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Issues in Transitional Justice: confronting the ICC's fragile relations with African States

Introduction

            A review of the literature in transitional justice reveals some scholars hold the belief that there are intrinsic merits in overlooking the crimes of those responsible for mass atrocities, especially if those people can hinder peace efforts to an ongoing conflict (Owen, 1995; Snyder & Vinijamuri, 2003, 3). Proponents of this notion assert that the blind pursuit of justice through tribunals and international courts impedes peace (Cohban, 2006). These arguments leave room for the inference that peace and justice are not compatible with each other, which remains to be proven as fact. The disagreements that arise due to these beliefs have led to the development of a discourse coined ‘the peace-justice debate.' In the wake of this debate, a lot of attention has been drawn towards the fragile relationships between the International Criminal Court (ICC) and certain African States, from which has emerged a series of critiques against the efficacy and efficiency of the ICC for prolonging conflict in the African continent (De Waal, 2008, 30). The purpose of this paper is to demonstrate that the existence of a resolution to the peace-justice debate will not alter the contentious relationship between the ICC and African states. In doing so the paper will put forth three arguments: first it will exhibit that the pursuit of accountability can deter future atrocities and achieve long-term peace,  resolving the peace-justice debate; second, the paper will showcase how some African states rely on this exhausted debate as a scapegoat defence to justify their consolidation of power and ensure their ability to practice impunity; lastly the paper will show that a resolution to the current dispute between African states and the ICC is almost impossible because it is based the nuances of international politics.

            To present the above arguments the paper will first provide a more thorough definition of the peace-justice debate. Then the paper will examine the success of ICC in the prevention of new atrocities, to illustrate how the peace-justice debate has already been exhausted by empirical evidence. Next, the paper will consider how some African leaders have drawn justification from the peace-justice debate to legitimize their actions that result in atrocities. Proceeding the paper will conceptualize the why it would be impossible for the ICC to be an apolitical institution, and this constrains the organization’s ability to normalize relations with African states.

Linking peace with justice

            According to Payam Akhavan, the peace-justice debate became a prominent discourse during the inception of the 1993 International Criminal Tribunal for the Former Yugoslavia (ICTY)(Akhavan, 1998, 743). At the time many were concerned about the implication of this tribunal on the ongoing Bosnian war, while some saw it as a requirement to peace. Hence two camps emerged: the political realists with the underlying assumption that efforts to attain justice would discourage peaceful settlement due to a fear of prosecution and result in more suffering; and the moralists who asserted that holding perpetrators of atrocities accountable was the only way to impede future atrocities and ensure long-lasting peace (Akhavan, 1996, 281). Therefore, the peace-justice debate can be defined as philosophical dilemma on whether we ought to cooperate with leaders complicit in the commitment of several atrocities to prevent ongoing suffering or to hold such leaders accountable for their actions risking the elongation of conflicts (Kersten, 2016, 13). At first glance, this debate may seem to be an inherent catch-22 because no matter which approach one takes, they incur a negative consequence. Additionally, the debate implies that the process of peace and justice are distinct from each other, depicting them as two approaches that seek and provide contrasting outcomes. Such portrayals misconstrued the realities of the debate, and are the reason why some scholars argue that they do not provide insight on the effects of international courts on the peace and justice process of post-conflict states (Ibid., 35). As of now, the political realists have not offered any empirical evidence to support their claims, while recent cases in Africa suggest that the moralist approach is more likely to prevent the repetition of atrocities. Thus, there is a growing widespread acceptance of the notion that peace and stability are not attainable without a judicial system that holds accountable violators international criminal laws (Akhavan, 652, 2009). In fact, the ICTY and other tribunals such as the ICTR seem to have been essential to the peacebuilding efforts in Rwanda and Yugoslavia.

Success Stories of the ICC: Central African Republic, Côte d’Ivoire and South Sudan

            The paper has selected the following cases to shed light on the positive contributions of the ICC in preventing future atrocities. Through a cost-benefit analysis of the following cases, the essay will discredit the arguments of political realists regarding the peace-justice debate to showcase that a solution to the debate does exist, and that solution is the abandonment of a long tradition of appeasement. The case studies below have been selected because they offer accounts of more recent conflicts. They also showcase the indirect and direct impact of the ICC, illustrating that arrest warrants are not necessary to mitigate the impunity that the international community has come to accept as an unavoidable limitation of transitional justice. Lastly, they properly address the role of the ICC in constructing narratives of on going conflicts and peace processes.

            The prosecution of Jean-Pierre Bemba is considered to be one of the more prevalent successes of the ICC because Bemba was the first defendant to be convicted on the basis of military command responsibility and also the first to be convicted of rape at the ICC (Clark, 2016, 667). Jean-Pierre Bemba was a Congolese politician, most notably known for his role as the leader of the Mouvement de liberation du Congo (MLC)[1]. In October of 2002, the incumbent president of neighbouring Central African Republic (CAR), President Ange-Felix Patasse, requested the military assistance of Bemba in dissolving a domestic insurgency.  Bemba responded almost instantaneously to this call, deploying the military wing of the MLC to intervene on behalf of president Patasse. The troops were participating in the conflict from October 26th, 2002 until March 15th, 2003 (Clark, 2016, 669). Upon their departure from the CAR, it became evident that the troops had engaged in numerous crimes including crimes against humanity. Bemba who has explicit knowledge of his troop’s actions continued his political career in the DRC, neglecting to hold accountable his subordinates who committed such atrocities. However, on May 23rd, 2008, the ICC's Pre-Trial Chamber issued an arrest warrant for Bemba, who was arrested the next the day in Belgium. Under Article 28 of the Rome Statute, Bemba was charged command responsibility, with the crimes against humanity of murder and rape (Boraine, 2006, 21). Aside from the historic implications of the verdict presented by the ICC, this case is significant for several reasons. Firstly, as put forth by the former UN Secretary-General Ban Ki-moon "the verdict sends a strong signal that commanders will be held responsible for international crimes committed by those under their authority. (United Nations Secretary-General, 2016)" This is a major departure from traditional international law, as it derogates the concept of State Immunity, an international customary law that was dear to many transgressors of human rights norms. Under this concept, individuals acting according to the legitimate authority bestowed by their role within a specific branch of a state are immune from prosecution by international or foreign courts. This international law is the reason individuals such as Augusto Pinochet and Pol Pot evaded accountability for their horrific actions (Currie et al., 2007, 221). The Rome Statute had suppressed the applicability of the concept of state immunity through the inclusion of the notion of command and military responsibility. These notions dictate that a commander is held responsible for crimes of their subordinate if they knew about the occurrence of such crimes or if they did not take necessary steps to prevent their occurrence and to submit the matter "to the competent authorities for investigation and prosecution." However, these notions had never been practiced within the context of the court (Clark, 2016, 670). Therefore, this case exhibits the capacity of the ICC to overcome legal limitations and hold accountable individuals who seek to justify their impunity by referring to outdated norms of international law. Secondly, the case undermines the assertion that the search for accountability tarnishes peace. Prior to his arrest in 2008, Bemba ran as a candidate for the presidency of the DRC. He suffered a major defeat, claiming that his opponent had participated in election fraud, though a Supreme Court ruling found this to be dilatory. What ensued was a wave of clashes from supporters of the MLC against state forces (Deibert, 2013, 13). During his arrest, Bemba influence over the military branch of the MLC gave him enough power to incite conflict within the DRC, which according to the political realist should have justified inaction against him for the sake of maintaining the peace in the DRC. Though as presented by the case, the prosecution of Bemba was not detrimental to the peace of the DRC, and instead deterred further acts of its nature.

            The ICC's intervention in the Côte d'Ivoire is another important case which is often overlooked. Côte d'Ivoire is a country that has had a difficult transition, proceeding the end of the decade-long rule of the former president Félix Houphouët-Boigny. The power vacuum that was established in the former French colony led many aspiring politicians to obtain electoral support on the basis of ethnic and religious divisions (Akhavan, 2009, 637). A source of problems was the demographics of the country which consisted of a variety of different ethnic minorities, with a large minority of Muslim foreign workers from Burkina Faso. During this period many political leaders exploited ethnic tensions to consolidate their power, for instance developing a political culture that emphasized ivoirité – the concept of a common cultural identity of Ivorian people (Rosenberg, 2017, 476). The term was however transformed in xenophobic ways, to infer that individuals from the southern regions of the country could ascribe to this identify (Human Rights Watch, 2009). The government also amended the constitution in ways that undermined the political representation of Burkinabé – decendents of foreign workers from Burkina Faso and other Muslim groups in the north (Akhavan, 2009, 639). The tensions that emerged from domestic context ultimately led to the eruption of ethnic conflict from 2002 to 2003. One prominent driver of this conflict was the radio broadcasts of the south, which encouraged violence against those deemed to be non-Ivorian's who are seeking to ruin the state. The Global Policy Forum reported that the content produced by media outlets was remarkably similar to those produced by Hutu majority population in Rwanda (Gregston, 2004.). In 2004, after a military clash between French and Ivorian forces that resulted in the death of 6 French troops, prompted the French Republic to respond with an aerial bombardment of Ivorian military bases. The government-controlled Radio Télévision Ivorienne (RTI) reacted by encouraging mob attacks against French and Burkinabé civilians. In response to these incidents, the UN Security Council (UNSC) adopted a resolution ordering the state of Côte d'Ivoire to halt all broadcasting that incites ethnic hatred. In addition, the UNSC further clarified that failure to respond accordingly would prompt international action because under the Rome Statute failure for domestic courts to take necessary steps towards preventing violence targeting civilians would permit the ICC's jurisdiction over the matter (Talbot, 2004). The significance of this case lies with the fact that no ICC investigation was never launched. Instead, the international community merely relied on the threat of prosecution to curb the escalation of violence. This is not surprising given that most international powers of the Global North do not wish to engage in an expensive military campaign to deter atrocities occurring in the Global South and the fact that the ICC is limited by its reliance of state cooperation (Barnett & Zürcher, 2008; Cobban, 2006, 24). Payam Akhavan notes that the extremely influential broadcasting, which proliferated mob violence, stopped almost instantaneously after President Gbagbo of Côte d'Ivoire and his cabinet observed the real threat of prosecution from the ICC (Akhavan, 2009, 640). Though it is hard to measure the exact impact of the treat, it is reasonable to conclude that the potential intervention of the ICC was a catalyst for a series of events that ultimately deterred the progression of ethnic violence in Côte d'Ivoire. Furthermore, this case signals a transition away from the dominant culture of impunity, which justified in action and cooperation with the transgressors of human rights norms. It questions the accounts of the political realists by demonstrating that seeking to hold accountable perpetrators is not an impediment to peace and instead contributes profoundly to efforts of reducing human suffering. Lastly, the case exhibits how even in situations where perpetrators withhold a great deal of authority, with the power to further induce violence, the threat of prosecution can go a long way to undermine their defensive arguments and deter future similar actions.

            These cases, which are just two of several other victories that the ICC has achieved (Uganda, Sudan and the DRC), establish a general framework concerning the so-called peace-justice debate. The framework highlights the prevailing issues within the practices of the political realists. One misconception that can be observed is the validation of inaction due to real-life limitations. It is important that institutions such as the ICC acknowledge their inherent limitations, such as the need to rely on state cooperation or the fact that their jurisdiction covers primarily three international crimes. State cooperation is often hard to achieve because many states have self-serving agendas that may disincentives them from taking actions against a regional tyrant, though in doing so the states are perpetuating tolerance and constructing a reality of acceptance that these atrocities are not preventable. Moreover, this approach rewards the leaders responsible for atrocities with a positive incentive, reinforcing that their behaviour is an acceptable bargaining mechanism. Thus, one can observe that a strict adherence to the arguments put forth by the political realist can occur in reality further the severity of human rights violations that occur, without guaranteeing the maintenance of peace. This being, said a purely moralist approach can be equally problematic as it can often glance over some of the complexities of the judicial process. Hence, a moderate application of the suggestion from both camps will ultimately produce the most suitable outcomes. As many scholars have established and as portrayed by the above cases the paradigm of the peace-justice debate has accepted a resolution that ascertaining accountability is vital to long-lasting peace. Nevertheless, there remain nuance debates on the finite details of how to prosecute and investigate cases of international human rights violation.

Politicizing the ICC

            Like many other intergovernmental organizations, the ICC has been severely criticized for being a tool of western neo-imperialism (Clarke et al., 2016, 14). These accusations are not groundless, after all, nine out of the ten official investigations launched by the organization have focused on African states. Hence it is not surprising that a handful of African states have issued threats of withdrawing from the Rome Statute (Abdulai, 2010, 1). Though this criticism is valid, it does not explain the causality of the tumultuous relationship between the ICC and some African states. To consider the development of this relationship, it is first and foremost necessary to establish that not all African states have developed a hostile policy towards the ICC. The controversy between certain African states and the ICC has been termed the ‘African Problem,' this sort of characterization is disturbing because it overgeneralizes the large geopolitical divisions that exist within the continent. The reality of the matter is that only a small portion of countries have a challenging relationship with the ICC, and a deeper analysis of the political culture within those nations further reveals the oversimplification of the beliefs of all political agents. Acknowledging the above is fundamental to understanding how the narrative has been framed in such a way that can mislead observers from the common feature shared among most of those African states which are hostile towards the ICC. To observe these similar features, let us examine what is regarded as a pinochle point to the development of the dispute between African states and the ICC. 

            On March 14th of 2009, the ICC Pre-Trail Chamber issued an arrest warrant for the incumbent president of Sudan, Omar al-Bashir, as a culprit of crimes against humanity and war crimes (Reeves, 2009, 13). Upon this historical decision, many neighbouring African and Arab states showed their genuine disapproval of the ICC’s decision. This was the first time a head of state had been indicted on such charges since the adoption of the Rome Statute and the creation of the ICC. The Sudanese government was quick to point out the differential treatment of states by the ICC, since the organization had failed to hold accountable the leaders of Western countries, notably civil and military commanders in the United States who had a direct role in overseeing the atrocities that occurred during the US invasion of Iraq (Nouwen & Wouter, 2010, 944). As a form of retaliation, the Sudanese government expelled a large portion of humanitarian and aid agencies in Sudan. The devastating consequences on the civilian population in Darfur who were dependent on this aid sparked international outrage against the ICC for failing to account for their investigation’s effect on civilians in Sudan. Meanwhile, president al-Bashir travelled to various African and Arab states, such as Saudi Arabia, U.A.E, Kenya, South Africa and Djibouti, all of whom refused to adhere to the ICC’s arrest warrant. Therefore, this controversial incident casts a shadow on the efficiency of the ICC because the arrest warrant failed to hold al-Bashir accountable, but also enhanced the degree of human suffering that took place in Darfur, Sudan (Rodman, 531, 2008). Nevertheless, it did invariably increase the political cost of resorting again to similar actions.

            From this scope of analysis, it seems that the dispute between the ICC and African states is a caused by a justifiable concern regarding the institutions seemingly bias treatment of African cases. Inferring this causal relationship diverts attention from the primary factor that drives the ongoing dispute, namely the desire for political leaders to consolidate power by any means. An alternative probe into the states who have threatened to withdraw from the ICC reveals that with a few exceptions they all share three common features: (1) their government consists of authoritative political elites who have been in power for quite some time; (2) the governments face an existential threat from internal forces that seek to overthrow them; (3) the government has a poor human rights record. Given the situational contexts of these states, many of their leaders have shown their willingness to rely on any tactics that would ensure their continued rule. Transgressors can rely on the violation of human rights as a way to combat international and domestic opposition. They can utilize prohibited acts such as torture, murder and the proliferation of ethnic conflict to deter domestic attempts that challenge their power. They can also apply these tactics to bargain with the international community by playing into the argument of the political realist. Applying the rational actor model, it becomes evident that it is in the best interest of these leaders to adopt criminal behaviours to reinforce their authority (Selis & Weirda, 2005). The culture of cooperation that has long existed further rationalizes their behaviour, as it demonstrates that they can persist with these practices without incurring high costs (Kersten, 2016, 27). These individuals exacerbate the arguments posited by political realists and frame them as neocolonial dilemmas to save themselves from the threat of prosecution.

            Thus it is evident that the current dispute between the ICC and some African states is presented as a form of prejudice, under the presumption that the actions of the organization are motivated by neocolonial ambitions. In light of the analysis, the essay confirms that this portrayal is extensively exaggerated. Though the ICC has a strong focus on African criminals, this should not be used as a defence to disregard the atrocities that have occurred. Furthermore, it is worth noting that due to the continent’s colonial history there is a stronger concentration of states coping with the difficult transition to democracy. This transition has left these states vulnerable to foreign intervention, and internal conflict, subsequently creating the necessary conditions for the occurrence of crimes regulated by the ICC (Roland, 2004). Thus, it is clear that political leaders guilty of committing atrocities take advantage of the theoretical claims of political realist which produces policies of appeasement.

Mending Africa’s relationship with the ICC

            Is it possible to resolve the current dispute? No. The resolution of the peace-justice debate is impartial to the dispute because the ICC-African disagreement is political. The ICC, in theory, is an apolitical institution, however in practice the ICC is a major political player in transitional justice (Clark, 2008; Clarke, 2016). The institution’s inability to separate itself from politics makes it impossible to confront this political dilemma since it grants African leaders grounds to legitimize their critique of its function. Some scholars have argued that if the ICC persistently pursues its mandate of holding accountable those responsible for grave international criminal activities it can resolve the ongoing dispute (Grono, 2006, 6). They assert that the depoliticization of the ICC will impede the tradition of tolerating the persistent atrocities by elevating the cost of compliance with acts that violate international criminal laws. In return, this makes it difficult for states to critique or hinder the effort of ICC prosecutors. Hence, with steps towards the right direction, the tenuous relationship between African states and the ICC can be resolved (Ibid, 8). However, this argument is conditional to the international community’s adherence to the resolution of the peace-justice debate and the ICC’s ability to disembark from political discourse. As a result, the existence of a potential solution does not guarantee the mediation of African hostilities towards the ICC because what is necessary for achieving this resolution does not ensure the provision of what is sufficient.

Conclusion

            The recent experiences of the ICC and the analysis of the peace-justice-debate suggest that retributive justice provides intrinsic merits that are vital to the construction of long-term peace in transitional justice. With the existence of this simplified resolution to the peace-justice debate, the question remains: why does the ‘ICC’s African Problem’ prevail? Through its analysis, this essay demonstrates the existence of the dispute can be attributed to two main factors. The first factor is the way which the dispute has been framed by leaders responsible for violation of international criminal laws; the same leaders seek to consolidate power and who are threatened by potential ICC prosecutions, as a fight against neocolonialism. This factor sheds light on how leaders of some African countries rely on the arguments of political realists to formulate this perception and to use appeasement as a mechanism for their political agenda, while trying not to incur the consequences of their horrific actions.  The second factor is the inherent political nature of the ICC, which exposes it to criticism from a variety of countries such as US, Israel, South Africa and many more (Nouwen & Werner, 2010, 959). Though there are some theoretical solutions to this problem, they are conditional to suggestions that are near impossible to achieve in real-life. Thus, even with the existence of a solution to the peace-justice debate will ultimately not resolve the ICC’s troublesome relationship with African states.  The arguments presented should not be taken as claims that the role of the ICC during and post-conflict in Africa will indefinitely remain the same. Further research on the role of the ICC in conflict resolution can determine the possibility of mitigating its hostile relationship with various African stares.

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NOTES

[1] A highly influential political party in the Democratic Republic of Congo (DRC). The MLC was initially established as a rebel movement against the former Congolese government during the Second Congolese War (1998-2003), and thus they boasted a comparatively strong militaristic power within the Central African region (Deibert, 2013, 70)

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