8 May 2013

Africa: Civil Society's Role in International Criminal Law

Photo: Uhuru Kenyatta/Facebook
President Uhuru Kenyatta with his co-accused, Deputy President William Ruto.

analysis

There are few more controversial topics in Africa at the moment than the continent's relationship with the International Criminal Court - as exemplified by the contrasting reactions to the election of Uhuru Kenyatta, who has been indicted by the ICC, as President of Kenya.

So the release of a new report by the Southern Africa Litigation Centre (SALC) on international criminal law could not have been more timely.

Intended to be a resource, guide and advocacy tool for African civil society working in the field of international criminal law in Africa, Positive Reinforcement explores the history and development of international criminal law and provides an overview of the current state of the international criminal justice project in Africa.

Focusing on the role and potential of African civil society to secure principled support for international criminal law in Africa, at a time when the relationship between Africa and the international criminal justice project appears to be so fractious, Positive Reinforcement demonstrates that a number of positive advancements and developments on the continent in this area can be attributed to African civil society.

In particular, the report focuses on the critical issue of complementarity.

There is no doubt that the entry into force of the Rome Statute of the International Criminal Court in 2002 is the most significant event in the coming-of-age of international criminal justice but its greatest significance does not lie in the establishment of the first ever permanent court tasked with adjudicating international crimes (although this is an enormous development) but in the Statute's recognition that the primary location in which international criminal justice is to be secured is the state most directly affected.

Only if that state is unwilling or unable to genuinely carry out investigations and prosecutions is the ICC authorised to intervene. It is this - the principle of complementarity - that is the real hallmark of international criminal justice today.

That complementarity is meaningfully realised requires not only that states ratify the Rome Statute, but that they implement domestic legislation, and that they appoint and apportion sufficient resources to people and bodies, who have the requisite expertise, tasked with the specialised functions of conducting domestic investigations and prosecutions.

That these steps happen, and once put in place, that they aren't merely for show but are properly used, requires political will.

Civil society's efforts are absolutely crucial to securing that political will.

Positive Reinforcement demonstrates how civil society actors across the African continent have, through different initiatives, successfully intervened to secure domestic realisation of international criminal justice.

The objective of the report is to inspire other civil society actors to more forcefully enter this field, by showing how they might induce their governments - through engagement and advocacy, and sometimes through litigation - to meet the obligations of complementarity.

Positive Reinforcement focuses on Africa and African civil society - not because there is any belief that the focus of international criminal justice should exclusively be Africa. Of course, it shouldn't and can't be. But too much of the debate on international criminal justice and Africa has been presented in negative terms.

The fact is that Africa has made a substantial intellectual investment in the international criminal justice project: vocal during the Rome Statute negotiations, the Africa bloc was critical in fending off interventions that would have resulted in a less independent court.

Africa also represents the largest regional bloc of states parties to the ICC. Its citizens are represented at all levels of the staff comprising the ICC. In the landscape of global governance, the ICC represents an unprecedented advance - it is a development in which Africa has had a chance to play a critical role and it has seized that chance.

It would be a tragedy were Africa to pull back on its substantial investment now. Not only for the global ramifications. Decades of underdevelopment have left African states with rule of law challenges, to greater and lesser degrees.

Domestication of international criminal justice can serve not only to secure accountability for the most heinous crimes, but can also spur systematic legal reform, helping strengthen domestic legal systems and shore up the credibility of local institutions.

Positive Reinforcement's objectives are to provide civil society organisations with an appreciation for international criminal law and the dynamic and varied components of Africa's relationship with the international criminal justice project.

Through a series of case studies Positive Reinforcement explores the challenges that African civil society faces and demonstrates how these have and can be overcome at a national and continental level.

Recognising that that the sustainability of the international criminal justice project depends on the continued involvement and leadership of African civil society, both domestically and regionally, SALC hopes that Positive Reinforcement will serve as a catalyst for the development of further national and regional strategies that will see African civil society acting in concert to reverse the tide of impunity for perpetrators of international crimes.

Positive Reinforecement - Advocating for International Criminal Justice in Africa

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