‘International Criminal Court Is Not A Western Court Unfairly Focusing On Africa’
At the heart of the peace versus justice debate, according to Kuenyehia, is the dilemma over whether threatening to prosecute and punish those responsible for atrocities, especially political and military leaders, makes them more or less likely to agree to peace, if peace will soon mean their arrest and incarceration.
“A simplistic view of the peace versus justice assumes that it cannot be possible both to have the sword of justice drawn and the swords of war sheathed. There must be a trade-off between the two, where peace has to be sacrificed in favour of justice and vice versa.
“This perception is however grounded on a very narrow understanding of peace and justice. Where peace is understood merely as the absence of war and equated with peace negotiations, justice is understood as punishment, represented by International Criminal Court (ICC), prosecutions,” she said.
Kuenyehia was born in 1947. She was Dean of the Faculty of Law of the University of Ghana before her election as a judge. During her time at that university, she taught criminal law, gender and the law, international human rights law and public international law.
She represented Ghana on the United Nations’ Convention on the Elimination of All Forms of Discrimination against Women, CEDAW Committee in 2003 and worked hard to contribute to its reputation and influence.
Kuenyehia was the first vice-president of the ICC from March 11, 2003 until March 11, 2009. She was assigned to the Appeals Division and elected from the African Group of States, list B.
She was coordinator of a research project entitled ‘Women and Law in Anglophone West Africa’, which covered Ghana, Nigeria, Sierra Leone and The Gambia.
The ICC, according to her, currently has jurisdiction over genocide, crimes against humanity and war crimes committed after the Rome Statute came into force on July 1, 2002 (Article 5 and 11). It can also exercise jurisdiction if the Security Council refers a case to it (Article 13). “Otherwise, ICC’s jurisdiction requires some nexus to state consent, either through ratification of the Rome Statute, which subjects the nationals and territory of state parties to ICC oversight, or voluntary consent of non-parties to the ICC’s jurisdiction on an ad hoc basis (Article 12), ” she said.
One of the most distinctive features of the Rome Statute is the principle of complementarity. The ICC can only step in when national systems of justice are unwilling or unable to investigate or prosecute such cases.
She said that instituting criminal justice during conflict, and in some cases, parallel to peace processes, has proven a difficult task for the ICC especially in Uganda. “The situation has sparked a debate between the proponents of peace who argue that the ICC indictments (of the leaders of the Lord’s Resistance Army (LRA)) have to be dropped in favour of peace negotiations and the proponents of justice who argue that international justice must prevail in order to end impunity and deter future crimes.”
A final unique aspect of the Court is its attention to gender not only in the inclusion of gender crimes, but also in the composition of its bench and in advocating for a gender balance in its workforce.
“The Rome Statute is the first international treaty to recognize a range of acts of sexual and gender violence as among the most serious crimes under international law, thus making the ICC by far the most far-reaching institution of international criminal justice addressing gender and sexual violence.
“These offences include rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and other grave forms of sexual violence that are classified as war crimes and crimes against humanity. In addition, trafficking of women and children is included as a crime against humanity. The Statute also specifically stipulates for the first time the recognition of gender as a basis for persecution and is thus included as the crime against humanity.”
The Statute, she said, does not only address the issue of women as victims of gender violence but also addresses the participation of women in the Court as judges, prosecutors and staff with the necessary expertise. The ICC Statute provides that in the nomination and election of judges, account be taken of a fair representation of female and male judges(Article 36 (8) (a)(iii). “The statute goes further by emphasizing the need to include judges with legal expertise on specific issues such as violence against women (Article 36 (8) (b). To ensure gender parity, the ICC recently swore in new 11 female and seven male judges.”
The inclusion of these provisions in the ICC Statute reflects an attempt to mainstream women’s rights into the normative structures of international humanitarian law, a body of law that had previously not taken account of women’s rights.
“In all cases, the application and interpretation of law must be consistent with internationally recognized human rights, and applied without distinction founded on grounds of gender, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.”
She believes that peace that ignores the underlying causes of the war or conflict, or the legitimate interests of affected grounds, cannot be described as a lasting or sustainable peace. Ignoring the legitimate expectations of the victims, for example, might lead them to resort to vengeance, thus causing further violence.
Kuenyehia posited that African governments have recognized the importance of ending impunity on the continent by their participation in the negotiation of the Rome Statute and ratification of the Statute. “They must do more to strengthen the capacity of national justice systems so as to allow African states to more fully participate in international justice.
“As regards the implementation of regional initiatives at the African Union (AU) level, more needs to be done to activate the international justice responsibilities of the Union. Indeed, the lack of systematic condemnation for serious human rights violations, as well as the lack of uniform support for the work of the ICC is regrettable.”
Despite Africa’s leading role in the development of the ICC and international criminal justice, including invitation (by self-referral) of three of the Court’s four current investigations, the ICC is now largely portrayed in Africa as an imperialist imposition by powerful western nations. “This is a misleading and unproductive approach to the Court, and illustrates the urgent need to raise awareness about international criminal justice and how the ICC works as well as the role Africa played and continues to play in the ICC throughout Africa.”
Three of the four situations currently under investigation at the ICC, Kuenyehia said, were referred to the Court by African governments themselves. Between 2003 and 2005, the governments of the Democratic Republic of Congo (DRC), Uganda, and the Central African Republic (CAR) referred situations on their own territory to the ICC Office of the Prosecutor.
These governments, all of whom are State Parties to the Rome Statute, recognized the inability of their national courts to address the grave crimes at issue and therefore requested the Court to open investigations in accordance with the complementarity principle of the Rome Statute.
“This is a positive sign that these governments want to deal effectively with impunity and protect their citizens. But they also demand the same justice for western leaders who have committed grave crimes and greater transparency and effectiveness from the institutions that deliver justice, especially the ICC. The concern is a genuine one, but the Court is currently analyzing situations outside of Africa, for instance in Colombia, Afghanistan and Georgia. The ICC prosecutor is also examining whether the ICC has jurisdiction over the Palestinian territories and any crimes that may have occurred there since July 1, 2002.”
She said that by attempting to punish those responsible for crimes against humanity, the Court is standing up for African victims and attempting to prevent the future occurrence of such atrocities. “The ICC is not a western Court unfairly focusing on Africa. It is a global Court with historically strong African support. It would not be the Court it is today without the valuable input, involvement and support for victims of grave crime, including African victims. It needs the ongoing support of African Governments (civil society and the public) in order to achieve justice. The ICC is an integral and essential part of the fight against impunity all over the world.
“There is a need for more involvement of African scholars in the discourse on international justice in Africa. There is a need to mainstream conceptual/analytic and African perspectives on international justice. Promoting and disseminating works by African academics and activists and capacity building with African students, practitioners and activists on issues of international justice could accomplish this. Both the network of East African International law lectures working towards the incorporation of international criminal law in all law faculties of East Africa and the proposed Open University of Tanzania International Criminal Law Centre in Arusha are promising in this regard,” she enthused.
International criminal justice has benefits as well as drawbacks. In a narrow sense, it results in direct accountability and delivers a form of justice based on law, which some believe is more suited to address mass crimes.
“It also provides a level playing field by ensuring impartiality, that is, everyone is held accountable to the same standard. It contributes to the national reconciliation process by prosecuting those most responsible for serious crimes of concern to the international community. It results in the restoration of the rule of law and encourages the emergence of democratic institutions.”
However, the learned Judge said that the ICC is plagued by issues of legitimacy, particularly as the courts are often removed from the location of the crimes. “Co-operation by the states is another major difficulty for the Court. It is often difficult to execute arrest warrants or conduct investigations in hostile locations. These problems may be overcome to an extent through greater focus on complementarity, so that more states become involved in the process.”
Presently, 108 states – most of them members of the UN – have so far become parties to the Rome Statute either through ratification or accession.
Kuenyehia is a barrister and solicitor of the Supreme Court of Ghana. She has co-authored several books and influential papers on how law is interpreted and implemented throughout in Africa. She has fond memories of arguing over cases with her husband, who is still a practicing lawyer in Ghana.
She has helped a number of organizations become strong political players, including Women in Law and Development in Africa, the Federation of Women Lawyers in Ghana and the Gender and Human Rights Documentation Centre.
With like-minded women, Kuenyehia set up legal services centres in Accra and Kumasi to help Ghanaian women who previously thought the law only applied to them if they were in trouble with the police. “Going out and meeting these women gave me insight into how the law impacts their lives, which helped me realize where we needed to push for changes in the law,” she said.