#ICC: The demise of State-Referral? (Part II)

Last week we examined in an introduction, the continued withering of the state-referral technique of triggering the ICC jurisdiction, This week we continue by exploring further why states are now not ready to refer themselves to the Court. William Schabas, the criminal law guru, in an edited volume (The International Criminal Court and National Jurisdictions) views the state-referral technique as a 'trap for the court'. He writes: "If a State refers a situation against itself, that is, against its rebels, in the context of a conflict, it is doing so with a result in mind." He argues that for a state like Uganda, the result involved withdrawing the threat of prosecution in exchange of something. As pointed out in the previous posting, state-referrals have been used by governments to deal with dissidents and in the cases of Uganda and CAR, rebels that fought the government. It has also been argued that this mode of referral was also used by governments to pass responsibility to another party, and in this case the ICC, under the excuse of being willing but unable to prosecute international crimes. 

All the eight cases/situations before the ICC are all African in nature. This has been interpreted in various quarters but mostly in Africa as an affront to Africa's sovereignty while others have argued that the ICC is targeting Africa and Africans. Since the last state-referral in December 2004, there have been no further referrals pursuant to article 14. The UN Security Council referred the Darfur situation to the ICC in march 2005 while other cases have been initiated by the Prosecutor's proprio motu mechanism. States have been encouraged to assume obligations on crimes of international nature committed in their territories. States are more and more viewing the state-referral as a 'trap' by the ICC. When the African Union (AU) adopted a Resolution regarding the International Criminal Court in October, 2013, it was a statement that no other African country will refer itself again to the Court. At the nascent stages of the ICC, state-referrals gave the Court credibility. With the seemingly geographical targeting, state-referrals will wither.  

States now view the self-referral method as selling its sovereignty to an external party. When Kenyan legislators in 2013 voted to withdraw from the ICC, they did so in an act of defiance. Kenyan President Uhuru Kenyatta and his VP William Ruto face criminal charges before the court. The legislators just like the AU resolution, saw the ICC as targeting Africans and infringing on their sovereignty. It looks unlikely that another African or indeed any other state party to the Rome Statute will refer itself to the ICC in the new future. Regardless of the imminent demise of state-referral technique, the ICC is facing many other challenges mostly on its credibility. Many have questioned its selective method of cases while at the same time it not initiating investigations in cases where crimes against humanity, war crimes continue to be carried out. The Court needs a reevaluation of its mandate, legality and its future.   

#UraisTanzania2015: A New Brand in Tanzanian Politics

When the results of the Nyalali Commission were released before the return to mulipartism in Tanzania in 1992, a whooping 80% of Tanzanians were against multiparty democracy. Despite these findings, the Commission recommended the introduction of multiparty democracy. The Commission, in its own admission observed that the 80% had known no other system than the single party dictatorship of CCM and that was what informed their response. Tanzania went on to adopt the Political Parties Act and Tanzania became a 'multiparty democracy'. Despite the registration of a number of parties, the ruling party CCM maintained and continues to somehow maintain its hegemonic status. This change was at the time alien to many Tanzanians and indeed many African states. The democratization brigade came alongside the fall of Berlin wall and according to Francis Fukuyama's postulation "the end of history" and the triumph of liberal democracy. The change heralded a new beginning to politics in Tanzania.

As Tanzania approaches its fifth multiparty election next year, we are witnessing a new brand of politics. The ruling party continues to enjoy virtual voter monopoly, largely due to its propaganda machinery and state-controlled resources. There still is no real inner-party democracy in Tanzania despite the party election facade often witnessed. Senior party positions are controlled and influenced by external influences mostly borne out of economic interests. During the first CCM presidential nominations, it is believed Mwalimu Nyerere's choice of candidate influenced the process. It is not known who his heir apparent was  before he died in 1999. President Jakaya Kikwete succeeded Benjamin Mkapa, who was regarded as a Nyerere's protege. With the elections next year, many names are already cropping up with the grand-old party CCM. The race seems to pit the young versus the old. The discourse has degenerated into youthfulness versus octogenarians. When youthful assistant minister January Makamba publicly stated his desire for the country's top job in July this year, a host of other names in the green-party have cropped up. Names such as the the ex-Prime Ministers Edward Lowassa and Fredrick Sumaye and current PM Mizengo Pinda. Other names are William Ngeleja, Mark Mwandosya, Bernard Membe, Asha-Rose Migiro, Prof Anna Tibaijuka, Mwigulu Nchemba, Samuel Sitta and most recently Hamisi Kigangwalla. The green party, unaccustomed with this new brand of politics, went on to call a disciplinary committee to look into the declarations made by its members to run for the top job. However, those who have so far put forward their interest have done so in a modern way. For instance Dr. Kigangwalla launched his bid with a speech flanked by his wife and children and his parents where he outlined his vision for the country. He also launched a social media campaign with harsh-tags.   

Experienced democracies world over teach us the values of internal party democracy. Values where each individual has the right to declare his vision to run for office. But that being said, it is imperative for those who seek office to do a self-examination and see if they fit the bill. In as much as democracy allows free-will, we should understand that leadership is service and not a job. The presidency is an institution that calls for individuals of high moral character, integrity and servitude.

This new brand of politics is needed for political maturity both at the party level and nationally. Tanzanians should embrace this as a sign of increased democratic space but in the same light do a thorough scrutiny to those who have declared their interest for the top job.     

#ICC: The demise of State-Referral?

The International Criminal Court is a Court of last resort. The Court is a permanent institution with powers to exercise its jurisdiction over persons who bear the greatest responsibility for crimes of international concern. Conscious of the history of criminal acts against people, the world envisaged to repress such crimes through the creation of a permanent criminal tribunal. The atrocities committed are now monitored by the ICC by bringing the perpetrators who bear the most responsibility to justice. Even with the legal backing, the ICC has faced challenges on the question of cases it brings to book and the situations it omits. Equally, the ICC has had its detractors as well as proponents. 

The Court's jurisdiction can be triggered by three ways. The first is the state-referral or the self-referral, the second is through the UN Security Council referral and the last is through the prosecutors own volition also referred to as proprio motu. Of particular interest, we shall look at the 'self-referral' or 'state-referral' technique of triggering the Court's jurisdiction. Article 14 of the Rome Statute of the International Criminal Court allows a State Party to refer a situation, including crimes committed within the state's own jurisdiction, to the ICC Office of the Prosecutor (OTP) for investigation. There is no doubt, this mode of referral has had controversies among legal scholars. It is worth noting that of the eight situations at the ICC, only the first three were state referrals. It has been argued, rightly so, that self-referrals are inconsistent with the independence of the Court and its complementarity principle. Others have argued that state-referrals have been used by governments to fight oppositions in their countries. The initial referral to the ICC was the Uganda self-referral in 2003. The government of Uganda referred the situation in northern Uganda where atrocities were being committed by the Lord's Resistant Army (LRA). In March 2004, DRC also referred the situation in the Ituri region in Congo to the Court. And in December 2004, the OTP received another self-referral from Central African Republic. Self-referrals are well within the confines of the complementarity principle in Article 17.  Article 17 on admissibility of cases, points out that a case is admissible only when a state is unwilling and genuinely unable to prosecute a case. 

Are we seeing the demise of state-referral?

We continue from here in a subsequent posting.....

 

Lest we Forget Libya!

Every week we look at an article that is making inroads in the field of international relations. In the recent weeks, the world has been grappling with the war in Gaza, the Ebola outbreak in the Western African states of Sierra Leone, Liberia, Guinea and Nigeria. The embers of the conflict in Ukraine seem to be cooling off while infighting in Iraq has seen America sending rescue missions. Closer home in Tanzania, there seems to be no answer to the constitution deadlock. I hear the ruling party is flexing its political muscles while the UKAWA group remains intransigent. 

On Libya. While the global media casts its cameras in Gaza, Ukraine, Iraq and West Africa, the infighting in Libya seems to be forgotten. I asked my Canadian-Libyan friend Amjad how Libya was fairing after the fall of Gaddafi, and his answer was "The militants have taken over". Foreign Policy Magazine in the Passport series looks at the situation in Libya. Titled "Don't look Now, but Libya is Falling Apart", the author,  Siddhartha Mahanta, explores how the militants are fighting for the control of the oil wells in Libya. NATO intervention in Libya in 2011 which led to the fall of Muammar Gaddafi has been a subject of international debate. When the UN Security Council passed Resolution 1973 for a no-fly zone over Libya on 17 March 2011, the fall of Gaddafi was inevitable. The legitimacy of the resolution under the pretext of Right to Protect (R2P) is also a subject for debate. Critics of the UNSC further highlighted its flaws with the passing of Resolution 1973. 

Libya is now in the hands of hungry militants who are fighting themselves. One wing of the militants are aligning themselves with Islamists. Just like Iraq was stable under Sadam Hussein, so was Libya under Muammar Gaddafi. One excruciating fact is that both countries were undone by UNSC resolutions, which were against international law norms. As ISIS continue to wreck havoc in Iraq, the militants in Libya will get more radicalized. At whose expense was the brutal removal of Sadam and Gaddafi? The people of Iraq and Libya must be cursing and questioning the motives of the powers that be. But as we say in international relations, albeit in the realist thought, 'States pursue power at all cost and their primary concern is state survival'. 

 

#US Foreign Policy: Similarities in President Obama and Bill Clinton Approaches

Every week we look at an article that is making waves in the world of international relations. This week we look at the US foreign policy. The latest issue of Foreign Policy Magazine looks at the decline of America's world influence. In what they term as 'declinism', the issue, drawing largely from Samuel Huntington's postulation of American tendency to fear decline, looks at how America's global influence in dwindling. Paul Kennedy's book The Rise and Fall of the Great Powers which has given a historical account of the rise and fall of great civilizations has been used as reference to this seemingly American decline. Has America hit the Peak as FP discusses?

Reading Stephen Walt's opinion in the FP Magazine, he tries to explore the FP prospects of Madam Hillary Clinton if she wins the Democratic nomination and win the presidential elections in 2016. Walt asserts that "With her knock against Obama, Hillary Clinton was criticizing [during her interview with Atlantic] more than one former president's foreign policy." He goes on to explain the similarities in foreign policy between President Obama and President Clinton. It makes an interesting reading observing the distinct similarities of the two when it comes to formulation, approach and execution of FP goals. Walt cheekily calls it Obama's  (Bill)-Clintonesque approach. See article for further analysis.

 

CCM reading from KANU script, we all know what happened!

Having grown up and gone to school in Kenya at the height of their 'second liberation' one thing was clear: people power reigns. When the agitation for reforms started in the late 1980s, KANU government in a chutzpah fashion cracked its whip by harassing and jailing dissidents. Coinciding with the fall of the Berlin Wall that marked the triumph of liberal democracy, the reform agenda gathered momentum in not only Kenya but the world over. An intransigent President Moi and his government agreed to repel section 2A of the constitution and Kenya became a multiparty democracy in 1991. Despite the opposition loosing the 1992 and 1997 elections, they continued pressing the Moi regime calling for reforms. The opposition saw constitutional reforms as the only way out. When calls for minimum reforms were thwarted by the Moi regime in 1996, prior to the elections the following year, the writing was on the wall for Kenya. Moi went on to easily beat his opponents in the elections in 1997. 

Calls for reforms did not end there. The opposition together with other pressure groups coalesced demanding for change and constitution reforms. A Commission for Constitution Reforms of Kenya was set up in 2000 after intense pressure. Moi regime had began to cave. Despite the brouhaha, Moi continued to dillydally on the process. President Moi anointed Uhuru Kenyatta as his heir apparent since his term was coming to an end in 2002. This did not augur well with a section of KANU politicians who jumped ship. Led by Raila Odinga and a host of other political figures such as George Saitoti, Kalonzo Musyoka, Simeon Nyachae, Mwai Kibaki, Moody Awori, Charity Ngilu and many others coalesced and formed a formidable NARC coalition ahead of the 2002 election. Their agenda was to remove KANU from office and  a championed for a new constitution. Law and behold, the indomitable KANU was resoundingly defeated. Legends and tales of the 'Jogoo' party are still told to date. Ironically, CCM, the 'independence' party seems to be reading from KANU script. With the constitution process in Tanzania at a deadlock, CCM has refused to yield to the opposition demands. 

Tanzania is not Kenya when it comes to politics, neither is CCM KANU. But lest we forget, as Aldous Huxley postulates 'that men do not learn very much from the lessons of history is the most important of all the lessons that history has to teach". 

Democracy versus Stability: Political Reconciliation and the Government of National Unity in Zanzibar

A Government of National Unity was set up in Zanzibar after protracted peace efforts between two historical rival parties CCM and CUF in 2010. The GNU was pre-election pact sealed after the Maridhiano Talks between the Zanzibar president Amani Karume and CUF leader Maalim Seif Shariff Hamad in November 2009.  This move heralded a new beginning in Zanzibar. Despite this fact, I assess in the article the prospects of democracy vis-à-vis stability in the isles.

 

Please find the full article from the digital forum Kujenga Amani, a forum of the African Peacebuilding Network (APN) of the Social Science Research Council (SSRC) here: