African Justice comes to SOAS

By Fadil Elobeid|June 26, 2019|News|14 comments

By SOAS student Liam Butterworth

Are former African leaders being tried in the International Criminal Courts (ICC) in a biased, unfair manner? Has power politics been influential in the decision to prosecute former African leaders? Or is the reality an uncomfortable truth? SOASians and academics from across London, including the Royal African Society and Chatham House, came to find out from an expert panel, exploring fact from perception, as well as identifying means and ideas for African nations to address this perceived bias. The included Justice Richard Goldstone, former Chief Prosecutor in the Rwandan genocide tribunals between 1994 and 1986; Dr Dan Plesch, CISD Director; and Mr Robert Misigaro, journalist at BBC World Service. The evening was moderated by Professor Fareda Banda, Chair of SOAS’s Centre of African Studies, who carefully navigated our way through this contentious and interesting subject.

First, Dr Dan Plesch gave us insight into the long-forgotten war crimes of the Italian army in Ethiopia during the Second World War. If it wasn’t for a stroke of academic luck, his research may have not been so successful to have informed us of the post-war proceedings of the UN War Crimes Commission. Although there was thorough and conclusive primary evidence with detailed legal arguments, there were political motivations to not extradite an Italian officer to Ethiopia: the Italians had switched sides during the war, becoming Allies. This obviously pre-dates African failure to send anyone to be tried at the ICC.

It wasn’t until the end of the Balkans War that a similar model to the War Crimes Commission was introduced to try Slobodan Milosevic. With the Cold War in the intervening years, one can only assume there was little political will to address the crimes of others without finding the glasshouse windows broken.

Justice Goldstone began by debunking the decade-long myth that the ICC is biased against Africans: of the 9 African cases that are subjected to ICC tribunals, only 3 were the result of ICC reviews, 2 referrals were from the UN Security Council, and the remaining 4 were self-referrals, that is, requested by the national government. He later explained that there are plenty of Africans within the ICC, as judges or prosecutors.

He argued that the African Union called for African nations to withdraw from the process, based on political argument rather than fact. But the reason for not liking the ICC is because they feel threatened by it: “Burundi – the leader feels threatened; Gambia – the autocratic leader was forced out of power; South Africa threatened to leave but it came to nothing.”

Justice Goldstone’s “sorry criticism” of the 17 years of the ICC was that only 5 cases of 28 had been properly concluded. Of these 28, 5 were thrown out by the reviewing panel at the outset, and 2 were dismissed at the end of the case; the remaining cases are still underway.

He proposed that there is a selectivity of international justice, based on the will of the powerful nations: starting wars on less powerful nations to guarantee a successful outcome. There has been no tribunal into the war criminals on either side of the long wars in Sri Lanka or Syria; the same goes for Palestine and Israel. Justice Goldstone opined that the Permanent 5 of the UN Security Council would veto any ICC review into these countries.

But he argued, despite these setbacks, that we should not be disheartened, but rather than abandon international justice we should tackle it with “renewed vigour.”

By way of a case study, Justice Goldstone explained that in the Rwandan genocide case in 1994, the Rwandan government sought an independent, internally operated process, not based on the model used in the Former Yugoslav Republic trials, with the death penalty available. Fortunately, this option was removed by the UN, citing human rights. He reminded us that an estimated 1 million people were killed in those 12 weeks. Not getting their way, the Rwandan government withdrew their request for a tribunal. Coincidentally, Rwanda was, at that time, a non-permanent member of the UN Security Council and voted against the decision to impose the model without the death penalty; China abstained; all 13 other members supported the decision. But the tribunal was limited to evidence from 1994, not any proceeding factors or events, and did not consider the actions, retaliatory or otherwise, of the Rwandan Patriotic Front (RPF). The model was not perfect.

Justice Goldstone explained how he had set up the Prosecutor’s Office in Kigali, with the tribunal itself taking place in Arusha, Tanzania. He asked all of his team to peer review each indictment, whether the lawyer was prosecuting or not, to gain a full understanding of each case. Subsequently, the decision to prosecute was made on a majority basis as the team’s view was not always unanimous, carefully considering and discussing any opposing, minority views before proceeding with a prosecution.

Echoing Doctor Plesch’s historical findings, Justice Goldstone reported that gender crimes were considered in the War Crimes Commission (WCC) of 1944-1948, with about 8000 convictions in domestic courts.

Justice Goldstone concluded that the notion of peer review was not new, with the WCC conducting a peer review by 16 countries, including India, the USA and China, to sift through each case before reaching a decision to prosecute. Should the ICC adopt a similar approach, he mused. It would certainly address any perception of bias against African or small state nations.

The last guest speaker was Robert Misigaro of BBC World Service, who spoke passionately about the perceptions of double standards in international justice. “Why don’t we push certain questions?”, he posed, citing a recent decision to not investigate the US for alleged war crimes during its campaign in Afghanistan. He also questioned who the ICC was actually for, as the victims want to see their perpetrators brought to international justice and to “go and have their day in court.”

The session ended with many interesting questions and comments, including the resourcing of the ICC – the ICC “needs to go on a diet” opined Doctor Plesch; whether Tony Blair and George W. Bush should be indicted for the regime change in Iraq, and that Africans want to see a more vocal opposition to a discriminatory Western narrative and greater ICC involvement regarding Omar Al Bashir, former president of Sudan. Of particular note was a question from Dr Nick Westcott, Director of the Royal African Society, posing whether we should salvage the concept of the ICC, adding that although there is the “tarnished message” of Western justice on African peoples, the “rationale remains strong.” Justice Goldstone countered that the ICC has to succeed, seeking improvements at the national level in domestic courts. The ICC is “all about politics, and some of it is a long way off.” We will have to wait to see what the future brings.

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