One of the fundamental aspects of criminal justice is the opportunity for the accused to confront the victim to further general deterrence. This aspect of justice is also reflected in the Rome Statute, which established the International Criminal Court (ICC or the Court) and made it “complementary to national criminal jurisdiction” of states parties. The Court is expected to admit cases only when states are unwilling or unable to genuinely conduct an investigation or prosecute (Art.17). Therefore, the more African countries continue to send their war criminals and those accused of crimes against humanity to the ICC, the lesser the sense of justice or deterrence transmitted to ordinary African victims far removed from the Court.
Laurent Gbagbo is the latest African accused by the Court. He is now on his way out of Ivory Coast, where all of his crimes were committed, to The Hague. He joins the company of other African leaders from the Democratic Republic of Congo, Uganda, Central African Republic, Liberia, Kenya, and Sudan (pending). Granted that African countries have been the most outspoken critics of the ICC as a Western plot against African leaders, it is surprising that when it comes to implementing their own justice systems for crimes committed at home, many have resolved to extradite the accused to The Hague.
While it is legitimate to argue that many of the accused come from countries with broken institutions, this is not always the case. These countries of origin have the advantages of being close to witnesses, evidence, and the relevant issues of confrontation and general deterrence. Democracy also requires that the people see the judiciary, the third branch of government, having an equal role in the restoration of society after periods of disruption. Justice at home may also serve as deterrence for other aspiring African leaders who follow proceedings close to home rather than in a foreign land and among foreign prosecutors.
Moreover, the ICC can resolve the issue of financial and structural constraints expressed by some African countries by establishing tribunals where the incidents took place, instead of taking the accused to The Hague. Article 3(3) of the Rome Statute authorizes the Court to “sit elsewhere whenever it considers it desirable” to the performance of its functions. The Court should use this provision in Africa more often than it currently does, and African countries should apply the principle of complementarity envisaged by the Court to provide opportunities for justice to be served openly where harm occurred.
It is true that trial at The Hague provides more resources and removes security risks for countries that might still be uncertain about their post-conflict peace process, but African countries should make all considerable efforts to render post-conflict justice at home, or ask for the Court to sit on location if necessary. Justice served at home in view of all parties is a better opportunity for reconciliation and the legitimization of post-conflict democratic systems, keeping in mind standards of accountability and the rule of law.
The Court has operated successfully in post-conflict Rwanda and Sierra Leone, and African methods of justice and reconciliation have proven effective in South Africa and in the Gacaca Court system employed in Rwanda. Africa cannot continue to accuse the Court of going on a “witch-hunt” and “meddling” when it refuses to implement the purpose for which the Court was established - the prosecution of persons for the most serious crimes of international concern. The continuous extradition of Africans to The Hague when justice could be served at home or close to home undermines our claims to sovereignty and certainly limits confrontation rights and the deterrence purpose of criminal justice.
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