The International Criminal Court (ICC) is going through turbulent times. After years of almost romantic enthusiasm for international criminal justice, states and commentators have started to question whether the international prosecution of a handful of high-level perpetrators is always the most suitable way to address mass atrocity crimes. Calls for alternate forms of justice that may be delivered by local and regional justice mechanisms, rather than an international court or tribunal, have become more vocal. To be sure, the ICC still enjoys the support of large parts of the international community, but it cannot be overlooked that the Court increasingly faces criticism, even from some of its strongest allies.
At this moment, one of the most serious challenges for the ICC is its embattled relationship with Africa. Since the announcement of the prosecution of the Sudanese president, Omar al-Bashir, in 2008, many African states have expressed their concerns about the Court’s track record, while some have even threatened to withdraw from the Rome Statute altogether.1 Although this opposition has not been univocal, and clearly does not reflect the views of all African states, let alone of all Africans, it has become common to speak of the ICC’s ‘Africa problem’.
For quite some time, it appeared that this problem was not seen as a priority by the Court and by the majority of its States Parties. Although the ICC suffered a backlash from al-Bashir’s indictment, the Court’s first Prosecutor, Luis Moreno-Ocampo, refuted the criticism of African states. Time and again he repeated that his duty was ‘to apply the law without bowing to political considerations’.2 For its part, the UN Security Council (Security Council) also proved unwilling to address the concerns of African states. Despite numerous requests from the African Union (AU), the Security Council refused to defer the prosecution of al-Bashir and later to suspend the prosecution of the Libyan leader, Muammar Gaddafi.3
In the last few years, the Court and its supporters have started to take the objections of African states more seriously. The Court’s second Prosecutor, Fatou Bensouda, and a large group of States Parties have called for ‘a dialogue’ with the AU and with concerned African states.4 Even though Bensouda has continued the rhetorical strategy of her predecessor and has repeatedly stressed that she cannot take political considerations into account, she has acknowledged the concerns of African states and has used some of her diplomatic leverage to ease the ongoing tensions.5
In this respect, the election of ICC indictees Uhuru Kenyatta and William Ruto as president and deputy president of Kenya in March 2013 has been a real game changer. In the autumn of 2013, the scheduled start of their trials generated such a political turmoil that the Court and its States Parties had no choice but to respond. While a Security Council deferral was narrowly averted – with seven votes in favour and eight abstentions – the Assembly of States Parties (ASP) recognized the urgent need to address the situation. Amidst threats of an African mass withdrawal, the ASP’s annual meeting in November 2013 witnessed the very first inter-state debate on the Court’s fractious relationship with Africa, and more specifically on ‘the indictment of sitting Heads of State and Government and its consequences on peace and stability and reconciliation’.6 Eventually, the States Parties ‘gave in’ to one of the AU’s demands by amending the Court’s rules on presence at trial for those accused who fulfil extraordinary public duties at the highest national level. These amendments were effectively intended to reduce the amount of time that Kenyatta and Ruto would have to spend in The Hague.7
This ‘sign of goodwill’ did not lead, however, to a rapid improvement of the ICC’s relationship with Africa. A few weeks after the ASP, the AU Assembly of Heads of State and Government (AU Assembly) welcomed the new rules on presence at trial, but also expressed its ‘deep disappointment’ that the Security Council had not acted on its deferral request(s) and stressed that the Council should do more ‘to avoid the sense of lack of consideration of a whole continent’.8 To prevent future deferral requests from being ignored and to ensure that no other sitting African Head of State would be indicted by the Court, the AU Assembly called for several amendments to the Rome Statute. Most importantly, the gathered African states demanded that the UN General Assembly would be authorized to defer the Court’s proceedings and that Heads of State would become immune from prosecution by the Court during their time in office.
Furthermore, the African leaders decided to expedite the process of establishing the African Court of Justice and Human and Peoples’ Rights (African Court).9 This involved giving the African Court jurisdiction over a range of crimes, including the four international crimes that form the subject matter jurisdiction of the ICC: crimes against humanity, war crimes, the crime of genocide, and the crime of aggression. The result is the early formation of an ‘African Criminal Court’, which in the future may come to function as a regional alternative to the ICC. The Amendment Protocol of this new Court, which was adopted by the AU Assembly in June 2014, provides immunities for incumbent heads of state and remains silent on the African Court’s complementarity with the ICC.10
In December 2014, the Prosecutor’s decision to withdraw the charges against Kenyatta marked another dramatic moment in the Court’s relationship with Africa. In explaining her decision, Prosecutor Bensouda accused the government of Kenya of failing to provide the Office of the Prosecutor (OTP) with ‘important records’, and claimed that ‘hurdles’ caused by Kenya’s lack of cooperation had ‘a severe adverse impact’ on the case.11 With the collapse of Kenyatta’s trial, one of the main triggers behind the recent intensification of the AU’s campaign against the ICC disappeared, but it did not take all the concerns of African states away. While the assembled African leaders welcomed the withdrawal of charges in January 2015, they also expressed their regret over ‘the period it took the Office of the Prosecutor to arrive at [this] decision’, and noted with concern that the case against Deputy Ruto still continues.12
In addition to the Kenyan cases, the indictment of the Sudanese president al-Bashir also remains an important source of tension between Africa and the ICC. While it seems that the AU has given up on its initial deferral request for al-Bashir, the AU continues to argue that the Sudanese president enjoys immunity from arrest. Despite decisions of the Court’s Pre-Trial Chamber countering this claim, al-Bashir has travelled to several African States Parties, including Nigeria, the Democratic Republic of the Congo (DRC), and, most recently, South Africa.13 All this illustrates that, for the time being, the ICC’s ‘Africa problem’ is far from over.
A Debate on Africa and the ICC
How have scholars approached the continuing tensions between Africa and the ICC? With the risk of overgeneralizing, we find that until now the debate has followed two trajectories. First, scholars have analysed the legal arguments that have been raised and the amendments that have been suggested by the AU.14 Based on their assessments of these arguments and amendments, this first group of scholars has formulated a range of recommendations on how ‘to solve’ the tensions.15 Their approach may be described as legalist or pragmatic. These scholars have taken the ‘law’ and the Court as frames of reference and have thought alongside it – that is, together with the Prosecutor, the ASP, and the Security Council – to seek solutions within the legal order that the Rome Statute constitutes.16
A second tenor in the existing literature has been to assess the appropriateness of the concerns that African states have voiced about the ICC. Much has been said and written about whether Africa’s concerns are simply false rhetoric from self-interested leaders.17 This question has sparked a debate on the structural selectivity of international criminal justice or, to phrase it more sharply, the alleged neo-colonial and racial politics behind the Court’s investigations and prosecutions in Africa.18 The approach underlying the relevant contributions has been to make a normative assessment of the concerns and criticisms of African states. Put differently, are African leaders ‘right’ to criticize the Court?
This volume also takes the ongoing tensions between Africa and the ICC as its starting point, but focuses on different sets of questions. Instead of pragmatic solutions or normative assessments, our aims are to explore and understand the different perceptions of the ICC in Africa. How has the ICC manifested itself in Africa and how do African audiences perceive the Court? We approach these and related questions from different angles, looking at the interactions between African states and the ICC, but also beyond African states, at the ‘societal impact’ of the ICC in different African communities, and beyond the ICC, at other local and regional justice mechanisms in Africa.
First, we seek to deconstruct the origins of the Court’s fractious relationship with Africa. Is there something inherent to the ICC as a legal system or to the contemporary political and socio-economic state of Africa that may enhance our understanding of the current tensions? Second, we study the interactions between African states and the ICC to make sense of what has motivated African states to criticize but at times also to support the Court. In this context, we also ask how the ICC has reacted to the concerns of African states. Third, we look beyond African states at the engagements between the ICC and different audiences and individuals in Africa, including those who are directly concerned with the Court as ‘victims’ or witnesses. How do they perceive the ICC and how are attitudes toward its investigations and prosecutions formed? How do local media portray the ICC, how has the Court’s involvement affected domestic politics, and in what ways, if at all, have its proceedings helped to shape the public narratives of local and regional conflicts? Finally, we look beyond the ICC at local and regional justice mechanisms that have been developed before, alongside, or as an alternative to the Court in Africa. How have different African communities dealt with mass atrocity crimes since the end of the Cold War? What types of judicial and non-judicial mechanisms can be identified and how do they relate to the ICC?
These and other relevant questions about the engagement of the ICC with Africa are viewed in this volume through different disciplinary lenses. The background of the various contributors includes international law, anthropology, sociology, African history, political science, critical theory, and media studies. Moreover, some of the authors have been directly involved with the work of the ICC and with other local and regional justice mechanisms that are discussed in this volume. Their contributions add a helpful practitioner’s view to the mix of interdisciplinary perspectives on the questions that this volume seeks to answer.
Of course, the questions and perspectives that we raise can and should not always be separated from the normative, legalist, and pragmatic approaches that have until now dominated the debate on Africa and the ICC. As a matter of fact, several chapters in this volume do make normative claims, analyse relevant legal provisions, and discuss practical solutions. Still, the point of departure for this volume as a whole is not to assess the concerns of African states or to solve the Africa problem of the ICC, nor is it to presume that judicial mechanisms are the only tools that are available to post-conflict states. Instead, the ultimate aim of this volume is to expose the complexity of the Court’s troubled relationship with Africa and to ponder the plethora of judicial and non-judicial developments underway in Africa.
B Perceptions of the ICC in Africa
The remainder of this introductory chapter sets the stage for these explorations, and is divided into four parts. We begin with a reflection on how scholars can study the perceptions of international courts among different audiences. In this first part we also explain how these perceptions relate to the ‘legitimacy’ of international courts. It is often said that the criticism from African states threatens to undermine the ICC’s legitimacy. Yet, as we shall see, this claim is subject to competing interpretations, depending on whose perceptions are being addressed and in what manner this is done.
In the second part, we introduce three different phases in the Court’s relationship with Africa. Starting with the negotiations on the Rome Statute, we highlight some of the political structures and uneven power relations that are embedded in the ICC’s legal system and which may help to explain shifts in Africa’s engagement with the Court. Specifically, in its early years, there appears to have been a form of strategic cooperation between individual African states and the ICC. However, developments after 2008, starting in particular with the indictment of al-Bashir, have prompted an ongoing phase of active opposition against the Court and, as of late, a reorientation towards other justice mechanisms, such as the early development of an African Criminal Court.
In the third part, we briefly consider some of the different local and regional justice mechanisms that were developed long before, but in some cases also as an alternative to, the ICC in Africa. While some of the responses to mass atrocity crimes in Africa and corresponding justice mechanisms have retributive components that are similar to international criminal prosecutions, others take a more restorative and relational approach. By introducing these different justice mechanisms in Africa, this part foreshadows the chapters in this volume that look beyond ‘Hague Justice’.
In the final part of this introductory chapter, we provide an overview of the themes, organization, and contents of this volume.
I Perceptions of International Courts and Tribunals
The political battles that have defined the Court’s relationship with Africa over the last few years sometimes create the image of a univocal African continent with a uniform position on the ICC. This image is wrong, or at least overly simplified. Not all African states have, for example, criticized the prosecution of al-Bashir, and not all Kenyans have opposed the trials of Kenyatta and Ruto.19 It should be stressed that the ICC has many different audiences throughout Africa, ranging from government officials, national courts, local communities, sub-regional organizations, and civil society groups to witnesses, victims, and legal experts.20 Among these different audiences, understandings and ideas about the Court and its practices are not uniform. Whereas some may have never heard of The Hague, even in regions that are under investigation by the Court, others will read about the latest developments at the ICC in their daily newspapers. This highlights the reality that perceptions of the Court among its different African audiences are multilayered.
A Why Do Perceptions Matter?
For the ICC and for international courts and tribunals more generally, the perceptions of their different audiences tell us something about the effectiveness and appropriateness of the norms that they represent and the decisions that they take. Perceptions can, in this sense, spark social behaviour, but can also function as a normative yardstick for scholars.21
First of all, perceptions can be an internal motivation for social actors to behave in a certain way. A positive perception of an institution like an international court can be an incentive to comply with the rules and decisions of that court, whereas a negative perception can lead to (active) opposition. In political science, but also in social psychology, anthropology, and sociology, scholars often refer in this regard to sociological, socio-cultural, or perceived legitimacy, by which they mean the perceptions or subjective beliefs of social actors that a norm or institution is ‘appropriate, proper and just’.22 These perceptions or beliefs can be studied among different audiences to unravel how they influence the thoughts, feelings, and behaviour of these audiences, and ultimately to explain the (in)effectiveness of an international court or tribunal.23 For the ICC, effectiveness may be defined as its ability ‘to engender respect for its rulings and for the rules it enforces’.24 In this sense, studying the ‘sociological legitimacy’ of the ICC means deconstructing how the perceptions of different audiences about the ICC may affect their behaviour towards the Court and how this in turn influences the Court’s ability to achieve the objectives of the Rome Statute.25
Second, the perceptions of audiences can also be a normative yardstick for scholars to assess the appropriateness of the norms and decisions of an international court or tribunal like the ICC. To give an example, if victims do not perceive prosecutions as just, then this could be a reason for scholars to question whether these prosecutions are really offering what is intended to be delivered. In other words, ‘justice misperceived’ may be equated with ‘justice denied’. Scholars in political science, but especially in political philosophy and international legal theory, have developed different and often competing standards for the normative or moral legitimacy of international law, global governance, and institutions, including international courts and tribunals.26 In addition to criteria like procedural correctness and fairness, it is often stressed that the relevant audiences of an international court should perceive its workings as legitimate, whatever that may require.27 Studying the perceptions of the ICC, as this volume aims to do, thus also opens up an argumentative space in which the moral value of the Court can be defended or challenged. In other words, studies on the sociological legitimacy of the ICC can be part of the debate on its normative legitimacy as well.28
B Whose Perceptions Matter and How Can These Perceptions Be Studied?
When analysing the perceptions of international courts and tribunals, it is important to distinguish between different levels at which the effectiveness and appropriateness of their norms and decisions can be examined. Whose perceptions are we talking about and how can they be studied? In this volume, we broadly distinguish between three different ‘levels’ of perceptions: (1) state actors, (2) particular communities, and (3) individuals who have been directly affected by violence, such as victims and witnesses. Whereas the first level is the main field for scholars in International Law and International Relations (IL/IR), the second and third levels call for, among others, sociological, anthropological, historical, and social psychological approaches.
These three levels and associated approaches are, in many ways, inter-connected. For instance, what state actors have to say about an international court or tribunal will likely affect the perceptions of domestic audiences about its proceedings, and vice versa. Yet, as scholars we cannot problematize everything at once. The essays in this volume share an interest in the perceptions of the ICC in Africa, but they focus on different audiences. Lee Seymour’s chapter looks, for example, at the behaviour of African states and government officials (level 1); Sammy Gachigua’s chapter analyses how the ICC is portrayed for and by domestic audiences in Kenya through newspaper cartoons (level 2); and Chapter 12, written by Stephen Smith Cody, Alexa Koenig, and Eric Stover, studies how ICC witnesses have perceived and experienced their participation in the Court’s proceedings (level 3).
Furthermore, even when studying the same audience, one can take different paths in analysing their perceptions. The contributions in this volume work with different theoretical assumptions and methodologies, which are developed in response to dominant debates within their respective disciplinary field(s). For the purpose of this introduction, some general patterns in the theoretical assumptions and methodologies that are ‘applied’ throughout this volume may be identified.
First of all, on the level of state actors, the relevant contributions explore the interactions between African states and the ICC, and examine how the Court and its States Parties have responded to the concerns and accusations that African states have voiced, especially through the AU. An important theoretical question in this respect is what shapes the behaviour of states towards international courts? To what extent do perceptions and legitimacy play a role in states’ decisions to support or criticize the ICC?
As IL/IR scholarship remains strongly divided between different ‘isms’,29 there are many competing theories about the relations between states and international courts and tribunals.30 Some of the relevant approaches can generally be described as ‘rationalist’, in the sense that they assume that states are strategic unitary actors who behave instrumentally in creating and interacting with international judicial bodies. To the extent that perceptions play a role in these approaches, it is mainly as perceptions of utility. A second set of approaches may be labelled ‘constructivist’, in the sense that they focus on the role that norms, discourse, and culture play in constituting the interests of states and in shaping their behaviour towards international courts and tribunals. In constructivist models, perceptions of appropriateness are seen as constitutive of state interests and are therefore an important factor in explaining the behaviour of state actors. While discussions on the sociological or socio-cultural legitimacy of international courts are ‘constructivist’ at heart, since they point to perceptions of appropriateness, the various chapters that examine the interactions between African states and the ICC do not apply strictly ‘constructivist’ or ‘rationalist’ assumptions and methodologies. Instead, they combine both approaches in order to explore instrumental considerations behind the behaviour of African states as well as the perceptions of African states about the appropriateness of the ICC’s norms and decisions.31
Second, on the level of particular communities, this volume aims to study the Court’s ‘societal impact’ in Africa. How have the Court’s proceedings been perceived within different communities? How have domestic media portrayed the ICC? How has the Court’s involvement affected domestic politics and national legislation? And how, if at all, have its investigations and prosecutions helped to shape the public perceptions and narratives of local and regional conflicts?
Throughout this volume, the chapters apply various methods for answering these and related questions about the perceptions of the ICC in different African communities. One method that is used is population-based surveying; perceptions can be ‘measured’ and analysed with the help of public polls, focus groups, and semi-structured interviews.32 A second method is to trace the impact of the Court’s involvement in domestic politics and national legislation by studying policy documents, public statements and speeches, news reports, and secondary literature, as well as through conducting one-on-one interviews with involved officials. These sources can be collected and interpreted to ‘reconstruct’ and explain how the Court’s investigations and prosecutions have influenced political and legislative developments at the national or local level. A third method is to study how domestic media have portrayed the ICC, which likely has significant effects on public perceptions of the Court as well. There are various ways to go about this, including employing ethnography and discourse reconstruction by analysing TV or written news reports, but also by interpreting artistic objects like editorial cartoons that have appeared in national or local newspapers. In composing this volume, we have sought to include contributions that apply different methods in order to show some of the ways in which scholars have studied the impact of the ICC in particular African communities.
Finally, at the level of individuals who have been directly affected by violence, we are interested in how they perceive either the ICC’s proceedings or other methods for achieving justice and how these perceptions might shape affective responses. This includes especially the witnesses and ‘victims’ that have participated in the Court’s proceedings, but we also consider the experiences of ‘victims’ with different local and regional justice mechanisms, such as the Gacaca courts in Rwanda. The main methods for studying the perceptions of witnesses and ‘victims’ are ethnographic, involving participant observation, semi-structured interviews, and focus groups.
In short, the collected contributions analyse the perceptions of different audiences in Africa and apply a variety of methods for studying these perceptions. By investigating how state actors, particular communities, and individuals that are directly affected by violence perceive the ICC, we highlight that the perceptions of the Court in Africa are multilayered. Ultimately, this demonstrates that the ICC’s fractious relationship with Africa is much more complex than the problematic – but powerful – image of a unified African continent with a common position on the ICC.
II Different Phases in the ICC’s Relationship with Africa
In pondering the different perceptions of the ICC in Africa, it is important to recognize that the Court’s relationship with the continent has changed significantly over time. One might characterize the shift from Africa’s initial support for the ICC to the current campaign of African states against Hague Justice as a result of how the political structures and uneven power relations that are embedded in the ICC’s legal framework have played out since the adoption of the Rome Statute in 1998. Inequalities are reflected in the rules and decisions of the ICC in various ways, including the nature of the crimes that are part of the jurisdiction of the Court, the nature of the mechanisms that are available to trigger the Court’s jurisdiction, and its strong focus on individual culpability for crimes that are fundamentally collective.
Remarkably, these and other socio-political factors that may influence perceptions of the ICC that are often overlooked in legal analysis. The reason for this is that legal questions easily lead scholars to disregard the socio-political foundations of ‘the law’ itself. As a result, in studying the Court’s rules and decisions, many legal scholars work on the implicit assumption that the negotiations on the Rome Statute were somehow part of a democratically driven process of consensus decision-making and that with the adoption of the Rome Statute all elements of politics were erased. A notable example of this way of thinking is the frequent heralding of the Rome Statute for revolutionizing the ways that people understand states’ responsibilities to ‘humanity’ (para. 2 of the Preamble).
To be sure, the Statute has created a new relationship between international and national forms of justice by, on the one hand, emphasizing that the ICC ‘shall be complementary to national criminal jurisdictions’ (para. 10 of the Preamble and Article 1) and, on the other hand, identifying the international, rather than the national, as the principal unit for acting out of humanitarian concern (para. 4 of the Preamble and Article 1). As envisioned in the Statute, ‘complementary’ is thus meant both as a nod to the primacy of the nation-state and to ensure that at least certain standards of international adjudication are used as an ultimate measure of justice. In practice, however, the complementarity regime of the Court also allows for a process of negotiation in which states are able or at least try to protect their interests. It is through this process of negotiation that the complementarity regime has set in place structures of inequality, because some states are simply better equipped to protect their interests in these negotiations than others.
With respect to Africa, one of the main challenges is that many African states have remained fragile since independence, with some even weakening under the leadership of African strongmen over the past fifty years. The reduction of state-supported social services combined with a rise in paramilitary formations has frequently led to violent struggles over governance. Many African states have suffered serious consequences from civil and inter-state warfare – wars that are often also the product of various local and international entities vying for economic possibilities within particular competitive domains, along with relentless population growth and other factors.
Of course, it cannot be overlooked that many African states and NGOs actively participated in the development of the Rome Statute. However, cloaked in the universalist language of the ICC, relations of dominance have privileged particular norms of ‘juridical justice’ over others. The reality is that during the negotiations on the Rome Statute, politically ‘weak’ states were rarely in positions to overpower ‘stronger’ ones. Moreover, as a matter of course, the relations between different types of states and international institutions derive, at least to a certain extent, from contests over the ‘the power to decide’. This power encompasses the ability to claim universal jurisdiction and to form alliances with international institutions, but also the capacity to implement amnesty laws and to defer to some notions of state sovereignty.
The path to international criminal justice in Africa has, all in all, come to mask an unequal distribution of power through a language of jurisdiction and law. This is not because the ICC is ’targeting Africans’; it is because the contemporary violence in Africa is actually symptomatic of a global problem of inequality over resource distribution and quests to control government. Thus, participation in the Rome Statute has not necessarily involved equality or the absence of state interests. Contrary to what many scholars assume, there is unevenness in the political structures of the ICC that remains central to the rule of law movement that it stands to represent.
In thinking historically about the negotiations leading up to the Rome Conference and the early practice of the ICC, there are particular moments and tensions that highlight turning points in the relationship between the ICC and Africa. These shifts can be characterized by three different phases: (1) the first phase represents the creation of the ICC’s political structures and points attention to the discussions over which crimes should fall within the Court’s jurisdiction; (2) the second phase underlines the triggers for ICC jurisdiction and the practice of self-referrals which initially led to a form of strategic cooperation between African states and the ICC; (3) the third phase is the ‘rediscovery’ of the socio-political roots of the ICC’s legal process by African states in the context of the indictment of al-Bashir in 2008 and more recently the cases against Kenyatta and Ruto. This phase is connected to the contemporary state of the Court’s relationship with Africa, in which the continued questioning of Hague Justice has spurred calls for a turn to other local and regional justice mechanisms in Africa.
A Phase 1 – Creating the ICC’s Political Structures: the Drafting of the Rome Statute (1980–2002)
There is no question, empirically, that African states were central participants in the formation of the ICC. Senegal was, for example, the first country to ratify the Statute, and South Africa implemented the terms of the treaty into its domestic legislation within the first five years of the Court’s existence.33 Despite the suggestion that participation and ratification imply enthusiasm for all aspects of the ICC system, it is also important to realize, however, that the making of the Rome Statute was a tumultuous process that involved negotiations, protests, pushbacks, and concessions.
An examination of this process begins with the recognition that the selection of the crimes that are now part of the Rome Statute is the result of political jockeying that took place over many years. As traced by Kamari M. Clarke, the original 1954 version of the ‘Code of Offences against the Peace and Security of Mankind’ was based on the laws and legal principles codified in the Geneva Conventions (1864–1949) and the Nuremburg War Crimes Trials (1945–1949).34 Later versions of the draft continued to incorporate principles based on treaties, tribunal decisions, and customary law rather than to progressively develop new practices into the Statute. In 1981, the International Law Commission (ILC) continued its work on the draft Code at the request of the UN General Assembly.35 By 1989, representatives from Trinidad and Tobago requested that the ILC resume the process of establishing an international criminal court to deal with the major drug-trafficking issues in the region.
Over the next decade, the process of drafting the Rome Statute passed through several stages of negotiation and refinement. The ILC used government reports in the drafting process to create the comprehensive Draft Statute for an International Criminal Court. In 1994, it presented a draft for the establishment of the ICC to the UN General Assembly, which convened the Preparatory Committee to advance the process to the next level.36 The Preparatory Committee met six times over the course of two years (1996–1998), during which it gathered feedback from national delegates, government reports, NGOs, and intergovernmental organizations.
At an early stage in this drafting process (1991), the ILC adopted a Draft Code, which identified twelve crimes that could become part of the jurisdiction of the ICC.37 Four years later, however, just before the Preparatory Committee was set up, the ILC’s Special Rapporteur omitted six of these twelve crimes in a subsequent draft.38 The omitted crimes included colonial domination and other forms of alien domination; apartheid; recruitment, use, financing, and training of mercenaries; wilful and severe damage to the environment; international terrorism; and illicit traffic in narcotic drugs. The Special Rapporteur gave several justifications for these omissions, with the most important being that if the court were ever to gain universal acceptance among nations, it would have to avoid crimes that were too controversial or too widespread.39
Once the revisions were completed, the Code was presented to a diplomatic conference, which eventually led to the adoption of the Rome Statute in 1998. After decades of debate, the crimes under the jurisdiction of the Rome Statute were ultimately reduced to four: genocide, war crimes, crimes against humanity, and the crime of aggression. It is this genealogy that has placed a particular category of crimes at the heart of the Rome Statute, and has led the ICC to focus on explicit forms and specific consequences of mass violence, rather than on its origins and underlying structures.
B Phase 2 – Jurisdictional Triggers: Self-Referrals and Strategic Cooperation (2003–2008)
After the ICC became operational in 2002, ‘the politics of referrals’ produced much of the Court’s ongoing focus on Africa. Encouraged by the OTP, Uganda and the DRC were the first two states to refer a situation for investigation to the ICC in 2003 and 2004. On first sight, these so-called self-referrals seemed to demonstrate a strong commitment of these states to the pursuit of international criminal justice. Yet, as the investigations unfolded, it turned out that their cooperation with the Court also had a ‘strategic’ character.
The first investigation that the ICC opened was the result of political consultations, if not negotiations, between the OTP and high-level Ugandan officials. In fact, it was together with President Yoweri Museveni that the Prosecutor announced in 2003 that his office would launch an investigation into crimes committed in the conflict in northern Uganda between the Ugandan People’s Defence Force and the Lord’s Resistance Army of Joseph Kony. In front of international media, the Prosecutor promised to investigate both sides of the conflict, but as the investigation proceeded, it became increasingly clear that the OTP would only focus on the LRA and would hardly consider the role of the Ugandan government.
The OTP’s second investigation, which was triggered by a referral of the government of the DRC in 2004, followed a similar trajectory. This referral resulted in the indictment and arrest of several high-ranking rebel leaders and politicians, including Thomas Lubanga, who became the first accused before the Court. However, the investigation never targeted anyone close to President Kabila, creating the perception that, like the referral of Uganda, the investigation into the DRC was based on an unspoken political deal that the OTP would not target the heart of the Congolese government.40
Ultimately, these first investigations and prosecutions triggered perceptions of one-sided prosecutions and raised questions about ‘statist justice’, which prioritizes states over non-state actors that cannot refer situations to the Court. Most importantly, it was asked whether a government that may itself be involved in international crimes should be the one to refer situations for investigation to the ICC. Over time, and in cases of post-election violence, the perceived problem also became one of ‘victor’s justice’. In this sense, victor’s justice is the idea that the leader to win a given embattled election surrounded by violence is the one to refer its opponents to the ICC, as seen in the more recent case of Ivory Coast (2011).41 As African states engaged in strategic cooperation with the ICC, it thus became evident that these referrals could undermine the Court’s legitimacy. What is more, they produced a terrain of ICC selectivity, as the self-referrals of Uganda, the DRC, and later the Central African Republic (number I, 2007) led the Court to focus, almost exclusively, on African cases.
C Phase 3 – Rediscovering the Political structures of the ICC: The Cases against al-Bashir, Kenyatta, and Ruto (2008–Present)
The third and most recent phase that can be identified in the Court’s relationship with Africa is characterized by active opposition of African states against the ICC, and in particular against the prosecution of African presidents.42 This campaign, which has been led by the AU, has to be understood in relation to various juxtapositions – first of all, the reality that the Court and its supporters have repeatedly stated that they cannot take political considerations into account, and second that it has often been argued that the ICC’s involvement with international crimes in Africa is what African states signed up for when ratifying the Rome Statute.
After the Prosecutor announced in July 2008 that he would seek to indict the Sudanese president, al-Bashir, many African leaders called upon the Security Council to defer his prosecution by claiming that this step undermined the promotion of peace and stability in Darfur. Although back in 2005 several African states had supported the decision of the Security Council to refer the situation in Darfur to the Court, they now portrayed the Prosecutor’s decision to indict a sitting African Head of State as a very dangerous political step.
Regardless of whether their concerns were genuine, the heart of the problem was that the Rome Statute was conceptualized as a voluntarily accepted treaty to which Sudan was not a party. While one of the central principles of international law is that without their consent, treaties do not create rights or obligations for non-involved states (pacta tertiis nec nocent nec prosunt), non-state Parties may still have legal obligations in relation to the ICC when a situation is referred by the Security Council. To be sure, most African states have accepted this legal logic and the responsibilities therein. Yet, the manner in which the Security Council decided to exercise its powers, by deferring and referring some cases and not others, revived concerns of African states about the political selectivity that is embedded in the Rome Statute through the Council’s powerful role.
In addition to the failed deferral requests for al-Bashir, the unsuccessful attempts to refer the situation in Syria to the ICC is a tragic case in point. Over recent years, Syria has been engulfed in a violent conflict, with over 6 million internally displaced and more than 2 million refugees, and a death toll surpassing well over 100,000. Both government forces and non-government armed groups have committed widespread attacks, including murder, rape, torture, and enforced disappearances.43 In response, sixty-five states, of which several were African, co-sponsored a draft resolution in May 2014 asking the Security Council to refer the situation to the ICC. This proposal was vetoed, however, by China and Russia, revealing the strong influence of political interests in the dynamics between the Security Council and the ICC.
We find more examples of concerns that African states have voiced about the political structures of the Rome Statute and the ICC’s alleged selectivity with the cases of Uhuru Kenyatta and William Ruto. During an extraordinary AU Summit in October 2013, the AU Assembly responded to the scheduled start of Kenyatta’s trial with a decision that insisted on the relevance of official capacity in the context of international investigations and prosecutions. As their decision read, ‘to safeguard the constitutional order, stability and integrity of Member States, no charges shall be commenced or continued before any International Court or Tribunal against any serving AU Head of State or Government or anybody acting or entitled to act in such capacity during their term of office’.44
This decision was followed by a second important event, the already-mentioned special segment during the annual meeting of the ASP in November 2013 on ‘the indictment of sitting Heads of State and Government and its consequences on peace and stability and reconciliation’. This special segment was organized to discuss, amongst others, an amendment that has been introduced by the AU to reinstate immunities for sitting heads of state in the Rome Statute. While this proposal has so far failed to gain any meaningful support, the special segment of the ASP and the extraordinary meeting of the AU did lead to the adoption of special rules on presence at trial for senior officials, and six months later to the inclusion of an immunity provision for sitting heads of state in the AU’s protocol for a Criminal Chamber of the African Court. This shows that the ‘rediscovery’ of the political structures of the ICC has encouraged African states to seek a revision of these structures and to consider possible alternatives outside the legal order that the Rome Statute constitutes.
D Contemporary Status – 2015/2016
What the different phases in the ICC’s relationship with Africa highlight is an increased reluctance towards Hague Justice. To be sure, various African states continue to believe that the ICC can play an important role in Africa, as exemplified by the recent self-referrals of Mali (2013) and the Central African Republic (number II, 2014). Yet, the battles over the cases against al-Bashir, Kenyatta, and Ruto, and accusations of politicization and selectivity and the perceived unequal politics of the United Nations Security Council (UNSC) have moved many within the AU to turn against the ICC, which has recently sparked serious threats of an African mass withdrawal.
Beyond African states, the turmoil surrounding the ICC’s involvement in Africa has also led African scholars, NGOs, and victims of mass atrocity crimes to doubt the Court’s ability to satisfy their perceptions of justice. In response to the ICC’s track-record in Africa, they have raised questions about whether violence should be managed by a court outside the African continent and whether judicial action always advances the overall process of post-conflict reconstruction. All this has spurred calls for alternative local and regional justice mechanisms that may better serve ‘African’ perceptions of justice. The questioning of the appropriateness of international criminal proceedings has thus unfolded a new terrain for interrogating what justice is and what mechanisms are best suited to its procurement in Africa and beyond.
III Beyond the ICC: Local and Regional Justice Mechanisms in Africa
Politicians, scholars, and practitioners have long been preoccupied with the question of how mass atrocity crimes should be dealt with in the process of post-conflict reconstruction.45 What makes this question extremely complex is not only the devastating impact that mass violence has on the functioning of societies, but also that there are strongly competing perceptions of what ‘justice’ requires in this context. Moreover, persons who carry responsibility for mass atrocity crimes might still hold power in a post-conflict society.
In the aftermath of mass atrocities, criminal proceedings tend to focus on punishing those who have violated existing societal norms (retribution) and on preventing future violations (deterrence). However, from the perspective of restoring and reconciling societies, different approaches to justice might be preferred.46 While the retributive element of criminal proceedings has a liberalist focus on establishing criminal responsibility for individuals, restorative approaches are based on relational perceptions of justice. At their core, restorative approaches are not so much concerned with ‘responding to wrongs but rather with the harm and effects of wrongs on relationships at all levels’.47
Even though they do not necessarily contradict one another, retributive and restorative approaches to justice can be at odds with each other, especially when amnesties are included in the reconciliation process. In this sense, questions about how to balance retributive and restorative approaches to justice are closely linked to the (in)famous ‘peace-versus-justice’ debate.48 In post-conflict situations where societal tensions are high and the judicial system may not function properly, the need for a prompt resolution of disputes is critical. As perceptions of impunity may be a catalyst for societies to return to conflict-based solutions, many have argued that (legal) accountability is of utmost importance.49 Yet, in response, others have argued that it is not for nothing that immunity measures like amnesties have long fulfilled a key role in post-conflict reconstruction.50
Since the early 1990s, international criminal justice has gained a prominent place in thinking about post-conflict reconstruction. However, in recent years, many scholars have also become more critical about the role of criminal proceedings in moving conflict-torn societies forward.51 Carsten Stahn has characterized this shift in thinking as a transformation from faith to fact.52 International criminal justice is now more and more perceived as one specific measure among a range of judicial and non-judicial options, which all carry the potential to assist societies in coming to terms with past atrocities. In this regard, the focus has increasingly moved from top-down and one-size-fits-all models towards calls for a variety of mechanisms and tools.53 This more plural thinking about post-conflict reconstruction acknowledges the limits of international criminal justice and departs from the idea that there are significant advantages to justice mechanisms that are more culturally embedded and locally owned than international criminal proceedings.
The shift in thinking about post-conflict reconstruction has found much inspiration in how African states have sought to restore societies from past abuses in the course of the last two decades. Throughout the 1990s, Africa has served as ‘a vast testing ground for new policies to address impunity, seek truth and justice, and enable reconciliation in fractured societies’.54 In an attempt to harmonize these various justice and accountability initiatives, the AU has recently ventured into developing an African Policy Framework on Transitional Justice. This framework, which will likely be endorsed during the AU Summit in July 2016, details a range of measures that may help to ensure peace, justice, and reconciliation on the continent.55 In laying down minimum standards and benchmarks, the framework is meant to serve as a guide for African countries in transitional processes and underscores that alongside formal systems of criminal justice like the ICC, other mechanisms can also help in dealing with mass atrocity crimes.
The AU’s recent interest in alternative justice mechanisms is not unrelated to Africa’s embattled relationship with the ICC. However, it would be a mistake to simplify the AU’s focus on alternate forms of justice as a mere by-product of its campaign against the Court. Instead, the development of an African Policy Framework on Transitional Justice, as well as the early formation of an African Criminal Court, should be seen in the context of the above-mentioned shift in thinking about the role of international criminal proceedings in post-conflict reconstruction and the existing tradition of alternative justice mechanisms in Africa.
Below, we briefly introduce some of the different approaches that have been taken in response to mass atrocity crimes in Africa in the course of the last two decades in order to foreshadow the chapters in this volume that deal with several of these different mechanisms. For this purpose, we a draw a distinction between: (a) traditional justice mechanisms, (b) truth commissions,56 and (c) domestic and regional prosecutions.57
A Traditional Justice Mechanisms
In Africa, so-called ‘traditional’ justice mechanisms (though in most cases significantly altered by the colonial and post-colonial state) continued to exist alongside and at times in opposition to formal judicial structures. These mechanisms, which generally aim to settle disputes in a peaceful manner, are community-based and involve informal and ritualistic practices.58 The importance that these proceedings place on communal interdependence is generally linked to the African philosophy of Ubuntu, whereby ‘individual rights cannot be meaningfully exercised in isolation of broader community rights’.59 At the heart of this philosophy is the idea that the breaking of individual social relationships can cause conflict within the community and should therefore be restored.60
Although most traditional justice mechanisms are designed to deal with less complex community-based disputes than mass atrocity crimes, the underlying tradition and societal values have in several cases incorporated elements of the national judicial structures and (international) legal notions in order to deal with these crimes. One can speak, in this regard, of ‘tradition-based justice mechanisms’. These mechanisms focus on reconciliation and restoration in the form of truth-telling and forgiveness, as witnessed in the case of the Acholi of northern Uganda, and have been successful in ensuring the peaceful reintegration of ex-combatants in conflict-torn societies, like in the case of the Curanderos in Mozambique or the Kpaa Mende in Sierra Leone. In the case of Rwanda, the local Gacaca processes went a step further as it integrated formal prosecution and restorative justice to complement the International Criminal Tribunal for Rwanda (ICTR) and domestic trials.61
B Truth Commissions
In the past decades, several African states have also established truth commissions, which have functioned alongside or as an alternative to criminal proceedings at the domestic or international level.62 Although the mandates of the respective truth commissions differ, they are generally state-authorized bodies with a temporary nature that investigate and document past atrocities that occurred during a specified period. What truth commissions can offer, and which criminal trials can only provide to a certain extent, is an exposure of the historical narrative.63 Some of these truth commissions have been combined with amnesties, as witnessed in the case of South Africa, or have been used as an alternative to official trials, like in Ghana and Liberia. Other truth commissions have, however, operated alongside domestic or international prosecutions, such as in Sierra Leone (through the Special Court for Sierra Leone) and Ivory Coast (through the ICC).64
Many of these commissions have been praised for creating an historical account of what happened during the course of a conflict. What is important to keep in mind, however, is that whereas truth commissions may indeed promote truth telling, reconciliation, and peace building, they may also be established to further the political agenda of a new regime. To give an example, Ugandan president Museveni allegedly used the truth commission in 1986 to discredit the former government.65 In this sense, a poorly executed truth commission may actually be worse than having no truth commission at all, at least to the extent that the interest of the ‘vanquished’ are concerned.66
C Domestic and Regional Prosecutions in Africa
A third alternative or complement of international criminal proceedings are domestic and regional prosecutions. Within Africa, a prominent example of domestic prosecutions are those held in Rwanda in the aftermath of the 1994 genocide. At least 10,000 perpetrators have faced trial in Rwanda and many cases are still ongoing or outstanding.67 Another example, albeit on a vastly smaller scale, can be found in the DRC, where the Congolese military tribunals have expanded their jurisdiction and have held over twenty trials for war crimes and crimes against humanity since 2006.68
In contrast to these important examples of successful domestic trials for perpetrators of mass atrocity crimes, in many other post-conflict societies in Africa formal structures have been destroyed to the extent that domestic prosecutions have been impossible. Moreover, the criminal justice settings in many African states are not designed to deal with the scale and specific nature of mass atrocity crimes.69 In the absence of proper national judicial structures and/or the political will to prosecute, there have hardly been any alternative possibilities in the region to prosecute perpetrators. The failure of national judicial structures has left the prosecution of mass atrocities like those committed in Uganda, Sudan, or Sierra Leone to the ICC or to specialized international tribunals. The only example of regional prosecution has been the establishment of the Extraordinary African Chambers in 2013 as a hybrid court in the Senegalese justice system, which came into being after an agreement between the AU and Senegal to try former president of Chad, Hissène Habré, and others who were allegedly responsible for mass violence in Chad between 1982 and 1990.70
On the sub-regional level, the East African Community (EAC) has ventured into providing the EAC Court of Justice (EACJ) with criminal jurisdiction over crimes against humanity, but this process has recently been halted by Kenya and Tanzania. These states have opposed such expansion on the grounds that four of the five EAC Member States (Kenya, Tanzania, Uganda, and Burundi, with Rwanda being an exception) are also States Parties to the Rome Statute.71 These considerations have not, however, prevented African States Parties to the Rome Statute from accelerating the establishment of the ‘African Criminal Court’ as a regional alternative to the ICC. As noted, in June 2014, the AU adopted the Amendment Protocol to expand the jurisdiction of the African Court to include a broad range of economically motivated crimes seen as being root causes of Africa’s violence (e.g. mercenarism, toxic dumping, plunder of natural resources, and drug trafficking), in addition to the four core crimes that form the subject matter jurisdiction of the ICC. Including both individual and corporate criminal responsibility, the Amendment Protocol represents another attempt of African states to redefine the structures of international criminal justice.
The expansion of the jurisdiction of the African Court has been criticized by some as an attempt to secure regional exceptionalism in the face of the ICC’s current investigations and prosecutions in Africa.72 However, its development is not just a result of the embattled relationship between the AU and the ICC.73 Establishing a regional criminal justice institution is part of a broader commitment of the AU to put in place a comprehensive continental framework which includes mechanisms, instruments, and institutions that seek to resolve conflicts, ensure accountability, and promote peacebuilding, justice, and reconciliation. The so-called African Peace and Security Architecture and the African Policy Framework on Transitional Justice are driven by a desire to develop continental policies that direct the region’s path to peace and justice on African terms. In providing a regional venue to prosecute mass atrocity crimes, the establishment of an African Criminal Court should be seen as a novel addition to the existing range of African-specific transitional justice measures that have recently been outlined in the Policy Framework.
What all this shows is that an African vision of justice entails much more than Hague Justice alone. Procedures before the ICC are, in this vision, not necessarily the best way to ensure that justice is perceived to be done in communities that seek to recover from mass atrocities. While the existence of many alternative justice mechanisms predates the establishment of the ICC and are part of a much broader agenda, the tension between African states and the ICC has given further momentum to the AU’s efforts to promote the plurality of options for African states in dealing with mass atrocity crimes. With the simultaneous expedition of the establishment of an African Criminal Court and an African Policy Framework on Transitional Justice, the AU ultimately seeks to advance African perceptions of justice, while ensuring that the decisions on how to move forward remain ‘African owned’.
IV An Overview of the Volume
This volume seeks to explore and understand the different perceptions of the ICC in Africa. It is organized into four thematic sections that consider the origins of the Court’s fractious relationship with Africa (Part I), the interactions between African states and the ICC (Part II), the impact of the ICC in different African communities (Part III), and the potential and actual role of other local and regional justice mechanisms in Africa (Part IV).
Part I emerged as a set of four keynote lectures that were given at the conference in The Hague that invigorated the themes around this book.74 It opens with a contribution by Shamiso Mbizvo – international lawyer in the Jurisdiction, Complementarity and Cooperation Division in the Office of the Prosecutor (OTP) of the ICC – discussing the relationship between the ICC and Africa from the perspective of the Court. Without disregarding the current constraints, Mbizvo recalls Africa’s support for and cooperation with the ICC, as well as the active involvement of Africans in leading the Court. She further stresses the continued demand to do more for survivors of mass atrocities in Africa and challenges the alleged African bias of the Court by highlighting what the OTP is doing for non-African constituents of the ICC.
The next three chapters in Part I respond to Mbizvo’s contribution. They offer supplemental, overlapping, as well as competing perspectives on the roots of the current tensions between Africa and the ICC. Makau W. Mutua begins with a critical assessment of the AU’s claims of the Court’s selectivity and ‘race-hunting’. His contribution supports Mbizvo’s assertion of the importance of international criminal justice but is also productively critical of it. He is even more critical, however, of the AU’s position. For by exposing the AU’s hypocrisy and contradictions (where on the one hand it is promoting democracy and human rights, and on the other it is enabling impunity by insisting on the insertion of immunity for African heads of state in the Amendment Protocol of the African Court), he argues that our perceptions of the ICC and AU justice need to be rethought.
Solomon Dersso focuses in turn on the politics and limits of international criminal justice, which he sees as the main catalyst for the embattled position of the ICC in Africa. In contrast to Mbizvo and Mutua, Dersso traces the Court’s Africa problem to the Western bias of international law and to the power structures of the international political system. He singles out a number of issues that need to be addressed to ease the relationship between the ICC and Africa. Most importantly, Dersso argues that peace and justice demands need to be balanced in a more sophisticated manner, in order that room is given to national policy in articulating transitional justice processes, and that the limits of prosecutorial justice have to be acknowledged.
In the last chapter on the origins of the Court’s fractious relationship with Africa, Kamari M. Clarke explores the relationship between ICC and anti-ICC narratives and how history is often narrativized to provide perceptions of what is real. In foregrounding the way that law is often mistaken as the only route to justice, Clarke both responds to Mbizvo’s contribution as well as to prominent anti-ICC narratives by highlighting how perceptions of justice are shaped by affective constructions. By detailing the manner in which members of the OTP have narrowed the meaning of justice through the presumption that justice must be driven by judicial mechanisms and by examining Uhuru Kenyatta’s rhetorical strategies, Clarke insists that historical narratives are often deployed in order to conjure sentimental reactions towards the production of the ‘real’. She ends by suggesting that we need to rethink the way we understand perceptions of justice through an understanding of the strategic production of emotional climates in daily life.
Part II of the volume examines the interactions of African states with the ICC. It includes three chapters that seek to expose how and why African states have criticized the Court, how this has affected the legitimacy of the ICC, and how the Court and its supporters have responded to their concerns and accusations.
First, Lee Seymour studies the repeated accusations of hypocrisy levelled by the AU and individual African leaders against the ICC, and explains how this rhetorical action undermines the Court’s legitimacy. After charting the shifts in the ICC’s (dis-)engagements with African states, Seymour assesses the interests that the charges of hypocrisy serve and identifies the ways in which the Court has tried to address these accusations.
Next, Paul Schmitt provides a historical case study of France’s close connections with the ICC and its strong presence in many African states. In light of the criticism of African states that the Court has become a neo-colonial institution, Schmitt’s contribution gives insight into how France’s post-colonial practice of maintaining influence in its former African colonies has threatened the Court’s legitimacy.
In the final chapter of Part II, Abel S. Knottnerus examines the concerns that the AU has voiced about the prosecution of African presidents by the ICC. After explaining that the AU’s campaign is powerful in its ability to influence how the Court is perceived in Africa, Knottnerus analyses the different ways in which the ICC and its States Parties have tried to counter the arguments that the AU has advanced against the prosecution of al-Bashir, Kenyatta, and Ruto. He concludes that despite recent efforts to improve the Court’s relationship with Africa, the AU will likely continue to oppose the prosecution of African presidents and will as such put further pressure on the legitimacy of the ICC.
Part III looks beyond the interactions between African states and the ICC and considers the impact of the Court in different African communities, and especially in Kenya and the DRC. It includes four chapters that reflect on the perceptions of the ICC in Africa from different angles, including studies on editorial cartoons and voting behaviour, as well as on how the ICC has shaped domestic politics, narratives of conflict, and the experiences of witnesses.
In the opening chapter, Sammy Gachigua offers an innovative take on the ICC’s presence in Kenya through the analysis of editorial cartoons in national Kenyan newspapers. Gachigua illustrates how the cartoons have documented the evolving public perception of the ICC in Kenya from a highly appraised to an ambivalent institution.
This change in public perception in Kenya also comes to the fore in the contribution of Thomas Wolf. Using data from national survey research as well as material from local media and conducted interviews, Wolf argues that demands for accountability have been inseparable from the contest for political power in Kenya. This not only facilitated the electoral triumph of Kenyatta and Ruto in 2013, but has also undermined the Court’s standing among many Kenyans.
How the ICC can affect domestic politics is further discussed in Patryk Labuda’s contribution on the Court’s involvement in the DRC. His chapter traces the impact of the ICC’s proceedings on domestic political and military developments, before shifting attention to the military justice system’s uses of international criminal law. Labuda further considers the challenges of enacting judicial reform, and in particular the attempts to establish a hybrid war crimes tribunal for past atrocities in the Eastern part of the DRC.
In the last chapter of Part III, Stephen Smith Cody, Eric Stover, and Alexa Koening present empirical data on the experiences of witnesses who testified in the cases against Thomas Lubanga and Germain Katanga. They demonstrate how failures to adequately protect sensitive witnesses and to prevent alleged witness intimidation and tampering can undermine criminal prosecutions. In this light, they propose new mechanisms that will have to ensure the ongoing evaluation of witness experiences.
Part IV of this volume looks beyond the ICC by focusing on local and regional justice mechanisms in Africa. The four chapters in this last thematic section highlight the limitations and possibilities of different responses to mass atrocities on the African continent, including local justice mechanisms in Darfur and Rwanda as well as the newly established ‘African Criminal Court’.
This part opens with an account on local justice mechanisms in Darfur. Karin Willemse introduces the different ‘tribal judicial institutions’ in the context of Sudanese national politics. In addressing the question whether, by providing reparations through restorative justice, Darfur victims are better served than through retributive justice, she highlights the importance of the historical political contexts in which these African forms of justice operate. Willemse argues that the relevance of tribal judicial institutions to the Darfur population can only be properly understood when they are considered in relation to historical legal regulations regarding access to land and struggles over citizenship.
In the second chapter, Kristin C. Doughty juxtaposes the locally rooted trials in Gacaca courts with the proceedings of the ICTR, specifically focusing on the lens of interpretation. She uses the technical task of interpretation at the ICTR and the lack of a structural corollary before Gacaca courts to examine the relationship between linguistic and legal interpretation. The focus on interpretation assists in moving beyond the false dichotomy wherein international law is equated with objective neutrality while local courts are equated with a politicized bias, and allows one to trace how in all legal systems certain forms of power and expertise privilege some interpretations over others.
The chapter by Abel S. Knottnerus and Eefje de Volder analyses the early formation of an ‘African Criminal Court’. This chapter seeks to counter the emerging image of the African Court as a deliberate attempt of African leaders to weaken international criminal justice. Knottnerus and De Volder explain why it is too simplistic to depict the proposed Criminal Chamber of the African Court as ‘an anti-ICC Court’, and why warnings for a future ‘clash’ with the ICC are exaggerated. Instead of a threat to international criminal justice, they argue that the adopted Amendment Protocol may actually help to articulate an African vision on international criminal justice.
In the last chapter of Part IV, Clare da Silva and Sara Kendall explain why state responsibility should be an important part of the responses to mass atrocity crimes in Africa. Their contribution highlights that one of the key material conditions of possibility of these crimes – the global trade in arms – has been largely absent in the discussions on criminal accountability and transitional justice. In this light, they explore how the recently adopted Arms Trade Treaty provides a regulatory framework that has the potential to foster greater state responsibility for ensuring that the international trade in conventional arms does not contribute to the commission of mass atrocity crimes on the African continent.
Finally, in the Epilogue, we draw out the key insights of the book and consider possibilities for future research by highlighting the importance of studying the different perceptions of international courts and other justice mechanisms. Ultimately, the volume seeks to unravel the complexity of the Court’s fractious relationship with Africa by exploring the multilayered perceptions of the ICC’s involvement in different African communities. We see this approach as key to other contemporary issues within the realm of international law and politics. In order to understand and possibly improve the functioning of international courts and alternative justice mechanisms, we argue that one needs to take perceptions of justice seriously, because ‘justice misperceived’ can eventually turn into ‘justice denied’.
