FEATURE

Walking a tightrope: the International Criminal Court and conflict prevention in Africa Linus Nnabuike Malu

ABSTRACT Many African countries gained political independence in the 1960s. This era of independence came with promises and great expectations of economic, political and social development. Fifty years later, it is certain that the promises and expectations of independence have not been easily realised. Perennial violent conflicts have continued to ravage many countries in Africa, causing the catastrophic breakdown of law and order. Therefore, one of the major issues in conflict resolution discourse in Africa is how to develop functional mechanisms for the prevention of violent conflicts. This article examines the capacity of the International Criminal Court (ICC) to act as a mechanism for conflict prevention in Africa. Notwithstanding the doubts and uncertainties associated with the impact of law on conflict transformation, this article argues in the main that the ICC contributes to conflict prevention in Africa by expressing global norms of international law, challenging the culture of impunity in some countries, contributing to general deterrence, speedily intervening in some violent conflicts, and contributing to building some records of atrocities by identifying who did what.

KEYWORDS International Criminal Court; Africa; conflict prevention; peace

Introduction

Many African countries gained political independence in the 1960s.1 This era of indepen- dence came with promises and great expectations of economic, political and social develop- ment. After more than half a century of stumbling, it is certain that the promises and expectations of independence have not been easily realised. Perennial armed conflicts, wars, corruption, bad governance, problems associated with the artificial boundaries imposed on Africa, and despotism have almost killed the dream.2 The violent conflicts that continue to ravage many countries in Africa have led to the catastrophic breakdown of law and order. Therefore, one of the major issues in conflict resolution discourse in Africa is how to develop functional mechanisms for the prevention of violent conflicts.

There are two main aspects to conflict prevention in Africa: developing short-, medium- and long-term measures for conflict prevention, and preventing relapses into war after peace agreements have been fully executed by the parties concerned. Recent examples of such relapses into violent conflict can be found in Liberia, Mali, Sierra Leone, Sudan, Côte d’Ivoire, the Democratic Republic of the Congo (DRC), South Sudan and the Central African Republic (CAR). Conflict prevention involves establishing a just society after war or violent con- flict. One way of establishing a just society is to firmly establish the rule of war, wherein the new government functions according to established legal principles. This can be achieved

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AFRICAN SECURITY REVIEW, 2017 VOL. 26, NO. 1, 26–40 http://dx.doi.org/10.1080/10246029.2016.1264438

by dealing firmly and decisively with the issue of transitional justice. Post-conflict countries face the onerous task of locating appropriate transitional justice mechanisms that will create an atmosphere for establishing sustainable peace. One such mechanism is the Inter- national Criminal Court (ICC), established as a permanent court with powers to prosecute persons responsible for the perpetration of serious crimes that break international law. Argu- ably, the most important advantage of the court is that it seeks accountability for grave inter- national crimes and promotes the establishment of national mechanisms to combat these crimes, which could deter such crimes and help in creating conditions for conflict prevention.3

This paper examines the capacity of the ICC to act as a mechanism for conflict prevention in Africa. It explores the likely impact of the court on conflict prevention as a deterrent mechan- ism, and assesses the effectiveness of the court as a mechanism for transitional justice to build sustainable peace.

Conceptualising conflict prevention in Africa

One of the main features of the post-Cold-War era is the growing consensus around the importance of conflict prevention. This is partly due to the realisation that it may be easier and wiser to prevent crises than manage them, and because of the lessons learned from the violent conflicts that engulfed the world during this period, such as the wars in Rwanda, Liberia, Sierra Leone, Sudan, Somali, Iraq, Afghanistan and Yugoslavia.4 A fundamental issue in conflict prevention is determining what forms of prevention are effective, and the circum- stances under which they will or will not work. Another important issue is understanding the causes of violent conflicts. If the causes of a particular violent conflict can be properly located then it is possible to intervene to prevent it.5 If it can be said with certainty that the main cause of violent conflict in Africa is the environment of impunity that has allowed warlords in Angola, Mozambique, Liberia, Sudan, Rwanda, the DRC, Uganda, Sierra Leone and Côte d’Ivoire to go free and in some cases be rewarded with government appointments, then it can be argued that to prevent armed conflict stronger legal systems are needed that will prosecute all offen- ders. It is however difficult to agree on how each particular conflict is caused or how much importance to place on one causal factor. It has therefore been suggested that the main focus of conflict prevention should be ‘to strengthen likely preventers, like establishing strong and independent legal systems that promote accountability to the law, and reduce the likely causes of war or mass violence’.6 In view of the problem of identifying the causes of violent conflict in Africa with certainty, this article proceeds on the assumption that a society governed by laws and which has the capacity to accommodate the interests of various groups is more likely to have a legitimate government and be able to prevent conflict.

The African Union (AU) mechanisms for conflict prevention

The Africa mechanisms for conflict prevention revolve around the institutions established by the African Union (AU) and regional organisations in Africa such as the Southern African Development Community (SADC), the Economic Community of West African States (ECOWAS), and the Intergovernmental Authority on Development (IGAD) for the Horn of Africa. This article focuses on the AU mechanisms for conflict prevention.

Africa’s foray into continental conflict resolution is traceable to 1963, when the Organisation of Africa Unity (OAU) was formed in Addis Ababa. The OAU was involved in decolonisation, African unity, external threats to sovereignty and conflict management. The OAU’s approach

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to conflict management in those early days was fragmented and only loosely coordinated. However, this was partially rectified in 1993 with the establishment of the OAU Mechanism for Conflict Prevention, Management and Resolution.7 Although the Mechanism sought to provide a systemic and coordinated approach to conflict management, it has been criticised for lacking the capacity to promote sustainable peace.8 The formation of the AU was basically a reflection of this dissatisfaction, and of the need to establish a proactive agency with clear structures and mandates.9 The AU Protocol Relating to the Establishment of the Peace and Security Council (PSC) of the African Union adopted in Durban, South Africa in 2002 provides resolution to most of the shortcomings of the OAU Mechanism for Conflict Prevention, Man- agement and Resolution. The Protocol created the African Peace and Security Architecture (APSA), which is centred on the PSC and is the major decision-making organ at the AU for con- flict prevention, management and resolution. Other important organs for conflict prevention, management and resolution are the African Standby Force (ASF), the Continental Early Warning System (CEWS), the Panel of the Wise, and the Peace Fund.

The PSC is the AU’s standing decision-making body responsible for the maintenance of con- tinental peace and security. It has fifteen members, elected by the AU Executive Council on a regional basis (three from Central Africa, three from East Africa, two from North Africa, three from southern Africa, and four from West Africa).10 Members are elected for three-year (five members) or two-year (ten members) terms and can be re-elected immediately for another term. There are no permanent members and there is no veto. The PSC chairmanship rotates on a monthly basis in alphabetical order of the English-language names of member states.11 The Protocol Relating to the Establishment of the Peace and Security Council, which came into force on 26 December 2003, defines the PSC as ‘a standing decision- making organ for the prevention, management and resolution of conflicts’.12 It also states that the PSC shall be a collective security and early-warning arrangement to facilitate timely and efficient response to conflict and crisis situations in Africa.

The central objectives of the PSC are: to promote peace, security and stability in Africa; to anticipate and prevent conflicts and, in circumstances where conflicts have occurred, to under- take peacemaking and peacebuilding functions for the resolution of these conflicts; to promote and implement peacebuilding and post-conflict reconstruction activities to consoli- date peace and prevent the resurgence of violence; and to develop a common defence policy for the AU.13 Other objectives of the PSC are to promote and encourage democratic practice, good governance, the rule of law and the protection of human rights and freedom; to coordi- nate and harmonise continental efforts in the prevention and combating of international ter- rorism in all its aspects; and to protect human rights and fundamental freedoms, respect for the sanctity of human life and international humanitarian law.14 The PSC has a broader mandate than the OAU Mechanism for Conflict Prevention, Management and Resolution because it focuses on conflict prevention, peacemaking, peacebuilding and peacekeeping. The PSC takes after the Security Council of the United Nations (UN) except that there are no permanent members, there is no use of the veto power, and the PSC covers more areas, such as strengthening democratic institutions, good governance and human rights.

The PSC has the authority to intervene to prevent and resolve conflicts and eventually to establish a standby force.15 The PSC plays significant roles in managing conflicts in Africa. The PSC has intervened in the recent conflicts in Mali (2012–13), Libya (2011), Egypt (2010– 12), Côte d’Ivoire (2010–11), Guinea (2008), Mauritania (2008) and Togo (2005). One of its key achievements is the establishment of the African Union Peacekeeping Mission in Darfur (AMS) – a 7 000-strong support mission – later transformed into the AU/UN hybrid operation

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in Darfur (UNAMID). It also has a strong peace mission in Somalia (the African Union Mission in Somalia, or AMISOM).

The ASF is one of the organs established to enable the PSC to perform its tasks of deploying peace support missions and intervening in conflict situations.16 The ASF is intended to be com- posed of multidisciplinary military contingents with civilian components on standby in their countries of origin, ready for deployment at appropriate notice. The AU intends to have its own fully equipped and mobilised standby force of 15 000 soldiers for rapid deployment in conflict situations.17 The force will consist of five regionally-based brigades in addition to a sixth continental formation at the AU headquarters:

[The] political logic behind the ASF was that Africa wanted to play a more prominent, if not leading, role in peace operations on the continent—and over the course of the past decade, African oper- ations have been deployed to 11 countries.18

Despite the success of its deployments in Darfur and Somalia – as well as 420 troops in the Comoros and 2 700 stationed in Burundi since 2003 (now supervised by the UN),19 the AU is yet to establish a standby force for peacekeeping and conflict management as envisaged because of the limited financial capacity of the organisation and the lack of capacity of most African countries to support peace missions. However, the very modest achievements of the AU mission in Darfur and Somalia in preventing the escalation of these conflicts exem- plifies the role that an AU regional standby force could play in conflict management in Africa.

The CEWS is one of the agencies which the AU plans to employ to realise its newmandate of conflict prevention, management and resolution. Article 21 of the protocol establishing the PSC provides that the PSC shall be a collective security and early warning arrangement to facili- tate timely and efficient responses to conflicts and crisis situations in Africa. Article 2(2) pro- vides that the PSC shall be supported by the Commission, a Panel of the Wise, a Continental Early Warning System, an Africa Standby Force and a Special Fund. Article 12(1) established the CEWS, which provides the chairperson of the Commission with information in a timely manner so that he or she can advise the PSC on potential conflict and threats to peace and security, and recommend the best course of action. The CEWS functions through an observation and monitoring unit called the ‘situation room’, situated at the AU headquar- ters. Its main functions are data collection and analysis.

The International Criminal Court and conflict prevention in Africa

The preamble to the Statute establishing the ICC says, among other things, that state parties to the Statute are mindful that ‘during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of human- ity’ and that such ‘grave crimes threaten the peace, security and well-being of the world’.20

Accordingly, states parties are ‘determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes’.21 To this end, and for the sake of present and future generations, state parties established the ICC, which is an independent and permanent criminal court with jurisdiction over the most serious crimes of concern to the international community.22

The ICC is mandated with exercising jurisdiction over persons for the most serious crimes of international concern.23 The hope is that such interventions could contribute to preventing international crimes, and by extension promote peace and security. The ICC investigates and prosecutes international crimes provided in the Rome Statute committed by nationals

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of a state party or in the territory of a state party on or after 1 July 2002, the date the Rome Statute entered into force. The ICC is currently investigating situations in Uganda, the DRC, Darfur (Sudan), the CAR, Kenya, Libya, Côte d’Ivoire and Mali. The ICC is also presently conduct- ing preliminary investigations in evolving situations in Nigeria and Guinea.

The ICC, according to articles 13, 14 and 15 of the Rome Statute, may exercise jurisdiction with respect to any of the crimes provided by the Statute

. only if a situation in which one or more of such crimes appears to have been committed is referred to the chief prosecutor by a state party in accordance with article 14 of the Statute;24 or

. a situation in which one or more of such crimes appears to have been committed is referred to the chief prosecutor by the United Nations Security Council (UNSC), acting under chapter VII of the United Nations Charter;25 or

. the chief prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.26

The situations in Libya and Sudan were referred to the chief prosecutor by the UNSC, while those in Uganda, the CAR, the DRC and Mali were referred to the chief prosecutor by the state parties. The situations in Kenya and Côte d’Ivoire were initiated by the chief prosecutor proprio- motu on the basis of information on the crimes committed in Kenya during the 2007–8 post- election violence and crimes committed in Côte d’Ivoire during the 2010–11 post-election vio- lence.27 The Office of the Prosecutor (OTP) has already opened 46 cases against individuals in Africa who are accused of committing different international crimes in eight conflict situations in Africa.

The interventions of the ICC in conflict and post-conflict situations have been praised as being capable of contributing to conflict prevention. However, the ICC’s choice of cases and the perception that the court has disproportionately focused on Africa has been controver- sial.28 The ICC has also been accused of restricting the space for global justice in Africa, squeezing out national and community-based conflict transformation initiatives,29 distract- ing the international community from using other forms of political organisations and actions that might lead to peace, and reducing international negotiations to criminal justice.30

The deeper issues are whether the ICC has the capacity to contribute to conflict prevention, and whether ending impunity would assist in conflict prevention in Africa. The debate over whether international law – or any legal system – could be a deterrent to crimes is not resolved, despite the increasing number of international judicial institutions created to deal with international and non-international conflicts, such as the International Court of Justice, the ICC, international criminal tribunals in Rwanda and the former Yugoslavia, and many human rights courts. Proving the deterrent effect of international law is a formidable challenge because it is difficult to establish ‘whether conflict is prevented, calmed or perhaps, in some cases, incited by law’s participation’.31 While the potency of international law in conflict pre- vention is in doubt because of the rigidity of the law in conflict resolution, the ‘hope is that increased reliance on, and adherence to the law prohibits aggressive wars and the persecution of vulnerable minorities or individuals and will ultimately enhance peace and reduce con- flict’.32 Thus, the intervention of the ICC in eight countries in Africa could, on paper, contribute to conflict prevention. The likely impact of the ICC on conflict prevention is considered from the following prisms.

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Speedy intervention and conflict prevention

One of the fundamental weaknesses of the international law response to conflict is the amount of time it takes to establish an international tribunal. This difficulty is clearly exempli- fied by the long period it took to establish the International Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). The Yugoslavia conflict broke out in 1991 and the UNSC approved the establishment of the ICTY in 1993. Then it took months before the statute for the tribunal was enacted and judges were appointed by the General Assembly, rules of procedure were created by the judges, an acceptable prosecutor was appointed by the UNSC, and other logistics were sorted out. By the time the court effec- tively took off with a prosecutor in 1993, the violence had claimed many casualties.33 The trial of Hissen Habré, who ruled Chad from 1982 to 1990, started at the Extraordinary African Court in Dakar, Senegal in 2014, several years after the atrocities and after several attempts by the accused to dodge accountability, probably because there was no permanent international court to try him during that period.

Being a standing court, the ICC has the advantage and potential to respond in a timely manner to crises in Africa, which could discourage future atrocities by addressing impunity. It is more difficult for a tribunal to have a deterrent effect if that tribunal is being created in the middle of the conflict, however. The ICC has intervened in ongoing conflicts in Libya, Darfur, and the CAR. It has also intervened in post- conflict situations in Kenya, Côte d’Ivoire and the DRC. It is also currently monitoring situations in evolving situations in Nigeria, Guinea, Mali, Burundi and the CAR. Such interventions could be useful for deterrence. Deterrence theorists contend that for punishment to deter it must be swift and speedily applied. The closer the pun- ishment is to the time of committing the offence, themore likely it is that it will act as a deterrent in the future.34 Deterrence theorists also argue that if punishment is swift, certain and severe, a rational person will weigh the cost effectiveness of engaging in a future crime and will be deterred if the potential loss is greater than the potential gain.35

Expressing global norms

The main postulate of expressive theorists is that law teaches, educates, communicates meanings and passes on messages or social meanings. Expressive theorists argue that the law provides a platform for ‘enunciating societal condemnation of atrocities [… ] and for making an historical record of conflicts’.36 It examines the law’s potential for changing the meaning of a particular action by changing the social cost of carrying out that action. Inter- national criminal justice can also be justified on the basis of its expressive role since ‘trials can educate people through the spectacle of theatre’, which is followed by the imposition of sanc- tions, and the attendant shame and stigma.37 Publicly asserting human rights norms and shaming criminal leadersmay contribute to conflict prevention through the power ofmoral per- suasion, which may transform behaviour. Such impact may be subtle, long term, profound and continuing.38 Expressive theorists argue that law provides a platform for ‘enunciating societal condemnation of atrocities – and for making an historical record of conflicts’.39 It is what the court expresses, through its actions – judgements, decisions, orders – that over time leads to the general deterrence of those considering committing crimes.40 The assumption is that the

expression of social disapproval through legal processes may influence moral conception so that illegal actions will not present themselves consciously as real alternatives to conformity, even in situations where the potential criminal would run no risk whatsoever of being caught.41

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Therefore, by investigating violent conflicts – and indicting and prosecuting some persons as a result – the ICC is expressing social disproval of atrocities committed during the violence through the legal process, which could lead to self-control among the wider public and ‘stiffen the resistance to [… ] leaders seeking to exploit ethnic enormity and thereby reduce the pro- spect of renewed violence’.42

The impact of international criminal justice may extend beyond directly affected countries, since the prosecution and political demise of leaders who have committed atrocities sends a strong message that impunity, even for political leaders, will not be tolerated. In this regard, the likely impact of the ICC on the 2015 general elections in Nigeria is instructive and high- lights its expressive potential. The ICC, though not currently prosecuting anyone from Nigeria, loomed large during the 2015 general elections. During campaigning for the elections, leaders who used hate speech and who conducted themselves in a manner likely to disrupt the elections were constantly threatened with being reported to the ICC.43 These actions may have contributed to the relatively peaceful elections in Nigeria and the successful transfer of power from the incumbent to the opposition candidate who won the presidential election. What was obvious was that Nigeria learnt from the post-election violence in Kenya and Côte d’Ivoire, and that Nigerian politicians knew that prosecution by the ICC was possible, as Nigeria has ratified the Rome Statute.

However, for the ICC to use the power of expression to maximum benefit, it should also improve on its visibility and ability to communicate to people where mass atrocities took place, and even beyond the borders of such countries. As an international court based in The Hague, far removed from the centre of the crises, the ICC is inherently disconnected from the victims and communities where the atrocities occur. Notwithstanding these expres- sive vulnerabilities, the ICC has so far demonstrated expressive values in promoting the impor- tance of the rule of law, in the stigmatisation of culprits, and in promoting victims’ rights. These combined attributes of the ICC have didactic values that are useful for conflict prevention.

Creation of permanent records and conflict prevention

One of the strongest arguments for the deterrent capability of the international criminal system is that criminal trials create a formidable record of the atrocities and brutalities com- mitted during the conflict along with the punishment meted out to offenders, and that this record is difficult to distort or destroy. Such a record also provides details of the facts of the crimes and crises, such as the exact locations of the crimes, the persons who committed the crimes and the circumstances in which they were committed. It is common for prime actors in disgraced regimes to attempt to destroy records and distort facts. Distorted mem- ories create confusion and uncertainties around the facts and circumstances of conflicts, and can lay the foundation for fresh outbreaks of violence.44 Criminal trials, despite their limit- ations, do to some extent provide such records, and the availability of such records is normally a deterrent to future crimes. In Germany, the staggering records of the Nuremberg trials have encouraged post-conflict reconstruction and have helped Germany to confront its past honestly.45

The opposite is the case in many counties in Africa that have experienced violent con- flicts, and where those that committed various types of atrocities were granted amnesty without trial or any form of accountability. The example of Liberia supports this point. The senseless atrocities and unimaginable brutality during the Liberian civil war from 1989 to 1997 – which claimed an estimated 200 000 lives46 – were not recorded, as there was no

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trial of any of the leaders or members of the eight rebel groups that plundered the country. As time passed, it became more difficult to recount, with exactitude and certainty, the mag- nitude of the atrocities committed by these rebels. As the memories of these crimes fade, it becomes possible for key actors and their followers to distort history. Charles Taylor persist- ently denied committing war crimes or crimes against humanity in Liberia in his numerous interviews. Such denials would certainly have been difficult, if not impossible, had a court tried the Liberian warlords. Trials, and the records thereof, would have kept the memories of the atrocities fresh in the minds of the people; perhaps this would have served as a deter- rent to future violence that could have prevented the relapse into violence in 2002. The trial of Taylor for crimes committed in Sierra Leone does not fully document the atrocities com- mitted in Liberia. The ICC intervention in eight countries in Africa will contribute in docu- menting the atrocities committed in these countries, which will provide a record of who did what and could assist in preventing denials of these atrocities as well as assisting in con- flict prevention.

Contributing to general deterrence

Through the imposition of sanctions and the threat of punishment, the ICC contributes to general deterrence in conflict and post-conflict countries. The ICC’s interventions and actions increase the cost of committing a crime in Africa by increasing the certainty of punishment. Therefore, according to the cost–benefit model of deterrence, the imposition of sanctions and threat of punishment deters crimes by increasing their cost. However, the application of deter- rence theory to mass atrocities faces several problems that make the application of the theory difficult in conflict situations where mass atrocities are committed. One of the problems is that there is little possibility that all those who were involved in committing the mass atrocities during the violent conflicts will be arrested and prosecuted. Many people who bear grave responsibility for the conflicts where the ICC is involved in Africa are yet to be prosecuted, for several reasons. Firstly, the ICC does not have a police force and relies on state parties and the international community to arrest the accused persons. For instance, in Uganda, only one out of five persons who were indicted by the ICC for war crimes and crimes against humanity is currently being prosecuted. Also, a state party may refuse to hand over the accused persons to the ICC, as is the case in the Simone Gbagbo case where, even though Côte d’Ivoire has lost the admissibility application, it still refuses to hand over Simone Gbagbo to the ICC. There is also the assumption that perpetrators of mass atrocities are rational in their behaviour. Despite these difficulties, it is argued that the ICC contributes towards general deter- rence, which could lead to conflict prevention and facilitate conflict transformation.

The ICC, the culture of impunity and conflict prevention in Africa

While delivering a speech to mark the tenth anniversary of the genocide in Rwanda, the then UN Secretary General, Kofi Annan, highlighted the nexus between massive human rights abuses and armed conflict in Africa. Stressing the special role of accountability in pre- venting violent conflicts, he stated that the international community ‘has little hope of pre- venting genocide or reassuring those who live in fear of its recurrence, if people who commit such crimes are left at large, and not held to account’.47 It is therefore vital, he stated, ‘that we build and maintain robust judicial systems, both national and international – so that over time, people will see there is no impunity for such crimes’.48 It is expected

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that the establishment of national, regional and continental human rights protection insti- tutions will not only reduce human rights abuses but also reduce impunity in Africa. Prevent- ing impunity entails ensuring that those who violate human rights are held accountable. Preventing armed conflict involves, among others things, moving fast and firmly against large-scale violations of human rights.49

The establishment of the ICTR in 1994 was the first attempt by the international community to tackle the all-important challenge of impunity in Africa. The preamble to UNSC Resolution 955 of 1994 states that the council believes that the establishment of an international tribunal for the prosecution of persons responsible for genocide and the violation of international humanitarian law will contribute to ensuring that such violations are halted and effectively addressed. The tribunal was the first court to hold a former head of state in Africa responsible for genocide (Prosecutor v. Kambanda50). Jean Kambanda, the Rwandan prime minister when the genocide erupted, pleaded guilty to genocide and was sentenced to life imprisonment. The tribunal was also the first to hold that rape is an act of genocide (Prosecutor v. Jean- Paul Akayesu51). The court also held that a journalist whose broadcast urged Hutus to kill Tutsis and Hutu moderates was guilty of an act of genocide (Prosecutor v. Ruggiu52). The ICTR, after 21 years of work (1994–2015), according to information on its website, has sen- tenced 61 people to various terms of imprisonment, acquitted 14, and referred 10 cases to national jurisdictions for trial. The contribution of these trials to conflict prevention may be debatable, but such trials challenge impunity and thus will contribute to conflict prevention over time.

The Special Court for Sierra Leone was established by an agreement between the UN and the government of Sierra Leone to try those who committed international crimes during the war in that country. It held its first sitting in 2002. The court was mandated to try those who bore the greatest responsibility for crimes committed in Sierra Leone after 30 November 1996. It was the first modern international tribunal to sit in the country where the crimes took place. It is the first international tribunal to try and convict persons for the use of child soldiers (the Armed Forces Revolutionary Council trial), for forced marriage as a crime against humanity (the Revolutionary United Front trial), and for attacks directed against UN peacekeepers (the Revo- lutionary United Front trial). Supporters of the court are optimistic that it will contribute to con- flict prevention in Sierra Leone and West Africa by contributing to ending the existing culture of impunity in the subregion. The thinking is that future rebel leaders in West Africa will think twice before embarking on massive violations of human rights if there is the probability of a criminal trial.

The ICC is expected to add to the work of these international courts in the drive to end impunity in Africa. Against the background of the years of impunity that have led to the partial breakdown of the rule of law – in some cases caused by years of conflicts (like in Côte d’Ivoire and Uganda) and in other cases caused by weakness, corruption and the incapa- citation of institutions responsible for the administration of justice (like in Kenya) – the attempts by the ICC to prosecute the key individuals involved in violent conflicts are capable of sending a strong message that the era of impunity is over. The ICC has shown through its investigations and prosecutions that it has the capacity to impose sanctions, and that people need no longer rely on a weak internal system to prosecute international crimes. The prosecution of some of those who allegedly bear the greatest responsibility for humanitarian atrocities is therefore a clear departure from the past, and a strong indication that those who mastermind or participate in violence can be made to face trial through the ICC.

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The central point canvassed is that the ICC, despite its shortcomings and vulnerabilities, has already established itself as an international court with the capacity to prosecute people who commit international crimes by investigating some of the atrocities committed and attempt- ing to sanction them. Thus, the ICC has made a clear statement through its investigations and prosecutions that the era of impunity is over. The fear of investigation and possible prosecu- tion by the ICC will have some influence on some individuals to act responsibly by avoiding acts that could attract the attention of the ICC, thus leading to general deterrence. However, most conflicts in Africa start at a low level, and some rebel leaders will pay little attention to international war crime courts. The resolution of most violent conflicts in Africa could also depend on persuading both sides to stop fighting and to enter into a peace agree- ment, as was the case in Liberia, Sierra Leone, Sudan, Angola, Mozambique and Côte d’Ivoire. Clarke argues that one consequence of the growing power of the ICC is its ability to use the law to establish new terms of engagement within which defendants, lawyers and prosecutors reclassify evidence and articulate crimes in legally relevant terms.53 This reclassification of terms has had the effect of reassigning accountability to leaders in sub-Saharan Africa who are then seen as responsible for mass violence, whereas the root causes of such mass violence are actually much deeper than the roles of leaders who perpetrated international crimes. The new face of justice is thus the convergence of the guilt of key leaders and the defence of the victims. These ‘fictions of justice’, according to Clarke, may have unintended consequences that may not promote the peace process.

The ICC as a mechanism for transitional justice in Africa

The concept of ‘transitional justice’ blends the notions of ‘transition’ and ‘justice’,54 and is infused, according to Teitel, with restorative and transformative dimensions.55 However, defin- ing transitional justice is ‘slippery’ because it is an evolving field, encompassing many concepts relating to justice, peace, reconciliation and the rule of law in a post-conflict or post-authori- tarian society.56 The ICC acts as a transitional justice mechanism once it intervenes in a transi- tional society. The main arguments for prosecution as a model of transitional justice is that justice is the foundation of peace and reconciliation,57 and that impunity sets a bad example for the future and undermines the rule of law that was established during the transi- tional period.58 The main counter-argument is that a rigorous transitional justice programme – such as the criminal prosecution of key members of rebel groups – could derail the entire tran- sitional programme.

Depending on its prosecutorial strategies, the ICC expects to contribute to accountability, deterrence and reconciliation. The well-documented aims of criminal prosecution in transi- tional societies are deterrence, reconciliation, incapacitation, accountability, documentation, retribution, expression and strengthening the rule of law.59 The degree of success of the use of prosecution as a model of transitional justice is debatable and dependent on the cir- cumstances of each situation.60 Criminal prosecutions – as a model of transitional justice – are seen as essential in cases of massive violations of human rights61 and are thought to be necessary (through deterrence) for conflict prevention, as well as essential for reconciliation through justice, the individualisation of guilt and the establishment of historical records of vio- lence.62 Accountability and the removal of perpetrators of massive human rights atrocities from positions of power are important for conflict transformation.63

The Rome Statute has some provisions that are very useful for transitional societies. Article 75 on reparations to victims provides that the court shall establish principles relating to – or in

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respect of – victims, including restitution compensation and rehabilitation. The court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims. The ICC reparations provision is a novelty in international criminal law because it provides victims of conflicts with actual rights to reparation, which include restitu- tion, rehabilitation, assessable damage, compensation, satisfaction and guarantee of non-rep- etition. Therefore, it is becoming an expectation in international law that victims of international crimes are entitled to reparations as a right.64 Another important provision is article 79, which provides for the establishment of a trust fund to benefit victims (and the families of such victims) of crimes within the jurisdiction of the court. The court may order that the award for reparations be made through the trust fund, or that the money and other property collected through forfeiture be transferred to the trust fund. These are funda- mental provisions of transitional justice that contribute to the process of reconciliation in tran- sitional countries in Africa. The ICC could be useful both as a model of retributive justice (criminal trial) and by playing some part in restoration that advances the cause of social justice through establishing mechanisms for making reparations to the victims and their families. The major shortcomings of prosecution as a model of transitional justice, such as being preoccupied with individual justice, are partially addressed by the provisions of articles 75 and 79.

Through its policy and practice with respect to victims, the ICC has at least brought more attention to the need to protect victims in international criminal justice. The provisions of the Rome Statue have clearly shown that the ICC is desirous of providing a platform through which some of the victims of international crimes can at least tell their stories. The ICC also seems to have influenced some governments in Africa to focus on the plight of the victims of crimes; there is a noticeable trend in some of the countries in which the ICC has intervened towards a victim-centred approach to justice. Countries like Côte d’Ivoire, Uganda and Kenya seem to be doing more in terms of establishing institutions that directly or indirectly deal with victims’ rights, initiating victim-friendly policies and enacting laws that focus on victims’ rights or with provisions that protect victims’ rights.

Another contentious issue is whether the establishment of the ICC would inhibit the use of amnesty as a conflict prevention mechanism, particularly for preventing a relapse into violent conflict after the signing of peace agreements. Amnesty has always been an important aspect of conflict prevention. Until the mid-1990s, conflict resolution in Africa normally contained pro- visions for amnesty, such as in Angola, South Africa, Mozambique, Liberia and Sierra Leone. This approach is based on the thinking that peace can be exchanged for amnesty. However, self-proclaimed amnesties by oppressive governments in South America in the 1980s tarnished the concept of amnesty as a conflict transformation mechanism, drawing scorn and repulsion from the international community. This contributed to the international community’s insistence on the compulsory criminal trial of culprits; the Rome Statute reflects this thinking, insisting on trials for culprits, with little consideration for amnesty or other alternative methods of settling disputes. This approach can make conflict transformation complex.65 The persistence of the international community in seeking a trial for Charles Taylor by the Special Court in Sierra Leone exemplifies this approach, which encompasses the sentiment that ‘tolerating such crimes diminishes humanity and threatens everyone’.66

Whether amnesty applies ultimately depends on the discretion of the chief prosecutor in each case, who may refuse to continue with a case after taking into due cognisance the inter- ests of the victims and the gravity of the case. The Rome Statute also allows the court itself to decline jurisdiction in matters that are not of sufficient gravity to justify prosecution.67 In

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dealing with each case, the prosecutor should diligently balance the issues of justice and reconciliation.68 Each conflict ought to be carefully evaluated based on the circumstances on the ground, and the approach adopted must lead to sustainable peace. The difficult task of balancing justice and reconciliation is a major challenge for modern-day peacemakers and the ICC should adopt measures to properly balance these two elements of successful peacemaking. A rigid insistence on criminal trials may not lead to peace, while the application of programmes aimed at reconciliation without taking cognisance of justice may not lead to sustainable peace because justice is an important element of reconciliation.

Without contradicting some of the arguments of this article, it is germane to state that while accountability is the central aim of the ICC, it should not be completely hostile towards situ- ations where amnesty could be useful in resolving conflicts and promoting sustainable peace. In such cases, for example such as Uganda, the ICC should not interfere (as much as possible) with national efforts to use an amnesty programme to promote peace – particularly where the proposed beneficiaries of the amnesty programme are not those who committed the grave crimes that are of interest to the ICC. Thus, where national governments intend to grant amnesty to some persons involved in violent conflicts and such persons are not on the list of those wanted by the ICC, the Office of the Prosecutor should not be against such a national amnesty programme.

Conclusion

This article argues that conflict prevention is complex, primarily because of the difficulties of locating the roots and immediate causes of violent conflict. The ability of the ICC to prevent conflict is questionable because it has not been fully tested over a long period of time and because law brings certain rigid elements to conflict transformation that could complicate the process if they are not professionally addressed. Notwithstanding these doubts and uncer- tainties, it is argued that, in the main, the ICC contributes to conflict prevention in Africa by expressing global norms of international law, challenging the culture of impunity in some countries, contributing to general deterrence, speedily intervening in some violent conflicts, and contributing in establishing some records of atrocities by identifying who did what. Chal- lenging impunity by insisting on accountability will in most cases contribute to conflict preven- tion, but amnesty could be used for occasions where the ICC is not prosecuting the persons for whom the amnesty is intended. Though it is difficult to properly assess the impact of any court on conflict prevention, establishing strong legal institutions – such as the ICC, which has the potential to enforce the rule of law – could prove to be profoundly helpful in ending impunity in Africa and preventing some future violent conflicts. The certainty of criminal trials could have a deterrent impact on future warlords and other offenders, despite the doubts about the effectiveness of criminal trial as a mechanism of transitional justice.

Notes

1. Some of the countries that gained political independence in the 1960s are: Benin (1960), Burundi (1962), Cameroon (1960), the Central African Republic (1960), Chad (1960), Côte d’Ivoire (1960), the Democratic Republic of the Congo (1960), Gabon (1960), Kenya (1963), Nigeria (1960), Senegal (1960), and Togo (1960).

2. Meredith, State of Africa, 2. 3. du Plessis, The International Criminal Court that Africa Wants, 2. 4. Ramsbotham, Woodhouse, and Miall, Contemporary Conflict Resolution, 199.

AFRICAN SECURITY REVIEW 37

5. Ibid., 118. 6. Ibid., 109. 7. OAU, ‘Mechanism for Conflict Prevention, Management and Resolution.’ 8. Bujra, African Conflicts: Causes and Environment. 9. African leaders replaced the OAU during its 4th Extraordinary Meeting in Sirte, Libya and signed

the AU Constitutive Act in Lome, Togo. 10. https://www.au.int/en/organs/psc 11. Ibid. 12. Ibid. 13. AU, ‘Protocol to Establishment of Peace and Security Council,’ article 3(a)–3(e). 14. Bujra, African Conflicts: Causes and Environment. 15. Harsch, ‘UN Seeking to Avert a “New Rwanda”.’ 16. http://www.peaceau.org/en/page/82-african-standby-force-asf-amani-africa-1. 17. Harsch, ‘UN Seeking to Avert a “New Rwanda”.’ 18. Lotze and Leijenaar, ‘African Standby Force Beyond 2015’. 19. Harsch, ‘UN Seeking to Avert a “New Rwanda”.’ http://www.un.org/africarenewal/magazine/july-

2004/un-seeking-avert-new-rwanda. 20. ICC, ‘Rome Statute,’ preamble. 21. Ibid. 22. Ibid. 23. Ibid., article 1. 24. Ibid., article 13(a). 25. Ibid., article 13(b). 26. Ibid., article 13(c). 27. The Government of Côte d’Ivoire requested the ICC to investigate the crimes committed in the

country, but the country at that time had not ratified the Rome Statute, so the Office of the Pro- secutor (OTP) had to initiate the intervention.

28. Arief et al., International Criminal Court Cases in Africa. 29. Drumbl, Atrocity, Punishment and International Law, 10. 30. Adam, ‘Neither Liberal nor Peace,’ 136. 31. Schabas, ‘International Law and Responses to Conflict,’ 615. 32. Ibid., 617. 33. Goldstone and Bass, ‘Lessons from the International Criminal Tribunals,’ 53. 34. Onwudiwe, Odo, and Oyeozili, ‘Deterrence Theory.’ 35. Hopkins-Burke, An Introduction to Criminology, 10. 36. Amann, ‘Assessing the Criminal Adjudication of Human Rights Atrocities,’ 170. 37. Meijers and Glasius, ‘Expression of Justice or Political Trial?’, 725. 38. Akhavan, ‘Beyond Impunity,’ 8. 39. Amann, ‘Assessing the Criminal Adjudication of Human Rights Atrocities,’ 171. 40. Rosenberg, ‘International Criminal Court and Prevention of Mass Atrocities,’ 1. 41. Akhavan, ‘Beyond Impunity,’ 9. 42. Akhavan, ‘Beyond Impunity,’ 8. 43. Isiguzo, ‘Inciting Statement.’ 44. Goldstone and Bass, ‘Lessons from the International Criminal Tribunals,’ 55. 45. Ibid. 46. Momodu, ‘First Liberian Civil War (1989–1996).’ 47. Harsch, ‘UN Seeking to Avert a “New Rwanda”.’ 48. Ibid. 49. Ibid. 50. Case no. ICTR 97-23-S. 51. Case no. ICTR-96-4-T. 52. Case no. ICTR-97-32-I. 53. Clarke, Fictions of Justice, 3. 54. Ðukić, ‘Transitional Justice and the International Criminal Court.’ 55. Teitel, Transitional Justice, 224.

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56. Roht-Arriaza, ‘New Landscape of Transitional Justice,’ 1. 57. Ibid., 6. 58. Chetail, ‘Introduction: Post-Conflict Peacebuilding,’ 23; Doswald-Beck, ‘International Crimes,’ 158;

Teitel, Transitional Justice, 226. 59. Turano, ‘Gender Dimension of Transitional Justice Mechanisms,’ 1069. 60. Schabas, ‘International Law and Responses to Conflict,’ 615. 61. Akhavan, ‘Beyond Impunity,’ 10. 62. Roht-Arriaza, ‘New Landscape of Transitional Justice,’ 3. 63. Ibid. 64. Clamp, Restorative Justice in Transition, 27. 65. Schabas, ‘International Law and Responses to Conflict,’ 614. 66. Goldstone and Bass, ‘Lessons from the International Criminal Tribunals,’ 59. 67. Schabas, ‘International Law and Responses to Conflict,’ 615. 68. Kritz, ‘Role of Law in the Post-Conflict Phase.’

Notes on contributor

Linus Nnabuike Malu is a Ph.D. student at the University of New England, Australia (lmalu@myune.edu.au)

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