Aminta Ossom joins JiC with this guest-post on the need for national accountability systems for international crimes in Sierra Leone and Ghana. Aminta is the 2012-2013 Crowley Fellow in International Human Rights at Fordham Law School’s Leitner Center for International Law and Justice. She has conducted research on behalf of Amnesty International’s Campaign for International Justice as a Harvard Satter Human Rights Fellow and American Society of International Law Arthur C. Helton Fellow in West Africa.
Prisoners in Freetown, Sierra Leone (Photo: Fernando Moleres / Panos / laif)
This week Amnesty International releases Sierra Leone: End Impunity through Universal Jurisdiction, Ghana: End Impunity through Universal Jurisdiction, and Vanuatu: End Impunity through Universal Jurisdiction, the latest country papers in its No Safe Haven series. This blog post will focus on the Ghana and Sierra Leone reports, which outline the West African states’ ability to address crimes under international law through their national justice systems.
Currently, only a handful of African countries have a legal framework in place guaranteeing the arrest and prosecution or extradition of suspected perpetrators of crimes under international law who seek ‘safe haven’ within their territory. An infamous accountability gap persists where – despite some national prosecutions, two international criminal tribunals, and the work of the ICC – only a small fraction of perpetrators of crimes under international law have been brought to justice on the continent and worldwide. Others suspected of committing these crimes have traveled freely. To end this impunity and to advance complementarity, the No Safe Haven series outlines individual states’ relevant legal frameworks, obstacles to prosecution and the exercise of universal jurisdiction and procedures for extradition and mutual legal assistance. (Eight of these papers are available online, examining Germany, Spain, Sweden, Bulgaria, Venezuela, Solomon Islands, Burkina Faso and, also released this week, Vanuatu.) Designed to assist countries reforming their legislation in accordance with international law and victims and prosecutors seeking to initiate legal action, the series updates and expands Amnesty International’s 2001 Memorandum Universal Jurisdiction: The duty of states to enact and enforce legislation and its 2011 supplement, which survey the global landscape of universal jurisdiction legislation.
Supported by a fellowship through the Harvard Human Rights Program, I conducted research and drafted Sierra Leone and Ghana papers for the No Safe Haven series over the course of a year. A significant fieldwork component, including residence in each focus country, facilitated the process of identifying legislation, conducting consultations with local lawyers and civil society, and obtaining background materials often available in hard copy, which cumulatively served as the basis of the reports.
Sierra Leone: Lacking Legal Framework
A routine of interviewing legal experts and referencing in-country resources produced remarkable revelations: despite its transition out of a period of widespread human rights abuses, and despite its hosting an international criminal tribunal for nearly a decade, Sierra Leone is still a safe haven for perpetrators of crimes under international law. The country has enacted minimal legislation defining crimes under international law as crimes within Sierra Leonean law, which would allow for national prosecutions of suspected perpetrators. Sierra Leone does not legally guarantee reparation for victims of war crimes and crimes against humanity, and it does not have a significant legal framework in place to extradite fugitives to a country willing and able to prosecute them on behalf of the international community. Further, significant obstacles to prosecution – from recognition of amnesties to limited guarantees for victims’ rights – would likely hinder the realization of justice should its courts gain jurisdiction over these crimes in the future.
The effect of this absent legal framework is that the state lacks authority to address many crimes under international law on its own, notwithstanding the legacy of the Special Court. In April 2011, the Special Court for Sierra Leone convicted and sentenced former Liberian President Charles Taylor for aiding and abetting war crimes during Sierra Leone’s eleven-year conflict. International observers rightly heralded the judgment – which marked the Court’s imminent closure – as proof that even heads of state could be held accountable for crimes under international law. Ironically, however, with very limited domestic legislation defining war crimes and crimes against humanity as crimes under Sierra Leonean law, the country has few legal means of guaranteeing accountability at the national level for anyone accused of similarly grave crimes now or in the future. Importantly, the lack of a legal framework for national prosecution or extradition will limit the state’s ability to deter crimes under international law after the Court closes.
(Photo: DAI)
Ghana: Lacking Enforcement
Relatively unique among African and Commonwealth states, Ghana does have a legal framework providing for the exercise of universal jurisdiction over some crimes under international law, including war crimes, slavery and genocide. In addition, a provision in its 1993 Courts Act appears to authorize the exercise of universal jurisdiction over any crime defined in international instruments containing prosecution obligations that Ghana has signed. However, the lack of past practice makes uncertain whether Ghana’s courts would exercise jurisdiction over crimes under international law found in the Geneva and Genocide Conventions, which are directly incorporated into Ghanaian legislation, and over other crimes under international law, including torture, which are not expressly defined in national law but are found in treaties Ghana has signed. Moreover, additional obstacles to prosecution – including broad defenses and political responsibilities within the highest prosecutorial office – would likely make prosecutions of crimes under international law difficult to conduct nationally.
Accountability in Africa: The Bigger Picture
The wider context in West Africa during the course of my research demonstrates the importance of this and further research and advocacy directed at integrating national bodies into a global system of international justice. In 2011, Human Rights Watch and the UN determined that individuals who fled to Ghana and Liberia after involvement in Côte d’Ivoire’s 2010-2011 election crisis supported cross-border attacks to destabilize Côte d’Ivoire from afar, resulting in dozens of deaths months after the electoral standoff had ended. Guinea’s former head of state, deemed responsible for a 2009 massacre of protesters, enjoys safe haven in Burkina Faso, and a convoy of Libyan officials, including some wanted for crimes against humanity, attempted to cross into Niger following the 2011 Libyan uprising.
Impunity has devastating effects in a region that, due in large part to re-mobilization of ex-combatants and repeat violations of international law, has seen brutal civil wars, humanitarian emergencies, and stability concerns around transitional elections. It is crucial to end the cycle of violence by ensuring accountability – in every state – for grave crimes. One year has helped to identify obstacles to prosecution of crimes under international law and set forth recommendations for accountability in Ghana and Sierra Leone. However, it has also demonstrated that much more remains to be done in West Africa – and across the globe – to eliminate safe havens for some of the world’s worst criminals.
Justice in Conflict 
Anyone who has supported national legislative processes know that these process take years, millions upon millions of increasingly limited donor funds, and, on occasion, serious diplomatic pressure to enact. Given the author’s relative youth, one presumes she does not have experience with this process let alone experience with how donors/diplomats prioritize justice issues in a given country and what might become a lower priority were this issue to take national and diplomatic priority. For example, in a situation where there is limited national motivation (and we must be honest that there are not strong indigenous movements surrounding this issue in most of West Africa [or most places outside of Europe] otherwise these issues would already be on the radar)- pushing these issues will come, quite literally, at the cost of developing functioning national judicial systems, supporting civil society who seeks justice in their communities and within parameters they are dedicated to and prepared to engage, and would require diplomatic pressure that could otherwise be used to deal with the hundreds or thousands improperly incarcerated, flawed use of the death penalty, consistent and serious rights violations against women, and so on. We all want universal jurisdiction for crimes against humanity but we also need to have an honest conversation about the international community’s priorities in West Africa and more broadly. For all that we talk to developing national capacities and supporting national actors, the international human rights movement does not walk the walk in terms of identifying the priorities for action that will ensure greater enjoyment of human rights for people in these areas.
Great project, but at what cost?
Anonymous raises some interesting points about this project, which are useful springboards for further discussion of the report findings. First, his/her comments reflect the common conception that universal jurisdiction is a uniquely European feature. However, as the 2011 global survey [http://bit.ly/pbI6Sk] shows, no continent has a monopoly on defining international crimes in their legislation nor on providing that their courts can exercise universal jurisdiction for war crimes, crimes against humanity, genocide, torture and other heinous crimes. In fact, several courts in Africa have exercised universal jurisdiction within the past year alone (in South Africa for torture [http://nyti.ms/VMvmpi], in South Africa for terrorism [http://aje.me/U2DmHc], in Kenya for piracy [http://bit.ly/Ss63It], for example). Whether there are ‘indigenous’ movements for universal jurisdiction is an argument I don’t intend to engage, but I do want to point out that both reports – and the press releases announcing them [http://bit.ly/UHFxuJ] – mention the fact that initial efforts have already been made in both Sierra Leone and Ghana towards the incorporation of international criminal provisions into national legislation. This is despite the absence at that time of a compendium outlining the limits of national legislation and the inherent complexity of analyzing whether crimes found in international treaties have in fact been incorporated into (often piecemeal) national law. Moreover, Section 4 in each report elaborates that in both countries, some crimes of international concern (like hijacking and attacks on aircraft) and some crimes under international law (particularly grave breaches of the Geneva Conventions) are already incorporated into national law and universal jurisdiction is provided for them; however it is not provided for other crimes under international law (crimes against humanity, torture, extrajudicial executions, etc.), thereby creating an accountability gap.
Anonymous highlights a range of justice concerns (unlawful detention, women’s rights violations, etc.) that are issues in many countries in the world, not solely in West Africa. Having worked on human rights and rule of law projects for several years, I am familiar with these concerns and with the much needed investments that come with addressing them in any country. Each report expressly affirms the need to develop strong national judicial systems that are capable of prosecuting crimes under international law according to international standards, providing mutual legal assistance for their fair prosecution elsewhere, and extraditing suspected perpetrators in a rights-respecting manner. Although a full justice sector and human rights review is far outside the scope of these reports, Sections 2 and 6 are particularly relevant to such a discussion. Section 7 outlines relevant human rights safeguards for extradition and mutual legal assistance, and the Recommendations and sources cited address the need for both substantive and procedural legal reform.
As Anonymous rightly points out, priority setting is certainly an issue in resource-constrained environments. However, terms of engagement on priority setting should include local communities and all of civil society, in addition to government, government partners, and the international community to which we belong. These reports aim to democratize the process by providing legal findings on which to base such discussions. I am pleased to know that this objective has been realized. What I don’t find useful are conclusions about competence based on age presumptions. The findings in these reports are based on careful comparative and international legal research, the sources of which are spelled out in each report’s footnotes and in the body of the post.