by Yacinthe Diene, Senegal, March 1998
THEME = UN
The primacy of international humanitarian law and the urgency
of a future international criminal court does not seem high
on the list of priorities for some African countries
"Will the permanent international criminal court satisfy our aspirations?" This question posed by Georges Soros, director of the Open Society Institute last February in Dakar, shows the preoccupation of all those who are actively working for the establishment of an International Criminal Court (ICC). It must be stressed that not all African countries agree with this project.
The project gives rise to a fundamental debate among the African group about its autonomy and its relationship with the UN Security Council. The necessity of establishing this court needs no proof. The century just ending has witnessed more than 250 conflicts, with 130 million victims and five genocides: the extermination of the Armenians by the Turks in 1918; the holocaust of the Jews by German Nazis from 1936 to 1944; the massacre by the Khmer Rouges of their Cambodian fellow citizens in 1975; the Rwandan tragedy in 1994; the massacre in 1995 by the Serbs of thousands of Muslim civilians who were theoretically under the UN's protection. For the first three genocides, it was the victors who judged the vanquished; in the case of the last two, the international community has tried to administer justice, with the International Criminal Tribunal in Arusha (Tanzania) for Rwanda, and the International Criminal Court in The Hague for former Yugoslavia.
The idea of an ICC goes back to the negotiations of the Geneva Convention in 1949, but the initiative was pushed into the background by the Cold War. Since then, the cause of humanitarian law has made qualitative advances.
From the end of the Second World War to the end of the 1980s, the United Nations considered that human rights violations within states was not an international matter, because of the principle of sovereignty and non-interference. But today the international community no longer concedes that, in some cases, the perpetrators of atrocious crimes should remain unpunished.
Besides, in spite of the limited results of the courts at Arusha and The Hague, an attempt is being made to suppress some violations of international human rights. On 17 December 1996, the 51st General Assembly of the United Nations adopted a resolution requiring a preparatory committee to draw up statutes for an ICC and to convoke a diplomatic conference in Rome by June 1998. During the 52nd General Assembly, a debate was held on the ICC and an international request was addressed to the Secretary General, Kofi Annan.
The United Nations wants to go further, and assert in a durable way, the primacy of law and liberty for all violations of human rights of whatever kind.
The primacy of international law on human rights, requires the creation of a single ICC to avoid the multiplication of special tribunals. It is also necessary to make up for the lack of cooperation of different states in arresting or extraditing those responsible or those accused of violations. This court could investigate and bring charges against authors of genocides and other crimes against humanity or of war. It would act whenever national courts would be shown to be either non existent or inefficient.
"The International Criminal Court is intended in the first place to be complementary to national systems of penal justice, whenever the latter are shown to be powerless or unable to function efficiently. This provision is destined to make sure that the court will not replace national courts, whose function it is in the first place to bring to justice persons accused to the said crimes." So said the European Commissioner, Mrs Emma Bonino in the Senegalese daily, Le Soleil of 4 February, 1998. She continued: "The court should have its own jurisdiction - that is a necessary condition to enable it to prosecute people for crimes coming under its competence, without having to seek the consent of different states."
International and African NGOs support and encourage its immediate creation. For this purpose they organised a forum on the margins of the Dakar symposium, on 5 and 6 February 1998, and made the following suggestions to the preparatory committee:
The ministerial meeting at Dakar revealed that some African countries are doubtful. If the majority of African countries accept the idea of an ICC, they remain sceptical with regards the aims and the type of court to be founded.
Senegal recognised the importance of more direct commitment, and undertook to make African countries more receptive to the idea by removing any ambiguities and replacing the hesitation of some countries with a continental stance.
What are the reasons for this hesitation?
1. Different judicial systems exist together - often inspired by customary, military or Islamic law which makes any kind of harmonisation very difficult. The principal difficulty stems from judicial systems inherited from British or French colonisation. The French civil code and English Common Law contain contradictory positions on many points:
a) At the level of procedure: in the Latin system, an individual can be judged by default, while the Anglo-Saxon system does not proceed in this way. Besides, in English law, the accused is considered innocent until proven guilty; but in French law, an accused can be considered guilty unless he can prove his innocence.
b) At the level of language: the two above systems are vehicles of two different cultures and two thought systems. Thus everything worked out in one language can be emptied of its exact meaning or of its real intention when translated into another language.
2. Different degrees of commitment among African countries, to recognise the principle of responsibility for crimes. Countries of the Third World, some of them in Africa, refuse to support the extension of humanitarian guarantees in times of civil war. Some governments are still afraid that the expansion of international human rights would serve as an excuse for great powers to meddle in their internal affairs.
3. Disparity between Southern and western regions of the continent. On 14 September 1997, the member countries of the Community of Southern African states, adopted a common position and approved ten points which they wish to include in the statutes of the ICC. On the other hand, sub-Saharan African countries have not yet come to an agreed position on the question.
When all is said and done, we conclude that the setting up of an ICC cannot be delayed, because it corresponds to an urgent appeal of the international community. It must be possible to bring to justice the originators and those responsible for genocides and other serious war crimes against humanity. Once it has been put in place, it is a question of upholding international law on human rights and the sovereignty of States. The determination of the United Nations, added to the sensitisation of African and international organisations, will finally bring an end to all the hesitations. The Dakar meeting was a contribution in this direction.
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