ROLE OF THE INTERNATIONAL COMMUNITY IN FIGHTING CRIMES AGAINST HUMANITY: A FOCUS ON AFRICA
BY
MUMOEUNICE
LLB/10162/81/0F
A RESEARCH PROPASAL SUBMITTED TO THE FACULTY OF LAW
IN PARTIAL FULFILLMENT FOR THE AWARD OF
A BACHELOR'S DEGREE OF LAWS AT
KAMPALA INTERNATIONAL
UNIVERSITY,
UGANDA.
MAY, 2013 DECLARATION 1 Mumo Eunice declare that this research proposal titled "role of the international community in fighting crimes against humanity" is my original work and has never been presented to any other university or institution of higher learning.
NAMES: MUMO EUNICE
Signature: ...... ~ ......
...h., 1 Date: ..... ;?.. .? ...... ~~~ .. .!?.. . 9 . .~ . : ...... APPROVAL This research proposal titled "role of the international community in fighting crimes against humanity" has been submitted with my approval as the supervisor.
NAMES: DR.CHIMA MAGNUS
Signature: ......
'2--5...-- :;;;-~ :2.-- D l'3 Date: ......
ii DEDICATION This work is dedicated to my family for their generous contribution towards the whole course. I wish to thank my parents Mr. & Mrs. John Mumo Masumba, sisters Lydia Mumo and Debbie Mumo.
iii ACKNOWLEDGEMENTS This work is the fruit of the eff01ts of various worthy people to be thanked for their contribution and their engagement.
I wish to acknowledge Ken Ngonze, Moses 0. Audi, Maxwell okeyo, all students of law class 20 I2 and 20 II, Sun valley Fellowship church and family and friends
iv TABLE OF CONTENTS DECLARATION ...... i
APPROVAL ...... ii
DEDICATION ...... , ...... iii
ACKNOWLEDGEMENTS ...... iv
CHAPTER ONE ...... 1
1.1 INTRODUCTION ...... 1 1.2BACKGROUND OF THE STUDY ...... 3 1.3 STATEMENT OF THE PROBLEM ...... S 1.4 KEY RESEARCH QUESTIONS...... 6 · 1.5. RESEARCH OBJECTIVES...... 6 \.6 CONCEPTUAL FRAMEWORK ...... 7 1.7 SIGNIFICANCE OF TI-lE RESEARCH AND LITERATURE REVIEW ...... 8 \.8 RESEARCH METHODOLOGY ...... 10 CHAPTER TWO ...... 11
2.0. THE ROLE OF THE INTERN A TJONAL COMMUNITY IN TACKLING CRIMES AGAINST HUMANITY AND ITS JUSTJFICA TJON ...... 11 2.1. OVERVIEW ...... ll 2.1.1. PREVENTION OF ARMED CONFLICTS ...... 11 2.1.2. CESSATION OF EXISTING CONFLICTS ...... 12
2.1.3. HUMANITARIAN ASSISTANCE TO THE VICTIMS ...... 14 2.1.4. PUNISHMENT OF THE PERPETRATORS ...... 15 2.2. THE JUSTIFICATION OF THE ROLE ...... 18 2.2.1. THE UNIVERSALITY OF HUMAN RIGHTS AND THE EQUALITY OF ALL HUMAN BEINGS ...... _...... -19 CHAPTER THREE ...... 22
3.0. THE MECHANISMS THAT THE INTERNATIONAL COMMUNITY HAS USED IN DEALING WITH CRIMES AGAINST HUMANITY AND THE DEGREE OF SUCCESS ...... 22 3.1. INTRODUCTION TO THE METHODS USED ...... 22
v 3.1.1. THE USE OF DIPLOMACY ...... 23 3.1.1.1. REGIONAL ORGANISATIONS ...... 24 3.1.2. THE USE OF FORCE ...... 28 3.1.3. THE USE OF POLITICAL AND ECONOMIC SANCTIONS ...... 29 3.1.4. THE INTERNATIONAL JUSTICE SYSTEM ...... 30 3.4 THE DEGREE OF SUCCESS IN DISCHARGING THE ROLE ...... 38 CHAPTER FOUR ...... 40
4.0. THE CHALLENGES AND OBSTACLES ...... 40 4.1. STATE SOVEREIGNTY ...... 41 4.2. EXECUTIVE IMMUNITY ...... 44
4.3. NON-MEMBERSHIP ~y SOME STATES ...... 45 4.4. IDEOLOGICAL DIFFERENCES AND WORLD POLITICS ...... 46 4.5. CONTENTIOUS LEGAL PRINCIPLES ...... 47 4.6. Inadequate Personnel and the Need for State Assistance ...... 51 CHAPTER FIVE ...... 53
5.0. OBSERVATIONS AND RECOMMENDATIONS ...... 53 5.1. OBSERVATIONS ...... 53 5.2. RECOMMENDATIONS ...... 58
vi CHAPTER ONE
1.1 INTRODUCTION Crimes against humanity constitute heinous criminal acts, closely related to the other two of genocide and war crimes. A common thread that runs through all of them is the fact that in most cases they are committed during times of war or civil strife, either against a group targeted perhaps on grounds of tribe, race or similar distinction or against an entire populace without targeting any specific group.
This paper seeks to look at the role of the international community 111 securing peace and democracy in Africa but at the same time being fair in the adjudication and treatment of war crimes committed across the world. It is worthy to note that there has been an outcry from African leaders that the ICC is biased against Africa in terms of prosecuting crimes under the Rome Statute of the International Criminal Court. The paper would therefore seek to analyse the situation in Africa and compare it with other patts of the world such as Yugoslavia, Germany, East Timor among other regions where war crimes have been committed. The paper will also scrutinise how the international community has been reacting towards the prosecution of various leaders across the world at the ICC.
Whenever the crime against humanity is mentioned, the instances of what occurred in countries like the Democratic Republic of Congo, Kenya, Sudan, Liberia and Rwanda come to mind. Yet these arc not the only countries that have been afflicted with this sad and tragic eventuality. In fact the prevalence of these crimes extends beyond not only the boundaries of place but also of time. A key historical instance during which these crimes were committed on a large scale is during the extermination of the Jews by the then German potentate, Adolf Hitler, in what has come to be commonly referred to as the Holocaust. 1
1 The Holocaust involved what has been come to be generally regarded as an ambitiously inhuman and evil attempt by the then Germany strongman Adolf Hitler to wipe off all Jews from the face of the earth. The Jews, drawn from across Europe, were taken to concentration camps where they were tortured and exterminated in fume chambers. Close to six million Jews lost their liVes then, for being, in the eyes of Hitler, an inferior race.
1
CHAPTER ONE
1.1 INTRODUCTION Crimes against humanity constitute heinous criminal acts, closely related to the other two of genocide and war crimes. A corrimon thread that runs through all of them is the fact that in most cases they are committed during times of war or civil strife, either against a group targeted perhaps on grounds of tribe, race or similar distinction or against an entire populace without targeting any specific group.
This paper seeks to look at the role of the international community m securing peace and democracy in Africa but at the same time being fair in the adjudication and treatment of war crimes committed across the world. It is worthy to note that there has been an outcry from African leaders that the ICC is biased against Africa in terms of prosecuting crimes under the Rome Statute of the International Criminal Court. The paper would therefore seek to analyse the situation in Africa and compare it with other patis of the world such as Yugoslavia, Germany, East Timor among other regions where war crimes have been committed. The paper will also scrutinise how the international community has been reacting towards the prosecution of various leaders across the world at the ICC.
Whenever the crime against humanity is mentioned, the instances of what occurred in countries like the Democratic Republic of Congo, Kenya, Sudan, Liberia and Rwanda come to mind. Yet these are not the only countries that have been afflicted with this sad and tragic eventuality. In fact the prevalence of these crimes extends beyond not only the boundaries of place but also of time. A key historical instance during which these crimes were committed on a large scale is during the extermination of the Jews by the then German potentate, Adolf Hitler, in what has come to be commonly referred to as the Holocaust. 1
1 The Holocaust involved what has been come to be generally regarded as an ambitiously inhuman and evil attempt by the then Germany strongman Adolf Hitler to wipe off all Jews from the face of the earth. The Jews, drawn from across Europe, were taken to concentration camps where they were tortured and exterminated in fume chambers. Close to six million Jews lost their lives then, for being, in the eyes of Hitler, an inferior race.
1 Closer home there was the Rwandan case in which almost one million people, mostly of Tutsi origin were killed within a span of one hundred days.2 This, as will be mentioned later, remains etched in the annals of world history as the most conspicuous time when the world watched in silence as innocent citizens were molested, harassed, tortured, raped and killed in cold blood.3The Sierra Leone strife, allegedly orchestrated by the then Liberian leader Charles Taylor left yet another black spot on the African continent. Tales abound of molestations, torture, rape and killings; all these in an effort, it is alleged, to enable Taylor and his ilk gain control over the Sierra Leonean diamond mines and the resultant diamonds, commodities that have now earned a noun, blood diamonds, to reflect the loss of blood that marked the scramble for them. 4
In Kenya, the 2007-2008 post-election violence has also found a way into international headlines. It is estimated that over 1300 people lost their lives and thousands displaced from their homes. Following the unsuccessful establishment of a Local Tribunal to prosecute the perpetrators, the Kenyan case was referred to the ICC for trial. Four out of the six suspects named by former ICC prosecutor Louise Moreno Ocampo have had their charges confirmed and are now awaiting trial.
However, part of the political and legal elite in Kenya have kicked off a debate that casts the Court as a puppet being manipulated for partisan political interests. They have also argued that having the case dealt with at the Hague-based Court would amount to an unwarranted slur on the sovereignty of independent Kenya, their reasoning being that the country has the capacity to employ local judicial mechanisms to try the suspects.5 This argument appears to be bolstered by the passage of the 20 I 0 Constitution of Kenya which, it is claimed, heralds a rebirth of the
2 The Rwandan strife was sparked off by the shooting down of the plane carrying the then president Juvenal Habyarimana and his Burundian counterpart. His death caused the majority Hutu extremists, who accused the minority Tutsis and moderate Hutus, of having engineered the assassination in order to take over government. It did not help matters that both sl 3 The international community, especially the United Nations, has been severally criticized for its inaction. ·l Charles Taylor is currently on trial at The Hague. Accusations against him range from using child soldiers to cannibalism among other accusations. \Vitnesses are still being called to prove the prosecution's case, although Taylor still denies any role in the conflict. The prosecution alleges that Taylor and his henchmen wanted to gain access to the rich diamond mines in Sierra Leone, and as a scheme antecedent to their plan, they had to cause instability in Sierra Leone so that with no effective government in place, they could easily exploit the diamond mines. 5 In the past, the members of parliament have twice shot down bills proposing the establishment of a local tribunal to handle the post election perpetrators' cases. Then, they argued that The Hague was best placed to adjudicate over the cases and that a local judicial mechanism would be susceptible to political interference.
2 Kenyan legal system in general and the judiciary in particular. Whatever the case may be, this debate has served to indicate the difficult territory that the international community treads in fighting crimes against humanity.
UBACKGROUND OF THE STUDY As pointed out above, this research is based on the notion that the international community has not been treating conflicts equally as and when they occur. It is evident that they have been considering political and economic benefits that result out of stabilisation of the situation in the affected country. For instance, Somali has been at war for over 20 years but no one was bothered about restoring calm yet when Kenya went into war for only two weeks, the international community was greatly concerned to an extend of sending several powerful world personalities to settle the dispute. The United Nations was swift in sending its former Secretary General, Kofi Annan to come and mediate the dispute while the United States of America went further to send the Secretary of State, Condoleezza Rice, to help broker a peace-deal. This difference in treatment reveals that the response by the international community depends on the interests that they have in the country which is at war.
Further afield, the Rwandan conflict raged on as the world watched in silence. The international community, with the United Nations at the fore, has continually come under intense criticism for not taking action to avert or even mitigate the effects of one of the worst crimes in recent history. The international community has since discovered that its continued silence may create an avenue for greater and worse conflicts, transfonning into dictatorship and the rebirth of slavery. The international community has now re-emerged as a key and leading player in seeking solutions to conflicts likely to occasion crimes against humanity and where such conflicts have been terminated, the international community still plays the equally important role of attempting to have perpetrators face the law.
The attempts to have the culprits face the justice system is a double edged sword that seeks to realize the twin goals of first, ensuring that the culprits do not walk away scot free but that they instead reap the punitive harvest of their heinous seeds of crime, and secondly, that the victims of those crimes and or their families see justice being done. Another important goal that is realized is that of acting as a warning against would be perpetrators of similar crimes that their acts would not go unpunished.
3 The dawn of the Rome Statute arguably provides one of the best avenues through which the international community can stamp its authority in dealing with crimes against humanity. The Statute for the first time creates obligations on states that are signatories to it to cooperate with and assist the International Criminal Court in handling matters that are connected with and incidental to the investigations, arrests and prosecution of suspected perpetrators of crimes against humanity and the related· ones of genocide and war crimes.
The Statute establishes the International Criminal Court based at The Hague with the 6 jurisdiction to handle cases involving war crimes, crimes against humanity and genocide • As at now, the court is still at its nascent stages, although it has already issued warrants against a number of individuals, and in fact arrested others who are currently on course for trial.
The first person to be indicted by the ICC, Thomas Lubanga, already earned his freedom on one of the counts in his charge in July, 2010, for what the judges described as a failure by the prosecution to establish a prima facie case against him. 7 The Sudanese president, Omar AI Bashir, stands as the first serving president to be indicted by the ICC, and given that he is yet to be arrested almost three years after the first warrant of arrest was issued against him, his case presents a study in the difficulties that the ICC faces and is likely to face in executing its 8 warrants and such other orders against those who stand high and mighty in their societies •
The dawn of globalization has had the effect that states can no longer watch in silence as repressive regimes and war lords commit heinous crimes against humanity as it used to happen in the past. The establishment and the workings of the International Criminal Court serve as an appropriate example of the renewed sense of willingness and readiness with which the International Community now tackles these crimes.
6 The Rome Statute has been domesticated and is now part of the laws of Kenya. 7 Thomas Lubanga had been arrested and charged in connection with the Democratic Republic of Congo and the Central African Republic conflicts. The prosecution failed to prove the allegations of crimes against humanity and war crimes that had been levelled against him. The evidence was too scanty to construct a watertight case. 8 Arresting president Bashir poses the greatest challenge to the ICC, which does not have a police force but instead relies on the goodwill of its member states to enforce its warrants. Already, a number of countries have vowed not to cooperate with the ICC in enforcing the warrants of arrest against him. Notably, president Bashir can still trot in virtually all Arab and African countries without fear of arrest. The African union, for example, already resolved and wrote to the ICC to the effect that it will not cooperate in enforcing the warrant. Despite the warrant, president Bashir was as recently as the 27th of august 2010, received in Kenya to attend the promulgation of the new constitution. He was not arrested despite the fact that Kenya is a signatory to the Rome treaty. Kenya cited the fact that regional obligations took priority over international treaties as informing its inaction.
4 1.3 STATEMENT OF THE PROBLEM. Whenever armed conflicts occur and crimes against humanity are committed, much suffering is borne by the victims. The histories of Rwanda and Sierra Leone all stand as proof ofthis.9 The experience in Kenya after the disputed 2007 presidential election also brings to the fore the problems that armed conflicts and the commission of war crimes subject the victims to. 10 Today. nearly five years after the post-election violence happened in Kenya, hundreds are still in destitute conditions in Internally Displaced Persons Camps (JDP Camps). It has to be recollected that in addition to causing over I ,300 deaths, the postelection violence left over 600,000 people displaced in its wake. Many were forcibly deported from their homes and since they Jacked any other place for settlement, their resort was in the IDP Camps that were set up the government in collaboration with humanitarian aid organisations such as the Red Cross.
The case in Rwanda and Sierra Leone paints a similar picture just as it is across the world in places where such crimes have been committed. Many lost their lives while others were left with living memories of having been maimed or otherwise seriously incapacitated. In all the cases, many people lost their family members as a result of the deaths or the separation that occurred due to the forcible deportation. Thus many children were rendered orphans and that in itself poses another problem. The social trauma and stigmatization that may follow especially to those who were victims of sexual violence and rape which are some instances of the crimes against humanity, is yet another great problem that many endure in silence.
Despite the foregoing problems that crimes against humanity subject the victims to, the international community in the past has failed to rise up to the occasion in a number of instances as far as fighting crimes against humanity was concerned.
This simply means that there still are inherent obstacles that stand in the way of the international community's attempt to play a leading role in the fight against crimes against
9 Supra note 2 and note 4. The Rwandan case left approximately 800,000 persons ofTutsi origin and moderate Hutus dead. 10 Supra note 5. Although the government has severally made promises and set deadlines by which the displaced persons would be resettled, this is yet to be fully achieved for a number of reasons. The first is that there have been challenges in securing the land in which to resettle them. The second major obstacle has been that many of the displaced persons are reluctant to return to those areas from which they were evicted. Complete reconciliation is yet to be achieved.
5 humanity. These obstacles still continue to limit the extent to which the international community can intervene to avett crimes against humanity in the various countries of the world. The obstacles are not confined to making it difficult to avert crimes against humanity; they spread their wings to obscure the search for justice for the victims of these crimes.
In the modern times, countries of the world can no longer turn a deaf ear to the cry of the oppressed as happened in the times of the Rwandan strife. This paper therefore seeks to establish the role that has been hitherto played by the international community and the challenges that have stood in the way of playing such a role.
The paper also delves into the possible ways through which this role can be ridden of shortcomings and how it can be improved for the good of all. In the course of dealing with the aforementioned, the paper will· also explore the channel (s) through which the International community plays its role in fighting crimes against humanity and the possible pitfalls in those channels while shedding light on areas that can benefit from melioration.
1.4 KEY RESEARCH QUESTIONS. I. To what extent has the international community played a role in the fight on crimes against humanity and how effective has this role been?
2. What are the obstacles that have stood in the way of the international community in its efforts to discharge the role of fighting crimes against humanity?
3. How can be the obstacles be resolved in order to make the contribution by the international community towards the fight on crimes against humanity more effective?
1.5. RESEARCH OBJECTIVES. I. To discuss and evaluate the role played by the international community as far as regards crimes against humanity.
2. To seek a justification as to why the international community should play a role in dealing with crimes against humanity.
6 3. To assess the mechanism(s) through which the international community has attempted to discharge its role in the fight against the aforesaid crimes.
4. To ascertain the extent to which the international community has discharged its role as far as crimes against hunianity are concerned.
5. To analyze the challenges that have characterized the attempts by the international community to play its role in fighting these crimes.
6. To hypothesize on the possible remedial measures that may constitute answers to the challenges that have stood in the way of the international community in discharging its role in crimes against humanity
1.6 CONCEPTUAL FRAMEWORK This research stands on the premise that crimes against humanity constitute inhuman deeds that affect the entire human race regardless of geographical boundaries and political demarcations. Hand in hand with this premise is the understanding that human rights are universal and have to apply to all human beings equally without distinction whether that distinction be of race or geographical territory.
This fact therefore necessitates concerted international effmis in order to put to a permanent stop the subsistence of these crimes. There is thus the need for states of the world to pull together in the worthy causes of averting these crimes, and where such prevention may be impossible by virtue of the reality that the crimes have already been committed, then states must play a role in facilitating the rolling of the wheels of justice by trying and punishing the culprits.
It is the argument in this paper that states of the world have in the past not played a role that matches up to the expectations in tackling these crimes, and that although in modern days attempts have been made to up this role, nothing much may come out since there is still a lot of room for melioration to be done.
The hypothesis therefore is that in the past the international community has been giving lip service to the efforts aimed at fighting crimes against humanity. This has been greatly as a result of the fact that until the enactment of the Rome Statute and the creation of the
7 International Criminal Court, there existed no proper and permanent legal framework through which the international community could render their obligations.
This paper considers the Rome Statute as a major milestone in the creation of a better avenue through which the international community can flex its muscle in fighting crimes against humanity. However, it is observed that even then there still are a myriad of challenges that lie ahead and which call for remedial action. Much can still be done to improve the context within which the international community can discharge its mandate.
Thus this paper assesses the promise that lies ahead while shedding light on the challenges afore. It also enumerates on the possible curative measures with the hope that ultimately, the international community will not only discharge its obligation effectively, but also in a manner that is more effective than the current situation.
1.7 SIGNIFICANCE OF THE RESEARCH AND LITERATURE REVIEW This research could not have come at a better time, considering that it falls at a moment when the ICC, which will be discussed as one of the major mechanisms through which the international community seeks to fulfil, its obligations, is at the height of asserting its position at the world stage. As pointed above, it is still pondering on the way forward as far as the arrest of President Bashir of Sudan is concerned, and it is raring to go in relation to the handling of the Kenyan post election violence perpetrators and the Guinean military massacres.
This paper aims to be of significance not only for academic and research related undertakings but it may also prove relevant to those who are interested in improving the manner in which the international community discharges its role in the fight on crimes against humanity.
It gives a history of the role played by the states of the world and the justification of that role. It then sheds light on the challenges that have stood in the way of the discharge of these obligations and how they can be removed. Thus the paper's significance also lies in the recommendations it makes in order to improve on the existing scenario as enumerated above.
There is an array of materials on the subject. For the purposes of this work, the available materials may be classified to range from those that deal with the subject of human rights in general to those that focus on the issues of specific offences that amount to an abuse of those
8 human rights such as genocide, war crimes and crimes against humanity. The other materials that this paper will depend on are those that attempt to address the role of the international community in the promotion and protection of human rights through attempts to prevent crimes against humanity. Of relevance in this regard will be what has been written about the various international mechanisms that have been employed to forestall the commission of these crimes. Where the crimes have already been committed, the literature available on international judicial mechanisms such as the International Criminal Court (ICC), the International Court of Justice (ICJ), and the various tribunals such as the Special Tribunal on Yugoslavia, the Special Tribunal on Rwanda and the Special Tribunal on Sierra Leone will be considered. The consideration will be of the view of assessing their areas of success and failure and what can be done to improve on what exists at the present. Since the subject of this work is a contemporary matter it has become the topic of discussion in the media especially the newspapers. These will be assistive since they highlight some important issues on the subject.
It is important at the outset to examine how various authors have considered the question of crimes against humanity in the light of the existing legal frameworks. In this regard it is necessary to highlight the fact that crimes against humanity are covered not only by human rights law but also humanitarian law. These two branches of law are similar since they both deal with the protection of individuals. However they still exhibit notable differences. As Dieter Fleck argues in his book The Handbook of Humanitarian Law in Armed Conflicts, 11 international humanitarian law is chiefly concerned with the abnormal conditions of armed conflicts while human rights law is chiefly designed to operate during peacetime. The foregoing difference notwithstanding, the reality is that the nature of crimes against humanity is such that they are covered under both regimes of law. Since both regimes are relevant as far as crimes against humanity are concerned, the question that comes to mind is where the source their justification from. The issue of the rationale by which such laws operate to protect individuals in their autonomous states deserves consideration.
11 Dieter Fleck, ed.,The Handbook of Humanitarian Lmv in Armed Conflicts (2004) Oxford University Press, New York, at p.9
9 It will be stressed in this work that human rights law cannot be explained by the traditional positivists approach. 12 Martin Dixon is at the head of those who argue that international obligations for the protection of human rights lie simply in the need to respect the dignity of Mankind. 13 These commentators hold that the state is no longer the supreme, ungovernable entity that pure positivism suggests it is. 14That stands as the justification of the international duty upon states to protect human rights.
The other materials that this work will rely on, as already alluded to above, are those that seek to inquire into the actual role that the international community ahs played. In this vein, the writings of scholars like Andre Durand on the role of the Red Cross in armed conflicts, 15 and Rudiger Wolfrum on the enforcement of international humanitarian law will be relevant. 16 As it has been pointed out above, this work is contemporary and many issues are emerging by the day with the consequence that much will in all probability be published during the course of conducting this research.
1.8 RESEARCH METHODOLOGY. This research is on the most part a desk study that will rely on the available literature on the subject. It is worth noting that crimes against humanity and the other related ones of genocide and war crimes have become issues of major political and socio- economic significance globally. There is therefore a pool of informative materials available. Consequently both primary and secondary sources of information will be used.
These include a critical assessment of literature available such as published books, journals, newspaper articles, rep01ts and international legal instruments. Constitutions and statutory instruments will also be of use. The importance of the internet in accessing some of these materials of course need not be overemphasized.
12 The positivists approach considers law as being ordained by a sovereign to govern his subjects. If international law is looked at from that perspective, then the consequence will be that such law can not be law at all since there is no international sovereign given that states are autonomous and legally equal. 13 See Martin Dixon. Textbook on International Lmv. 4"' edn.,(2000) at p. 325 14 Ibid 15 See Andre Durand, From Sarajevo to Hiroshima, (1978) p. 1-54. 16 Supra note 12, at p. 517-549
10 CHAPTER TWO
2.0. THE ROLE OF THE INTERNATIONAL COMMUNITY IN TACKLING CRIMES AGAINST HUMANITY AND ITS JUSTIFICATION
2.1. OVERVIEW The international community has employed a number of methods in fighting crimes against humanity. It has to be observed, as a point of departure, that crimes against humanity are mostly committed during the subsistence of armed conflicts. This therefore has the meaning that the role of the international community in combating crimes against humanity mainly revolves around the prevention and or the cessation of armed conflicts. It also extends to the giving of humanitarian assistance to the victims of armed conflicts and the punishment of those responsible for the violence and or the commission of crimes against humanity. This role therefore take the nature of the prevention of armed conflicts, cessation of existing armed conflicts, the giving of humanitarian assistance to the victims of armed conflicts and the punishment of the perpetrators of crimes against humanity. The role is discussed in this chapter as follows.
2.1.1. PREVENTION OF ARMED CONFLICTS Crimes against humanity are committed mostly during times of armed conflicts. It is during such times that individuals and groups are most likely to be victims of systematic attacks. The history of the world right from the times of the World Wars to the preceding days, up to the present times, stands out clearly in proving the fact that it is during times of armed conflict that the vulnerability of individuals to crimes against humanity is at its height.
It may be necessary to note at the outset that armed conflicts, at least for the present purposes, may be classified into two, first, armed conflicts within a state, and second, armed conflicts between states. In both instances, civilian populations are the victims of crimes against humanity. Armed conflicts within a state may be occasioned by a number of reasons including but not limited to political disagreements, rivalry over the distribution of national resources and even tribal, ethnic or religious animosity. 17 International armed conflicts on the other hand may be
17 Examples of where these factors have caused armed conflicts abound across the world. Political disputes over the 2007 presidential election resulted in the post-election violence. In Ivory Coast, the refusal by the then incumbent president Laurent Gbagbo to hand over power to the electoral commission declared winner of the
11 caused by a number of reasons including but not limited to boundary disputes, resource allocation, ideological difference and general imperialism and aggression. It thus follows that since armed conflicts create the breeding ground for crimes against humanity, one of the best ways of ensuring that such crimes do not see the light of the day is by preventing the occurrence of the conflicts.
2.1.2. CESSATION OF EXISTING CONFLICTS The reality of the happenings in the modern world is that prevention of armed conflicts does not work at times. Efforts at avetting disputes have often times been in vain and such disputes have graduated into full scale armed conflicts that have caused the suffering of many through the perpetration of crimes against humanity. Whenever efforts at preventing disputes fail, it falls upon the states of the world to concert efforts at stopping such conflicts. Those conflicts have to be stopped so that the harm and injury they would occasion in terms of crimes against humanity is controlled at the minimal.
It has to be noted that the nature of conflicts that the international community can play a role in stopping are also two fold, namely, armed conflicts within a state and armed conflicts between states. The Kenyan example fits perfectly in the picture of armed conflicts within a state that the international community helped to stop. The internal strife in Somalia is an instance of an internal conflict which the states of the world should make all possible attempts to terminate. The same was the case with the civil war in Ivory Coast and in the Democratic Republic of Congo. Conflicts between states might have perhaps reached an all time high during the world wars. This does not however mean they ended with that. The Middle East crisis lives as an example of how conflicts continue to rage between states despite the fact that efforts had been made in the first place to avert them (conflicts). The international community has employed various methods to stop already ongoing armed conflicts from escalating. It is noteworthy that the methods discussed above as being the techniques of preventing armed conflicts also overlap as the ways through which existing armed conflicts can be terminated. Such methods include good offices and mediation, negotiation, conciliation and inquiry. There are other methods that
presidential race, Alassane Outtara, put the country on the brink of a full fledged civil war. Although president Gbagbo was finally forcefully removed from power by pro Outtara lighters, there is still a high potential fm· the start of violence since there are still tension filled divisions in the country. In Rwanda, one of the reasons believed to have precipitated the genocide in 1994 was the animosity between the Hutu and Tutsi tribes.
12 have been employed specifically at terminating conflicts. This may be briefly summarised into two; peaceful methods and the use of force.
(a) Peaceful means
Diplomacy is usually employed where it appears feasible in order to stop conflicts from raging. lt might be important to note that most of the methods discussed above all entail the use of diplomatic means to settle disputes. The United Nations Charter advocates for peaceful settlement of disputes. It directs that all states shall settle their international disputes by peaceful means and in such a manner that international peace and security, and justice, are not endangered. 18 The above provision of the UN Charter, though rich in noble aims, has certain shmicomings. The key limitation is that it applies to international disputes only. A state may therefore use force against its own citizens without being said to have violated this provision. However, the methods of peaceful methods of dispute resolution enumerated above all fall under the umbrella of diplomacy and may still be used in terminating armed conflicts that occur within states.
There are other peaceful methods of stopping armed conflicts such as the use of sanctions and arms embargos. Sanctions may take the form of economic and political sanctions. They are placed upon states to cause them act or stop to act in a certain way. They may be imposed upon a state to make such a state deprived in a certain way, either economic or political, so that that state may be compelled to act in a certain way.
Sanctions may serve the purpose of isolating a state from others so that because of that isolation, such a state may be forced to act in an acceptable way, in this regard, by terminating an armed conflict. Sanctions have been used against a number of states to compel them to act or not to act in a certain way. Visa and travel bans against particular individuals and the freezing of accounts belonging to certain individuals who bear responsibility in the continuation of armed conflicts have also been a method of compelling them to compromise.
18 See article 2(3) of the United Nations Cha1ter.
13 Arms embargoes on the other hand involve the prevention of the armament of patticular groups or states. Countries of the world are required not to facilitate the acquisition of weapons by the certain named groups or states for the reason that the armament of such groups or states would give them the weapons necessary to perpetuate the commission of crimes against humanity through warfare.
(b) The use of force
In cettain instances the use of peaceful methods of dispute resolution may not bear fruit. The international community may thus be compelled to employ force in attempting to stop a conflict. The situation may be such that the use of force is necessary to stop an ongoing conflict that is causing the perpetration of crimes against humanity on innocent civilian populations. Instances abound of where the international community has intervened using force in order to stop an ongoing conflict. These examples include the case of Libya where the alleged use of military force against the anti-government protesters has caused a number of countries to launch attacks in order to oust the government of the day. 19 In Ivory Coast, Laurent Gbagbo, who had rejected all calls to cede power, was forcefully dethroned and arrested by a combination of local anti-establishment forces and foreign military forces. 20
2.1.3. HUMANITARIAN ASSISTANCE TO THE VICTIMS The international community has played a major role in aiding victims of crimes against humanity as far as humanitarian assistance is concerned. Where the crimes have already been committed against individuals one of the major things that remain to be done to return them to normal life is to give them humanitarian assistance. This assistance takes many forms. Some crimes against humanity necessitate that the victims be given certain kind of assistance. For instance, where individuals have been forcefully dep01ted, what they require is resettlement. In
19 A section of the Libyan population started a series of protests in late February, 2011, demanding that the octogenarian leader, Muammar Gaddafi, who has been in power since 1969, relinquishes power. The government security forces heightened a clampdown on the protesters and reports of thousands of deaths were made. This caused a number of countries, mostly western, including France, Britain and the United States, to intervene by launching military air attacks on the Gaddafi stronghold and capital of Tripoli. 20 Gbagbo was arrested on the 11th of April 2011, hiding in a bunker in the presidential place. The arrest is likely to put in motion a process of prosecution for the crimes against humanity allegedly committed by government soldiers who were fighting off attempts by the opposition leader (declared winner of the presidential election), and his supporters, from staking claim to the presidency.
14 this regard certain states, regional bodies and international organisations have stepped in to provide habitats for the affected. Individuals who have been victims of horrendous crimes such as rape or even murder (perhaps witnesses) might require proper guidance and counselling to help them get over the trauma that such acts may inflict upon them.
Other than individual states performing this role, some international organisations have been very helpful. Foremost among these is the International Red Cross Movement.21 The lt1ternational Red Cross Movement has offered humanitarian assistance in conflicts within states and between states. Examples of conflicts between states that the movement has intervened in include Algeria ( 1954-1963); Hungary (1956-1958); Israel and the Arab states ( 1967-1968); India-Pakistan (1971-1975); Iran-Iraq ( 1980-1985) and Argentina- Great Britain ( 1982) among others. 22 As concerns intemal disturbances, the movement has intervened in Congo (1960-1965), South Africa (1963-1986), Chile (1973-1978), Iran (1977-1981 ), Philippines (1977-1986) and Poland (1981-1984).23
The International Red Cross Movement has been instrumental in the channelling of assistance to those afflicted by armed conflicts. It has proved very effective over the years considering the fact that it has representation in almost all countries in terms of the national Red Cross Societies. It often invites contributions from well wishers and people of goodwill to be channelled to assist those in need. Humanitarian assistance has also come from international organisations of states such as regional blocs and communities of states such as the European Union, the African Union and the East African Community.
2.1.4. PUNISHMENT OF THE PERPETRATORS Thos who commit crimes against humanity must face certain sanctions and penalties just like all other criminal offenders do. In fact the nature of crimes against humanity is such that the
21 The birth of the International Red Cross can be traced to the activities of Henry Dunant, a Genevese citizen who was moved by the suffering of the over 40,000 wounded troops after the battle of Solferino. This was a war to liberate upper Italy from Austrian domination. On 29 October 1863, the Geneva conference adopted 10 resolutions which brought the international Red Cross movement into being. See Hans Haug, Humanity for All, The International Red Cross and Red Crescent Movement; Paul Haupt publishers Berne. Stuttgart. Vienna. (1993). 22 For a detailed illustration, see ibid, p. 97-130. 23 lbid, p. 145-163.
15 perpetrators thereof should be met with strong punishment and sanctions in a bid to ensure that justice is done and that each person is made responsible for his or deeds. The punishment of criminal offenders has a number of justifications. These may be summarised as follows;
(a) Retribution; (b) Deterrence; (c) Incapacitation; (d) Rehabilitation.
Retribution is arguably the oldest goal of criminal punishment. It considers the purpose of punishment as aiming to avenge the crimes that individuals have committed. Punishments such as imprisonment are the wages of crime. It serves the purpose of showing the world that the crimes of offenders do not go unpunished and that justice is done for the victims. It must have been Hammurabi, the I 9'11 century ruler of Mesopotamia, who aptly captured this role of criminal punishment when he phrased it as 'an eye for an eye and a tooth for a tooth.' 24
The objective of deterrence simply means that punishment aims to deter individuals from committing crimes since they would be afraid of the punishment that lies in wait. The individuals that are targeted are those who have committed crimes already and potential offenders. This goal may thus be considered from two perspectives.
First it is individual deterrence aims at deterring the individual offender from repeating the offence. In this regard fines are imposed and imprisonment enforced upon an individual so that he or she may be afraid of the consequences of certain criminal act and therefore will avoid engaging in them in the future. There is also the second perspective of deterrence and this is called general deterrence. This one does not target a single individual but rather aims to warn the whole population generally. The punishment that an individual undergoes is meant to act as a lesson and a warning to all other potential offenders.25
The third justification for punishment is that it incapacitates the offender. This means that the offender is put in such a restrictive state that he or she would not be able to commit a crime
24 Hammurabi was the sixth king of Babylon and it was during his reign that the famous Hammurabi Code, the Babylonian law code, was enacted, around 1700 B.C. the code provided for punishment that as much as possible attempted to avenge the crime committed in equal proportion. "See Jackson Tudor, Lmvs of Kenya, Kenya Literature Bureau (1986) p. 126
16 agam. Incarceration of offenders aims at achieving this goal. Convicts are held in jail for specific periods, others for life, in order to alienate them from the society where, if left free, they would perhaps commit crimes again. The last equally important goal of criminal punishment is rehabilitation of offenders. While in prison, offenders are supposed to undergo corrective measures in order to reform them and make them better individuals. This is usually done through giving them some training and encouraging their spiritual growth?6
The international community has used a number of ways to ensure that those who perpetrate crimes against humanity do not go unpunished. The punishments have taken both the judicial and non judicial forms. Judicial forms of punishment have been exercised through international courts and tribunals and sometimes national courts and tribunals. The International Court of Justice, the Special Tribunal on Yugoslavia and now the International Criminal Court are just a few of the examples of the judicial mechanisms that countries of the world have put in place to ensure that justice is done in cases of crimes against humanity.27 They form the gist of the discussion in the next chapter of this work.28 While examining the role of the international community in the facilitation judicial mechanisms that are aimed at punishing the perpetrators of crimes against humanity, it is necessary to note that states also perform other crucial functions. These functions are founded upon a realization that the international courts and tribunals may not be self sustaining, or if it may be so said, self contained, in the sense that they, like the International Criminal Court, do not have their own independent police force and related organs.29 They therefore rely on the cooperation of the member states where the services of the police are required. Member states also afford the venue of court proceedings and, after
:!(,Ibid 27 The other judicial mechanisms include the famous Nuremberg trials. The modern times have seen the creation of the special tribunal for Rwanda and the Sierra Leone special tribunals. Attempts to create a special local tribunal to handle post-election cases in Kenya hit a snag as parliament resolved that The Hague based International Criminal Comt was the better way out. 28 Chapter three of this work delves into the mechanisms that the international community has employed in its fight on crimes against humanity. The judicial mechanisms that have been put in place over the years and currently will form the subject of discussion in that chapter. 29 The ICC does not have a police force and it generally lacks an executive arm it therefore depends on the cooperation and assistance of member states to enforce some of its decisions and orders such as arrest warrants. It is for this reason that the ICC has to seek undertakings committing a state to cooperate when the court focuses on investigations in its territory. It is for this reason that the court prosecutor visited Kenya severally to secure a working framework with the Kenyan government. See note 6 above. The challenge of lacking a police force and depending on the member states may be well exemplified by the inability of the court to get hold of Sudan's president, Omara! Bashir. For instance, despite warrants of arrest having been issued against him, Kenya, an JCC member state, invited him to attend the promulgation of the new constitution on august 27 and did not arrest him. Supra note I 0.
17 the conviction and sentencing of an offender, they may offer a place (prison) for the execution of the sentence.30
The non-judicial ways of punishing the perpetrators of crimes against humanity take a number of forms. They include visa cancellations and travel restrictions so that the perpetrators do not have the freedom to move freely, at least in some countries.31 The other form of non-judicial punishment is the freezing of the bank accounts of the perpetrators and those of their close kin held in other countries. This aims at containing their financial capacity to ensure that they do not have a strong financial muscle with which to promote their activities. Sanctions and other restrictive measures which may either be political or economic, also come in handy in dealing with the perpetrators of crimes against humanity. Where such perpetrators are states, they may be suspended, expelled or otherwise excluded from the membership of certain political and economic bodies such as the Commonwealth. They may also be deprived of their interests in regional and international banks like was the case for Ivory Coast.32 Sanctions, especially economic, have often been imposed. Monetary and other forms of aid (excluding humanitarian aid) are withdrawn conditionally; the condition being the cessation of the commission of the crimes against humanity.33
2.2. THE JUSTIFICATION OF THE ROLE The role that the international community plays in tackling crimes against humanity is part of the larger duty that the international community has to promote and protect human rights. The countries of the world have an obligation to the human race as a whole, regardless of geographical, cultural, racial and political differences to ensure that human rights are protected and promoted across the entire globe. In this regard, all possible efforts must be dedicated in ensuring that crimes against humanity are kept at the minimum if not completely eliminated.
3u. This is one of the obligations that the Rome Statute places upon member states. See articles 87 and 88 of the Rome Statute. 31 The US government and other western governments have employed this mechanism for a long time. Leaders who face condemnation for human rights violations have been banned from visiting certain countries. Robert Mugabe of Zimbabwe, Muammar Gaddafi of Libya and Laurent Gbagbo, formerly of Ivory Coast, have been banned from visiting many western countries including the US, France and the UK. 31 The World Bank froze its funding to the state of Cote d'lvoire and the European Economic Monetary Union (W AEMU) followed suit at the World Bank by suspending its loans. Both banks announced their decisions on 23rd Dec, 2010, following the onset of the post-election crisis. 33 For instance, the aid to Zimbabwe, at least up to the formation of the Grand Coalition government in 2009, was restricted to humanitarian aid.
18 This is because crimes against humanity in themselves constitute heinous violations of the human rights of individuals. The international community therefore has to discharge the roles that have been discussed above in a bid to prevent, minimize the effects or stop crimes against humanity. The various mechanisms which are used by the international community in discharging these roles form part of the discussion in the next chapter.
The role of the international community however, must be justified. This part attempts to show why it is necessary for states to take action, sometimes beyond their boundaries of jurisdiction, in order to prevent or stop the violation of human rights in another territory. The arguments shall be premised on two main closely related foundations, that human rights are universal and that all human beings are equal.
2.2.1. THE UNIVERSALITY OF HUMAN RIGHTS AND THE EQUALITY OF ALL HUMAN BEINGS. This argument is founded on the notion of natural rights that cannot be alienated from man. They are inalienable rights with which every human being is endowed by reason of being human. This argument is constructed on the Natural Law/ Social Contractarian conception of human rights. Thomas Hobbes is one of the prominent scholars in this school of thought. He traces the idea of rights through the development of man from the times of solitude to the period when man raises the futility of sole existence and decides to surrender most of his natural rights to the state. In the initial stage of the state of nature, man has unlimited rights and freedoms. Hobbes states:
'It followeth, that in such a condition, every man has the right to every thing; even to one anothe1·'s body. And therefore, as long as this natural Right of every man to eve1-y thing endureth, there can be no security to any man ... of living out the time, which Nature ordinarily allow men to live.'34
Such conditions ultimately lead to a situation which Hobbes describes as the 'war of all men against all men.' In this state, the ve1y purpose of human life, self preservation, Hobbes argues, is put in jeopardy. This eventuality is what leads men to surrender their rights to the state so that the state may enforce them on their behalf. John Locke also belongs to this school of thought.
34 (Leviathan. I ,XIV)
19 He argued that man's natural rights are life, liberty and prope1ty. 35 Locke summarizes the natural rights of man as; life, to which everyone is entitled to live once they are created; liberty, to which everyone is entitled to do anything they want to so long as it doesn't conflict with the first right; and estate to everyone is entitled to own all they create or gain through gift or trade so long as it doesn't conflict with the first two rights.36 Thomas Paine, in his work Rights of man (1791),37 emphasized the fact that rights cannot be granted by charter because if that was the case then the rights could be taken away by the same way of chmter. He observes that rights are inherent in all human beings by viitue of their being human.
He remarks:
'It is a pe1·version of terms to say that a charter gives rights. It operates by a contrary effect - that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few .... They ... consequently are instruments
of injustice. dS
The conceptions of the above named scholars have in many ways influenced the principles and practice of human rights across the world over time. The idea that all human beings are equal and that they are all endowed with rights has been embraced. The Naturalists hold that the very first factor that makes all human beings equal is that the purpose of their lives in self preservation. The American Declaration of independence aptly captures the notions that are evident in the works of the Natural Law/ Social Contractarian thinkers. The Declaration reads:
'We hold these truths to be self-evident, that all men on earth are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and pursuit of happiness.'39
35 John Locke, The Second Treatise on Government, 1690 36 Ibid 37 See Thomas Paine, Rights of Man (1791) 38 Ibid 39 The American Declaration oflndependence was adopted by the Continental Congress on July 4, 1776, and it announced that the thirteen American colonies that had been at war with Britain were now independent states. It was written primarily by Thomas Jefferson, who was to later become the us president between 1801-1809.
20 The French Declaration of the Rights of Man and of the Citizen is yet another document that captures the universal nature of human rights as the foundation of human equality. It begins by affirming "the natural and imprescriptible rights of man" to "liberty, property, security and resistance to oppression. "40 It also states that "Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general good." 41
The Universal Declaration of Human Rights, arguable one of the leading human rights instruments in the world for a long time, declares in its preamble that the "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, peace and justice in the world ... "42 All the foregoing are instances that show that countries of the world recognize the fact that human rights belong to all mean and are therefore universal and that therefore all men are equal. It is for this reason that the international community owes an obligation to all human kind to ensure that their human rights are not violated. In practice, it should be remembered that the politics and economics of the world are shaped in such a manner that other nations have superior bargaining power to others. In light of the fact that some countries enjoy military superiority and economic wealth over others, then it is only justifiable if the military strength and economic wealth will be employed for the protection and safeguarding of the rights and freedoms of those who are under threat of crimes against humanity. It is for this reason that principles such as domestic jurisdiction,'3 have been reinterpreted to allow other countries play a role when another state encroaches on the human rights of its nationals. The principle principally meant that a state was to have jurisdiction in its own territory. The principle of the exhaustion of local remedies has also been applied to justify the interference in the affairs of another state in order to protect the rights of the citizen if they are under violation or threat of violation where the domestic state has been unable or is unwilling to solve its own internal issues.44
40 The last article of Declaration of the Rights of Man and Citizen was adopted 26 or 27 august 1789 by the National Constituent Assembly (assembtee nationale constituante), during the period of the French revolution, as the first step toward writing a constitution for France. It was prepared and proposed by the marquis de Lafayette. A second and lengthier declaration, known as the Declaration of the Rights of Man and Citizen of 1793 was later adopted. 41 See the first article of the Declaration. "The UDHR was adopted in 1948, after the experience of the Second World War. It sets the standards by which governments, organizations and individuals would regulate their interaction with each other. 43 See article 2(7) of the UN Charter 44 Supra note 20, p202.
21 CHAPTER THREE 3.0. THE MECHANISMS THAT THE INTERNATIONAL COMMUNITY HAS USED IN DEALING WITH CRIMES AGAINST HUMANITY AND THE DEGREE OF SUCCESS
3.1. INTRODUCTION TO THE METHODS USED
In dealing with crimes against humanity, the patterns and trends of what has been happening over the years, and continues into the present, do not show any inclination to a particular method or mechanism of tackling these crimes. Rather the trend is a fluctuation of an assortment of methods that have been used depending on the circumstances of each case. In modern times however, the dominant feature is that the punishment of the perpetrators of crimes against humanity is taking centre stage despite whichever the method is that is (was) used in trying to prevent or stop the break of violence/ armed conflict.
The mechanisms used, it must be stated, are supplementary and at times complimentary. They may be used where one of them has failed. For instance, where the use of diplomacy does not yield fruit, force and sanctions may be put in action. In the aftermath, it may be necessary to bring to book all those who were responsible for the perpetration of crimes against humanity. This is done through the established judicial mechanisms such as the special tribunals and the International Criminal Court (ICC).
For the purposes of this work, the mechanisms have been classified into the use of diplomacy; the use of force; the use economic and political sanctions and the use of the international justice system. At the international justice system level, focus is placed on the International Court of Justice, Special Tribunals and the International Criminal Court. The Special Tribunals that are considered are the Special Tribunal on the Yugoslavia, the Rwanda Genocide Special Tribunal and the Special Tribunal on Sierra Leone. Each of the above mentioned mechanism is discussed in detail in the following parts.
22 The last part of this chapter will concentrate on assessing the degree of success that has come with the international community's efforts in tackling crimes against humanity. The successes and failures will be highlighted and the possible reasons for such failures will be given a brief mention.
3.1.1. THE USE OF DIPLOMACY The use of diplomacy is usually the most desirable way of handling international disputes. Most of the global agreements and universally accepted instruments indicate the will by the nations of the world to avoid the use of force in settling their disputes and to instead allow diplomacy a chance. Key among these is the United Nations Charter. Article 2(3) of the UN chatter directs that all members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. The Chatter fmther requires that all members refrain in their international relations, from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.45
The very purpose for the formation of the United Nations, in the first place, was to prevent the start of war in the world, after the two world wars. This is reflected in the preamble to the UN Charter.46 It is therefore clear that the prevalence of peace through the use of diplomacy in dispute resolution is key among the goals of international co-operation especially through the United Nations and other international organizations.
45 See article 2(4) of the Charter. 46 The preamble reads: "We the people.s of the United Nations determined: to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, 'and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international Jaw can be maintained, and to promote social progress and better standards of life in larger freedom, ... have resolved to combine our efforts to accomplish these aims."
23 The 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States47 notes that:
'States shall acc01·dingly seek early and just settlement of their international disputes by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means of their choice.'
The Declaration cited above therefore outlines the various methods of settlement of international disputes through peaceful means. The use of negotiation, mediation and good offices, inquiry, and conciliation has already been discussed in the preceding chapter.48 The use of judicial mechanisms will form the subject of discussion in the subsequent parts of this work. 49 This part will therefore focus on the use of regional agencies and such other arrangements to settle international disputes diplomatically.
3.1.1.1. REGIONAL ORGANISATIONS The United Nations is the most international recognized and accepted body of nations. Its mandate in the regulation and management of world affairs is extensive and covers virtually all aspects of international relations. However, there are other region specific organizations that are formed to address the issues that appertain top their areas of jurisdiction. States enter in agreements to create organizations that are tasked with the duty of realizing certain specified objectives at the regional level. Such objectives include the preservation of peace through the promotion of diplomacy as a means of dispute resolution. The United Nations Charter itself does recognize the place of these bodies in international dispute resolution. At article 52(1) the Charter stipulates as follows:
47 General Assembly Resolution 2625(xxv). See also the Manila Declaration on the peaceful settlement of international disputes. General Assembly Resolution 37/590. This is also covered by M.N. Shaw, in his book, International Law, fourth edition(1998) at p. 720 48 These methods have been the subject of discussion in Chapter Two as the methods that are used in peaceful prevention of armed conflicts by the international community. For details refer to p. 15-17 49See title 3.1.4 of Chapter Three
24 'Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations.'
The Charter empowers the member states that have entered into such arrangements or constituted such agencies to make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council. 50 The United Nations Security Council is required to encourage the development of pacific settlement of local disputes through regional arrangements or by regional agencies either on the initiative of the states concerned or by reference from the Security Counci1 51 However, the Charter still gives the Security Council an overriding power over the regional organizations. It does so when it directs that no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the 2 Security Council. 5 Article 54 of the same directs that Security Council shall at all times be kept fully informed of activities undertaken or in contemplation under regional arrangements or by regional agencies for the maintenance of international peace and security. On the basis of these provisions, a number of regional organizations and agencies have played a role in the diplomatic settlement of disputes in their respective spheres of influence. These include the African Union, the Organisation of American States and the Arab League. The role that each has played in the peaceful settlement of disputes is assessed in detail below.
(a) The African Union This is the body that replaced what was formerly called the Organisation of African Unity (OA U). 53 Its area of jurisdiction is the Afi·ican continent with membership of 53 African states.
50 Article 52(2) Of The UN Charter 51 Refer to Article 52(3) of Ibid. " See Article 53( I) 53 The idea of an African Union (AU) was conceived on 9-9-1999, when the Heads of State and government of the Organisation of African Unity issued a Declaration (the Sirte Declaration) calling for the establishment of an African Union, with a view, inter alia, to accelerating the process of integration in the continent to enable it
25 The only African state that is not a member is Morocco. Among the objectives of the AU and its institutions are to achieve peace and security in Africa; and to promote democratic institutions, good governance and human rights. It should be noted that since the AU has come into place relatively recently, its track record on peaceful settlement of disputes may not be as stellar. However, since it was a successor to the OAU, it may be necessary to give a background of what the OAU did in this regard before embarking on a look at what the African Union is doing. The OAU helped, during its time to avert a number of disputes. For instance when there ensued a boundary dispute between Algeria and Morocco in 1963, the OAU appointed a seven member state ad hoc commission to achieve a settlement of the issues surrounding the dispute54Jn the Somali-Ethiopia conflict, the OAU set up a commission to attempt mediation although the efforts were not successful.55 The same was the case July 1978 when an OAU 6 committee unsuccessfully tried to reach a settlement in the Western Sahara conflict. 5
The AU, since its formation, has continued with similar efforts. The most prominent cases that the AU has attempted to resolve include those of the Kenyan post-election violence and the Ivory Coast post-election stalemate. The Zimbabwean election debacle was also another chance for the AU to showcase its abilities by resolving the dispute peacefully. In the Kenyan case, when the country was on the brink of civil war following the release of the results of a disputed presidential election, the African Union appointed a team of mediators to help reach a 7 settlement on the dispute. 5 The outcome was a notable success, leading to the formation of a coalition government to foster national unity, between the two rival parties.58 The panel of mediators facilitated the signing of the National Accord and Reconciliation Act, which was a stipulation of the rules of engagement between the two coalition parties. play its rightful role in the global economy while addressing multifaceted social, economic and political problems compounded as they are by certain negative aspects of globalization. The Sirte Declaration was followed by a series of other events that finally established the au. These include the Lome summit (2000), which adopted the constitutive act of the union; the Lusaka Summit (2001), which drew the road map for the implementation of the au and ultimately the Durban Summit (2002), which launched the au and convened the 1st assembly of the heads of states of the African Union. 54 See I. Brownlie, African Boundaries, London, 1979, p. 55. Refer also to M.N Shaw, International Law, (Cambridge University Press, 1998), p.730 ,.Ibid 56 Ibid 57 The team was composed of former UN Secretary General, Kofi Annan as the chairman, and former Tanzanian president Benjamin Mkapa was a member. Graca Machel, wife of former South African president Nelson Mandela, was also a member of the panel. 58 The government was a coalition of the Party of National Unity led by Mwai Kibaki, who became the President, and the Orange Democratic Movement pmty of Kenya led by Raila Odinga, who became the Prime Minister.
26 After the Kenyan post-election dispute came the Ivory Coast conflict, which, like Kenya's before it, was tussle caused by disputed presidential election results. 59The African Union then appointed Kenya's prime minister60 as the lead mediator. Although the efforts at mediation failed from the outset, the AU appointed another heads of state committee to try resolving the dispute. The failure of these attempts following the refusal of the incumbent to participate led to an armed conflict that finally saw the arrest of president Gbagbo and with that, the end of his reign. In between the two was the Zimbabwean case, which, like the foregoing two, resulted from a presidential election dispute. The incumbent president Robert Mugabe, who had emerged second to his main rival Morgan Tsvangirai, was accused of using violence against opposition supporters in the run up to the run-off poll. The opposition candidate pulled out of the race and there was a stalemate that threatened to break into full-fledged violence afterwards. The African Union was at hand to lead mediation effmis that led to a peaceful settlement of the conflict through a power sharing agreement.61
(b) The Organisation of American States
The Charter that established the OAS was signed at Bogota in 1948 and was later amended the Protocol of Cartagena de Indias in 1985. The Chatier provides that international disputes between member states must be submitted to the OAS for peaceful settlement, without prejudice to the rights and duties of member states as established under articles 34 and 35 of the UN Charter.62 An example of where the OAS has played a role in settling disputes peacefully was in 1985 during the boundary dispute between Costa Rica and Nicaragua. The OAS formed a fact-finding committee to make a report and subsequently adopted a resolution requiring the parties to the dispute to negotiate.63 The most recent dispute was the Honduran crisis in which
59 Whereas the Electoral Commission declared Allassane Ouattara winner of the election, incumbent President Laurent Gbagbo refused to cede power after the constitutional court ruled out some results from Ouattara strongholds. hO Supra note 14. Raila Odinga had become the prime minister after the mediation efforts stopped the post election violence in Kenya. 61 The agreement, known as the Glabal Political Agreement, was signed by President Robert Mugabe and Morgan Tsvangirai in September 2008. By it, Mugabe became the president while Tsvangirai became the prime minister in the new coalition government. 62 Supra note 10, p. 731 63 Ibid
27 the military ovetihrew President Manuel Zelaya and a constitutional crisis ensued. The efforts at resolving the dispute, however, did not bear fruit and President Zelaya could not be restored to power.64
(c) The Arab League
The Arab League was formed in 1945 with the aim of increasing cooperation between Arab states. The League, has, however, not been very active in efforts to resolve disputes between its members through peaceful means. In most cases, conciliation has been the most used approach. The most outstanding achievement of the organization is arguably the creation in 1961 of an Inter-Arab Force to keep peace between Iraq and Kuwait.65 The League also appointed committees to deal with the 1963 Algerian-Moroccan and Democratic People's Republic of Yemen-Yemen Arab Republic boundary disputes.66
3.1.2. THE USE OF FORCE The use of force in the settlement of international disputes is strictly regulated. Force, according to most international instruments, ought only to be resorted to when all other possible avenues of peaceful dispute resolution have failed to bear fruit. Article 2(4) of the UN Charter out rightly discourages the use of force by states in settling international disputes. 67 The principle established by this provision of the Chatier is now regarded as part of international customary law and is binding upon all states of the world.68 However, international law recognizes cetiain instances during which force may be used. This include self defence of a nation's territory and right to self determination, the protection of nationals abroad and intervention on humanitarian grounds.69 In each of the foregoing cases, it is also important to note that force will only be allowed to the extent required to achieve any of the stated goals. The force used must not be excessive.
64 The OAS had been firm in its condemnation of the change of government, which international organizations including the UN, termed unconstitutional. 65 Supra note 18, p. 732 66 Ibid 67 Supra note 1 68 Supra note 21, p. 781 69 See ibid, pp 777-822, for a general discussion on how the use afforce will be justified in each fthe mentioned grounds.
28 In modern times, states and organizations have intervened to stop human rights violations in several states. Whenever crimes against humanity have been committed in particular states either by the government or by groups within the states the international community has been at hand to intervene. Specific instances include the intervention in Ivory Coast where UN soldiers and French soldiers have helped in ousting the regime of Laurent Gbagbo which had been accused of extensive crimes against humanity. The intervention in Libya, where a number of Western countries have launched a military assault against Libya strongman Muammar Gaddafi, is also another instance of the initiatives where the international community has had to use force in order to halt the commission of crimes against humanity. 70
In Somalia, the situation has been such that urgent intervention is required. There have been calls for military intervention but none has been forthcoming so far. The Al Shabab insurgents have continued to commit heinous acts that amount to crimes against humanity yet no intervention, at least involving the use of force as the situations seems to require, have been made. 71
3.1.3. THE USE OF POLITICAL AND ECONOMIC SANCTIONS As it has been discussed in the previous chapter, sanctions have the objective of isolating or making it difficult for a government of group to achieve its economic and or political goals by imposing certain un-conducive conditions upon such a state or group. The sanctions may either take the nature of economic or political sanctions. Economic sanctions are imposed upon a state to, for instance, deny it donor aid or prevent it fi·om accessing the international market for certain commodities. Political sanctions may include the suspension of a government from certain regional or international bodies, agencies and organizations. Leaders may also be banned from visiting certain countries.
70 The military intervention in Libya was initiated by France, Britain and the US. The North Atlantic Treaty Organisation (NATO) joined the military campaign whose objective was to degrade Libya's military capacity in order to protect the civilians from continued attacks. 71 The a/ shabab are a branch of international terrorists' group al-Qaeda who control much of Somalia. The insurgents have taken advantage of the absence of an effective system of central government to take control of most of the country. They apply sharia law in dealing with arising cases and it is this system, coupled with their brutal way of responding to dissent and generally attacking innocent civilians, that has created the need for military intervention. The transitional government is itself incapable of curbing the group.
29 The purpose of sanctions in the light of crimes against humanity is to ultimately compel a particular government or group that is responsible for the perpetration of those crimes to stop acting in that manner.
3.1.4. THE INTERNATIONAL JUSTICE SYSTEM The use of international courts to settle international conflicts and to punish the perpetrators of crimes against humanity and other violations of human rights including genocide and war crimes has gained prominence in the recent years although it is a mechanism that has existed for a very long time in the history ofthe development of modern international law. Historians trace the first ever true international criminal court in 1474, when Peter von Hagenbach, a military ofticer appointed by Duke Charles the Bold of Burgundy, was tried and condemned to death before 27 judges of the Holy Roman Empire for atrocities against civilians committed by his troops. The trend before then was that each country made use of its local judicial mechanisms to handle crimes against humanity and other crimes committed during war such as genocide and war cnmes.. 72
In modern times the first war related criminal trials were held after World War II (1939-1945) by the victorious Allied nations to prosecute German and Japanese war criminals. In 1993 and 1994 the United Nations (UN) established war crimes tribunals to prosecute those who committed crimes during the civil wars in the former Yugoslavia and in Rwanda. 73 In 2002 the UN and the government of Sierra Leone established a jointly administered war crimes tribunal to prosecute atrocities committed during Sierra Leone's civil war. 74 There have been calls to establish a comi of that nature to prosecute perpetrators of crimes during the war in Cambodia in the 1970s.
In July 1998 UN delegates approved a statute to create a permanent International Criminal Comi (ICC) to try people accused of genocide, war crimes, crimes against humanity, and crimes of aggression. The ICC was designed to replace ad hoc tribunals of limited jurisdiction, such as those created to address the conflicts in the former Yugoslavia and in Rwanda. The
72 See M.N. Shaw, International Law, 4111 edn, (Cambridge University Press, 1998) at p. 745 73 Sapra note l32 74 1bid
30 ICC, with headquarters in The Hague, The Netherlands, officially came into being on July 1, 2002. This part will therefore discuss the nature and role of the special tribunals, particularly the Yugoslavian, the Rwandan and the Sierra Leonean tribunals. The International Court of Justice will also be discussed as far as resolving international disputes is concerned. The International Criminal Court will also be discussed as a major step forward towards the realization of international justice.
(a) THE INTERNATIONAL COURT OF JUSTICE
(i) Introduction
International Court of Justice, also known as World Court, is described in the UN Charter as the 'principal judicial organ' of the United Nations (UN). It was created in 1945 under the UN Charter as the successor to the Permanent Court of International Justice (PCIJ) under the League of Nations. It is a continuation of the PCIJ, functioning under virtually the same statute and jurisdiction, and dealing with the same line of cases. 75 The court functions in accordance with its own statute, which forms an integral part of the UN Charter. The tasks of the court are to decide legal cases between nations and to provide advisory opinions to the UN and its agencies on questions of international law. Neither private individuals nor international organizations may bring cases before the court. The court has its headquarters in The Hague, The Netherlands.76
All members of the UN are automatically parties to the court's statute. A nation that is not a UN member may become a party to the statute or use the court if it accepts conditions set by the UN and agrees to contribute to the expenses ofthe court.77
(ii) Organization of the Court
The court has 15 judges, each elected by an absolute majority of the Security Council and the General Assembly, voting independently of each other. The 15 judges are:
75 Supra note 85, p. 746 76 ' Article 22, Statute of the ICJ 77 Ibid
31 'Elected regardless of their nationality, from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognized competence in internationallaw.'78
The judges are elected for nine years and may be reelected.79 No two may be nationals of the same country. 80 A judge may be removed from the court only by unanimous vote of the other judges.81 They do not represent their countries but are elected on the basis of their knowledge of international law. The composition of the court is supposed at all times to reflect the main forms of civilization and the principal legal systems of the world. In any dispute, if no judge is of the nationality of a party to the case, that country may choose a judge to sit on the case. Nine judges constitute a quorum (the minimum number necessary to decide a case), and questions before the court are decided by a majority of judges present. The court elects its own officers and appoints its registrar and other officials.82
(iii) The procedure and operations of the court
The ICJ Statute provides for two ways through which disputes may be brought before the court. The first is by a special agreement between the parties in which they consent to submit the matter to the court. 83 The second is by a unilateral application by one party in the dispute. This can occur, for example, if the applicant believes that its adversary is obliged by the terms of a particular treaty to accept thejm:isdiction of the court in case of a dispute. Alternatively, nations that are parties to the statute may declare in advance their automatic acceptance of the court's jurisdiction for certain or all types of legal disputes. This declaration is known as accepting compulsory jurisdiction. If the parties to a dispute have filed such declarations, and if the dispute between them falls within the bounds of the declarations, then either party may bring the case before the court. The court renders judgments by applying international law as derived from treaties, widespread practices accepted as law (customs), and the general principles of law
78 Article 4 and 5, Statute of the ICJ. 79 Article 13 of the ICJ statute 80 Article 3, statute of the ICJ 81 A1ticle 18, statute of the ICJ 82 Ibid 83 A1ticle 36, statute of the ICJ
32 found in the major legal systems of the world. 84 The court may also refer to past judicial decisions and the writings of expetis in international law. The judgment of the court, which must contain the reasons for the .decision, is final and binding, and no appeal may be made. The UN Security Council is empowered to take measures to enforce the decision of the court if the parties to the dispute fail to enforce it themselves. The Security Council has never been asked to enforce a judgment, however, because states generally comply with judgments-although not always quickly or wholeheartedly.
The court gives advisory opinions on legal questions to the UN General Assembly, the Security Council, and other UN organs and specialized agencies that have been authorized by the General Assembly to ask for such opinions or whose constitutions so pennit.85 An example is the judgment of the court in 1962 that peacekeeping expenses in the Republic of the Congo (now the Democratic Republic of the Congo) and the Middle East constituted "expenses of the organization" to be paid by member states as appotiioned by the General Assembly. In the case of Reservations to the Genocide Convention, the couti stated that the object of the advisory opinions was to 'guide the United Nations in respect of its won action.'86 In the Western Sahara case, the co uti gave an advisory opinion regarding the nature of the territory and the legal ties therewith of Morocco and Mauritania at the time of colonization. 87
The role of the court, as can be seen from the above discussion, is mostly preventive. The court is a peaceful mechanism of reducing the potential for armed conflicts in that it seeks to resolve disputes peaceably. It employs international law in the judicial resolution of disputes.
(b) SPECIAL TRIBUNALS
(i) The International Criminal Tribunal for the Former Yugoslavia (ICTY)
The International Criminal Tribunal for the Former Yugoslavia (ICTY) was established by the United Nations in May 1993 to prosecute individuals responsible for war crimes, crimes against humanity, and genocide committed in the territory of the former Yugoslavia. Although
84 Article 18 of the statute of the !CJ 85 Article 96(2) of the Statute of!CJ 86 1CJ Reports, 1951, pp. 15, 19 87 ICJ Reports, 1975, p. 12
33 originally set up to prosecute crimes resulting from the wars of Yugoslav succession (1991- 1995), the tribunal has also served to try crimes that occurred in the late 1990s as the result of a separatist movement in Kosovo, a province in southwestern Serbia. The tribunal convenes at The Hague, Netherlands. It consists of 14 judges from different nations and has the power to impose a maximum sentence of life imprisonment.
Background to the ICTY and Its Activities
The war in the former Yugoslavia began in July 1991 after Slovenia and Croatia-two of six republics in the country-declared their independence. Other republics followed, touching off a conflict that lasted for more than four years. During the war, between 100,000 and 250,000 people were killed and an estimated 200,000 were wounded. Evidence surfaced that many were the victims of ethnic cleansing-efforts to remove all members of a particular ethnic group from territories occupied by other ethnic groups. Thousands of people were found in mass graves near Srebrenica, a town in eastern Bosnia and Herzegovina; Vukovar, a city in eastern Croatia; Prijedor, a city in northwestern Bosnia and Herzegovina; and Sarajevo, the capital of Bosnia and Herzegovina. There was also evidence of rape and other atrocities. 88
The separatist movement in Kosovo began in 1991 when ethnic Albanians, who made up more than 90 percent of the province's population, started to agitate for secession from Serbia. In 1992 Serbia and Montenegro proclaimed themselves the successor state to the former Yugoslavia and took the name Federal Republic of Yugoslavia (FRY). In 1996 a militant separatist group known as the Kosovo Liberation Army (KLA) began attacks on Serbian police forces in an attempt to gain independence. In early 1998 the Serbs, with the help of FRY army units, began a major crackdown on the separatists. In March 1999, after settlement negotiations proved unsuccessful, members of the North Atlantic Treaty Organization (NATO) began a campaign of air strikes on the Federal Republic of Yugoslavia. Hundreds of thousands of ethnic Albanians were displaced from Kosovo and many refugees repotied mass killings and other atrocities89
ss Robert Bideleux, A hist01y ofEastern Europe: crisis and change, (Ian Jeffries, 2nd edition, 2007) 89 Mestrovic, Stjepan G. Genocide After Emotion: The post emotional Balkan War. London and New York: (Routledge 1996). p. 7
34 Among the many individuals indicted by the ICTY have been several high-ranking members of the Bosnian Serb leadership, including Radovan Karadzic, former president of the Bosnian Serb Republic, and Serbian army general Ratko Mladic.
The ICTY has however encountered challenges in discharging its mandate. Key among these has been the lack of cooperation from most of the governments in the region where the conflicts occurred, making it difficult for the tribunal to apprehend the people it indicted. The first trial of the tribunal opened in May 1996. In 1998 the tribunal became the first international court to find an individual accountable for rape as a war crime. In mid-1999 the tribunal set another first by indicting an active head of state, President Slobodan Milosevic of the FRY. The tribunal charged Milosevic and four other top Serbian or Yugoslav officials with war crimes and crimes against humanity based on alleged atrocities in Kosovo. Specifically, the indictment charged the five individuals with conducting a "campaign of terror and violence directed at Kosovo Albanian civilians." In 200 I the Serbian government, responding to international pressure, extradited Milosevic to the war crimes tribunal, despite a ruling by the Yugoslav Constitutional Court to stop his handover. 90
Later that year the tribunal found a former Bosnian Serb regional commander, General Radislav Krstic, guilty of genocide for his role in the massacre of thousands of Bosniak (Bosnian Muslim) men and boys in Sreb.renica in 1995. The conviction was the first time the tribunal established that genocide was committed during the war in Bosnia and Herzegovina. An appeals chamber of the tribunal overruled that verdict in 2004, changing Krstic's conviction to ·'aiding and abetting genocide." The 2004 ruling also established beyond doubt that the massacre at Srebrenica was an act of genocide, conclusively laying to rest all claims that no genocide had occurred in Bosnia.
In 200 I the tribunal also convicted three former Bosnian Serb soldiers of systematically raping and torturing Bosniak women and girls, the first time individuals were convicted of rape as a crime against humanity. The court found that Bosnian Serb soldiers used rape as "an instrument of terror" and convicted two of the men of enslavement for forcibly detaining women and girls
"'Ibid
35 as sex slaves and loaning or selling them to others for sexual abuse. The trial established sexual enslavement as a war crime.
In late 200 I the tribunal charged Milosevic with additional war crimes for his role in the forcible removal of the majority of non-Serbs from parts of Croatia in 1991 and 1992 and from large areas of Bosnia and Herzegovina from 1992 to 1995. He also faced a charge of genocide in connection with the killing or inhumane confinement of thousands of Bosniaks, Bosnian Croats, and other non-Serb civilians during the war in Bosnia and Herzegovina. Milosevic's trial before the tribunal began in February 2002 but was repeatedly delayed because of his poor health. Milosevic died in March 2006 before the trial could be completed.
This tribunal will perhaps remain unforgettable in the history of the development of international law regarding the trial of individuals for crimes against humanity following its invention and innovation of the legal concepts of Joint Criminal Enterprise and the Command Responsibility, respectively. These two principles, which remain contentious to modern times, have become the subject of intense legal debate as far as their use in international war crimes trials is concerned. They form the subject of discussion in the next chapter of this work.
(ii) The International Criminal Tribunal for Rwanda
The United Nations Security Council established the International Criminal Tribunal for Rwanda in November, 1994.91 The tribunal was authorized to prosecute individuals responsible for genocide and other serious violations of humanitarian law during the 1994 civil war in Rwanda. Another express purpose of the tribunal is to encourage the process of national reconciliation in Rwanda and the maintenance of peace in the region. The tribunal convenes in Arusha, Tanzania, and consists of nine trial judges from different nations, elected by the UN General Assembly. The tribunal shares appellate judges with the International Criminal Tribunal for the former Yugoslavia. The Rwanda tribunal has had problems apprehending suspects, and has been hampered by administrative and financial problems.92
91 This was done through resolution 955 of that year. 92 An example is that of former cabinet minister Felicen Kabuga who has been on the run since the ICTR issued a warrant for his arrest.
36 The civil war in Rwanda began in 1994, after the death of Rwandan president Juvenal Habyarimana sparked fighting between the nation's two chief ethnic groups, the Hutu and Tutsi. Habyarimana was a Hutu. 93 An estimated 500,000 to I million people, mostly Tutsi, were killed during the war. The Hutu"dominated Rwandan army was accused of genocide against the Tutsi.
The first trial stmted in October 1996. In May 1998 former Rwandan Prime Minister Jean Kambanda pleaded guilty to multiple charges of genocide and crimes against humanity and was sentenced to life imprisonment. Jean-Paul Akayesu, who was tried and found guilty of genocide and crimes against humanity, was also sentenced to life imprisonment. Another man, Omar Serushago, was sentenced to 15 years in prison for similar crimes. These convictions marked the first instances of an international court finding individuals guilty of the crime of genocide.
(iii) The Special Court for Sierra Leone
The UN and the Sierra Leone government jointly established a war crimes tribunal, the Special Court for Sierra Leone, in 2002, to try individuals who had committed atrocities during Sierra Leone's civil war, which lasted from 1991 to 2000.94 What sets this tribunal apart from the two that have been discussed above is that while the two tribunals; for the former Yugoslavia and Rwanda, are administered by the UN and composed of UN-appointed judges and prosecutors, the Special Court is jointly administered by the UN and the Sierra Leone government and contains a mix of Sierra Leonean and international judges. The court has jurisdiction over serious violations of international humanitarian law and certain Sierra Leonean criminal laws. To avoid placing an undue burden on the court, its jurisdiction is limited to crimes committed since November 30, 1996.
Sierra Leone's civil war began 111 1991 when a rebel group, the Revolutionary United Front (RUF), launched a violent campaign against the government. Tens of thousands of people were
93 Supra note 2 " The Sierra Leone Civil War began on 23 March 1991 when the Revolutionary United Front (RUF), with support from the special forces of Charles Taylor's National Patriotic Front of Liberia (NPFL), intervened in Sierra Leone in an attempt to overthrow the Momoh government.
37 killed in the ensuing war, in which rebel forces terrorized the country by raping and mutilating thousands of civilians, often hacking off their limbs. Rebels also abducted children and forced them into combat. The civil war ended in 2002.95
In 2003 the Special Court issued its first indictments. The court charged seven people, including rebel leader Foday Sankoh and Internal Affairs Minister Sam Hinga Norman, with murder, rape, extermination, sexual slavery, conscription of children into an armed force, and other crimes. Sankoh died in July 2003 while in UN custody.96
3.4 THE DEGREE OF SUCCESS IN DISCHARGING THE ROLE
The extent to which the above discussed judicial mechanisms have been successful in playing their role in tackling crimes against humanity through resolving disputes peacefully through judicial means (as is the case for the International Court of Justice), and through the punishment of the perpetrators of crimes against humanity (as is the case of the tribunals and the ICC), to ensure that the culture of impunity is brought to an end, can at best be described as one of mixed results. The results are mixed because whereas there have been challenges that have caused the international judicial- mechanisms to fails in achieving certain desired results, there have been at the same time major milestones in these efforts.
There are major challenges that stand in the way of the realization of the goal of curbing crimes against humanity. Most of these challenges hinge on the principles of state sovereignty and non-interference in the internal affairs of a state to the lack of proper facilitation and the dynamics of world politics. These are what will form the subject of discussion in the next chapter. The establishment of the ICC will definitely mark a change in the course of the dispensation of international criminal justice. It is distinct in nature considering that it is the first ever permanent international court for criminal trials. As the ICC continues to curve a niche for itself in the realm of punishing the perpetrators of genocide, war crimes and crimes against humanity, it can be hoped that the challenges will be reduced along the way and that it
950n 18 January 2002, President Kabbah of Sierra Leone declared the eleven year long Sierra Leone Civil War officially over. 96 Foday Sankoh who was the indicted leader of a 10-year rebel terror campaign in Sierra Leone that made a vicious trademark of hacking off the hands of countless helpless civilians, died of natural causes in United Nations custody at a hospital in the West African nation's capital.
38 will be firmly established as a universally agreeable mechanism of handling cases of that nature. That way, the extent of the role of the international community in fighting crimes against humanity would have been given a big boost.
39 CHAPTER FOUR
4.0. THE CHALLENGES AND OBSTACLES 4.1 INTRODUCTION
It has been observed in the last part of chapter three that the efforts by the international community to tackle crimes against humanity have not been entirely successful. The nations of the world, through the regional and international organisations and agencies, have faced a number of difficulties that have made it difficult to achieve the objective of completely phasing out crimes against humanity from the face of the earth. It should be recollected that these challenges are not young in age; they have lived for long with the history of mankind. The first prominent instance perhaps lies in the failures of the League of Nations. The League of Nations was the predecessor of the United Nations, and was established as the first ever international based body to prevent the start of another war akin to the First World War. It establishment was intended to promote the resolution of world disputes peacefully and to ensure that peace and tranquillity prevailed. This aim was never realised. The Second World War stands as a manifestation of this failure. The creation of the UN was an attempt to address the shortcomings of its successor. The failures of the League of Nations, and the failures of modern day institutions and organisations in preserving world peace or specifically addressing crimes against humanity, are all founded in certain challenges and obstacles that stand in the way of their efforts to achieve world order and peaceful resolution of disputes.
Yet the challenges and obstacles do not end there. They continue to haunt the international community up to the stage where attempts are made to bring to justice the perpetrators of crimes against humanity. The activities of the tribunals that have been created in the past to address different crimes in their areas of jurisdiction are all characterised by certain difficulties and hurdles. The International Criminal Court can be described as having teething problems even at this time as it tries to establish itself firmly at the world stage as the first ever permanent international criminal court.
40 The challenges that the international community faces through its institutions and agencies are multifaceted. Some of them are found within the concepts that are founded in the accepted principles of international law itself; for instance, certain states plead sovereignty to protect their poor human rights violations records. As undesirable as that may be, sovereignty is a concept firmly established in ·international law. Others are a result of the administrative, infrastructural and personnel challenges that are encountered by the agencies and institutions. Yet others are borne out of the fact that some concepts of international criminal law remain contentious and underdeveloped. This part will therefore attempt to highlight and assess the various challenges that have stood in the way of the international community's efforts in fighting crimes against humanity. The challenges that this part will discuss include;
(a) State Sovereignty (b) Executive Immunity (c) Non-membership by some states (d) Ideological differences and world politics (e) Contentious legal principles (f) Inadequate personnel and the need for state assistance.
4.1. STATE SOVEREIGNTY Sovereignty is the fact of having independent and supreme authority over a given geographic area or territory. It expresses internally the supremacy of the governmental institutions and externally the supremacy of the state as a legal person.97 What is clear ti·om this definition is that sovereignty attaches to a territory. Where there is no territory there cannot be sovereignty. A state can only claim sovereignty over a given territory. It is the recognition of this essential fact that must have led Huber. J to note as follows in the Island ofPalmas case;98
'Sovereignty in relation to a portion of the surface of the globe is the legal condition necessary for the inclusion of such portion in the territory of any particular state.'
97 See M.N. Shaw, International Lmv. 4"' edn, (Cambridge University Press, 1998) p. 331. See also Oppenheim's International law (Eds. R. Y. Jennings and A.D. Watts), 9"' edition, London, 1992, chapter 5 98 2RIAA, pp. 829, 838(1928)
41 Therefore, a state is sovereign because in enjoys supremacy within its territory and is recognised on the outside as an independent legal person. Many international instruments have recognised the concept of state sovereignty. Article 2(7) of the United Nations Charter prohibits the interference with the domestic jurisdiction of a state while article 2( 4) forbids the use of force against the territorial integrity and political independence of states.99
The concept of state sovereignty, notwithstanding the noble and justifiable grounds upon which it is founded, has evolved to become the opaque wall behind which states that violate human rights through, for instance, crimes against humanity, hide in order to avoid punishment and to perpetuate the culture of impunity. The political elite in ce1tain countries have mastered the art of whipping up nationalistic emotions by portraying attempts of foreign intervention in order to ensure the prevalence of a human rights culture, as an affront on the nation's sovereignty. Others have argued that as sovereign nations, they have the right to self determination and that therefore foreign intervention in their domestic affairs should not be entertained. The examples of where sovereignty has been used a ground for states to escape their international human rights obligations abound across the world. The most pronounced cases are in Africa. ln Zimbabwe for instance, president Robert Mugabe, while allowing the use of excessive force and the commission of a series of other crimes against humanity on the civilians by the police and military, sought tom portray it as a second struggle for independence. The Zimbabwean government inculcated the notion that the struggle was not between the ruling party and the opposition, rather, they claimed, it was a war between patriots seeking to defend the hard won freedom and the proteges of the West who were mere puppets for furthering the ideals of colonialism. 100 The same cliche has been used in Sudan. The indictment of Sudanese president by the Hague based International Criminal Court has been portrayed by the domestic authorities
99 Article 2(4) reads: 'All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations,' while mticle 2(7) provides that nothing contained in the Charter shall authorize the united nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the members to submit such matters to settlement under the charter; but the principle shall not prejudice the application of enforcement measures under Chapter VII. 100 President Mugabe and his ZANU PF party claimed that the Movement for Democratic Change (MDC) party and its presidential candidate, Morgan Tsvangirai, were western puppets who wanted to advance foreign interest in Zimbabwe. They used this as a justification for waging violent attacks on opposition supporters.
42 as an affront on the independence and sovereignty of Sudan. The situation is heightened by the fact that he is the president of the country. 101
The recently dethroned president of Ivory Coast, Laurent Gbagbo, also staged a propaganda campaign in which he told the citizenry that the attempts to remove him from power were patt of a foreign plan to promote neo-colonial interests in sovereign Ivory Coast. As if to vindicate his assertions, he cited the presence of foreign soldiers, including those from France. 102
The Libyan case has attracted similar sentiments. The incumbent government has sought to portray the efforts by the international community led by France, Britain, the US and the Nmth Atlantic Treaty Organisation (NATO), as a ploy by the western powers to promote their interests in Libya. 103 Kenya has also witnessed similar sentiments following the decision of the ICC to pursue the Kenyan post-election violence case. 104 The court has come under attack as undermining the sovereignty of the country. A motion was in fact brought to parliament seeking to kick-start a process through which Kenya would pull out of the ICC. 105
Even as that is the case, it is evident that the international institutions that are accused of interfering with national sovereignty are in themselves bound by strict rules that require them to respect national sovereignty. The institutions and agencies operate on an understanding that the respect for all states must be kept active at all times in all their operations. For instance, the Rome Statute gives priority to domestic judicial institutions before the ICC can be called in to intervene. According to the Rome Statute, the ICC can only intervene in domestic cases within its jurisdiction when it has been shown that the state in question is unwilling or unable to try the
101 Omar a! Bashir, the president of Sudan, became the first sitting president to be indicted by the ICC when in March 2009; the ICC issued the first arrest warrant for him on seven counts of war crimes and crimes against humanity. 102 France was the colonial master of Ivory Coast, so that by raising claims of foreign interference and neo colonialism, the Gbagbo government in essence wanted to evoke the memories of the independence struggle and by that rally support for themselves and escape their political and criminal responsibility while at the same time justifying their attacks on innocent civilians. 103 The foreign powers chose to intervene in the Libyan crisis following what was termed as the commission of crimes against humanity. The aim of the intervention, NATO has stated, is to degrade Libya's military capacity so as to make it incapable of using force against protesters who want a change of regime. 104 The ICC indicted six individuals it accuses of bearing the greatest responsibility for the violence. Their indictment caused an uproar especially at the political level, with the icc being accused of interfering with the running of domestic affairs to further the intentions of certain politicians working in cahoots with foreign powers. 105 A notice of motion in parliament seeking to repeal the International Crimes Act so that Kenya is not obligated to implement the Rome Statute was issued by Chepalungu M.P, Isaac Ruto on 13-12-2010. The motion was however thrown out of parliament on December 21, 201 0, on grounds of being unconstitutional.
43 suspects using its local domestic mechanisms. It is for this reason that the ICC intervened in Kenya. Two bills seeking to establish a local tribunal to try the post election violence suspects in Kenya were shot down by par"liament which advocated for The Hague based court. 106
4.2. EXECUTIVE IMMUNITY
The question of how to deal with individuals who enjoy the trappings of power such as immunity from civil and criminal proceedings in their respective domestic jurisdictions has also posed a challenge to the activities of the international institutions and agencies charged with role of fighting crimes against humanity, especially those that seek to apprehend the perpetrators of such crimes.
The challenge that has been posed can be looked at in a number of ways.
First, since these individuals enjoy immunity from both civil and criminal proceedings, it is not possible for them to face charges within their domestic jurisdictions. The local judicial mechanisms cannot bring them to book because it would be unlawful to do so. In most cases it would be unconstitutional since most immunity clauses are contained in the constitutions. In Kenya for instance, the Constitution protects the president from any civil and criminal proceedings against him during the tenancy of his presidency. 107
Second, the domestic authorities, on whom most international institutions and agencies depend for the apprehension of the perpetrators of international crimes, cannot offer such assistance. Other than the fact that the individuals wield power in their countries as to direct the conduct of their juniors, such as police officers, they are also insulated by the law. The difficulties in
106 Kenya therefore invited ICC to intervene in the trail of the postelection violence suspects by showing its unwillingness and inability to create a local judicial mechanism. The ICC intervenes in cases where a state party of which the accused is a national, is unable or unwilling to prosecute. Hence the term 'complemenatarity', which makes the ICC a court of last resort. Where a national of, say Sudan, is accused, then the ICC will only have jurisdiction over the crime where there is an unwillingness or incompetence of Sudanese judicial institutions to prosecute. The reason this principle came into existence was the fear on the part of many people that the ICC would substitute domestic judicial institutions. 107 According to article 143 of the Constitution, criminal proceedings shall not be instituted or continued in any court against the president or a person performing the functions of that office, during their tenure of office. Civil proceedings also shall not be instituted in any couti against the president or the person performing the functions of that office during their tenure of office in respect of anything done or not done in the exercise of their powers under the Constitution.
44 arresting president AI Bashir of Sudan are all illustrative of this fact. 108 The law regarding executive immunity vis a vis the enforcement of human rights was redefined when former Chilean dictator was arrested. Pinochet's attorneys argued that he was entitled to immunity from prosecution first as a former head of state, then under the 1978 amnesty law passed by the military junta he headed. 109 The House of Lords rejected this contention and held that some international crimes, such as torture, could not be protected by former head-of-state immunity.
4.3.NON-MEMBERSHIP BY SOME STATES.
Not all countries belong to the existing international bodies, institutions and agencies whether regional or global. Different countries have different reason for refraining from the activities of these organisations. In Africa for instance, Morocco is not a member of the African Union. At the international level, the US, China and Russia are not members of the International Criminal Court.
The effects of these upon the performance and efficiency of these agencies and institutions cannot possibly be down played. It ought to be remembered that one of the reason why the League of Nations failed in preventing the Second World War was that it lacked universality given that some world powers, including the United States, were not members. The absence of the US and China in the ICC, for instance, means that the court might have financing challenges since the courts resources are form the members contributions. The other implication is that such countries might refuse to cooperate with the court when called upon to do so. They would cite their non-membership as a reason for their non-cooperation. Sudan has already refused to cooperate with the ICC on the grounds that she is not a member state ofthe Rome Treaty.
The other, perhaps more dangerous effect of the non-membership by some states is that the court would be considered as targeting certain countries while leaving out others and treating them as sacred cows. Already, such debate has begun occupying the world diplomatic cycles.
108 Despite the issuance of three arrest warrants against the Sudanese president, he has not been arrested. The only possible chance of arresting him appears to be when he visits foreign states, an eventuality he has avoided by visiting only countries friendly to him. 109 There was al6-month legal battle in the House of Lords, the highest cowt of the United Kingdom. Pinochet claimed immunity from prosecution as a former head of state under the State Immunity Act 1978. This was rejected, as the Lords decreed that some international crimes, such as torture, could not be protected by former head-of-state immunity.
45 The fact that some countries are not members of the ICC yet they appear to spearhead the activities of the ICC in other jurisdictions has been the subject of severe criticism.
The United States has, in addition to not being a member of the ICC, taken measures to insulate its citizens from prosecution at The Hague. The measures climaxed with the passage of American Service-Members' Protection Act (ASP A) 110 The stated purpose of the amendment was "to protect United States military personnel and other elected and appointed officials of the United States government against criminal prosecution by an international criminal couti to which the United States is not party".
It authorizes the President to use "all means necessary and appropriate to bring about the release of any US or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court". This has led to the nickname The Hague Invasion Act, since such freeing of US citizens by force might only be possible through an invasion of The Hague, Netherlands, the seat of several international criminal coutis and the seat of the Dutch government.
Such actions do not portend well for the ICC. However, it is important to note that the Rome Statute provides for the court's intervention even in jurisdictions that are not members of the court. 111
4.4. IDEOLOGICAL DIFFERENCES AND WORLD POLITICS
The politics of the world and the differences in the ideologies of the countries of the world have brought challenges and obstacles to the operations of the international institutions and agencies in a number of ways. The operations of these institutions, as far as the fight on crimes against humanity is concerned, have been hindered in a number of ways.
First, the efforts have been said to target certain countries or ideological spheres. The coincidence of all the cases currently being handled by The Hague originating from Africa has
110 This is a United States federal la\V introduced as an amendment to the National Defence Authorization Act and passed in august 2002 by Congress. 111 The United Nations Security Council is empowered to refer certain situations to the ICC regardless of the membership status of any given country to the ICC. This is what was done in the case of Sudan, which is not a member state of the ICC.
46 been cited as proof that the court has its targets set on African leaders at the exclusion of all other regions. 112 It is for this reason that the African Union members have threatened to pull out of the Rome Statute en masse.
Second, the operations of the United Nations, especially the Security Council, have been subject to the powers that have veto control of the Council's decisions. 113 These countries in most cases differ on their take in certain international matters. These has caused the Security Council to lack a common stand on a number of issues, with the result that some decisions have remained at stagnant and unenforceable due to the lack of consensus on the part of the states. The lack of a single voice on such issues at the international level has been the cause of the continued violation of human rights in some jurisdictions. 114
4.5. CONTENTIOUS LEGAL PRINCIPLES
This is one of the biggest challenges that face the international justice system, particularly the International Criminal Court and the special tribunals that handle cases related to specific jurisdictions. The applicable legal principles have become the subject of hot debate because of the nature of international law; it is not comprehensively developed. The other reason that has made international legal criminal principles difficult to construct is the fact that the crimes entertained at the international courts and tribunals are of such a nature that they make it difficult to prove individual culpability. In this sense the countries of the world have had to develop generalised principles whose aim, it appears, is to ensure that the net is broad enough that one may not easily escape. The two legal principles that now form part of the international criminal justice system and which have stirred controversy are; (a) the joint criminal enterprise and (b) the command responsibility.
(a) The Joint Criminal Enterprise
"'The ICC has indicted the nationals of the Democratic Republic of Congo, Uganda, Kenya and Sudan. All the indicted persons are from African countries, yet, it has been argued, the crimes that fall in the jurisdiction of the court have been committed by other countries in other continents, such as the raging Middle East conflict. 113 The UN Security Council has five permanent members who have veto powers, the essence of this power being that no decision can pass unless all of them support it. These countries are the USA, the UK, France, Russia and China. 1 14The world powers have at times backed their allies and therefore failed to take appropriate measures in dealing with human rights violating regimes. 47 The Joint Criminal Enterprise is a legal doctrine that was first used by the International Criminal Tribunal for the former Yugoslavia to prosecute political and military leaders for mass war crimes, including genocide· and crimes against humanity that were committed during the Yugoslav wars that raged between 1991 and 1999. 115 This legal doctrine holds each member of a group individually liable for the crimes that are committed by a member of that group in the course of implementing their common plan of action. 116 It is founded on the presumption that it is almost not possible, without a certain degree of cooperation and coordination of actions, to perpetrate atrocities such as genocide or crimes against humanity. 117 Author Gunel Guliyeva remarks as follows about the meaning of this legal principle;
'Joint Criminal Enterprise (JCE), a form of criminal participation, is a concept that was established in the case law of the ICTY in order to deal with situations where the weight of other participants' contributions is no less than that of physical perpetrators and where the previously mentioned modes of participation do not fairly reflect "the moral gravity" of such contributions.'
Quoting the justification given by the ICTY Trial Chamber in the Tadic case, 118 Gunel notes as follows regarding the justification of JCE as a legal doctrine:
'To hold criminally liable as a perpetrator only the person who materially performs the criminal act would disregard the role as co-perpetrators of all those who in some way made it possible for the perpetrator physically to carry out that criminal act. At the same time, depending upon the circumstances, to hold the latter liable only as aiders and abettors might understate the degree of their criminal responsibility.'
The purpose of the JCE therefore, is to cast the net of criminal responsibility as wide as possible so that as many as possible of all those who planned a role in the commission of crimes against
115 Supranotes 101 and 102 116 Sapra note 132 117 Gunel Guliyeva, The Concept ofJoint Criminal Enterprise And ICC Jurisdiction( Casin, 2008) p.50 118 Tadic (Appeals Chamber), 15 July 1999, at p.l91.
48 humanity as far as the chain of causation can establish, are brought to book. The ICTY and the !CTR statutes never expressly provided for this form of criminal participation. This is one of the reason for which this doctrine has been criticized. John Laughland, in criticizing this doctrine, observes; 119 ' ... it is a form of criminal liability that differs from the definitions of liability laid down in the Statutes: Article 7 of the ICTY Statute and Article 6 of the ICTR Statute speak of planning, instigating, ordering, committing or otherwise aiding and abetting. All these forms of liability are governed by relatively stable jurisprudence in national jurisdictions: JCE is not.'
The other criticism that the JCE doctrine faces is that it is too vague. The vast nature of the doctrine has been said to deprive it of the ability to precisely and accurately hold persons for their crimes. Its wide base, it has been argued, has the potential to lead, and has in fact led, to the conviction of individuals whose culpability appears farfetched. JCE is therefore 'too vague to operate as a reliable indicator of criminal culpability.d20 Instances of where this weakness of the JCE has come into play were evident in the ICTY trials of Radovan Karadzic and later Slobodan Milosevic. 121 In both cases, the scope of the activities in which they were convicted of having participated was not only too wide but it also spanned a long period of time (a decade) and involved many people (described as known and unknown).
JCE, it has been argued, has been unnecessarily broadened from what it was initially intended to be. According to the ICTY, the doctrine was to be applied in small-scale mob violence where there is physical proximity between the perpetrators and a shoJi-time scale, and where there
119 See John Laughland, Conspiracy, Joint Criminal Ente1prise and Command Responsibility in International Criminallaw.(The Hague, 2009) p.J 120 Ibid 121 As John Laugh land comments, for instance, about the indictment of Radovan Karadzic, the other members of the joint criminal enterprise of which he was accused were said to include Hmembers of the Bosnian Serb leadership, members of Serbian Democratic Patty and Bosnian Serb government bodies at the republic, regional, municipal and local levels ... commanders, assistant commanders, senior officers, chiefs of units of the Serbian ministry of internal affairs, the Yugoslav people's army, the Yugoslav army, the army of the Serbian republic of BiH, the Bosnian Serb ministry of internal affairs, and the Bosnian Serb territorial defence and leaders of Bosnian Serb and Serb paramilitary forces and volunteer units". This is a vast number of people. In the case of Slobodan Milosevic, the joint criminal enterprise of which he was accused (an accusation upheld by the judges because it was on the basis of it that they agreed to joint his three separately issued indictments into one monster trial) was said to have sta1ted in late 1991 and spanned nearly a decade to the middle of 1999 involving "persons known and unknown", according to the prosecution.
49 may be grounds for saying that they could indeed share a collective guilt, the concept. 122 In modern times, the principle is now applied even in instances that involve mass-scale violence where it is difficult to establish a link between the perpetrators, the participants and the crimes. The ICTY made certain rulings about the JCE that throw the appropriateness of this doctrine into question. For instance in the Kvocka appeal, the tribunal stated; "A participant in a joint criminal enterprise need not physically participate in any element of any crime." 123 The tribunal further held that "JCE responsibility does not require any showing of superior responsibility, nor the proof of a substantial or significant contribution."124 In Brdjanin, it ruled that " ... the third category of joint criminal enterprise does not require proof of intent to commit a crime." 125 The Kvocka case is also notable for the ruling that " ... there is no specific legal requirement that the accused make a significant contribution to the joint criminal enterprise ... the contribution of the accused need not have been either substantial or necessary to the achievement of the JCE's objective"126 It is the nature of this doctrine as has been illustrated above that has made the law with regard to criminal culpability in international courts and tribunals with regard to crimes against humanity, war crimes and genocide remain relatively unstable. In the face of unceasing criticism, this remains a big challenge to the comis and tribunals.
(b) The Command Responsibility
The command responsibility doctrine was applied in 1945 in the case of General Yamashita. 127 Unlike the JCE which was not expressly provided for in the ICTY and ICTR Statutes, the command responsibility doctrine is established by both Statutes. It exists in the ICTY Statute as Article 7.3 and as Article 6.3 of the ICTR Statute. They are the same in their directive that a
122 Supra note 129 123 Kvocka appeal judgement, 28 Feb. 2005, par 99. '" Kvocka appeals chamber judgement, 28 Feb. 2005, par 104. '" Brdjanin, appeal chamber decision on interlocutory appeal. 19 March 2004, par 7 126 Supra note 132 127 General Tomoyuki Yamashita (188 -1946) was a general of the Japanese imperial army during World War II. From 29 October to 7 December 1945, an American militarv tribunal in Manila tried General Yamashita for war crimes relating to the manila massacre· and many atrocities in the Philippines and Singapore against civilians and prisoners of war, such as the Soak Ching massacre. and sentenced him to death. His case has become the leading precedent on the doctrine of command responsibility because he. was held responsible for the crimes committed by the soldiers under his command. This doctrine is also known as the Yamashita standard, after his controversial case.
50 commander bears criminal responsibility for acts committed by his subordinates "if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior had failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof."
The biggest shortcoming of this doctrine lies in the difficulties that come with holding one responsible for the acts of his juniors. The doctrine seeks to punish individuals for their crimes of omission, failing to act when required to do so. The doctrine, it appears, seeks to punish criminal negligence. On this score, then it would be argued that it is unfair to punish one for negligence as though he was responsible for the crimes themselves. This doctrine remains the subject of controversy and is one of the areas in which the law is yet to settle.
4.6.1nadequate Personnel and the Need for State Assistance
Most of the international organizations, institutions and agencies depend on the member states for the resources that facilitate their operations. The United Nations, for instance, depends on the contributions from its member states as the source of its revenue. The same is true of all other international organizations. The International Criminal CoUit depends on the member states for more than just financial contributions. The ICC does not have its own police force and it therefore depends on the members to assist in performing the functions that the police force would have done. This poses a number of challenges.
First, the realization of the objectives of these organizations and agencies appear to be hinged on the willingness of the state to cooperate. If the state is not willing, then the objectives may not be realized. If for instance certain countries refuse to give funding of to use their police force to apprehend individuals against whom warrants have been issued then the work of the court of such other international organization will be at a dead end. 128
128 The Sudan saga following the indictment of president Bashir is a perfect example. The Sudanese authorities have not arrested him. The fact that he visited Kenya and he was not arrested by- the Kenyan authorities who, under the Rome statute are required to do so, points at the fact of the unwillingness of some states to perform their obligations under the statute.
51 Second, the fact that countries of the world are endowed differently means that their contributions are also at a variance. Rich and economically powerful states will obviously contribute more than third world poor countries. This creates the possibility of certain nations holding the international bodies and institutions at ransom. As it is said, he who pays the piper calls the tune. The nations that contribute more are likely to exett some controlling influence upon the international body in question. There may be some blackmail in the nature of threatening to withdraw funding or even pulling out if specific conditions are not adhered to.
52 CHAPTER FIVE
5.0. OBSERVATIONS AND RECOMMENDATIONS
5.1. OBSERVATIONS The foregoing discussion discloses a number of observations about the role and functions of the international community in the· efforts to tackle crimes against humanity. It also discloses a number of facts about the nature of crimes against humanity and how they have been addressed over time. The observations that can be made out of this discussion can be summed up in the following manner.
First, crimes against humanity are heinous crimes the nature of which requires that the nations of the world concert their efforts in redressing. The reality of humanity and human rights is that the handling of crimes against humanity cannot be left in the hands of an individual state only. The international community, either in the form of regional or global organisations, has the obligation of rising up to the occasion and helping in addressing these crimes. At this point, it has to be recollected that the international community may either be constituted by global bodies such as the United Nations or regional organizations such as the African Union and the Organisation of American States. The justification of the international community playing a role in the redressing of these crimes lies in the fact of the universality of human rights. lt has been observed that the nature of human rights, at least from the naturalists' point of view, is that they are inherent in all human beings by viiiue of their being human. The rights cannot be granted by charter because to do so would mean that they can be taken away by the same charter. Since rights are universal, it therefore falls upon states to work towards the promotion of human rights through the fight on crimes against humanity. It is the duty therefore of all countries of the world to cooperate and help in ensuring that crimes against humanity are curbed across the globe. It should be noted that crimes against humanity are committed mostly in seasons of armed conflicts during which there are systematic attacks against civilian groups and populations. The role of the international community in fighting crimes of this type therefore is shaped in the manner in which it handles armed conflicts.
There are different ways through which the international community discharges its role in fighting crimes against humanity as seen in the manner it deals with armed conflicts. These
53 ways may be preventive or curative in nature. They are preventive if they seek to forestall the happening of an event or events that may amount to armed conflicts. The preventive role targets to encourage states and other parties to a dispute likely to turn into an armed conflict to resolve their dispute through peaceful and diplomatic means. There are a number of ways through which this is done and they include mediation and good offices, conciliation, negotiation and inquiry. The curative role is meant for situations where armed conflicts have already been started and what the international community does is to stop the raging conflict. The conflicts may be stopped either through peaceful means or the use of force when the circumstances so demand.
Where there have been armed conflicts, the causalities need help in order to help them regain normalcy in their lives. In this regard, the international community offers humanitarian assistance to such people. It may do so through organisations like the Red Cross Movement or the regional organisations such as the European Union. 129 After conflicts there is also the need to ensure that the perpetrators of crimes against humanity are brought to justice. The punishment of such persons, it has to be stated, is aimed at discouraging potential offenders by warning them about the possible consequences of their acts. Punishment also warns the offender in question by letting one know and go through the consequences of his or her actions. It is also an attempt at rehabilitating wrongdoers do that they do not repeat their crimes in the future. 130 The international community discharges this role through the establishment and supp01t to international courts and tribunals that have been formed for this purpose. Examples include the International Criminal Court and the tribunals on Rwanda, Yugoslavia and Sierra Leone. 131
The other key observation that emerges in relation to the international community's efforts in fighting crimes against humanity is that the role has not been entirely successful. The success of the role has been dependent on the effectiveness of the particular mechanisms that are put in place. There are a variety of mechanisms or channels through which the nations of the world seek to address crimes against humanity. These include diplomatic and peaceful channels, the use of economic and political sanctions and the use of the international justice system. The use
129 Supra note 34 130 Supra note 38 131 Supra note 40
54 of peaceful methods of dispute resolution has been shown to be the most desirable of all methods. The use of force is a mechanism that is strictly regulated and controlled by international law. States are only allowed to use force in certain extreme and deserving circumstances. Sanctions, both political and economic, have also been used in trying to penalise states, groups and individuals that are notorious for crimes against humanity. The international justice system is now getting properly established at the global stage. The operations of the tribunals that sought to address the crimes against humanity in Yugoslavia, Rwanda and Sierra Leone, and currently the International Criminal Court, indicate a growth towards universal acceptance of international jurisdiction in addressing crimes against humanity and other related crimes that are committed during war, such as genocide and war crimes.
The various mechanisms, it has been noted, are not without shortcomings. The concepts of sovereignty and national independence are part of these shortcomings. Some countries have pleaded national sovereignty and independence as an excuse to prevent intemational intervention in their affairs, some of which occasion the commission of crimes against humanity. International law has been shown as firmly recognising the concept of sovereignty and self determination. 132 Foreign nations are not entitled to interfere in the internal affairs of another state. The noble aim of these universally accepted principles is that they seek to ensure that states deal with each other on an understanding of respect and equality. However this aim appears to have become the prey of abuse by predatory human rights violating regimes in the world. Such regimes hide behind the curtain of sovereignty and national independence to prevent the intervention of the ·international community through its agencies and institutions. The example of Sudan where the indicted president has not been arrested stands as a case in point. Ivory Coast and Kenya have also been named as instances of where the notions of sovereignty and autonomy have been raised when the countries have faced the possibility of international intervention in their affairs. Closely related, though distinct from the concept of sovereignty, is the executive immunity granted to cet1ain officers holding particular official positions in their respective states. The immunity aims at protecting such individuals from criminal and civil proceedings during the subsistence of their terms of office. Although the Rome Statute, for instance, declares that the immunity that an individual enjoys in his or her
132 Supra notes II 0, Ill and 112
55 home country shall not be a bar for prosecution at the ICC, there are still questions that arise with regard to how domestic immunity granted by national law to certain persons can be reconciled with the need for state co-operation and assistance in dealing with crimes against humanity. How, for example, can the police force of country X arrest the president of their country on an ICC issued warrant when their domestic law protects such a president from prosecution? The government of Sudan cannot, as a matter of illustration, arrest the president, Bashir, even though he has been indicted by the ICC, because under domestic law, he enjoys immunity. The domestic police force would have committed a crime under the national law if they arrested him. \'3'
The fact of non-membership of some states in international bodies and institutions are also a pull-back to the attempts of such organisations and institutions in their fight on crimes against humanity. It has been observed that the fact of non-membership by some states deprives the international organisations and. institutions of not only the needed funding but also of the equally imp01tant credibility and acceptance. The problem gets worse when the countries in question are super powers such as the US and Russia or China. It can be recollected, for instance, that the failure of the League of Nations was pattly due to the fact that some countries such as the US were not members then. In the present times, the chances of the US, for instance, cooperating with the International Criminal Cowt appear to be minimal considering the fact that the US is not only a member state to the ICC, but that she has also gone forward to take measures that seek to secure her citizens from prosecution at the Hague based ICC. 134 Such activities obviously do not auger well for the functioning of the court.
The agencies, institutions and organisations that the international community uses to discharge its role as far as the curtailment of the commission of crimes against humanity goes are mainly dependent on the member states for all forms of sustenance, including for financial requirements. These bodies are therefore dependent on the co-operation and support of the member states in order to effectively discharge their mandate. Where this is not forthcoming, then the result will be that the activities of the body in question may be grossly hampered. The idea of getting funding from the member states is not in itself completely bad. In any case it is
133 See notes 120, 121 and 122 above 134 Supra note 123
56 perhaps the most straightforward and easily justifiable source of funding for these bodies. The reality, however, that the member states contribute in different proportions depending on the economic abilities of the state in question is what portends challenges for these organisations. The differences in the percentages of contribution may lead to assumptions that some countries have some greater degree of command and control over the body in place. The countries that contribute more than others may have some authority over the international bodies and this authority may be used to influence the operations of these bodies towards certain directions. The threat to withdraw funding is arguably the ultimate weapon of blackmail. 135
The other observation that emerges from the findings of this work is that despite the apparent development of the international justice system and its growing role in world international criminal law matters, the substantive law that the international courts and tribunals ought to apply is yet to gain universal acceptance. There are contentious legal doctrines and principles whose use in the trials of persons accused of crimes against humanity, genocide and war crimes has attracted intense and long running criticisms. The notable doctrines in this respect are the Command Responsibility doctrine and the Joint Criminal Enterprise doctrine. The two remain a subject of debate as to their appropriateness and applicability in cases of war crimes, genocide and crimes against humanity. The Command Responsibility doctrine applies to hold a commander or superior responsible for the criminal deeds of his juniors in instances where the crimes could have been prevented by the commander or superior issuing orders against their commission. 136 The Joint Criminal Enterprise, on the other hand, has the effect that an individual will be held culpable for the crimes committed by his associates in a common or collective plan of action that aims to orchestrate crimes against particular groups. These two doctrines have been attacked for being too wide and vague. The JCE has been accused of casting a net too wide as to incriminate individuals who may not have played a direct role in the commission of the crimes. It has been derided as the doctrine of Guilty by Association. The Command Responsibility doctrine on its part has earned criticism for holding persons criminally liable for acts that they may not have committed or reasonable been capable of
135 A state may choose to severe its financial support for an international organisation or agency, such as the International Criminal Court; if for instance, its interests are not being safeguarded. 136 Supra note 140
57 averting. These two doctrines are the most contentious yet they are the keys to unlocking the question of criminal patticipation hence criminal liability of individual suspects.
5.2. RECOMMENDATIONS The above observations disclose the need for cettain reconsiderations and reforms where relevant. The recommendations that follow attempt to address the hurdles that stand in the way of the international community's efforts to fight crimes against humanity especially in Africa. They are founded upon the difficulties that have been disclosed from the assessment of the role of the international community with regard to these crimes and the challenges that have been advanced as facing the various mechanisms that are used in the performance of this role, such as the International Criminal Court.
First, it is necessary to develop a system that is all inclusive so that as many states of the world as possible (hopefully all) can join and participate actively and on an equal standing with each other, in their eff01ts to combat crimes against humanity. The challenges that come with the non-membership of some states have already been alluded to above. 137 It is for this reason that all efforts must be made to ensure that as many countries as possible, if not all, join these organisations that have a focus on the war on crimes against humanity. This can be done through employing certain techniques. For example, the failure of a state to become a member of an international body or organisation should be used as a ground to deny it some rights and privileges that come with the organisation or body. Such states must not be permitted to enjoy the advantages of membership. The advantages as seen in the rights and privileges must only come as a result of a state being a member in a given international body. An example in point is the reserving of positions in international bodies and organisations to the nationals of member states only so that a state that is not a member cannot benefit from having its nationals given appointive or elective positions in such bodies.
The denial of aid and other assistance that comes from particular bodies would also be a practicable measure towards ensuring that a state is compelled to join any given international organisation or body. The ultimate goal is to ensure that the whole globe is under a single,
1'7' Supra notes 123, 147
58 broad-based and effective system that would help fight these crimes with one voice. It would also help to eliminate the conception that some states are above others and that they are being treated as sacred cows.
Second, the international bodies that deal with human rights including their violation need to be granted greater and compulsory jurisdiction. This would assist such bodies to operate even in countries that have failed to join and become members. The tendency by some states of escaping membership so that they can claim non-membership as the reason why the international community should not intervene in their affairs even where crimes against humanity are being committed would, by this manner, be avoided. This is closely related to the issue of state sovereignty. There is need to reconcile the need to respect the sovereignty of a state and the international obligation of states to protect the rights of all human beings. Perhaps the point of departure would be that human rights supersede the sovereignty of any state. The principles of international law relating to sovereignty should therefore reflect the equally important role that states have to promote and protect the human rights of persons both within and outside their jurisdictions.
The dependence of the international organisations on states for financial and other forms of assistance has proven to be a major setback in the functioning of these bodies. This therefore creates the need to heighten the autonomy of these organisations by reducing their dependence on the member states. If the international bodies are not dependent on funding from individual states then the potential of external control and partiality will be minimised. The question that then arises is as to how this is possible. Whereas obtaining funds independently may be difficult for these organisations, at least for the start, measures can be put in place to ensure that these international bodies have their own income generating activities and investments that help them to sustain and facilitate their functioning. Penalties may be imposed upon member states and individuals, for example, as fines in the comts, in order to earn revenue while at the same time discharging the responsibilities of the bodies. Since the support required by these international bodies and institutions is not only financial in nature but also involves other forms of support, the solution can also lie in ensuring that these bodies are given the necessities for which they resmt to the states. The International Criminal Court (ICC) is a perfect example of an institution where this recommendation can work. This court depends on the member states for the services
59 of the police force. The solution therefore lies in establishing an independent and full time police force that works for the court in instances where it is required. When this is done, the coutt will be in a better position to expedite its cases because then it would not face the challenges of having to rely on a country's willingness to cooperate with it.
The other recommendation comes with the use of contentious legal principles. The substantive law on the culpability of individuals in international courts and tribunals concerning crimes against humanity has been shown to be unsettled. The legal doctrines of Joint Criminal Enterprise and Command Responsibility remain controversial areas of law. They have been criticised for being inappropriate in proving one's criminal participation in crimes against humanity. Their weakness emanates from the fact that they stretch criminal responsibility to include those who may not have directly participated in the commission of those crimes. Over the years, legal scholars have portrayed the cases where these principles have been applied as mistrials.
There is therefore doubt as to whether justice has been done by the application of these doctrines. In light of these facts, there is need for legal reforms to review the place and application of these two doctrines. The Rome Statute ought to be amended in order to provide for a clearer and more acceptable demarcation and allocation of criminal responsibility. There must be a distinction between the penalties meted out on persons who directly and personally committed the crimes on the one hand, and those whose only wrong is that they failed to direct their juniors against committing the crimes, or to stop committing the crimes, on the other hand.
60