Euro-American-African legal smackdown out of control

by | Aug 5, 2008

In July, I argued that the African Union’s discomfort with the indictment of Sudan’s President Bashir might be a turning-point in the evolution of international law. “African leaders are setting limits on global governance,” said I, because they are sick/scared of being in a “laboratory for international institutions”. Since then, there’s been a pitched battle between the AU and the West over Bashir, with the US abstaining on the resolution extending the UN mandate in Darfur in anger, and the AU condemning the ICC for deciding “to put oil on the fire” yesterday.

But now there’s a new front opening up. Rwanda has just published a detailed report accusing France of complicity in the 1994 genocide, pointing fingers at Mitterand, de Villepin and other former Gallic high-ups. That comes less than a month after Rwanda threatened to pull its troops out of Darfur when a Spanish judge accused their general of involvement in revenge killings after the genocide. French prosecutors have also been going after members of the Rwandan government, up to and including President Paul Kagame, on similar charges – the AU has, unsurprisingly, come out in favor of the Rwandans against this.

Where on earth is this all going? Check out an interview Kagame gave to the FT in early July, when the latest report was in the works. Edited highlights:

Q: So it will name names?

Yes. And hopefully our judges will enjoy indicting some of those people. There is no justice for Europe and justice for Africa that are different. And if they are to be different it cannot just be Europe extending its jurisdiction into other countries Africa if it is to be universal.

Q: So you will launch some indictments on the basis of the report?

I don’t rule that out unless there is progress on these issues.

Q: To an outsider it seems like the political tensions between Rwanda and France are being exercised through the legal system?

Legal systems are systems of government. No one will believe the French when they say it is the judge we are not concerned. Judges don’t make laws they only carry out their duties based on the laws of the country. There are problems relating to that between us and France and Spain. And probably there would be problems between us and any other country that would want to come up with this. First of all there is no basis in terms of fact and no basis in terms of process. It is hugely questionable what is meant by universal jurisdiction when it comes to basing things on their own law and extending it to other territories. One would have expected there to be an international regulatory mechanism, otherwise you will not avoid chaos. Everyone will be indicting everyone else.

That certainly seems to be an option. Of course, there are multitudinous differences between an ICC indictment (as on Darfur) and national courts claiming universal jurisdiction (as on Rwanda). Nonetheless, the convergence of these tensions – specifically the way they all seem to get tangled up in the Darfur peace operation and AU-Western relations – rather disrupts the legal niceties. Does this mean that promoting the rule of law is about to join democratization as an unacceptable foreign policy goal for Western governments? Not quite: the once and (I rather suspect) future Obama foreign policy adviser Samantha Power argues in the current NYRB that Barack should effectively launch a “Presidency of the Law”:

In his National Security Strategy for 2002, Bush used the words “liberty” eleven times, “freedom” forty-six times, and “dignity” nine times; yet people who live under oppression around the world have seen few benefits from President Bush’s freedom doctrine. Richard Armitage, former deputy secretary of state under Bush, put it best when he said, “Since 9/11 our principal export to the world has been our fear.” The gulf between America’s rights rhetoric and the abuses carried out against detainees in American custody has been fatal to American credibility. Obama needs to restore that credibility by ending those excesses, and by following through on his pledge to launch a foreign aid initiative rooted in Franklin Roosevelt’s core democratic value: freedom from fear. The United States should invest in a long-term “rule of law” initiative that takes up the burden of helping other countries and international organizations to build workable legal systems in the developing world.

Be careful what you wish for. The task may not be building legal systems, but reconciling them. Or reconciling the various leaders indicted by them…


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