The body blows dealt by Nairobi have human rights groups questioning whether the court can -- or should -- prosecute atrocities in South Sudan and other African states.
When the supporters of Uhuru Kenyatta and William Ruto began systematically attacking the International Criminal Court (ICC) as a neo-colonialist institution biased against Africans in the run-up to Kenya's 2013 election, their prime concern was domestic: to ensure their champions escaped prosecution at The Hague. A publicity campaign that made clever use of social media was transformed into government policy once the two men were inaugurated president and deputy president, respectively. It then acquired diplomatic wings, with envoys from Nairobi crisscrossing the continent to drum up support, culminating with an extraordinary African Union summit last October at which it was agreed that African heads of state would no longer face ICC prosecution during terms in office.
So effective has the anti-ICC campaign proved that it is now having repercussions its originators probably never foresaw: South Sudan is likely to be just the first in a series of new African conflict zones where human rights groups and civil society organizations find themselves nonplussed, unsure what to advocate in light of the body blows dealt the ICC.
"The ICC backlash has created a major dilemma for us, no doubt about it," acknowledged the head of one human rights organization I spoke to, who asked not to be named. "Deciding the appropriate course of action has become a very difficult question."
Their quandary, however, is no philosophical abstraction -- the privilege of Western-funded NGOs with headquarters in Washington and Brussels. Every journalist is familiar with the experience of returning to the scene of an atrocity and interviewing a cowed survivor who quietly mentions that, in the street, they regularly pass men who raped a daughter, killed a father. If the ICC no longer holds out even the slim hope of eventual retribution for those who funded and armed such thugs, what alternatives exist?
In many ways, the series of abuses committed in South Sudan after fighting broke out in mid-December would be well suited for referral to the ICC, which currently can prosecute war crimes, crimes against humanity, and genocide. First in Juba and then in dusty towns like Bor, Bentiu, and Malakal, opposing forces loyal to President Salva Kiir and his former deputy, Riek Machar, carried out tit-for-tat massacres and gang rapes, with atrocities targeted along ethnic lines. Victims were shot in hospital beds, outside churches, and within sight of United Nations compounds.
For human rights activists, the sheer brutality of the violence, in a region scarred by 22 years of civil war between Khartoum and southern rebels, confirms a long-voiced argument that preventing fresh abuses means ending impunity. It is vital, many argue, to avoid the example set by Sudan's Comprehensive Peace Agreement, which gave birth to Africa's newest state in 2011 while largely sidestepping the issue of accountability for past crimes.
"We've had 10,000 dead in less than three months. It's been very fast, very aggressive, and the massacres have been ethnically targeted because that's the way the leadership presented it," says Wani Mathias Jumi, secretary-general of the South Sudan Law Society. "In the past there was no accountability at all, and that has been carried forward. If this country is to exist anywhere but on paper, we have to see redress this time."
South Sudan possesses other characteristics that make it suitable for ICC referral. The three-year-old country's judicial system is still in embryonic form. No legal provision for crimes against humanity exists, and legal aid and witness protection programs have yet to be established. Judges, prosecutors, investigators, and clerks are in short supply and were often trained in the north, and so are accustomed to legal documents written in Arabic and the workings of sharia law. In South Sudan, where most inhabitants are either Christian or animist, the official language is English and the legal system is based on common law.
"Even before the latest conflict, South Sudan was struggling to cope with prosecuting ordinary crimes," says Amnesty International's Elizabeth Ashamu Deng. "It's clear that the normal justice system would not be able to deal with this latest challenge without significant external input." Daniel Bekele, the director of the Africa division at Human Rights Watch, describes South Sudan's judiciary as "one of the weakest in the region," adding, "In a new country, that's not surprising."
Always envisaged as a "court of last resort," the ICC was set up in 1998 with precisely such circumstances in mind, offering justice to people in states too fractured to deliver it themselves. South Sudan may not be a signatory to the Rome Statute that established the ICC (neither, of course, is the United States), but the U.N. Security Council can refer a situation to the ICC, thereby establishing jurisdiction.
Yet in spite of South Sudan's apparently meeting many ICC criteria, leading human rights and policy advocacy groups are skirting calls for the court's involvement. Human Rights Watch says it is still assessing the situation. The International Crisis Group is calling instead for a tribunal on the lines of that staged in Sierra Leone after its civil war. Amnesty International, for its part, says it is waiting on the final recommendations of the Commission of Inquiry on South Sudan, set up by the African Union.
This wariness is rooted in recent, scarring experience. Shocked human rights groups are still digesting the African Union's decision to rally behind Kenyatta and Ruto, accused by the ICC of organizing the violence that claimed more than 1,000 lives in the wake of Kenya's 2007 elections and nearly tore the country apart. The African Union's hostile stance successfully branded the ICC across the continent as a racist institution, fixated with prosecuting African leaders.
"The ICC has, unfortunately, become a toxic brand in much of Africa," says John Ryle, of the Rift Valley Institute think tank. "This is due to the ineptitude of its former chief prosecutor, Luis Moreno Ocampo, and to the skillful political maneuverings of a number of ICC indictees, who have managed to represent the court as an instrument of Western intervention in the affairs of sovereign nations. The vulnerability of the ICC to this backlash has been a blow for African civil society activists who seek justice and accountability from their leaders."
Indeed, aware that three of the regional states now attempting to mediate a peace deal between Kiir and Machar -- Sudan proper (where President Omar al-Bashir himself faces ICC prosecution), Kenya, and Uganda -- have been particularly vocal in their hostility toward the ICC, many human rights groups are seeking cover behind the African Union's commission of inquiry, which is seen as a classic "African solution to an African problem." Led by former Nigerian President Olusegun Obasanjo and launched in March, the commission includes Ugandan academic Mahmood Mamdani, who has made his impatience with the ICC clear, arguing that a fixation with delivering pure justice can clash with the political accommodations necessary for peace. Influenced by South Africa's post-apartheid experience, the commission's members see reconciliation as their overriding priority. It is already running months behind schedule, but its final report, due in September, is expected to reiterate initial support for a "hybrid court" as the most appropriate way of delivering justice to South Sudan.
Hybrid, or "ad hoc," courts usually involve a mix of domestic judges and international magistrates, prosecutors, and investigators flown in to bolster a weak local legal system. The aim would clearly be to deliver a form of justice that would be both credible and recognizably local.
But many in the human rights sector see the championing of the hybrid-court model as deeply ironic -- history turning full circle. Ad hoc courts of various kinds were experimented with in Africa during the 1990s as reactions to abuses committed in Sierra Leone, Rwanda, and, more recently, Chad. The ICC formula came to be seen as far preferable as a result.
"It seems we've gone right back to the 1990s," says Casie Copeland, an analyst with the International Crisis Group. "The problem with the ad hoc courts was that they were tremendously expensive and that cash" -- usually provided by the United States, European Union, or United Kingdom -- "just isn't on the table now."
"Decisions to appoint ad hoc courts were often highly political, whereas with the ICC system everyone knew they were dealing with international treaty bodies," she adds. It can sometimes prove impossible to set up a hybrid court in the country where the atrocities were committed, leaving proceedings looking just as remote to the local population as those in The Hague. Another problem with hybrid courts has proved to be the often-tense relationships that develop between internationally funded employees and local staff working in cash-strapped, demoralized courts -- tensions that undermined the ambition to build up a legacy of skills, resources, and legal expertise.
"The hybrid-court approach might be one useful model, but it is no panacea for all situations," warns Human Rights Watch's Bekele. "The relevance of a hybrid-court model needs to be assessed on a case-by-case basis."
Wary of being associated with another high-profile ICC debacle -- one many observers predict could effectively spell the end of the court -- human rights workers say the ball on South Sudan is now in the African Union's court. But they privately express concerns about the commission of inquiry's scarce resources and the modest amount of time spent on the ground. "The African Union really needs to step up to the plate on this and demonstrate it can push for accountability," said one activist who wished to remain anonymous.
History may well come to see Kenya as the place where an idealistic -- but perhaps naive -- drive for universal justice was checked by the realities of entrenched elite power. The notion that sitting heads of state or popular ethnic champions would meekly allow themselves to be prosecuted seems extraordinarily starry-eyed now. But that realization still leaves unanswered the practical question of what is to be done when fresh conflicts break out and abuses are committed in traumatized African states that lack either infrastructure or political will to deliver accountability. This question is immediately pressing in South Sudan, as well as the Central African Republic, but will inevitably arise in other parts of the continent before too long.
Expect years of debate. "The end goal is that there should be justice," says Copeland. "If there's a way of achieving that without involving the ICC, then let's do it. But we're going to see plenty of efforts to find ways of working around the ICC that will be confronted with the same facts that motivated the establishment of the ICC in the first place."
The author is a trustee of Human Rights Watch's Africa Division, serving in an independent, advisory capacity.
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