A last refuge for justice
October 12 2011 at 07:53am
At the end of September, the judges of the International Criminal Court’s (ICC) Pre-Trial Chamber III authorised the court’s prosecutor to launch formal investigations in Ivory Coast. The investigations will focus on the violence that occurred in Ivory Coast from November 28, 2010, following the release of the results of the second round of elections in which the opposition movement, led by Alassane Ouattara, was declared victorious.
The post-election violence in Ivory Coast lasted more than five months. During this period, reports of widespread murder, rape and forced disappearances abounded. As a result of the protracted violence, 3 000 people died and about one million more were internally displaced.
While relative stability has returned to the west African country, according to the UN Mission in Ivory Coast, more than 30 000 people remain internally displaced. As per ICC procedure in matters such as these, the authorisation by the court’s judges followed a request on June 23, 2011 from the ICC prosecutor, Luis Moreno-Ocampo, to begin the investigations. Ocampo’s request stemmed from an invitation by the Ivorian government to investigate crimes committed in the country.
The judges’ decision is a welcome development in ensuring that justice is served for crimes committed in Ivory Coast. However, the decision comes at a time when the African Union’s relationship with the ICC remains sour. Since 2009, when the ICC issued an arrest warrant for Sudanese President Omar Hassan al-Bashir, the AU has called on African states not to co-operate with the ICC.
Ironically, several African countries, notably Botswana, Burkina Faso, Nigeria, Sierra Leone and South Africa, have consistently voiced their support for the ICC and remain committed to co-operating with it.
Furthermore, several African states – Ivory Coast included – have shown continued support for the ICC by calling on the court to investigate and prosecute crimes committed in their countries.
The first situations before the ICC came about after states that are signatories to the ICC’s Rome Statute asked the court to investigate crimes committed in their respective countries. These states are Uganda, the Democratic Republic of the Congo and the Central African Republic.
The ICC can also claim jurisdiction over a matter in a state party if the prosecutor, of his own accord, requests authorisation from the ICC’s pre-trial chamber judges to initiate investigations. To date, the prosecutor has only exercised this proprio motu power once, in the case of Kenya’s post-election violence.
The UN Security Council may refer situations to the ICC in countries that are not state parties to the Rome Statute. The security council has exercised this power in respect of two situations before the court: those of Sudan’s western province, Darfur, and Libya.
With the recent authorisation of investigations in Ivory Coast, four of the seven cases before the ICC are the result of choices made by African states themselves. This is a clear sign of acceptance by Africans of the importance of the ICC in assisting them in meeting their obligations to end impunity and promote international criminal justice.
While Ivory Coast has not ratified the Rome Statute, it has formally accepted the jurisdiction of the ICC. The first declaration accepting the ICC’s jurisdiction was made in April 2003 by then-president Laurent Gbagbo.
In December 2010 and again in May 2011, incumbent Alassane Ouattara made similar declarations and invited the ICC prosecutor to investigate crimes committed since November 2010.
The peculiar situation in which Ivory Coast has accepted the ICC’s jurisdiction, without taking the broader step of ratifying the Rome Statute, creates an interesting precedent for the authorities of the Occupied Palestinian Territories. The Palestinian authorities are bidding for statehood and in January 2009, made a similar declaration granting the ICC jurisdiction over the crimes allegedly committed by Israel during Operation Cast Lead in Gaza. If the occupied Palestinian territories are granted statehood, the Palestinian authorities may also wish to refer the situation in their territories to the ICC. However, pending the outcome of the Palestinians’ bid for statehood, to date all the cases before the ICC are from African countries.
This African focus has led to some criticism of the ICC as targeting Africa. This criticism, however, ignores important considerations.
Firstly, 32 African countries have voluntarily ratified the Rome Statute and Ivory Coast has voluntarily accepted the ICC’s jurisdiction.
Secondly, the criticism fails to acknowledge the fact that the majority of the situations before the ICC areas are a result of self-referral by the government of the country concerned.
Furthermore, the criticism overlooks that the ICC serves as a court of last resort, which only intervenes when a state is either unwilling or unable to prosecute alleged perpetrators of international crimes.
Lastly, the criticism does not acknowledge the pervasive culture of impunity and weak criminal justice systems in Africa – factors that have contributed significantly to the continued commission of international crimes on the continent.
The ICC exists to fill the impunity gap and to ensure justice for persons responsible for the most serious crimes of international concern. The ICC is furthermore complementary to national criminal jurisdictions. The preamble of the Rome Statute stresses that the first commitment by states is to themselves “end impunity for the perpetrators of these crimes and thus contribute to the prevention of such crimes”.
Ivory Coast’s recent invitation to the ICC, alongside the ratification of the Rome Statute by 32 African states, are examples of African countries fulfilling their obligations to promote international criminal justice and end impunity.
The fact that at present, all the situations before the ICC are from African countries indicates not only that unacceptable levels of violence bedevil our continent, but it also presents an opportunity for Africa to be at the centre of developments in international criminal justice.
Even as certain African leaders criticise the ICC’s involvement on the continent, for Ivorian victims of mass atrocities, that involvement sends out a symbolically important message that their suffering has not been forgotten and that those responsible may meet justice, through the work of a faraway court in The Hague.
Ottilia Anna Maunganidze is a researcher in the International Crime in Africa Programme at the Institute for Security Studies.