1. The Malabo Protocol: Peace and Justice Sequencing
One of the central transitional justice debates has been encapsulated by the phrase, ‘peace versus justice’.Footnote 1 Today, the interplay between ‘peace and justice’ remains one of the most difficult debates, especially in Africa. Those adopting a more fundamentalist approach to prosecution typically hold the view that retributive justice prevents impunity of the perpetrators through direct punishment, and serves to deter those inclined to commit future atrocities.Footnote 2 They typically articulate arguments that insist that: (1) the destabilizing effects of pressing for accountability are overstated and they may in fact prevent further atrocities; (2) the failure to prosecute reinforces a culture of impunity, which has negative long term impacts on peace; (3) international law obliges countries to prosecute war crimes, genocide, and crimes against humanity; and (4) fair trials can assist in acknowledging victims’ suffering while at the same time creating a legitimate historical record that protects against revisionism.
On the opposing side, various scholars argue that international criminal tribunals often impede peace settlements and prolong atrocities because leaders facing threats of prosecution no longer have incentives, such as immunity, to end atrocities and therefore continue to prolong conflicts to keep themselves in power.Footnote 3 By calling into question the meaning of justice, they suggest that justice does not always require prosecutorial action.Footnote 4 They typically argue that: (1) prosecutions are an obstacle to peace talks and do not, in fact, act as a deterrent to future atrocities; instead they escalate them; (2) they are expensive and take a long time to complete; (3) they do not necessarily serve the interests of the victims or individual states; and (4) they do not address the root causes of violence.
While these two camps seem to represent opposing ends of the debate, the reality is that there exists no binary choice between peace on one hand and justice on the other.Footnote 5 The juxtaposition highlights a ‘paradox’ rather than a debate.Footnote 6 This paradox is important to highlight as the debate is imbued with an artificial division between peace and justice, politics and adjudication. With such a paradox in mind, this chapter explores the way that the Malabo Protocol for the African Court for Justice and Human and People’s Rights (African Court) conceptualizes justice through a more gradual approach that is predicated on allowing time for peace building and reconciliation in African transitional justice settings.Footnote 7 According to this logic, the false tension between peace and justice is collapsed into a ‘transitional justice’ strategy that requires a different logic for understanding the development of Africa’s justice strategies underway.Footnote 8 Making sense of the conceptualization of peace–justice sequencing in the Malabo Protocol for the African Court involves recognizing that the authors of the protocol saw that the political stakes were higher in transitional contexts, making the conflict between peace approaches and legal justice approaches further pronounced. Yet, this development in the crafting of the Malabo Protocol has also unfolded alongside the profound rise in prominence of international prosecutorial approaches to violence that have led to the re-emergence of the debate concerning whether the interest of justice should yield to the need to secure peace in situations of conflict or transition periods.Footnote 9
The duty in international law to prosecute serious international crimes was first established in a series of treaties recognizing specific atrocities as international crimes that states had a duty to prosecute under international law. The Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) recognizes genocide as an international crime, imposes individual responsibility, and requires States Parties to try and punish perpetrators of genocide.Footnote 10 The Conventions require States to ‘search for persons alleged to have committed, or have ordered to be committed … grave breaches [of the Geneva Conventions] … and bring such persons, regardless of their nationality, before [their] own courts.’Footnote 11 ‘Grave breaches’ include, inter alia, wilful killing, torture or inhuman treatment, biological experiments, and making civilian populations or individual civilians the object of attack.Footnote 12 Similarly, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment emphasizes the ‘grave nature’ of the crime of torture requiring States Parties to prosecute or extradite its perpetrators.Footnote 13
In addition, the duty to investigate and prosecute has been reaffirmed on several occasions by the United Nations Security Council and other UN bodies, as well as international, regional, and national courts in finding amnesties for war crimes and crimes against humanity unlawful.Footnote 14 This duty has coalesced in the Rome Statute of the International Court, which defines international crimes and emphasizes ‘the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.’Footnote 15 The duty has been recognized with such a high degree of prevalence that the International Committee of the Red Cross asserts that there is an obligation under customary international law for states to investigate and prosecute international crimes.Footnote 16
The Malabo Protocol, and the eventual effort to extend the criminal jurisdiction of the African Court and bring it into force has raised a new set of issues related to how to address the interplay between various peace–justice dilemmas in post-violence contexts. This debate has been clarified with an articulated framework for Transitional Justice in Africa advocated by the Panel of the Wise and promoted by the African Union. Its relevance is critical in Africa,Footnote 17 where a number of states have protested the Prosecutor of the International Criminal Court’s (ICC) decision to investigate and issue arrest warrants in the midst of peace talks. However, as developed in the operationalization of the ICC, though the drafters of the Rome Statute envisaged the need for the ICC to yield to peace processes through Article 53(2)(c), which requires the Prosecutor to consider whether pursuing a case would be ‘in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims, and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime,’Footnote 18 article 53(2)(c) provides an opportunity for the ICC Prosecutor to consider political matters in the pursuit of justice – especially in relation to ongoing peace negotiations.Footnote 19
However, the ICC Prosecutor has moved away from such an interpretation, taking the position in a 2007 policy paper that the interest of justice ‘should not be conceived of so broadly as to embrace all issues related to peace and security’ and stating that the ‘Office will seek to work constructively with and respect the mandates of those engaged in other areas but will pursue its own judicial mandate independently.’Footnote 20 A decade later, it does not appear that the Office of the Prosecutor plans on broadening its position on ‘interests of justice.’Footnote 21
However, the emerging African system being led by the AU is distinguishing itself in this regard. There is a vocal insistence that a premature emphasis on prosecutions can frustrate the search for a peaceful resolution, leading to continued conflict that prolongs the misery of affected communities.Footnote 22 There is a recognition that a leader – even one compromised by complicity in the perpetration of abuses – may be necessary to bring a faction to the negotiating table, maintain unity, and convince the faction to accept the negotiated resolution to the conflict.Footnote 23 The second position is that criminal indictments may undermine the will of such leaders to pursue peace and entrench warring factions in their positions, complicating peace processes.Footnote 24 And third, premature prosecutions may exacerbate atrocities.Footnote 25
A recent study by Michael Broache found that that rumours that a rebel leader in the Democratic Republic of Congo was about to be arrested pursuant to an ICC arrest warrant motivated the leader to foment a new revolt that resulted in ‘serious atrocities,’ including murder, pillage, and sexual violence.Footnote 26 And in Uganda, the issuance of ICC indictments against leaders of the Lord’s Resistance Army not only caused a temporary halt to peace negotiations, but was also cited, along with arrest warrants, as the reason a final peace agreement was never signed.Footnote 27
The conflict in Northern Uganda initially began as a rebellion of the Ugandan People’s Democratic Army (UPDA), a group of army officers who fled Uganda Kampala in 1986 when President Yoweri Museveni took power after a five-year war.Footnote 28 The rebellion eventually transformed into a cult-like rebel group known as the Lord’s Resistance Army (LRA), led by Joseph Kony.Footnote 29 With financial and military support from the Sudanese government, the LRA increasingly began targeting civilians in Northern Uganda, many of whom were from the Acholi tribe, who they perceived to be government supporters.Footnote 30 The LRA crimes have been widely documented and include murders, abductions, rapes, forced marriage, and mutilations. In December 2003, the government of Uganda referred the situation to the ICC because it could not arrest the LRA, which was operating from bases in South Sudan.Footnote 31 The prosecutor opened an investigation on 29 July 2004, and on 8 July 2005, the ICC issued arrest warrants for five senior members of the LRA.Footnote 32
At the same time, ongoing peace negotiations were also taking place through meetings between Betty Bigombe, an Acholi member and government minister, and the LRA.Footnote 33 In 2005, the LRA moved its base to the DRC, pursuant to the signing of the Comprehensive Peace Agreement (CPA) between northern and southern Sudan.Footnote 34 In 2006, the LRA and the Ugandan government signed the first Cessation of Hostilities (CoH) Agreement.Footnote 35
The subsequent negotiations lasted two and a half years and were fraught with setbacks. The CoH was continuously breached, the LRA did not honour timelines to meet and disarm, and Kony refused to sign any peace agreement until arrest warrants of the ICC were withdrawn.Footnote 36 In response, the Ugandan government provided a variety of alternatives to all of the perpetrators, ranging from blanket amnesties to punishment for only those who committed the most serious crimes.Footnote 37 As part of this strategy, the government also raised the issue of a deferral under Article 16. The government promised that it would approach the UNSC to ask for a deferral of the proceedings if and when the LRA signed the final peace agreement.Footnote 38 Finally, on 29 June 2007, the government and the LRA signed the Agreement on Accountability and Reconciliation, with an annex to the agreement signed in February 2008. A final peace agreement was due to be concluded in late November 2008. It was not signed because Kony did not show up at the final signing ceremony.Footnote 39
Based on this and other evidence, scholars have concluded that although judicial action may sometimes have preventive effects on atrocities, it may also ‘backfire, generating perverse incentives for leaders to escalate violence.’Footnote 40
By contrast, countries such as Argentina and Guatemala demonstrate the potentially positive power of sequencing. During the transition from military dictatorship in Argentina, for example, the government worked to build a solid foundation for peace by strengthening democratic institutions.Footnote 41 Once that foundation was in place, the country’s amnesty laws were annulled, permitting victims to seek justice before the courts.Footnote 42 Similarly in Guatemala, the 1996 peace accords were accompanied by a national reconciliation law that provided amnesty for most crimes.Footnote 43 Instead of prosecutions, the country invested in truth commission, officially known as the Historical Clarification Commission.Footnote 44 It was not until 2009 that the Inter-American Commission on Human Rights observed that, under international law, the 1996 amnesty law could not be applied to serious human rights violations.Footnote 45 Four years later, the Guatemalan Constitutional Court, considering a different but similar amnesty law, held that amnesty decrees do not apply to genocide, crimes against the duties of humanity, and forced disappearances,Footnote 46 opening the door to prosecutions.Footnote 47
In keeping with the prioritization of peace and the sustenance of life, the African Union’s (AU) Panel of the Wise issued a statement in 2013 that declared that:
Africa has legitimate concerns and reservations about the modalities of implementing some provisions of the international criminal justice system today, but improving these mechanisms requires adherence to the core principles that undergird international law. In the increasingly fragmented and divisive atmosphere that characterizes the current debates on impunity, striking an appropriate balance between the demands of international law and those of national sovereignty will be one of the hallmarks of African statesmanship.Footnote 48
The Panel recommended the establishment of an ‘African Transitional Justice Framework’ (ATJF) which, inter alia would include a declaration that
peace, justice, and reconciliation are interconnected, mutually interdependent, and equally desirable. However, it is also equally self-evident that in an on-going conflict the most urgent desire to the affected population is to cease hostilities, restore peace and security. Nevertheless, when stability is restored and victims protected, there is need for concerted action to strengthen institutions, including creating new ones to deliver justice and hold certain categories of perpetrators accountable to consolidate the pursuit of sustainable peace.Footnote 49
The resultant ATJF recognizes that states have a ‘positive duty’ to satisfy the goals of transitional justice: truth, justice, reparations, institutional reform, and public accountability.Footnote 50 However, the ATJF acknowledges that these goals may be difficult for states to fulfil simultaneously, and recommends that
states should seek to develop complementary mechanisms sequencing them when appropriate rather than fulfilling certain legal obligations at the expense of others. Fulfilling these positive obligations should take account of broader policy objectives to achieve justice, such as ending the conflict or repression; restoring public order and stability; establishing democratic structures and the rule of law; dealing with the underlying causes of the conflict or repression; ending exclusion and discrimination, achieving equality, repairing broken relationships, obtaining compensation and restitution, rehabilitation, promoting reconciliation and sustainable peace as well as other similar objectives.Footnote 51
According to the ATJF, ‘Justice and peace’ … should not be seen as conflicting or contradictory forces. Rather, properly pursued, they promote and sustain one another. The question should not be: whether to pursue justice and accountability, but when and how. In reality, this emerging approach to the management of violence in Africa could be seen as being about keeping alive the possibility of justice and accountability and finding the right combination and right sequence in each specific context.’Footnote 52 By highlighting the importance of an inter-related justice architecture that includes economic justice, political justice (entailed in constitutional and other legal reforms) and justice for crimes committed from the perspective of criminal and reparative justice,Footnote 53 peace is seen as the first measure for the management of violence and the sustenance of life and is understood as establishing the pre-conditions for justice in Africa.
As outlined in page two of the report by the Panel, ‘Justice, peace, good governance, and reconciliation…thrive where sturdy and stable democratic values and impulses prevail, and where there is a culture of constitutionalism to constrain arbitrariness and abuse of power.’ From the violence of traditional empires, to colonial imperial rule, to new domains of territorial, legal, and social reordering, to contemporary postcolonial struggles, this pronouncement highlights a resolve to using politically relevant solutions to addressing violence in Africa. The Malabo Protocol for the African Court is seen as operating within this point of departure in which justice includes peace and is not separate from it. Such a formulation for addressing post-violence justice is emerging within an AU Transitional Justice framework and represents an intertwined conceptualization of justice with its commitments to life as a key locus through which peace–justice sequencing is taking shape.
Thus, the criminal jurisdiction of the Malabo Protocol is seen as one of many components of the AU transitional justice framework. This means that seeing the work of an African court with extended criminal jurisdiction to prosecute a small number of perpetrators deemed most responsible for mass atrocity violence must be seen as one of a range of tools available to intervene in conflict situations and re-establish peace, stability and reconciliation in regions recovering from mass atrocity violence. This approach compares with the debates related to peace–justice sequencing in relation to the rise of the international criminal accountability, especially in the context of the International Criminal Court (ICC), a court established to prosecute crimes committed by those deemed most criminally responsible. However, in contrast, as we shall see in Section two, the second half of the chapter will explore how justice explored through the myriad approaches to managing violence in Africa can be understood both as the application of various peace strategies embedded in larger socio-political architectures.
In examining the nature of the debates related to peace–justice strategies and reflecting on the predominant anti-impunity model being articulated by various prosecutorial mechanisms, this chapter will focus on the design of the African Court infrastructure underway. What we shall see is that the Malabo Protocol is structured to allow for significant nationally driven post-violence forms of closure toward the establishment of peace while also making available of diplomatic processes. One might say that the Protocol for the African Court allows for the frontloading of “political” action through peace–justice sequencing and includes two provisions in the Protocol – Article 34A(1) and Article 29 – that have their own internal mechanisms for the management of violence. Beyond these provisions, the AU transitional justice architecture privileges sequencing as an important way to conceptualize legal justice within the larger AU Transitional Justice strategy.
The legal issues related to Article 34A(1), 29 are worth highlighting because they underscore the Court’s position in the larger African Union framework and set the tone for the ways in which the African Union is likely to relate to the Court more generally. First, the Malabo Protocol amends article 29 of the Statute of the African Court of Justice and Human and Peoples’ Rights to permit two additional entities – the Peace and Security Council and the Office of the Prosecutor – to submit cases to the Court on any issue or dispute within the Court’s jurisdiction.Footnote 54 When combined with the pre-existing provisions in article 29 of the Statute, this would enable three types of entities to have broad access to the African Court on any matter within its jurisdiction: The State Parties to the Protocol, Certain organs of the African Union, namely the Assembly, the Peace and Security Council, the Parliament and Other organs of the Union authorized by the Assembly; and the Office of the Prosecutor.Footnote 55
Second, in Article 34A (1), the revised Statute of the African Court of Justice and Human and Peoples’ Rights requires the Registrar of the African Court to notify the Chairperson of the Commission of all criminal cases instituted before it.Footnote 56 When combined with article 49 of the Statute, such notice will enable the African Union, a continental intergovernmental body, and its various organs, to submit a request to intervene in a case if the organ believes it has an interest of a legal nature that may be affected by the decision in that case.Footnote 57
What we shall see is that The Malabo Protocol solidifies the status of the African Court of Justice and Human and People’s Rights as a key institution in the African Union’s larger peace and security architecture. By granting the Peace and Security Council, along with the Assembly and Parliament, the authority to bring, and the possibility of intervening in, a case before any chamber of the African Court, the Malabo Protocol helps to ensure that decisions about whether and when to bring cases before the Court are informed by the African Union’s wider efforts to prevent, manage, and resolve conflicts on the Continent.Footnote 58 These efforts recognize that criminal prosecutions, though important, are just one of many interventions that must be coordinated and carefully sequenced if there is to be a lasting transformation in countries emerging from mass atrocities. The Malabo Protocol facilitates that coordination and sequencing by providing the chief peace and security institutions of the African Union – the Assembly, the Parliament, and the Peace and Security Council – with a vital role in the initiation and continuation of cases.
The third section works through a number of examples to highlight successful representations of sequencing. What we see in the final section is that there is no single ‘one-size-fits-all’ approach to sequencing. Rather, a number of considerations should be reflected on that will affect the success of transitional justice/sequencing measures.
2. A Differentiated Approach to the Management of Violence
The African continent has experienced some of the worst atrocities of the modern era,Footnote 59 forcing its leaders to develop innovative and comprehensive institutions and strategies to prevent, manage and resolve conflicts.Footnote 60 Historically, the Organization of African Unity (OAU) held a policy of non-interference with the political affairs of other Africa states. However, this left the African continent without resources for managing mass violence crises (citation).
Shaped by constitutive act, the African Union of the post 2004 period has been engaged in shaping a new justice model for Africa that involves ways to operationalize peace and justice interests that directly contravene this model.Footnote 61 The African Union’s Constitutive Act that transformed the AU from the OAU outlines the existence of seven organs of the Union: The Assembly; Executive Council; Pan-African Parliament (PAP;Footnote 62) The Court of Justice; The Commission; Permanent Representatives Committee; Specialized Technical CommitteesFootnote 63; the Economic, Social and Cultural Council and Financial Institutions.Footnote 64 Article 6 of the Constitutive Act, identifies the Assembly, composed of Heads of States and Government and their representatives, as the apex decision-making body of the Union. It is seen as the de facto executive of the Union. Its functions and powers are often identified as making and monitoring the implementation of the common policies of the Union. The Executive Council is the alternate to the AssemblyFootnote 65 and both organs are served by the Commission and constitute the AU’s executive bureaucracy. The Assembly works closely with the Peace and Security Council (PSC), a fifteen (15) member body elected on a regional basis, which serves as the AU’s standing decision-making organ responsible for the maintenance of continental peace and security.Footnote 66
The AU’s PSC, established in 2002, was established as a ‘decision-making organ for the prevention, management and resolution of conflicts.’Footnote 67 To achieve these objectives, the PSC has a wide mandate to promote peace, security and stability; anticipate and prevent conflicts; promote and implement peace-building and post-conflict reconstruction activities; combat terrorism; and encourage democratic practices, good government, the rule of law, and the protection of human rights.Footnote 68 The PSC may also recommend that intervention in a Member State where there are war crimes, crimes against humanity, or genocide,Footnote 69 consistent with the Constitutive Act of the African Union.Footnote 70 To pursue these objectives, the PSC works closely with other AU and African entities, including the Parliament, Commission, Panel of the Wise, Continental Early Warning System, African Standby Force, and regional mechanisms.Footnote 71
The PSC was established before the creation of the African Court, and well before the proposal to extend its jurisdiction to international crimes, therefore, the PSC does not have an explicit mandate with respect to the African Court or international criminal processes. Nonetheless, combating impunity and ensuring justice for international crimes would certainly fall within the PSC’s mandates to encourage the rule of law, protect human rights, and promote respect for the sanctity of human life and international humanitarian law.Footnote 72 From its first intervention in Burundi, to recent ones in KenyaFootnote 73 Sudan, South Sudan, Mali and Central African Republic, some of the activities undertaken by the AU have attempted to de-escalate conflicts, monitor ceasefires, or negotiate power-sharing agreements following the cessation of hostilities.Footnote 74 Since its first peace-keeping mission in Burundi with the African Mission in Burundi (AMIB),Footnote 75 in 2002 the practice has although with challenges become a staple of AU responses in situations of ongoing conflict. After the deployment in Burundi, the AU has fielded a number of missions including African Union Mission in Sudan (AMIS); AU Mission for Support to the Elections in the Comoros (AMISEC); African Union Mission in Somalia (AMISOM); AU Electoral and Security Assistance Mission to the Comoros (MAES); AU Military Observer Mission in the Comoros (MIOC); United Nations African Union Mission in Darfur (UNAMID Hybrid force); African-led International Support Mission to Mali (AFISMA) and; Africa-led International Support Mission to the Central African Republic (MISCA) which transformed into the UN Multidimensional Integrated Stabilization MissionFootnote 76 to the Central African Republic (MINUSCA).Footnote 77
The PSC and the associated institutions that support its work, together with the Regional Economic Communities (RECs), jointly constitute what is commonly referred to as the African Union’s Peace and Security Architecture (APSA).Footnote 78 They range from implementing various actions, mechanisms, and approaches entailed in the functioning of the PSC and by which relevant AU actors engage in the resolving of conflict, including violent conflicts.
Relatedly, the African Governance Architecture (AGA) is the AU’s institutional framework established to coordinate action undertaken by AU organs, institutions and the regional economic communities (RECs) to support member states in strengthening democracy, governance and human rights. AGA was mandated by the AU Assembly in July 2010 at its 14th Ordinary sessionFootnote 79 and arose out of a series of deliberations within the AU (between the DPA and AUC) driven by the desire to ‘facilitate policy and programme convergence on Governance amongst AU Member States as a means to accelerate deeper integration.’Footnote 80
The African Union’s PSC is at the centrepiece of the effort to manage African violence and the AGA complements the African Peace and Security Architecture (APSA), which addresses the AU’s peace and security agenda. The AGA and APSA were designed to bring together principles of democratic governance, peace, and security as interrelated and mutually reinforcing.Footnote 81
In 2004, then Secretary-General Kofi Annan asserted in 2004 that ‘[j]ustice, peace and democracy are not mutually exclusive objectives, but rather mutually reinforcing imperatives. Advancing all three in fragile post-conflict settings requires strategic planning, careful integration and sensible sequencing of activities.’Footnote 82 This statement has paved the way for the development of ‘a range of judicial and non-judicial processes to meet the complex challenges facing many countries in varying types of transition.’Footnote 83 It is also reflected in the ATJF, which recognizes that
[t]ransitional justice does not require or advocate a ‘one-size-fits-all’ formula but recognizes the need for mechanisms and processes to be defined in accordance with national assessments involving broad citizen participation and which are therefore responsible to their needs and aspirations and which are also compliant with international standards. Processes should incorporate the right to know, the right to justice, the right to reparations and the guarantee of non-recurrence.Footnote 84
This approach was reinforced in the Report of the African Union High-Level Panel on Darfur (AUPD), which stated that, in the context of Sudan,
[c]riminal justice will play an important role, but not an exclusive one, and must be underpinned by procedures that allow for meaningful participation of victims, as well as reparations and other acts of conciliation. Within the criminal justice system, the investigations, prosecutions, defence and judiciary must work in tandem, or in smooth sequence. Weaknesses in any one element of a criminal justice process would undermine the prospects of a successful outcome. Thus, inadequate investigations will not result in effective prosecutions; an under-resourced judiciary on the other hand would be unable to cope with the work generated by effective investigations. In order to respond effectively to the violations in Darfur, the system will need to draw upon Sudan’s rich legal heritage, including Sharia (Islamic) law and practice, to the extent that Sharia emphasizes the participation of victims in proceedings and the making of reparations. Traditional justice models with their focus on conciliation and wider participation of the community also provide viable mechanisms for dealing with the past. Truth-telling and an independent and informed analysis of the past, in order to draw out the lessons of Darfur for Sudan, should be given priority, as an investment in the stability of Sudan. All these components, as well as any additional justice and reconciliation mechanisms, need to work together to achieve effective response to the situation in Darfur.Footnote 85
To guide the work of the AU organs and the PSC, the African Union’s Transitional Justice Policy assists African societies emerging from violent conflicts or authoritarianism in pursuing peace, justice, and accountability.Footnote 86 At the heart of this policy is the understanding that in ‘fragile post-conflict setting[s], a … balance … must be struck between peace and reconciliation on the one hand and responsibility and accountability on the other.’Footnote 87 In contrast to other approaches, the AU’s transitional justice policy recognizes that societies emerging from conflict often have multiple needs, including ensuring peace, catalyzing democratic transformation, and pursuing reconciliation and accountability, and that it is ultimately the people of the affected society who must determine the appropriate combination of transitional justice mechanisms based on their unique circumstances.Footnote 88 By focusing on the larger range of measures open to societies in transition, the AU’s Transitional Justice Policy allows affected societies and the AU to determine how and when to fit prosecutions into a larger, holistic transitional justice program. Such an approach does not negate the importance of accountability measures, but acknowledges that peace and reconciliation are equally important and desirable goals.Footnote 89
Indeed, for countries still in the midst of conflict, ‘the most urgent desire of the affected population is to cease hostilities, restore peace and security.’Footnote 90 In the eyes of many of these affected communities, peace itself ‘constitute[s] a first measure of justice in Africa.’Footnote 91 An exclusive focus on prosecutions, as is often the case in the West, detracts from this broader understanding of justice, reducing the idea of justice to the prosecution of a handful of individuals rather than addressing the root causes of mass atrocity crimes.Footnote 92 But ensuring that such atrocities are not repeated requires much more than prosecutions; it requires changes in the political, economic, and cultural structures of society that contributed to the atrocities in the first place.Footnote 93
The AU’s Transitional Justice Policy recognizes advancing peace, reconciliation, and accountability requires careful planning and strategic sequencing of transitional justice measures.Footnote 94 Particularly for countries still engaged in or just emerging out from conflict, this sequencing approach recognizes that it is not always possible to achieve peace and justice at the same time.Footnote 95 As Thabo Mbeki and Mahmood Mamdani have written, ‘[t]here is a time and a place for courts, as in Germany after Nazism, but it is not in the midst of conflict or a nonfunctioning political system.’Footnote 96 Where mass atrocities are ongoing, the initial focus must be to stop the fighting, implement a ceasefire, and negotiate a solution to the crisis.Footnote 97 This does not mean that all accountability measures are suspended, but that they may be more limited until a political settlement has concluded.Footnote 98
3. Legal Interests in Peace: Justice Sequencing
As established, since its transformation from the Organization of African Unity, the African Union, has demonstrated a renewed energy and growing capacity to resolve conflicts around the continent using particular peace–justice sequencing strategies. While on one hand, in March 2009, the AUC commissioned the Pan African Lawyers’ Union (PALU) to prepare a draft protocol to expand the criminal jurisdiction of the African Court which resulted in the production of the Malabo Protocol for the African Court whose innovations are in the introduction of new international crimes, on the other hand, central to its justice emphasis was the incorporation of that structure in a larger transitional justice architecture.
The emergence of an African Court of Justice and Human Rights, therefore, is not to be mistaken as another example of a blind move toward criminal accountability in the twenty-first century in which court proceedings are deemed the only venue for addressing violence. Rather, the emergence of the African Court should be seen in relation to Africa’s unfolding transitional justice domain underway. The assumption is that in mass atrocity violence situations, if peace and a functioning government cannot be achieved, the very effort to create a new state will suffer. In such situations (especially when compared to a specific crisis in a consolidated democracy), the political stakes are also higher, making the conflict between the peace-versus-justice dilemmas even more acute. This highlights the importance of understanding the way that the Malabo is part of a larger African transitional justice infrastructure that sees peace–justice sequencing as central to the relevance of political settlements in deeply unequal social fields.
Articles 29 and 34A of the revised Protocol provide a mechanism for assimilating the African Union’s peace and justice sequencing strategy by providing the African Union’s key peace and security organs an important role in the initiation and continuation of cases. In situations where criminal prosecutions may encourage peace by bringing all parties to the table, the Assembly, the Parliament, or the Peace and Security Council would have the authority to make an early referral of a case to the African Court under article 29 to pressure the relevant parties to negotiate. By contrast, where prosecutions risk derailing peace processes by removing key actors critical to the negotiations or by encouraging parties to dig into the fighting in order to win at all costs, these institutions could delay referral of a case to the Court, thereby facilitating the search for a mediated political solution.Footnote 99
A. Article 29 and 34A: Sequencing
Articles 29 and 34A of the revised Protocol provide a mechanism for assimilating the African Union’s peace and justice sequencing strategy by providing the African Union’s key peace and security organs an important role in the initiation and continuation of cases. In situations where criminal prosecutions may encourage peace by bringing all parties to the table, the Assembly, the Parliament, or the Peace and Security Council would have the authority to make an early referral of a case to the African Court under article 29 to pressure the relevant parties to negotiate. By contrast, where prosecutions risk derailing peace processes by removing key actors critical to the negotiations or by encouraging parties to dig into the fighting in order to win at all costs, these institutions could delay referral of a case to the Court, thereby facilitating the search for a mediated political solution.Footnote 100
Once a case has been referred to the African Court under any of the referral mechanisms, articles 33, 34, and 34A would provide the AU’s peace and security organs – via notification to the Chairperson of the African Union – with the information necessary to assess whether those bodies should intervene in the case. This is particularly crucial with respect to the expanded criminal jurisdiction since criminal prosecutions, as described above, have the potential to impact ongoing peace processes. By receiving notification of the initiation of a case under article 34A, the Assembly, Parliament, and Peace and Security Council, among other bodies, would be able to assess whether to submit a request for intervention under article 49. A right of intervention is not guaranteed, but rather is left to the discretion of the Court.Footnote 101
B. Articles 33, 34, 44A: Registrar’s Notification of Chair of AU: Article 34A(1)
Article 34A(1) obliges the registrar of the court to notify the Chairperson of the African Union of proceedings initiated before the criminal section and through which one of the triggers of jurisdiction could anchor considerations of sequencing of peace and justice by the African court and the AU. By obliging the registrar of the court to notify the Chairperson of the African Union of proceedings initiated before the criminal section, Provision 34A(1) also provides an opening to allow an AU agent to intervene in a prosecution or situation in the interests of peace.
It is possible that Art 34A(1), as basis for AU intervention in the work of the Court, could be seen as controversial in that it could be seen as having the potential to undermine the perceived independence of the prosecutor. Once a case has been referred to the African Court under any of the referral mechanisms, Articles 33, 34, and 34A would provide the AU’s peace and security organs – via notification to the Chairperson of the African Union – with the information necessary to assess whether those bodies should intervene in the case. Thus, Article 34A(1) could be read as providing a conscious desire to distinguish between investigation and prosecution, both of which form part of the judicial process (interests of justice) and a political process (interests of peace) – as in the case of the OTP’s interests of justice policy.Footnote 102 That is – distinguishing between the investigation and prosecution processes which form part of the judicial process (interests of justice) and a political process (interests of peace) – as we will see in the ICC’s OTP Position Paper. This is particularly crucial with respect to the expanded criminal jurisdiction since criminal prosecutions, as described above, have the potential to impact ongoing peace processes. By receiving notification of the initiation of a case under article 34A, the Assembly, Parliament, and Peace and Security Council, among other bodies, would be able to assess whether to submit a request for intervention under article 49.
Unlike the ICC, however, there is no provision in the Malabo Protocol that permits the AU to automatically defer a criminal investigation or prosecution. Instead, the AU would have to submit a request for intervention under Article 49, and the decision as to whether to permit such intervention would rest with the African Court.
Article 49 permits interventions only where the requesting party has an ‘interest of a legal nature.’ That phrase is identical to that in the intervention provision of the Statute of the International Court of Justice,Footnote 103 and it is therefore logical to examine how that court has interpreted that phrase in assessing how the African Court might interpret article 49. To date, the ICJ has never held that promoting peace constitutes an interest of a legal nature. Indeed, out of fifteen requests for intervention, the ICJ has permitted only two, both of which were related to territorial disputes.Footnote 104 The ICJ has routinely declined requests for intervention based on more humanitarian interests, such as the interest in combating apartheid.Footnote 105 It has also rejected the similar request to decline jurisdiction due to an ongoing peace process.Footnote 106 In light of this consistent jurisprudence, it is unlikely that the African Court would come to a different conclusion. A State that opposes such deferral could likewise seek to intervene under Article 49 with the reasons against deferral.
Affected States already have the ability to express their opinions on a potential deferral under the intervention provision in article 49. The key peace and security organs of the African Union may request a deferral through the intervention provision in article 49. Nonetheless, as a means of clarification, the Rules of the Court could be written so as to explicitly confirm that where the AU submits a request for intervention seeking a deferral, the Court will (1) seek the opinion of the affected State(s) and (2) consider those opinions before rendering a judgment on the request.
Ultimately, the right of intervention is not guaranteed, but rather is left to the discretion of the Court.Footnote 107 In exercising its discretion on whether to permit an AU organ to intervene in a criminal case, the African Court would have to determine whether a request to intervene in order to propose a deferral of the criminal case or some other subordination of the criminal proceedings to the peace process constitutes ‘an interest of a legal nature which may be affected by the decision in the case.’Footnote 108 This issue is not straightforward and there is no definitive caselaw on this issue. Nonetheless, there is substantial support for such a position.
It is well established that legal interests are not limited to borders and contracts but also extend to matters of peace, security, and human rights. The International Court of Justice, for example, has held that ‘all States can be held to have a legal interest’ in ensuring observance of the prohibition on acts of aggression, genocide, and other ‘obligations of a State towards the international community as a whole.’Footnote 109 Such obligations extend to the protection of human rights,Footnote 110 which include the right to ‘national and international peace and security’ under both regional African treaties and international declarations.Footnote 111
Consistent with this understanding, judges of the International Court of Justice have explicitly recognized that a ‘legal interest’ exists in ‘preserv[ing] the internal stability of [a] country’Footnote 112 and ‘humanitarian causes.’Footnote 113 A progressive African Court could, consistent with this jurisprudence, hold that issues of peace and security are ‘interests of a legal nature’ that would permit the Court to defer consideration of a case for a period of time. As noted, the final decision would be left to the Court’s discretion.
There is no automatic ability of the AU or its organs to defer a criminal matter under the Malabo Protocol. Moreover, because any request for a deferral would have to be made through a request for intervention, the parties to the criminal matter, as well as the State where the crimes occurred, would have an opportunity to comment upon the request and present any supporting or countervailing considerations. By leaving the discretion for a deferral with the Court, the Malabo Protocol takes a different approach than the Rome Statute of the ICC which, under the United Nations Security Council, has the authority to require the ICC to defer an investigation or prosecution for up to a year.Footnote 114 The Malabo Protocol therefore ensures a less politicized process than that which has bedeviled the ICC.
Similarly, the AU’s referral authority to the African Court under the Malabo Protocol is more constrained than that of the UN Security Council vis-à-vis the ICC. Unlike the UN Security Council, which may refer a case to the ICC related to any country, even if it is not a party to the Rome Statute,Footnote 115 the African Union may only refer cases related to matters in States that have ratified the Protocol.Footnote 116 There is thus no danger that the AU could request that the African Court overreach its authority by prosecuting a case related to a state that has not ratified the Protocol, as the ICC has done with Sudan – shown in the next section. Nevertheless, in order to explicitly confirm the possibility of deferrals for reasons of peace and security, the Rules of the Court could be written so as to explicitly confirm that a request for intervention in order to defer a case in favor of ongoing peace processes. For example, the rules could include a definition of ‘interest of a legal nature’ that specifies that matters of peace and security are included.
4. Prioritizing Peace: Sequencing as Key to Justice Reconceived in the African Region
Recognizing that international criminal law prohibits amnesties for war crimes and crimes against humanity, those who approach the international legal terrain through this lens often argue that in several situations where peace agreements initially included amnesties for warring parties, domestic, regional, and international courts have annulled those amnesties and permitted prosecutions to proceed. For example, they suggest that in October 1992, the Inter-American Commission on Human Rights found that Argentina’s ‘Full Stop Law’ and other laws granting amnesty for human rights violations committed during Argentina’s ‘dirty war’ deprived victims of their right to justice under the American Convention on Human Rights.Footnote 117
In March 2001, The Inter-American Court of Human Rights invalidated Peru’s Law No. 26479, which granted amnesty to perpetrators of human rights violations during its period of armed conflict from 1980 to 1995.Footnote 118 Here the argument made was that the Court held that ‘all amnesty provisions … are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearances, all of them prohibited because they violate non-derogable rights recognized by international human rights law.’Footnote 119 These regional precedents led to the judicial invalidation of Argentinian amnesty laws in domestic courts, and eventual legislative annulment.Footnote 120
Some also argue that the issuance of an international indictment sends a message of condemnation that delegitimizes the accused warring party, and triggers States’ duties of arrest which isolate the individual and lead to retreat.Footnote 121 Human Rights Watch points to the situations of both the Former Yugoslavia and Liberia as successful examples of marginalization and isolation through issuance of arrest warrants:
In Bosnia and Herzegonina the indictment of Radovan Karadzic by the ICTY marginalized him and prevented his participation in the peace talks leading to the success of the Dayton negotiations to end the Bosnian war. Similarly, the unsealing of the arrest warrant for Liberian President Charles Taylor at the opening of talks to end the Liberian civil war was ultimately viewed as helpful in moving negotiations forward. By delegitimizing Taylor both domestically and internationally, the indictment helped make clear that he would have to leave office, an issue that had been a potential sticking point in negotiations. He left Liberia’s capital, Monrovia, a few months later.Footnote 122
Similarly, some of those advocating this position in African contexts have suggested that although Article IX of the 1999 Lomé Peace Agreement between the government of Sierra Leone and the Revolutionary United Front granted ‘absolute and free pardon and reprieve to all combatants and collaborators in respect of anything done by them in pursuit of their objectives,’Footnote 123 it came with an express reservation by the UN that it did not accept immunity for war crimes and crimes against humanity. As such, the Peace Agreement was not an impediment to the establishment of the Special Court for Sierra Leone and trying rebel leaders.Footnote 124
While some view the annulment or invalidation of various amnesties as a positive approach to achieving peace, there is also a more regionally relevant approach to the management of violence on the African continent that is underway that points to a fresh and new set of possibilities that focuses on the preservation of human life first through the cessation of hostilities.
A. Prioritizing Peace
Seeking justice ‘at all costs’ while conflict situations are ongoing can significantly undermine peace processes.Footnote 125 Indicted leaders may be incentivized to continue or incentivize conflict to avoid capture, extradition, and trial.Footnote 126 By contrast, offering amnesties may persuade combatants to enter into negotiations and lay down their arms. As noted earlier, A prominent example is the situation in Uganda, where the ICC Prosecutor had issued arrest warrants against Joseph Kony, leader of the Lord’s Resistance Army (LRA), as well as other high-ranking LRA commanders, as the government of Uganda was attempting to negotiate a peace agreement with the LRA. The threat of capture and arrest, and the ICC’s refusals to drop the indictments, kept Kony and other LRA members from coming to the negotiation table and ultimately signing the peace agreement.Footnote 127
Further, indicted heads of states are also incentivized to retain power as, ‘[s]overeignty norms … provide some protection to sitting state leaders: while venturing outside sovereign borders puts state leaders at risk, remaining entrenched at home leaves them relatively secure against ICC prosecution. … Further, domestic actors often lack the ability to remove a sitting leader who enjoys the protection of the state’s security apparatus.’Footnote 128
The most cited example is the Sudan’s Omar Al-Bashir, who ‘cancelled plans to step down from power in 2009, reversing course after the ICC issued an arrest warrant[.]’Footnote 129 The ICC arrest warrant has been criticized by experts on Sudan, who, arguing that justice should wait until perpetrators of atrocity are no longer in positions of authority and capable of retaliation, have stated, ‘[a]ttempts to deploy UNAMID [the AU/UN peacekeeping mission in Sudan] in Darfur are at a critical point. At this sensitive time, to lay charges against senior government officials, and to criminalise the entire government, will derail attempts to pull Sudan from the brink.’Footnote 130
In this case, on 31 March 2005, the UNSC adopted Resolution 1593 in which it referred the conflict in Darfur to the ICC.Footnote 131 This marked the first time that the UNSC had invoked its power under Article 13(b) of the Rome Statute to refer a particular situation to the ICC prosecutor for investigation and possible prosecution.Footnote 132 The referral was predicated on the UNSC’s determination that the situation in Sudan constituted a threat to international peace and security under Article 39 of the UN Charter, and that the prosecution of the perpetrators of the human rights violations in Darfur would help to restore peace and stability in the region.Footnote 133
On 27 April 2007, the ICC issued arrest warrants against Janjaweed militia leader Ali Kushayb and Sudan’s Minister of Humanitarian Affairs, Ahmed Harun.Footnote 134 On 14 July 2008, the ICC Prosecutor requested an arrest warrant against Sudanese President, Omar al-Bashir, which was issued on 4 March 2009.Footnote 135 The government of Sudan objected to the exercise of this jurisdiction in relation to Sudan, arguing that both the UNSC and ICC violated the country’s sovereignty.Footnote 136 As an immediate reaction to the arrest warrant against Bashir, the Sudanese government expelled more than a dozen humanitarian aid organizations, leaving more than one million people without access to food, water, and healthcare services.Footnote 137 In addition to the Sudanese government, the African Union (AU), the Arab League, and the Organisation for Islamic Conference also objected to the arrest warrant on the grounds that such an action by the ICC was destabilizing for peace talks which were to be revived in Doha, Qatar.Footnote 138 Several African and Arab members of the UNSC, supported by the permanent members, China and Russia, proposed a resolution to renew the United Nations–African Union Mission in Darfur (UNAMID), the joint AU-UN peacekeeping mission formally approved by United Nations Security Council Resolution 1769 on July 31, 2007, to bring stability to the war-torn Darfur region of Sudan while peace talks on a final settlement continuedFootnote 139
In response to the ICC’s arrest warrant against Bashir, Sudan began aggressively mobilizing AU member states in support of its position, seeking to weaken the support for the ICC in Africa. The AU called upon the UNSC to invoke Article 16 of the Rome Statute to defer the processes initiated against Bashir on the grounds that a prosecution of the president could impede the prospects for peace in the region.Footnote 140 The UNSC showed minimal response to the AU request, considering it only briefly and failing to act on it.Footnote 141 In response, in its July 2009 summit in Sirte, Libya, the AU directed all of its member states to withhold their cooperation from the ICC in respect of the arrest and surrender of Bashir.Footnote 142 This message has been reiterated at subsequent summits and in the most recent event held in June 2015, South Africa declined/failed to turn over Bashir to the ICC.Footnote 143
To contain the broad backlash against the ICC in Africa, the AU established a High-Level Panel for Darfur (AUPD) in March 2009, headed by Thabo Mbeki, with a mandate to recommend approaches for reconciling the demands of peace, justice, and reconciliation.Footnote 144 The report, released in October 2009, recommended balancing these demands by establishing a hybrid court composed of Sudanese and non-Sudanese judges and legal experts; the introduction of legislation to remove immunities for state actors suspected of crimes in Darfur; and a ‘Trust, Justice and Reconciliation Commission’.Footnote 145 The report did not challenge the ICC’s independent jurisdiction in the Darfur situation. Increasing tensions between the AU and the UNSC and ICC prompted the AU to present a proposal at the November 2009 session of the ICC Assembly of States Parties (ASP) that called for Article 16 to be amended to allow for the UN General Assembly to act should the UNSC fail to decide on a deferral request within six months.Footnote 146 The AU called upon the UNSC to invoke Article 16 of the Rome Statute to defer the processes initiated against him on the grounds that a prosecution of the president could impede the prospects for peace in the region.Footnote 147 The UNSC showed minimal response to the AU request, considering it only briefly and failing to act on it.Footnote 148 In response, in its July 2009 summit in Sirte, Libya, the AU directed all of its member states to withhold their cooperation from the ICC in respect of the arrest and surrender of Bashir.Footnote 149 This message has been reiterated at subsequent summits and in the most recent event held in June 2015, South Africa declined/failed to turn over Bashir to the ICC.Footnote 150
Increasing tensions between the AU and the UNSC and ICC prompted the AU to present a proposal at the November 2009 session of the ICC Assembly of States Parties (ASP) that called for Article 16 to be amended to allow for the UN General Assembly to act should the UNSC fail to decide on a deferral request within six months.Footnote 151 A working group of the ASP has since been established to consider this and other proposed amendments to the Rome Statute. As per the most recent report, the proposed amendment is still under review.Footnote 152
The attempt to apply Article 16 of the ICC in the case of Sudan has been highly controversial. Proponents of an Article 16 deferral cite a number of advantages. First, the deferral of investigation and prosecution may prevent an aggressive reaction from Sudan’s ruling party, which could further jeopardize peace and security in Darfur. Second, it could allow more time to assess the merits and drawbacks of prosecuting Bashir. Third, it may place pressure on Sudan’s ruling party to cooperate with the UN and its peacekeeping force to respect human rights and to protect civilians. Non-cooperation with such objectives could be sanctioned by a refusal to renew the Article 16 deferral. Finally, the use of Article 16 could be used by the international community as leverage in negotiations towards a peace agreement.Footnote 153
On the other hand, opponents of issuing a deferral under Article 16 argue that deferring the investigation or prosecution of Bashir would deny justice to victims in Darfur and make the UN Security Council appear indecisive, as it was the organ that made the initial referral.Footnote 154 Some scholars have also been skeptical as to whether or not any peace negotiations are even taking place that would warrant such a deferral.Footnote 155 Various other scholars are more optimistic and insist that the ICC strategy to issue the arrest warrant against al-Bashir has been successful to a certain extent because the looming threat of ICC arrest warrants has created an incentive to at least feign a willingness to end the war. They note that in November 2008, Bashir announced a ceasefire with the Darfur rebels and that this was prompted by the pressure of the looming arrest warrant.Footnote 156
A working group of the ASP has since been established to consider this and other proposed amendments to the Rome Statute. As per the most recent report, the proposed amendment is still under review.Footnote 157 In May 2011, the Doha Document for Peace in Darfur (DDPD) was finalized at the All Darfur Stakeholders Conference.Footnote 158 On 14 July, the Government of Sudan and the Liberation and Justice Movement signed a protocol agreement committing themselves to the Document, which is now the framework for the comprehensive peace process in Darfur. The DDPD was the culmination of two and half years of negotiations, dialogue and consultations with the major parties to the Darfur conflict, all relevant stakeholders and international partners. UNAMID lent technical expertise to the process and continues to support the dissemination of the Document as well as to urge non-signatory movements to sign up to the DDPD.Footnote 159 As recently as June 2015, the UNSC has expressed concern regarding the continuous serious delays in the overall implementation of the accord and the lack of permanent ceasefire.Footnote 160
What the Sudan example shows us is that rushing to adjudication too quickly impedes democratic consolidation and that the move to trials may perpetuate more instability.Footnote 161 This argument holds that in addition to securing peace, other issues may be more crucial to a country’s survival post-conflict, such as economic reconstruction, transition to a market economy, provision of healthcare, infrastructure, and employment – all leading to the strengthening of stable democracies.Footnote 162 Following a path of legal punishment can serve to maintain rather than reconcile differences between groups in society.’Footnote 163
B. Accountability is Not Possible Without Stability
Argentina and Chile have been the most prominently-used examples of successful peace–justice sequencing. The Panel of the Wise has pointed to Argentina as an example revealing
that while political realities complicated the search for accountability, multiple truth-seeking initiatives continually exposed perpetrators, and a vigilant array of victims’ groups and civil society organizations kept the demand for justice alive. In addition, Argentina’s victims’ groups used international and regional instruments at critical moments to pressure their government to act.Footnote 164
In Argentina, the military dictatorship in place since 1976 collapsed in 1982 when Argentina’s military defeat in the Falklands War with the United Kingdom led to the calling of elections.Footnote 165 The outgoing military regime implemented a blanket self-amnesty in September 1983, which was overturned by Argentina’s Supreme Court three months later, allowing the trials of members of the armed forces for serious human rights violations committed during the dictatorship.Footnote 166 The overturning of the amnesty, however, provoked backlash among the military, ‘leading the government to change course and design measures to contain, and eventually halt, trials.’Footnote 167 These included the ‘Full Stop Law’ of 1986, which established a 60-day deadline after which Argentine courts would no longer admit new criminal complaints against military perpetrators. According to Balardini, the Full Stop Law:
produced results opposite to its intentions, sparking ‘frenetic activity’ in the courts … As hundreds of claims were presented nationwide, the number of cases in court tripled during the allowed period. Tensions between the government and the military increased as a result. After military revolts that threatened democracy, [Argentinian President] Alfonsin submitted to Congress the Due Obedience Law … Approved in 1987, it limited the criminal liability of subordinates based on the presumption that they were following orders. The immediate effect of these two laws was the withdrawal of charges against 431 existing defendants, bringing most ongoing investigations to a definitive halt.Footnote 168
These measures held for approximately the next decade, where a series of ‘unprecedented political and economic cris[es] … shifted the focus of public and policy attention to social problems such as violent public order policing, poverty, and unemployment.’Footnote 169 However, slowly, with the help of human rights activists bringing challenges to the courts resulting in jurisprudence from the Inter-American system, the international duty to prosecute was upheld and amnesties voided by the courts, and ultimately annulled by the Argentine legislature in 2003.Footnote 170 As a result, ‘the combination of political and legal strategizing pursued by [human rights organizations], both nationally and internationally, plus clear political will in the various branches of state, led eventually to a full reopening of trials against perpetrators.’Footnote 171 Previous truth commission findings also served as evidence to bolster the later prosecutions.
Chile’s transitional justice process has been described as ‘painstaking’ and lacking state commitment.Footnote 172 However, Collins and Hau describe that ‘[t]he excessive caution of its early transitional justice trajectory gradually gave way to what some now consider to be a success story of incrementalism.’Footnote 173 Transition from General Augusto Pinochet’s 17 years of brutal military dictatorship ended following a democratic election in 1989. Like in Argentina, the military regime implemented a self-imposed, wide-ranging amnesty before ceding power. However, unlike Argentina, and fearful of potential backlash from the military, still commanded by Pinochet, Chile’s new government opted to pursue a ‘low-key transitional justice process focused on truth and reparations, which did not encroach unduly on entrenched military and right-wing interests.’Footnote 174
As of mid-2015, the amnesty law was still in place. However, through advocacy and litigation, human rights organizations and victims have managed to limit its application through ‘creative circumvention’Footnote 175 using judicial means, opening up domestic criminal justice procedures to victims of atrocities committed during the military dictatorship. According to Randeny and Lassee, ‘Pinochet’s arrest on a Spanish arrest warrant, the Inter-American Court’s jurisprudence on amnesty laws, as well as public pressure on the basis of truth commissions’ reports finally created the conditions necessary to initiate trials.’Footnote 176 In particular, as described above, jurisprudence from the Inter-American system invalidated amnesties for war crimes and crimes against humanity. In relation to Chile, the Inter-American Court of Human Rights re-affirmed in 2006 that ‘States cannot neglect their duty to investigate, identify, and punish those persons responsible for crimes against humanity by enforcing amnesty laws or any other similar domestic provisions. Consequently, crimes against humanity are crimes which cannot be susceptible of amnesty.’Footnote 177
Uruguay provides another example of successful sequencing, although the path to justice has occurred far slower and in a context where judicial and political will has been lacking. Following a negotiated peace in 1985, victims and their relatives of the civil-military regime from 1973 to 1985 immediately presented claims to the courts regarding human rights violations. In response the Uruguayan government passed the ‘Expiry Law’ which terminated all judicial proceedings involving military forces and transferring investigations for human rights abuses to the executive branch of government. The Expiry Law was repeatedly challenged in Uruguayan Courts and held to be invalid in 2011 by the Inter-American Court of Human Rights. That same year, the government’s legislature annulled the amnesty law, opening the door to new criminal action. However, Lessa and Skaar have pointed out that achieving justice has nevertheless been an ‘uphill battle’, with the Uruguayan Supreme Court reluctant to recognize the former regime’s crimes as crimes against humanity.Footnote 178 Further, the executive has limited access to archives and other types of documentation, impeding truth-finding efforts. Despite these obstacles, Lessa and Skaar point out that ‘the culture of fear that dominated Uruguayan society for so long is arguably no longer present. The fact that the military no longer constitutes a threat to democracy makes the political context very different from that of 1985, allowing more space in which to choose a pro-human rights stance.’Footnote 179 As such, the find that ‘[o]n balance … we can say that Uruguay’s progress along the scale from impunity towards accountability has been significant, especially during the past decade, a period that has seen the most positive developments.’Footnote 180
Mozambique is another example of successful peace–justice sequencing where, although ‘there has been no justice for horrendous crimes committed during a lengthy civil war, … it has remained stable since the peace agreement was signed in 1992.’Footnote 181 The Panel of the Wise has observed that despite the amnesties, ‘informal mechanisms to deal with issues of reconciliation have flourished in Mozambique. Civil society organizations have engaged in peacebuilding activities that have reintegrated former combatants and trained rural communities in dispute resolution and various methods of reconciliation and healing.’Footnote 182 However, conflict resumed in Mozambique between 2013 and 2014.Footnote 183 Igreja argues that the ‘amnesty law in Mozambique fell short of creating a political environment conducive to a process of democratic participation that could consolidate a new political space where former war foes would repress … memories of political violence and work together, expressing mutual tolerance and respect and striving for reconciliation.’Footnote 184 In addition to providing vows of reconciliation, inclusion, and democracy as part of the 2014 peace accord, Igreja argues that ‘a nationwide programme is needed to determine degrees of responsibility for serious human rights violations and crimes and, more specifically, regarding the composition and role of security and defence forces in the country.’Footnote 185
Scholars have also pointed to Namibia as an example where ‘amnesty has directly led to the consolidation of peace and healing of society in the wake of mass crimes.’Footnote 186 However, Höhn has pointed out that a decade after Namibia’s transition, the Namibian National Society for Human Rights filed a submission in 2006 requesting an investigation by the International Criminal Court into grave human rights violations committed during Namibia’s independence struggle from 1966 to 1990 by a number of alleged perpetrators, including former President Sam Nujoma.Footnote 187 This effort by civil society emphasizes that achievement of reconciliation also requires justice and accountability.
Others may question the placing of burden on rights by holding survivors accountable for pursuing justice. However these examples also raise the question of how long becomes too long to wait for justice. In some situations, when the door to prosecutions opens decades after a conflict, those victimized by violence may not live enough to see witness its results. Although there is no one approach fits all in sequencing histories, the common thread in all of these examples is the persistent efforts of human rights and victims’ organizations, and civil society in pressing for justice using various judicial and advocacy means. For some the success of these actors may signify the consolidation of democratic institutions and the rule of law, and a successful demonstration of sequencing. These are key consideration for the future application of the African Court.
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