking piece.” 8 Participants,who are typically selected by community bodiesrather than ToL and may include both perpetratorsand survivors, share meals and where possible shareaccommodations. The workshop includes discussioncontrasting hierarchical and cooperative forms ofpower and, crucially, a “trauma circle” in whichparticipants are invited to describe their experiences.Contributions often include a wide range ofexperiences including familial traumas and historicalgrievances as well as political violence, reducing thepolitical stakes of the workshop. ToL has successfullymaintained a neutral political position in the eyes ofZANU (PF) by framing its work as “community healingand empowerment,” disavowing any justice agenda.Indeed, in some districts, government District HealthOfficers have endorsed ToL workshops.ToL provides effective and cost-efficient means ofbeginning the process of community reconciliation.ToL has leveraged its minimal staff, extending itsrange by forming a broad network of partnerorganisations that run the gamut from religious tobusiness associations. ToL trains members of thesepartner organisations to conduct workshops alongsideToL facilitators, increasing ToL’s reach and legitimacywithin communities, and allowing organisations toadapt ToL strategies to fit their constituencies.Facilitated by Zimbabwean survivors of politicalviolence, ToL workshops do not require clinicallytrained counselors, and reach more survivors thanindividual counseling. The workshops outcomesdeserve further documentation, but research to dateindicates their efficacy in reducing self-reported levelsof trauma, and participants frequently describe arenewal of community ties and trust attributed toToL. 9At the close of a workshop I observed, attendedmostly by ZANU (PF) members on the site of a priormilitia base, participants alluded to their complicity inearlier violence and foreswore future participation.Other workshops have included direct exchangesbetween perpetrators and survivors, acknowledgingthe harm done to the community.CONCLUSIONThe grassroots approach epitomised by ToL hasmanifest limitations, and cannot accomplish the fullrange of transitional justice goals, most importantlyindividual accountability for violations. Suchcommunity-based approaches must at some point besupplemented by some combination of prosecutions,reparations and other accountability strategiesbacked by a rights-observing successor regime. But inthe absence of the necessary political transition, theunavailability of centralized justice processes shouldnot preclude grassroots reconciliation initiatives. Theemerging Zimbabwean experience indicates that suchinitiatives can be successful, and this success may inturn contribute to community solidarity, reducing thescope for future violence instigated by outsidersduring elections and other moments of politicalcontestation.The preceding discussion also highlights a deficiencyin much contemporary transitional justice debate,which views the functions of the centralised state asthe sine qua non of transitional justice processes.International NGOs are still influenced by theparadigmatic model of the South African Truth andReconciliation Commission and its institutionalcousins, and therefore seek to collaborate withsuccessor governments and national-level civicorganisations to establish high-profile national-levelprocesses, sometimes at the expense of smaller,grassroots initiatives. Transitional justice practitionersshould reexamine their priorities, particularly inprotracted “complex emergencies” akin to theZimbabwean crisis, where a political solution maycome too late for many survivors.A renewed focus on grassroots initiatives will allowfor greater engagement by victims and survivors in


JUSTICE AND RECONCILIATION IN ZIMBABWE . 165transitional justice, increasing its integrity and locallegitimacy. The reconciliation initiatives describedabove may only be the very beginning of a successfultransitional justice program, but they substantiallyincrease the ability of survivors to set the agenda forsubsequent centralised processes, if eventuallyestablished.1. See Themba Lesizwe, Civil Society and Justice in Zimbabwe,Proceedings of a symposium held in Johannesburg, 11-13 August2003, Pretoria: Themba Lesizwe (2004).2. http://www.timesonline.co.uk/tol/news/world/africa/article6896171.ece; http://allafrica.com/stories/200907201640.html3. Institute for War and Peace Reporting, MDC Supporters TakeRevenge, 25 February 2009, ZCR No. 182, available at:http://www.unhcr.org/refworld/docid/49a79dff1a.html [accessed 7February 2010]4. Freedom House/MPOI, “Public Attitudes Towards Transition inZimbabwe,” 11 December 2009.5. “Acute versus Chronic effects of Organised Violence and Torture:Comparing the Victims in Contemporary Zimbabwe with theSurvivors of the Liberation War,” Harare: Research and AdvocacyUnit (RAU), February 2010.6. Article 7.1.c of the Global Political Agreement provides: “TheParties hereby agree that the new Government shall giveconsideration to the setting up of a mechanism to properly adviseon what measures might be necessary and practicable to achievenational healing, cohesion and unity in respect of victims of preand post independence political conflicts.”7. “Gukurahundi” refers to a period of military repression in theMatabeleland region during the 1980s.8. A “talking piece” is an object held by the current speaker in acircle, requiring that other participants listen without interruptionuntil the object is replaced by the speaker in the centre of thecircle.9. On follow-up, one third of participants had reduced self-reportedtrauma levels to below clinical levels; see “The Tree of Life: acommunity approach to empowering and healing survivors oftorture in Zimbabwe,” Tony Reeler et al, Torture, vol. 19 no. 3,2009. See also “A Research Note on the Effectiveness of the Treeof Life: Report prepared for the Tree of Life by Tony Reeler,Research and Advocacy Unit,” Harare: Research and AdvocacyUnit, 2009.Andrew Iliff is pursuing a joint degree in law andAfrican Studies at Yale University. He has worked ontransitional justice in the southern African regionwith Human Rights Watch, the International Centerfor Transitional Justice, Idasa and the Research andAdvocacy Unit (Zimbabwe).


166 . DEBATING INTERNATIONAL JUSTICE IN AFRICAPARTFIVEICC Observers InterviewsICC Observers Project – OxfordTransitional Justice ResearchExclusive Interview with Eric Leonard, Professorof Political Science, Shenandoah University14 April 2009Professor Leonard is an Associate Professor ofPolitical Science and the Henkel Family EndowedChair in International Affairs at ShenandoahUniversity in Winchester, VA. He has publishedseveral articles, case studies and a book on suchissues as the International Criminal Court, U.S.Foreign Policy, humanitarian law, theoreticalconceptualizations of sovereignty, and globalgovernance. His book is entitled, The Onset of GlobalGovernance: International Relations Theory and theInternational Criminal Court.Q. You have written about the relationshipbetween the US and ICC. What do you think thecurrent relationship will be between the ICC andthe US under the Obama administration? Will theUS show increased support for the ICC? Is there apossibility that the US will ratify the RomeStatute? How will the arrest warrant for Bashiraffect the dynamic between the US and the ICC?A. It’s going to be interesting to see how the ObamaAdministration approaches the ICC question. At thispoint, prior to the Bashir arrest warrant, the Obamaadministration was in many ways hedging its bets onthe ICC and possible US support. During the electionprocess there was really only one mention of the ICCby the Obama campaign, and what he said was thatthis would be a situation that they would look at, hecould counsel with his generals and militarypersonnel, and then they would approach the subjectat a later date. He really danced around the issue ofthe ICC and possible US support. There have been,however, some positive steps that have occurredrecently. One, not necessarily with the Obamaadministration, but with the Democratic Congress,was the elimination of the Nethercutt Amendment inthe Ominbus Bill that just passed. At this point the USis moving away from a belligerent attitude against theICC. Article 98 agreements are no longer a part of USforeign policy towards the ICC. However, I am not surewe can say that this shift in attitude towards the ICCis just a result of the Obama administration’s policies.We saw this softening towards the ICC occur at theend of the Bush administration. Condoleezza Rice wasthe first to stipulate that Article 98 agreements werea means by which the US was shooting itself in thefoot. With the case in Sudan, the fact that the US didnot oppose the Security Council referral of the Darfurcases to the ICC but merely abstained from the votewas another indication that there was a bit of asoftening.The Bashir arrest warrant changes things a bit. I thinkthat it’s putting more pressure on the Obamaadministration to actually do something about the ICC.Again though, they are really trying to push the issueof the ICC to the side. When questioned about this,the Obama administration is saying things like “youcannot criticize us for doing nothing, we are havingbackroom negotiations with the British and theFrench, and we are trying to come up with a solution.”However, Darfur and the ICC are clearly not theirprimary concerns at the moment. Domestic interestshave consumed the Obama administration’s interest.This has been very disheartening to many of us whowant the US to be part of this process and part of theICC’s attempts to end impunity. This is a particularlyunfortunate point, given that Obama called US failureto act in Sudan as a “stain on our souls.”In terms of ratification, I have no hope at all that theUS will ever ratify the Rome Statute. I think the bestthat we can hope for is a situation where the US isable to cultivate a relationship with the ICC in whichthe US is supportive of what the ICC is doing to a


ICC OBSERVERS INTERVIEWS . 167certain degree, and possibly more important, that theUS at least does not actively oppose the ICC and whatit is attempting to do. Getting the Rome Statutethrough two-thirds of the Senate and havingratification is, however, something that is justimplausible.Q. What would you say are the primary goals ofthe Court? Do you think the goals for the Courtdiffer for international, national, and local actors;for government and non-governmental actors?How will the Court fit into the overall structure ofthe international system?A. In terms of the primary goals of the Court, the ICCis trying to be an instrument by which we can endimpunity in regard to those specified core crimes. I donot think that the goals are necessarily different frominternational, national, and other local actors, or evendifferent in terms of actors defined in terms ofgovernment or non-government. I think there is acore of the international community that is nowworking towards this goal, although possibly doing soin different ways. One of the things I find frustratingabout the attempt to achieve international justice, isthat oftentimes you see these different actors ascounterpoised in terms of what they are trying toachieve. We talk about – is it better to have domesticor international prosecutions? Is the ICC simplypreventing national justice from occurring to endimpunity? The goal here is to see the different actorsas behaving in a complementary way. So issues ofdomestic universal jurisdiction laws vs. internationaltribunals, the ICC vs. hybrid courts – I think it’s a realproblem to see these issues as being in competitionwith one another, which is often how they areviewed. From an ICC perspective, I do not think theintent of the ICC is to be in competition with otherforms of justice. I think the point of complementarityis to work with these other actors and to establishuniversal justice standards that will be fulfilled for allparties involved in the ICC process. The goal ofending impunity is what we are trying to achieve, andno matter how it is achieved, if we are successfulthen that will be satisfactory to the members and thesupporters of the ICC.Q. Does (and will) the doctrine ofcomplementarity actually work to accommodateboth national sovereignty and the enforcement offundamental human rights? Under whatcircumstances can we expect the Chief Prosecutorto accept assertions of national jurisdiction?Where might there be sources of conflict betweenthe ICC and national jurisdictions? How shouldthose conflicts be resolved?A. I think the principle of complementarity, its intent,theoretically, is to work to accommodate nationalsovereignty, but not to simply accept nationalsovereignty as the end-all, be-all. So some of thethings I have written about sovereignty and itsrelationship to the ICC address this question. If youlook at the notion of sovereignty and the idea ofsovereignty as absolute and final authority, when welook at the ICC, it does have that final and absoluteauthority within this particular arena. Will it always beable to act on that? That is a separate question.Theoretically, however, it does in many ways overridenational sovereignty while still trying to accommodateit through the principle of complementarity. The ICCdoes a good job of acknowledging that sovereignty isa principle fundamental to the idea of internationallaw and vital to the stability of the internationalcommunity, but we cannot simply accept that nationalsovereignty will trump issues of international justicewith regard to war crimes, crimes against humanityand genocide.In terms of the Chief Prosecutor and times in whichhe might accept assertions of national jurisdiction,specifically talking about Ocampo, I am not sure thathe would ever not proceed with an investigation if acountry gave him assurances that they werethemselves going to investigate. Just in terms of howhe has behaved up to this point, I think he would say“I’m going to conduct my own investigation and wewill see what they come up with. If they proceedthrough this process and have a trial that isacceptable to the Court, then we will allow that tostand, but if not, we need to be prepared to step inand investigate ourselves.” A good example of thiswould be the Uganda case. The ICC was invited in toinvestigate, it was a self-referral case, but then there


168 . DEBATING INTERNATIONAL JUSTICE IN AFRICAwas backpedaling by the Ugandan government. Theyclaimed that they wanted to investigate thingsthemselves and Ocampo simply would not accept thatanswer – he told the Ugandan government that theyinvited the Court in and that he was going tocontinue his investigation. I do not think that Ocampois necessarily going to cater to the issue of nationalsovereignty, but I think the Court in general, if it seesa legitimate trial occurring in a national context, thenaccording to the Statute they must accept it, and Ihope they will.Q. What is the significance of the Courtprosecuting state vs. non-state actors in theinternational system? In the case of Sudan forexample, the Court has focused on state crimes,whereas in the DRC and Uganda the emphasis hasbeen on rebel groups and non-state actors. Doesthe choice of who to prosecute in particularsituations affect the perceptions of the Court’slegitimacy on the international stage?A. In many ways, this is really a political question.This goes back to the question of how Ocampo wantsto deal with the political issues that the Court isembroiled in on a daily basis. For the prosecutor,dealing with non-state actors and non-governmentofficials may be politically easier than moving forwardagainst government officials. My sense of Ocampo,however, is that, although he is somewhat aware ofthe political dynamics of what’s going on, I think inmany ways he is also trying to push forward in asobjective a fashion as he possibly can. I am not surethat the political calculus is going to influence howhe proceeds in investigations and whether he looks atnon-state or state actors.I think the only real problem in terms of legitimacy, inrelationship to this question, is whether theperception by the international community is that theCourt is proceeding in a purely political manner. If itchooses to prosecute only state or non-state actorson a fairly regular basis, then the perception mightbecome that the selection of cases is simply based ona political calculation by the Court. I think that such aperception will hinder the ICC’s legitimacy more thananything else. However, if they proceed in a juridical,objective fashion, then I don’t see a real problem interms of legitimacy.Q. Does the ICC have an implicit political role tofulfill? What is this role? Should the Court striveto remain politically neutral in conflict situations?Does the Court’s participation in political conflictsthreaten to undermine its perceived legitimacy?Can the ICC be successful if it conceives itselfpurely as a juridical institution?A. I’m not sure that the ICC has an implicit politicalrole to fulfill. In some ways I think I’m wary of thatline of questioning because it almost makes it seemas if the ICC has to recognize its political role in thesystem and act upon it in some way. I think I wouldcome at it a little bit different. I think the ICC has torecognize, and what Ocampo has to recognize and Idon’t think he really did at first, is whether he likes itor not, the ICC is a political institution. I fully believethat there are no institutions, governmental, legal,etc., that are not political institutions. There is apolitical component to all aspects of the globalcommunity and the ICC is not exempt from that. Sodo they have a political role to fulfill? No. I think theyhave to approach the selection of cases and whomthey prosecute within those cases in the mostobjective fashion possible. They do, however, have tobe aware of the political implications that everydecision that they make have. Ocampo doesn’talways understand the political implications of what’sgoing to happen. With the Uganda case and the selfreferral,standing there with the president of Ugandato announce that the ICC is going to prosecute givesa very political nature to the case, almostimmediately. And he is starting to recognize thoseproblems. However, I think the Bashir case is anotherinstance where I’m not entirely sure that he fullyrecognized the political implications. This may add tothe legitimacy of the Court, the fact that he and theCourt in some way are going after those they believeare guilty of certain crimes. But this doesn’t alter thepolitical nature of every institution in the globalcommunity. I don’t think that their participation inthese political crimes will undermine their legitimacy;


ICC OBSERVERS INTERVIEWS . 169it will only undermine their legitimacy if theperception is that they’re clearly favoring one side orthe other. I fully believe that perception in many wayscreates reality and the biggest problem for the ICC isto create a perception of being a purely juridicalinstitution; despite the fact that I don’t think theycan be a purely juridical institution. But theperception among large portions of the internationalcommunity has to be that this objectivity is theCourt’s ultimate goal and that they’re doing a goodjob. In some ways, they have done well at this, inother ways they’ve failed. The have to be aware thatthe perception in many ways will determine theirlegitimacy in the international community. How theyare perceived could provide them with a sense oflegitimacy, which will allow them to fulfill their goals.complementary one. Coming back to the politicalquestion, the Security Council is also going to have torecognize when the ICC has gotten in over its head ina political situation. That might be the point at whichArticle 16 is going to be implemented. I think,however, that it is going to be rare that you seeArticle 16 authorized – it will be rare that theSecurity Council acts in concert to say that they aregoing to stop the ICC’s activities for 12 months andpossibly renew it after that. So as long as it proceedsin that way and they use Article 16 sparingly and theSecurity Council is there to give the ICC theauthorization to go in to investigate situations likethe one in Sudan, then, to me, I think that’s living upto the standards that were set in the Rome Statute.Q. What is the ideal relationship between the ICCand the Security Council as detailed by the RomeStatute? How have the current activities of theCourt and the Council failed, exceeded or lived upto this ideal?A. I think so far the relationship has been prettygood. I am not sure I would call it ideal, but myunderstanding of how the ICC and the SecurityCouncil should interrelate is in line with the principleof complementarity that defines the relationshipbetween the ICC and national jurisdiction. I think thatthe Security Council in many ways is also supposed tocomplement the ICC when needed. So in the Sudancase, this is a great example of a situation where theinternational community was more or less calling foraction and the Security Council was able to step upand complement the ICC’s activities by giving themthe power to go in and investigate. At that point theSecurity Council was to step back and allow the ICC toproceed as they see fit. I would hope that that is howthe relationship will evolve, and I think this is how therelationship was intended when the internationalcommunity drafted the Rome Statute. Those in Romewere very wary of the politicization of the Court bythe Security Council; however, they also recognizedthat there had to be some sort of relationshipbetween the Security Council and the ICC and thatthe relationship should be in many ways aQ. Does Article 16 of the Rome Statuteeffectively give the Security Council authorityover the prosecutor’s office? On what groundsand in what types of situations should the Councilinvoke Article 16? What will be the implicationsof adopting an Article 16 Deferral in general butalso in the Bashir case in particular?A. I do think that Article 16 does in many ways givethe Security Council authority over the Prosecutor’soffice. Article 16 provides the Security Council withthe opportunity to suspend the activities of theProsecutor’s office for 12 months and then renew theinvestigation more or less at their discretion. So thispower of deferral of investigations and prosecutionsis clearly a point at which authority resides in theSecurity Council and not the Prosecutor’s office.However, in terms of when this might be used, Iaddress the issue from two perspectives – personally,my hope is that it would be used sparingly. I hopethat the Security Council would more or less grantthe ICC and the prosecutor’s office leave to proceedwith investigations as they see fit. Then thinkingspecifically about what types of situations or criteriaexist where they would invoke Article 16, I think,practically speaking, that invocations of Article 16 willbe few and far between. There has been talk ofdoing this for the Bashir case, and I am not sure thatI see all members of the Security Council acceptingsuspending the indictments of the ICC in this case


170 . DEBATING INTERNATIONAL JUSTICE IN AFRICAunless there was a very clear indication that acessation of the crimes was going to occur in theDarfur region. The reality of that happening isminimal at best. I simply do not think that thecountries of the Security Council are going to beduped into accepting that, and I personally do notthink that Bashir would ever offer that up given howhe has reacted to the warrant in the past few weeks.Are there theoretical debates about when and howArticle 16 should be used? Possibly. The peace versusjustice question is a very real question; I tend tobelieve that you cannot disaggregate the two.However, if there was a situation where you had apeace plan on the table and the one stipulation wasthat all warring parties would sign this if the ICCarrest warrants are suspended against certainindividuals, then yes, I think that that is a situationwhere Article 16 would be appropriate. The key withArticle 16, in terms of what types of situations itshould be used in, is to remember that it onlysuspends the prosecution from its activities. If a yearlater, the peace process breaks down, then the ICCcan go back in after the 12 months and renew itsinvestigation and prosecution. Article 16 does notsimply make the situation go away; I think this is akey aspect of Article 16 that many critiques of itforget.Q. How significant is it that the first (and still all)of the cases currently before the Court areagainst Africans for crimes committed in Africa?How does this affect the perception of the Court’slegitimacy in the international community?A. Perception often creates reality and this is aproblem that the Court has to work on. Theperception at this point is that the Court is focusingon Africa and that it has a Western bias and that thisis why it is looking at these particular cases. It isregrettable that this is the perception of what theCourt is doing. I do not believe that the fact that allthe cases are in African countries is necessarilyproblematic. We have to remember that all of thesecases are either self-referrals, or were initiated by theUN Security Council. The Court has not done a goodjob making these facts known to the broader public.To those that study the ICC and look at this issue, Ithink there is a better understanding of why thesecases were chosen and why the ICC is acting like thisin these particular instances. I think the ICC has towork on its public relations in terms of portraying amore legitimate and beneficial perception of itself tothe broader international community. Until it doesthat, these questions of legitimacy, in relationship towhere the Court is investigating, are going to persist.They have looked at other cases and there has beena discussion of opening other cases in other parts ofthe world. Unless you are looking at particular casesor following the press releases of the ICC, you are notgoing to be aware of these facts. It is unfortunatethat the majority of the public and the internationalcommunity are not fully aware of everything that theprosecutor’s office is doing.Q. The Rome Statute was originally supposed togovern the crime of aggression as well. What doyou think the future of the crime of aggressionwill be for the Rome Statute? Will the StatesParties to the ICC agree upon a definition ofaggression? How might this influence the role ofthe Court in the future?A. I’ve become very pessimistic on this question. Thisquestion has dogged the establishment of this Courtsince the WWII era. When you had the activities afterWWII, in the late 1940s and early 1950s, to establishthis Court, the official justification for not establishingit was that they could not come up with an agreedupon definition of the crime of aggression. Thatprobably was not the sole reason given theemergence of the Cold War and other issues. But aswe move forward, we have a definition that emergesin the 1970s that was not palatable to enough actorsthat they were willing to implement it into a juridicalinstitution like the ICC. So at this point, I am not veryoptimistic that the crime of aggression will ever be apart of the Rome Statute. Quite honestly, I’m not surethat this is necessarily a bad thing at this point. Tome, as I look at the crimes contained in the RomeStatute, I think the crime of aggression may be themost easily politicized of all because it does not havean accepted definition as I think most of the other


ICC OBSERVERS INTERVIEWS . 171crimes do. So to have this undefined crime ofaggression put into play in the Rome Statute and toallow the prosecutor to act on that, I think would beextremely problematic; I would worry about thepoliticization of that crime and the overuse of thatcrime and in many ways, I would think it might hinderthe legitimacy of the Court rather than help it. TheICC would be best served to stay with thelongstanding definitions of the three core crimes italready governs, and then eventually they can cometo a definition of the crime of aggression, but onlywhen and if the Court is a more accepted institutionin the international community.anything. At that point I would rather have seen theRome Statue fail in 1998 than have the ICC.The ICC’s fate is solely dependent on the internationalcommunity of states. If the ICC is not to become adead letter institution, then it’s up to the states toprop it up and make it a fully functioning institution,but this will simply be about how states wish toconstruct the future international community andwhether they believe their interests are best servedby multilateral means or not.Interview conducted by Zachary Manfredi and JulieVeroff.Q. What do you see as the future role of theCourt in 10 years? Will international criminal lawgain increased authority and enforceability? Whyor why not? Can you give an example of a bestandworst-case scenario for the Court?A. I think the future of the court is extremelydependent on the world’s state actors. As much as Iloathe a state-centric, realist perspective of theworld, I think the reality is that states still play afundamental role in how the future internationalcommunity will be constructed. And so as we look atthe Court, I think that the future role of the court willbe dependent on the acceptance of the Court andthe buy-in by the international community of states.Without that buy-in by the international communityof states the ability of the Court to arrest people likeBashir, to act on the warrant, to have any type ofenforceability, is extremely limited. The Court simplydoes not have the independent means to fulfill itsmandate. It must rely on states to fulfill its mandate.Simply having a hundred plus ratifications does notmean in a practical sense that these states are goingto support the Court in a clear fundamental way interms of the enforcement of its rulings on the arrestwarrants, etc. The best-case scenario is that you doget the buy-in from these states, they do accept themandate, see it as beneficial to their interests in theinternational community and they assist in every waypossible. The worst-case scenario is that these statesdon’t buy-in and the Court simply flounders for thenext ten years in terms of its inability to enforce


172 . DEBATING INTERNATIONAL JUSTICE IN AFRICAICC Observers Project – OxfordTransitional Justice ResearchExclusive Interview with Colin Thomas-Jensen,Enough Project Policy Advisor29 March 2009Colin Thomas-Jensen is a Policy Advisor at theEnough Project. Based in Washington, D.C., Colinhelps to guide Enough’s analysis and policyrecommendations to end crimes against humanity.He also oversees Enough’s field research in Sudan,Chad, Congo, Uganda, and the Horn of Africa. Colinpreviously worked at the International Crisis Group,where he had a range of responsibilities includingdirect advocacy with senior policymakers andresearch trips to Africa. He joined Crisis Group fromthe U.S. Agency for International Development(USAID), where he was an information officer on thehumanitarian response team for Darfur. He alsoserved as a Peace Corps volunteer in Ethiopia andMozambique, and has traveled extensively in East,Central, and Southern Africa. Colin has an MA inAfrican Studies from the University of London’sSchool of Oriental and African Studies (SOAS), witha concentration in the history of Islam in Africa,African politics, and Islamic family law. He haswritten for Foreign Affairs on U.S. policy in the Hornof Africa, publishes regular commentaries and opedsin U.S. and African newspapers, and speaksfrequently with international news outlets.Q. You recently authored a strategy paper forEnough outlining different mechanisms for peacebuilding and conflict resolution in Eastern Congo. Inthe report you argued that the Court shouldinvestigate and prosecute cases in North and SouthKivu. Specifically, what role do you think the Courtcan play in conflict resolution in the DRC? You saythe Court should increase pressure on internationalactors to develop an apprehension strategy forNtaganda – how can it do this? More generally,what should be the political role of the Court?A. One of the big issues that’s fueling conflict andatrocities and human rights violations across Congo isimpunity. You essentially have a state with a non-functional/dysfunctional court system and a limitedcapacity to investigate, arrest, try, and hold peopleaccountable for the crimes that they commit, all theway from shoplifting up through war crimes. In theKivus, certainly over the past ten years, we’ve seen alevel of criminality and a level of violence directedtowards civilians that’s almost unprecedented. Foranyone doing human rights work, the Great Lakes isone of the biggest challenges that we have.Beginning to establish accountability for war crimesand crimes against humanity is critical to changingthe behaviour of combatants in these conflicts andultimately ending them.In the Kivus specifically, and since 2002, becausewe’re talking about the ICC here, we’ve seen sexualviolence perpetrated on a massive scale, we’ve seenwar crimes, forced displacement, murder, torture. Allof the ingredients are there for what I believe shouldbe a full scale ICC investigation. The state in questionis unable to end impunity on its own in the Kivus andcertainly because of the situation we’re seeing nowwith Bosco Ntaganda, unwilling to even live up to itsown commitments under international law and as asignatory to the Rome Statute. And on that questionin particular, I was really struck when Nkunda wasremoved from the head of the CNDP and replaced byBosco Ntaganda that there was almost deafeningsilence from the human rights community, fromnation states – specifically those signatories to theRome Statute – and from the Court itself, on the factthat Bosco was essentially walking aroundunmolested in Goma. And that continues. He appearsregularly in public, he spends time with governmentofficials, yet this is someone who they’re obligatedunder international law to arrest. I’d like to see theCourt increase pressure on the Congolese governmentto arrest him, and doing that means pounding thetable a bit more. The prosecutor and his deputy dohave a bully pulpit and can start to make a lot morenoise about the fact that this guy, a guy who’sresponsible for some pretty heinous stuff, is not onlywalking around carefree in Eastern Congo, but alsohas been given military responsibilities by theCongolese government that most certainly would givehim yet another platform to commit atrocities.


ICC OBSERVERS INTERVIEWS . 173Q. In the case of the Sudan, Enough’s strategy hasparticularly focused on accountability for stateactors and state crimes, but in the DRC, yourstrategy appears to focus more specifically onrebel leaders and non-state actors like Ntagandaand the CNDP. What is the reason for thisstrategy? Is there a role for the ICC to play inhelping to assure accountability for state crimesin the DRC, as well as for those committed byrebel leaders?A. Justice must be impartial. In the case of DRC,there’s no question that the Congolese army –whether of Kabila I, Kabila II, the transitionalgovernment, or the current government – has beenresponsible for a significant number of human rightsabuses and in many ways has been one of the causesof the conflict. In Congo, the army is more of apredator than a protector. The inability of the statenot only to protect its own citizens but the decisionby members of the military to commit atrocities issomething that ought to be punished. The focus thusfar has been on rebel leaders because as we’ve seen,the state referred the case and Nkunda and Boscoand others are obvious targets because of theirreputations and the investigations that have gone onby a lot of human rights groups that I’m surepresented information to the Court. But the state inthis case is often complicit in violence againstcivilians, particularly sexual violence. And also, I thinkhere, again, there’s a split. Because the Court’smandate is 2002 on, we’re looking at differentperiods. Many of the war crimes committed duringCongo’s civil war were committed before 2002. Manyof the criminals responsible for this violence aresitting in rather plum positions in the military or haveretired to nice villas. In addition to the Court goingafter crimes post-2002, we also need to start lookingat broader forms of transitional justice in DRC andparticularly a process to vet army officers and removeand punish those who are proven to be responsiblefor war crimes and crimes against humanity.Q. What was your reaction to the arrest of Jean-Pierre Bemba and the charges of war crimes andcrimes against humanity brought against him? Is itsignificant, and how so, that these charges arefor crimes committed in the Central AfricanRepublic and not the Democratic Republic ofCongo? How might this affect the perception ofthe Court and his trial at the local level asopposed to an international level?A. Bemba is someone who bears significantresponsibility for crimes in both CAR and in DRC andthe Court very well could have put together a prettystrong case against him for his conduct during theCongo War. That the arrest warrant was issued forcrimes committed in CAR and that that case wasreferred to the Court by President Bozize and thatthat President Bozize is a close ally of Kabila and thatBemba is Kabila’s main political rival – these factorsadd to the perception that Kabila, like Museveni inUganda, many think, have used the Court to isolateand neutralize political or military enemies. Andwhether that’s true or not, the question is: has theCourt done its job in investigating crimes committedby all sides in putting together strong cases againstthe most egregious offenders and in ultimately,bringing these guys to justice? On the specific caseof Bemba, I think it’s quite obvious that he did somepretty awful stuff in CAR and I do think he deservesto be in the dock for that and for that the ICC shouldbe commended. But the other side of that is thatthere were atrocities committed by all sides in thewar in Central African Republic and I would hope thatthere are ongoing and aggressive investigations tobring those members of the government responsiblefor atrocities to justice.Q. We have seen some successful military tribunaltrials in Eastern Congo recently, despite largerproblems of impunity that you previouslydiscussed. It seems that individuals like Lubangaor Bemba could ostensibly have been tried inmilitary tribunals instead of the ICC. How doesthis affect the legitimacy of the Court? Are thesetoo small fry to be tried by the ICC, or did thesecases warrant ICC attention?A. The trials in Katanga ought to be seen as bigsuccesses, though from a human rights perspective,it’s unfortunate that the defendants were sentenced


174 . DEBATING INTERNATIONAL JUSTICE IN AFRICAto death. Because I focus mostly on the Kivus, myunderstanding of what’s gone on in Katanga is mostlyfrom Human Rights Watch and friends and colleaguesthere, and a successful Congolese prosecution issomething we ought to applaud. But at the sametime it is a small drop in the bucket of the level ofcriminality and violence that has characterized thesewars. The imperative in the Kivus, where we oftenforget that 1,000 people are still dying a day due tothis war, is bringing the conflict to an end. I thinkthat whatever mechanisms are available to both theCongolese government and the internationalcommunity to end impunity, which is fueling thesewars, have to be exploited and the ICC is certainlyone of them. I’m not sure if it’s a question of big fishversus little fish – the ICC certainly wants to be goingafter the high-profile individuals, those withcommand responsibility and responsibility forsignificant violations of international law. But in theKivus, there are so many murderers running aroundand so many people with blood on their hands thatthe Court certainly has a role in both conducting itsown investigations but also, and Ocampo alwaysstresses this, working with local government or thehost country government to improve its capacity todo these types of things on their own. And in someway, and I wish I had the evidence for this, with thetrials and convictions in Katanga, there is perhaps aconnection between the success that the Court hashad in Ituri and in apprehending suspects and havingthem delivered to the Hague and the Congolesegovernment taking on more responsibilities to try andprosecute its own war criminals.Q. What do you think of the Pre-Trial Chamber’sdecision to issue an arrest warrant for Omar al-Bashir? What is the impact of the absence of agenocide charge on the advocacy movement? Ifthere is a consensus among international juristsfrom the UN Commission of Inquiry Report from2005 and now the Pre-Trial Chamber of the ICCthat the violence of Darfur does not constitutegenocide, will this affect the advocacymovement’s, and Enough’s, strategy and advocacyfocus with regard to the conflict?A. First, on the Pre-Trial Chamber’s decision, Iunderstand that the deliberations, specifically overthe question of genocide charges, were extremelycontentious and that a couple of the judges are nolonger on speaking terms because of it. And I thinkthat speaks to the fact that this wasn’t, as somearmchair academics have said, a slam-dunk in theface of the Prosecutor that Bashir is not responsiblefor genocide. It was something the judges debatedand discussed and disagreed upon. Whether thosecharges are warranted or not – ultimately in this casenot – there will be other prosecutions and I’m surethere will be other attempts through whatever justicemechanism, whether it’s domestic in Sudan orinternational, to prove these charges, because I thinkthere’s evidence enough to warrant at least a trial ongenocide charges. I say that in part because of thedecision reached by the US government to call thisgenocide, and it was not one taken lightly. It resultedfrom a legal investigation and determination by StateDepartment lawyers, who are not known to interpretthese things liberally. They are quite conservative, soto make that determination was something they feltquite strongly they had legal basis to do. And look atthe Commission’s report itself. It was incredible to methat despite the litany of crimes listed as committedby the government and its proxies, the governmentof Sudan was able to twist the report into quite apropaganda machine for itself simply because thecommission didn’t say that genocide had beencommitted. It said that there were acts committedthat were tantamount to genocide but didn’t quitereach that threshold. But there was very little legaldiscussion of what that meant. To me it sounded likethe US State Department talking about Rwanda in1994, when the spokesperson famously said that actsof genocide had been committed but the U.S.government shamefully refused to say, in the face ofcontinued questioning, that genocide was beingcommitted.On the question of how this is going to impactadvocacy and activism: my own strong belief is thatthe question of whether or not what’s happening inDarfur, or what has already happened in Darfur, wasor is genocide is important from a legal perspective


ICC OBSERVERS INTERVIEWS . 175and from the victims’ perspective. It has to be saidthat the use of the word was certainly important tobuilding an activist movement and certainly catalyzeda number of communities to take action in the UnitedStates and around the world. The continued use ofthat term is a contributing factor to the energy thatwe’ve seen built up around ending this conflict. Butat the same time, the debate over whether or not itis genocide has been unproductive in many ways. It’salso been non-productive and it’s beencounterproductive to the movement to end whateverwe want to call it: war crimes, crimes againsthumanity, genocide, mass atrocities, atrocities,atrocities crimes. It has been unproductive in thesense that it’s been a distraction. We’re still seeingreams being written and discussed about whetherthis is or is not a genocide. At this point, it isimportant from a legal perspective, but it is moreimportant that six years into this conflict, we have yetto see meaningful steps taken to end it, except bythe ICC. It is non-productive because, even thoughthe US reached the determination that the violenceconstituted genocide, it then made this astonishingleap and said, “And we’re doing all that we can tostop it.” The fact that you had the conservativeGeneral Counsel and lawyers at the State Departmentauthorizing the US to make a pretty extraordinaryclaim on the international stage and then following itup by saying, “And that’s basically it,” raises thequestion of: what was the point? What then did itmean? And then I think counterproductive for thereason I said before: the fact that any time aninstitution or a commission makes a finding that it isin fact not genocide, the government of Sudan canrail against the United States and others for theirclaims without having to face what’s often embeddedwithin the text, which is that the government isresponsible for terrible crimes against humanity andatrocities no matter how you cut it or how you defineit.I think the way it’s going to impact the movement inimmediate terms of the Chamber’s decision isminimal. I think that many activists and, it must besaid, many lawyers and academics believe stronglythat genocide has occurred and may be stilloccurring. And as a way to frame a conflict in whichcivilians have certainly been targeted on the basis oftheir race and ethnicity, it’s going to continue to be adescriptor and it’s going to continue to drive amovement that we hope will help to end the conflict.Q. Looking at Enough’s four “P” strategy – Peace,Prevention, Protection and Punishment –sometimes these various objectives may comeinto conflict with one another. Could you describethe decision-making process of Enough staffwhen deciding to support a decision like the ICCarrest warrant for Bashir that, while it furthersthe interests of justice, may also have negativeimplications for peace and protection in the shortterm?A. Our strong belief is that you need all three at thesame time if you are going to make any progresstowards ending a conflict. Protecting civilians in andof itself is not going to end a conflict. Peace withoutjustice most likely fails to end conflict andaccountability in the absence of anything else is notgoing to end the conflict either. You need to moveforward on all fronts. We also have to be realistic andsober when we think about what the impacts ofvarious moves might be for people on the ground andit is disingenuous for any activist to say that the ICC’sdecision and the way that the government of Sudanhas responded to the ICC’s decision, is not going tohave an extremely harmful impact on civilians inDarfur, in both the short and perhaps medium term.The reason why the international response to theSudanese government’s decision is so important isthat up until now, the government has really facedvery few if any real consequences for what it hasdone in Darfur. I do agree with some that the regimeis acting in part out of paranoia that western NGOsare embroiled in a plot to bring down thisgovernment. However, I also think that they havecalculated the human cost of this decision and it issomething that plays into their war strategy. If thereis no response, or if the response is to consider anArticle 16 suspension of the warrant so thathumanitarian assistance can continue, we will haveessentially enabled the regime and others like it to


176 . DEBATING INTERNATIONAL JUSTICE IN AFRICAmanipulate humanitarian assistance andaccountability to their own ends. If the Sudanesegovernment does not reverse its decision to expelhumanitarian groups or face harsh consequences forits actions, the immediate lesson for this regime andothers like it is that for all of the rhetoric of humanrights, international law, and responsibility to protect,the international community remains as toothless inthe face of genocide as it was in Rwanda. A return tothe status quo right now, despite the overwhelmingcosts that I fear civilians are going to suffer, is theworst thing that can happen to Sudan just now.Q. How significant is it that the first (and still all)of the cases currently before the Court areagainst Africans for crimes committed in Africa?How does this affect the perception of the Courtin Africa and in the international community morebroadly? Where might the Court issue its next setof indictments? Where should the Court look forfuture prosecutions? Also, as a parallel questiongiven that Enough also describes itself as anorganization dedicated to ending genocide andcrimes against humanity, what is the significancethat all of the conflicts Enough has thus farfocused on are also African? Does Enough plan tofocus on other conflict situations in the future?A. At Enough, when we began our work, it wasessentially two Africanists that founded theorganization – John Prendergast and Gayle Smith –and I was a sort of wobbly third wheel and also anAfricanist. We believed strongly at the time that thethree conflicts that warranted the most attention andwould benefit the most a constituency of Americanspushing policymakers to take action to end atrocitieswere Sudan, Congo, and Northern Uganda, orwherever the LRA happened to be at the time. Overtime, however, our strategy certainly is going to be toexpand beyond just Africa and to start adding anycrisis to our portfolio in which crimes againsthumanity or genocide are occurring. One of the wayswe are going to make those determinations isthrough a project to establish metrics for thoseplaces most at risk – tackling this question withpolitical science research. We are going to examinethe question of where atrocities are most prevalentand what countries are most at risk of atrocities. I ampretty certain that once we finish that project, we willhave a roadmap to some of the other countries thatwe are going to be working on. I have no doubt thatSri Lanka and Burma would be high on the list asplaces where civilians are bearing a high cost in war.It must be said that we receive a constant barrage offeedback on the website from people asking why weare not focusing on Iraq and Gaza. There is a strongcase to be made that atrocities are being committedin the Middle East, but many of these crises alreadyget a whole lot of attention from the media andpolicymakers and from activists. Our mandate is to tryto shine a spotlight on those conflicts that areequally bloody, if not bloodier, but that do notgenerate the same kind of heat. That is how we makeour decisions.As for the Court and the fact that its work has beenlimited to Africa, I do think the Court now has a bigperception problem on its hands. I think they areaware of it, but I do not know what specific stepsthey are taking to deal with it. For those who critiquethe Court on these grounds, their argument is that itis a neo-colonialist imperialist enterprise aimed atkeeping African countries in their place. The counterargumentof course is that three of the current cases– CAR, Congo, and Uganda – were referred to theCourt by elected, sovereign governments and theSudan case was referred by the Security Council,which is the ultimate arbiter of international peaceand security. It may not look fair, the argument goes,that the Court only has cases in Africa, but that it hasjust turned out that way early on. I think that that isthe case, but the issue of perception has to bemanaged better as well; the perception that this is aCourt of white man’s justice needs to be accepted onface value and combated aggressively not only by theCourt but by state parties to the Rome Statute aswell. My greatest frustration with the ICC is not withthe institution itself, but rather with the states thatsigned the Rome Statute and the fact that in the faceof criticism from the global south, criticism frommultilateral organizations like the Arab League andthe African union, that the Court’s major backers


ICC OBSERVERS INTERVIEWS . 177have been somewhat muted in their response: thiscertainly hurts the ICC.It is not the prosecutor’s and the Court’sresponsibility alone to defend their actions day in,day out. They need support from those countries andthose institutions that helped to establish the Court.And not only does the Court need defense againstand criticisms and questions about whether they aretargeting Africa, but they also need support inexecuting the warrants. It was incredible to me thatthe ICC issued arrest warrants for Joseph Kony and hisclose associates and the Court’s major backers withinthe international community literally had no plan andno notion of a plan on how to execute them. As ajustice mechanism it is the prosecutor’s job is to takeon cases, pursue them aggressively, and put peoplebehind bars, but it is the broader internationalcommunity’s job to support that effort in the face ofcriticism and to support the prosecutor if he makes amistake. I’d like to see more friends of the ICC thatwere more vocal and assertive in putting forth thatalternative narrative, because I’m getting pretty sickof hearing how the Court is targeting Africans,particularly when it has to be acknowledged thatsome of the worst war criminals in the world arekilling with impunity in Central African and Sudan.Q. What do you see as the future role of theCourt in 10 years? Will international criminal lawgain increased authority and enforceability? Couldyou speculate about possible best- and worstcasescenarios for the Court? What can the ICCand other international actors do to ensure itsown legitimacy in the future?A. I think we have to look at the broader trends.Although by no means is the job close to beingfinished, the world has made leaps and bounds inhalting atrocities and in ending impunity for warcriminals. I do think you can say that we have madesignificant progress through the internationaltribunals of Rwanda and the Former Yugoslavia, andthe Special Court for Sierra Leone; we are seeingmajor war criminals behind bars, on trial, in the dock,answering tough questions about their behaviour andultimately spending time behind bars. That is notsomething that was happening 20 or 30 years ago.The optimist part of me, and it is not a large part, butthe optimist in me says that despite the fits andstarts that are inevitable with any institution that theICC, over time, is going to establish its legitimacythrough prosecuting and putting people behind barsand that it is going to earn increased support. A veryimportant issue for the future is the strategy that theCourt and its backers put in place to manage itsperceptions, particularly in the Global South. I thinkthere does need to be much more considered andconcerted action taken to do that. I also think thatthe work that the Court’s main backers do behind thescenes to support its work is of incredibleimportance. The ICC does not have an army and itdoes not have a huge investigative force. When itdoes investigations, it relies on support from otherswithin the international community. I know peoplewho have provided evidence in a number of cases:they have just volunteered. They have said, “I havethese photos of this incident, do you want them?”And the Court says of course. Those of us whosupport international justice have a responsibility todo what we can on an institutional and a personallevel to support the Court. If the ICC does receive thatsupport, we’ll have an institution that in ten years islocked in place within the international system. It willhave its ups and downs, but will be well establishedas a mechanism to bring the worst war criminals tojustice.I don’t want to speculate on the worst-case scenario.Certainly the Sudan case is a major challenge and thefact that the Court’s backers and Rome Statutesignatories have allowed the African Union and theArab League and others to marshal as muchopposition to this arrest warrant as they have isproblematic. The possibility of African states pullingout in a block from the Court is a very real problemand one that ought to be combated. I do not thinkthat would be a deathblow to the Court, but it wouldcertainly be a significant shot. My general sensethough is that, despite the horrible crimes that arestill occurring, the trends in international law towardsending impunity and preserving human rights are


178 . DEBATING INTERNATIONAL JUSTICE IN AFRICApositive. I think the ICC will ride that wave and in tenyears will be in a place that might not be as farahead as we would like it to be, but will be wellestablished.Interview conducted by Zachary Manfredi and JulieVeroff.ICC Observers Project – OxfordTransitional Justice ResearchExclusive Interview with William Schabas,Professor of Human Rights Law and Director ofthe Irish Centre for Human Rights at the NationalUniversity of Ireland, Galway26 March 2009Professor William A. Schabas is director of the IrishCentre for Human Rights at the National University ofIreland, Galway, where he also holds the chair inhuman rights law. William Schabas is an Officer of theOrder of Canada. Professor Schabas is the author ofeighteen monographs dealing in whole or in part withinternational human rights law, including Introductionto the International Criminal Court (Cambridge:Cambridge University Press, 2007, 3rd ed.), andGenocide in International Law (Cambridge: CambridgeUniversity Press, 2009. 2nd ed.). Schabas has oftenparticipated in international human rights missions onbehalf of non-governmental organizations such asAmnesty International (International Secretariat), theInternational Federation of Human Rights, and theInternational Centre for Human Rights and DemocraticDevelopment to Rwanda, Burundi, South Africa,Kenya, Uganda, Sudan, Cambodia and Guyana. He islegal counsel to Amnesty International Ireland. In May2002, the President of Sierra Leone appointedProfessor Schabas to the country’s Truth andReconciliation Commission, upon the recommendationof Mary Robinson, the United Nations HighCommissioner for Human Rights.Q. In a recent article, you wrote that the UNCommission of Inquiry’s report on Darfur, whilefinding that “the Government of Sudan has notpursued a policy of genocide,” left room for thepossibility of individual actors having committedgenocidal acts. Does the ICC ruling change youropinion about this possibility? What is thedistinction in customary international lawbetween “acts of genocide” and an organizedstate “policy of genocide”?A. There is case law from the Yugoslavia tribunal thatholds that the crime of genocide as defined


ICC OBSERVERS INTERVIEWS . 179internationally doesn’t require any contextual elementsuch as a state plan or policy. The InternationalCriminal Tribunal for the Former Yugoslavia (ICTY) hasheld that an individual acting alone can commitgenocide. That view was endorsed, in a sense, by theCommission of Inquiry that was presided over byProfessor Cassese, but in a purely theoretical sense,because the Commission did not find any individualwith a genocidal intent in Darfur on which to hangthat accusation. I have personally never found this tobe a particularly helpful proposition because I do notthink the problem of an individual with a genocidalintent should be of any concern to internationalcriminal law. The problem of an individual acting inisolation with a genocidal intent should be a concernfor psychiatry. I have argued this position since the1999 decision of the ICTY, I’ve written about this, andI reiterate my position in the second edition of mybook on genocide, which is that a state policyelement is essential for a determination of genocide.In the article you are referring to, I took the view thatthe Commission of Inquiry on Darfur had confirmedthe importance of a state policy because it had ineffect responded to a question from the SecurityCouncil – was genocide being committed in Darfur? –with the answer, “No, we don’t see any genocide inDarfur because we do not observe a state policy ofgenocide.” So I took the report of the Commission ofInquiry as confirmation of my position, although Ihave to acknowledge that the Commission says thatthey cannot exclude the possibility that an individualacting alone could have genocidal intent. I know thisto be the view of Professor Cassese, but I don’t agreewith that position.Now, in the recent decision on the Bashir arrestwarrant, the majority of judges hold the view thatgenocide requires the policy element, in effectderiving this standard from the Elements of Crimes.It is important to understand that the Elements ofCrimes, which were negotiated in late 1999 and early2000, took place in context of the ICTY and the casesinvolving the lone genocidal perpetrator. It is wellknown that the requirement of a contextual elementfor genocide, which is in the Elements of Crimes, wasa response to the decision of the ICTY. The majorityof the Pre-Trial Chamber has insisted on applying theElements of Crimes for the purposes of applying thelaw of the Rome Statute. They distinguish it from theposition taken by the ICTY but without making anyobservation as to what it might constitute forinternational criminal law. The judges of the ICTYwould no doubt say that the Pre-Trial Chamber’sdecision is a particular interpretation of the provisionsof the law applicable to the ICC rather than astatement of customary law; this is only because theythink what they are pronouncing on is customary law.I have noticed that the judges of the ICTY refer to theRome Statute as authority of customary law whenthey agree with it, and when they do not agree withit they say it is not representative of customaryinternational law. This suggests that customaryinternational law is what the five judges of theAppeals Chamber of the ICTY think it is. I do not thinkthat’s the correct position.I think that the Elements of Crimes, which represent aconsensus of the states involved in the ICC, is moreauthoritative of what customary international law isthan what the judges of the Appeals Chamber of theICTY think it is. However, no one can answer thatquestion definitively – we now have a situation wherewe have one interpretation from the YugoslaviaTribunal, which is based on the judges’ owninterpretation of treaty law, namely Article 2 of theGenocide Convention as repeated in Article 4 of theYugoslavia Statute. The ICTY judges are relying on aliteral interpretation of that provision, because theyargue that there is nothing in the text that says thatin order to commit genocide there needs to be acontextual element or state policy element, so theyconclude that you do not need a state policyelement. That is, unfortunately, the extent of theiranalysis. To say that this view is customaryinternational law is pretty superficial, because there isno attempt to identify what customary internationallaw is in this case, but rather their opinion is basedonly on a literal interpretation of the treaty provision.What the ICC has in its favour is that when youcombine its text – which is the same text in Article 2of the Genocide Convention, Article 4 of the ICTYStatute, and Article 6 of the Rome Statute – with the


180 . DEBATING INTERNATIONAL JUSTICE IN AFRICAElements of Crimes, and a dose of common sense,you end up with a contextual element to the crime ofgenocide. What we do not know now is whetherpeople will look to the Pre-Trial Chamber’s decision inthe future and say this is a useful correction thathelps us to clarify customary law or whether peopleare going to interpret it as a particular decisiondictated by the specific terms of the Elements ofCrimes.We have to bear in mind that there is a dissentingopinion in this case that tends to dismiss thesignificance of the Elements of Crimes. There is alsoArticle 10 of the Rome Statute that reminds us thatthe Rome Statute is not necessarily a codification ofinternational law. Those are all the pieces of thepuzzle and where things will go from here I cannotsay, but I am pleased with the arrest warrantdecision.Q. How does the Pre-Trial Chamber’s ruling in theBashir case relate to the 2005 UN Commission ofInquiry’s findings? Does the Court’s refusal togrant the genocide charges support the findingsof the Commission? Are we reaching a consensusthat the violence in Darfur is not appropriatelyclassified as genocide? How will this influence thefuture development of international criminal law?A. Yes, it is clear that there is a growing authority forthe view that the events of Darfur do not constitutethe crime of genocide: the Commission of Inquiry, thePre-Trial Chamber, and the major human rights NGOs– Human Rights Watch and Amnesty International –have not used the term genocide. I think it is clearthat when one gives an interpretation based on thedefinition of the Genocide Convention, we get theresult that this is not a case of genocide. When onelooks at something like the document produced byMadeline Albright entitled Preventing Genocide, fromher Genocide Task Force in 2008, we see it adopts adefinition by which genocide means all forms of masskillings. That is not a particularly legal determinationand she and her co-authors tend to dismissobjections to their view as legal pedantry. I, however,do not know that it is proper to dismiss the GenocideConvention and the Rome Statute as merely legalisticpedantry. These are significant and recognizeddistinctions in international criminal law betweengenocide and other forms of mass killing, whichwould constitute crimes against humanity or warcrimes.The definition of genocide and the answer to thequestion of whether genocide is taking place inDarfur depends on whom you are talking to. If youare talking to an international lawyer, then it is notgenocide. If you are talking to an American politicianor sociology professor, then they might say it isgenocide. It just depends how you use the word. TheOxford English Dictionary adopts the definition fromthe Genocide Convention. However, people are freeto use words as they want. For example, sometimespeople will use rape to describe violent sexualassault, while some merely use the word to describesomething unpleasant. So when we debate whether‘genocide’ is taking place in Darfur, we need to knowwhat people mean by genocide. There are a lot ofdifferent meanings floating around out there.For international law, it means that there is growingsupport for the feeling that Darfur is best notcharacterized as genocide, and there is also growingauthority for the view that the definition of genocidein the Convention and Rome Statute should beinterpreted in a relatively strict and narrow manner.We now have a great deal of authority for this view:the decision of Pre-Trial Chamber, the ICJ ruling inBosnia v. Serbia, and the Yugoslavia Tribunal in theKrstic ruling, and we have the report of theCommission of Inquiry. Against that, you have a fewdissenting judges, and you have a few national courtdecisions that weigh on the other side, but onbalance, the authority is clearly in favour of anarrower interpretation. That is why so many thoughtthat the actions of the Prosecutor in attempting toget the arrest warrant for genocide given theindications of the law were not very productive. I amnot talking about the demagoguery or extravagantuse of the term genocide in this case. The consensusamong international lawyers and from the UNCommission was that the prosecutor could not get anarrest warrant on the grounds of genocide. So in


ICC OBSERVERS INTERVIEWS . 181terms of international law, the Pre-Trial Chamber’sdecision is just further evidence of a trend towards anarrow interpretation of the crime of genocide.Q. What do you make of the possibility thatMoreno-Ocampo might appeal the judges’decision or bring future charges of genocideagainst Bashir and other Sudanese officials?A. I do not see that as a serious possibility. He hasfiled an application for leave to appeal, and it willhave to be determined by the judges of the Pre-TrialChamber who issued the arrest warrant. There is noappeal of right of a decision denying issuance of anarrest warrant. He has to demonstrate that the rulingwould significantly affect the fair and expeditiousconduct of the proceedings or the outcome of thetrial and that an immediate determination of thequestion by the Appeals Chamber is required. Hewould have an argument if the warrant itself hadbeen denied. But he has his warrant, and he now canproceed to trial, and lead all of the evidence herequires. If he succeeds in establishing genocide, thejudges at trial can amend the charges. So all of thiscan be addressed according to the normal procedure.No useful purpose is served by an appeal at thispoint. This suggests to me that it is unlikely the Pre-Trial Chamber judges would give him leave to appealthis.As for him producing new evidence – and peoplehave made a lot of the fact that the judges includeda paragraph to this effect – you can say that aboutanything. There is no need to put that in thejudgment; it is obvious. If he produces new evidence,he can get a new arrest warrant. If new evidencecomes to light, he does not even have to get thearrest warrant amended. The judges themselves canpropose that the charges be amended to includegenocide. The introduction of new evidence hasalways been a possibility. I do not know if it isparticularly productive to insist that there issomething significant about the fact that the judgesreserved his right to come back with new evidence,since the prosecutor had this right anyway. On oneoccasion in the past the judges even asked for newevidence, and I assume Moreno Ocampo gave it hisbest shot. This is not like Srebrenica where there wasa mystery about whether they could get secretcommunications from the Serbs ordering themassacre. Here the facts are pretty straightforwardand well known. A lot has been written about thisissue documenting the statistics similar to thearguments of the prosecutor.If someone were to come forward and say that theprosecutor made a mistake because there is a wholelot of evidence that was not presented with regard tothe case of Darfur, then we might have a morecompelling argument that the Pre-Trial Chamberruling could be revised or that there will be anotherbite at the apple. I have not heard that, and I assumethe prosecutor has presented the best evidence thathe has, and it is widely available evidence, includingthe UN Commission’s report and all the NGO material.I do not think it is likely that he will get leave toappeal, and I question whether the judges will evenagree that they can give him leave to appeal such adecision. If they do grant him leave to appeal, well,then we are into the question of fact and of law.Mainly, however, we are not debating the facts here,we are debating the application of the legal definitionto the facts. No one quarrels with the facts MorenoOcampo presented and I do not think he hasadditional facts that could provide him with strongerarguments for a genocide charge.Q. Does the Court’s refusal to grant the genocidecharge amount to a failure in any way for theprosecutor? Some have argued, in Sudan, that thisshows the weakness of all the charges. Othersthink that it shows that the Pre-Trial Chamber is acredible body and not merely a rubber-stamp forthe prosecutor. What do you think?A. I think this shows one more bad exercise ofdiscretion by the prosecutor, one more bad call byMoreno Ocampo. He was chastened last year becauseof his decisions on gathering evidence that he couldnot then disclose to the defense and that led to aterrible and unnecessary delay in the Lubangaproceedings for more than six months. This was an


182 . DEBATING INTERNATIONAL JUSTICE IN AFRICAerror in judgment and I think seeking a warrant forgenocide charges in Darfur was also an error injudgment. I think he should have confined himself tothe clearly established charges of crimes againsthumanity and war crimes. The same Pre-TrialChamber has already granted two arrest warrants forthose charges; the judges had already concluded thatthe events in Darfur justify those two charges, as inthe Ali Kushyab and Ahmad Harun arrest warrants.Presumably they would have done the same thing inthe blink of an eye should that have been all theywere asked to do. Then the only question would be:does the evidence link the dots between Bashir andthose crimes. Had this been Moreno Ocampo’sstrategy, we probably would have had an arrestwarrant in August instead of February. The delay ofsix months in issuing the arrest warrant was due tothe prosecutor insisting on trying to get a genocidecharge, which was doomed to fail as shown by thePre-Trial Chamber’s ruling. These actions show a lackof good judgment on the prosecutor’s part; it is amistake, and not the first he’s made.As for showing weakness or strength of the Court, itjust shows it is a Court that functions properly. Whenthe prosecutor asks for something, the judges look atit seriously and come to a decision that is based onan accurate, intelligent and well-reasoned assessmentof the law; people should be satisfied that what wehave here is a serious, functioning institution capableof issuing judgments of high quality. What morecould you ask for?Q. In one of your articles you mention that somehuman rights activists considered the UNCommission’s report a betrayal because it failed tofind genocide charges. What will be the reactionof human rights activists to the Court’s findings?How will the Court’s ruling influence the actionsof human rights activities on Darfur in the future?A. Well, I cannot predict how they all will react. AsI’ve mentioned, two of the leading internationalNGOs, Amnesty International and Human RightsWatch, have not labeled the conflict in Darfur agenocide. I haven’t checked what the InternationalFederation of Human Rights or InternationalCommission of Jurists have said on the matter, but Iimagine they’ve taken the same cautious approach.The big international human rights organizations havenot bought into the idea that the violence in Darfurshould be labeled as genocide, and everything fromthese organizations I have read indicates greatsatisfaction that a head of state was charged withserious atrocities and this is being addressed by theICC. I think there must be a considerable amount ofjubilation, at least among the major internationalNGOs.There is, of course, another community, a specializedcommunity of NGOs focused on Darfur, and some ofthe academics who write about Darfur as well, andthey may find this ruling to be a repudiation of theirviews. Some of them are not singing from the samehymn sheet as the rest of us because they adopt adefinition of genocide that is simply their own. I workfrom the Genocide Convention, the YugoslaviaStatute, the Rome Statute, and so on, but some ofthe people involved in these debates have their owndefinition of genocide. All that these actors can say isthat the narrow definition of genocide, which they donot endorse, has been applied by the Court.I have always thought that there was a bit of anobsession with trying to label Darfur as genocide.This is not the only case where we see thisobsession: there are people who want to labelspeeches by Iranian President Ahmadinejad asgenocidal, people who want to label the war in Gazaas genocide, etc. There are many examples of what Icall the ‘extravagant’ use of the term genocide. Forpeople who indulge in that, they can keep doing it,but if they want to be part of the legal debate, theyshould just get over it.Q. What kind of outcomes will we need to seefrom the Court in order to ensure its legitimacy?What about the Lubanga and Bemba trials: do youthink the Bashir case has taken too muchattention away from these cases? What will bethe outcome for the Court if these two cases aretried successfully, but Bashir remains at large?


ICC OBSERVERS INTERVIEWS . 183What do we need to see overall from the Court inorder to establish it as a legitimate actor on theinternational stage?A. The Court is doing that right now. It is becomingmore and more of a legitimate actor on theinternational stage. It had a slow start. The firstphase in the history of the Court was the adoption ofthe Rome Statute and that was from the early 1990suntil 1998. This was an exhilarating period in terms ofthe development of international criminal law andparticularly because the more hesitant or conservativemodels of what an international criminal court mightlook like, which were the ones advanced by theInternational Law Commission in 1994, were totallyset aside in favour of a much more robust andinnovative, radical if you will, international criminalcourt, with an independent prosecutor separate fromthe UN, and many features that I won’t go into. Butwhat resulted was the Rome Statute. So that was avery exciting period. And then there was a period ofabout four years for entry into force, which was like acontinuation of the first period. Achieving 67ratifications within less than four years wassomething nobody had ever dreamed would takeplace. Most people on the night of 17 July 1998when the Statute was adopted thought it would takeat least a decade to get to 60 and maybe longer. Sothings went very quickly. And then when the Courtstarted, when all the officials were elected and theCourt became operational in mid-2003, it wentthrough a difficult period when things didn’t seem towork. There were plans that it would hold its first trialin 2005, the budget set aside money for the firsttrial, but there was no trial until 2009. That’s fouryears behind schedule, and pretty much everythinghas seemed to take much longer [in this period]. Idon’t know what the explanation is for that, butwhatever it is, it’s taking longer than expected andperhaps it is simply that that’s how long thingsshould take. We’d been through a previous periodthat had gone exceedingly quickly and that led us tothink that it would always be like that and it hasn’tbeen. But now the Court is operating and it isaddressing the big conflicts of our time, like Darfur. Itwasn’t insignificant that a little over a month ago thePalestinian Authority attempted to engage the Courtwith regard to Gaza. Whether that will or can takeplace is a matter of some debate, but the idea thatthe Court was appearing to engage with or berelevant to the conflict in the Middle East is a bigstep; it shows the Court is on the big stage now. It’smoving forward, it’s just taken a little longer than wethought. Now we have a trial going, we’re going tohave more trials. This is great. I don’t have any magicformula for what it should do now. I think it shouldjust do more of what it’s doing. The prosecutor oughtto reflect upon some of his mistakes and try tocorrect them. That would make his office moreproductive and more efficient.Q. Does the ICC have an implicitly political role tofulfill in conflict situations? If so, what shouldthat role be? Should the Court strive to remainpolitically neutral?A. I’m glad you asked that question. I have strongopinions on this. I would have held to the view in the1990s that the Court should be totally separate frompolitical debates and that there should be nopossibility of political involvement in the work of theCourt. As you know, in the final Statute, there’s a bitof a compromise there, mainly with respect to Article16, which allows the Security Council to temporarilyhalt the proceedings of the Court. The other placeswhere you have quite a clear political involvement ofthe Court are the triggering mechanisms where youallow both the Security Council and states to triggerthe Court. This is politics. These are political bodiesthat make their decisions politically. I’m increasinglyof the view that politics is actually a part ofinternational criminal law and that it’s unavoidable.I see this increasingly in decisions about whom toprosecute: decisions about individuals who areprosecuted and also about the organizations that aretargeted. In Uganda, for example, the prosecution hastargeted the rebels and not the government. I thinkthat’s a political decision. The prosecutor hascouched it in a strange and ultimately unconvincingtheory about prosecuting the most serious crimes,but he defines this in a purely quantitative way. So ifthe rebels kill more people than the government,then the rebels should be the focus. But the problem


184 . DEBATING INTERNATIONAL JUSTICE IN AFRICAwith that is you need a more qualitative approachwhen deciding who your targets should be. Most ofus living in an orderly society would find it far morethreatening that the government is committingcrimes, even if the outlaws are committing more,because outlaws are supposed to commit crimes andgovernments aren’t. So the prosecutor’s decision togo after rebels rather than the government has awhiff of the political to it. If it is purely based on thismathematical calculation, then it’s a mistaken one.I think there’s politics going on already. The Darfurprosecution, the decision to prosecute a head ofstate, is a profoundly political decision. There canhardly be anything more political. You’re calling forregime change; that’s the consequence of whatyou’re doing. When the prosecutor explained this lastJuly, he said: “I investigate the facts, I’m just anapolitical prosecutor who investigates the facts andgoes where they lead me,” as if he were Colombo orSherlock Holmes. But that’s not what he’s doing. It’sa political decision: he goes to the Security Counciland asks them to intervene. I’m increasingly of theview that there is politics in this.I think that our debates in the 1990s when the RomeStatute was being adopted were a bit distorted. Whatwe didn’t like about politics in the 1990s was theidea that the Security Council would be the politicalguardian. That was the extent of our vision. So theway we rejected the Security Council’s engagementwith the Court and the Security Council’s possiblecontrol over the Court was with the argument thatthere should be no politics in the Court. I think inretrospect that maybe we went too far with that. Iactually think that those prosecutions often, perhapsnot always, involve political determinations.taken by the prosecutor suggests a prosecutor whohas a different skill set than the man in the job rightnow. He’s a criminal law prosecutor. Once youacknowledge that the role of the prosecutor has astrong political dimension, then you either solve it bygetting a prosecutor who is recruited for politicalexpertise and judgment, or you provide some othermechanism to provide political oversight for theprosecutor. These are my preliminary reflections.I go back and look at events like Nuremberg, whereyou could say it was political forces who set up thetribunal and they decided politically that the Nazisneeded to be prosecuted. One of the critiques ofNuremberg that you often hear was that it was onesided.That’s obviously true, but my question topeople is: what should they have done then? Shouldthey have had a second trial of the tribunal that tried24 British leaders and 24 American leaders? Everyoneseems to acknowledge that that’s an absurdsuggestion, but say maybe they should haveprosecuted a few of the allied war crimes for balance.We get this debate at the Yugoslavia tribunal withchoosing the ethnicity of the defendants, we get intoclaims at the Rwanda tribunal that the RPF and notjust the Hutu extremists should be prosecuted, we’vehad it at the Sierra Leone Special Court where theysubmitted arguments about which faction should beprosecuted and how harshly, how relevant it was thatone side was good guys and one bad guys, and all ofthis involves politics. And I’m more and more of theview that rather than being in denial about thepolitics we should acknowledge it and then confrontit. We should recognize that it is part of thesedecisions and then find ways to address it in anappropriate and transparent and convincing way,rather than saying as the prosecutor sometimes doesthat this isn’t about politics. It is about politics.I’ve asked people about this at the Court and somepeople say no, there should be no politics, like whatthe prosecutor said. Others have said to me, actuallythe prosecutor has political advisors around him,which kind of confirms my own intuition, which isthat there is politics involved and it is quiteconscious. But that being said, I think part of theproblem is, the idea that political decisions will beQ. Could you speculate on the future of the Courtfive or ten years from now? What are the bestandworst-case scenarios for the Court and whatcan international actors do to improve the Court’sstanding and legitimacy in the next few years?A. I really don’t know. It is extremely difficult topredict the future in this case.


ICC OBSERVERS INTERVIEWS . 185I think, when you say best and worst case, certainlypeople shouldn’t exclude the possibility that theCourt will be a failure, that it will collapse and won’twork. I think that people are naïve to just think thatthis just moves ahead. The idea that the Court is justgoing to move ahead and keep progressing andeverything, which we would all like, I don’t see thatas being guaranteed, and we certainly have historicalexamples of institutions created way ahead of theirtime. The League of Nations, for example, was aheadof its time. It collapsed and a new institution had tobe created. I can’t rule that out for the ICC. I heardJames Crawford, who was involved in the InternationalLaw Commission in the early 1990s and one of thekey architects of the Rome Statute, speculating aboutthis at a conference last May. He said we had aconservative draft at the International LawCommission in 1994 because we didn’t think theinternational community was ready for more thanthat. It wasn’t because we were conservative, hesaid; we were giving the international communitywhat we thought it was ready for. But of course whathappened between the draft in 1994 and the RomeStatute in 1998 was the radical reconfiguration of theStatute and a new conception of what the Courtshould be. That happened very quickly and maybe wemoved too quickly. Maybe we created an institutionthat’s ahead of its time. I’m not arguing thatposition, but it is just one of the possible scenarios.That was Professor Crawford’s explanation of maybewhy we’re having such a hard time now, why we hadsuch a hard time getting the Court going. I can’t rulethat possibility out.The other scenario is that the Court moves forward,solves its problem, and becomes a more dynamic andmore universal institution. Here the difficulties are, asI’ve mentioned, the role of politics in the Court. And Ido think we need to find a solution to this one orface continuing difficulties or problems. In terms ofparticipation in the Court, we’re now up to 108 stateparties and likely there will be some more. But we stilldon’t have the biggest countries or some of the mostpowerful countries, including India, China, or the US,and we don’t have three of the five permanentmembers of the Security Council: China, the US, andthe Russian Federation. We don’t have India, Pakistan,or Iran. These are big pieces and it’s a question, a bigquestion mark, of whether the Court will becomemore universal by engaging with those pieces. Theother part of it is that the Court is right now notdominated by the permanent members of theSecurity Council. So the absence of three of thepermanent members is perhaps a weakness but it isalso a blessing because it’s enabled this institution todevelop and grow without the overwhelming role andparticipation and presence of the permanentmembers of the Security Council and the SecurityCouncil acting as the Security Council, which is whatwould happen if you got three or four of them. I’mtold now that at the Assemblies of States Parties theytalk about the P4, which describes the permanentmembers excluding the US, because it has beenboycotting the Assembly of States Parties for the lastseveral years. If the big players are brought in, it willchange the dynamics of the Court and it may makethe smaller players less enthusiastic and less keen onit. So that’s maybe a development too that we haveto keep an eye on.I’m also seriously concerned about recentdevelopments around the Bashir arrest warrant.African states were keen supporters of the Court inthe early years. Now, they seem to be turning againstthe Court. This is not a good development. At thesame time, the United States is warming up to theCourt. Personally, I like the court better when it hadthe support of African States and was disliked by theUS. I prefer that to a Court that the US likes but thatAfrican States are uncomfortable with.But you know, if one looked at the last 15 years orso, that is, the point when what we might call theinternational justice accountability movement beganin earnest, it now shows no signs of stopping. Itreflects some kind of idea in the human rightsmovement and a thirst that people have in countriesaround the world to see that the perpetrators ofserious human rights violations are brought to justicein one form or another. That field generally continuesto grow. I would assume that the ICC is in a way thecenterpiece of this, and the movement that surrounds


186 . DEBATING INTERNATIONAL JUSTICE IN AFRICAthe ICC keeps growing in so many other ways, thateven if the ICC would falter a little bit, the movementwould keep pulling the Court along with it. I wouldbet my money on the ICC being a much moresignificant and meaningful and relevant institutionten years from now than it is at present. But I’mprepared to acknowledge the caveat, because itfocuses our mind to accept the danger that the Courtcould fail. We shouldn’t be overconfident; we have tokeep addressing the shortcomings and the problems.Interview conducted by Zachary Manfredi and JulieVeroff.ICC Observers Project – OxfordTransitional Justice ResearchExclusive Interview with Phil Clark, ResearchFellow in Courts and Public Policy, University ofOxford, and David Anderson, Professor of AfricanPolitics and Director of the African StudiesCentre, University of Oxford23 March 2009David Anderson, MA (BA Sussex; PhD Cantab), is aProfessor of African Politics, Director of the AfricanStudies Centre, and a Fellow of St. Cross College at theUniversity of Oxford. He has a long-standing interest inthe history and politics of Eastern Africa and stateviolence and its consequences. He is the author of TheKhat Controversy, which examines the global expansionof Eastern Africa’s khat economy, and of Histories ofthe Hanged: Britain’s Dirty War in Kenya and the End ofEmpire, which is the first full history of the Mau Maurebellion and its brutal suppression in 1950s Kenya.Professor Anderson is also the founder and ExecutiveEditor of the Journal of Eastern African Studies.Phil Clark is a Research Fellow in Courts and PublicPolicy at the Centre for Socio-Legal Studies, Universityof Oxford, and convenor of Oxford Transitional JusticeResearch. He has a DPhil in Politics from BalliolCollege, University of Oxford, where he studied as aRhodes Scholar. Dr. Clark is author of Justice withoutLawyers: The Gacaca Courts and Post-Genocide Justiceand Reconciliation in Rwanda (Cambridge UniversityPress, forthcoming), co-editor of After Genocide:Transitional Justice, Post-Conflict Reconstruction andReconciliation in Rwanda and Beyond (ColumbiaUniversity Press and C. Hurst and Co.) and currentlycompleting a monograph entitled, Doing Justice duringConflict: The International Criminal Court in Uganda andthe Democratic Republic of Congo.Q. How will the potential referral of cases fromKenya be viewed on the ground and how will itimpact construction of the violence?David Anderson:The Kenya case for the ICC is really intriguing becauseit brings to light some of the real dilemmas that the


ICC OBSERVERS INTERVIEWS . 187ICC throws up. The people who want the ICC in Kenyaare the civil society groups, Kenya Human RightsCommission, and their allies. The reason that they’reso keen on the ICC is not because they think it’s awonderful institution necessarily but because theyfeel that international justice is the only justice theywill ever get. They have no faith in their localjudiciary. They feel that the collapse of institutions inKenya is such that if they wait for Kenyan justice thenit will never come. So they’re appealing to aninternational route because that’s the only one thatwill work.The Kenyan government on the other hand, which isknown as the unity government or coalitiongovernment, is made up of two blocks of politicians.Among each of those two blocks, there are peoplewho might find themselves indicted. Thoseindictments might relate to the violence of lastJanuary and February of 2008 or they might relate tothe other events that the UN Special Rapporteur forExtrajudicial Killings, Mr. Philip Alston referred to in hisreport of two weeks ago, which included policekillings of alleged criminals and gangsters in thesummer of 2007, and also referred to army atrocities,which are extremely well documented, from MountElgon in March and April 2008. So for the Kenyansthere are a number of things coming together here.The ICC is seen to be a useful device.But the government of course doesn’t want this.Those politicians, quite unlike the human rightsactivists, see the ICC as a tremendous threat becauseit will expose them. Now, in this sense, theindictment of Bashir in the Sudan, combined in theKenyan case with the visit of the Special Rapporteurfrom the UN, Mr. Alston, to Kenya two weeks beforethe indictment, has had an effect of significantlyheating up the politics of this in Kenya. And followingthe indictment of Bashir a few days later, two Kenyahuman rights activists who worked for the OscarFoundation were assassinated in Nairobi. Subsequentto that, threats have been issued to a group of otherKenyan human rights activists and several are now inhiding and many are in fear of their lives.Now, the extent to which the Kenyan government is acoalition of gangsters needs to be recognized. Youcan’t say this might happen anywhere else. Kenya’spolitics are particular and peculiar at the moment, soone wouldn’t want to infer any comparative lessonsfrom this, but there is a direct relationship betweenthe indictment of Bashir and what is now going on inKenya because people realize the stakes have beenraised.A. If the Waki Report is turned over andindictments are issued in Kenya by the ICC, whatmight the impact be for peace and reconciliationand the political situation?David Anderson:That’s the question that everyone is now mullingover. Since the violence of January and February2008, there has been much thought given in Kenyato the likely impact of trying to prosecute those whowere responsible. Now, public opinion is pretty welldivided down the middle on this. Some people arguethat to take this forward might be morally andethically correct but because of the condition ofKenya’s politics and institutions, it would be likely tospark further violence of a targeted, specific naturesuch as the assassinations of the human rightsworkers. In other words, people are worried that topursue these people when you don’t have theprotections that a state institution that functionswould give you is very dangerous and verydestabilizing. Others argue that that may be the casebut that we shouldn’t let that stop us with movingforward with these prosecutions because what elsecan we do? If Kenyans don’t have the courage tograsp this nettle, then they’re forever in the throes ofthese gangsters and thugs. That is the dilemma.You’d have to be a very brave person to say which ofthose arguments is right. For myself, personally, Iworry about it because ethically I want to see thesepeople prosecuted. But I don’t want to see my friendsin the human rights community killed or threatened.So this is a genuine moral dilemma, and a verydifficult one.


188 . DEBATING INTERNATIONAL JUSTICE IN AFRICAQ. If the ICC is the mechanism of justice pursuedinstead of local or national mechanisms, will thatdeter or increase future violence?David Anderson:There is now anxiety about the ICC in Kenya. Lastmonth, the Kenyan parliament voted down a bill thatwould have created indigenous tribunals to try thepeople accused of violence in January and February oflast year. It’s fairly obviously why parliament turneddown that bill, because too many parliamentariansfeared that they and their staff would findthemselves in the dock. It is as simple as that.Whatever careful language one wants to use todescribe it, it’s an avoidance strategy. Everyone inKenya knows this. This is no secret. But it’s thedecision not to have the indigenous tribunals thathas also promoted this crisis; it’s not just the ICC’sindictment of Bashir, it’s also an internal politicalprocess that has failed. And Kofi Annan, who was thearbiter of the Kenyan dispute last year is the one whois threatening to give the names to the ICC of thepeople he is aware of who were involved in theviolence.Now, I should say that there is another context tothis that needs to be understood. Why do Kenya’shuman rights activists have no faith in the judicialprocess? There are many reasons for that in terms ofthe lack of functionality of the judiciary but there arealso more immediate concerns. Since January, therehave been at least six attempts to prosecuteindividuals who were named as having participated inthe violence. None of these cases have beensuccessful. Every time the case is thrown out, usuallybecause of lack of evidence. What this reflects is thatwitness protection is a serious problem and peopleare being got at, but it also reflects the ethicaldilemma I referred to. Some very honest, good,upright people don’t want to give evidence if thatevidence leads to further killing. This conspiracybuilds up a momentum that goes beyond theconspirators and affects ordinary people who feelchallenged and threatened by the very act of sayingwhat it is they saw.Q. We’d like to ask you to speak about the ICTRand regional tribunals more generally. How canthese actors interact with the ICC and local justiceactors? What connections should they bemaintaining with national and local actors? Whatrole should complementarity play?Phil Clark:There are a couple of things to say on this. The firstis that the legacies of an international tribunallocated in Africa are very messy. What we’ve seenwith the ICTR is in many ways an institution that is, inthe future, going to make it very difficult forinternational agencies to operate in Africa. Thereason is that the ICTR has been very ineffectual interms of understanding the politics of Rwanda andthe politics of the region as a whole, which has reallyhampered its relationships with governments and itsability to do trials effectively. Subsequently, there’sbeen a real forfeit of legitimacy of that tribunal.In the bigger framework, it’s now very difficult forinternational justice to happen in Africa and for it tobe seen as a legitimate process. Populations look atthese very expensive tribunals that have been foistedupon them from the outside, the ways in whichthey’ve blown in, and found it very difficult even todo legal jobs, to get investigations going, and to do itquickly, let alone to have any kind of bigger impact.So the ICTR has made it more difficult for justice tohappen on the grander scale.In terms of the regional dimension, it’s very difficultto see where the impetus for justice in Africa iscoming from at the moment. The AU is reluctant togo down this path. There’s been some talk of settingup an Africa-wide justice mechanism that couldperhaps be more locally situated and with a greaterunderstanding of domestic politics than the ICC mighthave. But the AU has its hands full in terms ofpeacekeeping issues and broader security questions,and it’s also an institution that is struggling tomaintain internal coherence. It’s a deeply dividedorganization with many factions. Without that kind ofcohesion, including a range of leaders who have verydifferent viewpoints on whether justice is a goodthing or not, depending on their own actionsdomestically, then it’s difficult to think that that kind


ICC OBSERVERS INTERVIEWS . 189of regional dream is ever going to become a reality.So you have a difficult situation where internationaljustice in many ways is debased across Africa, andregional questions are even more complicated.So when asked, “What’s the likelihood for seeingjustice done in a range of African countries?” this iswhere the conversation turns to the possibility ofusing national jurisdictions, and perhaps evencommunity level processes. The ICC at least at therhetorical level supports this move because of theprinciple of complementarity and giving domesticcourts the first bite of the justice cherry. The problemof course has been – and Dave alluded to this in theKenyan case – that it is difficult to see many domesticjudiciaries being willing to go after their own, beingwilling to deliver justice for sitting members ofgovernment. Perhaps with one key example thathasn’t been discussed enough internationally: inCongo, the increasing capacity and willingness of themilitary courts to deal with very serious cases. This isan interesting development. I don’t think many peoplelooked at Congo and thought that military courtswere going to be where justice would be done, butthat’s what we’ve seen. The military courts, in thelast year and a half, have prosecuted some seriousperpetrators, including high-ranking officials withinthe army and senior rebel leaders for serious crimes,including war crimes and crimes against humanity.And in many ways, on the ground in Congo, theperception is that it’s neither the regional bodies northe ICC that is most likely to do justice for the mostserious perpetrators; it’s actually the military courtsoperating in people’s midst. Now it’s difficult becausemilitary tribunals across Africa don’t have a goodhistory of doing justice. They’ve been very selective inthe candidates that they’ve prosecuted; they’veusually insulated their own. Military courts have oftendone very short shrift to the justice processes acrossAfrica, but what we’re seeing in Congo is a change.So that’s a challenge to the human rights communityinternationally, who would not inherently have a lotof faith in military tribunals. But in terms of domesticprocesses in Africa geared toward prosecuting majorcrimes, the military courts in Congo are probably themost active at the moment.Q. How do you think the doctrine ofcomplementarity can be best implemented towork with local and national jurisdictions toprovide the whole picture of justice?Phil Clark:I think the key to complementarity working is for theICC to enact the principle in the way that it wasoriginally defined, which is that the reason the ICCexists is to prosecute the most difficult cases thatnational jurisdictions are not able or willing toprosecute. The problem that we’ve seen in the ICC’sfirst five or six years of operation is it has beendealing with the small fish only: middle rankingofficials, rebel leaders, who, as the Congoleseexample indicates, could have been prosecuteddomestically. The problem is the Court is not dealingwith the difficult cases it was ultimately designed toprosecute. This engenders a lot of confusion in thewider realm of justice about where this internationalinstitution actually fits in. It undermines theconfidence of domestic judiciaries; it sends amessage that they might be trying to reformthemselves and might be trying to deal with verycomplicated justice questions, but that’s notnecessarily going to stop an international body fromintervening.So it comes back to the question: What then is thepurpose of having the Court? In an ideal sense, thenotion of complementarity is a useful one in that itdivides the labour between a number of differentactors. It gives states the possibility to reform theirjudiciaries and to pursue justice for seriousperpetrators. But the big question across Africa, andthis is what the Court needs to wrestle with the most,is the extent to which the state is one of the keyperpetrators in cases of mass conflict. What we’reseeing consistently is state judiciaries being unwillingto prosecute their own. That’s where the ICC cancertainly play a role. If the Court is interested ingetting runs on the board in the early years andstoring up its legitimacy to help the Court in thefuture, then that’s where it needs to be targeting itsoperations. It needs to be going after leaders likeBashir and other heads of state who are responsiblefor very serious crimes. I think some of the peace and


190 . DEBATING INTERNATIONAL JUSTICE IN AFRICAstability questions that Dave refers to are salient andwe should always be cautious about the impact thatthis kind of justice can have. But for the Court to begoing after the middle-ranking suspects it has so fardoes a huge disservice to the principle ofcomplementarity and to the whole enterprise ofjustice.David Anderson:I think there’s a connection between the thrust ofinternational policy in the region, which isincreasingly limiting its goals to stabilization. This is aword we’re seeing more and more being used inpolicy documents. So the ambition is notstatebuilding anymore, it is just stabilization. If youthink about that, you see that the justice issuebecomes even more of a dilemma, because in orderto pursue justice against some of these major stateplayers, you are going to threaten stability. So thereis a more powerful argument than before for notpursuing justice. This is very interesting because theAfrican Union has embraced this stabilization idea forexactly the reasons I’m suggesting. It takes the stingout of certain interventions and it makes it easier tonegotiate and broker deals. The African Unionessentially favors power-sharing. In a positive sense,power-sharing is epitomized in the government ofRwanda’s system of proportional representation thatgives the losers something out of the process. At theother end of the scale of power-sharing are Kenyaand Zimbabwe, where it generates a government ofinertia, put together by people who are trying toavoid the consequences of their actions. The problemis that stabilization views all of these things as ageneral good. The OAU, the AU’s predecessor, wasoften referred to as a trade union of tyrants. The AUhas to prove it is not the same and, at the moment,it’s not doing a very good job. I think much of theinternational community would share adisappointment in this, given the hopes invested inthe AU at its rebirth a few years ago.I would also put into the mix that the regionalorganization for Eastern Africa, EGAD, went through avery positive phase in the late 1990s and 2000s,largely under Kenyan leadership, when EGAD reallyseemed to be addressing some of the region’sproblems. With hindsight, we can realize that EGAD’ssuccesses also held the seeds of some of the currentproblems. It raised the stakes in some of theseconflicts, particularly Great Lakes and Sudan, andpeople have taken perhaps more entrenchedpositions. The governments in East Africa have begunto realize that these regional and subregionalorganizations are the places where you can build yourconsensus. This is reinforced by the sense that theinternational community doesn’t wish to be seen tobe imposing solutions upon any region in the worldand that ownership of political decision-making is acrucial and accepted norm and good. So the countriesthat wish to assist Eastern African countries are keenfor them to decide their own solutions to theseproblems. That means that for the Kenyan andSudanese governments, counseling their neighborsand canvassing support in EGAD and the AU can builda powerful bulwark against any wider internationalconsensus. And it’s notable that the amount oflobbying done in EGAD and the AU has gone upconsiderably in the last 18 months. Politicians acrossthe region have come to realize this is where youbuild your support base against wider internationalcriticism and interference. In the Kenyan case, theyhave skillfully built a support network in EGAD andthe AU, and similarly in the Sudanese case. They havevery cleverly made alliances that will protect themfrom international criticism. What this leads to is adivide that sees African governments asrepresentatives of these organizations taking oneposition while the ICC takes another. And that is avery dangerous political position to find ourselves in.It is disempowering for many of the western donorsin particular, who don’t want to be exposed asstanding against African governments. They want tobe seen as moving forward in decisions with Africangovernments. African governments have realized thisand are playing politics accordingly.Q. How significant is it that the first (and still all)of the cases currently before the Court are againstAfricans for crimes committed in Africa? How doesthis affect the perception of the Court in Africaand in the international community more broadly?


ICC OBSERVERS INTERVIEWS . 191Phil Clark:There is an unfortunate cliché that the ICC is a courtof Western intervention in Africa, targeting onlyAfrican leaders, and the suggestion is that there issomething inherently illegitimate about the Court. Inmany ways this argument has been hijacked by theregional actors Dave’s talking about. The argumentalso does not take into account that there is veryserious – although certainly not universal – supportfor the ICC at the popular level in a number ofcountries. An interesting case to look at is Zimbabwe.In some cases similar to the Kenyan question,Zimbabwe is a country where the ICC is not yetoperating, but the possibility of its involvement is aquestion that hangs in the air and is having an impacton politics on the ground. In the Zimbabwe situation,for a number of different reasons, civil society hasaligned itself with the elements within the powersharinggovernment in opposing the ICC. So theargument – and it’s interesting that it is coming fromhuman rights groups and NGOs, as well as thegovernment – is that it’s about local solutions, weneed to sort this situation out ourselves. There is avery different message coming from many victims ofthe violence, however, saying “we have no faith bothin the judiciary of this country and in this powersharingagreement and the leaders within it. We’renot going to see serious justice done by these peopleso there may be recourse to a body like the ICC.”Zimbabwe is a particular case where the strongestsupport for the ICC comes from the grassroots level,but it is very difficult for those voices to be heardbecause of the government and civil societyopposition to the Court.This is something that opponents of the Court needto contend with. For many African populations thereis a great amount of hope for the ICC. We saw this inCongo and Uganda in early days when the ICC firstbecame involved. These cases concerned populationsthat had seen the debasement of domesticinstitutions, suffered at the hands of their owngovernments, and had huge hopes and expectationsof international bodies. I think the problem in Ugandaand Congo has not been outright popular oppositionto the Court – it’s been, in many ways, unfulfilledhopes. Because of the way the Court has gone aboutits work in Uganda and Congo, it has disappointedthe people the most. That’s the sad reality for the ICCat the moment.David Anderson:‘Unfulfilled hopes’ is a very good way of summarizingit. It leads on to the question of the perceptions thatpeople have of the ICC, which are not entirelypositive, and the actual practicalities of what the ICCcan do and should do. On the one hand, you havethe arguments that the ICC is ‘white man’s justice’being applied to international law. I think this is agross misrepresentation of what the ICC is and what itis trying to do. However, the current configuration ofthe politics is making it all too easy for politicians inKenya, Sudan, and Zimbabwe to portray it in thatway. The fact that we now have a situation whereboth the African Union and the Arab League havepublicly opposed the indictment of Bashir, whileWestern governments have generally supported it,has polarized this debate in a way that allowedpoliticians who wish to popularize the idea that thisis white man’s justice to do so. I think that is veryunfortunate and I think it misrepresents the reality ofthe Court. We are now on the back foot having tosort that out, which is taking up a lot of time andeffort. The substantive issue that makes it moredifficult still is that the ICC has not always had thebest record. Its decisions and processes havesometimes been wanting. Now we know,internationally, especially from experience in theBalkans, that if you want to prosecute state actors foratrocities and organized political violence – which isan extremely difficult and laborious task – then it islikely to require a strong investigative process inwhich the Court and the prosecutors need to behighly professional and robust. In attempting suchprosecutions, you are fighting against a set ofinstitutional and controlling parameters andmechanisms that work in the interests of those youare seeking to convict. If one talks to prosecutors inthe Balkans, they will tell you about this in detail.Thousands of pages of testimony, months of work:this is a slow process and it is an enormouslyexpensive process. Now relate that to the ICC:


192 . DEBATING INTERNATIONAL JUSTICE IN AFRICAunderstaffed, under-resourced, and with too manythings on its plate. The ICC is not equipped, yet, todeal with this kind of justice. So perhaps, if theprosecutor has made decisions to go forward withcertain cases rather than others, then that might bea pragmatic decision given the resource and staffingissues. Whatever the reason, the ICC has not alwaysbeen able to do its job very effectively. There are alsomanagement and cultural problems within theorganization itself and it needs to be revived and toreconsider some of its procedures, some of itsstaffing issues. Maybe the quality of the staff in theICC needs to be improved, bringing in those with localexpertise and knowledge, and maybe the sense ofwhich level of detail and proof are required forprosecutions needs to be reconsidered and set at ahigher level. All these things are institutional,procedural matters that the ICC needs to deal with. Iwould argue that unless and until the ICC tacklesthese issues, it is going to find it difficult to win moresupporters for what the prosecutor rightly and justlywants to do.Q. Is there a role for politics in the prosecutor’swork? Does the Court have an implicitly politicalrole to fulfill in conflict situations?Phil Clark:The first thing to say is that, whether the court likesit or not, it is a political institution. These questionsof whether the ICC and the prosecutor are politicalactors in many ways are facile and unhelpful. As soonas the Court begins to operate on the ground inAfrica, and particularly when it begins to operate inconflict environments, it will inevitably be embroiledin political situations. For that reason, and I wouldconcur with Dave entirely on his last point, that thisis largely a question of ICC staffing. Something thathas hamstrung the Court immensely is the absoluteabsence of country specific experts within theinstitution itself. The Court has undoubtedly some ofthe most talented legal advisors on the planet, butwhat it does not have is experts who are well versedin the nuanced politics of Sudan, Central AfricanRepublic, Uganda, etc. Without that expertise, theCourt is not able to judge well how politics is playingout on the ground.This is important for two reasons. First is a practicalone for the Court itself: if you want to intervene inongoing conflict situations, you had better know whoyou need to talk to, how to get to them, how to getpeople to trust you, to give you evidence and toassist you in your investigations. Without that level ofcooperation, trials do not get off the ground. TheCourt has found that difficult to achieve so far. Thesecond reason is a broader political issue: the Courtneeds that ground level expertise because it needs toknow how its operations are going to be representedlocally, nationally and internationally. The Court hasstruggled with the extent to which its job has beenmanipulated and broadcast by others for their ownmeans. We have seen this in the Bashir situationbecause of the way the Court has gone aboutconstructing the case against Bashir and the way theCourt has gone about releasing information aboutwhat it has done in Sudan: this has played intoBashir’s hands. Bashir has found a political saviour inthe ICC. We are talking about a president who wasbedeviled domestically, and facing increasing politicalopposition in Khartoum let alone the rest of Sudan. Inthe ICC Bashir has found a rallying cry. He has usedalliances with the African Union and the Arab Leagueto bolster the argument he is propagatingdomestically that the ICC constitutes neocolonialistmeddling in Sudan’s affairs. What we have seen nowis vociferous support for Bashir from erstwhileopponents and silence from even the government ofSouthern Sudan and some of the rebel movements inDarfur, who are very concerned about what it wouldmean domestically to openly support the ICC. Bashirhas manipulated this situation extremely well. Itremains to be seen how sustainable that support willbe. As national elections near and the referendum inSouthern Sudan looms, we will see the cracks inSudanese politics reappear. In the immediate,however, Bashir has gained a huge amount ofcredence since the indictment. That makes theCourt’s job a whole lot harder. It has to deal withquestions of white man’s justice, it has to deal withthe fact that there is decreasing sympathy towardsthe Court domestically. This will make it more difficultto get the material and evidence that would benecessary for a trial of Bashir.


ICC OBSERVERS INTERVIEWS . 193The Court has tried to be an apolitical organizationand it has not wrestled with these realities on theground, and it has made its own job harder in theprocess. What we have learned from internationaljustice in the last ten years is that it is one thing tohave the best lawyers in the world, but you have tounderstand the societies where you are operating.The ICTY under Louise Arbour was particularly good athiring country experts. And what those experts wereable to do was shape the Court’s operations andmake sure the ICTY was able to convince governmentsto hand over their own. That was one of the greatsuccesses of that tribunal. In absolute contrast, youhave the ICTR, particularly under Carla del Ponte, thatdid not believe that the nuances of local politicsmattered. As a consequence there was continual badblood between the tribunal and Kigali. This made itimpossible for the tribunal to act effectively on theground and completely eliminated the possibility oflooking at crimes committed by the sittinggovernment of the day. I think the sad thing from theICC’s point of view is that it has not learned thesevery obvious lessons from the tribunals that precededit. The prosecutor often talks about the ICC asrepresenting the evolution of international justice,building on a heritage of law developed through thead hoc tribunals. But in the case of politics and theimportance of local politics for international justice,the ICC has not learned these lessons.Q. Could you speculate on the future of the Courtin five or ten years? What are the best and worstcase scenarios for its standing in the internationalsystem? What can the Court and internationalactors do to cement the Court’s legitimacy?Phil Clark:I’ll make two main points here. The first is that weare going to see a shift in prosecutorial strategy astime goes on. The early years of the Court haveinevitably been difficult because it is a new judicialinstitution that needs to get results. I think that hasled to the kind of pragmatism from the Court that wehave seen so far. Part of the reason that the Courthas gone after low and middle ranking officials, ratherthan the Bashirs of the world, is because it has to getlegal results. The hope of course is that with thecases that the ICC has at the moment we are going tosee those kinds of judicial results and this will thenallow the Court to be more ambitious. We areprobably going to see convictions in the Congolesecases; I think the cases against those individuals arequite strong, the evidence has been verysystematically gathered – not always by the ICC butby other sources – nevertheless I think the legalcases are quite firm. This will buy the Court somebreathing space, and that will be a key factor whenthe current prosecutor moves on. In that way Ocampohas had the most difficult job, which is to get theCourt off the ground. The next prosecutor will face avery different set of challenges, namely whether theCourt can live up to its highest vision of itself, will itprosecute the toughest cases, will it move outside ofAfrica and truly become a global court? This will be abig challenge for the incoming prosecutor.The second issue, and this is where it is uncertainwhether the Court will succeed or fail, is can it getthe US on side? This will have to be one of theCourt’s major goals over the next five to ten years.Without the US’s support the ICC is going to continueto face difficulties within the Security Council, whichtranslates to blocking the Security Council’s referralof the most important cases to the Court. Let’s behonest, with Bashir, we were never going to see ahead of state brought to the ICC if we had to rely ona state referral; the ICC needed the UN to do that.This is a trend that is going to continue into thefuture. We will probably only see sitting members ofgovernment indicted by the ICC if they are referred bythe Security Council. So if the ICC is going to fulfilthis utmost vision of itself, dealing with the toughestcases, then it is going to require strong support andcoherence from the Security Council, and the US willbe central to this. The other reason that the Court isgoing to need Security Council support is that it willrely on UN peacekeeping missions and other militarysupport on the ground to do the arresting of thesuspects in question. The problem that the Court hasfaced to date it is that it has rarely had that support.The Court can issue arrest warrants for the LRA in theNorthern Uganda situation, but what good is that if


194 . DEBATING INTERNATIONAL JUSTICE IN AFRICAthere is no military presence to back this action andarrest and transport these individuals? The samesituation will undoubtedly come into play with Bashir:yes he’s been indicted and most members of theSecurity Council have backed that rhetorically, butOcampo is right to doubt the fortitude of the UN andAU missions on the ground in Sudan to do the dirtywork. He knows that for the future of the Court thisissue has to be dealt with, and that there has to bethis kind of cooperation and the US will be the mostimportant state in terms of getting that cooperation.stabilization and power-sharing approach, and thiswill incline towards non-prosecution, aiming to buildpeace in the short-term, and leaving prosecutionissues to the long-term. I may be wrong, but my bestbet at the moment is that the combination of thelack of resolve on the behalf of the US and the EU,the UN’s desire not to cause any major rifts withmember states, plus the Peace Building Commission’scommitment to stabilization does not bode well forthe ICC. My view is not optimistic; I think the ICCcould be in for a very difficult four or five years.David Anderson:I think the ICC is standing at the crossroads. Thedecisions of the next eighteen to twenty-four monthsare probably going to be critical. Everything dependson credibility: can the Court maintain credibility ifthey cannot get Bashir into the dock? How theinternational community chooses to react to this iscritical. Much of this may be out of the currentprosecutor’s hands; Mr. Ocampo may have no controlover this whatsoever. What he has done by indictingBashir is rolled the dice. The crucial actors here arethe US and the EU. Will they support the Court andwill they lobby and canvass for it to be properlyresourced and developed in such a way that will allowit to bring its cases forward? Or will they decide thatyou can only do that if you have the support of otherregional organizations? If that is what they decide,and I think that is what they might decide, then thefuture of the ICC is very troubled. At present I cannotsee the US under the Obama administration or theleading EU countries, UK and France, moving forwardto support the ICC if they know that it is going tobring confrontation with the AU and the UN. We havenot really talked about the UN structures here butthey are very important, you have to ask why did theUN Security Council pass the Bashir case on to theICC and why did the US abstain? To an extent hereyou have a game being played called ‘pass theparcel.’ The UN is very good at passing problems onto other bodies when it does not think it can fix themwithout breaking a consensus. The UN now has aPeacebuilding Commission, which is very rapidlybecoming more important in the UN. It seems likelythat the Peacebuilding Commission will adopt aInterview conducted by Zachary Manfredi and JulieVeroff.


ICC OBSERVERS INTERVIEWS . 195ICC Observers Project – OxfordTransitional Justice ResearchExclusive Interview with David Tolbert, DeputyICTY Prosecutor and Senior Fellow, JenningsRandolph Fellowship Program at the United StatesInstitute of Peace20 March 2009David Tolbert most recently served as U.N. assistantsecretary-general and special advisor to the U.N.Assistance to the Khmer Rouge Trials (UNAKRT).From 2004 through March 2008, he was the deputyprosecutor of the International Criminal Tribunal forthe former Yugoslavia (ICTY). Tolbert has extensiveexperience in international law. Prior to his positionas deputy prosecutor, Tolbert was the deputyregistrar of the ICTY. He also served as executivedirector of the American Bar Association’s CentralEuropean and Eurasian Law Initiative (ABA CEELI),which manages rule of law development programsthroughout Eastern Europe and the former SovietUnion. Prior to his work at ABA CEELI, Tolbert alsoserved at the ICTY as chef de cabinet to the thenpresident and as the senior legal Adviser to theRegistry. He has held the position of chief, GeneralLegal Division of the U.N. Relief and Works Agency(UNRWA) in Vienna, Austria and Gaza. He has alsotaught international law and human rights at thepost-graduate level in the United Kingdom andpracticed law for many years in the United States.He has published a number of publications regardinginternational criminal justice, the ICTY and theInternational Criminal Court (ICC) and representedthe ICTY in the discussions leading up to thecreation of the ICC.Q. You have worked at the ICTY and in Cambodia,cases in which the application of the genocideconvention was controversial. What do you makeof the Pre-Trial Chamber’s failure to grant Ocampogenocide charges in this case? What is thesignificance here?A. I have not had the chance to study seriously thePre-Trial Chamber’s ruling on the genocide charge. Interms of a general comment, in the course of thehistory of the ICTY, the only occasions that we wereable to obtain genocide convictions arose out of theSrebrenica massacre. Thus, there was a limitedapplication of the Genocide Convention in the ICTYcase law, as compared to the ICTR. In Cambodia, theprincipal crimes do not fall within the ambit of theGenocide Convention because, for the most part, thekillings did not target specific religious, national,racial or ethnic groups. There may be genocidecharges relating to specific ethnic or national groupssuch as the Hmong or Vietnamese populations inCambodia, but the Genocide Convention does notappear to apply to the vast majority of the killingsand crimes committed during the Khmer Rougeperiod.One of my general concerns with respect to genocideis that while obviously genocide is a very seriouscrime, there is often a feeling among victims andamong the international community as a whole, thatif crimes are not found to be genocide then they aresomehow less serious than other violations ofinternational humanitarian law, with the perceptionthat crimes against humanity take second place sincegenocide is perceived to be ‘the crime of crimes’. Thisdisturbs me because genocide is a very particularcrime and it is difficult to show the intent that isrequired to prove genocide. Moreover, there are manycrimes against humanity that are just as serious, butdo not qualify as genocide because they are notcommitted with the specific intent to destroy, inwhole or in part, a specific ethnic, religious, nationalor racial group. Cambodia is a good example of thisissue. During the Khmer Rouge period, the worstcrimes committed in my lifetime occurred, but most ofthese acts do not fit within the rubric of genocide.With the recent Pre-Trial Chamber decision in theBashir case, there are allegations of extremely seriouscrimes against humanity: extermination, persecution,etc. My concern, however, is that people can see thefailure to have the label of genocide put on thesefindings and believe they are somehow less serious orshould be taken less seriously. I think we need to doa much better job as international lawyers,particularly those of us in the international criminallaw field, of explaining genocide in terms of its legal


196 . DEBATING INTERNATIONAL JUSTICE IN AFRICAelements. We need to help people understand thatthis criteria applies in particular situations and doesnot apply to other situations, but that crimes againsthumanity and war crimes can be every bit as seriousas crimes of genocide.I was on a panel at a conference some years ago withGeoffrey Robertson, who advocated doing away withthe crime of genocide because it is so difficult to proveand controversial. I do not agree with that argument.Genocide is a crime that is on the books and needs tobe prosecuted where it applies, but we need to do abetter job of explaining how crimes against humanityand war crimes can be just as serious.Q. How does the Pre-Trial Chamber’s ruling in theBashir case relate to the 2005 UN Commission ofInquiry’s findings? Does the Court’s refusal togrant the genocide charges support the findingsof the Commission? Are we reaching a consensusthat the violence in Darfur is not appropriatelyclassified as genocide? How will this influence thefuture development of international criminal law?A. I want to be very cautious because I understandthe prosecutor has said he is going to appeal thedecision, so I think we have to wait and see what isthe result of that appeal especially, particularly sincethe Pre-Trial Chamber’s decision was a split decision.The Commission and the majority of the Pre-TrialChamber did not find the facts sufficient to support agenocide charge. I think we have to wait and see andlet the process play itself out. Also the Pre-TrialChamber said although there is not enough evidenceto sustain a genocide charge at this stage, it is opento receiving additional evidence. The prosecutor hasnot been able to get into Sudan for the last severalyears. In any event, the Pre-Trial Chamber’s decisionis an indication that we may well be dealing withcrimes against humanity and not genocide in theDarfur case. However, we should wait until we have amore final judicial determination before we make anypredictions.The Pre-Trial Chamber has found that there is a primafacie case of horrific crimes in Darfur. Thus, I go backto my first answer and say that we need to do abetter job of explaining that simply because there isnot a