Given the violations on the continent in recent years, Africa will be part of the immediate focus of a permanent ICC. Its effective functioning will depend on the extent to which Africans can create the conditions for the ICC to operate effectively. This article argues that there are important developments at the level of regional and sub-regional organisations in Africa, which will enhance the work of an ICC. But real gains will depend upon the support of the leadership of individual states.
Developments in the OAU
The decision by the OAU (1997) to establish a permanent court of Human Rights is a development consistent with the aims of an ICC. This attempt to strengthen the existing African human rights system is an indication of Africas willingness to deal with impunity at the continental level. Thus, in principle, African states are collectively in support of a standing tribunal. The involvement of the International Court of Justice in the process of developing an African Court symbolises the growing cooperation between global and regional organisations. The major shift in attitudes on the continent on the issues of sovereignty and non-interference in the internal affairs of member states cardinal rules of the OAU is also an indicator that a permanent tribunal can work in Africa.
This shift in thinking has been prominent in two sub-regions. In West Africa, the Nigerian-led peace operation in Liberia under the auspices of the Economic Community of West African States (ECOWAS) (see RRN Network Paper 22), and recently the intervention in Sierra Leone presented as an ECOWAS-sponsored operation despite Nigerias dominance, were both cases of intervention in a nation state to restore order and control atrocities. Both interventions were explained on humanitarian grounds. What is perhaps more interesting in the case of Sierra Leone is that humanitarian arguments and the wish to reverse a military coup which displaced a legitimately elected government, ranked higher as justifications, than the bilateral defence pact between Nigeria and Sierra Leone. The other example is the OAU sanctions against Buyoyas regime in Burundi, that resulted from a military coup which was seen as likely to further destabilise the country, thereby creating another cycle of impunity.
Crimes of genocide and crimes against humanity on the African continent have been committed mainly within states. An ICC cannot function effectively without the cooperation of individual states. Apprehension of suspects will very much depend on the support and consent of the state concerned. These positive developments at the level of the OAU will not necessarily guarantee their support. Despite the relaxation of sovereignty, the concept remains a reality which cannot be ignored. In instances where such crimes have originated from the current regime or forces loyal to it, it is unlikely that the government will easily cooperate with the ICC. The tribunal will have to rely on the goodwill of other states, which may be harbouring some of the suspects (note that trials cannot take place in absentia). In this regard, many African states may support the ICC by handing over suspects within their borders. Regional alliances and other political priorities however may not always make such arrests possible.
One can ask whether the regional mechanisms mentioned above could also encompass the apprehension and hand-over to an ICC of suspects? The collective imposition of sanctions may not be effective and may not succeed in pressurising a reluctant regime to cooperate with the tribunal. The other option is for a strong international force to make arrests in the territory of a non-cooperative regime, as has been seen in Bosnia, where NATO troops have apprehended some of the suspects of crimes against humanity.
Only a few powerful states on the African continent have the capacity to constitute an effective regional intervention force, the most prominent ones being Nigeria and South Africa. Of the two, Nigeria is the only one that currently appears willing to conduct such military interventions in its sphere of influence West Africa. South Africa appears to have opted for a regional leadership role in diplomacy and mediation as seen by Mandelas efforts in former Zaire. It has not indicated any interest in military operations. Even in its internal affairs, South Africa has opted for a truth and reconciliation commission rather than punitive measures for human rights abuses of the past. Nigerias willingness to conduct military operations may be reduced if and when a democratically elected government comes to power. Domestic opposition to ECOMOG for its human and financial costs has always been ignored by Nigerias military regime. An accountable government will find it difficult to ignore public opinion.
Even if some states participating in a regional intervention force were willing to fish out suspects, such practice could not be uniformly applied as the powerful states may themselves resist such attempts. Nigeria is a prime example. Although it condemned and sought to reverse the military coup in Sierra Leone, Nigeria itself faces condemnation for a similar offense for jailing the winner of an election and for its human rights abuses. No force is powerful enough in the sub-region to remove Nigerias military regime and re-instate the president elect.
This reality has been with Africa for some time. Although many of its states are signatories to many international conventions, and the continent often shows collective willingness to combat impunity, achieving such goals in the past has been crippled by failure of individual member states to implement collective agreements. The slowness with which decisions at the regional level are implemented at the state level can be demonstrated by the initial limited response to calls for comments on the draft protocol on the establishment of a permanent Human Rights court. Only 4 of the 53 OAU member-states responded to the initial request. It is to be anticipated then that African states are likely to cooperate with an ICC only if they see it in their interest to do so. The ICC may encounter greater success in cases where there is no clear authority and sovereignty is blurred.