Africa and the Future of International Criminal Justice
Editor: Vincent O. Nhemielle
Publisher: The Hague: Eleven International Publishing, 2012. 488p.
Reviewer: Kawu Bala | May 2015
Vincent O. Nhemielle’s edited book, Africa and the Future of International Criminal Justice, was published as a result of the international conference the University of Witwatersrand was honoured to host in 2010. Several scholars interested in human rights and humanitarian law contributed to the book. They are of the view that the International Criminal Court, as an emerging instrument of global governance, is plagued by grave challenges threatening the pursuit of human rights and justice in Africa.
The ICC, ordinarily, should have been the rallying point to advance and support human rights and justice, assuring all citizens of the world that no one will escape the long arm of the law should he or she dare commit atrocities against fellow human beings. At the core of this concern is how the global citizens can harmonise their efforts and make the ICC more effective. Vincent O. Nhemielle, and the other contributors here, believe that it is necessary to first have the ICC be accepted—in Africa. This is where the question of the global commitment to justice lies.
The book is divided into five parts of 15 divergent chapters, each written by well-known experts in international criminal justice: Vincent O. Nhemielle, Sigall Horovitz, Mba Chidi Nmaju, Henry J. Richardson III, James Nyawo, David Chuter, Ntombizozuko Dyani (Zozo), Caroline Nalule, Rachel Odoi-Musoke, Janine Natalya Clark, Eric Colvin, Jessie Chella, Godwin Odo, Lutz Oette and Pacifique Manirakize.
Africa is a continent ‘arising from brutal conflicts’ of unimaginable proportion (p.1) as Nhemielle rightly states in the book’s introduction. Conflicts need to be dealt with to prevent the total breakdown of law and order. It is conflicts such as those in Africa that led to the birth of the ICC; but this innovative idea is not without its faults. It is said that the ‘present cases in the International Criminal Court for which indictments have been issued have solely African accused persons’ (p. 3). Is this a mere coincidence –aiming at African “statesmen”? Should we, as those who are caught in the cross fire of senseless conflicts, now call for the International Criminal Court to be dissolved?
In Part I, the book offers a glimpse into the impact of the ICC as it relates to what happened in Rwanda and Sierra Leone. We might agree with chapter author Sigall Horovit that in order to fight impunity ‘domestic accountability processes are necessary,’ but the ICC only prosecuted a small fraction of the evil doers because of the twin problems of a limited mandate and limited resources (p. 16). As a result, the Rwandan government, on its own, started prosecuting perpetrators after the genocide using gacaca courts to try millions of genocide-related cases (p. 18). It is not surprising that trials in such courts will be criticised ‘for failing to meet minimum fair trial standards’ (p. 19). It has happened in the colonial era when many cases tried in African courts were quashed for being “repugnant to natural justice, equity and good conscience” — archaic terms in my opinion. Notwithstanding the challenge to the jurisdiction of the gacaca courts in trying war crimes, it is a contradiction of some sort to exclude their jurisdiction if crimes that have been committed cannot be tried due to mere technicalities (p. 20). The international community perhaps should have restructured the gacaca courts as they are indigenous to the Rwandan justice system (p. 51).
In Chapter Three, Mba Chidi Nmaju presents an engaging discussion on the role played by the Special Court for Sierra Leone and Sierra Leone Truth and Reconciliation Commission in the brutal conflicts that nearly tore Sierra Leone into pieces (p. 57). It is true, as Nmaju says, that the objective of the Truth and Reconciliation is to give a chance to victims and perpetrators to engage in court (p. 67). However, Nmaju criticises the Special Court for Sierra Leone for preventing its detainees from attending the hearings of the Truth and Reconciliation Commission (p. 71). Whatever might be the reasons, it can be argued that the Special Court should have allowed the detainees to appear. That said, Nmaju might have also weighed the efficacy (or otherwise) of the various Truth and Reconciliation Commissions that sprung up in Africa following the lingering deadly conflicts in the continent.
Part II centres on the theme “Africa and the International Criminal Court: Any Genuine Objections or Just a Disregard for Treaty Obligations.” Here, Henry J. Richardson explores African Grievances and the International Criminal Court, which is the fourth chapter in the book. To Richardson, grievances against the International Criminal Court began when President Bashar of Sudan was indicted for Darfur-related crimes (p. 83). We can see the fusion of law and politics that Richardson asserts (p. 85). Readers may agree with Richardson that ‘affronted people cannot allow the lack of fairness and justice to paralyse their progress towards sharing a just community’ (p. 86). Any failure to see Africa as a partner is a disaster which goes beyond the international criminal policy and process (p. 91). The world cannot afford to play politics with justice and still expect a saner global order of peace and tranquillity.
James Nyawo focuses on the mass atrocities in Africa. Nyawo cites Charles Taylor’s case, and concludes that it was ‘politically motivated’ (p. 127). Readers of history will surely agree with Nyawo. Is it enough that the International Criminal Court seeks to shed the image that it is a ‘tool that the European wants to use to maintain their influence in the domestic affairs of independent African states’ (p. 148). If history is any teacher, there are many instances of this interference that are still fresh in the minds of Africans: the Mau-Mau struggle in Kenya, the Algerian war of independence, and the not-so-old apartheid regime in South Africa.
The contributions of David Chuter and Ntombizozuko Dyani describe the need for fundamental changes in global institutions. Chuter sees the need to allow the ICC to be a place for Africans, rather than for others calling the shots from afar (p. 180). Dyani believes the ICC is ‘not targeting Africans’ (p. 218) because African states have ratified the Rome Statute which is the foundation of the ICC itself. Dyani concludes that Africans should be seen to be ready to prosecute their warlords and others fomenting trouble on the restless continent, rather than wait for others to do so on their behalf (p. 220).
In Part III, Caroline Nalule and Rachel Odoi-Musoke bring to the fore Uganda’s experience with respect to the complementarity principle of the African courts. They are of the view that the ICC should not be seen to be biased. But domestic courts should be allowed to play their role in justice dispensation because ‘there is no proof that the decision to handle the case domestically was made to shield any person responsible from criminal responsibility’ (p. 251).
Part IV and Part V deal with ‘The Limits of the International Criminal Court in Achieving Peace and Justice in Africa,” and “Impunity and Justice” respectively. Janine Natalya Clark, in her chapter, begins with the question many people in Uganda regularly asked, ‘why is it that powerful countries like the US, Russia and China are not parties to the Rome Statute?’ (p. 271). It remains to be seen whether or not the international community will ponder and answer this question. Readers will likely agree with Clark that ‘the court is geographically, linguistically and procedurally removed from the African continent,’ and that ‘rather than [being] simply distant onlookers,’ Africa should have a significant stake (p. 283).
Chapter 11, titled ‘Multinational Corporate Complicity: A Challenge for International Criminal Justice in Africa,’ by Eric Colvin and Jessie Chella, is perhaps the most thought-provoking contribution in going to the root of the book’s subject matter. It is an understatement to say that the conflicts in Africa are the products of the external influence of foreign powers and, in some cases, of merchants of death. Africa is, after all, still a continent grappling with colonialism and its relics. Is it an oversight (or deliberate?) that the ICC ‘does not allow for corporate liability’?
The remaining four chapters were contributed by Godwin Odo, Lutz Oette, Pacifique Manirakize and Nhemielle. One may agree, for example, with Oette, that ‘debate about International Criminal Justice in Africa constitutes a healthy opening’ (p. 372). This leads to the question of whether Africa should have her own criminal court to prosecute international crimes committed in Africa. Manirakize explores the idea and offers justification for such a judicial institution (p. 377). The African continent has lawyers and judges of outstanding capabilities. So why not try this valuable idea? The ICC, as Clark earlier noted, ‘has undoubtedly injected important new substance into the discussion about the relationship between criminal trials, justice and peace,’ but if the African Union will see reason in having an African court, it will go down in the annals of history as a milestone in Africa’s domestic quest for justice for the victims of international crimes (p. 294).
Africa and the Future of International Criminal Justice is truly an important book. It speaks to the seriousness of the international community in dismantling the forces of darkness that have held the African continent hostage to international crimes. Africa and the ICC need one another ‘in the interest of a credible International Criminal Justice system,’ as Nhemielle puts it in the conclusion (p. 414). If the ICC is actually targeting Africans, then we should say it is too bad for it as a global institution. The international community (nay the ICC) should heed the salient points raised in this valuable book.
Kawu Bala earned his LLB (Hons.) degree and BL from the Bayero University Kano and Nigerian Law School Abuja, respectively. In 2005 he joined the Legal Services Department of the National Assembly Abuja. Before that, he worked with Katagum Local Education Authority after graduating in 1993 from the College of Education Azare. He was in Belize, Central America from 2009 to 2011, as a Technical Aid Corps volunteer at the Attorney General’s Ministry, Belmopan. He has written several articles in local newspapers and book reviews which have appeared in CEU Political Science Journal, Law and Politics Book Review, Political Science Review, and other scholarly journals. He contributed also to Monument: An Anthology of Poems, the first literary publication in the history of the Nigerian Law School, Abuja. He is currently a Senior District Judge with the Bauchi State Judiciary, Nigeria.
