For want of belabouring the point, history often repeats itself and for Africans who have throughout their lifetime witnessed or heard about armed violent conflicts on their doorsteps or neighbouring countries, the words of Winston Churchill when he said, “Those that fail to learn from history, are doomed to repeat it” resonates loudly to the African ears. Words and talk are cheap particularly when dreadful events, which occurred in 1994 in Rwanda, are slowly being replayed on the West African coast in Côte d'Ivoire. The modus operandi are evident including an unprovoked attack on peace keeping troops and countries embassies, the hate and vitriol of the fourth estate, a self serving educated elite quick to criticise the foreign nations and warning these nations not to interfere in their country's 'internal affairs', the unlawful or extra judicial killings of opposition persons or those perceived to be foreigners by militias backed and supported by the ruling elite and the large scale displacement of innocent civilians caught in the conflict. A direct comparison to events of close to two decades ago might to a causal observer seem far fetched or widely off the mark but if care is not taken the events under discourse could or may lead to the same consequences of the Western African region like it has had for Africa's Central and Great Lakes region. Whilst I do not hope this is the case without sounding too African, I take an optimistic view that given the strong will of the international community to restore the rule of law and defend democracy then another Rwanda will not occur in Côte d'Ivoire. Never have I felt so much empathy after reading the account of the Rwandan genocide with the vivid eye witness account of the Canadian General Romeo Dallaire in his book Shake Hands With The Devil: The Failure of Humanity in Rwanda where he describes with horror how an estimated 800,000 people were killed in Rwanda in just 100 days between April and June 1994 – the reason why swift action should be taken to stem the crisis in Côte d'Ivoire.
Democracy cannot be defended alone by words through communiqués, statements, condemnations and resolutions. Also there can be no democracy without a strong, vibrant and sustainable rule of law. In restoring the rule of law where there are flagrant and clear violations of Human Rights and International Law then those deemed to be perpetrators irrespective of their positions in the country should be brought to justice before the appropriate courts. This discourse for reasons of objectivity and the wider factors involved in the current crisis in Côte d'Ivoire seeks to limit the discourse to the legality of subsisting issues following the presidential elections of 2nd December within the context of International Law.
Factual background and the fourth estate The abduction and disappearance of supporters confirmed by witnesses in reports to International Observers portends grave dangers and an indication of the breakdown of law and order. Witnesses according to reports of the United Nations, International NGOs (including the respected Human Rights Watch in its report of 23 December http://www.hrw.org/en/news/2010/12/23/c-te-d-ivoire-pro-gbagbo-forces-abducting-opponents) have reported that security forces and unofficial armed militias have apprehended people and removed to them to unknown locations. Furthermore it is said that witnesses have seen bullet-ridden bodies, which suggests that extra judicial and unlawful killings might be taking place.
According to Human Rights Watch Reports of hate speech used on 18 December against the UN and French Forces by so called Jeunes Patriotes (Young Patriots) to 'liberate' the country of foreign troops is inflammatory likely to precipitate an already volatile situation into a violent one. No coincidence as reported that on the same day UNOCI vehicle was fired upon and armed security forces members had visited UNOCI staff in what is apparently not a courtesy visit but to harass, bully and intimidate UN officials.
As in the Rwandan armed conflict of 1994 the role of militias such as Interahamwe, Impuzamugambi and Akazu in creating an environment of fear, intimidation through threats and actual violence and fermenting the crisis could not be more dissimilar to the militias in Cote dÍvoire.
Furthermore Human Rights Watch report the abduction of two workers from the Ivorien NGO Alliance pour le Changement on the same day by armed men described as witnesses as members of the incumbent President's Republican Guard. Perhaps in daring to challenge the authority of the UN the UN Secretary General Special Representative for Côte d'Ivoire (SRSG) Y.J. Choi was obstructed at gunpoint in a clear case of extreme provocation to the International community.
Human Rights Watch in their report document the recruitment of foreign mercenaries by pro government forces as well as a history of similar recruitment by opposition forces. According to Human Rights Watch this portends grave concerns given the history of war crimes and serious human rights abuses committed by combatants in the recent armed conflicts in neighbouring Liberia, Sierra Leone and the civil war of in Côte d'Ivoire.
The concerns highlighted above were enunciated at the Special Session of the UN Human Rights Council on 23 December in Geneva attended by representatives of Nigeria (on behalf of the African Group), Belgium (on behalf of the European Union), Spain, the United Kingdom, Norway, the United States of America, Argentina, the Maldives, France, the Republic of Korea, Japan, the Russian Federation, Qatar, Brazil, Burkina Faso, Mauritius, Zambia, Switzerland, Malaysia, Mexico, China, Chile, Thailand, Ghana, Jordan, Cuba, Ecuador and NGOs including Amnesty International, Human Rights Watch, Reporters without borders and the United Nations Watch. See http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=10614&LangID=E Deputy High Commissioner for Human Rights Kyung-wha Kang speaking on behalf of High Commissioner for Human Rights Navi Pillay expressed deep concerns in respect of, “The situation of human rights in Côte d'Ivoire since the elections on 28 November 2010… reiterated the deep concerns of the High Commissioner, regarding the violations of human rights in Côte d'Ivoire. United Nations human rights officers were deployed across the country and were doing their utmost to monitor the situation and provide protection where they could”.
Kyung-wha Kang further states that, “It had been impossible to investigate all the allegations of serious human rights violations, including reports of mass graves, due to restriction of movement of United Nations personnel. The current restrictions imposed by security forces and youth groups loyal to Mr. Gbagbo, which had hindered the capacity of the United Nations to deliver much-needed services and humanitarian assistance, must be lifted immediately. The Security Council had urged all Ivorian parties to respect the will of the people and the outcome of the election. The human rights violations must cease and the United Nations must be granted unfettered access to the population and perpetrators must be held accountable. Attacks on the vital work of the United Nations must be universally condemned and rejected. The intolerable acts of violence committed in Côte d'Ivoire must be subject of an inquiry and those responsible must be brought to justice. Some countries expressed the fact that the events in the country were internal affairs of Africa and the situation must, above all, be resolved by Africans themselves”.
Ositadinma Anaedu of Nigeria at the same meeting condemned the, “the violence, loss of lives and property and called for restoration of democracy and rule of law. The African Union also urged all media outlets to guard against inciting violence and propaganda of hate speech in the publications and broadcasts as this had a potential of setting the country unto internal conflict”.
The representative of the United States Betty King said, “The United States was disturbed by reports that the Laurent Gbagbo-controlled media were encouraging conflict, among other things by propagating hate speech against members of ethnic groups and those who opposed Laurent Gbagbo. The United Nations was doing critical work, but their movement was being severely restricted, and United Nations staff had already been attacked. Attacks on the vital work of the United Nations must be universally condemned and rejected”.
Similarly Julie De Rivero of the Human Rights Watch at the same meeting opined that high-level officials connected to Gbagbo were using threatening rhetoric, apparently aimed at inciting violence against the United Nations and French Forces. Human Rights Watch thus called on the Council to remind to those who incited to and carried out unlawful attacks against United Nations peacekeepers that they might be prosecuted by the International Criminal Court for such actions.
Aside from the earlier concerns regarding the use of threats, intimidation, violence and force a common thread of opinion is the role of the fourth estate in disseminating news, information, spreading propaganda and poisoning what is already a charged atmosphere. As noted in recent conflicts across the world particularly in the Balkans (former Yugoslavia republics and its former autonomous region now the independent republic of Kosovo), in Africa Rwanda, Liberia and Sierra Leone the propagating of hate speech is a significant factor in precipitating armed conflicts particularly in countries. This factor is significantly pronounced in African countries where there is a lack of access to alternative sources of media, independent media outlets and a high rate of illiteracy. At the same UN Human Rights Council meeting described earlier Deputy High Commissioner for Human Rights Kang further expressed concerns regarding the monopolization of many means of communication by those loyal to Mr. Gbagbo, and the use of national radio and television to incite hatred and violence among the population. George Gordon-Lennox of Reporters without Borders – International also at the UN Human Rights Council meeting illustrates the impact the media on the Ivorien crisis stating, “Reporters sans Frontières noted obstacles to the publications in Côte d'Ivoire and that they were worried about the security of journalists. Since 28 November at least a dozen foreign journalists had been called in by the police and some had their equipment taken away. Channels from abroad had also been suspended. The Ivorian radio and television accused France 24 of broadcasting false information with regard to who was the winner of the elections. The authorities had to put an end to the monopoly, ensure security and freedom of journalists”.
The comparison with the situation in Rwanda in 1994 could not be far fetched as noted in Alison Des Forges paper on the role of Hate media in Rwanda http://www.idrc.ca/rwandagenocide/ev-108178-201-1-DO_TOPIC.html when she states that, “Due to high rates of illiteracy at the time of the genocide, radio was an important way for the government to deliver messages to the public. Two radio stations key to inciting violence before and during the genocide were Radio Rwanda and Radio Télévision Libre des Mille Collines (RTLM). In March 1992, Radio Rwanda was first used in directly promoting the killing of Tutsi in Bugesera, south of the national capital Kigali. Radio Rwanda repeatedly broadcast a communiqué warning that Hutu in Bugesera would be attacked by Tutsi, a message used by local officials to convince Hutu that they needed to attack first. Led by soldiers, Hutu civilians and the Interahamwe attacked and killed hundreds of Tutsi”. Forges opines that the Radio in Rwanda was used as tool by combatants as tools of self defence, genocide, incitement and directives.
In Rwanda the RTLM use of the words inyenzi (cockroach in Kinyarwandan) and Tutsi interchangeably with other words referring to then Rwanda Patriotic Front (RPF) combatants contributing to poisonous hate filled atmosphere in Rwanda. This is equally comparable to the so called Ivoirité (Ivority) concept for those deemed to indigenous to Côte d'Ivoire and so called non indigenous Ivoriens a concept which sought to exclude those that were not deemed to be so called 'authentic' Ivorian. For Africans who read meaning to names and appellages the intent and use of terms whose meanings are often derogatory is indicative, effective and powerful in homing on the message so to speak. Hence the closure of access to international broadcasts and the use of the national television station, Radiodiffision Télévision Ivorienne (RTI), as a 24-hour mouthpiece for the incumbent's assertions of legitimacy is serious breach of the independence of the press, the rights of speech and rights of expression all guaranteed under international law. This is particularly noted in paragraph 12 of Resolution 1962 (2010) Adopted by the Security Council at its 6458th meeting, on 20 December 2010 which states inter-alia, “Urges all the relevant Ivorian stakeholders to restore without delay the broadcasting of all non-governmental media in Côte d'Ivoire and further urges them to allow equitable and broader access to media and in particular to State media and to refrain from using it to incite the population to hatred, intolerance and violence”. See http://daccess-ods.un.org/TMP/7472714.html
International Law The UN Security Council Resolution 1962 (2010) of 20 December the earlier resolutions cited in the same and the Final Communiqué of the Extraordinary session of the authority of Heads of State and Government on Côte d'Ivoire in Abuja, Nigeria of 7 December 2010 relay the will, intention and mandate of the International Community through the Inter governmental organisations the UN, African Union (AU) and Economic Community of West African States in seeking to address the challenges of the crisis in Côte d'Ivoire within the framework of International Law. This framework consists in the main the body of laws under International Humanitarian Law, International Human Rights Law, International Criminal Law, conventions and treaties including the UN Charter, AU Charter and ECOWAS Charter which reinforce and enshrined the principles outlined in the Universal Declaration of Human Rights, the Geneva Convention, the UN Covenant on Civil and Political Rights.
The learned Professor of International Law, Christine Gray opines that the UN Charter also establishes a collective security system whereby the Security Council may respond to threats to the peace and acts of aggression. See Chapter 21 titled The Use of Force and the International Legal Order at page 615 International Law Third Edition edited by Malcolm D. Evans (Oxford: Oxford University Press, 2010). Professor Gray further posits that under Article 39 the Security Council is 'to determine the existence of any threat to the peace, breach of peace or act of aggression' and then to make recommendations or decide measures under Articles 41 and 42. This wide view of 'threat to the peace' and the Security Council identification of such a threat as arising out of internal armed conflicts such as the overthrow of democratic government in Haiti. See page 634 of Professor Gray's paper and Security Council resolution 940 (1994) on authorization to form a multinational force under unified command and control to restore the legitimately elected President and authorities of the Government of Haiti and extension of the mandate of the UN Mission in Haiti. This in my view supports the position of the international community and indeed gives legitimacy pursuant to International Law in the consensus of the international community in their response to the situation in Côte d'Ivoire.
Of note are paragraphs 8 – 9 and 16 of the UN Security Council resolution 1962 which states inter-alia, “Stresses the importance of UNOCI's continued support to the Ivorian peace process in accordance with its mandate, especially the completion of the unfinished tasks including the legislative elections, the reunification of the country, the restoration of State authority throughout the country, the disarmament, demobilization and reintegration of ex-combatants, the dismantling of militias, the strengthening of rule of law institutions, the reform of the security sector, and the promotion and protection of Human rights with particular attention to the situation of children and women;
9. Condemns the persistence of reported human rights and humanitarian law violations against civilians in different parts of the country, including numerous acts of sexual violence met with impunity, calls upon all Ivorian parties, with the continued support of UNOCI, to ensure the protection of civilians, especially women, children and displaced persons, stresses that the perpetrators must be brought to justice and calls upon all parties to take appropriate measures to refrain from, prevent and protect civilians from all forms of sexual violence and reaffirms paragraphs 14 to 17 of its resolution 1880 (2009).
16. Reaffirms its readiness to impose measures, including targeted sanctions, against persons who, among other things, threaten the peace process and national reconciliation, including by seeking to undermine the outcome of the electoral process, obstruct the work of UNOCI and other international actors and commit serious violations of human rights and international humanitarian law, as set out by Resolution 1946 (2010);..”
Similarly paragraph 6 of the ECOWAS Communique states inter-alia, “Reaffirming their commitment to the relevant provisions and principles of the ECOWAS Protocol on Democracy and Good Governance, the Heads of State and Government condemned in strong terms, the attempt to go against the will of the Ivorian people as freely expressed on 28 November 2010.”
The Chief Prosecutor of the International Criminal Court (ICC) Luis Moreno-Ocampo has indicated that perpetrators of the deadly violence in Côte d'Ivoire would be investigated and brought to justice. Whilst Côte d'Ivoire is not a signatory party to the ICC Rome Statute http://untreaty.un.org/cod/icc/statute/romefra.htm , in 2003 the government made a declaration accepting the ICC's jurisdiction "for the purposes of identifying, investigating and trying the perpetrators and accomplices of acts committed on Ivorian territory since the events of 19 September 2002." It is equally noted that Côte d'Ivoire is a signatory state to African Court on Human and Peoples' Rights which has jurisdiction under its charter to apply the provisions of the Charter and any other relevant human rights instruments ratified by the States concerned in a particular case. According to the African Court website The Charter provides that the sources of law that apply for the monitoring of the implementation of the Charter are international law on human and peoples' rights, particularly from the provisions of various African instruments on human and peoples' rights, the Charter of the United Nations, the Charter of the Organisation of African Unity, now the Constitutive Act of the AU, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of human and peoples' rights as well as from the provisions of various instruments adopted within the Specialized Agencies of the United Nations of which the parties to the Charter are members http://www.african-court.org/en/court/mandate/general-information/. Similar relevant provisions and obligations are also applicable to Côte d'Ivoire with respect to the jurisdiction of the ECOWAS Court of Justice; the judicial organ of the sub regional African group with the country also belongs to.
The relevant crimes in issue are war crimes, crimes against humanity, or acts of genocide. The Ivorien declaration is still valid under the law. The Rome statute recognises also that criminal acts including murder, the enforced disappearance and targeting of persons because of their ethnicity, nationality, political affiliation, beliefs, religious group, beliefs are stricto sensu crimes against humanity within the meaning of the provisions of the statute of Rome given that these crimes have been allegedly committed in part, planned, spontaneous or otherwise against group of people (in effect one or more persons). This intention destruction of persons belonging to groups described above constitutes the grounds of acts of genocide. In fact International Law as provided in the Geneva Convention and the Rome statute imposes obligations on states and their constitutionally responsible rulers or public officials to enforce laws against perpetrators ('prevent and punish') who commit acts inimical, which are unlawful as so described.
The incitement to violence against the United Nations Mission in Côte d'Ivoire (UNOCI) peacekeeping troops, harassment, bullying and intimidation of UN Officials including the SRSG, Human Rights Workers and Officials of NGOs equally qualify as war crimes under the statute. In this regard the call announced in a statement read by the incumbent administration Education Minister Jacqueline Lohoues-Oble on Ivorien State TV (RTI) ordering foreign troops as well as the UNOCI (operating under the mandate of the UN) out of Côte d'Ivoire has not helped in this regard and lends credence to the view in quarters that those who have given this directive have an ulterior motive.
Deputy High Commissioner for Human Rights Kang at the Geneva Human Rights Council meeting remained very concerned about the War Crimes must consist of a serous infringement of an international rule constituting a breach of a rule of protecting important values as described by leading Professor of International Law, Antonio Cassese in his seminal book International Criminal Law Second Edition (Oxford: Oxford University Press, 2008) at page 81. Following the case of Duško Tadić's at the International Criminal Tribunal for the former Yugoslavia Appeals Chamber decision http://www.icty.org/sid/7749 serious violations of international humanitarian law (the body of international law governing wars and armed conflicts including the Geneva Convention and related conventions developed since the end of the second war world in 1945) on internal armed conflicts may also be regarded as amounting to war crimes per se. As noted by the learned Professor Cassese this is also the provided for the in the ICC Statute Article 8 (2) (c ) – (f) see http://www.un.org/icc/part2.htm. In fact any act of crimes which occur at a period preceding and after the dates are similarly construed as war crimes.
Accordingly the acts so described above may indeed constitute constitute probable grounds for investigating the commission of war crimes against the perpetrators of such crimes. It also includes those described above as committed against military personnel by armed civilians and militia as there is a nexus and causal link between the acts allegedly committed and the crisis under discourse.
Crimes against specially protected persons and objects as against UN Peacekeepers, vehicles, foreign diplomats, embassies, UN Officials and NGOs officials as described earlier are grounds of war crimes. Similarly there have been allegations of the recruitment of child soldiers by parties on all sides and if this is indeed the case the use of child combatants under the age of fifteen years to participate in hostilities and in the conflict is similarly construed as war crimes.
That the crimes allegedly committed during the crisis are similar to what Professor Cassese in his International Criminal Law book at page 98 describes as, “…not isolated or sporadic events but are part of a widespread or systematic practice of atrocities that either form government policy or are tolerated, condoned or acquiesced by the government or de facto authority.” Instances of which have been replayed by the side that appears to be in the position of authority of state institutions in Côte d'Ivoire.
Defending Democracy History tells us that the defence of Democracy comes often at a heavy price. Also the era of appeasement of those who break the law with impunity should be a thing of the past. It is respectfully submitted that for Democracy to succeed the will and mandate of the people should be respected. Irrespective of personalities involved strong and functioning institutions of state that administer justice and the rule of law restore sanity, order and good governance by acting swiftly, proportionately and in accordance with the established International legal order in an environment where the established state authorities and institutions are unworkable and hijacked by individuals who lack the mandate and credibility to operate those institutions. The grounds for initiating investigations under the laws cited above are due and this should be the task of the ICC acting in concert with the UN, AU and ECOWAS. Perpetrators of all shades including leaders and followers should be brought to justice – there should be no scared cows. It is time that individuals are held to account for their accounts. That the good ordinary citizens of Côte d'Ivoire who have been caught in the middle of this crisis have had enough is not an understatement coupled with the significant loss of lives, internal and external displacement of people resulting into a refugee crisis of huge proportions (currently reported by the United Nations Refugee Agency (UNHCR) as 14,000) and threats to the sub region's social, political and economic stability and security are factors interwoven with the defence of democracy and the restoration of the rule of law.
The African notion of settling disputes is usually through appeasement and non-confrontational measures of mediation, arbitration, conciliation, reconciliation, rehabilitations, Truth Reconciliation Commissions, Human Rights Commissions and the so called good offices of African leaders. These dispute resolutions mechanisms are usually at the huge disadvantage to democracy and the rule of law. This is aptly described by the learned Professor of International Law and Criminal Law, Robert Cryer as Non-Prosecutorial responses to International Crimes. He states that, ''the lawfulness of some of these methods is increasingly being contested”. He states further that, “the law, practicality and morality of this area of international criminal law, and their interrelationship, is the subject of complete disagreement”. See page 777, Chapter 25 titled International Criminal Law by Robert Cryer in International Law Third Edition. In fact history has shown that these mechanisms are indeed actually a modern reinvention of dispute resolution in Africa as pre-colonial African kingdoms had in place checks and balances where the King was deposed when he lost the confidence of his council of chiefs and people. He was usually given a range of options including banishment and sent on exile from his kingdom or what I call the nuclear option such as that exercised by the old Yoruba Oyo empire where the council of chiefs (Oyo mesi) directed that the Oba (King) 'opens the calabash' from which he his administered poison to take his life by suicide. In this modern age no one is advocating such a drastic measure, which worked perfectly during that period. What the ancient kingdoms have taught us which for some strange we have been unable to replicate is that those who govern, govern with the consent of those they govern, a fact lost given the context of the present crisis. Where the consent is absent and void their mandate to govern is no longer legitimate. Accordingly that legitimacy is founded upon the rule of law. The rule of law must be strictly respected and observed for these mechanisms to succeed and the adoption must not be to the detriment of democracy and to undermine the rule of law.
From a personal and professional stand point I have experienced first hand working in a post conflict environment through my involvement in the investigation and conduct of judicial proceedings of war crimes, crimes against humanity and from speaking to survivors of violent armed internal conflicts that the emotion, psychological and physical scars, trauma and wounds take a very long time to heal. The process of reconciliation and rehabilitation is on a practical level workable if only there is a truly functioning democracy and rule of law Africa needs to learn and indeed should learn from its past. A repeat of the aftermath of the recent conflicts should not be allowed to occur again on the continent. Thus the defence of democracy and the restoration of rule of law through apprehending and punishing proportionately those guilty of these despicable crimes which would no doubt be the best present Ivoriens could wish for in the coming New Year, 2011.
*Omoba Oladele Osinuga Esq. Solicitor and Advocate Supreme Court of Nigeria, International Criminal Lawyer works in the Mission of a leading International Governmental Organisation in Europe Email [email protected]
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