Thesis title: “African Solutions to African Problems” - Unpacking and Addressing the Legitimacy Crisis of International Criminal Justice in Africa
Student: Basma Osman Supervisor: Goran Sluiter Submission date: 27/07/18
“AFRICAN SOLUTIONS TO AFRICAN PROBLEMS” – UNPACKING AND
ADDRESSING THE LEGITIMACY CRISIS OF INTERNATIONAL CRIMINAL JUSTICE IN AFRICA
ABSTRACT: The purpose of this inquiry is to deconstruct and confront the legitimacy crisis of international criminal justice in Africa by setting out a normative standard for assessing
legitimacy, evaluating the design and practice of certain international criminal tribunals according to this standard and drawing on the experiences of these tribunals to suggest how the legitimacy of international criminal justice efforts in Africa could be improved. It briefly explores some of the meanings of legitimacy in international law and relations before settling on a standard of
democratic state consent that measures legitimacy in international law according to the extent of equal and transparent participation and representation of states. The legitimacy of international law in general and international criminal law in particular is discussed with reference to Third World Approaches to International Law, a post-colonial theory and methodology that exposes the colonial foundations of international law to show how the historic and continued exclusion and subjection of third world concerns to the benefit of first world interests has diminished the
democratic legitimacy of the international legal system. This post-colonial evaluation of legitimacy is then applied to the design and practice of the International Criminal Court, considering in particular how its limited jurisdiction, provision for Security Council involvement, prosecutorial African ‘bias’ and general insensitivity to local nuances detract from its legitimacy to an extent that cannot be cured, or may even be aggravated, by its principles of complementarity and outreach. Legitimacy issues are finally evaluated in the context of hybrid tribunals, looking specifically at how certain features of the Special Court for Sierra Leone and the Extraordinary African
Chambers in Senegal served to strengthen and weaken their legitimacy. The paper concludes that African hybrid justice provides a flexible model most suited to addressing the legitimacy of international criminal justice in Africa in the future.
Content
I. Introduction
The African Union notion of “African solutions for African problems”1 has been frequently and vociferously quoted in opposition to interventions in the continent by certain international institutions such as the International Criminal Court. It has become a kind of rallying cry for a movement establishing what some have described as a crisis of legitimacy in international criminal
justice in Africa. The purpose of this inquiry is to deconstruct and confront this crisis, by setting out a normative standard for assessing legitimacy, evaluating the design and practice of certain
international criminal tribunals according to this standard and drawing on the experiences of these tribunals to suggest how the legitimacy of international criminal justice efforts in Africa could be improved. Chapter II will briefly explore some of the meanings of legitimacy in international law and relations before settling on a standard of democratic state consent that measures legitimacy in international law according to the extent of equal and transparent participation and representation of states. The legitimacy of international law in general and international criminal law in particular will be discussed with reference to the Third World Approaches to International Law, a
post-colonial theory and methodology that exposes the post-colonial foundations of international law to show how the historic and continued exclusion and subjection of third world concerns to the benefit of first world interests has diminished the democratic legitimacy of the international legal system. Chapter III will apply this post-colonial evaluation of legitimacy to the design and practice of the International Criminal Court, considering in particular how its limited jurisdiction, provision for Security Council involvement, prosecutorial African ‘bias’ and general insensitivity to local
nuances detract from its legitimacy to an extent that cannot be cured, or may even be aggravated, by its principles of complementarity and outreach. Chapter IV will evaluate the legitimacy issues in the context of hybrid tribunals, looking specifically at how certain features of the Special Court for Sierra Leone and the Extraordinary African Chambers in Senegal served to strengthen and weaken their legitimacy before concluding in Chapter V that African hybrid justice provides a flexible model most suited to addressing the legitimacy of international criminal justice in Africa in the future.
II. Legitimacy and Third World Approaches to International Law
A. Legitimacy in international law and international relations
The concept of legitimacy in international relations and international law is generally understood as a means of justifying authority. Thus, in order for an international institution such as the United Nations (UN), or indeed the system of international law in general, to be considered legitimate it must have a “right to rule”2 such that it is “morally justified in attempting to govern”3 those subject
2Daniel Bodansky, ‘Legitimacy in International Law and International Relations’ [2011] APSA 2011 Annual Meeting Paper, 7
3Ibid., citing Allen Buchanan, Justice, Legitimacy and Self-Determination (Oxford University Press 2003) 85
to its authority. In a review of international law and international relations literature on legitimacy, Bodansky distinguishes between what he calls “normative legitimacy”, whereby an institution is judged whether it has a right to rule “as a matter of moral theory”4, and “descriptive or sociological
legitimacy”, which looks to whether an institution’s authority is actually accepted by its relevant audiences. The former conception of legitimacy is primarily concerned with moral justification and whether an international institution is “worthy of support”; the latter can be seen to be more
concerned with the consequences of legitimate status in that it may provide a basis for compliance and therefore be instrumental to effectiveness5. Bodansky notes that normative legitimacy and
descriptive legitimacy share a complex and “parasitic” relationship. On the one hand, societal beliefs about legitimacy are based on beliefs as to whether an institution has a moral right to govern. On the other hand, the right to govern arguably depends on societal beliefs: it would be difficult to assert that an institution is normatively legitimate if no one actually believed this6. He concludes,
however, that much of the work of international lawyers and international relations scholars conflates both conceptions of legitimacy by taking normative criteria (such as democracy, which may consist of transparency and participation elements, see below) and assuming that people use such criteria in their own analyses as to the legitimacy of an international institution. In this way, normative legitimacy becomes the “test of descriptive legitimacy”7. Furthermore, Thomas relates
normative legitimacy to descriptive legitimacy by describing a process of “legitimation” whereby “actors come to believe in the normative legitimacy of an object”, which may occur through the strategic and “conscious effort to influence beliefs about what is normatively justified”8. It is
submitted, therefore, that normative legitimacy is a logical starting point, and the present inquiry into the legitimacy of international criminal law and tribunals in the African context will focus on moral rather than instrumental criteria for legitimacy and assess the extent to which the relevant tribunals meet these criteria. Although some reference will be made to effectiveness, an
instrumental standard of legitimacy, it will be suggested that a focus on moral standards of legitimacy is the most appropriate way of conducting this inquiry.
Regarding the question of which standard of legitimacy should be applied to international
institutions, Bodansky asserts, “While democratic legitimacy seems too utopian to serve as a useful 4 Ibid.
5 Ibid. 6Ibid. 8 7Ibid. 10
8Christopher A. Thomas, ‘The Uses and Abuses of Legitimacy in International Law’ Oxford Journal of Legal Studies, Vol. 34, No. 4 (2014) 729–758, 742
standard, state consent seems too apologetic.”9 The assertion is based on the assumption in political
science that democracy is the standard of legitimacy for domestic government and that democracy should therefore be the standard of legitimacy for international government, either directly through some utopian kind of global democracy or indirectly through state consent. Domestic governments derive their right to rule from popular democracy but, the argument goes, this seems overly
stringent (and unattainable) when applied to an international institution that does not have the equivalent coercive authority nor an equivalent global population under its rule. On the other hand, the ever-increasing degree of authority attributed to international institutions might lend force to the argument that state consent, though necessary under general international law, is not a sufficiently comprehensive standard of democratic legitimacy for international institutions today. This is particularly true of international criminal tribunals which have jurisdiction over individuals rather than the traditional subject of international law, the nation state. Moreover, since many states are themselves undemocratic or sign international agreements through executive decision-making, it is argued that state consent betrays the underlying democratic standard. Thus, proceeding on the assumption that democracy is the appropriate moral standard of legitimacy for international
institutions, one must then determine whether it should manifest in global democratic utopia at one extreme, the system of state consent at the other, or other variations that lie somewhere in between. Much of the literature expands on these standards through reference to procedural or
“input-based”10 factors that focus on aspects of democratic process, such as participation, equality,
transparency and representation. Alternative to, or in conjunction with, the conception of legitimacy that takes democracy as its moral basis, is the instrumental conception of legitimacy that focuses on the results of governance. Such “output”11 factors include stability, equity and, significantly,
effectiveness.
This inquiry into the legitimacy of international criminal tribunals will primarily focus on the democratic standard of legitimacy, measured by reference to factors such as participation, equality, transparency and representation, because these moral criteria emerge in the Third World
Approaches to International Law (TWAIL) theory and methodology which, it is submitted, best captures the crisis of legitimacy faced by international criminal law in the African context (see next section). The central assumption made here is that democracy is inherently good and justifies all political, and therefore legal, authority. Given that African states form the subject of this paper, and 9Ibid. 11
10Ibid. 12, citing Fritz Scharpf, ‘Economic Integration, Democracy and the Welfare State’ [1997] Journal of European Public Policy, Vol. 4, No. 1, pp. 18-36
in spite of the fact that a more rigorous standard of democratic legitimacy is arguably desirable, this inquiry will take state consent as the standard of democratic legitimacy according to which
international criminal law and tribunals should be judged. It will be shown that these institutions struggle to meet even this basic standard. Thus, tribunals that are more democratic in their design and practice – that foster greater participation, equality, transparency and representation of African states – are more legitimate. This is not to say that these are the exclusive criteria for measuring legitimacy. Indeed, it bears repeating that actual beliefs about legitimacy, Bodansky’s “descriptive legitimacy”, are equally if not more relevant to an inquiry into the legitimacy of international criminal tribunals and may exist even in the absence of democratic legitimacy. For example, while the African Union (AU) notion of “African solutions for African problems” often referred to by detractors of the International Criminal Court (ICC) suggests a perceived illegitimacy related to a democratic deficit, one survey of 2400 Kenyans found that 61 percent support ICC prosecutions and consider them to be an important tool for fighting impunity in the country12, suggesting that such a
deficit may not be the most important factor in actual beliefs about legitimacy. A more relevant factor could be the institution’s effectiveness, an instrumental or “output” standard of legitimacy which in the context of international criminal tribunals means the extent to which the tribunal is successful in achieving its legitimate aims. These aims must in themselves be defined and justified, but for the purposes of this inquiry will be assumed to include ending impunity for international crimes, preventing or deterring their commission, and compliance with the tribunal’s rulings. The dearth of comprehensive and reliable empirical studies into sociological attitudes towards
legitimacy and into the actual effectiveness of international criminal tribunals means that an examination into such alternate or additional bases of legitimacy goes beyond the scope of this inquiry. Instead, the international criminal tribunals under examination will be judged for
legitimacy according to the democratic standard, with some secondary consideration as to whether certain institutional features may, in theory, contribute or detract from effectiveness.
B. Legitimacy and Third World Approaches to International Law
TWAIL is a theory and methodology of international legal scholarship “with an activist bent” which seeks to expose how international law perpetuates structural inequalities globally and provide alternatives to international governance that dismantle persistent colonial power dynamics13. The
12Afrobarometer, Support for the International Criminal Court in Africa: Evidence from Kenya (Afrobarometer Policy Paper No. 23, 2015) 2
13Asad Kiyani, John Reynolds and Sujith Xavier, ‘Symposium, Third World Approaches to International Law: Foreword’ Journal of International Criminal Justice 14 (2016) 915, 916
starting point for much TWAIL scholarship is the idea that international law is inherently colonial. Built into the foundational concepts of state consent and sovereign equality, which are generally accepted as underlying the international legal system, are European colonial ideas justifying domination of the so-called third world14. Colonised peoples were denied the opportunity to properly contribute to the development of international law, and even after the decolonisation process that began in the 1960s new states had no choice but to accept the international order in which they found themselves. The colonial legacy is present therefore even in laws and institutions that were created post-independence because the system of statehood of which these laws and institutions form part was itself built to the exclusion of one part of the world and to the benefit of another. Already one can see that the purportedly universal nature of the international legal system as a whole is false. The legitimacy of this system does not seem, then, to be guaranteed, for the process which led to its development was not democratic. Third world subjects of international law, including the peoples and later independent states of the African continent, did not participate in its development and their values were not represented in this process, certainly not to as equal an extent as the powerful states. For the purposes of this inquiry, it would arguably be more useful to consider through this post-colonial perspective the legitimacy of international institutions more specifically, but the questionable legitimacy of the foundational Westphalian model of sovereign statehood and the international order as a whole serves as an important backdrop to the legitimacy crisis of international criminal law in the African context. Even if an African state has consented to subjecting itself to that order and to subsequent developments within that order – and TWAIL and Marxist theories of law show that such consent cannot always be said to be purely voluntary because of global structural inequalities and power dynamics – that consent is experienced differently from and has different connotations to the consent of a European state. The history of exclusion and inequality helps explain the sense of injustice and lack of ownership African states may experience in their engagement with international law and institutions.
In his critical piece on modern international institutions, influential TWAIL scholar Chimni asserts, “A network of economic, social and political [international institutions] has been established or repositioned, at the initiative of the first world, and together they constitute a nascent global state whose function is to realize the interests of transnational capital and powerful states in the international system to the disadvantage of third world states and peoples.”15
14Anthony Anghie, ‘Francisco de Vitoria and the Colonial Origins of International Law’ in Peter Fitzpatrick and Eve Darian-Smith (eds) Laws of the Postcolonial (University of Michigan Press 1999)
15B.S. Chimni, ‘International Institutions Today: An Imperial Global State in the Making’ EJIL (2004), Vol. 15 No. 1, 1–37, 1
Paying close attention to the historical context of the international order, Chimni notes that “a coalition of powerful social classes and states decides when an [international institution] is the appropriate form in which to pursue their interests, as well as its central preoccupations” and that these powerful entities are “steering the knowledge-production and dissemination functions of [international institutions]”16. He continues,
“[T]he neo-colonial state undermines itself in the process and embraces a legitimacy crisis, which explains the emerging consensus among third world peoples that [international institutions] suffer from ‘democracy deficit’. The erosion of the autonomy of the neo-colonial state is, in other words, the reason why the issue of [international institution] legitimacy has acquired the salience it has. In sum, the neo-colonial third world states will continue to exist but essentially in the service of the [transnational capitalist class] and the global state. The Northern/Western states, on the other hand, will continue to shape the form and content of the emerging global state to realize [transnational capitalist class] interests.”17 While he acknowledges that certain developments in the international institutional landscape, such as international human rights and environmental law, may serve to benefit third world peoples and “empower them against their own states”, Chimni maintains that the “essence” of such
developments remains the “creation of conditions conducive to the spread and growth of global capitalism and not the improved welfare of third world peoples”18. Indeed, in his assessment of international human rights and environment institutions he considers how the neglect of economic and social rights and the principle of differentiated responsibility for environmental damage
respectively favour advanced capitalist countries and, moreover, serve to create social conditions in third world countries in furtherance of the global capitalist agenda19. Thus, Chimni’s analysis shatters the legitimacy of modern international institutions by revealing a lack of transparency in their design and functioning, to the extent that even seemingly laudable and ‘universal’ pursuits like human rights and environmental protection can have covert hegemonic objectives. He highlights gross inequality between the global North and South because although all states consent to
limitations on their sovereignty in submitting to international institutions, this “erosion” is merely apparent for the powerful states who continue to shape the formation and functioning of these institutions but very real for the third world states who are excluded from this monopolised process of knowledge-production20. He concludes his critique with a call for the “meaningful participation”
16Ibid. 3 17Ibid. 5 18 Ibid. 19Ibid. 9 20Ibid. 25
of third world states in the negotiating and decision-making processes of international institutions and an overhaul of the undemocratic processes which merely “get third world countries to sign on the dotted line”21.
These TWAIL analyses forcefully challenge the legitimacy of the international legal order and the institutions within it. Looking, then, at international criminal law and tribunals and their relationship with Africa, similar concerns arise. Xavier and Reynolds apply TWAIL reasoning to international criminal justice, noting first that its proliferation emerged in the context of the an idealist “purported universality of legal norms” juxtaposed with the reality of economic exploitation and inequality “obscured behind the masks of aid and development”22. They assert that international criminal justice is at the very least “aligned with an imperial discourse devoted to imposing ‘good
governance’ techniques and free market ideology”23. The idea that international criminal law does not do enough to challenge the colonial legacy has unavoidable implications on its legitimacy because it is indicative of grossly unequal attention and representation of the concerns of third world states, once again shattering the fiction of universality. Chimni argues that the focus on individual responsibility neglects “the international causes of internal conflicts in third world societies, whose manifestation in unspeakable violence is their real subject”24, while Xavier and Reynolds call for international criminal law to tackle “the economic contexts of war, exploitation and scarcity”25. The fact that these broader notions of crime and criminal responsibility do not figure in international criminal law is a clear reflection of the exclusion of African states, and the third world generally, in its development. It is vital that the future development of international criminal law explicitly remedies this and moves forward in an “open, democratic and
participatory”26 process in a radical redesign of its institutions. On this point Anghie and Chimni criticise the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) in their creation and in their contribution to the development of international criminal law. First, they doubt whether conception by the UN Security Council (UNSC) was appropriate, and express concern about an “intensifying trend” that sees the UNSC giving itself the power to address certain international questions that are subject to continuing
21Ibid. 33
22 John Reynolds and Sujith Xavier, ‘“The Dark Corners of the World” TWAIL and International Criminal Justice’ Journal of International Criminal Justice 14 (2016) 959-983, 962
23Ibid. 961 24 Chimni, 14
25Reynolds and Xavier, 980
26Anthony Anghie and B.S. Chimni, ‘Third World Approaches to International Law and Individual Responsibility in Internal Conflicts’ Chinese Journal of International Law (2003) Vol. 2, No. 1, 77–103, 92
negotiations by the wider international community27. Second, they criticise the ICTY, particularly in the Tadic28 decision, for taking an approach to the development of international criminal law that undermined “both the settled law and the principles of participation in the formulation of the law”, formulations which risked reflecting “the views of dominant states alone” because they were not transparent and inclusive. Nesiah explores how such concerns about participation and democracy in the development of international criminal law have led to attempts to foster a sense of “local
ownership” of international criminal tribunals by affected communities, notably manifesting in the belated outreach attempts of the ICTY and ICTR, as well as of the ICC from the outset (see next section on the ICC). In her analysis of the various ways in which the local can be constituted globally, she notes how certain communities might welcome an attempt by international criminal tribunals to explore local transitional or “customary justice” processes but that the absence of this brings “echoes of imperial authority”29 to the mind of many.
To sum up, legitimacy on the international plane is often accepted by international lawyers and international relations scholars to correspond with legitimacy in the domestic legal and political context as being sourced in democracy. In the global context, democracy manifests itself – at a minimum – in state consent, and may be assessed with reference to factors such as participation, representation, equality and transparency. Because our inquiry primarily focuses on international criminal tribunals’ relationship with African states, rather than sub-state entities such as peoples or individuals, this essay proceeds on the assumption that state consent is a sufficient manifestation of democracy, although it is conceded that many states are not internally democratic and that,
moreover, in light of the proliferation of subjects of international law, a more stringent and direct manifestation of democracy would be better. Thus, international laws or institutions to which all states have consented may be considered legitimate. However, TWAIL scholarship has exposed the system of state consent itself as being steeped in European colonialism and has, in any case, shown that the consent of third world states has essentially been non-existent because international law and institutions have developed, and continue to develop, in an undemocratic way. In other words, to varying extents, existing international laws and institutions, as well as the international legal order as a whole, lack legitimacy. While acknowledging that the concept of state consent is problematic, this inquiry assumes its inevitability and focuses instead on exploring the possibilities of legitimate
27 Ibid. 93
28Prosecutor v Tadic, No. IT-91-1-AR72, Appeal on Jurisdiction, para. 119 (Oct. 2, 1995), 35 I.L.M. 32
(1996), 105 I.L.R. 419
29 Vasuki Nesiah, ‘Local Ownership of Global Governance’ Journal of International Criminal Justice 14 (2016) 985-1009, 991
and genuinely consensual international institutional design going forward. Specifically, it seeks to explore some of the ways in which international criminal law and tribunals lack legitimacy in relation to African states – for example, by excluding genuine and equal participation in the
development of international criminal law, and through the latter’s neglect of economic or colonial-related crime as well as African conceptions of criminal justice – and consider how these legitimacy concerns could be addressed in the design of future tribunals.
III. Legitimacy and the International Criminal Court
Analysis has been made in the previous chapter of the legitimacy of international criminal law in general as a component of the international legal system, with some reference to the practice of specific tribunals such as the ICTY. It is now worth considering in more detail questions of legitimacy facing the ICC. As the first permanent international criminal court, established by the Rome Statute in 1998 to investigate and try individuals charged with “the gravest crimes of concern to the international community”30, namely genocide, war crimes, crimes against humanity and the crime of aggression, the ICC is charged with the future development of international criminal law, clearly striving for universality in this pursuit. However, this universality has been notoriously challenged by the AU, and a number of African states have threatened to withdraw from the Court’s jurisdiction as a result. This paper will not investigate whether such criticism has in fact established a ‘legitimacy crisis’ but rather will consider the ICC’s design and practice and assess the ways in which normative legitimacy may be lacking. Moreover, although some suggestions for
improvement will be made in support of the ICC project, it will be proposed in the next chapter that hybrid tribunals may be more suited at present to address the legitimacy problems of international criminal justice in Africa.
A. Select criticism of the International Criminal Court
1. List of “most serious” crimes
One legitimacy-related criticism of the ICC alluded to above lies in the limited list of crimes under its jurisdiction. The Rome Statute limits the jurisdiction of the Court to “the most serious crimes of concern to the international community as a whole”31. These are: the crime of genocide, crimes against humanity, war crimes and the crime of aggression. In listing and defining these crimes, the
30 The International Criminal Court, available at <> accessed 14 June 2018 31 Rome Statute, Article 5
Rome Statute is generally considered to be in line with, rather than exceeding or transforming, international criminal law and international humanitarian law of customary status. For this reason they are said to represent the most serious concerns of the entire global community. Keeping in mind TWAIL ideas about the exclusion of third world states from international legal development, the choice of which crimes are to be regarded as the most serious is suspicious from the perspective democratic legitimacy. As Xavier and Reynolds argue, these crimes do not address “the collective interests of global South peoples that are impacted by the structural violence of economic coercion, resource extraction, global wealth distribution and enforced impoverishment, nor in many instances the slow violence meted out by the toxic remnants of certain weaponry”32. Anghie and Chimni argue that the Rome Statute “suffers from several severe shortcomings which suggest that
participation and democracy often give way to power”33, pointing to its failure to prohibit the use of nuclear weapons as an example of this. To put it bluntly, the kind of colonial and neo-colonial crimes of exploitation that are most likely to be committed by powerful states and institutions are not considered to be sufficiently grave. Indeed, the fact that the crime of aggression – which has the potential of implicating powerful states from the global North – was only activated on December 15 2017, further points to the historic unequal representation of state interests in the choice of most serious crimes. The legitimacy of the Court’s limited jurisdiction could therefore be improved through the inclusion of crimes that represent African or third world interests, and on this point the activation of the crime of aggression is a welcome development. However, it is worth noting here that neither France nor the United Kingdom have ratified the aggression amendment, reminding us that the ICC is situated in a woefully unequal international order in which the African state with leaders accused of international crimes may consent to ICC jurisdiction while the powerful Western state never will.
2. United Nations Security Council referral
An obvious criticism of the ICC relates to the UNSC referral mechanism. One of the ways in which a situation may be referred to the Court is through a resolution under Chapter VII of the Charter of the UN. Furthermore, the Rome Statute sets out a role for the UNSC without any requirement that its members are subject to the jurisdiction of the ICC: France and the United Kingdom are the only Permanent Members under the Court’s jurisdiction. That the UNSC, and its system of Permanent Membership, defies values of democratic process such as participation and representation is not a difficult argument to make – indeed, it exemplifies the dominance and inequality built into the
32Reynolds and Xavier, 981 33Anghie and Chimni, 95
international order. Kiyani draws on the example of the Darfur referral to illustrate how the UNSC’s role in the ICC system contributes to a blatant disregard for the participation rights of Africa. Given that the AU, who objected to the indictment of the Sudanese president Omar al-Bashir, continues to act as a mediator in Darfur and has previously deployed troops there “even when the UNSC refused to deploy UN troops”34, he argues that the AU should have been consulted before the referral resolution was passed. “What is of interest here is not that the debate was resolved in favour of the perspective adopted by the Security Council,” he writes, “but that there was no such debate in the first place”35. Kiyani himself describes the al-Bashir indictment and its justification as “flawed” because it violates the law of treaties36, which constrains treaty bodies such as the UNSC, by binding a non-state party to a treaty. In maintaining that al-Bashir’s head of state immunity may be waived under the Rome Statute on the basis of the UNSC resolution, he argues, the ICC legitimates and further entrenches “the second-class nature of Third World states under international law by denying them the legal protections that all other states may rely upon”37. Indeed, the al-Bashir indictment and the controversial position on the waiver of immunities has contributed significantly to African backlash against the Court, notably triggering South Africa’s refusal to comply with the arrest warrant in 2015 and subsequent threat to withdraw from the Rome Statute. The UNSC’s place within the ICC system is a flagrant example of double standards and inequality in international law, and for this reason it is the primary barrier to the Court’s ability to improve its legitimacy among African states.
3. Selectivity
A well-known criticism of the ICC relates to its selection of cases. Article 13 of the Rome Statute states that the Court may exercise jurisdiction if a situation in which one of the crimes listed in Article 5 appears to have occurred is referred to the Prosecutor by a State Party, by the UNSC, or if the Prosecutor initiates an investigation proprio motu on the basis of received information. There are currently eleven situations under investigation by the Office of the Prosecutor (OTP), ten of which pertain to African states, a fact which has seen the Court heavily criticised for having an African “bias”38. Of these ten African situations under investigation, five were referred to the OTP
34Asad Kiyani, ‘A TWAIL Critique of the International Criminal Court: Contestations from the Global South’ CPSA Working Paper (2011), 16
35Ibid.
36 Vienna Convention on the Law of Treaties 1969, Article 35 37 Kiyani, 18
by the relevant State Party (Mali, Uganda, Democratic Republic of Congo and Central African Republic I and II), two were referred to the OTP by way of UNSC resolution (Libya and Sudan) and three were initiated proprio motu by the Prosecutor (Burundi, Ivory Coast and Kenya). Defenders of the Court are quick to highlight the fact that, since half of these situations involved self-referral by the states concerned, the African bias critique is exaggerated. This, it is submitted, fails to adequately account for the wider context of African engagement with international law. It has already been shown that the choice of serious crimes falling under the Court’s mandate disproportionately affects third world states. The fact therefore that the Court’s implementation of this mandate through its selection of cases corresponds with this asymmetry in practice, whether by means of self-referral or otherwise, whilst simultaneously claiming to be the world’s court, is deeply problematic. As Kiyani writes, the ICC “reproduce[s] existing inequalities in international law”39. This is particularly dangerous in light of the ICC’s purported universality and permanence. Indeed, Kiyani argues that these notions are used to paint the Court as “distinct” from previous international criminal tribunals and “bolster its legitimacy”, but that the “unintended effect of justifying the ICC by reference to human rights is to circumvent criticism of ICC selectivity by tapping into traditional European narratives of exporting civilization to the uncivilized”40. The point here is that structural elements of the Court, such as the list of crimes under its jurisdiction and the fact that the UNSC may make referrals, means that its normative universality is not assured. Challenges to the Court’s legitimacy on the basis of its actual practice, which shows a disproportionate focus on Africa that corresponds with arguments of systemic bias in its
constitution, cannot be dispelled simply by reference to universal human rights concerns and the fact of self-referral. Such references ignore and indeed entrench colonial and neo-colonial power dynamics, dynamics which are not altered by the fact that victims gain from seeing their oppressors in court. Legitimacy concerns affect all Africans, including victims of atrocities, and it is wrong to suggest that the pursuit of legitimacy in international criminal justice is a pretext for the evasion of responsibility by African perpetrators of international crimes. Thus, in the absence of much-needed structural reform that allows for adequate participation and representation of African and third world concerns, the onus is on the Court to strive for universality in practice by selecting cases beyond Africa. Seven of the ten situations currently under preliminary examination relate to countries outside of Africa. The Iraq/United Kingdom situation has the potential to implicate nationals from one of the most powerful states in the world, while the Palestine situation could see a contemporary case of colonisation captured under the Court’s mandate. These are welcome
developments and will likely contribute to descriptive legitimacy insofar as the visible African bias
39Kiyani, 13 40Ibid.
may be diminished, though it remains to be seen whether such cases will ever proceed to investigation. The Palestine case could even see through the development of substantive law a widened conception of the crimes under the Court’s jurisdiction that could better reflect the interests of third world states in the continuing struggle against the effects of colonialism. However,
normative concerns about the Court’s democratic legitimacy will persist as long as the structural defects are not addressed.
4. Effectiveness
Finally, it was mentioned in the previous chapter that effectiveness, though not the primary focus of this inquiry, is an important measure of legitimacy. Some concerns pertaining to the ICC’s
engagement with Africa demonstrate how democratic legitimacy may have an impact on effectiveness, and vice versa. Cannon et al. explain that the ICC has been criticised in its investigation of atrocities in Africa for “lacking knowledge of or ignoring local political
conditions”, and that this “might exacerbate factionalism and inflame ethnic tensions, undermining the Court’s chance of paving the way for peace and reconciliation”41. Drawing on the example of the Democratic Republic of Congo, the writers illustrate how regional and/or perpetrator selectivity – inevitable given the ICC’s limited jurisdiction and resources – may jeopardise “broader
reconciliation efforts” in countries with ongoing conflict or, in the case of Kenya, may “[re-ignite] ethnic tensions”42. Similarly, Clark notes that a fundamental objection to ICC involvement in northern Uganda holds that it would be a threat to peace, although he argues that this contention “conceptualizes peace in a very narrow, negative sense”43 because it treats peace and justice as mutually exclusive. Thus, it is clear that the relationship between peace and justice is a complex one, complicated further by unique local nuances and needs. These concerns, moreover, imply a potential effectiveness problem in the ICC’s engagement with ongoing conflict and transition in Africa, assuming of course that peace and, by extension, prevention and deterrence, are aims of the Court. The relevance of this to democratic legitimacy may be understood by partially attributing the potential problem of the ICC’s lack of knowledge and sensitivity to the fact that particular African values about peace and justice are not reflected in the Court’s system of international criminal law
41Brendon J. Cannon, Dominic R. Pkalya and Bosire Maragia, ‘The International Criminal Court and Africa: Contextualising the Anti-ICC Narrative’ African Journal of International Criminal Justice 2016 (2) 6-28, 10
42 Ibid. 11
43 Janine Natalya Clark, ‘Peace, Justice and the International Criminal Court: Limitations and Possibilities’ Journal of International Criminal Justice 9 (2011) 521-545, 542
and process. Cannon et al. point to arguments that the ICC’s “brand of retributive punishment is fundamentally at odds with local values, for example, those enshrined culturally in traditional reconciliation ceremonies and legally in Uganda’s Amnesty Act of 2000”44. On this analysis, therefore, greater representation of African values and interests in the ICC’s architecture and approach more broadly could potentially improve effectiveness as well as democratic legitimacy. B. Legitimacy tools: complementarity and outreach
The principle of complementarity is the ICC’s primary means of substantiating its legitimacy. Emphasising that it exists as a “court of last resort”, the Court describes itself as seeking to
“complement, not replace, national courts”45. The principle is enshrined in Article 17 of the Rome
Statute, which bars the admissibility of cases where they are being investigated by a state with jurisdiction unless that state is “unwilling or unable genuinely”46 to conduct the investigation or
prosecution. The statute holds that unwillingness may be determined with reference to use of proceedings to shield the accused from criminal responsibility, unjustified delay, impartiality and independence deficiencies, and conduct “inconsistent with an intent to bring the person concerned to justice”47. Inability may be determined by consideration of “whether, due to a total or substantial
collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings”48. The OTP indicated in its 2009-2012 Prosecutorial Strategy a policy of “positive complementarity”, which entails the “proactive” encouragement of genuine national proceedings49, although it has since moved away from any suggestion of capacity-building, highlighting in its 2016-2018 Strategic Plan that it “will not act as a development agency” but may “contribute to complementarity through the normal execution of its mandate”50. Thus, the principle of complementarity enshrined in the Rome Statute and the OTP’s strategies is intended to enhance democratic legitimacy by affirming that the Court operates from a starting point that firmly locates the primary responsibility for the pursuit of international criminal justice among states, rather than in any fundamental initiative for hegemonic
44 Cannon et al., 26
45The International Criminal Court, available at <> accessed 18 June 2018 46 Rome Statute, Article 17(1)(a)
47 Rome Statute, Article 17(2) 48 Rome Statute, Article 17(3)
49 Office of the Prosecutor (OTP), Prosecutorial Strategy 2009-2012 (2010) available at <> accessed 18 June 2018.
interference, and by catalysing the strengthening of national legal systems, at least through their interaction with the OTP during preliminary examinations and investigations.
The principle of complementarity, however, has been subject to some criticism. Applying a TWAIL analysis to the concept, Kiyani argues that the language of unwillingness and inability, as well as being disconcertingly “elastic” and “subjective”, reproduces “traditional civilised-uncivilised discourse” and “provides a foundation for practical action to violate the sovereignty of Third World states in ways that it cannot do with states such as France or the United Kingdom”51. These
powerful states will always be considered willing and able to genuinely prosecute, he argues, because they are the “paradigmatic models” of willingness and ability. Drumbl argues that the principle of complementarity in international criminal law in general may “encourage heterogeneity in terms of the number of institutions adjudicating international crimes, but homogeneity in terms of the process they follow and the punishment they mete out”, such that “the content of local practices may be excluded”52. These contentions suggest that complementarity only quells concerns for democratic legitimacy at a very superficial level, and that the principle actually conceals
conventional patterns of third world exclusion and Western superiority embedded in international law generally. In any case, the application of the principle to cases before the ICC arguably suggests that it is difficult to claim inadmissibility on the basis of Article 17, thereby diminishing any utility it might possess. Nesiah draws on the example of the Katanga trial to show how the principle of complementarity has been used by the ICC to “[undermine] the jurisdiction of national courts” as well as the discretion of national prosecutors by “exploiting how a prosecutor exercised that discretion to pursue one charge but not another as evidence that a state was unwilling to
prosecute”53. Katanga had been in government custody awaiting charges in relation to the killing of UN peacekeepers for two years before the issue of the ICC indictments. He argued that the ICC case was inadmissible on the basis of Article 17, alleging that the fact of his detention by the Democratic Republic of Congo for crimes of comparable gravity was proof that the state was neither unwilling nor unable to prosecute. The Trial Chamber held that the case was admissible because Katanga’s arrest by the DRC related to crimes occurring in Ituri, and not to the crimes occurring in Bogoro that formed part of the ICC investigation. Furthermore, the Court held that the fact that the DRC had itself referred the situation to the ICC meant that it was clearly unable to prosecute Katanga. A similarly narrow approach was taken by the Court in an admissibility challenge by the Kenyan government to the cases against Ruto, Kosgey and Sang and against
51Kiyani, 16
52 Mark A. Drumbl, Atrocity, Punishment and International Law (Cambridge University Press 2007) 143 53Nesiah, 999
Muthaura, Kenyatta and Ali. Kenya argued that the cases should be ruled inadmissible because it had recently enacted judicial reforms with the intention of pursuing investigations into the post-election violence of 2007 and 2008, although at the time of the admissibility challenge proceedings had not yet commenced against any of these six accused because the government intended to start by prosecuting lower-level perpetrators. The Pre-Trial Chamber rejected the challenge on the basis of the “same case” approach, finding that the Kenyan government was inactive with respect to the six accused. The ruling seems rather counter-intuitive and unsound, probably because the Court suspected, but did not wish to explicitly accuse, Kenya of shielding the six accused from criminal responsibility. Indeed, the Court in the Kenya saga displayed an almost contemptuous attitude towards that government’s justice efforts, sharply contrasting with the deference it has displayed towards other states, such as Colombia. The narrow “same case” approach to unwillingness and inability by the Court therefore lends weight to the idea that complementarity is little more than a surface-level box-checking attempt to bolster the semblance of legitimacy, rather than any
meaningful effort to engage in remedying structural problems at a deeper level. As Cashman writes, “[I]nternational criminal justice is a form of liberal intervention in that it typically
substitutes foreign powers for national ones in the limited administration of the normal legal function of sovereign states. The principle of complementarity on which the ICC operates cannot by itself remove this flavour of imperialism, it can only allow a greater degree of comfort with it.”54
Briefly, another means by which the ICC strives to strengthen its legitimacy is through its outreach activities to affected communities. The Court undoubtedly relies on these connections and
intermediaries for its investigations, and victim participation forms a crucial part of the ICC system, but through its outreach activities the Court also seeks to make its operations accessible to local communities more broadly in order to foster “a sense of ownership of the justice process”55. The Court thereby seeks the participation of a range of local actors, including civil society, media, and legal and academic communities. Such consultations may in theory contribute to democratic legitimacy to the extent that they may provide the space for local values to gradually influence ICC proceedings. Nesiah argues, however, that “local ownership is precisely about persuading affected populations to cede the terrain of justice to the ICC” and “acquiesce to being ‘governed’ by the [international criminal law] enterprise”56. On this top-down analysis of outreach, ICC consultations
54 Richard Cashman, ‘The Geopolitics of International Criminal Justice’ (9 Bedford Row International, 14 March 2013) available at <> accessed 18 June 2018
55 The International Criminal Court, available at <> accessed on 18 June 2018 56 Nesiah, 1006
with local communities is not about allowing them to shape the Court’s agenda but simply a means of promoting understanding. Its utility for addressing the legitimacy concerns raised above is likely, then, to be much reduced.
To sum up, historical inequalities in the wider international order cannot be ignored when assessing the legitimacy of the ICC – indeed, such assessment reveals that these inequalities are embedded in the design of the Court via the list of crimes under its jurisdiction and the role of the UNSC in the exercise of jurisdiction. That the practice of the Court has consequently seen the excessive focus on African states, as wells as concerns about knowledge and effectiveness deficiencies regarding how best to conduct these proceedings, is unsurprising: the fact of the exclusion of African values and interests from the development of international criminal law continues to loom, and is left
unremedied by inadequate ICC principles and practices of complementarity and outreach. The ICC’s claims of universality, therefore, must certainly be false. This is not to say that the ICC should be completely dismissed. As Niang writes, “ICC legitimacy is being tested, and it is part of its growth”57. The Court’s legitimacy will remain in jeopardy until Africa is better represented in the international criminal law project, but it might be that efforts to that end have a greater chance of success outside of the ICC framework.
IV. Legitimacy and hybrid tribunals
A. The case for hybrid tribunals
Like the ICTY and the ICTR, hybrid tribunals are ad hoc criminal tribunals set up to deal with specific situations for a limited period of time. What distinguishes hybrid tribunals from other international criminal tribunals, however, is their ‘mixed’ nature, incorporating both international and local components. This might involve a composition of both international and local judges and staff, as well as the application of international and local procedural and substantive law. In theory, the hybrid tribunal model has the potential to address some of the legitimacy concerns of
international criminal justice in Africa raised above. Their mixed composition necessarily entails the participation of the state and its legal institutions, ideally fostering processes of interactive dialogue on the basis of mutual respect and equality, and creating a sense of ownership that can lead to greater acceptance and recognition among local state and non-state actors. Indeed, this kind of interaction could provide the space for the contribution of African values to international criminal
57 Mandiaye Niang, ‘Africa and the Legitimacy of the ICC in Question’ International Criminal Law Review 17 (2017) 615-624, 624
law that has thus far been excluded from most international institutions. This is particularly
significant given the fact that international criminal law has developed, as Greenawalt argues, “not to harmonize national approaches to criminal law, or even to define and regulate uniquely
“international” offenses in some qualitative sense, but instead to enable institutional interventions that counteract unique obstacles to the prosecution of certain especially grave offenses”, such that its evolution has inevitably been marked by pluralism58. While undoubtedly drawing and relying on the practice of others, different international criminal tribunals have developed different approaches to various international criminal law concepts. Of course, the specificity of the hybrid tribunal may on one hand limit the applicability of these contributions to general international law, while on the other hand provide alternative approaches to common questions. In any case, hybrid tribunals provide a unique opportunity for African states to participate and represent themselves in
international criminal justice, arguably affording such institutions a stronger sense of democratic legitimacy than the wholly international and imposing ICC and ad hoc tribunals.
Hybrid tribunals also have the potential to improve on the effectiveness of international criminal justice in Africa, with further implications on democratic legitimacy. The flexibility and specificity of the hybrid tribunal model means that the structure of the court can be tailored to the exigencies of the situation under examination. Hybrid tribunals have a unique proximity to the relevant sites of criminal occurrence, facilitating the collection of evidence and interaction with witnesses, as well as further contributing to a sense of local ownership. Most importantly, unique local knowledge and expertise should be built into the infrastructure and operation of hybrid tribunals, theoretically reinforcing them against the kind of critiques of insensitivity to local political and ethnic conditions that have plagued the ICC. Indeed, Carroll argues that hybrid tribunals are more effective than other types of international criminal tribunal because they “do the most to transition the domestic state for long-term stability”59 in involving and building the capacity of local actors and institutions. This
kind of positive complementarity, which the ICC OTP has been unable to commit to due to a dearth of resources, forms an inherent part of the hybrid model because the success of such institutions depends, often parasitically, on the strength of national judicial infrastructure. All of these features suggest that the aims of international criminal justice - preventing, deterring and ending impunity
58 Alexander K.A. Greenawalt, ‘The Inherent Pluralism of International Criminal Law’ (James G. Stewart, 14 March 2018) available at <> accessed 24 July 2018
59 Caitlin E. Carroll, ‘Hybrid Tribunals are the Most Effective Structure for Adjudicating International Crimes Occurring Within a Domestic State’ (2013) Law School Student Scholarship, Paper 90
for the commission of international crimes - may be more effectively pursued, at least in the African context, through the hybrid tribunal, where local values may be better represented.
But hybrid tribunals are not a panacea. It is clear that hybrid tribunals can reproduce the same legitimacy problems existing in other institutions. The mere fact of interaction between the global and the local does not guarantee that such interaction will be on the basis of equality. Much of the TWAIL arguments of neo-colonialism and the civilising mission made above in relation to the ICC and other international institutions apply to hybrid tribunals where a superficial attempt to
incorporate African values masks deeper hegemonic objectives. Indeed, the language of capacity-building is reminiscent of the civilised-uncivilised narrative. With respect to effectiveness, while the external or international element can serve to provide some distance from local politics, and thus somewhat allay concerns about bias, hybrid tribunals may nevertheless be susceptible to political interference and corruption to an extent unlikely to be seen in international tribunals situated outside of the state. It is therefore worth briefly examining examples of hybrid tribunals in Africa and assessing how they have grappled with democratic legitimacy in order to highlight best practices and features for future tribunals in Africa.
B. The Special Court for Sierra Leone
The Special Court for Sierra Leone (SCSL) was authorised by UNSC Resolution 1315 of 2000, and established by an agreement signed between the UN and the government of Sierra Leone on 16 January 2002, to prosecute leaders most responsible for international crimes committed during the civil war in Sierra Leone between 30 November 1996 and 18 January 2002. Unlike the hybrid tribunals of Kosovo, East Timor, Bosnia and Cambodia, whose structures were attached to those of the legal system of the host state, the SCSL was established independent of the Sierra Leonean courts, possessing instead a separate legal personality of an international organisation. The Court’s hybridity, then, derived from its statute, which included both international crimes and Sierra Leonean crimes between which the Prosecutor had the discretion to choose. The Court also had a mixed composition, including both Sierra Leone nationals and international staff. The SCSL was dissolved on 2 December 2013.
A number of aspects of the SCSL’s design and practice have a positive bearing on its legitimacy. First, on effectiveness, Jalloh confirms in his assessment of the SCSL’s contribution to international law the advantages of locating an international criminal court in situ as “[facilitating] the collection of evidence and the identification of witnesses, [reducing] the cost of prosecution and ultimately
[assisting] in securing justice for the victims and their families who can witness their former tormentors facing justice”60. He also emphasises that local participation in the work of the Court meant the availability and recognition of “local expertise, languages, history and nuances of a particular conflict that could easily be missed by internationals”61. Effectiveness is arguably strengthened further by the fact of the SCSL’s independence from the Sierra Leone judiciary, thereby offering local knowledge as well as the distance and objectivity of an international body while evading the kind of politicisation that has somewhat plagued the Extraordinary Chambers in the Courts of Cambodia, whose judges have been criticised for serving the interests of political parties. A second factor relating to legitimacy lies in the fact that the Court was set up by a bilateral treaty between the UN and one of its member states, the first criminal tribunal to be so established, thus indicating consent by the Sierra Leone government. This contrasts with the ICTY and ICTR ad hoc tribunals, which were established by the UNSC under Chapter VII as coercive measures to restore international peace and security. Moreover, although state membership of the ICC is also treaty-based and consensual, from the perspective of democratic legitimacy a bilateral treaty in which the state directly negotiates a court mandate that is tailored to the specific situation at hand implies a stronger and more direct state consent than accession to a multilateral treaty that
establishes general procedures for the referral of a situation, etc. such as the Rome Statute. Thus, by agreeing on the details of the SCSL Statute and partaking in the appointment of judges and the deputy prosecutor, the Sierra Leone state actively participated in the design and functioning of the Court such that it would appear that the SCSL held some democratic legitimacy for that state and that TWAIL critiques of institutional hegemony and exclusion may be dispelled. A third feature of the Court that arguably enhances its legitimacy is the Legacy Phase Working Group, which Jalloh describes as an “institutional innovation” and “a first in international criminal justice institutions, mandated with ensuring that the Court bequeaths a lasting legacy to the people of Sierra Leone”62. Jalloh argues that this feature of the Court, which explicitly acknowledges that “the prosecution of individuals must be pursued along with other transitional justice strategies in order to achieve the desired objectives”63, forms a unique “contribution to the evolution of international criminal justice institutions”64. On this account, the Court has taken heed of the specific needs and interests of Sierra Leone, recognising that justice through prosecution alone is insufficient to satisfy these, and has developed a legacy model for transitional justice that could prove useful to other African states with
60 Charles Chernor Jalloh, ‘The Contribution of the Special Court for Sierra Leone to the Development of International Law’ 15 RADIC (2007) 174
61 Ibid., 176 62 Jalloh, 177
63 Legacy Phase Working Group, Special Court Initial Legacy White Paper, 26 September 2005, 2 64 Jalloh, 177
similar needs and interests. It can be argued, then, that the Court gained democratic legitimacy by representing and including Sierra Leonean interests in its pursuit of international criminal justice that go beyond the classical, narrow end goal of a guilty verdict. This notion of a broader justice reflecting the needs of society is further demonstrated by the treatment by the Court of its relationship with the Truth and Reconciliation Committee of Sierra Leone (TRC). As Murungu notes, prosecution and transitional justice mechanisms are “competing in international criminal law”65, and he argues that establishing historical records of truth is an “equally valid and legitimate societal interest”66 alongside the need for prosecution and punishment. When faced with a request from the TRC seeking the appearance of an accused at an oral hearing, the Trial Chamber of the SCSL took the view that complying with the request would “jeopardise the accused’s right to a fair and public hearing and would constitute an unprincipled departure from a well-established and widely accepted judicial practice”67. The Appeals Chamber reversed this decision, however, finding that each institution “must accommodate the existence of the other” and affirming that it “respects the TRC’s work and will assist it so far as is possible and proper, subject to [...] the overriding duty to serve the interests of justice without which there may not be the whole truth and there is unlikely to be reconciliation”68. According to Murungu, this is “the correct approach because it harmonises the two competing and conflicting norms of prosecution and reconciliation”69. What is more, the approach of the Appeals Chamber arguably provides an example of how African values can contribute to the development of international criminal justice, expanding its domain beyond prosecution alone. As Jalloh asserts, the SCSL constituted an important contribution to international law because it “offer[ed] an alternative model, or at the very least an additional prism, through which the international community can structure, or view, future ad hoc criminal tribunals”70. These features, it is submitted, demonstrate how an African hybrid tribunal can address the lack of
65 Chacha Murungu, ‘Prosecution and Punishment of International Crimes by the Special Court for Sierre Leone’ in Chacha Murungu and Japhet Biegon (eds) Prosecuting International Crimes in Africa (Pretoria University Law Press 2011)
66 Ibid.
67 Prosecutor v Norman, Case No. SCSL-03-08-PT, Decision on the Request by the Truth and
Reconciliation Commission of Sierra Leone to conduct a Public Hearing with Samuel Hinga Norman, 29 October 2003, para. 14
68 Prosecutor v Norman, Case No. SCSL-03-08-PT, Decision on Appeal by the Truth and Reconciliation Commission for Sierra Leone and Chief Samuel Hinga Norman JP Against the Decision of His Lordship, Mr
Justice Bankole Thompson Delivered on 30 October 2003 to deny the TRC’s Request to hold a Public Hearing with Chief Samuel Hinga Norman, JP, 28 November 2003
69 Murungu, 105 70 Jalloh, 170
participation and representation of Africa in the development of international criminal justice, thereby attaining some measure of democratic legitimacy.
There are, however, a number of aspects of the SCSL’s design and practice that might be viewed as problematic from the perspective of democratic legitimacy. First, the composition of the Court, though mixed, was skewed towards the international – the SCSL Statute establishes that two of the three (by the time of the Court’s closure, five of the seven) Trial Chamber judges, three of the five Appeals Chamber judges, the Prosecutor and the Registrar shall be appointed by the UN Secretary General, with the remaining judges and the Deputy Prosecutor to be appointed by the Sierra Leone government71. Although this does not necessarily negate its legitimacy, the imbalance presumably does less to promote local knowledge and representation of local interests than if it had been of a more Sierra Leonean composition. One might wonder, then, whether the SCSL genuinely promoted the democratic values of equality and participation for the small African state through an outward or bottom-up transmission of local values to the international community, or whether the Court
presented yet another example of a top-down intervention that aims to shape and reform local peculiarities according to established international norms. On this latter view, the Court’s international majority as well as its capacity-building legacy program seem reminiscent of the civilising mission of international institutions in uncivilised Africa and the third world. Indeed, in support of this analysis and to dispel the notion that African hybridity cures TWAIL critiques of neo-colonialism and paternalism in international criminal law, Xavier and Reynolds scathingly cite the SCSL Prosecutor David Crane’s Conradian depictions of the “dark corners” of West Africa as “a lawless land… a region that has never really known the rule of law” where conflicts evolve into “uncivilised events” that are “less political and are more criminal in origin and scope”72. They also cite legal anthropologist Gerhard Anders’ dissection of selected witness testimony before the SCSL, which found that the prosecution solicited witnesses that tended “to represent the accused persons as absolute evil, and Africa as primitive and lawless”73, further demonstrating how the interaction between the local and the global within a hybrid tribunal can take on an explicitly colonial dynamic. Crane himself has acknowledged a paternalism and “a self-righteous attitude that borders on the ethnocentric” in these pursuits of international criminal justice: “We don’t contemplate why the tribunal is being set up, and for whom it is being established… After set up, we don’t create
71 Statute of the Special Court for Sierra Leone, Article 12
72 Reynolds and Xavier, 966, citing David Crane, ‘Dancing with the Devil: Prosecuting West Africa’s Warlords: Building Initial Prosecutorial Strategy for an International Tribunal after Third World Armed Conflicts’, 37 Case Western Reserve Journal of International Law (2005-2006) 1, 3-4
73 Reynolds and Xavier, 968, citing Gerhard Anders, ‘Testifying about ‘Uncivilized Events’: Problematic Representations of Africa in the Trial against Charles Taylor’, 24 LJIL (2011) 937, 940-942.
mechanisms by which we can consider the cultural and customary approaches to justice within the region”74. On these accounts, then, the representative and participatory potential of hybrid tribunals is deemed to be merely illusory, masking instead conventional ideas of Western supremacy and authority.
Moreover, if one considers the fact that the prosecutor did not actually avail himself of the
possibility of including Sierra Leonean crimes in the indictments, only charging defendants with the commission of international crimes, the ‘internationalism’ of the Court becomes almost too
overwhelming. Jalloh describes this omission as “regrettable”, noting that the UN and Sierra Leone included the domestic crimes relating to the abuse of underage girls and the wanton destruction of property because “they were convinced they would be necessary to effectively address certain aspects of the Sierra Leonean conflict which were apparently inadequately regulated at international law”75. He argues that the Prosecutor’s practice has “cast doubt on the utility of including Sierra Leonean crimes in the Court’s subject matter jurisdiction”, proving a missed opportunity to enhance “Sierra Leoneans’ sense of identification with and ownership of the Court’s processes”76. Similarly, in examining the sentencing practice of the SCSL, Dinokopila finds that the Court declined to draw inspiration from the experiences of the Sierra Leonean courts. Article 19(1) of the SCSL Statute requires the Court to take into account the sentencing practices of the Sierra Leone national courts as well as the other ad hoc tribunals where appropriate. However, the Court found that it would not be appropriate to consider Sierra Leonean practice on prison sentences because the defendants had not been charged with Sierra Leonean crimes, apparently espousing “the position that the
sentencing practice of the Sierra Leonean national courts only become relevant if the offence is one provided for under article 5 of the Statute of the SCSL”77. This contrasts with the Court’s decision to consider the practice of the ICTR in determining prison terms, despite the fact that most cases before the ICTR concerned genocide, a crime outside the scope of the SCSL’s jurisdiction, the penalty for which has generally been life imprisonment, also outside the scope of the SCSL’s sentencing powers. Thus, once again the native is eschewed for the international, diminishing the possibility for any radical restructuring of Africa’s relationship with international law and
institutions, and further suggesting that hybridity is merely a pretext for business-as-usual international criminal justice.
74 David Crane, ‘White Man’s Justice: Applying International Justice after Regional Third World Conflicts’, 27 Cardozo Law Review (2006) 1683, 1686
75 Jalloh, 173 76 Ibid.
77 Bonolo Dinokopila, ‘Sentencing Practices of the Special Court for Sierra Leone’ in Chacha Murungu and Japhet Biegon (eds) Prosecuting International Crimes in Africa (Pretoria University Law Press 2011) 138
