International criminal justice on the African continent is at a critical juncture. In May 2013, at the 21st Session of the African Union (AU), Africa's leaders stressed "the need for international justice to be conducted in a transparent and fair manner, in order to avoid any perception of double standards, in conformity with the principles of international law".
This was rapidly interpreted by observers as raising question marks over the degree of political support for the iconic mechanisms of international criminal justice – the International Criminal Court (ICC). When coupled with the existing failure of the ICC to establish popular support, it is clear that a re-think is required.
Notwithstanding the United States withdrawal from the Rome Statute, the Obama administration's establishment in 2012 of an Atrocities Prevention Board and the fact that on this occasion US President Barack Obama's itinerary does not bring him to Kenya, shows his deep concern with the intricate relationship between impunity, failings in justice, and the threat of future violence at a societal level. His visit therefore comes at a crucial time, when more than ever, a fresh commitment and reconsideration of what justice should look like is required, in a world of newly emerging powers and a renewed concern with the prevention of mass atrocities.
"International" criminal justice has for too long been synonymous with a Western driven model of selective prosecutorial and punitive justice, and that this, coupled with the US, Russian and Chinese exceptionalism vis-à-vis the ICC, largely explains the failure of the ICC to win popular legitimacy in the very countries where it has sought to build its track record.
US-led technological developments – notably the increasingly widespread use of drones to achieve politico-military objectives – are changing not just the parameters of conflict and the management of political tensions, but also are challenging existing models and mechanisms of criminal accountability. Specifically, the US's own military engagements in Africa, including through Africom, are not matched by a willingness to submit to the very rules of engagement that are demanded of others.
Two actions from the side of the global community would assist in re-designing and re-legitimising the path of international criminal justice and aiding it in gaining new momentum: Key towards a renewed global commitment is the ratification of the Rome Statue by the three major global giants – the US, Russia and China. Secondly, the annulations of the Bilateral Immunity Agreements (BIAs, also known as the Article 98 Agreements) by the Obama administration would send the right signal towards a more inclusive global justice system.
It does not only call those countries to action but also asks for support closer to home. Building on Africa's demonstrated record in pioneering on-the-ground, victim-driven justice initiatives, civil society and governments from across the continent and the globe need to contribute to offering new solutions. It is important that governments and civil society work together to democratise the process of consolidating the ICC and to develop a global justice model that can address emerging challenges to existing mechanisms and principles, such as drones and alternative solutions to militarisation and criminalisation. It needs to also speak to ways of incorporating key non-prosecutorial responses to mass atrocities, such as reparations, truth-telling, reconciliation and similar more peaceful social justice results.
It is important that we as Africans take responsibility in this process and support Africa's own proposed African Court of Justice and Human and Peoples' Rights – a court which will have a human and people's rights, a general affairs and an international crimes jurisdiction, and will thus be positioned to tackle a wider range of crimes and issues that respond, in a more complete and substantive manner. Africa could take the lead to evoke similar contexualised responses in other global regions of the world, notably the Middle East, Asia, Latin America and Eastern Europe.
Obama's visit could become a historic one if he uses this opportunity to show support and to promote global justice that is inclusive, contextual, that seeks social and prosecutorial alternatives towards reconciliation, non-repetition and peaceful transitional justice on the continent.
Dr Fanie du Toit is the executive director of the Institute for Justice and Reconciliation. Visit www.ijr.org.za for more information.