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Cite as: Jacob Lilly, Peace with Justice: Options for Bringing to Trial Human Rights Violators in Africa and a Proposed Solution to Cover the Gap in Enforcement Mechanisms between International Criminal Law and Human Rights Violations, 6 Gonz. J. Int’l L. (2002-03), available at http://www.gonzagajil.org/.
Peace with Justice: Options for Bringing to Trial Human Rights Violators in Africa and a Proposed Solution to Cover the Gap in Enforcement Mechanisms Between International Criminal Law and Human Rights Violations
Jacob Lilly
I. Introduction
The future of human rights law seems to be focused on two rapidly diverging viewpoints. On one hand, the nominal success of the International Tribunals for Rwanda and the former Yugoslavia and the coming into being of the International Criminal Court with the Rome Statute point towards a greater international acceptance of the concept of individual accountability for and prosecution of certain human rights violations, known as war crimes. However, the popularity of the South African Truth and Reconciliation Commission and the move towards extra-judicial solutions for war crimes point towards a pattern of less reliance on prosecutions and more on alternative solutions. Both approaches share the common themes of greater acknowledgement of human rights violations, some form of individual accountability, and a search for the right formula to provide justice and healing for war torn nations.
This note examines the different options for prosecuting human rights violators, considers alternatives to prosecution, and proposes a standardized format for dealing with human rights violations in Africa. In doing so, the note considers whether human rights violators should be forced to face trial at all, the appropriate jurisdiction, relevant national, regional and international laws and institutions, and practical questions of cooperation, financial incentive and effectiveness. The note proposes that jurisdiction over human rights violations be given to a prosecutorial court with the power to enforce sanctions against both state actors and individuals in order to effectively fill the gap between the definitions of human rights and the limited prosecution of violators of a small subset of these rights, known as war crimes. Given this proposal, the most effective and efficient solution to dealing with human rights violators is an expansion of the jurisdiction and purpose of African Court of Justice to human rights violations, with definitions and violations based on the African Charter for Human and Peoples’ Rights.
II. Identifying Human Rights Violators
a. What Definition of Human Rights Should Be Used?
Any attempt to prosecute alleged human rights violators must begin with the basic definitions to be used in defining their crimes. The simplest definitions and those with the most legal precedent could be appropriated from the Rome Convention of the International Criminal Court. However, these definitions only cover a very small percentage of human rights violations and, as the ICC already has criminal jurisdiction over those crimes, has little relevance. The definitions used should fill the gaps left by the ICC and provide remedies for the human rights violations currently without such a remedy.
An alternative approach would be to have the prosecuting courts themselves determine the definitions of the crimes involved. Former U.S. Ambassador-at-Large for War Crimes Issues David Scheffer suggests that these definitions should be based on a set of five criteria and determined at the trial court level. These criteria include (1) the violations must be of sufficient magnitude, (2) the violations can occur in times of war, peace, or social upheaval, (3) the violations must have occurred as a result of the leadership of governments or society elites, (4) the violation must be identifiable in international law as related to the crimes of genocide, violation of the laws and customs of war, international terrorism, a crime against humanity, or ethnic cleansing, and (5) international law must apply the crime to individuals, in addition to some elements of state responsibility. The advantage of this definition is that it provides greater expansiveness then current international law and allows those definitions to be adapted to local conditions while still remaining within the framework of customary international law. The disadvantage of this definition is two-fold. First, it restricts international human rights violations to a subset of the whole range of those violations and thus necessarily omits many such violations. Additionally, the definition proposed by Mr. Sheffer covers essentially the same crimes already under the jurisdiction of the ICC. As such, any effort to implement this definition on the African continent would be duplicative of the work already done under the ICC and would normally have to cede jurisdiction to the ICC.
A better definition of human rights violators would be based on the African Charter of Human Rights, discussed in Section V, a , infra. The advantage of using this definition is that it is already established and accepted by the surrounding countries, covers a substantially wider swath then the ICC based definitions, and provides remedies for smaller human rights violations that do not necessarily rise to the level of international crimes. As such, this definition addresses the gap between international criminal law and the reality of human rights violations currently covered only by the African Commission on Human Rights.
b. Which Acts Should be Specifically Targeted?
In examining possible methods of dealing with human rights violations, it is helpful to have an example in mind to apply to each situation. In addition to the examples used throughout the different sections illustrating various points, an overall example, the situation in Sudan has been chosen to serve as a model of large-scale human rights violations by both the government and individuals.
i. Sudan Example[7]
Like many African countries, Sudan has been engulfed in civil war for the past ten years. The war is estimated to have killed more then two million people and displaced over four million. The civil war was further complicated by tensions between the majority Muslim population, who control the central government in Khartoum, and a minority Christian population. Human rights groups have documented war crimes by each of the sides, with the majority of the criticism aimed at the Sudanese government. The government has been accused of deliberately attacking civilians, using famine as a weapon, and tacitly approving a revival of slavery. Furthermore, human rights groups accuse the government of deliberately bombing from aircraft civilian targets including hospitals, U.N. humanitarian centers, NGO aid agencies, and churches. Additionally, the government has denied food aid to select regions of the country in the name of its inability to protect food convoys and international workers. The government denies all allegations of any slavery and contends that it is merely conducting an armed response to an illegal armed insurrection.
The United States Department of State supports these accusations by declaring the programs of the Sudanese government to be “nothing less then forced Islamization and Arabization.” The Sudanese government has been accused of trying to force the southern and remote areas of the country to convert or be marginalized and was supported in this endeavor by funds from the extraction and sale of oil. In its attempt to subjugate the southern population, the international human rights groups contend that Sudanese state broke international humanitarian law, while the individuals leading the government violated international human rights law.
c. Who should be targeted?
While human rights law has always embraced the holding of states accountable for their actions, a court attempting to implement the truest spirit of human rights conventions would have to have jurisdiction over individuals, state actors, and non-governmental entities.
i. Individuals
Traditionally, war crimes tribunals have been aimed solely at the individual. Starting with the Nuremberg trials and continuing through the new International Criminal Court, trials of war criminals served as a means to punish the individual outside of any retribution taken against the nation state those individuals represented. State responsibility for crimes committed during war, while not codified before the Geneva Convention, was traditionally the province of the victors. Human rights violations, however, have been targeted at both individuals and states and evolved only after Nuremberg had already established the principle of individual responsibility. Moreover, human rights violations, as evidenced in Rwanda, Sudan, and South Africa, are perpetrated both by state figures acting under color of law and by individuals for reasons of greed, ethnic hatred, power, and individual motivations. As such, and as demonstrated by the recent trend in international human rights law, any human rights trial court or alternative resolution means must hold both the individual and the nation-state accountable for their actions.
ii. Organizations
Currently, international law does not recognize an organization as a body that may be subject to international human rights regimes outside of the responsibilities imposed by those regimes on the individuals of the organization. However, international law would seem to tacitly acknowledge that such groups can be banned and disbanded and jurisprudence out of the European Court of Human Rights suggests that states may have an obligation to ban groups espousing views that international human rights regimes would find especially dangerous and repugnant. These groups, however, can account for one entire side of a conflict and its accompanying human rights violations and thus any human rights legal order must take into account organizations as entities and not merely the individuals that make up these organizations.
iii. Governments
Nation-states have typically been punished after committing human rights violations writ large by other nation states in a justice of the victors approach. However, with the Nuremberg trials and culminating in the Rome Convention, a gradual transformation has emerged in which international human rights law has grown to focus on the individual. However, international humanitarian law (the “laws of war”) continues to focus on state actors. Even more importantly, state responsibility must not be forgotten merely because individuals are now held more accountable in the past. Certain violations are an expression and an action of the state and can be punished by international shaming techniques, economic sanctions, restrictions on travel, restrictions on access to U.N. programs and governing bodies, and various other international punishments. Governments must be held accountable in the international arena until such time as a complete change in government can be effected. An international or regional court must have the same right to dole out punishments to countries and governments that engage in consistent human rights violations as they would upon an individual.
III. Why Should We Attempt to Try Human Rights Violators in Africa at All?
Trials of human rights violators are justified on the grounds of national healing and reconciliation, fulfillment of international obligations, providing justice to the victims, and as a deterrent to future violations. However, local alternatives to trials provide a different route that may work better in certain situations.
a. Alternatives
Possible alternatives to trials of human rights violators include (1) truth commissions, (2) no action at all, (3) exile, (4) local customs such as the Rwanda Gacaca system, (5) using corporate responsibility doctrines, (6) or using international financial institutions to ensure compliance with established standards.
i. Truth Commissions
The mechanics of the South African Truth and Reconciliation Commission, the most widely emulated TRC, and its impact are discussed in Section IV, b, I, infra.
ii. No Action at All
Opponents of human rights and war-crime tribunals claim that the damage done by the trials far outweigh any possible benefit and the appropriate action for a nation recovering from civil or international war is to attempt to move past the violations and allow national healing to begin. This argument is explored in various sections throughout this paper and can be summarized as letting a country that has undergone the chaos and destruction of prolonged warfare not spend precious resources and political capitol reliving the atrocities and instead allow that nation to begin to heal. However, the critics of the “take no action” at all approach claim that option has no transformative potential and that international pressure would keep a country from ignoring its past misdeeds. Certainly this option would seem to ignore international law and the Inter-American Court of Human Rights has held it to be a violation of international law. Furthermore, many critics argue that without some sort of national healing process, ignoring the misdeeds of a civil war will force the victims to bear unfair burdens while allowing perpetrators to gain from their actions. These critics believe that a country without justice will continue to suffer great social strife and that the only way for a nation to heal the wounds of atrocity is some sort of recognition of, acknowledgement of, and cathartic action concerning past atrocities and human rights violations.
iii. Exile
The advantage of using exile to punish human rights violators lies primarily in circumstances where the party committing the war crimes is the controlling power source in a country. In that scenario, exile serves as a useful incentive to remove the abusing party from power. Exile allows the individual in power to safely abdicate that power while avoiding the determination to hang on to that power at all cost out of fear of prosecution. This argument has also been used to justify the Truth and Reconciliation Commission in South Africa. In South Africa, proponents of the TRC argued that the only way to convince the majority white government of De Klerk to abdicate power was to provide some sort of amnesty for that government. Exile provides autocratic governments with an incentive to end their abusive regimes without submitting to worldwide punishment and keeps a country from having to relive its painful past.
The disadvantages to using exile lie again in the fact that no justice is rendered. This assumes that justice is considered vital to a countries’ reconciliation. Additionally, exile cannot be an effective solution to smaller scale human rights violations committed by large number of non-governmental actors. Exile of a single leader or group of leaders after a change in leadership is possible. However, exile could not apply to the hundreds of thousands of alleged human rights violators in Rwanda or the situation in Sudan. Furthermore, exile would probably not fulfill a nations obligation under international law.
iv. Rwanda – Gacaca
In response to the International Criminal Tribunal for Rwanda’s (ICTR) dismal conviction rate, Rwanda has turned to alternate measures to prosecute criminals from the civil war of 1994. In 1999, the government of Rwanda established the National Unity and Reconciliation Commission “to contemplate alternatives to the ICTR in dealing with the huge number of detainees, the slow pace of trials, and the lack of national reconciliation.” Additionally, an estimated 5,000 defendants have been processed by special chambers of the Rwandan Court Structure adopted under Organic Law No. 8/96 of August 30, 1996. Including those processed by the special chambers, an estimated 110,000 to 130,000 Rwandans remain incarcerated, testing and frequently exceeding the limits of the local judiciary systems.
In light of these problems, the Rwanda government turned to the traditional Gacaca system to help ease the burden on the judicial system based on the recommendation of the Commission. Under Gacaca, respected community elders attempt to settle disputes by communal standards. Gacaca has its own law, referred to as “Organic Law,” which divides detainees into four categories based upon the severity of their offense. There is no jurisdiction under Gacaca law for those charged with being organizers, inciters, or leaders of genocide, commonly known as Category One. This category is reserved for the Genocide Law. This highly formalized structure is divided up into 10,684 Gacaca courts, 8,987 Cells, 1,531 Sectors, 154 Districts, and 12 Provinces and possess normal judicial criminal powers including power to issue warrants, compel testimony, fix damages, pronounce sentences, and order preventive detention.
The advantages of the Gacaca system lie in its unique ability to address the needs of post-genocidal Rwanda. The small, rural, very poor majority population lives in the same towns that many of their ancestors did. These “communities have been most alienated from the genocidal trials,” despite being the location of many of the atrocities, due to “distance, procedure, and lack of communication.” The Gacaca system provides an effective way to reach that majority of the population and increases the role of women in the genocidal judicial process. Furthermore, the fact that “Gacaca is based on local culture” makes it more likely to engender “a greater sense of familiarity, respect, trust, and commitment to the process then an outsider-imposed process" This process is particularly successful in the Rwanda case because many of the attacks occurred in broad daylight, with many witnesses, in these small villages. The Gacaca system brings accusers, victims, and perpetrators together within the confines of a system they are both familiar with and respect.
The Gacaca system also raises several concerns. While the system will hopefully help heal the wounds of the horrendous massacres, concern has been expressed that it will actually exacerbate old wounds. Additionally, accusations have been leveled that the government only instituted the system due to the alarming number of acquittals happening under national and international prosecutions. Furthermore, there is a concern that the Gacaca system, despite being based on an ancient custom, will degenerate into nothing more then elaborate criminal trials with the only difference being that all procedural and substantive due process safeguards have been removed. Despite these concerns, the Gacaca system demonstrates the value to enforcement of human rights violations that a local custom or cultural system can play either by itself or in conjunction with international law.
v. Corporate Responsibility Actions
One proposed alternative to deterring human rights violations holds international corporations responsible for violations of human rights that result from the economic practices of that corporation. The proposals to hold corporations responsible suggest one of three possible ways to accomplish this goal; (1) “litigation under the [U.S.] Alien Tort Claims Act (ATCA)”, (2) advocating for increased awareness of human rights in corporate codes of conduct, and (3) “creation of a statue similar to the U.S.’s Torture Victims Protection Act” to allow victims of human rights violations to bring suit in the home jurisdiction of the responsible corporation. Corporations can benefit from and tactically encourage human rights violations by benefiting from slave labor, by laundering the money of wartime looters, and by providing armed guards that can commit their own violations of human rights law. Further, many of these corporations have accumulated an enormous amount of wealth and political power that could be used towards ending human rights violations instead of propagating them. For instance, Human Rights Watch has accused Enron Power Corp. of harassing and beating protestors outside of their Dahol power plant in Maharastra and an ATCA suit has been filled against Exxon Mobil alleging that soldiers paid by that company regularly beat and tortured Indonesian men and women. Advocates of corporate responsibility point towards the De Beers Company and the use of diamonds to fuel civil wars, with their attendant violations of human rights, in Sierra Leone and Liberia as their strongest evidence in support of the need for further legislation.
None of the three proposed solutions is without fault. While the majority of large corporations are based in the United States, the ACTA can limit those seeking to use it through constraints on subject matter jurisdiction, a state action requirement, standing requirements, and an abstention doctrine. Additionally, corporate codes of conduct provide for limited redress, must be formed in conjunction with the corporation (thus any corporation that has a large enough financial incentive to commit human rights violations would be breaching its fiduciary obligations by having such a code of conduct), and generally require a nexus of causation stricter then the ACTA requires. National legislation, of various countries including the United States, similar to the TVPA would establish clear guidelines for corporate action overseas but would have many of the same foreign policy concerns inherent in the ATCA, would limit state actions to already established international jus cogens, are subject to local/national interpretation, and suffer from the same enforcement concerns inherent in any international human rights regime despite being a national legislation.
vi. Using International Financial Institutions to Deter Human Rights Violations
In addition to using corporations to deter human rights violations, human rights groups advocate using the international financial institutions, such as the IMF, to deter those violations with the careful disbursement of funds. Both the World Bank and the IMF have been drawn into internal conflicts, including those resulting in massive human rights violations, due to the fact that many of the countries in which they were active have descended into chaos, disorder, and civil war. In response, the World Bank has developed an Operational Policy on “Development Cooperation and Conflict” which expressly forbids the Bank from engaging in peacekeeping, humanitarian relief, and requires the Bank to be apolitical in nature and for the benefits of its members. However, the Bank’s watching brief requires it to consult with humanitarian agencies about its relief strategies. The IMF has similar policies in place though it has significantly less impact on individual human rights problems due to its more macroeconomic approach.
Clearly, these policies leave a great deal to be desired from a humanitarian law standpoint. The financial institutions carry great weight and could increase the incentives of states to comply with humanitarian law by increasing the monetary cost of noncompliance. Further, international financial institutions would prove to be yet another group of international actors ensuring compliance and that combined weight could make it harder for states to avoid their obligations. It is important to note, however, that these institutions would only have a practical effect on state actors and would not be able to effectively deter individuals except in an indirect manner through the national government. Additionally, there is an increased danger of politicalization of the World Bank and the IMF should they become involved in situations ripe with human rights violations. This perceived politicalization of the IMF and the Bank would lead to a decreased effectiveness on their parts and more international discontent as the two institutions are already widely suspected of being fronts for “western imperialist powers” by many in the developing world.
b. Human Rights Trials as a Deterrent
Human rights trials serve two interrelated functions. First, they deter future violators from acting with impunity in upcoming conflicts by providing for concrete punishments, standardized enforcement measures, and the promise of state and individual accountability. Second, human rights trials attempt to deter private retribution by individuals or even states. By providing this governmental justice, the purpose of these trials is to promote reconciliation and allow a country to heal the divides from war and any atrocities committed during that conflict. However, “the justifications for international criminal liability for perpetrators of the international crimes of genocide, war crimes, and crimes against humanity have remained essentially unchanged in the half century since World War II’s Nuremberg and Tokyo trials. “[Further,] there is remarkable degree of consensus among international lawyers in favor of international criminal accountability.” Outside of the internationally established justification for the crimes of genocide, war crimes, and crimes against humanity, human rights violations have traditionally been reserved for human rights commissions with the power to recommend and occasionally the power to enforce sanctions against state actors.
Each of these justifications for human rights trials is extremely contentious. Opponents of criminal trials for human rights atrocities claim the trials serve neither purpose and actually only inflame the situation without allowing for the healing necessary. These opponents, including many of the citizens of the countries so badly scared by civil war and atrocities, believe that healing can only occur within a framework that is not constantly dredging up the incidents of the recent past.
IV. Local Options
Local options for prosecuting alleged violators of international human rights standards include (1) state level criminal codes, (2) truth and amnesty commissions, and (3) cooperation between the international institutions and local governments such as the Special Court of Sierra Leone example.
a. State Level Criminal Codes
States could chose to prosecute human rights violators under their own internal criminal codes assuming that these codes have the appropriate jurisdictional abilities. The advantages of this approach are clarity of law, availability of an already established enforcement mechanism, an established body of common laws for those states that utilize the common law, and transparency of justice for local populations. The disadvantage lies in the fact that states could only prosecute those violators that it had effective control over making it relatively easy for suspected violators to flee to a jurisdiction unwilling to prosecute. Furthermore, state criminal codes do not generally take into account the magnitude of the crimes being committed or the political objectives behind those crimes,
Additional problems include the fact that many states are in disarray at the time of the commission of these human rights violations and, in the case of violations by state actors, can still be in control and thus unwilling to punish themselves for the violations. State implementation of human rights law is frequently a farce due to the fact that the states themselves are commonly either committing the human rights violation or unwilling to control the true violators. States emerging from the civil wars and cultural unrest that frequently precipitate human rights violations do not usually have the political power, stability, or established impartial judiciary to bring to justify those that committed human rights violations during the upheaval. Even when a state effectuates regime change as a result of widespread human rights violations, many members of the former government must by necessity remain in the new government are given a de facto immunity based on their necessity in keeping the country running.
In addition to the use of state-level criminal codes, some commentators have proposed the use of local customary law to enforce human rights. The use of these customary laws is supported by the Universal Declaration of Human Right’s requirement of the preservation of cultural rights and political autonomy of all peoples and is based on this cultural legitimacy. However, the application of these rights as interpreted in the African Charter on Peoples and Human Rights is focused on the individual rights in question and not a larger, group right. As such the legal rights are only negative in nature, protecting the individual from state action and not from rights infringed by a non-state actor. Furthermore, some customary laws are actually in conflict with human rights law and thus not adaptable to protecting human rights.
b. Truth and Amnesty Commissions
The South African Truth and Reconciliation Commission (TRC) was created to predicate South Africa’s peaceful transition to democracy and commenced a unique era in transitional justice. In 1996, 7,000 applications for amnesty were submitted for crimes committed over a 34-year period from 1960-1994. The TRC was designed to promote healing by providing amnesty for persons who delivered a full, accurate, and complete confession of political crimes to the commission within a certain set time period. Crimes that were not deemed political or where a confession was ruled to not be completely accurate were not given amnesty and the person that confessed to committing them was then subject to prosecution. South Africa broke from past truth commissions by having the power to grant amnesty, granting individual instead of blanket amnesty, and having extraordinary evidentiary, search and seizure, and investigative powers. Additionally, the Committee was subject to review by outside courts and established strict standards taken from international law to determine when amnesty should be granted. The amnesty process had a two-part objective; first to establish truth, particularly the motive of the perpetrators, and second to deter future violence. The amnesty process accomplished this determent by establishing how, why and the political objective of crimes.
The effectiveness of the TRC in South Africa, while widely emulated, has recently come under scrutiny. The criticism claims that the TRC did not, and could not have under its rules, accomplish the goals of amnesty and revelation of all political crimes. Supporters of this criticism believe that the amnesty commission’s rules created an incentive to associate one’s activities with a political connection, and thus gain immunity, when frequently crimes were more about individual malice then political intent. The Committee refused amnesty applicants who were found to have not acted under orders, broke ranks, or failed to inform their superiors after an operation. Another criticism of the amnesty process was that it effectively subverted the rule of law and violated the international legal conventions of which South Africa was a party. South Africa has an obligation under international law to prosecute human rights violators. However, the Inter-American Court of Human Rights, while striking down a blanket rule of amnesty, implicitly condoned the South African TRC as an effective implication of international human rights regimes.
c. Sierra Leone - UN Cooperation Example[111]
Sierra Leone provides an example of cooperation between international organizations and a war-torn country that was designed to assure justice and national recovery from a lingering civil war that was responsible for widespread human rights violations. After ten years of war, Sierra Leone lies mostly in ruin and faced with the daunting task of rebuilding a war torn nation where citizens were routinely required to view their neighbors as the next potential threat. The war left roughly fifty thousand people dead, impressed four to five thousand children into military service and required an unique solution dead. In response, the government of Sierra Leone and the United Nations agreed to create the Special Court for Sierra Leone. This court is not strictly an institutionalization of international law in the manner of the International Tribunal for Rwanda but a hybrid institution of both national apparatus and international law.
With a particular concern towards its large number of child soldiers, The Security Council created special exceptions for those child soldiers based on the age of the participants. This exception is based on a truth and reconciliation commission similar to the one created in South Africa. The Security Council resolved that anyone between the ages of 15 and 18 years of age at the time of commission of the crime, he or she should be treated in accordance with human rights instruments and imprisonment would not be an option. Instead of jail time, the Court examines alternative programs and services. The TRC and Special Court are separate entities with distinct but mutually supporting functions. While the Special Court is tasked with prosecuting those “who bear the greatest responsibility for crimes against humanity,” it is tasked with applying both international and local justice. A judge at a preliminary hearing determines if a child should be prosecuted or sent to the Truth and Reconciliation Commission based on how egregious the atrocities committed were, likelihood for rehabilitation, relative age, whether the children were exploited or were participating in the exploitation. Thus children can be prosecuted, rehabilitated through the Truth and Reconciliation Commission, or rehabilitated in an alternative way. The Sierra Leone Special Court and TRC provide an alternative to local, regional and international prosecutions for human rights violations.
V. Continent-Level Options
The Organization for Africa United, which became the African Union, established the African Charter on Human and People’s Rights (Banjul Charter), the African Commission on Human and People’s Commission, and the Permanent Court of African Justice.
a. African Charter on Human and People’s Rights (Banjul Charter)
The African Charter on Human and Peoples’ Rights (Banjul Charter) provides one possible foundation for the prosecution of war criminals on the African continent. Adopted by the Organization of African Unity at Nairobi, Kenya on June 27, 1981, the Charter was signed by 41 parties including the vast majority of countries in Africa. Included in the list of adopters are some of the nations involved in civil wars over the last decade including Rwanda, Sierra Leone, and Somalia. The relevant sections include Article 6 of the Charter, which ensures that every individual has the right to liberty and security of their property and Article 20, which ensures the right to existence. Additionally, Article 23 provides for the right to national and international peace and security. Further, this article carries an explicit requirement that states not allow their territories to be used for the type of subversive behavior that frequently leads to the accusations of war crimes. Taken together, these articles can form a legal basis for granting jurisdiction to the African Union to protect basic human rights.
The African Charter differs substantially from the European and American Conventions on Human Rights and provides a unique local perspective on human rights violations in Africa. The African Charter imposes duties in addition to rights and “codifies individual [rights] as well as peoples’ rights.” Additionally, the Charter combines political rights with economic, social, and cultural rights. However, the African Charter does allow for substantial derivation and reservation from the rights contained within. Not withstanding these differences, the African Charter is significantly more similar to the International Covenants on Human Rights then to the other two regional human rights regimes. The African Charter emphasizes African tradition and civilization and frames human rights in the terms of that tradition.
b. African Commission on Human and Peoples’ Rights
In order to protect the rights established under the Banjul Charter, the OAU established the African Commission on Human and Peoples’ Rights in 1987. The Commission is intended to ensure the protection of human rights in Africa and serves as an enforcement mechanism for any allegations of war crimes that violate the fundamental human rights guaranteed under the Charter. Under Article 45 of the Banjul Charter, the Commission is tasked with promoting human and peoples’ rights, ensuring the protection of those rights as laid down by the Charter, interpreting the provisions of the present Charter, and perform any other tasks which may be entrusted to it by the assembly of heads of state and government. In addition, the Commission allows for an inter-state complaint procedure and can consider “other communications” from other parties.
Before 1990, the African Commission was less visible than other human rights bodies and reluctant to challenge its member governments. The Commission continues to run into opposition on the grounds of national sovereignty due to the reluctance of many African states to cede political authority that they so recently regained from European powers. The Charter contains no provision for a court in which to bring human rights complaints, an idea that was explicitly considered and rejected by the drafters of the Charter. However, Article 66 of the Charter allows for special protocols or agreements to be added to the Charter at any point in the future and could allow for the introduction of a court.
c. African Court of Justice
In addition to the African Commission on Human and Peoples’ Rights, the OAU established a Court of Justice that is partially modeled after the International Court of Justice. However, the Court has never seen fit to extend its jurisdiction to cover human rights violations or specifically to war crimes. Moreover, the court has dealt with nations unwilling to enforce its judgments. While African states have been overwhelmingly enthusiastic about the creation of the institutions in their press releases, the monetary and physical support pledged to those organizations has been less free flowing.
VI. International Options
International options for the prosecution of human rights violations that do not rise to the level of war crimes include (1) specially created international tribunals, (2) the International Criminal Court, (3) the International Court of Justice, and (4) international human rights treaty regimes.
a. Specially Created International Tribunals - ICTR
The International Criminal Tribunal for Rwanda provides a ready example of an international alternative for prosecuting human rights violators in Africa. The ICTR is not strictly limited to the definitions of international crimes used by the ICC, but its scope does not extend far beyond those definitions and many human rights violations cannot be punished under it. However, given the unique international nature of the ICTR, a brief examination of its workings, with an understanding that it would have to have vastly expanded jurisdiction in order to effectively punish human rights violators, serves to demonstrate an additional option for accomplishing such a task.
With eight convictions and sixty indictments in its seven-year history, the ICTR is neither a model of speed nor efficiency. Furthermore, the ICTR suffers from the disillusionment and lack of internal support within Rwanda discussed in Section III, A, iv., supra. However, its widespread international acceptance and perceived impartiality lend legitimacy to the ICTR. The ICTR has the advantage of being able to apprehend the major figures in the Rwandan massacres that were effectively out of reach of the national governments. Furthermore, the ICTR’s hybrid international-national law and procedure allowed for some local customs, traditions, and laws to be incorporated in the search for justice for violations of what was essentially international human rights law and less so international humanitarian law. The ICTR, after some initial problems, has been a model for cooperation with local governments (or the best such model possible in a situation that chaotic) and its focus on the leaders of human rights violation campaigns rather then on the hundreds of thousands of individual violators suggests an appropriate approach for any attempt to enforce human rights norms. The lower-level individual violators are left to the national systems to prosecute or rehabilitate, and the leaders, with the attenuating political problems are prosecuted by the ICTR. This marriage of regional or international legitimacy to facilitate the difficult political prosecutions, while leaving the lower-level individual human rights violators to the national criminal and rehabilitation systems can be a model for bringing justice to all human rights violations throughout Africa.
b. International Criminal Court
The International Criminal Court, as designed by the Rome Convention, currently prosecutes the most egregious human rights violators. The ICC prosecutes individuals, as opposed to the state jurisdiction of the ICJ, for violations of international human rights and humanitarian law. Specifically, the ICC prosecutes genocide, war crimes, and crimes against humanity. This is an additional argument that the ICC could prosecute the crime of international aggression under Article 23 of the U.N. Charter but that argument remains undefined. The Court’s principles include responsibilities of leaders for actions of subordinates, not being retroactive, a statute of limitations, and responsibilities for actions of omission. Crimes against humanity include murder, extermination, enslavement, deportation, forcible transfer, deprivation of liberty, torture, and rape. States are required to give the absolute fullest cooperation to the ICC and a duty to transfer to the Court.
The ICC does not prosecute all possible human rights violations under international treaties. The ICC has jurisdiction over only “the most serious crimes of concern to the international community.” Clearly the four areas of human rights law and humanitarian law that the ICC prosecutes are the most severe, but the remaining areas of human rights law need to be addressed. The definition of crimes against humanity can be expanded to cover the entirety of existing human rights law by interpreting other inhumane acts causing great suffering or serious injury to body and health to include all violations of existing human rights treaties. Unfortunately, the human rights violations must be committed in a widespread or systematic attack. Additionally, the definition of war crimes can only be expanded by an amendment to the Rome Convention. There is no evidence that the ICC looking to be expanding its definitions in the near future. Thus a new protective enforcement measure is necessary to handle human rights violations that do no rise to the level of war crimes.
c. International Court of Justice
The International Court of Justice has, for the past sixty years, been the venue of choice for prosecuting human rights violations, again only in their most extreme forms of war crimes, committed by the state. The ICJ bases itself on international conventions, international custom, general principles of law as recognized by the civilized nations, and judicial decisions and teachings of the most highly qualified publicists of various nations. The ICJ has the added advantage of being able to utilize customary international law, as opposed to the ICC’s strict definitions of war crimes. Customary international law can be expanded and adopted to deal effectively with human rights violations in their various forms. The obvious drawback to the ICJ is that it can only prosecute state actors and is extremely limited in the penalties that can be proscribed. Furthermore, the ICJ is heavily dependent on the support of its member states in enforcement of its judgments and can only operate through the consensus of all parties involved. Clearly, a state accused of international human rights violations, and relatively aware of its guilt, could merely refuse jurisdiction. This important distinction severally limits the effectiveness the ICJ could have in enforcing human rights violations in the face of an unrepentant nation.
d. State Responsibilities Under International Regimes
States are liable to enforce human rights under the ICCPR, the Convention Against Torture, the Genocide Convention, and the Geneva Conventions. The Convention Against Torture requires states to affirmatively guarantee that individuals will not be tortured in a systematic nature, even by non-governmental entities, and ensures that all victims of torture shall have a right to redress and the Convention Against Torture provides similar protections against genocide from public officials. States are also required, by the ICCPR, to provide affirmative rights to be from harassment or persecution and the Human Rights Committee (HRC) was established to monitor all member countries and receive individual complaints. The Geneva Conventions of 1949 impose liabilities on states and the methods by which they conduct warfare. Unfortunately, the four Geneva Conventions only apply to inter-state wars with very little protections available for civil wars outside of the overall protections of civilian populations. All of these and other human rights regimes are based on the Universal Declaration of Human Rights. The HRC and corresponding regional organizations, like the Inter-American Court of Human Rights and European Court of Human Rights, would seem to be the ideal solution to filling the enforcement gap between the ICC and international human rights regimes. However, the international committee (as opposed to the regional courts) has no enforcement mechanisms per se. Additionally, these international regimes have been less then consistent in their enforcement of human rights.
VII. The Proposed Solution
a. Why the Existing Enforcement Mechanisms are Not Adequate
Clearly existing enforcement mechanisms have not effectively deterred human rights violations in Africa. The question then becomes whether any enforcement mechanism would better deter future war crimes and would simultaneously provide an acceptable path to bring justice and healing to war- torn lands and peoples. The fact that Africa is the only continent that has a human rights charter without having a corresponding court to enforce those rights is a glaring omission that must be addressed. A human rights charter is an excellent starting point, but rights without enforcement is a dream without the ability to make it into a reality. The chaos and tragedy that has engulfed too many states on the African Continent can only be combated with strong laws and even stronger enforcement measures.
Local, national, and international law, standing alone are not sufficient to protect human rights in Africa. International law suffers serious enforcement concerns. While the ICC is an important step in the right direction to bringing effective enforcement mechanisms onto the international scene, no enforcement mechanisms are available to cover the gap between international war crimes and violations of human rights that do not rise to the level of war crimes. Individuals and states have shown a willingness to flagrantly disregard the international human rights instruments to which they are a party. National and local law have similarly been unable to prevent human rights atrocities and have had limited effectiveness in prosecuting those violations. Some local initiatives, including the TRC in South Africa, have been widely successful but the lack of a standardized format for these local initiatives require a continent-wide body to enforce international human rights and the rights guaranteed under the African Charter.
b. The Proposed Expansion of the African Court
The best solution to ensure effective and efficient prosecution of African human rights violators while still allowing local alternative measures to help heal the divisions of war torn countries is to expand the power, jurisdiction, and resources of the African Court to enable it to effectively prosecute those violators. The Court would have the ability, not only to prosecute criminals, but also to recommend alternative measures such as truth and reconciliation commissions to the countries in question. This proposal would vest the African Court with the ability to proscribe an individual approach to each incident that would best suit the individual needs of the situation while satisfying both international obligations and requirements necessary to allow the justice necessary to provide for the future of the afflicted countries.
The proposed expansion to the African Court would be heavily based on European Court of Human Rights and the Inter-American Court of Human Rights. These adjudicative bodies interpret and enforce their respective human rights charters with a great deal of control over the member countries. The expansion of the African Court to cover these duties will provide the necessary enforcement mechanism to deal with human rights violations while maintaining the continuity of the Court. This court can best function by having the discretion to enforce international human rights law, the African Charter, and local reconciliation and rehabilitation measures. These three areas of law (and any other relevant international and domestic law) could be combined by the judges to fashion a solution that is most relevant to the situation while still complying with international law.
Jurisdiction and monetary issues for this new court would have to be arrived at via a new continent-wide treaty. Thus jurisdiction would be absolute once a country signed the treaty and reservations or derivations would not be allowed. Furthermore, continued enjoyment of the benefits of the African Union for a country would be contingent upon the signing of |
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