International war crimes: Whose truth? Whose justice?

The theme of this conference essentially calls into question many of the truisms associated with the project of building an international criminal justice regime. Such an inquiry is urgent in light of the momentum that the international criminal justice project has gained since the creation of the Yugoslav and Rwandan Tribunal, the International Criminal Court for Sierra Leone and the ratification of the Rome Treaty creating the International Criminal Court (ICC).

The problem is whether the project of universal impartial justice is even conceivable in a hegemonic world order undergoing a neoliberal globalisation process. Arguably, such a project would not have been undertaken without globalisation. And yet, do we even agree on what kind of justice we are asking for? Is it retributive or restorative? Compatible with or irreconcilable with peacemaking? Which approaches will most further the goal of human dignity? And – most importantly – who gets to decide?

In April we celebrate the 17th anniversary of the first democratic elections in South Africa, ending a system of racial oppression that was declared a crime against humanity by the international community.[1] The process that ultimately ended apartheid included internationally brokered negotiations[2] and constitutionally-entrenched amnesties for politically motivated crimes[3] promoted by the United Nations itself.

Thus, a system of institutionalised forced labor, forced removals, denationalisation, disenfranchisement, torture, massacres, disappearances, impoverishment, international terrorism, assassinations, and military destabilisation, was ended in a process that saw only token prosecutions. And it has been hailed as a ‘miracle.’[4]

Justice in South Africa was defined as ‘truth’: Full disclosure of the relevant facts. Truth was enlisted as part of the state-building process in a country whose stability was deemed critical to global capital.

While South Africa’s sovereignty was protected, however, sovereignty in other states undergoing civil wars has been superseded by international mechanisms. We should not be under the illusion that such mechanisms are apolitical. These institutions are established in the context of political compromise, where neither opposing side in a civil war has won an outright military and where key figures of the old regime share power, as F.W De Klerk did in South Africa.

What then, can be the role of human rights discourse where glaring disparities of power and wealth persist after political transformation? Can the discourse be deemed fair and impartial? Even the post-WWII tribunals that launched the international criminal justice project were tainted by racism, as the Allies refused to persecute Italian forces for war crimes committed against civilian populations in Ethiopia, including widespread use of mustard gas.[5]

Prosecutions were not pursued in Namibia or Zimbabwe, other white minority settler regimes, nor in Mozambique, Angola, or Guinea-Bissau, former Portuguese colonies liberated in the post-post colonial period.

So while I must say that I was, and remain, highly critical of the Truth and Reconciliation Commission (TRC) process in South Africa,[6] shouldn’t we at least be asking ourselves whether there are any lessons to be learned from this model for the rest of Africa?

While African states were the most supportive bloc for the establishment of an International Criminal Court, much controversy has been generated by the prosecutor’s exclusive focus on conflicts in African countries. True, some of these were technically self-referrals, but in a civil war context, isn’t a ‘self-referral’ outcome-determinative, or at a minimum victors’ justice? What are the implications for Africa of the empowerment of a permanent judicial criminal mechanism in the political context of neo-liberal globalisation?

Africa has been the subject of two prior globalisations: The trans-Atlantic slave trade from the 15th-19th centuries, and the global economic expansion dating from approximately 1870-1914 – the first Scramble for Africa. Neo-liberal globalisation means the following:

- The further erosion of the already emaciated states’ power to protect and provide for the welfare of their people. State authority has been forcibly transferred to
1) International financial institutions and their most powerful Member States;
2) Transnational corporations;
3) International investors and banks;
4) A variety of non-state actors, including private contractors, international NGOs, rebel groups, militias, and mercenaries.

- Neo-liberal globalisation means a new Scramble for Africa’s wealth and resources. This involves traditional booty such as diamonds and gold, old and new strategic and economic minerals. The Scramble has recently been intensified by the discovery of oil and gas deposits across the Continent, fueling conflicts of incredible brutality.[7]

- Globalisation means for Africa a process of economic and political destabilisation that invites foreign military intervention under the guise of the failed state doctrine, the war on terror, and, perhaps, enforcement of the arrest warrants of the International Criminal Court.

Is the Nuremberg paradigm of individual accountability the only, or the best, route to post-conflict justice? To what extent does the liberal paradigm of individual responsibility – whether under a reconciliation or prosecution model – obscure systemic, structural crimes like apartheid, occupation, colonialism, or the neo-liberal global trade regime? Indeed, might it be said that the Rome Statute itself reflects a form of victors’ justice in the crimes it chose to codify?

Why isn’t production of weapons of mass destruction, including nuclear weapons, a crime against humanity under the Statute? What about arms trafficking to conflict areas? Trade in conflict minerals? Recruitment of former child soldiers by private contractors, a subject currently being debated in Britain?

Is the ICC’s legitimacy, and hence its efficacy, irreparably undermined as long as nationals of powerful States remain off-limits to the Court’s jurisdiction, while the elite, undemocratic, and highly politicised Security Council can haul in non-parties to the Rome Statute?

Although the US is not a party to the Rome Statute, the legal advisor to the United States Department of State led a delegation to the ICC Review Conference in Kampala. Reportedly the Obama Administration is considering a request from Prosecutor Luis Ocampo to deploy AFRICOM – the US military command for Africa – to ‘assist’ in the enforcement of ICC warrants.[8] As Harold Koh reportedly stated, the US, while still unwilling to become a party to the Rome Treaty, would cooperate with the ICC when it is in the interest of the US to do so.[9]

AFRICOM’s genesis can be traced to a December 2000 CIA report in which analysts speculated about the future supply of African oil. In his May 2001 report on US energy policy, former vice-president Richard Cheney highlighted the new significance of African oil for US markets.[10] Eight months later, the Institute for Advanced Strategic and Political Studies (IASPS), a neoconservative think-tank based in Israel, held a symposium in Washington, D.C. entitled ‘African Oil: A Priority for U.S. National Security and African Development.’ Speakers included US diplomatic and intelligence officials, members of Congress, and energy industry executives. The symposium spawned a working group, the African Oil Policy Initiative Group (AOPIG), which issued recommendations for US policy.

Asserting a convergence of US energy security interests and African economic development goals, the group proposed an ‘historic, strategic alignment with West Africa,’ with the Gulf of Guinea emerging as a ‘vital U.S. interest.’ The goal is a US-West Africa relationship defined by: 1) a focus on US military engagement in sub-Saharan Africa; 2) large scale US capital investment in regional oil and gas infrastructure projects; 3) creation of a US-Africa free trade agreement; and 4) conditioning debt forgiveness upon free market reforms in critical sectors.[12]
In 2002, the Bush Administration’s National Security Strategy, in which the doctrine of preemptive military action was announced, asserted that Africa’s ‘disease, war, and desperate poverty’ threatens a U.S. strategic priority: ‘combating global terror.’[13] A senior Defense Department official reportedly commented in 2003 that ‘a key mission for U.S. forces (in Africa) would be to ensure that Nigeria’s oil fields … are secure.’[14] In 2004 a Congressionally-appointed panel proposed a ‘conceptual shift to a strategic view of Africa.’[15] The Administration’s 2006 National Security Strategy identifies Africa as ‘a high priority’ and – in a resurrection of the doctrine of terra nullius – ‘recognizes that [U.S.] security depends upon … strengthening fragile and failing states and bring[ing] ungoverned areas under the control of effective democracies.’[16] In February 2007, President Bush announced the formation of AFRICOM,[17] a new unified combatant command to ‘protect U.S. national security objectives in Africa and its surrounding waters,’[18] and to promote ‘peace … development, health, education, democracy, and economic growth in Africa.’[19]

Will AFRICOM further peace and justice in Africa? Far-away proceedings in The Hague, or an expensive show-trial in Sierra-Leone? Is impunity the only alternative?

If Africa is ever to determine its own destiny, Africa must build its own institutions, tailored to its own history and realities, as slow and as painful a process as this might be. There are some efforts underway under the authority of the African Union, ECOWAS, and other fledgling institutions. These institutions and independent entities must be strengthened. Moreover, vigorous conflict resolution will require the legal and political empowerment of minority sub-State groups so that they have a stake in peace.

Some of these measures might include:
- Equitable resource distribution;
- Reconsideration of the Cairo Declaration;
- Consideration of the value of international legal personality for sub-State groups subject to their willingness to lay down arms;
- Experimenting with various forms of autonomy;
- Elevation of respect for language rights.

At the same time, Africa’s friends in the West must continue to fight for the right of Africa to control and use its own resources for the well-being and advancement of her people, and for the building of Afro-centric institutions that use Africa’s rich history and traditions to solve Africa’s problems.

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* This paper was presented at the International War Crimes Conference in London, UK, 3-6 March 2011.
* Professor Jeanne M. Woods is the Henry F. Bonura, Jr. Distinguished Professor of Law at Loyola College of Law, New Orleans, USA.
* Please send comments to [email protected] or comment online at Pambazuka News.

NOTES

[1] Apartheid Convention, G.A. Res. 3068 (XXVIII) at 75, U.N. Doc. A/9233 (Nov 30, 1973).
[2] The Convention for a Democratic South Afirca (CODESA), held in late 1991, was the first round of formal negotiations on South Africa’s political transition from minority rule. Timothy Sisk, The Democratization of South Africa 201-225 (1995).
[3] AZAPO v. President of South Africa, 1996 (4) SALR 671 (CC).The families of anti-apartheid activists Steve Biko, Griffiths Mxenge and Fabian Ribeiro argued that the Commission's power to grant amnesty deprived them and an entire class of victims from their right to recover damages from those who committed gross atrocities against their loved ones. The Court ruled that the national unity and reconciliation provision in the Interim Constitution contemplated amnesty in its "most comprehensive and generous meaning." Id. at 698. The Interim Constitution provided that "in order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offenses associated with political objectives and committed in the course of the conflicts of the past." The Court pointed out that according to the language in the epilogue of the Interim Constitution, "Parliament not only has the authority ... to make a law providing for amnesty to be granted ... but ... is in fact obliged to do so." Id. at 683. The Court stated that the Act was established as a means to encourage truth-telling and to "create[] the emotional and structural climate essential for [South Africa's] reconciliation and reconstruction." Id. at 684. The Court added that "but for a mechanism providing for amnesty the "bridge' itself might never have been erected ... the terms of the transition required not only the agreement of those victimized by abuse but also those threatened by the transition to a "democratic society based on freedom and equality.'" Id. at 685.
[4] Truth and Reconciliation Commission Final Report, Volume 1, p. 5, South Africa (1998). See also David Everatt, Policy Brief: Yet Another Transition? Urbanisation, Class Formation an d the End of the National Liberation Struggle in South Africa, p.1, available at pdf.usaid.gov/pdf_docs/PNACL306.pdf.
[5] Richard Pankhurst, Italian Fascist War Crimes in Ethiopia: A History of their Discussion from the League of Nations to the United Nations (1936-1949), 6 NE. AFRICAN STUDIES 83, 84 (1999), citing A. Gingold Duprey, De l’invasion à la libération de l’Ethiopie, Paris (1955), 340, 365-6, 572, 596, 627, 630-1, 647-52. Available at http://muse.jhu.edu/journals/northeast_african_studies/v006/6.1pankhurst.html
[6] See Jeanne M. Woods, Reconciling Reconciliation, 3 UCLA J. INT’L L & POL’Y 81 (1998).
[7] Africa Policy Institute Background Paper, The 21st Century Global Scramble for Africa and the Recession: Implications for Africa’s Security and Democratic Crisis, available at http://pambazuka.org/en/category/features/64752
[9] Harold H. Koh and Stephen J. Rapp. US Engagement with the International Criminal Court and the outcome of the Recently Concluded Review Conference.US Department of State. June 15, 2010. Available at http://www.state.gov/s/wci/us_releases/remarks/143178.htm
[10] National Energy Policy Report, Office of Vice President Richard Cheney, May 16, 2001.
[11] According to the website of the IASPS, its mission is to save Western society from the “convergence of Western Elites and Islam.” See http://www.iasps.org/mission.php (last visited 9/28/07).
[12] Report of the African Oil Initiative Policy Group at p. 18, available at http://www.iasps.org/strategic/africanwhitepaper.pdf (last accessed 10 Nov. 2007).
[13] The National Security Strategy of the United States of America (2002) p. 7, available at http://www.whitehouse.gov/nsc/nssall.html (last accessed 10 Nov. 2007).
[14] Greg Jaffe, “In Massive Shift, U.S. is Planning to Cut Size of Military in Germany,” Wall Street Journal, June 10, 2003.
[15] Walter H. Kansteiner III and J. Stephen Morrison, Rising U.S. Stakes in Africa: Seven Proposals to Strengthen U.S.-Africa Policy, May 2004, available at http://www.allafrica.com/sustainable/resources/view/00010230.pdf (last accessed 10 Nov. 2007).
[16] The National Security Strategy of the United States of America (2006) p. 37, available at http://www whitehouse.gov/nsc/nss/2006/ (last accessed 10 Nov. 2007).
[17] The White House Office of the Press Secretary, “President Bush Creates a Department of Defense Unified Combatant Command for Africa,” Feb. 6, 2007.
[18] Congressional Research Service, Africa Command: U.S. Strategic Interests and the Role of the U.S. Military in Africa (summary), July 6, 2007 (hereinafter “CRS Report”).
[19] White House Press Statement, supra n. 30.