Starting in Kampala on Monday, representatives of governments, the United Nations and civil society groups will meet for the first time to review the workings of the International Criminal Court (ICC) and of the international treaty which set it up, the Rome Statute. The 10-day review conference will consider among other issues the question of extending the court's mandate, which at present covers war crimes, crimes against humanity and genocide. Congolese human rights lawyer Olivier Kambala wa Kambala reviews the ICC with a particular focus on its operations in Africa.
African countries comprise one of the largest blocs of signatories to the International Criminal Court (ICC) and are critical actors in the institution, but their role is often overlooked. In fact, it was the Democratic Republic of Congo's (DRC) ratification of the Rome Statute in 2002 that officially established the ICC – an institution impossible to envision 50 years earlier.
Coincidentally, the DRC is also the country in which the ICC put an end to what was beginning to appear as reluctance to act on the part of the international community to deal with suspected war criminals.
All four occupants of the ICC's Scheveningen detention centre in the Netherlands are Congolese: Thomas Lubanga, Mathieu Ngujolo Chui, Germain Katanga and Jean Pierre Bemba Gombo. The first cases to be heard at the ICC focus on war crimes and crimes against humanity committed in the DRC and the Central African Republic. So it is not an overstatement to say that the construction of international criminal justice has crossed the Rubicon in Africa: alea jacta est – The Die is Cast!
Meanwhile, the challenges the ICC faces in Africa are manifold.
First, the the ICC's operation is anchored in ongoing conflicts. Four of five African cases brought before the court involve active insurrections.
The DRC has been in upheaval since 1996, marked by a reprehensible pattern of sexual violence. Uganda's battle with Joseph Kony's Lord's Resistance Army has affected not only Sudan but has now spilled over into northwestern DRC and the Central African Republic (CAR). Apart from reaping the bitter consequences of the LRA's violent tactics, the CAR is still in a "no peace, no war" situation, with fresh hostilities reported between government forces and the Popular Army for the Restoration of the Republic and Democracy in the north, And Sudan's Darfur region is not yet at peace.
Such contexts complicate the ICC prosecutor's work. On the one hand he possesses an irrevocable mandate to investigate cases and seek indictments. On the other, he has to juggle with that the severe consequences that the exercise of his mandate may cause to vulnerable civilians bearing the brunt of hostilities. Regardless of the nature of the risks, whether hypothetical or real, the prosecutor finds himself in situations where national politics influence his power.
The ICC prosecutor is also subject to international politics, which can dictate the freezing of proceedings for a year at a time through the United Nations Security Council. The process is also subject to his own political assessment of the interests of justice.
The situation in Sudan sparked controversy over the Security Council's power to defer charges against Sudan's President Omar Al-Bashir for war crimes and crimes against humanity. Sudan is not a state party to the Rome Statute and Al-Bashir is a sitting head of state – two factors that heightened tension between the African Union and the ICC.
Whether or not ICC prosecution can fuel or re-ignite a conflict is debatable.
The arrest of Jean Pierre Bemba, former vice-president of the DRC and one of the frontrunners in its 2006 presidential elections, did not result in the significant instability that many expected. Perhaps the defeat of Bemba's remnant elite forces in March 2007 before his "exfiltration" to Portugal helped assuage violence. Meanwhile, DRC authorities have raised the spectre of renewed instability in the country's east if the arrest warrant against General Bosco Ntanganda were to be enforced.
In the Ituri District however, followers of Thomas Lubanga, Mathieu Ngujolo and Germain Katanga did not use the arrest and transfer of their leaders to The Hague as a new casus belli. The trio was already in the custody of the Congolese government when the ICC arrest warrants were issued, which could be read as an inhibiting factor. But any deterrent effect of their removal is largely hypothetical.
In Uganda, the indictment of top leaders of the LRA, together with the changing situation in South Sudan, softened the movement's stance, leading to their participation in the Juba peace negotiations, before it hardened again. Since its refusal to sign the final peace deal brokered in Juba in 2008, the LRA has been conducting a terror campaign against populations of north-eastern DRC and southern Central Africa Republic, according to human rights groups. The massacre in Doruma in the DRC in December 2008 was the climax of the LRA's revived military activities.
In Guinea Conakry, it is arguable that the statement of the Office of the Prosecutor that it would test whether the 28 September 2009 massacres were admissible before the court, prompted the junta to allow an international commission of inquiry.
Perhaps in the end, it is possible that the ICC is a reality impacting on African conflict. And this alone is an important milestone in 21st century conflict-resolution practices.
The recourse to the ICC as the channel of first preference to remedy the gross violation of human rights in the five situations before the court contradicts to some extent the mindset of the drafters of the Rome Statute. They believed preference should be given to national courts, and the ICC's jurisdiction should be complementary to national efforts. Only in situations of state unwillingness and inability to investigate and prosecute would ICC proceedings take precedence.
Four of the five situations before the ICC have been referred by states. Few referring states have effectively enacted complementary provisions in their national legislation. In fact, only five African countries -- Senegal, South Africa, Mali, Kenya and most recently Uganda - have passed domestic legislation relating to the Rome Statute.
The creation of real space on the African continent which is hostile to impunity for perpetrators will depend on the number of states implementing legislation that complements the statute. Those laws are necessary tools to bring about judicial cooperation between both the ICC and African countries on the one hand, and between African countries themselves on the other.
Most importantly, by turning to the Rome Statute's standards, implementing countries will be able to hold trials at home, based on international criminal standards laid down by the statute.
In South Africa, civic groups are testing the implementation of that country's 2002 law, entitled the Rome Statute of the International Criminal Court Act, to bring to account Zimbabwean officials alleged to be responsible for mass torture in Zimbabwe. The South African act grants jurisdiction to South African courts, in this particular case, if the alleged perpetrator is apprehended on South African territory.
This is an illustration of how the limited but useful jurisdiction stemming from the Rome Statute's domestication, could potentially work. Widely implemented, it could result in proper universal jurisdiction to prosecute war crimes, crimes against humanity and genocide. But we cannot begin to contemplate such a situation if African countries that have referred situations to the ICC fail to take steps to domesticate the statute.
In another area, the ICC should consider playing a role in national prosecutorial initiatives based on the provisions of the Rome Statute. This scenario would apply to countries unilaterally applying the Rome Statute to domestic prosecutions, in the absence of enacting measures.
The DRC's military courts – which possess exclusive jurisdiction over war crimes, crimes against humanity and genocide – initiated a series of trials in 2006 and 2007, invoking the Rome Statute as the basis of prosecution. In the absence of ICC implementing legislation, these courts proceeded and rendered verdicts, with compensatory provisions for the victims. In addition to these trials, the defunct military structures of the Movement for the Liberation of Congo (MLC) of Jean Pierre Bemba claimed to have conducted trials of fighters accused of "crimes of rape, pillaging and murder" in 2002.
The ICC has an opportunity and a legal obligation to play a role in analysing the military courts' proceedings and decisions. For the Congolese victims, it could be useful for the ICC's Trust Fund for Victims to begin to assist in the providing the reparations ordered by Congolese courts. In the midst of criticism that the ICC interferes in domestic affairs, the court could demonstrate that it can be as useful in the DRC as in The Hague.
Africans, especially victims of gross human rights violations who are mostly denied justice in their respective countries, are watching the ICC. Sceptical or enthusiastic, resistant or converted to the cause of international justice, the elites or the masses, Africans expect the ICC to curb endemic manifestations of gross human rights violations.
In the meantime, the configurations of the ICC mandate can only allow precedent-setting in terms of fair and impartial trials, victims' participation and compensation. Those standards are then expected to reverberate in domestic proceedings.
The ICC also has an opportunity to impress upon the collective memory of Africans that such crimes have been dealt with efficiently, reducing their chances of recurring.
In the absence of national initiatives to establish the truth and bring perpetrators to account, the ICC is currently the only available option for most victims. The direction the ICC takes in Africa will depend on its ability to rise from poor beginnings, hampered by inappropriate and often uninformed criticism, to balance expectations and reality and begin to play an important role in the prevention and repression of mass atrocities.
Olivier Kambala wa Kambala is a Congolese human rights lawyer and transitional justice consultant. He also coordinates the Congo Memory Institute.