Fighting impunity through prosecution of international crimes in Africa
Date
2019
Authors
Asaala, Evelyne Owiye
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Abstract
Over the years, it has become increasingly difficult to sustain any discourse on the challenges facing Africa without mentioning impunity for atrocious acts. Impunity has habitually characterised political instability on the continent and often led to civil unrest. Impunity continues to expose African civilians to horrendous human rights violations, such as war crimes, genocide, crimes against humanity, torture, rape, extra-judicial executions, corruption and autocratic rule. Arguably, in the last few decades, almost all African countries have experienced conflicts that resulted in serious human rights violations. Unfortunately, these atrocities were met in the past with either a total lack of accountability or only half-hearted measures. This necessitated a regional response in line with principles of the African Union (AU) that, inter alia, underscore good governance, respect for human rights, and accountability for past crimes. Several initiatives to root out impunity were introduced both at the regional and international level.
The initiatives at the international level entailed setting up a number of ad hoc tribunals on the African continent to undertake prosecution. The eventual adoption and entry into force of the Rome Statute establishing the International Criminal Court (ICC) raised considerable hope, with some commentators describing it as a ‘Grotian’ moment for international law. At its inception in 1998, the ICC was seen as a permanent solution to the problem of accountability for past crimes. A majority of African states took part in the negotiations, adoption, signature and ratification of the Rome Statute. In 2003, the Democratic Republic of Congo (DRC) was the first state to trigger the ICC’s jurisdiction through the self-referral mechanism. Subsequent efforts by African states through such ‘self-referrals’ ensued. In sum, in addition to DRC, Uganda, Central African Republic (CAR) and Mali have referred situations in their countries to the ICC. Unfortunately, this euphoria has come to naught.
Enthusiasm about the ICC and the promise it held as a solution to impunity seems to have faded away, with much criticism directed to it amidst AU calls for an African solution to Africa’s problem of impunity. The Gambia, Burundi and South Africa submitted notices to withdraw from the ICC. Although the Gambian notice has been withdrawn and a South African court invalidated the South African withdrawal, as it was procedurally irrational (resulting in the government revoking its withdrawal notice), there are impending threats that Namibia, Kenya and Uganda as well as South Africa (should it meet the relevant domestic procedural requirements) could seek to withdraw.
This study identifies two central themes that, arguably, have informed the AU’s discontent about the ICC. They are: the perceived bias of the ICC against Africa; and the divergent opinions in the ‘peace versus justice’ debate. These are covered in chapters two and three of this thesis, respectively. Chapters four and five interrogate African approaches to their concerns against the ICC in addressing the problem of impunity. While chapter four discusses the criminal mandate of the African Court of Justice and Human Rights, chapter five considers traditional African approaches and truth and reconciliation commissions. Chapter six then concludes the study.
This dissertation seeks to answer four research questions: What are Africa’s concerns about the prosecution of international crimes at the ICC? On what bases does Africa have these concerns? Do African approaches add value to the fight against impunity in Africa and how can one strengthen them? Is a regional criminal mechanism - which takes into consideration African approaches or perspectives – the solution to fighting impunity in Africa?
Description
A thesis submitted in partial fulfilment of the requirements for the degree of Doctor of Philosophy in the School of Law to the Faculty of Commerce, Law and Management University of the Witwatersrand, Johannesburg, 2019
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Citation
Asaala, Evelyne Owiye. (2019). Fighting impunity through prosecution of international crimes in Africa. University of the Witwatersrand, https://hdl.handle.net/10539/29839