By Osuolale Alalade
The African Union summit meeting in Addis Ababa, Ethiopia, October 11 and 12, 2013 on the International Criminal Court (ICC) concluded with a demand for a postponement of the trial of Kenyan President Uhuru Kenyatta. The trial of President Kenyatta, scheduled for November 2013, had exacerbated African concerns over the ICC and instigated the summit of African states. The summit attained a consensus that no sitting African Head of State or Government should appear before an international court. Although, it wasinitially suggested that the meeting was going to discuss the possibility of mass withdrawal of the 34 African state signatories to the Rome Treaty that established the International Criminal Court, the AU consensus, at the end, was limited in scope as it addressed mainly the immunity of sitting Heads of State or Government. Thus, it left unattended the larger controversy around the feasibility and credibility of international transitional justice in a global system driven by mindless pursuit of power by powerful elite states and the immorality of the pursuit of partisan national and collective interests by elite forces at the expense of weak members of the international state system. These fundamental questions transcend the immediate attention trained on the implication of the prosecution of Kenya’s sitting President Uhuru Kenyatta by the International Criminal Court at the Hague.
The confrontation between an emerged global society (as distinct from the community of states) glued together by a transnational consensus and sensibility around given transcendental moral codes and humanistic principles on the one hand and a power based and driven international state system dominated by ruthless elite forces on the other hand raise profound issues relating to the feasibility and integrity of the concept of international justice. It is a truism that the doctrine of universal jurisdiction developed to address the problem of atrocious abuses of human rights perpetrated by state officials with immunity is welcome and most especially in Africa with its appalling record in this regard. Yet, the real challenge to accountability of these monsters is not so much resistance to international justice in Africa but rather the abuses of the process of international accountability by the same forces that, firstly, refuse to sign on to the process, and yet, secondly, exploit it to advance their strategic goals. This is the crux of the challenge of international transitional justice in a global state system that is underpinned by the singular pursuit of national interests and, now, the protection of collective geo-strategic, including economic, interests of dominant elite forces in the international system. The international system; its regime of governing principles, the hierarchy and the privileges appertaining to being a member of an elite club of powerful states, is traditionally power based. This power projection of the victorious allies in World War II was evident at the Nuremberg trials that preceded the International Criminal Court at The Hague. The same considerations hold true today.
In the final analysis, the damning and regrettable reality is that the prevailing and unspoken sensibilities undergirding international transitional justice system, notwithstanding the moral cloak of the advocating state actors, are political. The morality of the international system of states is fickle, relative and selective. Its justice can only reflect the interests of the regime of elite forces that dominate and drive the politics of the international system, including international justice. In this setting, it is not conceptually feasible to expect a credible independent morally based international sanctions system that is not underpinned by a constant search of the most powerful forces to consolidate the power of their reach, hold and control of the global system. Secondly, in the advocacy of international society for the enthronement of international morality, they are unable to bring on board powerful state actors that are easily the most egregious transnational violators of rights and the perpetrators of mindless unlimited violence on weak peoples around the world. As international society courageously pursue the birth of a saner more humane world, even in conflict, the main elite state powers of the global system exclude themselves from this project to protect the dignity of humanity wherever this may be. Otherwise, someone should be howling over the indiscriminate use of cold metallic drones to incrementally wipe out poor communities who ever so often have no control over the bloodthirsty madmen from the dark ages that hold them hostage.
The powerful state actors do this, even while they directly influence the outcomes of international transitional justice processes. International justice is thus perceived by the weak and objective analysts from even these powerful states as a quasi law based enterprise that is mainly an expression and mere extension of the configuration of global power. The cold political calculus of this regime bears no relevance to the pursuit of justice to victims. International justice becomes then a convenient political instrument of the powerful against the weak. In a way, it is double jeopardy for the victims of abuses as the same forces that undermine the credibility of international justice that should be their last resort exploit their plight. This is the fundamental precept of blatant neo conservatism that has dominated the international system especially in the George Bush White House, the nuanced neo conservatism of the Obama White House in international affairs, the Lilliputian mind of a Sarkozy presidency in France and the confused Labor government in the United Kingdom under Tony Blair acting in Iraq, Libya or in Cote d’Ivoire. In the case of Nicholas Sarkozy, what morality or justice, international or otherwise, can Africa expect from a character standing trial for the alleged fleecing of an ailing virtual centurion billionairess Liliane Bettencourt?
Recent history is replete with this double standard in the case of the weak. As revealed by Wikileaks, the determinant imprint of the United States is stamped on the outcomes of some of the trials emanating from the Balkan tragedy. The United States preferred a certain outcome and got its way. The preponderant influence of the United States through its Ambassador in the Hague in ensuring that the International Special Court on Sierra Leone put away Charles Taylor for ever and that he does not return to Liberia to threaten American economic interests is another case point. This is documented. In Cote d’Ivoire, Francois Hollande’s France, just like his predecessor, Nicholas Sarkozy, is presiding over a victor’s justice and protecting the Forces Nouvelles rebels, mostly non Ivorians from Burkina Faso who are well documented as responsible for the most horrendous human rights violations in the Ivorian conflict. They acted on behalf and in the interests of France. Allassane Dramane Ouatarra, the rebel paymaster choreographing the entrenchment of French interests, has emerged as president of the country and dispensing a victor’s justice on behalf of France. Meanwhile, the ICC is holding Laurent Gbagbo on behalf of France. Now, Africa faces the deluge as post Gaddafi Libya totters toward violent disintegration. Life in the country is brutish and nasty. All France cares about in Libya, as in Cote d’Ivoire and Syria, is how its contractors are awarded billion dollar worth of contracts under a reconstruction program. Meanwhile, Bengazi, the stronghold of the Libyan militants, and Libya, have become a haven of lawless criminality and war lordism as the West busies itself pumping oil at sub prime price… These are the true posters of international humanitarian intervention and justice in Africa.
So, there is a basis for the widespread perception among keen observers that the continent’s objective interests can never be protected by international political cum pseudo judicial mechanisms like the ICC. Against strident protests of a few perceptive African leaders, the hollowness of international morality and international justice prevailed in Libya, Cote d’Ivoire, and Liberia. But it failed woefully in Syria. The differential outcome can be explained by the fact all the African states involved were not and are not effectively integrated into major global power alliance system. Where African regimes claim traditional friendship with their former colonial masters, their leaders are expendable minions to elite powers. So, while France, the United States and NATO could with impunity take laws into their hands in Africa, they did not dare to apply their bogus sanctimonious moral hypocrisy in Syria. They were checkmated by Russia and China. International justice comes across as simply a power game.
Another clear case in point is the principle of Responsibility to Protect. Analysts have observed that restraining powerful predatory elite states contemptuous of the sovereignty of weak states from exploiting the R2P principles encoding universal humanitarian values to unilaterally project their strategic interests has been futile. The doctrine of Responsibility to Protect (R2P), constituting another strand of well-meaning initiatives to protect the primacy of the dignity of human victims in conflict situations, was advanced by its advocates as intended to create a new international legal framework for stopping war crimes. The principle legitimizes international enforcement action against an oppressive state to protect its citizens from grave harm. The outcomes of the unilateral interventions of major powers in domestic affairs of weak states using this principle show that in reality the interventions were in pursuit of national strategic projects. They had nothing to do with the rule of law or to protect vulnerable citizens. The façade of “humanitarian interventions were exactly what it was-only a façade to do other heinous things. It is same case with the ICC. Accordingly, international structures or institutions, from the Security Council, the International Court of Justice, the International Criminal Court (ICC) and allied bodies, have to struggle to act as established to pursue justice as we know it in the domestic democratic settings. They are all political bodies. Ultimately, they end up as instruments in the hands of powerful forces that deploy them to pursue the interests of powerful forces against weaker states. The ICC poses a dilemma as it raises profound challenges for policy making that delicately balances all the contradictory imperatives of the dilemmas of international humanitarian and judicial interventions.
The lessons are simple. The ICC, in the face of unending cycles of monstrous human calamities in African conflicts of no limits and bounds, represents a critically needed ascendance of international global moral sensibility championed by the international society (moral society) in mediating African trouble horrors. Unfortunately, for humankind, the international community of states that is still determined to preserve the old and traditional currency of international intercourse-unmitigated and brutal projection of power – constitute a serious impediment to this laudable project. These states have appropriated the rhetoric of the global moral majority to advance their partisan power related interests. In so doing they usurped the ICC and have undermined the credibility of the well-intentioned global statespersons that crafted the ICC.
The true believers and advocates of international transitional justice are from transnational civil society and they perch on the horns of multiple dilemmas. In Africa, civil society remains the undeterred advocates of the ICC. That their main leaders in Western Europe and North America wholly fund them is a big deficit. Accordingly, notwithstanding their good intentions and constructive roles that they’ve often played, they come across as proxies and puppets of their extra-African principals. African civil society groups can consolidate their constructive engagements by being more indigenously inspired and more importantly, funded. . This is to lessen the debilitating impact of informed public perception of African affiliates of international non governmental organizations as serving as handmaidens of extraneous groups with dubious political agendas. If the passion that is mobilized domestically in pushing for such mechanisms as the ICC is pooled into creating a pan African institution with the same responsibilities, we would have taken away the charge of international meddling in African affairs in pursuit of strategic interests of powerful global actors. Against this background, it may be legitimately asked: “What kind of justice would a power and strategic interest driven international system and its instruments dispense for Africa?” Africa is the last on the totem pole of global power politics.
The October extraordinary summit in Addis Ababa of African Heads of State and Government has paid dearly for its timidity by the sharp slap on the face when the ICC finally rejected its compromise appeal for a deferral of the hearing of the sitting Kenya President. It is a power game. At some point, the AU summit may wake up to this stark reality, but assuredly cannot do anything about it. Many of them still depend on their metropolitan masters to draw the limits of their public posturing, even on matters that fundamentally touch their integrity.