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Analysis and reflections

Prosecuting Presidents, by Millius Palayiwa

Prosecuting Presidents,or The Challenges of International Indictments of African Leaders

The Royal United Services Institute for Defence and Security Studies

 

“In former years the universal aim was to steal Africans from Africa. Today the determination of Europe is to steal Africa from the Africans.” (Alexander Mackay 1889)

 

The story of the court case in Wales: Simple clear and straight forward case: On the evidence given, no jury could acquit the accused. At the end of the trial, the defence lawyer asked the trial judge if he could address the jury in Welsh! The judge agreed. The defence lawyer took 3 minutes. The jury retired and came back five minutes later with a “not guilty” verdict. The judge had no choice but to release the prisoner. The judge was so surprised that he asked a Welsh speaking usher, what the defence lawyer had said in his summing up. Well my Lord, said the usher, the defence lawyer said to the jury: “Look at the situation: the judge is an English man, the arresting police officer is an English man, and the prosecutor is an English man. The accused is Welsh, you members of the jury are Welsh, and I the defence lawyer am Welsh. I rest my case.

 

I repeat this story because it illustrates where we are with the International Indictments of African Leaders. 

In addressing the issue of these Indictments, we have to first look at who is doing the indicting, who is being indicted, at whose behest, and what the charges are and the system of law in use.  In the second place we have to ask, why at that particular point in the history of the conflict and more important, what the motives for intervention are? And motive is very important! It was Lord Palmer who said “In International Relations, there are no permanent friends or permanent enemies, only permanent interests.”

 Then one has to ask the bigger question that we are facing today: WHY AFRICAN LEADERS and/or NON-GOVERNMENT PARTIES TO A CONFLICT (rebels)?

 

Africa does not have a monopoly on atrocities. So why only African leaders and rebels?

 

The International Criminal Court (ICC) came into effect on 1st July 2002 and can only prosecute crimes committed on or after that date.  There are 193 countries in the world. So far 108 states are members of the Court. Forty countries have signed but not ratified. The USA, China, Russia and India are very critical of the ICC and have not joined.

By October 2009, the Prosecutor had received 2,889 communications about alleged war crimes and crimes against humanity in at least 139 countries and yet by March 2009, the Prosecutor had opened investigations into just 15 cases in 7 situations: Uganda, the Democratic Republic of the Congo, the Central African Republic and Sudan/Dafur, Libya and is investigating the situations in Kenya and Cote d’Ivoire. All of them in Africa.

Thirteen public warrants of arrest have been issued, all against Africans. Of the 15, only 4 are in custody in the Hague, 7 are still at large and 2 have died.

The jurisdiction of the court covers four groups of crimes that are referred to as the “most serious crimes of concern to the international community as a whole.” Those being the crimes of genocide, crimes against humanity, war crimes and the crimes of aggression. (Article 5).

It would appear, by implication that use of weapons of mass destruction is not a war crime. Terrorism is not included either, because there was no agreement on the definition of terrorism. There are good reasons for excluding these. Who is likely to use weapons of mass destruction? Who is hunting terrorists? The ICC will not allow the death penalty and those powers hunting terrorists of course want them tried and executed!

 

Jus a word about genocide: Genocide is a technical term coined by Raphel Lemkin in 1944. It comes from the Greek “genos” :( race/ tribe/kin), and the Latin “cida” from “caedere:  (to kill/ to cut). 

The word genocide is used for the first time in a public international document in 1945 in the indictment brought before the Nuremberg Tribunal.

Article 2 of the Genocide Convention 1948 defines Genocide as:

“…acts committed with intent to destroy in whole or in part, a national, ethnical, racial or religious group.”

The Convention adopted in 1948, declared that genocide was:

“any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such: a) Killing members of the group; b) Causing serious bodily on mental harm to members of the group; c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d)Imposing measures intended to prevent births within the group; and, e) Forcibly transferring children of that group to another group.”

Under this definition, it is now generally agreed that there have been three genocides in the twentieth century: that of the Armenians by the Turks in 1915; that of the Jews and Gypsies by the Nazis from 1939 to 1944, and fifty years later, Rwanda in 1994.

 

So why African Leaders? If you pose that question, the standard answer you will get will be “the fact that we have not investigated the 2,889 communications about war crimes from 139 countries, does not mean that we shouldn’t intervene elsewhere.” Fair enough, but did that elsewhere have to be Africa?

International justice would be a good idea if it were applied equally to small weak countries and to the super powers. We have noted above that the Americans have refused to sign up to the International Criminal Court. It is almost always the case that it is the losers who get dragged before such an International justice forum. It is the vanquished being perused by the vanquishers and/or their allies. In the words of the previous speaker, in an article in the Times newspaper on 29th August 2000, John Laugland wrote “Forget the rhetoric, this court is just another excuse for superpower bullying.”  It is important to know who is doing the judging, who is being judged, what the charges are and what the system of law in use is.

The perception, rightly or wrongly, of organised and orchestrated double standards makes thinking people query the motives of imposing International justice on the weak and defeated. The late Robin Cook on being asked on Newsnight whether the invasion of Iraq might one day become the subject of an ICC investigation, replied “If I may say so, this is not a court set up to bring to book Prime Ministers of the United Kingdom or Presidents of the United States.” Dr Laughland went on to say in the same article: “It (the ICC) will be another example, in the over-globalised world, of an institution that lends legitimacy to the Great Power bullying of weaker nation states.” And this is not an African writing. 

 

Now to Sierra Leone. It is important to note that the Sierra Leone cases are not under the International Criminal Court, but under the Special Court for Sierra Leone, an independent judicial body set up to “try those who bear the greatest responsibility for the war crimes and crimes against humanity committed”  in Sierra Leone between 30th November 1996 and 18th January 2002.

 

The Special Court for Sierra Leone (SPSL) was established on 16th January 2002 by a signed agreement between the UN and the Government of Sierra Leone. It has 25 articles.

The court was set up “to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone” (Article 1)

Article 2 says what persons will be prosecuted that is to say “persons who committed the…crimes as part of a widespread or systematic attack against any civilian population.” It then lists 9 crimes, as crimes against humanity, those crimes being:

a) M murder;

b) Extermination;

c) Enslavement;

d) Deportation;

e) Imprisonment;

f) Torture;

g) Rape, sexual slavery, enforced prostitution, forced pregnancy and any other form of sexual violence;

h) Persecution on political, racial, ethnic or religious grounds; and

i) Other inhumane acts.

 Article 3 lists 8 crimes of violations of Article 3 common to the Geneva Conventions; Article 4 list 3 crimes of serious violations of international humanitarian law; article 5 lists 2 crimes under Sierra Leonean law and article 6 is about Individual Criminal Responsibility.

 

In March 2003 the SPSL brought its first indictments against 13 people for “war crimes, crimes against humanity and other violations of international humanitarian law.”  Three indictments were later dropped because of the deaths of the indictees. Of the 10 remaining 9 are in custody in Freetown. Those indicted fell into four groups: the Civil Defence Forces (CDF) (Kamajors), the Revolutionary United Front of Sierra Leone (RUF/SL), the Armed Forces Revolutionary Council (AFRC), and one individual in his own category: Charles Taylor former president of Liberia.

 

From the CDF those (3) indicted were Allieu Kondewa, Moinina Fofana, and Samuel Hinga Norman.   Hinga Norman died in custody on 22nd February 2007.

 

For the RUF, five were indicted: Foday Sankoh, Sam Bockarie, Issa Hassan Seasay, Morris Kallon, and Augustine Gbao. Foday Sankoh and Sam Bockarie died in prison. The trial for the remaining 3 began on 5th July 2004 and concluded on 24th June 2008. A sentencing hearing was scheduled for 23rd March 2009.

 

From the Armed Forces Revolutionary Council (AFRC), another 3 indicted: Alex Tamba Brima, Brima Kamara and Santigie Kanu.

Paul Koroma who organised the coup on 25th May 1997 was indicted but has never been caught. Rumour has it that he died in June 2003.

 

We then come to Charles Taylor. A non- Sierra Leonean and who never sat foot in Sierra Leone during the relevant period of 30th November 1996 and 18th January 2002. November 30th was the signing of the Abidjan Peace Accord which I attended, and 18th January 2002 was when President Kabbah announced the end of the conflict in Sierra Leone, hence the time span between those dates.

Charles Taylor was indicted in 2003, but had asylum in Nigeria. It was when he tried to escape from Nigeria that he was arrested at the border. He was extradited to the Special Court for Sierra Leone at the request, not of the Government of Sierra Leone, but of the Liberian Government! That is very important for that was the very government that had replaced him, and therefore did not want him back in Liberia by whatever means, be they be through a conflict or his standing for election in future. 

The Special Court of Sierra Leone in based in Freetown. But Charles Taylor is not in Freetown. He is in the Hague. Why? Because it was said that he still enjoyed considerable support in Liberia, that the region was not entirely stable and therefore a trial in Freetown was deemed undesirable for security reasons. That was to say that he might escape or be rescued by his supporters. So send him to Hague but try him under the auspices of the Sierra Leone Special Court.

His trial started in the Hague at 10.30 a.m. on 4th June 2007 with the opening statement by the Prosecutor, Mr Stephen Rapp. Charles Taylor was not in court. His representative, Mr Karim Khan made representation and then left the Court.

Charles Taylor had written to the Court to say why he was not attending. The letter was read by his Counsel Mr Khan. In that letter Mr Taylor wrote:

“Your honours, it is with great sadness and regret that I write to inform you that I no longer feel able to attend and participate in proceedings against me before the Special Court of Sierra Leone. Sadness because at one time I had hoped and had confidence in the court’s ability to dispense justice in a fair and impartial manner. Over time it has become clear that such confidence is misplaced. Everyone deserves justice. The people of Sierra Leone and Liberia, who for too many years have undergone tragic suffering, deserve justice. The people of Africa, for whom the promise of independence was only pyrrhic, deserve justice. And I too deserve at least a modicum of justice. I have always, in my small way, been willing to make sacrifices for peace. I relinquished the presidency of Liberia and accepted exile in Nigeria to ensure that the people of Liberia…. At that point he was interrupted. Mr Khan further complained about the lack of resources available to Charles Taylor’s legal team (he had 1 lawyer compared with 7 for the prosecution) and his failure to talk privately with the Principal Defender. 

Charles Taylor’s associates and friends are under travel bans and his finances, impounded! The scales are tilted against Charles Taylor. Witnesses have been primed by the prosecution and it would appear “coached.” Inducements and rewards have been promised to prosecution witnesses, including relocation, cash, travel, assistance with jobs and personal matters, referrals, housing, visas, the promise of a new life for the witness and family and an assurance of protection.

What is Charles Taylor charged with? He is accused for being “responsible for the development and execution of a plan that caused the death and destruction of Sierra Leone. The plan formulated by Mr Taylor and others, it is said, was to take political and physical control of Sierra Leone in order to exploit its abundant natural resources and to establish a friendly or subordinate government there to facilitate that exploitation.”  I think this an insult to the intelligence of the people of Sierra Leone. It is said by the prosecution, that Charles Taylor’s “involvement in the crimes alleged in the indictments took a variety of forms- committing acts, planning, instigating, ordering, aiding and abetting, all in the commission of the alleged crimes, and otherwise participating in the execution of a common plan, design or purpose” … that is to say “a joint criminal enterprise.”  He is further charged with aiding and abetting the intentional targeting of innocent civilians, that he had knowledge of such targeting and that he failed to stop it. It is alleged that he gave arms, money and refuge to those carrying out those atrocities. For those reasons, it is said, he is personally responsible as per article 6 of the Statute.

In all there are 11 crimes under the Statute of the Special Court that Charles Taylor is charged with. All the crimes are alleged to have been committed between 30th November 1996 and 18th January 2002.

The charges are not very different from the Nuremberg ones. At Nuremberg “All the defendants with divers other persons during a period of years preceding May 1945 participated in the planning, preparation, initiation, and waging of wars of aggression which were also wars in violation of international treaties…” These were said to be “Crimes Against Peace” “War Crimes” and “Crimes Against Humanity.” “Enslavement” was also included.  All crimes Charles Taylor is charged with.

 

In every conflict rebels have always been supported logistically and/or financially by either a neighbouring country or countries. (See the roles of Zambia, Tanzania, and Mozambique in the struggle for independence in Zimbabwe and South Africa; South Africa in Angola, Uganda in Rwanda etc).

Western powers have also supported rebel movements and dictatorships as long as they thought that those movements or dictators would protect their interests. I am not aware of any African dictator who has not at one time or another had the support of the USA, some European country, Russia or China, and those foreign powers sometimes changing sides from supporting the government to supporting the rebels and visa versa.

So why charge Charles Taylor and stop there? At the beginning the Special Court, thought that all sides should be prosecuted, hence the prosecution of members pf the Civil Defence Force as well as the RUF. That caused an outrage and anger, because the CDF said that they were fighting on the side of the Government of Sierra Leone, to bring back democracy. And who supported the CDF or knew what they were doing but failed to stop it – the Government of Sierra Leone. If you prosecute Charles Taylor for “knowledge and failure to stop,” why not prosecute those who armed and supported the CDF?

Most governments have got their hand dripping with blood. Like Lady Macbeth most of them should be “washing” their hands and like her saying “Yet there’s a spot” “Out. Damned spot! Out” … “Yet who would have thought the old man to have so much blood in him? Here’s the smell of blood still. All the perfumes of Arabia will not sweeten this little hand.”  One could add, “Will all the waters of the Oceans wash off the blood from the hands of the USA, the UK and Israel? Here I am thinking of Guantanamo, Iraq, Afghanistan and Gaza.

 

Is the International Community going to seek International Justice for the perpetrators of Guantanamo Bay, and rendition? For the merciless bombing of Iraq and Afghanistan? I very much doubt it.

 

What comes out of all this, is what most Africans see as organised hypocrisy, orchestrated double standards, and a refusal by the Western world to see and treat Africans as equals and responsible. It is seen as an attempt to humiliate, patronise and dominate Africa. The humiliation of an African president is not just his; it is a humiliation of his family, tribe, country, region and the whole of Africa. If you look at some of the language used by the prosecutor in the Taylor case, its nothing but humiliation, savagising the situation. Nick names such “jungle” mosquito, “superman” are used through out!  It is as if the West is saying we are “civilising Africa” and teaching the savages how to behave.  The SCSP and the ICC are seen as systems to eliminate opponents a weak government has failed to defeat militarily, a way of eliminating and silencing political opponents who might come back in future, and at worst used to instigate regime change.

What chances do the weak defeated leaders have before the courts, be they national or international? Political trials by their very nature are never fair and just. We are in an Alice in Wonderland scenario here: Where the King says “Herald, read the accusation.” The Herald does so and the King shouts to the jury “Consider your verdict” and the Queen shouts “No, no sentence first – verdict afterwards!”

Robert H Jackson, the American prosecutor at the Nuremberg trials, said in an article The Rule of Law among Nations: “If you are determined to execute a man in any case, there is no occasion for a trial: the world yields no respect to courts that are merely organised to convict.”

We all know that “laws are generally found to be like fishing nets of such a texture, that allows the little to creep through, the great and the big to break through and the middle-sized are alone entangled in.”

That last form of humiliation in the case of Sierra Leone will the fact that those convicted of the crimes will serve their sentences abroad, away from their families and friends!

 

We know that this International Justice is said to be about getting rid of the culture of impunity, it’s about Human Rights and war crimes and to show the world that no one is above the law. It is said to be about the rule of law. 

 

Prosecuting Presidents and rebels in Africa has huge reconciliation, nation stability and future peace implications. The SPSL and the ICC may not be compatible with reconciliation processes and amnesties to human rights abuses as part of peace agreements. Why would a dictator give up power if he knew that he would end up in the Hague? Why would rebels leaders come to round table talks if they thought that, that might just be a trap to arrest them and send them to the Hague? Threat of the ICC and or special courts is extending conflicts, making dictators dig in, destabalising communities, and opening up wounds instead of healing the nations.

If members of a community in a conflict situation reach a peace agreement, and having weighed all the pros and cons of their situation decide that for the sake of their country’s enduring peace with justice, they would go down the path of reconciliation and forgiveness, it is not up to the International Community to insist on International justice. It is the case that sometimes the people crying loudest for retribution so often are the least affected by the conflict; it is what they call in Africa, “the visitors who mourn louder and longer than the bereaved.”

 

We know its all about Human Rights and the culture of impunity. But the communities should decide, and if they require help from the International Community, they should ask for it. All of us here today are aware of terrible situations not too far back in which the violation of Human Rights was so heinously evil and yet the International Community did nothing. I think here of apartheid South Africa, Ian Smith’s Rhodesia, Rwanda, Angola, Sierra Leone, Sudan, Sri Lanka, Nicaragua, and now Zimbabwe  et cetera, et cetera, and so forth. Where was talk of human rights?]

 

Traditional African society had ways of peacefully resolving conflicts through Community Elders. Unfortunately, this system of dispute settlement was not integrated into the modern state systems; except in Botswana where the ruling elite built on the tradition of the kgotla, a communal assembly to consult and mobilise public opinion and support before policies are implemented. The Kalanga have a similar called Nhangano. The Zulus called it Indaba. The Greeks called it demos “people” and added kratos “rule,” from which we get democracy.

In pre-colonial days, elders resolved disputes because of their standing in the community. Traditional African societies placed a high premium on the leadership of chiefs and elders who dominated the tribal economy and controlled all important forms of collective action in the community. They were regarded as wise, and commanding the respect and confidence of their respective societies. They did not resort to methods of adjudication which were considered to be alien to African practices. They avoided apportioning blame in order to avoid bitter recriminations, sooth jarred sensibilities and sought compromise, giving disputants the benefit of their wise and perceptive eldership, and a stable environment for negotiation derived largely from the respect accorded to them as elders. So there has to “respect” “support,” and “engagement “with the community based on a genuine knowledge and understanding of that society. That genuine knowledge and understanding come from “existential” involvement with that community.

“A good leader” said Machiavelli, “must ask good questions but more important, must listen.” That was what in the Greek city state “demos” did, that was what the Zulu Indaba did and that is what the kgotla in Botswana does.

“A government however good cannot make good citizens, but good citizens can make good governments.” Machiavelli. The same can be said of International Justice.

 

I wish to quote President Tejan Kabbah. I was at the signing of the Sierra Leone Peace Agreement, in Abidjan, Cote d’Ivoire, on 30th November 1996.

He said that the signing of the Peace agreement was the first step: “This step must be quickly followed by a firm dedication to true national reconciliation…” He went on to say “I however need to remind every Sierra Leonean that one of the surest ways to restore durable peace in our society is for those of us who have been aggrieved on account of this war to extend a hand of forgiveness and love to those to whom we attribute our suffering. This will not only strengthen our country in the face of many challenges confronting it, it will also strengthen us as individuals in our efforts to rehabilitate our lives. On the other hand craving for revenge or retribution will surely weaken our country further and almost certainly intensify our pain as individuals and probably generate another cycle of violence and suffering….. Moreover the Government undertook to create positions of employment for members of the RUF, and I am sure the whole nation will benefit immensely from having all its citizens working together for the same purpose. Ex-combatants have nothing to fear and everything to look forward to, as my Government will lose no opportunity to brighten their future by giving them and everyone else in this country the opportunity to realise their full potential.”

 

The capacity of Africans to forgive (but not forget) is incredibly huge. Consider how they have forgiven and continued to live with former colonisers and persecutors. Almost all the “Fathers of Africa” at one or another have spent time in prison and yet after independence have forgiven, See Kenya, Zimbabwe and South Africa. The South African Truth Commission was one such example. Even in Sierra Leone, I understand that the some of the amputee victims have presented a petition to President Kabbah, UNSG, ECOWAS and th AU stating clearly that as victims, they had forgiven their perpetrators and that their purpose was to use their deep sense of forgiveness to reconcile and heal the nation. The see no need for a Special Court and argue that the resources thus being expended would be better used to assist the victims and the nation. It is the forgiveness of the victims that is contributing to peace and stability in Sierra Leone.

 

So what should be in place instead of prosecuting Presidents? The International Community could genuinely and seriously start investing in conflict preventive measures, conflict resolution and peaceable post conflict peace building. Addressing systemic causes of conflict is a genuine role of the International community. Capacity building for Africa is foremost. The 40 states that have put money into the Special Court for Sierra Leone, could have given that money towards strengthening and the implementation of the Abidjan Peace Accord. The UN, OAU and the Commonwealth, could have been more effective peace guarantors. In that case the 30th November to 1996 to 16 th January 2002 would never have arisen. If that had happened, then we would not be in the situation of needing a Special Court for Sierra Leone.

If in the end justice has to be dispensed then it has to be done in Africa by Africans. To that end I would call for and African Union Supreme Court to take over the jurisdiction of the ICC, and any ad hoc courts in Africa such as the Rwanda and Sierra Leone Special Courts, justice done in Africa and by Africans.

We need African Solutions for African Problems (ASAP).

 

 

Millius Palayiwa

27th March 2009.

 

 

 

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