Regionalization of International Criminal Law on the African Continent?: Ubuntu and Amnesty

On 15^th December 2009, the African Court on Human and Peoples’ Rights (ACHPR) rendered its (much awaited) first decision – In the Matter of Michelot Yogogombaye v The Republic of Senegal.[1] In the case, Michelot Yogogombaye brought an application against Senegal with a view to suspend Senegal’s ongoing legal proceedings against Hissène Habré, former President of Chad.[2] Habré is suspected of complicity in crimes against humanity, war crimes and acts of torture in Chad between 1982 and December 1990.[3] Yogogombaye alleged that Senegal had violated the legality principle by amending their Constitution to authorize “retroactive application of its criminal laws, with a view to trying exclusively and solely Mr. Hissène Habré”.[4] Although the ruling did not move beyond the merits in finding that Senegal had not accepted the Court’s jurisdiction,[5] some of the arguments outlined deserve attention. In this case note I will focus on the arguments on the issues of amnesty to draw out the regional flavour in the approach.

Amnesty and Ubuntu: Shared objective?

An interesting feature in the judgment was that Yogogombaye urged the Court to order that Senegal utilize the philosophical concept of ubuntu to develop a national “Truth, Justice, Reparations and Reconciliation” Commission for Chad on crimes committed between 1962 and 2008.[6] Ubuntu (or African Humanity) is a philosophy that attempts to capture the intersection of justice and humanity by essentially asking: how does one keep their humanity after being wronged? This was underscored in the South African death penalty case (Makwanyane)[7] which recognized that to be consistent with ubuntu, a society must not kill criminals just to get even with them. Ubuntu therefore yields amnesty as seen in the South African Truth and Reconciliation Commission.[8] But are the objectives of amnesty and prosecution truly conflicting when viewed through the lens of ubuntu? I suggest that they are not. Ubuntu encompasses both justice and forgiveness. As such, attaching the label of guilt through prosecution would not really take away from the dignity attained through forgiveness. Indeed, the conversation would merely shift from the pre-trial stage to sentencing. In AZAPO,[9] the Court contended amnesty was needed in order for a ‘historic bridge’ of transition (and truth) to be erected.[10] In a post-war/apartheid community, this is true without ubuntu. Whether Habré’s crimes fit within the historic bridge framework of healing peace after war would therefore have been an interesting discussion for the ACHPR to consider. Ultimately, given the difficulties confronted in defining ubuntu,[11] transposing the ubuntu concept onto the regional stage would be risky. 

Balancing Amnesty, Human Rights and the Crimes in Question

There is arguably a human right to a remedy blocking automatic amnesty through the ubuntu principle. Though due process rights are traditionally attached to the accused in domestic criminal law, at the international level the approach is more victim oriented. In AZAPO, the Court found that an amnesty grant violated a victim’s right to seek remedy.[12] Further endorsement comes from the Velasquez[13] case where Inter-American Court found Honduras to have violated Velasquez’s human rights by failing to seek a remedy on his behalf.[14] Thus an individual may seek remedy for violations by Habré independently or through the agency of Senegal.[15]

In weighing the seriousness of the crimes in questions, I contend that amnesty rooted in ubuntu would be insufficient. The prohibition against torture has jus cogens status and as such, States are under a duty to bring to justice those responsible.[16] Further, national grants of amnesty are incompatible with the duty of States to investigate torture.[17] (This is a tentative position as the SCSL noted in the Lomé Decision that the norm that a government cannot grant amnesty for serious violations of crimes under international law is “crystallizing”).[18] Indeed, I suggest that to grant Habré amnesty for crimes against humanity and torture would run counter to the spirit of ubuntu. This principle of accountability is highlighted by the fact that the ACHPR’s enabling statute, like that of the ICC, has no provision for a blanket prohibition on amnesty and such a provision would be antithetical to the purpose of the ICC.[19]

Horizontal vs. Vertical Amnesty

Though case law shows that national amnesties are not captured by international courts, there is still the outstanding question regarding national amnesties in national jurisdictions. To what extent can a regional or international court interfere with domestic grants of amnesty per Yogogombaye request? Can national amnesties within a national jurisdiction be disregarded based on international law? While the answer is unclear, I suggest that such a power would be very expansive. Further, given the Lomé Decision ‘crystallizing’ position, the separation between international and national amnesties seemingly persists. The interplay of the international and national has been much in the news as a result of the trial of Spanish judge Garzon’s application of international case law to national amnesties; this should soon provide some insight into opinio juris.

Conclusion

Although the ACPHR rendered a reserved decision, it seems clear that the future of the Court will involve weaving regional customs into international criminal law. The argument for use of ubuntu as the underlying principle for amnesty however struggles on grounds of varying definitions as well as a general mood at international law against amnesty for massive human rights violations. Regionalization should however remain an important objective for it is only through customization that a general consensus under the banner of impunity can be achieved.

[2] Ibid at para. 1

[3] Ibid at 18

[4] Ibid at 20

[5] Ibid at 37

[6] Ibid at 23

[7] Georgia State University, online:www.law.gsu.edu <http://law.gsu.edu/ccunningham/fall03/DeathPenalty-SouthAfrica-Makwanyane.htm at para. 130

[8] See ICRC “Azanian Peoples Organisation (AZAPO) and others v. President of the Republic of South Africa” online: www.icrc.org < http://www.icrc.org/IHL-NAT.NSF/39a82e2ca42b52974125673e00508144/067632d55386102cc1256b09003f0eac!OpenDocument >

[9] Ibid.                             

[10] Ibid. at 19

[11] Africa Journals Online “Ubuntu and the Law in South Africa” online : www.ajol.info <http://ajol.info/index.php/pelj/article/viewFile/43567/27090> at 2

[12] To be fair, the Court overrode this violation by stating that the grant was justified by the doctrine of the need of the State. Again, South Africa was in the midst of immediate transition at the time. It would have been interesting to see how the ACHPR characterized the Habré situation.

[13] University of Minnesota Human Rights Library “Velásquez Rodríguez v. Honduras”online:www.umn.edu  <http://www1.umn.edu/humanrts/iachr/b_11_12d.htm>

[14] Ibid. at 174.

[15] (if any Senegalese people were affected by Habré’s actions).

[16] Darryl Robinson, “Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court” (2003) 14 EJIL 482 (Robinson); see also Prosecutor v. Anto Furundzija (Furundzija);

[17] Robinson at 492.

[18] Prosecutor v. Moinina Fofana, Special Court for Sierra Leone, SCSL-2004-15AR72(E).

[19] Robinson supra note 17.

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