With Charles Taylor awaiting sentencing, having been convicted of aiding and abetting crimes committed by the RUF/AFRC during the civil war in Sierra Leone, what are the implications for international justice, and for Africa in particular? Here are a few initial thoughts.
For the US State Department, the message is clear:
As the first head of state to be convicted since Karl Dönitz at Nuremburg (Dönitz having taken over as Germany’s leader following Hitler’s suicide), international justice is finally beginning to bare its teeth.
Arguably, it was the indictment of Taylor, rather than yesterday’s conviction, that set the precedent, establishing as it did the legal principle that a serving head of state could be prosecuted (Slobodan Milošević was sent to the International Criminal Tribunal for the Former Yugoslavia after he had resigned office). Since Taylor’s indictment, the ICC has issued arrest warrants for two other heads of state: Muammar Qaddafi (killed in October last year), and President Omar-al-Bashir in Sudan. Former Cote d’Ivorian president Laurent Gbagbo is due to go on trial this June.
Is al-Bashir quaking in his bed at the moment, looking round at who might betray him as part of a grab for power? And what about Chad’s former leader Hissène Habré, currently in exile in Senegal, and who some suggest could be next to face attempts to have him transferred to the Hague? Has Taylor’s conviction made them both more vulnerable to appearing before the ICC? Probably not, in truth. Whilst a successful prosecution has given a fillip to the special court (and indirectly the International Criminal Court at the Hague, which is a separate entity, and only achieved its first prosecution last month), hopes for extraditing Habré owe more to the defeat of his former protector, Abdoulaye Wade in Senegal’s recent elections, than a strengthened ICC. And al-Bashir, currently orchestrating the bombing of South Sudan, does not look any more vulnerable than he did last week. They may well face a trial in the years to come, but that has not been made more likely by yesterday’s events.
What of others facing prosecution at the ICC: are there any lessons to be drawn from yesterday’s conviction? Uhuru Kenyatta and William Ruto (both presidential candidates), radio presenter Joshua arap Sang and cabinet secretary Francis Muthaura have been charged with crimes connected to the violence in the aftermath of Kenya’s 2007 elections. Have their chances of being convicted (assuming Kenya’s lobbying to have the case effectively dropped fails) increased? The failure to demonstrate Taylor had effective command and control over the RUF/AFRC (and thus could be said to have orchestrated the crimes and atrocities) perhaps suggests the difficulty of proving beyond reasonable doubt charges of organising violence. Certainly individuals have been convicted by the International Criminal Court for Rwanda for inciting genocide (Ferdinand Nahimana and Jean-Bosco Barayagiwiza for the role their Radio Television Libre des Mille Collines played in encouraging the killings). But the failure to show Taylor organised and controlled the rebel forces committing the atrocities (even if he aided and abetted) suggests efforts to link Kenyatta and Ruto in particular will be difficult, especially if the Kenyan government refuses to cooperate.
What also of the aftermath of Taylor’s conviction. Whilst warmly welcomed in Sierra Leone, by governments in the global north, and by human rights organisations, the reaction in Monrovia was less positive, with many asserting this was a conspiracy by the US and UK, and demanding Taylor’s release and return. Should the four Kenyans appear before the ICC, there is a risk this could spark renewed violence by their supporters, although opinion polls suggest Kenyans are more supportive of the process than are the political class, for whom prosecution (or even a trial) of Ruto and Kenyatta will see considerable political upheaval and realignment.
Although Africa is the largest block in the ICC (with 33 members), there is a widespread sense across the continent that it is dominated by western strategic interests, and that Africa is unfairly singled out for attention. Indeed, the AU has called for non-cooperation with the ICC, and requested the proceedings against those in Kenya and al-Bashir be ‘deferred’ (i.e. dropped). It is true that all current investigations are in Africa, but supporters of the ICC argue that this is due to weak AU and national systems for (and commitment to) prosecuting current and former leaders and politicians, rather than singling out the continent. That answer is only partially convincing, especially with the US still outside the system (although President Obama’s support for the ICC’s investigation into Qaddafi has potential ramifications for the US position).
The current Chief Prosecutor, Luis Moreno-Ocampo, is due to be replaced this summer by former Gambian Minister of Justice Fatou Bensouda. Will this bring round sceptics? Perhaps, but for those who see efforts to try their current or former head of state or senior national politicians as an attack on national integrity, blaming the ‘western conspiracy’ will remain an all-too easy fall-back.
Yesterday was a big day, and a good result for the proponents of pro-active international justice, and most importantly for the victims of the terrible atrocities committing during the civil war in Sierra Leone. But whilst it will make the history books for the precedents it has set, the actual impact on efforts to bring political leaders to account for crimes committed in their name remains more cloudy.