Is international law fair in Africa?

Dr Nicola Palmer

Good afternoon, everyone. Hi, I’m Dr Nicola Palmer. I’m a Reader in Criminal Law, joining you from King’s College London, and it’s really fantastic to have this opportunity this afternoon to welcome you to the Chatham House discussion of Is International Law Fair in Africa?

Now, it’s – before I introduce you to our fantastic collection of panellists, a few brief housekeeping notices. So, the first is just to say that this is on the record and we are recording this discussion, in order to enable some people who weren’t able to join us, to follow the important exchanges we will be having and, in addition, we also have language interpretation available. So, you’ll see on your Zoom that there’s an ‘interpretation’ button and you can following the proceedings in French or in English.

And so, with that in mind, let me start by introducing our speakers for today. So, we are going to be talking about the rather challenging and provocative point of Is international law fair in Africa? And to start us off, we will hear from Dr Kerstin Bree Carlson, who’s going to offer us a brief overview of her very recent book, “The Justice Laboratory: International Law in Africa,” which has been recently published with Chatham House in the Brookings Institute Press Insights series.

Now, Kerstin is an Associate Professor at Roskilde University in Denmark and is an affiliate of the iCourts at the University of Copenhagen and the American University of Paris. She is also the Author of multiple books, including the monograph, “Model(ing) Justice: Perfecting the Promise of International Criminal Law,” which came out with CUP in 2018, and she’s the Co-Editor of “The President on Trial: Prosecuting Hissène Habré,” which is an edited collection that came out with Oxford University Press in 2020.

Now, Kerstin will lead us with an overview of the book’s argument, but I will take this opportunity to introduce all of our panellists, so that we can get a flow of discussion going. Our second panellist is Professor Alex de Waal, who is the Executive Director of the World Peace Foundation and, also, the Research Professor at Fletcher’s School Tufts University and a Professorial Fellow at the London School of Economics. Now, Alex’s recent books include, “Mass Starvation: The History and Future of Famine,” which came out with Polity in 2018, and very – in a very timely contribution, “New Pandemics, Old Politics: Two Hundred Years of War and Disease and its Alternatives,” which came out in 2021. He has served in a range of senior positions, including as a Senior Advisor to the African Union High-Level Panel on Sudan and South Sudan.

Next, we will hear from Jacqueline Moudeïna, who is a Lawyer and Human Rights Activist from Chad. Jacqueline knows first-hand what’s in – what’s at stake in pursuing legal accountability of state violation. She filed the first complaint against the Former President of Chad, Hissène Habré, on behalf of his victims and she’s widely credited with playing a central role in bringing him to the Special International Court in Dakar, Senegal, which we will be discussing, at least in part, over the next few minutes. She also filed the initial complaint in 2000 that ultimately led to the domestic convictions of 20 Chadian officials before the domestic courts and she has been the recipient of the Right Livelihood Award in 2011 and for – recognised for the actions of brave visionaries who’ve played a role in building impactable connections around the world, and the Alison Des Forges Award for Extraordinary Activism in 2013.

And then, we will also, finally, hear from Dr Peter Brett, who joins us as a Senior Lecturer in International Politics from Queen Mary University of London and has written on a wide variety of topics, relating to the politics of international law in Southern and West Africa. I am sure it will be a very thought provoking discussion and with that in mind, I hand to Kirsten now. Thanks.

Dr Kerstin Bree Carlson

Nicola, thank you very, very much. Thanks, everyone, for being here. Thank you, panel, for agreeing to come and speak and debate with us. Thanks, participants, for being part of the conversation. So, I want to, sort of, very quickly give you an overview of why I wrote the book and what the book is about. So, in a sense, I think there are, essentially, three central reasons why I wrote the book and it’s designed to be, sort of, an everyman’s introduction to international law in Africa, which is already a, sort of, a difficult and perhaps unusual, task to take on, because of course, you need to be as rigorous as one would be in any academic setting, but then, also, you need to try and be thinking about things in a way that makes them accessible to people who are just generally interested in international law or in courts in Africa.

So, I set out to do that with the book and you can be the deciders as to whether or not I succeeded, but really, the book starts as an attempt to make mainstream a series of conversations that have been happening in specialist literature for two or three decades. So, part of that has to do with the possibility for international criminal law to effect change, to address social violence, but part of that also has to do with the topics and specialisations of conversations that are happening in individual African countries, or in individual fields across Africa. So, part of what I was doing with the book was delving into specialist literature, so things that are, in a sense, common knowledge or main discussions, but in corners of literature that might not be known to everyone and bringing them out, in a sense, in, hopefully, an accessible way.

Secondly, the book wants to try and decolonise international law, which perhaps is a strange thing to do from my position in the Global North, that trained in the United States as a Lawyer and a PhD, working in Denmark as a Law Professor. But the book really seeks to try and let the narratives of locals, to the degree I can, take hold of the conversations that are had about what happens in these local places. So, I think a lot of the way that international law is positioned and introduced often has to do with a didactic teaching capacity, right, a perfection of a way of doing things that can be introduced to the rest of the world. I, clearly want to challenge that. This book seeks to challenge that and in part, it’s doing that through a conversation, what is hopefully a conversation about what the assumptions that international law brings with it are, and how those assumptions are problematised, how they work and how they don’t work when they meet local politics and circumstances.

And then, finally, I wanted the book to be interesting and I wanted it to tell stories about the law that would engage people in these narratives, because very fundamentally, I think that law is a place where ideas are exchanged and that it’s a big mistake to leave law to Lawyers, right? So – but especially as regards international law, if you have access to the internet, these decisions are available, they’re free and things are written. It’s textual, right, it’s understandable? So, that when we have very big, important decisions, or ideas, or assumptions that are being exchanged, it makes sense that we have a wider discussion about this. So, this book is designed to try and do that by being interesting.

And in terms of what the book is about, there are five chapters and I look at five different institutions, but largely, I want to, in a sense, both interrogate the possible role that supernational law can have. So, again, supernational law, a series of obligations that exist outside of the state, that constrain state actors, but which are obligations that states have acceded to that they want to adhere to, right? So, the benefits and values that can come from, in a sense, handing over a piece of sovereignty to a series of deciders outside of the state. So, that already sounds very colonial, but of course, there are a lot of states that have had a lot of luck with that and that’s because there’s always this challenge between law and politics. So, there is a theory that by making some elements of law supernational, you can combat the overpoliticisation of law, that you can actually seek to either allow law to be a defender of minorities, which is one role that’s often assumed for it, or you can position law in a place where it can take on difficult political decisions that would otherwise be – would be problematic or troubling for the states involved.

So, those are some of the benefits that come from supernational legal institutions and its part of a story that we, in the Global North, tell about the evolution of our institutions following the Second World War. That, suddenly, what happens domestically, internally, becomes everyone’s business and we actually create a series of institutions that’s poss – that possibly can have a say in this and through instituting those norms, re-insist upon those norms, in a sense, backwards. And this is something I think, in many ways, the – in Europe, in the European Court of Human Rights, there’s a great deal of experience with this. So, it’s not a particularly crazy idea, but what I see, or what I – the story I tell in my book is that a lot of what we imagine international or supernational, so that is to say law above the state’s possibility could entail, a lot of the neutrality we think could come from that exercise, doesn’t work out that way, because in fact, international and supernational law often does get co-opted politically.

And in my first chapter, on the International Criminal Court, I focus on how that co-option happens institutionally, by the International Criminal Court itself, and in later chapters, I really look at how the local politics ends up shifting what it is that courts deal with. And then, I, sort of, finally, try and end on a hopeful note, where I think again about the possibility and here I look at the East African Court of Justice, the possibility for courts to imagine new, sort of, futures of justice. Thanks very much.

Dr Nicola Palmer

[Pause] Excellent. Thank you, Kerstin. Let me hand to Alex.

Professor Alex de Waal

So, thank you very much. I say good morning here from the United States. No, it’s really a pleasure to be with you and to discuss these issues and discuss this book. I was fortunate enough to be a witness at the ICC just last month in – as their first case against a Government Official in Dafur was opening. Unusually, a joint witness for both prosecution and defence, which I think is an interesting precedent for the ICC.

But what I wanted to pick up on, actually, in these few minutes, was some issues around decolonising international law, as Kerstin put it. And to draw out some of the debates, to which I’ve been party over the last nearly 30 years, 30 years, actually, more than 30 years now, on the – on positioning justice within the condit – situations in which the political institution of the state is, itself, challenged by – either externally or internally. Where justice has to be political and to paraphrase Nkrumah, “The pan-Africanist impulse has been secure the political kingdom first. Only then can human rights make sense. If that political kingdom, that sovereignty, is not secure, then human rights becomes very, very slippery.” And in her seminal book on South Sudan, Rachel Ibreck calls it ‘foundational justice’. And she takes it, actually, from a rather different perspective, from the different – from the perspective of how communities constitute courts and justice in the context of the absence of state authority.

I want to look at it from a slightly different perspective, which is the perspective of those in – within the Organisation of African Unity, the OAU and the AU, as they grappled with this. And until the beginnings of the justice cascade in the 1990s, there wasn’t much international attention to transitional justice in Africa. In the immediate post-colonial environment, notably in Mozambique and Zimbabwe, the emphasis was on reconciliation. But then, in cases like in Sudan in 1985, after the uprising, there were trials of the – for human rights violations. They – in there – 86 there was the Human Rights Commission in Uganda. In 91 there was the Special Prosecutor’s Office in Ethiopia. All of them African state initiatives, none of which were recognised or contributed to the global discourse on transitional justice.

And in parallel to that, there were some key innovations, like Francis Deng, the Sudanese Scholar and Diplomat. His idea of “with sovereignty as responsibility,” which is a very nice balancing of the concept of sovereignty with the concept of the need for justice. That was in the context, particularly, of internally displaced people. There were innovations in refugee law. The African Convention on Refugees was quite innovative and on mercenaries, and the significance of the African’s being the first to outlaw mercenaries is that the mercenaryism in post-colonial Africa was a phenomenon of former colonial powers trying to divide and dissolve African sovereignty.

And this all came to a head in the 1990s, with military coups and especially with the genocide in Rwanda and the International Panel of Eminent Personalities, set up by the OAU, to investigate Rwanda, which coined the term ‘non-indifference’, which in turn, was the basis for the provision in the Constitutive Act of the African Union on Article 4(h), the “Duty to intervene in the case of grave abuses,” meaning war crimes, crimes against humanity and genocide. And the Africans were actually – the African institutions, in their Norms Principle, and norms and principles are actually ahead in many ways, of the UN and of others, of developing these concepts, but they weren’t ever fully recognised as – the genealogy of these was not fully recognised. So, when R2P was adopted, it was – the African sensibilities in sovereignty as responsibility, and in non-indifference, were, sort of, submerged. And we saw this in the intervention in Libya, where R2P was used quite blatantly for a regime change, in contravention of the African approach, which was to balance that – those. And in the context, when the Prosecutor of the ICC asked for an arrest warrant against Colonel Gaddafi, it was seen, of course, as a 100% political act in the conte – in the African context.

But the other point I just wanted to make was about the arrest warrant against Omar al-Bashir, which seems to me to be the turning point in the scepticism that many African leaders had towards the ICC, in particular, and international justice in general. And it was – came in the context of the African Union actually taking the lead in pressing for accountability and resolution in Dafur. The African Union was – actually raised the – that article 4(h), the Duty to Intervene, with President Bashir, in the context of saying, you know, “Admit, you know, a peacekeeping force, admit a protection of civilians, or we will be forced to take these steps.” And, also, pressing, unsuccessfully – they got a peacekeeping force, they got a protect – they got in principle measures to protect the civilians. They didn’t work very well, but they got them in principle. They also pressed for an accountability mechanism, along the lines of the Rwanda one, which was rejected, initially, by Omar al-Bashir, a grave error, one of his many.

But when the arrest warrant was issued, the Peace and Security Council of the African Union meeting at the level of Foreign Ministers, said, “We need to examine this,” and the result was the African Union Panel on Darfur, headed by Former President Mbeki and President Buyoya of Barundi, President – and Former President Abubakar of Nigeria. Which, essentially, demanded that accountability be placed in the context of a polit – collective political decision of the Sudanese people, on the grounds that to enforce an arrest warrant against the will of the people, against the sitting Head of State, would be far more divisive than simply – than allowing – than any other possible course of action. And that was endorsed, actually, by a Heads of State meeting in October of 2009.

And I was part of that process and I recall the discussions that Former President Mbeki had with some very, very angry constituents in Dafur, saying, “You’re letting Omar al-Bashir off the hook,” etc., to which he responded, “Is your aim to democratise Sudan or is it to get this one man?” We, when we were struggling for the liberation of South Africa, we faced a similar dilemma. The UN General Assembly had criminalised Apartheid and the majority of our members said, “The only place for the leaders of Apartheid is in jail or dead.” But we said, “Actually, there is a – our strategic aim is not to get those men,” and they were mostly men, “in prison. Our strategic aim is a democratic non-racial South Africa, and if we can have a political compromise on the justice issue, in pursuit of that goal, that is where we should go.”

And this debate, of course, was not resolved, but I raise it because I think the vigour of those debates, and the involvement of the African Union at that stage, which has since retreated from those norms and principles, is actually very pivotal to that question. Thank you.

Dr Nicola Palmer

Excellent. Thank you, Alex. Jacqueline, can I bring you in, please?

Jacqueline Moudeïna

[Mother tongue – 22:03-38:40].

Dr Nicola Palmer

Jacqueline.

Jacqueline Moudeïna

[Mother tongue].

Dr Nicola Palmer

Jacqueline, thank you very much. I must come in here just to make sure that we also have sufficient time to bring Peter into the discussion. But I really value the depth of analysis and documentation of the time and effort that these types of legal proceedings require. Peter, could I bring you in here?

Dr Peter Brett

Sure, I mean, I’m going to be very quick, also, ‘cause I see there’s already some questions in the Q&A. Perhaps all I’m going to do is just pick out a couple of things you’re saying here, are very important about Kerstin’s book, which we haven’t mentioned yet, and I’m not going to say anything about Rwanda or Chad, which we’ve just been hearing about. I’m afraid I’m a little bit ill, so I am going to, more or less, read a text. Apologies for that.

So, first, I think that Kerstin’s book does an excellent job in pulling together a lot of the most important critiques of the International Criminal Court, in particular, and after reading it, it’s really quite hard to make some of the usual defences of the court, I think. So, some of you might’ve heard the idea that international criminal law began as Victors’ Justice at the Nuremberg and Tokyo trials after 1945, but slowly, albeit imperfectly, it’s becoming universal justice, with the International Criminal Court. I think, after reading Kerstin’s book, I don’t think you can make that case. She shows, I think, that the ICC remains Victors’ Justice. Those prosecuted are opponents of the existing government or leaders of deposed regimes, mostly after Western backed military intervention. I think it was 12 years ago now that the ICC said it would begin investigating atrocities committed by the Ugandan military. I just still – I believe we still don’t have those investigations. These are not teething problems. I don’t think you can see those with – or technical challenges to be overcome.

Secondly, I think the argument, which lots of us would’ve heard, that “The ICC is imperfect, but it might, nonetheless, help stimulate domestic trials with improved rule of law standards.” I don’t think that argument works. Again and again, Kerstin’s book indicts the ICC powerfully, albeit for understandable practical reasons, the ICC violates those rule of law standards, right? And the chapter on Habré in Senegal shows how defendants’ rights are, in fact, oft – better trust – protected in national systems. Now, to our – this isn’t a criticism of the ICC as for being unintelligent or badly intentioned and there’s all kinds of practical reasons why it has to be so, but in the – does, nonetheless, make the point that it’s quite difficult to see this and I think it’s, sort of, necessary stimulating better standards in national systems.

Thirdly, and this is just the last point I want to make, I think the chapter on South Sudan is a stark and very powerful one, and I think it poses particularly difficult questions for those who think that international criminal justice, or the ideology of international criminal justice, well, it can’t do any harm, can it? Well, I think what Kirsten describes is constant repeating of cause, especially within the AU and the UN recently, for some kind of hybrid international criminal accountability in South Sudan.

Now, this is a form of accountability, which simply can’t happen, given the actual elites that South Sudan has and the crimes they committed. Now, interestingly, I think Kerstin, she can correct me here, but I think she concludes that these constant calls, it’s not really wasted energy, because at least it keeps alive the idea of justice. But it made me think, I don’t know what she thinks, it made me think that there’s still a slightly tragic waste of time and effort here, by intelligent influential people who might otherwise have been thinking more imaginatively about how a new political settlement might be built, perhaps along the line traced by Thabo Mbecki and others and just described by Alex de Waal. But I just throw that one out as a possible discussion point, but best go back to the Q&A.

Dr Nicola Palmer

Excellent, thank you, Peter, and we do already have a number of questions in the Q&A. Before we begin, I – in following Peter and Alex’s lead, that’s – I have a few questions, or prompts, as well, that I would value comments from Kerstin, but also from all of the panellists. And it goes to this, and Kerstin, we can certainly talk about the chapter on Rwanda and some of the challenges of broad critiques when sometimes it’s the delicacy of the distinctions, rather than the sweep of the abstractions, when we’re looking at very sensitive and divided context. So, we have to be sensitive to reinforcing particular divisions.

But that said, I think that there is value in looking at some of the big ideas around international law in Africa, across a variety of countries and so, the questions I had are really to, kind of, draw the discussion, in line with where the other panellists have gone, as well, around the particular vision of justice that I think informs and runs through your book as a whole. And for me, there are three questions that come out of this, this vision of international justice in Africa, and the first is that if we unders – in the book, you propose that international criminal law and human rights law are – principally, should be used as a way to challenge state power. And so, my question for you, and for the panellists as well, is, is this too narrow a notion of what these courts are trying to do, and that really, we have a lot more contestation and plural sets of objectives? And that if we recognise that there are these plural sets of objectives, then does it open up, and this builds on Peter’s point, does this open up for a wider set of possible responses that perhaps goes beyond looking at the use of criminal law or the looking at the use of international or supernational courts?

And then, my second question builds on Alex de Waal’s points around the relationship between sovereignty and responsibility in the post-colonial context and how various – there’s been leadership in this regard, but also recognising – my question would be about the role of courts in this. So, how do we go about keeping supernational institutions, which in my reading of the book, you endow with quite a lot of potential, while recognising the constraints of them, to realise and to call states to account? How do we think about keeping – how do we go about keeping those institutions accountable? So, what are the mechanisms and what are the legitimate constraints on court’s authority? And I think about this particularly in your chapter on the East African Court of Justice, where a very broad reading of a treaty is seen as necessarily progressive, but don’t we want to be used – or shouldn’t treaties, and don’t treaties, create legitimate limitations on the interpretations that courts can pursue?

And so, then, finally, I think the question that the book sparked for me is one of how do we take account, then, of these longer histories of legal transplants on the continent, recognising that those longer histories have been very different in different places, where colonial governance invoked notions of the rule of law as a central tool of both control and material extraction? And so, how do we really take very seriously, when talking about the current role, and it seems very – you know, the agency of African Lawyers is very centred in the book, and admirably so, and I think Jacqueline’s comments speak to the centrality of that. How, then, might we start to think about the longer histories of the legal environment in which those Lawyers are then operating?

So, those are my questions. Kerstin, maybe I’ll come to you and then, we’ll have one or two comments from the other panellists and then, I’ll bring in some of the questions from the Q&A, as well.

Dr Kerstin Bree Carlson

Right, well, thank you. I’ll try and be super brief, but thanks, first, to everyone on the panel for these considerations and these comments and for your work in the field. But I think that, in many ways, many of your observations come down to what I wanted to make, sort of, a focus of the book, which is to, kind of, distinguish between, sort of, the actor, the man, the person and the process, right? So, I see, in the rule of law, the capacity to construct a process that’s larger than individual actors. So, I guess, in this sense, I’m pretty sceptical, Alex, of a kind of, actor-based set of policies that are what the sovereign says, right? So, I think, in that way, I’m really reading from my understanding of modern process oriented law, right, it’s moving away from the sovereign makes the law, to some sort of idea of process which itself becomes sovereign. In this sense, the – it’s the capacity of law to be sovereign.

Now, does that reconcile all the ways in which law and power overlap? Does that reconcile the ways in which law has been abused, particularly in Africa in the very recent past? You know, perhaps not. But I don’t – I remain committed to this idea that I don’t know how we do it better, right? So – and I think there, Jacqueline comments really, sort of, demonstrate that, right? You see the ways in which by focusing on individuals, and this is really what my Habré chapter tries to look at, on the one hand there’s something extraordinary about putting a former leader on trial, but there’s also something that, sort of, repeats itself, that when you fall from power, you’re triable. While you’re in power, you are not actually – you don’t – you are unanswerable and this is what, in a sense, what Jacqueline’s telling us, is still the case in Chad.

In a way, I want to say that’s the failure of the Hissène Habré trial, that it can get the man, but it can’t get the system, it can’t get the larger question of how is it that the state – what does the state owe its citizens? And yeah, so, in that sense, I really think I want to focus the capacity for international law as a tool to improve state behaviour, and I do think that it’s the best tool we have, right? So, that when we all get together and make agreements, that we have – there is – there are some examples of the capacity for law to do this.

And, of course, Nicola, your question to me about, well, “What’s the law we like?” I think the East African Court of Justice, yeah, it’s problematic, because it works outside of a treaty to do something it wants to do and that looks like it’s not rule of law, but somehow a kind of, lawlessness. And I think there’s often – this often becomes – I’m not sure that we can resolve this. But I think the answer, again, resides in thinking about local actors and this is why I wanted, sort of, to end with the Malibu Convention and the ideas that are being originated in Africa about expanding what it is that the law can address and expanding the possible role of supernational law.

So, I see in those conversations a series of interesting ideas and, again, a capacity to move outside of the very immediate power dynamics that make up sovereignty and, to my mind, have resided – are responsible for a great deal of the kind of suffering we see across Africa in these conflicts, right? So, in that sense, I really am committed to the idea of exploring law as process and then, trying to ask the question, “Alright, well, how would we build that?” So, I share your concerns, I don’t have a solution, but I want us to think about the value of this and as Peter was saying, I’m hoping that in this way we get around some of the typical debates which have to do with, “Well, who originated this, so can it have any value?” Well, if we participate, we can make it ours, right? So, I think that there are ways in which we can expand the capacity for international law to do something that’s meaningful for citizens, in view of the states in which they live. Hopefully, that brings things together.

Dr Nicola Palmer

Thanks, Kerstin, and could I bring Alex de Waal back in?

Professor Alex de Waal

Thank you. Well, I completely agree with the sentiment that Kerstin has just expressed, and I think that precisely was the impetus behind the African initiatives that coalesced around the African Union and the whole governance cascade in Africa with the Convention on Democracy, Elections and Governance, on human and people’s rights and so on.

The point being that in order to have these norms and principles realised, there needed to be a sufficient political consensus across the continent and the African Union is unique, or the African Continental Organisation, I should say, is unique amongst multilateral organisations in that it is older than the states. It began as the pan-African movement, as a people’s movement, and whenever it has been renewed, whenever it’s been energised, it has been with the input of people at the time of independence. But then, it’s interesting at the time of independence, in 1963, the opening lines of the OH Charter are not, “We, the peoples,” it is, “We, the states,” because of the extraordinary importance that African peoples attach to that very fragile achievement of sovereign statehood, which is still – and as events, like in Libya demonstrate, it is still something that it is – that is – needs to be nurtured and protected, because it is so fragile.

And the shift from the OAU to the AU some 20 years ago was also animated by the same engagement of civil society and activists and the relapse that we’ve seen in the African Union, over the last five or six years, has been to do with the exclusion of those voices. So, I think the task is – and the task is to recognise and build upon the – those initiatives, insights and norms and principles that are rooted in the African experience, the African activism, which I think are consistently subordinated in inter – in global international legal discourse. Let me leave it at that.

Dr Nicola Palmer

Great, thank you. And so, I’m going to bring some of the questions in, and some of the participants have asked me to give voice to those. So, in talking about these different potential sets of responses, we have Selem Kamil-Selo, who asks a question to Alex, in particular, and he says, “If international law in Africa is fair, why have Russian economic sanction activities in Africa not been targeted by the US and the EU through sanctioning the African interlockers of Russian business interests, such as Sudan’s Hemetti and Burhan, whilst Russian jet-setting oligarchs are being sanctioned in relation to their interests in the US and in the European Union?” So, it, sort of, introduces this ever-growing focus on sanctions and asks if the application there is fair.

Professor Alex de Waal

Let me give two quick answers to that. The first is, I think we are actually seeing the US and EU going after Russian involvement and the – a very interesting and clear example is the very sharp crackdown on Eritrea, which is, essentially, a transnational criminal enterprise disguised as a state. Which – and that crackdown has been happening when it crossed the red line of supporting Russia and getting Russian military supplies and, you know, inviting the Russians to have a military base on the Red Sea. We – there is certainly action against Hemetti in the works.

I think the other question here is why the Africans have not invoked the African Convention on Mercenaryism against the activities of the Wagner Group, which is transparently a mercenary outfit.

Dr Nicola Palmer

Thanks, and now, I have a few other questions, also from participants who’ve asked that I read them out. So, we have Maria Anderson, who’s asking, “Are international institutions, such as the ICC and the ICTR, the most effective mechanism to hold account the perpetrators of human rights violations?” And this seems a question that’s obviously at the heart of the discussion we’re having today and let’s – let me bring Jacqueline in first in response, and then we’ll hear from Peter and then, Kerstin.

Jacqueline Moudeïna

[Mother tongue].

Dr Nicola Palmer

The question was, are international courts, such as the ICC and the ICTR, the most effective way of responding to large-scale violations?

Jacqueline Moudeïna

[Mother tongue – 58:09- 60:36].

Dr Nicola Palmer

Thank you, Jacqueline. Peter.

Dr Peter Brett

Well, for me, the question of whether it’s effective depends on the history of how law has been used in a particular context. I’m – to the extent that trials of political leaders have become seen as simply cynical exercises in imprisoning former regimes, which captures some African experiences, only some, but it does. To the extent it’s like that, it’s not going to be effective. It will be seen as something else, and despite the better intentions and different philosophy behind it.

So, to that extent, I agree with Kerstin’s question, which is, “Well, what’s the process, the wider process of the catalysers?” And now, it – there isn’t the – I don’t think there can be one answer. I think there can be different answers, depending on the question. So, 60 years ago Judith Shklar made this case about Nuremberg and Tokyo, right? She said, “Tokyo is, basically, a disaster, a really expensive disaster, whereas Nuremberg could be defended. Even though it was a legal aberration, it nonetheless, called the German legal profession back to its responsibilities, it had some kind of catalysing effect, reminding them to give the – give people the rights that the Nazis had denied them, okay. You can make a case – but that depends on the Japanese – Japan, which was completely different. So, I think we do need to look at the particular context and the history, colonial and otherwise, of how law is being used and how it’s understood.

Dr Nicola Palmer

Thanks, and Kerstin?

Dr Kerstin Bree Carlson

Thanks. Just to answer, in a sense, the question. I think when we think about effective, right, then we want to say, like, well, effective to what end, right? So, I’m interested in these ideas of norms, what we would call rule of law, which is, basically, that no-one is above the law, that being in the position of sovereign doesn’t mean that the law doesn’t apply to you. So, the problem with only former leaders being put on trial is that it – the one reading of that is you should be sure to never fall from power, right? So, one reading of that is to make sure that there is no sort of consecutive overturning of power, because that is exactly the moment when justice can catch up with you and that, you know, that really pushes against a series of rule of law protections, right?

So, we often talk about this in terms of norms, right, and again, when the norms are a series of rules, which have been stated beforehand, which are applicable to everyone regardless of political class of position, then I think that we – that is imperfect, because power is still part of that and it will always be in motion and that’s why there’s not one answer, but there is a series of procedures that can move us towards a better – towards, you know, a better, fairer, juster position. So, those norms, I think, are important and that’s why, I guess, I try and have it both ways a little bit, by being both critical, as Peter was noticing in the South Sudan chapter, by being both critical, but also hopeful that the conversation itself is important and does something interesting, right? Because, again, I don’t see other alternatives looking particularly better.

Dr Nicola Palmer

Thank you, and now I’m going to bring Linda Bedford’s question in and hers is, “What is the role of international legal institutions,” or “What are the roles of international legal institutions to assist mediation in conflict affected states, and how do they support peace in post-war countries?” So, maybe I’ll hand that, first, to Alex de Waal.

Professor Alex de Waal

This is a terrific question and a great one, and one that doesn’t have an easy answer, because the classic approach to mediation is you start with the belligerent parties and by definition, the belligerent parties are those who are engaged in violence. And they’re – and if the solution is to cater to their interests in such a way to have a trade-off, so that they share power amongst themselves, then almost inevitably, justice and accountability will be a casualty. And one of the – there’s, sort of, two parallel impulses here, one – yeah, and in the African experience, one from the top to – which is sometimes rather misrepresented, I think, as the liberal peace approach, because liberal peace is – it doesn’t capture it. But to bring a whole set of processes of democratisation and accountability into a – into peace process and that has a very mixed record.

The other is from below, law from below, and here I think there is a sensibility and an agenda that is not captured in the idea that the primary role of justice is calling states to account. And that is the agenda that, actually, justice is foundational to the constitution of society, or the reconstitution of society that has been shattered by war and mass atrocity. And what we see repeatedly, and South Sudan is a great example, wherever you get South Sudanese displaced or refugees, or – in war affected, under whatever conditions, you bring them together, the first thing they do is they constitute a court. And the social norms that promote the court as the foundation of the reconstitution of working society is something I think that has to be recognised.

And as an aside, I would just say that, of course, one of the militant Islamic tiques of Western state building models is the neglect of justice, which is why the Islamic courts in Sudan, or indeed the Taliban in Afghanistan, have been so effective, because their justice system is seen to be swift and legible and not corrupt, unlike our international systems. So, I think there’s an agenda there that goes well beyond transitional justice, to what, as I said Rachel Ibreck calls ‘foundational justice’.

Dr Nicola Palmer

Thank you, notion of foundational justice. And I want to just bring the last two questions in and to ask the people who are posing the questions to un-mic and we’ll just take both questions and then, we’ll have one or two minutes for the panellists to respond. So, could I bring in Lena Edbo-Gesson to – please do unmute your microphone and ask your question. It would be great to have the voices of the audience in, as well.

Lena Edbo-Gesson

Can you hear me? Can you hear me? Yeah, okay, oh, hello. Hi, thank you so much for this super-interesting book launch. So, I really look forward to reading it. And my question tries to grapple with this debate between seeing African governments as these victims of these global forces that wants to intervene and do all kinds of nasty things to African governments, and then also, yeah, bringing in the prospective of agency. But, of course, at the same time, it seems like you’re covering all these different cases taking place more or less in the same couple of decades, where these, I think, ideas, stemming very much from developments at the UN and in other parts of the world, are being, kind of, implemented or tried out, or – as almost in a laboratory across Africa. So, yeah, my question was more like how should we understand the agency of African governments in creating the conditions for this laboratory? Thank you.

Dr Nicola Palmer

Excellent, thank you, and Kathryn McKenzie, could I bring you in [pause]? Kathryn, can you unmute? I’ll – in the absence of hearing from her, I’ll actually – I think that last question is a fantastic one and perhaps we’ll lea – we’ve got five more minutes and so, I’ll just give one minute each for final concluding points and responses to that question from all four of the panellists [pause].

Dr Kerstin Bree Carlson

I can start if you want. No, it’s, of course – thanks, Lena, it’s a great question, and I think, in many ways, I don’t have a fantastic answer to it, right? I think my book is much more – it’s really a – in a sense, it’s an examination, at some level, of a top-down, a development of this, kind of, toolkit that comes from these supernational courts. And I think it’s really like your and Peter’s work, right, which looks more specifically at what happens domestically inside places, that probably answers that better. So, I think I’m not sure that my work – that my book can give a great answer to that, and I think the best I can say is that it opens up a question of asking can we see this, kind of – these decade, or this epic – this, kind of, the development of this tool chest? Is this something that we could follow domestically? I think the answer is already yes from your and Peter’s work. How would it make sense to follow this domestically and see what comes from it?

Dr Nicola Palmer

Great, thanks, and Peter.

Dr Peter Brett

Oh, well, I think Kerstin’s book does, in fact, show the age – you know, ‘political savvy’ I think is the phrase used, but I think it does quite effectively show the agency of African elites in creating the conditions for The Justice Laboratory. And one of the things that’s striking to me is there hasn’t been the, kind of, overt insistence that, well, we – I don’t think, maybe Alex de Waal will correct me, we have a – we had a different tradition of doing these things. Thabo Mbecki has been in the New York Times and other places saying that, but has it been as visible as it could be? It’s also striking to me that the Malabo Protocol is very interesting, had a, kind of, a – just as Kerstin does, a, kind of, hope that it could be more open, at least, to some kind of participation from let’s call it civil society. And yet, no ratifications of it yet. Hasn’t been ratified at all. It’s – okay, it still raises a – it raises a question for me about how far, sort of, African elites are committed to some kind of alternative agenda, which some of us do welcome.

Dr Nicola Palmer

Wonderful, and just one minute from Jacqueline and one minute from Alex. Jacqueline.

Jacqueline Moudeïna

[Mother tongue – 71:59-73:47].

Dr Nicola Palmer

Okay, thank you very much, and that brings us to the end of the discussion. Alex de Waal, I did say that I would give you one last word. I don’t know if you have a last couple of thoughts you – oh, a final thought?

Professor Alex de Waal

And just very, very briefly. I mean, this is not – you know, this is quite a dark time for those who stand for the, you know, the norms and principles of justice, not just in Africa, but we have governments in some of our own countries in the West, that show a shameful disregard for international legal obligations. And I think we hope that this is, you know, this a pendulum that will swing back and I suspect what will make it swing back really is the pressure, the outrage, the mobilisation of civil society and ordinary people, citizens.

Dr Nicola Palmer

Yeah, well, a timely final call. Thank you, Kerstin, for initiating this with the publication, for all of the panellists, for Chatham House, for the forum and for all of the participants who’ve listened and engaged. Thank you, everyone. Bye now.