Charles Taylor and an African justice

Once upon a time, when he was free.

by Joseph Markus

Charles Taylor was convicted yesterday by an African court sitting in the Hague (predominantly) of aiding and abetting the commission of various war crimes.

The press has focussed on two important angles to this. One is the obvious boost this conviction provides to the idea of international(ised) criminal courts in general. Taylor was convicted by the Special Court for Sierra Leone, the product of an international agreement between the United Nations and Sierra Leone. It shows that they can—at immense cost (approximately $250 million)—work.

The second, and less obviously plausible, is that the conviction of Taylor is part of some elaborate plot to humiliate and diminish Liberia. This does, though, tie into another major perceived flaw of the other mainstay of international criminal law, the International Criminal Court. It is a criticism that has gained considerable traction in recent days.

Between 7-15 May 2012, the Ministers of Justice of the African Union will meet to discuss a Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights. The meeting is, in all probability, a response to that flaw.

The popular understanding of the problem recognises that the first aspect of the charge is selectivity or, more boldly, imperialism. This is the issue that the Court has almost exclusively been ‘targeting’ African nations (although the pejorative language—‘target’—is less than helpful).

Another facet has been the way in which, under the direction of the UN Security Council, the ICC has issued an arrest warrant against Omar Al-Bashir, the sitting President of (north) Sudan. The AU responded angrily to this attempt to indict a sitting Head of State (one of only a very few such indictments). Complaining that the issuance of an arrest warrant against a Head of State is contrary to that individual’s immunity ratione personae (‘personal immunity’), the AU called for the warrant to be dropped and encouraged something akin to a campaign of civil disobedience amongst Union member-states. This came to a head in the recent failure of Malawi—joining Kenya, Chad and Djibouti—to hand over Al-Bashir to the ICC when he visited the country.

In some sense the idea of an African Criminal Court is a knee-jerk and ultimately political reaction to these perceived problems. In reality, if the cause of international prosecution (because, fundamentally, this is what the ICC does) is the true goal a separate court diminishes this cause by de-centring and disempowering the ICC, reducing the value and worth of its judgments in the eyes of at least a substantial portion of the global community.

Returning to Mr. Taylor’s case, it’s hard to draw generalised lessons from the trial. The SCSL represented a highly specific mechanism tailored to a very particular set of circumstances. Additionally the taint of imperialism or selectivity cannot realistically be attached to that Court.

In fact, perhaps the most interesting question here—whether international(ised) prosecutions are useful tools in the fight for (international) justice—is still not readily capable of being answered. Whether or not the great expense of the whole exercise puts you off the idea depends on how highly you can value the prospect of high-level convictions. Whether or not the prosecution was valuable as part of post-conflict transition is similarly contestable and a difficult issue on which to come to a settled view.

There is much talk—some cynical and some less so—about international justice and the fight against impunity. In reality those concepts are not as deceptively simple as advocates of the platitude would make out. Whatever their meaning, however, it seems clear that ‘justice’ in any given context is localised, contestable, and, significantly, not always susceptible to international definition.

And perhaps, then, the only really worthwhile and longer-term insight this case can provide is this: that not everyone can agree on what justice requires in any given scenario. That some may have agreed with Taylor’s prosecution and others not. That some may agree with the method of proceeding against a sitting Head of State and others not (for instance, many would suggest it is a weighty strategic blunder: following the issue of the warrant Al-Bashir immediately expelled a number of care-providing humanitarian NGOs).

The case for an African Court may be no more than a plea for an African justice. Whatever is to be taken from Taylor’s case, at minimum, a sensitivity to the significance of local definition and local support should be at the forefront.

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