Sometimes, what one person can do is not just enough, for two can do more.
I was on the Secretary General's advisory group. So, we had a lot of interaction with civil society and NGOs. We gave a chance to every group that wanted to meet with us, and then waited for them to agree to meet with us. I am glad I was able to come to this meeting. The impression I had that Africans were against the ICC has been dispelled completely by President Macky Sall, and I was proud as an African that we have somebody like him who believes in the process.
You need not be introduced anymore, but what would you say to those who do not know you? Could you tell them what you do, and the reason why you came to Dakar?
My name is Professor Henrietta Mensa-Bonsu. I am a professor of law and the director of Legon Centre for International Affairs and Diplomacy (LECIAD). I came to Dakar to discuss international criminal justice. Last year about this time we were here on a conference also on the International Criminal Court. I was in the earliest community of criminal jurists on the Hissène Habre case. So for me, the fact that the trial began this week is a moment that symbolizes the hope we had for Africa to do the right thing in the circumstances, and not give Africa's detractors an excuse to say that Africans would never act. And, it is better if we do it, because we too should be able to say that there are things that we would not accept. We would not accept abusive Heads of States and we would stand up for victims that cannot stand up for themselves either because they are dead, scared or too poor or too vulnerable. So, Africans have to send the right message and I was glad the first Assembly of Heads of States accepted our report and decided to back Senegal. It has taken Senegal a long time but finally the day is here and I understand he is protesting the court jurisdiction. But at least he is alive to protest. Some of his victims are not alive to protest. I am glad to be a witness to joined-up action. Joined-up action can do things even for victims that are not powerful.
Are you one of those who think that Africans should be judged by Africans?
I would tell you honestly that Africans should be judged by whoever can do it well. Justice is a concept that does not allow for any adjectives. If you start saying African justice, western justice, and so on, it taints the word. So, if Africans have felt the need to have a body like the ICC, and have come out massively in support of the body by signing up and becoming the largest block of states behind the ICC, then it is a little odd to me that a few years down the road they would gang up and say no we are not working with them. There must be something very wrong. And I am a believer in fixing things when they are wrong, rather than walking away to go and find your own solution. There is nothing like African justice. Justice is justice. And if you start wanting to do your own thing, you must have a very good reason. But, if, even before you start, you begin to say that this or that person cannot appear before the body because they are too special, then I am afraid that your motives to go and do your own thing cannot be very enlightened. So, if Africans can judge Africans, then it is fine. But, if we are putting our support behind an international body to let it grow, why do we not fix the problems, instead of trying to duplicate the same body for Africans. We are not paving our way. And the people who pay for this international body, to which we subscribed, are not going to pay twice for the same service. If they do it, are we wise to ask people to pay for something when they are already paying for something else that we said we wanted?. So, for me, nobody has given me any arguments that persuade me that the 34 African states, which signed up at the time, were wrong in doing so. And there is provision in the ICC for people and states that are not happy and want to withdraw. Why are they not withdrawing? Why are they trying to use street tactics? These are street tactics, when you go to a meeting and decide that you would not cooperate. As sovereign powers, if you have decided to adhere to a body, you can also decide to leave. So if you are not exercising that option, then there is something very wrong with you adopting street tactics where you can use legitimate means to leave. I am not persuaded Africans want something like that.
How comes the people who had faith in the ICC and signed up to it are the same ones who have lost faith in it along the way? How do you explain that?
They were unhappy, as they thought the ICC seemed to be investigating only Africans. But they are not saying their people did nothing wrong. They are saying Africa is not the only place where people are doing wrong. Other people are doing wrong, but no one is going after them. So, they are partial. If you accept that our people are doing wrong, then someone should be going after them. Why are you looking at other places? You have not said your people have not done wrong. If you had said that your people have not done wrong, but others are going after them, and that those who have done wrong have nobody going after them, so they are partial and we cannot work with them, I would understand. You are not saying your people have done nothing wrong. You are saying that other people are also doing wrong and no one is going after them. I have a problem then with your wanting to pull out. If you are setting a place for your people to be judged, then you might as well leave them where they are to be tried. However, I do not think that is the honest reason. They are unhappy that African Heads of States are before the body, because the AU, at the last assembly of Heads of State, asked the ICC to seek an amendment of articles 16 and 27, and they are complaining that this has not been done. But these States entered the treaty as individual States, and if these individual States all moved for the amendment it is going to happen, but they are not going to move for an amendment because their continental body says so. It means they are not persuaded.
So they are giving mixed signals and I don't understand why that is so. And if you decide to set up your own body, and even before the body comes to be, you are accepting a settlement for Heads of State and senior officials, who have you set up the body for? Because it is Africa, you cannot make the Head of state leave power even when the Constitution says he should leave power. So, when are they going to leave power so that they face whatever justice they need to answer to? The Heads of State who do not have any case to answer leave power nicely. It is those who have issues who would not leave. So, we are just giving them an incentive of self-protection not to leave and it is troublesome. We say in international criminal justice that those who bear the greatest responsibility for an atrocity are the ones who should answer. So, if you exempt those in leadership or senior officials from settlement treaties, then who is left? Who should answer for bearing the greatest responsibility?
What can you tell us about the Kenyatta case?
All I know about it is what everybody else reads from the news, which is that they had to discontinue the case because the witnesses kept recanting. And you cannot build a case on witnesses that keep changing their story or changing their minds. The prosecutor was right. But before she did so, she complained that Kenya was not cooperating. The ICC depends on the cooperation of States, and if the States are not cooperating, there is nothing they can do to build a case. They need the resources of the particular State, its institutions, judiciary, and police force.. If the state does not want to cooperate, there is not much the ICC can do. But, when countries signed up for the ICC, they knew that they were required to cooperate.
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What do you think about African countries that refuse to ratify the Rome Statute?
To begin with, I think it is not compulsory. They are sovereign States, so they can decide not to be a part to the treaty. They are not doing anything wrong. But what you can do, if you want universality, is to persuade them that it is in their interest to be a part to it. And, hopefully, if they are persuaded that you are making sense, they would come around. But you cannot force them.
Could you please tell us a little bit about International Criminal Justice Day?
I am looking forward to the day when there would be no need to have anything called international Criminal Justice Day, because everybody, most importantly Africans, would be so well treated by their States and so well protected by their States, that they would have no cause to complain against any leader or any official. That is what I am looking forward to.
One last word about the Habre trial, what more can you tell us about it?
I think he is entitled to a fair trial, and I hope he cooperates. I hope that all the proceedings are conducted fairly so that at least he would not have cause to complain. And when the international community, represented by Africa, takes on the responsibility of delivering justice, it should not be said that they did a bad job. He is untitled to a fair trial and that is what I look forward to.
