Written by practicing criminal defense lawyers, jurists, investigators, and specialized journalists, this book criticizes the whole initiative of international criminal justice and considers the idea that it must be abandoned in the name of justice. Has foreign policy trumped justice? How are equity, equality before the law, absence of selectivity, protection of witnesses, and enforcement affected? How are lives of citizens throughout the world changed by International Justice? Asking the burning questions about criminal justice as it is practiced at the International Criminal Court, the ad-hoc tribunals for Rwanda, and the former Yugoslavia, Sierra Leone, this account will appeal to those interested in politics, law, and human rights.
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About the Author
Sébastien Chartrand has worked primarily in international criminal law since becoming a member of the Quebec Bar. He has been the legal defense assistant in cases before the International Criminal Tribunals for Rwanda and Ex-Yugoslavia. He also did a legal internship for the Rwandan Tribunal in 2009. John Philpot has more than 25 years of experience as a criminal defense lawyer, including 20 years in international criminal justice. He has represented clients before the International Criminal Tribunal for Rwanda, including the Appeal Court in the Hague, and the International Criminal Court. He has been the chief organizer of three international criminal law conferences. They both live in Montreal.
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The Unbalanced Scales of International Criminal Justice
By Sébastien Chartrand, John Philpot
Baraka BooksCopyright © 2015 Baraka Books
All rights reserved.
African Court and International Criminal Courts: Discriminatory International Justice and the Quest for a New World Judicial Order
Chief Charles A. Taku
The idea of establishing a standing international criminal court to investigate and prosecute international crimes as a significant component of the world's effort to safeguard world peace and security was first raised unsuccessfully by the Russian delegate at the first and second World Peace Conferences in 1899 and 1907. Africa was not then considered a subject of international law. To Western European imperial powers, Africa was a vast slave plantation that they apportioned among themselves at the so-called Berlin Conference in 1884. For that reason, Africa was not represented and its interests were not protected at the first and second World Peace Conferences.
Africa's situation did not change significantly during the long search for social, political, economic, and cultural stability conducted from 1899 to about 1960 when the so-called Western democracies granted her independence. Rather, the granting of independence to countries of the irrationally fragmented continent, without first accounting for the international crimes and the plunder of the continent's natural resources, left behind economically and politically unstable entities under the control of proxies and stooges who ensured that the flow of wealth to the colonial masters was unimpeded despite gratuitous claims to national sovereignty.
The creation of the League of Nations in 1919, the establishment outside the framework of the permanent Court of International Justice in 1921, as the principal judicial organ of the League, the creation of the United Nations in 1946, and the establishment of the International Court of Justice as its principal judicial organ had the ambitious goal of maintaining world peace and security. The promotion of human rights was recognised as a fundamental human value and an indispensable component of world peace, stability, and security. This was followed in quick succession by the declaration of human rights and the Geneva Conventions criminalising the crimes of genocide, war crimes, and crimes against humanity. These lofty goals were compelled by the devastating effects of the First and Second World Wars, in which Africans sacrificed their lives on the side of freedom and a new world order, and the need to hold perpetrators of international crimes accountable for their acts.
Despite stated claims to the universal reach of these instruments of international law, Africa and Africans were not contemplated as beneficiaries of the rights and freedoms flowing from them. At a time when the rest of the world made a solemn declaration of "never again" (in reference to the slaughter of millions of Jews in the worst crimes that shocked the conscience of humanity), the devastating effects of the egregious crimes perpetrated against Africa and Africans in their quest for independence were still visible.
Shortly after this pledge of "never again," some of the Western countries, which had put in place international laws to eternalise the spirit of the pledge to protect humanity against the scourge of war, conducted their own atrocious military campaigns in the colonial territories. International crimes of unimaginable proportions were perpetrated against millions of unarmed African children, women, and men; civilian settlements and villages were wiped from the face of the earth.
In 1948, the year the United Nations Declaration of Human Rights was made, France, a victim of German aggression in which war crimes of unfathomable proportions were committed against the French people, violently suppressed a peaceful nationalist campaign for independence in its French colonial territory of Cameroun. In the senseless slaughter of unarmed peasants and militant leaders that followed, hundreds of thousands of people were exterminated.
This punitive military campaign led to a civil war that lasted until 1959, during which French soldiers committed international crimes in parts of the territory, considered by many to include the crime of genocide. The same scenario took place in Algeria, Democratic Republic of the Congo, Angola, Guinea Bissau, South Africa, Zimbabwe, Kenya, Libya, and many others, where the pogroms and international crimes perpetrated by economic merchant colonialists went unchecked. In recent decades, international crimes have been perpetrated in Africa in which millions of civilians have been exterminated with weapons supplied by these so-called angels of death, the former colonial masters, either directly or through proxies. The killing and the maiming have continued unchecked under the watch of the United Nations.
Selective and Discriminatory Justice in Context
The so-called international community has historically failed to demonstrate the same degree of interest and effort in resolving armed conflicts and bringing peace and reconciliation to conflict zones in Europe, Asia, and South America in comparison with African conflicts. It has hypocritically and timidly purported to employ the machinery of international law in African conflicts to handle politically volatile situations inflamed by the same international community. When the intervention and application of international justice in Africa became mired in controversy, discrimination, and selectivity, the international community turned its back once more on Africa in its time of need. This has impacted negatively on African conflicts and generated distrust among civilian victims in the affected countries and among a majority of Africans as regards the application of international justice on the continent.
Far from eradicating the culture of impunity that has fomented conflict and international criminality in Africa, the judicial institutions put in place to administer international justice have laid the foundation on which the very laws and values they sought to protect are invoked to perpetuate impunity and strengthen the hand of tyranny. The principles and standards of victors' justice were formulated and applied at the Allied Military Tribunals at Nuremberg and Tokyo against the vanquished in World War II; the application of these same principles in African conflicts has inflamed the conflicts rather than attenuated them.
The Rwandan Patriotic Front (RPF), for example, in search of political power, invaded Rwanda with the support of Uganda, the United States, and the United Kingdom on October 1, 1990, leading to the slaughter of hundreds of thousands of Rwandan citizens and two presidents under the watch of United Nations' forces. The UN Security Council, acting under Chapter VII of the UN Charter, established the International Criminal Tribunal for Rwanda to investigate and prosecute perpetrators of the crimes that took place in that conflict. Despite its mandate to investigate and prosecute the alleged perpetrators of the crimes in a non-discriminatory and non-selective manner, the Tribunal constituted itself into a victors' court in which the Tutsi-dominated Rwandan Patriotic Front victors tacitly determined the fate of the vanquished Hutu. The application of this humiliating and unjust policy in most African conflicts has resulted in frustration and resentment on which impunity and criminality is grounded.
The success of this policy can best be explained and placed within historical perspective. Africa in its present configuration was not a creation of Africans but an imposition by Western imperial/colonial powers at the treaty of Berlin in 1884. The African continent therefore can at best be described as an imperfect product of Western European imperialism. When the United Nations General Assembly proclaimed the declaration on the granting of independence to colonial countries and peoples, some of the significant beneficiaries of the slave trade and colonialism abstained from voting in support of independence for African countries.
Several of the countries that abstained later played and are still playing a major role in fomenting the conflicts that have led to the perpetration of the international crimes that gave birth to Africa's two international criminal courts on the continent. These courts are the United Nations International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL). Some of these countries have significantly influenced the administration of justice in the courts. The policies implemented by these colonial powers went against the spirit and letter of the General Assembly Resolution 1514 (XV) of December 14, 1960, on the basis of which most African countries gained independence and became subjects of international law.
To most Africans and official African observers, the political upstaging of the two courts to the detriment of the lofty motivations for which they were created was a cause of great anxiety.
When the Rome Statute, for example, heralded the creation of the International Criminal Court (ICC), African countries welcomed it with arms opened. In embracing the ICC, they believed in its promise that the court would truly be "independent" and administer justice to all and sundry without any form of discrimination. As of July 21, 2009, thirty African states were parties to the ICC Statute.
African states did not anticipate that the administration of justice at the International Criminal Court, in particular within its first decade of existence, would be discriminatory, selective, and focused totally on Africa. This policy appalled African countries and fuelled conflict in parts of the continent. This and other reasons inform the decision by the African Union to determine to explore possibilities of conferring criminal jurisdiction on the African Court on Human and Peoples' Rights to investigate and prosecute international crimes perpetrated on the continent of Africa.
When the efforts evinced by the African Union materialise, it will afford Africa an opportunity to exercise sovereignty over the destiny of its people. The tortuous route that led Africa to this conclusion commenced with the assessment of the performance of the ICC and ad hoc tribunals in Africa and their largely mitigated performance in attaining their mandates.
The International Criminal Tribunal for Rwanda: A Victors' Court
The International Criminal Tribunal for Rwanda was created by the Security Council acting under Chapter VII of the UN Charter by Resolution 955 (1994) at its 3454 meeting on November 8, 1994. The Resolution established that the crimes of "genocide and other systematic, widespread and flagrant violations of international humanitarian law" were committed within the territory of Rwanda, which continued to constitute a threat to international peace and security and that the "particular circumstances of Rwanda" warranted "the prosecution of persons responsible for serious violations of international humanitarian law" in order to "achieve and contribute to the process of national reconciliation and to the restoration and maintenance of peace."
This mandate of the ICTR specified in the Security Council Resolution is spelled out in Article 1 of the statute of the ICTR. This article gave the Tribunal the mandate to prosecute perpetrators of specified international crimes within the territory of Rwanda and Rwandan citizens responsible for such violations within the territory of neighbouring countries.
This mandate unequivocally applied to the crimes perpetrated by all parties in the Rwandan conflict from all ethnic groups. It extended to crimes by the Rwandan Patriotic Army and its political leaders, the Rwandan Patriotic Front in the territory of Uganda (from where it launched attacks against Rwanda as of October 1, 1990), the territory of Tanzania, and the Democratic Republic of the Congo, where it pursued and massacred hundreds of thousands armless Hutu civilians.
The Secretary General of the UN, in paragraph 12 of his report defined the subject matter jurisdiction of the ICTR broadly. He included violations of customary international law as well as certain treaties insofar as they were binding on Rwanda at the time of the alleged crimes. In Prosecutor v. Laurent Semanza, the Appeals Judgment citing the Celebici Appeals Judgment at the ICTY, held at Para. 170 "[t]hat the Security Council when establishing the ICTR was not creating a new law but was inter alia codifying existing customary rules."
To avoid doubt, the Security Council in its Resolution 1534 (2004) at its 4935th meeting on March 26, 2004, resolved as follows in Article 2: "Reaffirms the necessity of trials of persons indicted by the ICTR and reiterates its call on all states, especially Rwanda, Kenya, and the Democratic Republic of the Congo to intensify cooperation with and render all necessary assistance to the ICTR, including investigating of the Rwandan Patriotic Army and efforts to bring Félicien Kabuga and all other indictees of the ICTR to surrender to the ICTR" (our emphasis).
From the above, it is safe to conclude that no rule of customary international law or express mandate given to the ICTR by the Security Council justified selective prosecution of only one side of the conflict (i.e., targeting Hutu while ignoring the well-documented crimes perpetrated by the RPA).
Surprisingly, the Security Council failed to hold the prosecutor of the ICTR accountable for the numerous promises he made to the council to investigate and prosecute RPA crimes. The former prosecutor of the ICTR, Carla Del Ponte, spoke out loudly about influence put on her by the United States Ambassador-at-Large for War Crimes Issues, Pierre Prosper, to discontinue investigations of the RPA for unspecified reasons. Submitting to this political pressure, Prosecutor Carla Del Ponte decided to prosecute only Hutu alleged perpetrators. Her predecessor, Louise Arbour, commenced investigations against the RPF but quickly abandoned the investigations due to similar pressure.
Hassan Jallow, who succeeded Carla Del Ponte, repeatedly informed the Security Council in his annual reports that he was investigating the crimes committed by the RPF, before dropping the subject without explanation. The Security Council neglected to hold him to account for his failure to comply with the Security Council resolutions directing that all the parties should be investigated and perpetrated. This policy insulated the RPF from prosecution and gave tacit blessing to the culture of impunity with which it committed and continues to commit massive and widespread crimes against civilians in Rwanda and beyond its frontiers.
Prosecuting only one party to the conflict, based on political and ethnic considerations, violates the non-discriminatory provisions of the UN Charter under which the authority to establish the Tribunal emanated. As stated above, this violation has consistently been supported and encouraged by some world powers, in particular the United States, which from the very inception has influenced the direction the judicial process at the Tribunal has followed. This explains the reason and the impunity with which the ghosts of Nuremburg and Tokyo inspired the judicial process at the ICTR. This has serious consequences for the integrity and credibility of the ICTR and the international justice administered therein.
Although the ICTR has been touted as making valuable contributions to international criminal jurisprudence, it has failed in its mandate to effectively "contribute to the process of national reconciliation and the restoration and maintenance of peace" in Rwanda and the neighbouring countries to which its mandate extended. The UN found in two very damning reports that the escalation of conflict in the east of the Democratic Republic of the Congo was caused by the direct intervention of Rwanda and the RPA.
The responsibility for this escalation lies with the failure of the ICTR to properly execute the mandate assigned to it by the UN Security Council. The responsibility similarly lies with the Security Council for failing to exercise appropriate oversight of the ICTR to ascertain that its policy of selective, ethnic, and politicised justice did not encourage impunity and fuel a sense of exclusion by targeted ethnic groups, resentment, and further conflict.
It is safe to state that UN-sponsored justice at the ICTR has created a new concept in international law of "genocidal, ethnic-based justice." Rather than the crime of genocide being punished for the fact that alleged perpetrators targeted victims for extermination on the basis of ethnicity, the alleged perpetrators were prosecuted for genocide on the basis of their ethnicity. To the extent that this policy is discriminatory and selective, it violates the UN Charter and the mandates conferred on the Tribunal by the Security Council and the Statute of the Tribunal. This policy has encouraged impunity and reckless abuse of the international judicial process.
The most devastating consequence of the ICTR process is the branding of Hutu in Rwanda as "génocidaires" and the Tutsi as "victims." The decision of the Appeals Chamber of the ICTR taking judicial notice of the genocide of the Tutsi in Rwanda from January 1, 1994 to December 31, 1994 eternalised this stereotyping perception. The criminalisation of the Hutu ethnic group in the ICTR process aligns with the politics of the Rwanda judicial system that has expanded the jurisprudence of the ICTR on genocide to include crimes hitherto unknown in law. In the Gacaca Courts (its fundamental and organic law setting), Rwanda criminalised genocide ideology and divisionism and made the crimes and charges applicable to persons who were not born in April 1994 and potentially to generations unborn.
Excerpted from Justice Belied by Sébastien Chartrand, John Philpot. Copyright © 2015 Baraka Books. Excerpted by permission of Baraka Books.
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