Accountability in Africa: Current Practice, Future Directions
BY MARK DRUMBL
Several African atrocities have become judicialized internationally. Cases include Rwanda, Sierra Leone, Sudan, the Democratic Republic of Congo, and Uganda. An ad hoc tribunal created by the United Nations Security Council, the International Criminal Tribunal for Rwanda (ICTR), prosecutes individuals suspected of high-level involvement in the 1994 Rwandan genocide. A hybrid (mixed) tribunal, the Special Court for Sierra Leone (SCSL), prosecutes and punishes perpetrators of crimes against humanity and war crimes in committed in that country. The permanent International Criminal Court (ICC) is actively investigating four situations involving African countries: Uganda, the Democratic Republic of the Congo (DRC), Sudan (specifically, Darfur), and the Central African Republic. In these remarks I describe the institutional and operational aspects of this phenomenon. I then follow with a more analytic assessment of the accomplishments and shortcomings of judicialization in these cases.
AFRICAN AND INTERNATIONAL CRIMINAL LAW
Within the African context, Rwanda provides the most robust example of extensive judicialization and institutional overlap. As of the spring of 2009, the ICTR has convicted about 35 individuals (including seven cases that are under appeal) and has acquitted six. At the national level, over 10,000 individuals have been adjudicated by Specialized Chambers within the Rwandan national court system that began operating in 1996 and shut down about a decade later. Rwanda’s Ministry of Justice claims that over one million people have so far been tried by over 12,000 neo-traditional gacaca courts, which are expected to wrap up their work by June 2009.1
Although conceptually originating in decentralized, community-based forms of dispute resolution, gacaca courts are formalized through national legislation. Gacaca courts are composed of elected judges (with no requirement of a priori legal training or experience). There are no defense lawyers. A number of gacaca cases have involved proceedings in absentia.2 Insofar as in the wake of the genocide about 125,000 individuals were detained by the Rwandan government, a large number of the individuals who have been processed by gacaca are not part of the original cohort of genocide suspects. Despite the informality of the process and the socio-political nature of the institution, gacaca serves a punitive function as judges can hand down severe sentences (up to life imprisonment). However, owing to confessions, plea bargains, substituted sentences of community service, and credit for time served, most of the individuals convicted of genocide by gacaca courts have now been released back into the public, often to their home villages (generally the location where they had committed the crimes). The acquittal rate is high – 20 to 25% – thereby sparking a need for many acquitted suspects also to be reintegrated.
The ICTR Chief Prosecutor has experienced difficulties in transferring suspects to national jurisdictions in Rwanda owing to concerns of ICTR judges regarding due process, severity of sentence—particularly life imprisonment with special conditions, i.e. solitary confinement—and witness protection in Rwanda. ICTR judges have rejected every transfer request brought by the ICC Prosecutor. Such transfers nonetheless remain as part of the ICTR’s Completion Strategy. A small number of countries, including Canada, Switzerland, and Belgium, have successfully prosecuted Rwandans domestically for acts related to the 1994 atrocity. Individuals suspected of genocide in Rwanda also have been subject to extradition and immigration proceedings in a number of countries, not always successfully.3 The United States Justice Department’s Office of Special Investigations is currently seeking to denaturalize 82-year old Lazare Kobagaya, a Burundian national who had applied for U.S. citizenship, on the grounds that he covered up his involvement in the 1994 genocide in his 2005 application.4 Proceedings are occurring in Kansas. In 2005, the Supreme Court of Canada ruled that genocide suspect Leon Mugesera could be deported from Canada; Rwanda would like to prosecute him, but the Canadian government has not yet sent him to Rwanda owing to human rights concerns regarding the kind of trial he would face there.
The SCSL has convicted eight individuals (three recent convictions in the Revolutionary United Front case are under appeal), has acquitted none, and the Charles Taylor trial continues in The Hague (where it was moved from Freetown owing to security concerns). Sierra Leone also had a truth and reconciliation commission, an option that Rwanda has eschewed.
Three state parties to the Rome Statute – Uganda, the DRC, and the Central African Republic – have referred situations occurring on their territories to the ICC. In addition, the Security Council has referred the situation in Sudan, a non‐state party. In Uganda, arrest warrants had been issued against five leaders of the Lord’s Resistance Army (LRA). Two of these indictees have reportedly been killed, although only one of these deaths, that of Lukwiya, has been confirmed. The remaining suspects are all at large, including LRA leader Joseph Kony. In the DRC situation, proceedings against UPC rebel leader Thomas Lubanga Dyilo are at the trial stage. Lubanga currently faces charges of enlistment, conscription, and use of child soldiers, a war crime in both international and non-international armed conflict. In yet other DRC cases Germain Katanga and Mathieu Ngudjolo Chui, who face charges of war crimes and crimes against humanity, are currently in ICC custody (their trial is scheduled to start on September 24, 2009), while suspect Bosco Ntaganda, against whom a warrant of arrest has been unsealed, remains at large. In Sudan (Darfur), process has been issued against six defendants. These include members of the government and rebels, all but one of whom (rebel leader Abu Garda) remains at large. An ICC Pre-Trial Chamber issued an arrest warrant against sitting Sudanese Head of State Omar Al Bashir in March 2009 on five counts of crimes against humanity and two counts of war crimes. The Pre-Trial Chamber did not determine there to be reasonable grounds under article 58 of the Rome Statute to issue an arrest warrant on charges of genocide (although that judgment is under appeal).5 Finally, regarding the Central African Republic situation, Jean-Pierre Bemba is in custody in The Hague. His case is currently proceeding before Pre-Trial Chamber III, which held confirmation of charges hearings in January 2009.
National prosecutions for atrocity have occurred in the Sudan, but these are sham proceedings that lack in credibility. Uganda has affirmed an interest in proceeding nationally, and is haltingly creating a domestic war crimes chamber, though has also issued amnesties, faces complex realities of reintegrating child soldiers, and is also mediating demands among some Acholi in favor of traditional forms of dispute resolution such as mato oput.
INTERNATIONAL CRMINAL LAW: ACCOMPLISHMENTS AND CHALLENGES
The influence of international criminal tribunals is not principally felt in terms of the numbers of detainees processed. Rather, the work of international criminal tribunals is most palpable in terms of the generation of substantive law, which serves important expressive, social constructivist, and jurisprudential functions. For example, the ICTR and the SCSL have done much to mainstream the criminalization of violence against women; both institutions also have brought the enlistment of child soldiers to the legal forefront. The ICC continues in this tradition. The ICTR has expanded the scope of genocide, in terms of the boundaries of what, exactly, constitutes an ethnic group, and also in terms of which acts can constitute genocide and who can commit the crime. In this regard, international criminal law identifies the permissible, denounces the impermissible, and stigmatizes those who bust the global trust.
The generation of substantive law is not limited to the international level. International criminal law, after all, seeps into national jurisdictions. International trials become replicated nationally. As I have argued elsewhere, international criminal law exerts considerable conformist, catalyzing, and transplant influence on national jurisdictions.6 The result is more law, and more law that looks like international criminal law, nationally and even locally.
That said, more law, in particular more criminal law, does not inexorably lead to more justice in the aftermath of atrocity. Prioritizing the atrocity trial to the detriment of other accountability mechanisms unduly crimps the overall justice narrative. All victim communities do not necessarily idealize the atrocity trial. Many communities in fact prefer other justice modalities or an admixture thereof — including truth commissions, lustration, memorialization, public inquiries, community service, and traditional re-integrative practices. Atrocity trials tend to fall short of their many goals, which include retribution, deterrence, rehabilitation, reconciliation, and truth-telling. In the end, a challenge for international criminal law is to synergistically foster other justice mechanisms, not dissuade them or view them suspiciously as competitors.7 International criminal justice should involve much more than just international criminal law.
International criminal tribunals affect domestic political structures in the countries whose tragedies they judicialize. In some instances, international tribunals may inspire rule of law, promote transparency, and gut reprehensible governments. In other instances, they may help sitting governments stigmatize atrocious political opponents, which is salutary, but at the same time consolidate their own power and shield their own illiberal practices from scrutiny, both of which may be decidedly less salutary. The Rwandan and Ugandan governments have managed the ICTR and ICC, respectively, to these ends.
National prosecutions for atrocity also can serve ulterior purposes – both in terms of who they target and who they ignore. One example is the exclusion of the Rwandan Patriotic Front’s (RPF) crimes from the scope of the Rwandan gacaca tribunals. The RPF is the political party that ousted the genocidal Hutu Power government and currenty retains power. It also has turned to post-conflict justice institutions to level charges of genocidal ideology, negationism, and divisionism. In some cases, these charges are perceived as serving a political agenda. The Rwandan government has publicly accused high-profile individuals of such genocidal ideology, including Alison Des Forges, a now-deceased celebrated human rights activist, and Paul Rusesabagina, whose exact role at the Hotel Milles Collines in light of the hagiographic depiction thereof in the film Hotel Rwanda has been fiercely contested by certain Rwandans, including the government.8
The pursuit of criminal justice may come at the price of humanitarian justice. For example, aid groups were expelled from Sudan following the issuance of the al-Bashir arrest warrant. On the other hand, reports are also emerging out of Sudan that al-Bashir’s indictment is mobilizing his internal political opponents and eroding his political support (although some of these challengers may be even less respectful of human rights).
Moreover, insofar as the etiology of atrocity is different in any given afflicted society, what works in one jurisdiction may not work in another. One learning lesson is that a drive towards totalizing and parsimonious solutions may lead to suboptimal results, while acknowledgment of context, polycentric approaches, and diversity – although messier – may prove to be more operationally effective.
In conclusion, one of the reasons why international criminal law has limited transformative potential — despite the lofty rhetoric — is because it only scratches the surface of what justice actually entails following mass atrocity.
Mark A. Drumbl is the Alumni Professor at Washington & Lee University, School of Law, and Director of the Transnational Law Institute.
ENDNOTES
- Rwandan Cabinet Resolves to Entrust Gacaca Archives to Commission (April 17, 2009), available at http://www.hirondellenews.com/content/view/3192/182/. Charges against 3,000 suspects, mostly accused of very serious offenses, remain pending. [↩]
- 54 Genocide-Accused on the Run to Face one Single Trial in Absentia (February 18, 2009), available at http://www.hirondellenews.com/content/view/2961/182/. [↩]
- For example, in April 2009 a UK court released four Rwandans sought for extradition to Rwanda. [↩]
- Thousands of Burundian nationals are suspected to have played a role in the genocide. [↩]
- Aaron Gray-Block, World court prosecutor to appeal Bashir genocide ruling (March 13, 2009), available at http://www.reuters.com/article/worldNews/idUSTRE52C55S20090313. [↩]
- Mark A. Drumbl, Atrocity, Punishment, and International Law (2007). [↩]
- Local or non-juridical forms of justice never should be venerated and in some jurisdictions they may justifiably prompt human rights concerns and their legitimacy might be popularly contested. See Comments of Stephen Lamony, George Mason Conference (May 6, 2009) (notes on file with the author) [↩]
- See, e.g. Alfred Ndahiro and Privat Rutazibwa, Hotel Rwanda: Or the Tutsi Genocide as Seen by Hollywood (2008). [↩]
