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CHAPTER THREE TRUTH AND RECONCILIATION COMMISSIONS AND GACACA COURTS AS EXAMPLES OF APPROACHES ADOPTED TO ADDRESS PAST HUMAN RIGHTS VIOLATIONS IN AFRICA
Introduction
This chapter demonstrates how transitional justice bottom-up method particularly Truth and Reconciliation Commissions (TRCs) and traditional measures,1 such as gacaca courts have been used in the past to address human rights violations. Consideration is made in order to ascertain how these procedures can help contribute towards achieving the ICC objectives of deterrence, addressing impunity as well as achieving other aims, including truth, reconciliation, stability and closure.
With the help of case studies, the chapter illustrates with authority, how these institutions can contribute towards realisation of the ICC objectives, aimed at improving the effectiveness of the ICC. This chapter further justifies the need for states under transition to adopt TRCs or traditional procedures in addition to prosecutions at national and international level for the purpose of addressing past human rights violations. On this basis, the chapter highlights the need for the ICC to operate at a complementary level with institutions such as TRCs or traditional styles like gacaca courts, with the view of making the ICC move beyond its current objective of deterrence and retribution. This is relevant for the purpose of determining how TRCs and traditional measures could be integrated within the ICC’s top-down approach, leading to ATJ measures being used within the ICC agenda. Such an approach is intended to enhance the effectiveness of the ICC, thus ensuring that offences such as genocide, war crimes and crimes against humanity are not repeated.3
The theme running through this chapter is the notion that ATJ mechanisms, specifically TRCs and gacaca courts, similar to prosecutions under the ICC and national courts are established to put an end to the horrendous atrocities by protecting the population.4 This chapter therefore, focuses on TRCs and gacaca courts as examples of ATJ processes that can be adopted by states as part of exercising their duty of Responsibility to Protect (R2P), a public international law principle that applies to states with regard to relations towards each other.5 An assessment of the role that the ICC could play in relation to the public international law principle of R2P is undertaken throughout the chapter. It is significant to this study in order to ascertain how TRCs or traditional methods, such as gacaca courts could be fused within the ICC framework.
Thus, this chapter addresses how the ICC can play a role in influencing R2P among states that have situations and cases before the Court. This is relevant to this study because the international community has the responsibility to intervene when states fail to prosecute and prevent mass atrocities.6 The contention is that more needs to be done by the states that have situations and cases before the ICC to prevent further atrocities from being committed on the basis of the principle of R2P. However, the ICC should have a role to play in order to register its relevance in the prevention of such atrocities.7 This is because the ICC is intended to address the most serious offences of international concern.8 Thus Hubert and Blatter9 argue that where international crimes such as crimes against humanity, war crimes or genocide are committed against the civilian population, R2P must be invoked. The chapter is divided into three sections: section 3.2 addresses the principle of R2P and the role of the ICC, section 3.3 considers examples of some approaches that have been adopted in Africa to address past human rights violations, and finally section 3.4 focuses on Africa and the ICC.
The Principle of the Responsibility to Protect and the Role of the International Criminal Court
This section addresses the principles of R2P and the role of the ICC in relation to the concept. The year 2015 marks the 10th anniversary of the UN World Summit and the adoption of the R2P principle.10 This principle is significant to this study because, like the ICC, it imposes on states, the primary responsibility to protect their population, prosecute individuals responsible for violations of international human rights and prevent offences such as genocide, crimes against humanity and war crimes.11 R2P is thus a humanitarian response that is tasked to prevent the most serious atrocities to mankind that are within the jurisdiction of the ICC.
Currently, the ICC is already undertaking the role of R2P on the basis of seeking to prosecute the most serious perpetrators in situations before the Court. This is notwithstanding the Rome Statute being silent on the role that the ICC is supposed to play with regards to R2P.12 This study focuses on Africa because so far all situations before the ICC are based in African states.13 The states include the situations and cases in Uganda,14 the DRC,15 Central African Republic,16 Mali, Cote d’Ivoire,17 Darfur in Sudan,18 and Libya.19 Despite the situations being before the ICC, violence still prevails in states such as the Central African Republic,20 the DRC,21 and Darfur in Sudan.22 For this reason, this chapter seeks to clarify the role of the ICC in light of the states’ R2P under circumstances where states before the ICC were to adopt ATJ measures such as TRCs or gacaca courts to address past human rights violations. This is pertinent to this study for the purpose of ascertaining how ATJ measures could be assimilated within the ICC framework. In particular it examines the role that the ICC should play under circumstances where TRCs or traditional techniques are adopted in states that have situations and cases before the Court.23
The contention is that the principles of R2P and the ICC have common goals; the two norms are complementary to each other. 24 Both emerged as a result of the commission of horrendous atrocities that demanded a change of international practice to ensure prevention of such atrocities.25 The principle of R2P emerged as a result of the atrocities that were committed in the mid 1990s and the idea that more needed to be done to prevent such atrocities.26 Similarly, the concept of complementarity as demonstrated in the previous chapter of this thesis provides that the primary responsibility to prosecute individuals suspected of having committed genocide, war crimes or crimes against humanity is with the states where the atrocities occurred.27
Equally, under the principle of R2P, the primary responsibility to protect and prosecute lies with the states.28 Therefore, the principle is suitable to this thesis as it focuses on measures that states can adopt to address past human rights violations which are acts undertaken as part of the state’s R2P. In relation to the ICC, it implies that the Court of the International Criminal Court and the Responsibility to Protect (2015) 26 (1) Criminal Law Forum 160, Michael Contarino and Selena Lucent ‘Stopping the Killing the International Criminal Court and Juridical Determination of the Responsibility to Protect’ (2009) 1 (4) Global Responsibility to Protect 563, 564, Michael Contarino, Melinda Negron-Gonzales and Kevin T Mason ‘The International Criminal Court and Consolidation of the Responsibility to Protect as an International Norm’ (2012) 3 Global Responsibility to Protect Journal 277.
should intervene to investigate and undertake prosecution where states have no will and ability to prosecute. This is done not only relying on the basis of the Rome Statute,29 but also as part of the existence of the principle of R2P. As a result, it is necessary to clarify what the role of the ICC should be in this respect, an issue which this chapter endeavours to achieve.
Currently, the role that the ICC could play under such circumstances is unclear.30 The role that ICJ, mainly the ICC, can play in relation to R2P is an issue that has not been explored greatly.31 The conception of the principle of R2P in the 2009 report32 does not specify the nature of role the ICC is supposed to play, apart from being broad and flexible. 33 For this reason, this study proposes that states that have situations before the ICC should do more to protect the population from being subjected to such atrocities.
Ralph34 further acknowledges that there is no academic work that clarifies the role that the ICC would assume under circumstances where states that have situations before the ICC were to adopt ATJ measures to address past human rights violations. As demonstrated in chapter two of this thesis, the role of the ICC is limited to prosecution of the most serious perpetrators.35 The nature of the offences that the ICC exercises jurisdiction over demands that the ICC goes beyond its current objectives of deterrence and retribution, to contribute towards rebuilding the sovereign states by ensuring that atrocities are never repeated.36 States, the international community and above all the ICC, can do more to ensure that the offences within the ICC’s jurisdictions are not repeated in states that have situations and cases before the Court.
The principle of R2P demonstrates that states can no longer rely on the doctrine of sovereignty37 to prevent foreign inferences; instead a state must be held accountable for the welfare of the people within its territory.38 States as sovereign entities have both rights and responsibilities at international law for which governments must be held accountable.39 The principle of R2P is based on the notion that sovereignty as responsibility is grounded in human rights and duty-based conceptions of State authority.40 The R2P principle thus imposes a limitation on the doctrine of sovereignty.41
Therefore, the principle of sovereignty is not intended to protect dictators who massacre their own people, neither is it envisioned to allow the perpetuation of large scale suffering and death in a particular state.42 In relation to this thesis, it implies that there is a need to ensure that individuals suspected of committing genocide, war crimes and crimes against humanity are held accountable. This was further illustrated by the appeal chamber in the Tadic case of the ICTY that ruled in relation to the concept of state sovereignty that; Brus, Jorris Duursma, Elizabeth De Vos and John Dugard State Sovereignty and International Governance (Oxford University Press 2002) 521, Michael Troper ‘The Survival of Sovereignty’ in Hent Kalmo and Quentin Skinner (eds) Sovereignty in Fragment The past Present and Future of a contested Concept (Cambridge University Press 2010) 139, 140, International Covenant on Civil and Political Rights 1966, International Covenant on Economic Social and Cultural Rights 1966, Convention on the Prevention and Punishment of the Crime of Genocide 1948, International Convention on the Elimination of All Forms of Racial Discrimination 1965, Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment 1984.
A State-sovereignty-oriented approach has been gradually supplanted by a human-being oriented approach . . . [I]nternational law, while of course duly safeguarding the legitimate interests of States, must gradually turn to the protection of human beings.43
This means that in relations to states under transition, systems adopted during transition must seek to protect and preserve human beings even at the cost of legitimate state interest. This is significant to this thesis because it implies that states that have situations and cases before the ICC have an obligation to ensure that mechanisms such as prosecutions, TRCs or traditional measures are adopted to address past human rights violations. This is vital in order to preserve and protect the rights of people and for the sake of avoiding the repetition of such atrocities.
The UN Secretary General Ban Ki-Moon’s report claims that R2P is intended to strengthen the sovereignty of a state and not to weaken it, it helps states to succeed and not just to react when they fail.44 This thus suggests that the ICC can do more to encourage states with situations and cases before it to ensure that TRCs or traditional approaches are adopted. The report further clarifies that R2P is a legal principle that is grounded in international law, by providing that the provisions of paragraphs 138 and 139 of the Summit Outcome are firmly anchored in well-established principles of international law.45 The UN admits that R2P provides conditions that allow for a better enforcement of international criminal justice.46 In relation to this thesis, the ICC’s intervention to prosecute the most serious offenders in a particular situation is part of the enforcement of R2P.47 This is because of the existence of a connection between the ICC and the principle of R2P.
The ICC recognises the relationship between it and the principle of R2P.48 Moreno-Ocampo stated that the ICC and the R2P principle have the potential to reinforce one another given the shared aims of both ideas as evident in the quotation below;
Let me review the common ground of both ideas, because the scheme envisioned by the Responsibility to Protect where each individual State has the primary responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity, including the prevention of such crimes, and the idea that the international community will only step in when a State is failing to do so is very much the scheme retained in Rome for the International Criminal Court, the same concept, including the gravity threshold retained for the Responsibility to Protect is also close to our own legal standards under the Rome Statute.49
ACKNOWLEDGMENTS
SUMMARY
INTRODUCTION
CHAPTER ONE HISTORY OF INSTITUTIONS AND JURISPRUDENCE OF INTERNATIONAL CRIMINAL JUSTICE
1.1 Introduction to History of International Justice
1.2 History of International Justice
1.3 Conclusion
CHAPTER TWO THE ROLE OF THE INTERNATIONAL CRIMINAL COURT AND ALTERNATIVE TRANSITIONAL JUSTICE MECHANISMS
2.1 Introduction
2.2 Transitional Justice and the International Criminal Court
2.3 The Purposes of International Criminal Justice
2.4 The Role of the International Criminal Court
2.5 Conclusion
CHAPTER THREE TRUTH AND RECONCILIATION COMMISSIONS AND GACACA COURTS AS EXAMPLES OF APPROACHES ADOPTED TO ADDRESS PAST HUMAN RIGHTS VIOLATIONS IN AFRICA
3.1 Introduction
3.2 The Principle of the Responsibility to Protect and the Role of the International Criminal Court
3.3 Examples of Approaches Adopted in Africa to Address Past Human Rights Violations
3.4 Africa and the International Criminal Court
3.5 Conclusion
CHAPTER FOUR. THE INTERNATIONAL CRIMINAL COURT AND ITS WORK IN AFRICA: THE CASE OF UGANDA.
4.1 Introduction
4.2 Background to the Situation in Uganda
4.3 The referral of the Situation to the ICC and its implications
4.4 The International Criminal Court and Its work in Uganda
4.5 The Role of Uganda in addressing Human Rights Violations in Uganda
4.6 The Role of National Courts in establishing Accountability for Human Rights Violations in Uganda
4.7 Conclusion
CHAPTER FIVE CONCLUSION AND RECOMMENDATIONS
5.1 Introduction
5.2 Summary of Findings
5.3 Recommendations
5.4 Concluding Remarks
BIBLIOGRAPHY
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The Methodology by which Transitional Justice Strategies Ought to be incorporated into the International Criminal Court Framework
