AFRICA AND THE ICC: A STAKEHOLDERS MEETING ON UNSETTLING AND EMERGING ISSUES
THE HAGUE, 12TH JULY 2013
EVELYN A. ANKUMAH
EXECUTIVE DIRECTOR, AFRICA LEGAL AID (AFLA)
Excellencies, dear Colleagues and Friends,
Welcome to this meeting, the main purpose of which is to explore how the ICC, and more generally international criminal justice, could best move forward. There is no denying that progress has been made since the Rome Conference. The ICC is now operational, it has taken up its first cases, and international criminal justice is now a much more debated topic than it was a quarter of a century ago. The mere existence of the ICC has –probably or to some extent – had a deterrent effect on the future commission of international crimes.
However, it is also true that the ICC – as an institution – has not lived up to all expectations. Things are not necessarily running as smoothly as hoped. It appears difficult to transform the theoretical notion of holding perpetrators of international crimes accountable into practical reality.
Debates on criminal justice and the work of the ICC seem increasingly politicized. Africa appears to be a popular target, whiles nationals of other States and regions have less to fear from the ICC. There is much talk about selective justice. Africa’s main political organization, the African Union, opposes and seeks to actively undermine the work of the ICC, especially when it comes to cases involving Heads of State. Criminal justice, it is claimed by some, should not distort the democratic functioning of States.
To avoid selective, one-sided justice, proposals have been submitted to create an African Criminal Court or Chamber and to give due regard to African concerns. The Crime of Aggression is likely to be included in the Court’s jurisdiction. Political opposition, yet, appears to be considerable. States whose nationals are unlikely to be prosecuted before the Court are willing to support the work of the ICC, but States whose nationals are likely to be prosecuted often seem less cooperative. Successful completion of cases is key to the success of the ICC, but what is needed – sufficient evidence – is not so easy to obtain. The ICC is dependent on cooperation of actors that are not always fully committed to achieving justice. The ICC, ideally, is supposed to be an independent judicial organ, but, unfortunately, it has to work in a highly politicized setting and all too often it is –wrongfully I believe – perceived as a political organ.
I believe we all are, in our different capacities, convinced of the need to work on and to actually achieve criminal justice. Yet, there is a need to explore how this could be done. How do we in practice concretely pursue the objectives of the Rome Statute? What problems do the ICC and its stakeholders encounter and how should these be tackled? We have chosen a number of topics that could kick off the discussion, but no doubt more issues will come up during today’s discussion. The topics we have selected are:
Firstly, the inclusion of the Crime of Aggression in the Statute – a topic of specific importance for Africa, but also a controversial one.
Secondly, looking for example at the case of Mathieu Ngudjolo Chui, how do we adequately protect the rights and interests of those who appear before the Court either as accused persons or as witnesses, both during trial and thereafter? Return to the country of origin may not be an option. How do we avoid quite embarrassing, and unacceptable situations in which persons who are found not guilty or have merely testified on behalf of the world community, see no other choice than to apply for asylum and are thereupon even placed in detention centres? Who takes responsibility here?
Thirdly, we will take a look at two countries or situations currently before the Court: Kenya and Cote d’Ivoire. It is unclear which way the cases will go, but it is plain that they raise controversial issues including:
State cooperation, the de facto capacity of the ICC to hold political leaders to account and so-called victor’s justice. The cases truly put the system set in place in Rome to test.
Various anticipated and unforeseen issues will come up today. We should identify these, face them and discuss how best to resolve them. AFLA has convened this meeting because it believes in international criminal justice, but is somewhat concerned about recent developments. We believe that the debates on international criminal justice should not only be limited to dreams and abstract ideals; they should also be about concrete issues, on achieving justice in practice. It should be about what Roland Ammoussouga calls pragmatic justice.
With a room full of stakeholders and experts, from diverse backgrounds, I believe we can make a serious contribution to such debates, on how to achieve practical criminal justice. Thank You.