27 Jun An African Backlash Against International Criminal Justice?
For better or for worse, Africa has become the leading testing ground for mechanisms of international criminal justice in this decade: e.g. Rwanda, Uganda, Congo, Sierra Leone, and Sudan. Generally speaking, African opinion makers have seemed pretty supportive of such processes, but there are signs of a backlash brewing.
Uganda: As this report from the Independent reminds us, the ICC’s investigations into war crimes in Uganda will likely target, in large part, the LRA’s “child soldiers.” For instance, one of the top four LRA leaders named, Dominic Ongwen, may be as young as 20 years old and began his career in the LRA when he was as young as 10 years old. Amnesty for child soldiers?
Sierra Leone/Liberia: Meanwhile, the much ballyhooed Charles Taylor trial continues to struggle with Taylor’s refusal to show up in court. But even if the trial does eventually go forward, there are signs that Africans may recognize the costs as well as the benefits of this kind of international criminal justice. The Globe and Mail’s report details the criticism of Peter Kagwanja, president of the Africa Policy Institute in Nairobi, about the negative side effects of the Taylor trial.
“Since Taylor was put on trial, all African dictators are sitting tight,” Mr. Kagwanja said, calling it a return to the politics of the 1970s and ’80s, when strongmen stayed in office until they died or were toppled, but never agreed to brokered retirements, a form of transition that had been becoming increasingly common in recent years.
“[South African President Thabo] Mbeki cannot go [to a leader] and say, ‘Get out of power, I’ll give you immunity’ – there is no trust, that is gone.” While it would be ideal to see an end to impunity and to see all of those who cause civil wars behind bars, he said, the blunt reality is that the threat of international prosecution undermines the possibility of brokered agreements to end conflicts such as Uganda’s civil war or the fighting in Darfur, and thus the chance to save lives.
The most prominent example is Zimbabwe: Despotic President Robert Mugabe is reported to have specifically rejected offers of “retirement” in Namibia or Malawi, brokered by South Africa in recent weeks, because he no longer trusts that he, too, will not end up in The Hague.
If Mr. Taylor had been tried by the new African human-rights court in Mauritius, that would have been an immense boon to African institutions, Mr. Kagwanja said. The former dictator of Chad, Hissène Habré, for example, is facing prosecution through the African Union, a move which has had enthusiastic support from African human-rights advocates.
Obviously, these are very difficult issues. My co-author Jide Nzelibe and I have discussed the costs of international criminal justice in Africa at length here in this forthcoming article in the Washington University Law Review, but we both would agree that there are no easy answers here. Hopefully, what is emerging in Africa should remind supporters of international criminal justice that there are downsides as well as upsides to these processes.
It’s a reminder that we should step back and look at such things in historical terms and realize that institutions, especially at the global level, will be comparatively slow to develop and entrench themselves. While it is important to be critical, premature or hasty assessments should be avoided. I’m reminded here of Jon Elster’s intriguing discussion of Tocqueville in his brilliant little book, Sour Grapes: Studies in the Subversion of Rationality (1983): “Tocqueville, in Democracy in America, was concerned to evaluate the consequences of American institutions. The following methodological principles can be extracted from his work (i) One must look at the consequences that emerge when the institution in question is widely used rather than marginal. [….] (ii) Any given institution will have many consequences, some of them opposed in tendency. It is imperative, therefore, to look at their net effect. [….] (iii) One should not evaluate a given institution or constitution according to its effeciency at each moment of time, but rather look at the long-term consequences. [….] (iv) One should not confuse the transitional effect of introducing an institution with the steady-state effect of having it. [….] (v) The four principles just indicated can only be applied after… Read more »