Coming full circle: Should the third Prosecutor try to solve the ICC’s “Africa problem”?

The latest contribution to our ongoing symposium on the next ICC Prosecutor was written by Kate Gibson. Kate has represented accused before the international criminal courts and tribunals since 2005, including as co-counsel for Radovan Karadžic and Charles Taylor, and as lead counsel for Justin Mugenzi before the ICTR. She is currently the co-counsel of Bosco Ntaganda before the ICC, where she also represented Jean-Pierre Bemba between 2009 and 2018.

Former ICC Prosecutor Luis Moreno-Ocampo on a visit to the DRC (Photo: ICC)

The perception that the ICC Prosecutor has unfairly – or at least disproportionately – targeted accused from African states is one that Prosecutors Ocampo and Bensouda have been unable to shake. The question faced by their successor is whether she should wade into this debate. Is there anything to be gained by attempting to improve the relationship between the Court and its first (but former) champions? And, if so, how could it be done?

Certainly now in 2020, the relationship between the Court and its African States Parties is less fraught than it once was. The first huge rift appeared in 2009, when Prosecutor Moreno Ocampo failed, but then succeeded, in bringing genocide charges against a sitting head of state, President Omar Hassan Ahmad Al Bashir of Sudan. Almost outrageous in his defiance, President Bashir announced to crowds burning effigies of the Prosecutor that the ICC could “eat” his indictment. Significantly, his claims that the African Union, Arab League, and countries of the Non-Aligned Movement had lined up behind him – and against the Court – was strengthened by his unimpeded travel to Nigeria, Egypt, Ethiopia, Kenya, South Africa, Qatar and China, among others. The silence of African heads of state when the Prosecutor pursued rebel leaders and political opponents, gave way in spectacular fashion when a fellow President was put in the cross-hairs. The narrative of a “’racist” ICC targeting Africans was born, and took hold.

Tensions peaked in late 2016, when it appeared for a period of several weeks that a mass withdrawal of African States Parties was likely. On 19 October 2016, following its rebuke from the ICC for allowing President Bashir to attend the 2015 African Summit in Johannesburg, South Africa notified the UN Secretary General of its intention to withdraw from the Rome Statute. A few days earlier, the Burundian parliament had voted in favour of doing the same. The Gambia, Uganda and Namibia also announced an intention to withdraw. The complaints, which by then ran deeper than the well-worn neo-colonial critique, and the right of sovereign states to prioritise peace over justice, were consistent and virulent.

There is no question that the optics at the time were unhelpful. Nine of the first ten Prosecution investigations had been in African states: the Democratic Republic of Congo (DRC), Uganda, the Central African Republic, Libya, Kenya, Côte d’Ivoire, Mali and Sudan. Only Africans had been detained. Only Africans had been tried. Only Africans had been convicted. And only in 2016 did the Prosecutor open the first situation in a non-African state relating to alleged crimes in Georgia. The comparatively limited number of Prosecution trial attorneys and legal officers who were nationals of African states did not improve this picture. In that context, the “European Court for Africa” label was always going to be difficult to dislodge.

Even had Prosecutor Bensouda wanted to avoid addressing this controversy, it was no longer possible. In the face of direct questions, she attributed the lack of geographical spread in the ICC’s cases to the number of self-referrals from African states in the Court’s early years, and their continued cooperation with the Court to allow successful investigations and prosecutions. For her, claims of racism were “far from the reality”. This echoed, in subtler terms, Prosecutor Ocampo’s stance that allegations of racism were “propaganda” and the focus on Africa was due to the fact that “there were serious crimes there and the leaders requested our intervention”.

Should the next ICC Prosecutor continue down this path and, in particular, continue with this narrative?

Consider first, that the direct engagement by Prosecutors Ocampo and Bensouda did not silence detractors. The position that the Court was doing nothing more than engaging with African states that had engaged with it, was countered with the claim that Prosecutor Ocampo had encouraged these states to refer situations to the ICC (and arrest and produce suspects), as part of an understanding that their leadership would be immune from prosecution. The selective nature of the Prosecutor’s investigations in Uganda and the DRC, which neatly circumvented the cooperating regimes, gave support to proponents of this view.

Second, the narrow and simplistic focus of the debate as framed has been unhelpful. The ICC is not a racist institution. Nor was the Prosecutor’s early approach to securing defendants beyond reproach. Perhaps, more useful than re-igniting the cycle of recriminations and denials, would be a meaningful (and collaborative) assessment of what went right, and what went wrong in this first phase of the Court’s operation, with a view to finding a better way forward.

Take, for example, the Lubanga case, widely viewed as a Prosecution success story. Resulting in Mr. Lubanga’s conviction and sentence of 14 years for the conscription and use of child soldiers within the UPC/FPLC, Prosecutor Bensouda said that the conviction “stands as a symbol of hope and an important step towards bringing an end to the suffering of tens of thousands of children still forced to fight, to kill and to die in conflicts around the world.”

The perception for many in Ituri, is different.

Four years after Mr. Lubanga’s conviction, the ICC Trust Fund for Victims (TFV) abruptly suspended its reparations assessments in Ituri due concerns that the process was re-traumatising victims. The TFV submitted that the Trial Chamber’s order to interview victims in order to assess harm put it in an “untenable situation, whereby its own staff is participating in a process that it finds fundamentally harmful to the victims it is engaging with”; a remarkably honest and damning insight into the impact of the ICC’s decade in Ituri. Many victims, being again asked to recount and re-live the crimes suffered, simply gave up, and chose not to be part of the reparations process. After 10 years of visits from ICC Outreach staff, Prosecution investigators, Victims’ lawyers, TFV staff and even Prosecutor Ocampo himself, with no measurable benefit to their lives, they had simply had enough.

As for Mr. Lubanga, the former UPC/FPLC President has now served his 14-year sentence, and was released on 16 March. The UPC/FPLC, according to the ICC Prosecution, is an armed group predominantly comprised of ethnically Hema soldiers, established to expel their Lendu enemies from Ituri. Mr. Lubanga’s release comes as the UN Joint Human Rights Office in the DRC issued a report categorising more recent killings, rapes and other violence in Ituri as potentially amounting to crimes against humanity or genocide. This time, the UN has identified the Lendu armed groups as the perpetrators of crimes, noting that “most of the victims are members of the Hema community.” The potential for harm resulting from the perception of one-sided justice in this region is real.

Rather than being stuck on the broken record of whether or not the ICC targets Africans, the debate could more usefully shift to how the ICC’s engagement in Africa could avoid a situation where the very community at whom the project is aimed does not end up fatigued and disillusioned. And how the ICC can limit exposure to the perception (or reality) of selective prosecutions; an admittedly huge ask when investigations can often only be conducted with cooperation from the government and their security services. Regardless, lauding the ICC’s successes from The Hague, with no visible recognition of the infinitely more nuanced and complex reality on the ground does not help to inspire confidence in the ICC in the region. Rather, it looks more out of touch.

But how to break this cycle? Where denials and reassurances have failed, what concrete steps could change perceptions? President Bashir’s potential surrender to the ICC could be an opening. On 11 February 2020, a member of Sudan’s civilian Sovereign Council suggested that the former Sudanese President could appear before the ICC; breathing life back into a case that has not only laid dormant for a decade, but been wielded as a prime example of the ICC’s institutional flaws. The significance of prosecuting the man who led the charge against the ICC in Africa will not be lost on anyone. The significance of doing so while standing shoulder to shoulder with an emerging regime, promising diplomatic reform as an end to 60 years of bloody civil war, is the stuff of an incoming Prosecutor’s dreams. While initial reports of President Bashir’s imminent transfer to The Hague have been walked back, the option appears to still be on the table.

The state of Prosecution readiness to actually try the case, and the quality of the evidence collected, remains to be seen. Certainly, the Darfur investigation was conducted during an era of the Prosecution’s over-reliance on intermediaries in the collection of evidence, and the particular obstacles it faced in Darfur have been well documented. Moreover, this is yet another example of the ICC targeting African leaders, while its investigations in Afghanistan, Palestine and Bangladesh/Myanmar continue to face significant hurdles.

The reality may simply be that the perception that the ICC only prosecutes Africans will stop when the ICC prosecutes people other than Africans. Namely, once the Office of the Prosecutor examines situations across the spread of States Parties, and is in a position to bring prosecutions where it is right to do so, wherever the wrong may have occurred. To that end, the current landscape is a vast improvement. The African Union President’s famous rhetorical question of January 2011 “Why not Argentina, why not Myanmar… why not Iraq?” would today elicit a more (if not completely) satisfactory response. A collaborative and transparent relationship between the Court and its African States Parties has a greater potential to produce meaningful accountability for victims of mass atrocities than the rhetoric of racism and denial. The solution may simply be for the third Prosecutor to just get on with the job.

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Next ICC Prosecutor, Next Prosecutor Symposium and tagged . Bookmark the permalink.

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