Paving the way? Africa and the future of international criminal law.

Position:Proceedings of the 101st Annual Meeting of the American Society of International Law: The Future of International Law - Discussion

The panel was convened at 1:00 p.m., Thursday, March 29, by its moderator, Vincent Nmehielle of the Special Court for Sierra Leone, who introduced the panelists: Vernice Guthrie-Sullivan of the ABA Africa Law Institute **; Jeremy Levitt of the Florida International College of Law; and Simone Monasebian of the UN Office on Drugs and Crime. ([dagger])

INTRODUCTION

By Vincent O. Nmehielle ([double dagger])

It is indeed my pleasure to welcome you all to the panel organized by the Africa Interest Group. The theme of the panel is "Paving the Way? Africa and the Future of International Law." A close observation of the current happenings in the field of international criminal law would show that Africa appears to have become the scene of interest in the application of international criminal law mechanisms. You may want to look at the International Criminal Tribunal for Rwanda, still going on after about eleven years. You may want to also look at the Special Court for Sierra Leone, which is in its fourth or fifth year of operation. In the case of the Special Court for Sierra Leone, you have the so-called biggest case of Charles Taylor, the former president of Liberia, which everyone seems to be interested in. More importantly, if you look at the International Criminal Court (ICC), you would find that all current indictees are from Africa. The question that I ask is: why has Africa become the theatre of international criminal law? This is particularly so in the case of the ICC, which has come to stay as the permanent international criminal tribunal. From all indications, Africa seems to be the continent earmarked to provide ready supply of indictees to the ICC.

I intend to prove a number of issues around what I think on this question. As has been noted in the program, I come from the Special Court for Sierra Leone where I am the Principal Defender of the Special Court. I have a lot of questions to ask from my perspective. But I am a moderator and not a panelist per se and therefore my job is a very easy one because I just read out what the panelists have to say and allow them to say it while I watch to tell them what time to stop. That appears to be my role, but beyond that, as someone involved in the same theatre, I have issues, one of which I have raised: why has Africa become the theatre of international criminal law? And to what extent would that involvement shape future trends in international criminal law? Could it be that other people ought to be within the same theatre, but are not because they are not Africans? In other words, because they are more powerful than Africans in terms of being dragged to the international criminal process? What about the tendency to forgo international agreements and compromises in relation to international criminal trials? Why must a state be forced to accept someone for purposes of creating peace, and later on the same state is asked to surrender him/her for prosecution? These are questions that I will ask as we go on with the panel.

I think I should be able to provoke the panel and the audience on these issues. Our panelists have great expertise, gained from perhaps different angles of the discourse, who may not agree with wholly from my perspective but who will want to propound their own views of what the future holds for international criminal law in relation to Africa.

Without wasting much more of your time, having raised questions rather than answers, I am hoping that the people who have the bigger job to do will be able to answer the questions that I raised.

I would like to introduce members of the panel. On my far left is Simone Monasebian who has undergone the gamut of both prosecution and the defense and now is part of the UN system. Simone is a lawyer by profession, and prior to being a trial attorney at ICTR, she was a private legal practitioner in New York. She was the first substantive Principal Defender of the Special Court for Sierra Leone. So Simone comes with practical experience in applying international criminal law standards in Africa both from the prosecution and defense points of view. She will be elaborating on the practical aspects in terms of the relationship between the future of international criminal law and Africa. Simone is currently the United States Representative of the UN Office of Drugs and Crime.

The next panelist is Professor Jeremy Levitt of the Florida International University School of Law. Professor Levitt is an Associate Professor of Law and the Director of the Program on Human Rights and Global Justice in the law school. Jeremy will be speaking from the angle of peace building--the legitimacy of power sharing with rebels and war lords as exemplified in Africa. He will discuss whether peace derived from such power-sharing initiatives is indeed a legitimate peace.

Our third panelist is Vernice Guthrie-Sullivan, the Director of the ABA Africa Rule of Law Initiative. Vernice will be looking at the application of the standards that have emanated from the various international criminal mechanisms in other African regional initiatives such as the African Court on Human and People Rights as well as in the domestic legal system in the continent.

AFRICA, INTERNATIONAL CRIMINAL COURTS, AND PEACE BUILDING: REFLECTIONS ON THE EXPERIENCE OF AD-HOC AND MIXED TRIBUNALS

Simone, Monasebian ***

"True peace is not the merely the absence of tension: it is the presence of justice."

-- Dr. Martin Luther King, Jr., in Letter From Birmingham Jail, Apr. 16, 1963.

In the course of one hundred days--from April 7 to July 15, 1994--between 800,000 and 1,000,000 Rwandan civilians, predominantly of the Tutsi ethnic minority, were killed by their neighbors: the equivalent of three World Trade Center bombings a day for 100 consecutive days. In Sierra Leone thousands were killed and maimed over almost ten years of conflict beginning in the early 90s.

In 1994 UN Security Council Resolution 955 created the International Criminal Tribunal for Rwanda (ICTR), while Resolution 1315 in 2000 created the Special Court for Sierra Leone (SCSL), a second international criminal court on the continent.

In the dozen years since the passage of Resolution 955 we have seen at the ICTR, twenty-seven convictions and five acquittals, twenty-seven more accused with cases in progress, nine more awaiting trial, and eighteen more at large. For 2006-2007, the UN General Assembly appropriated for the ICTR a total budget of $269,758,400 and authorized 1,042 posts.

In the half dozen years since Resolution 1315, we have seen nine defendants standing trial at the SCSL, and one awaiting trial in June 2007. The SCSL has approximately 341 staff members, and its budget for the 2005-2006 cycle was over $25,000,000. An important legacy of the experience of these courts is that twenty-nine of the 104 parties to the Rome Statute of the International Criminal Court (ICC) in The Hague, as well as the first three cases opened by the ICC are in Africa. The ICC has a staff of 250 and a budget of over 66 million [euro] for 2005.

The precedential value of these courts has and will shape the future of...

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