A Social Anthropologist’s take on Ebola: Conversations with Cheikh Niang’

Between June 1 and June 12 2014, the Receptor team had the privilege of hosting Professor Cheikh Ibrahima Niang’, a social anthropologist at Cheikh Anta Diop University in Dakar, Senegal. Apart from the official engagements that Cheikh (as he preferred to be called) had at Utrecht, he also had occasion to talk about some topical issues about the continent of Africa in general. Among the topics covered in these conversations were: the role and history of women leadership in Africa; the role of traditional social institutions such as the Dimba women’s group in promoting maternal and sexual health especially among marginalized categories of women; the clash between modern legal institutions and traditional cultural and social values, and many more. Most important, however, were conversations relating to Ebola, which has since developed into an international disaster. The following paragraphs highlight some of the issues covered by Cheikh on the question of Ebola. These accounts, created from my notes from the conversations, are intended to provoke further discussion and research by students and researchers on these very interesting topics about Africa, and do not by any means purport to accurately represent Cheikh’s position on the topics. All errors are mine.

A brief biography of Cheikh Niang’

Cheikh Ibrahima Niang, a medical and social anthropologist, is Professor of anthropology at the Institut des Sciences de l’Environnement, Faculté des Sciences et Techniques, Université Cheikh Anta Diop, Dakar, Sénégal, where he teaches social science research methods and medical and social anthropology. He is also a member of the World health Organization (WHO) Advisory Group on the Ebola Virus Disease Response and is currently conducting ethnographic field research in several locations in Sierra Leone, Guinea and Mali that have been highly affected by Ebola virus disease. He has conducted anthropological and gender studies on HIV/AIDS, sexuality, homosexuality, gender-based violence and reproductive health, and has overseen many multi-site studies on anthropological and social aspects of health issues sponsored by the UN and other international agencies. Professor Niang is widely published in matters relating to culture, health, sexuality, reproductive health, education and behaviour.

Professor Cheikh Niang’

Main points on the conversations with Cheikh:

On the social aspects of the Ebola epidemic

Of course there is a biological process involved in the transmission of the Ebola virus from its natural hosts to humans. However, to create an epidemic of the proportions that we have seen in West Africa takes more than the appearance of a virus on the scene: it is the product of a particular social, historical, cultural and political process whose outcomes are very predictable. As a matter of fact, a close look at all the countries seriously affected by Ebola reveals certain common social patterns: a history of exploitation, subjugation, marginalisation, social injustice, and abject poverty, creating conditions of fear and mistrust, which are compounded by structural inabilities to cope. In this sense, then, we see that epidemics like Ebola are really manifestations of certain social and political processes.

On the role of fear in driving the momentum of the disease

Fear played a big role in the propagation of the epidemic. Fear, combined with lack of confidence in the system, led to a breakdown in communication between the care providers and the victims. Fear led to the stigmatization of those already infected. Fear led to irrational behaviour in the form of denial and rumours, but these should also be understood in their own context as forms of resistance. Denial, in a metaphorical sense, is a coping mechanism and the expression of denial should not be taken literally but recognised as such. Similarly, rumours thrive in situations where there is no transparency, such as when bodies are taken away without a clear explanation of what the process of disposal entails, or when blood samples are taken but results not appropriately transmitted back to the patients or their families, etc. etc.

On the necessity of a holistic approach to the management of Ebola

Without a doubt, clinical management of the virus is a crucial element, but so are peoples’ perceptions about the disease if successful health interventions are to be developed. It is true that certain cultural practices involving contact encourage the spread of Ebola, but at the same time there exists within cultures resources that can be successfully deployed to complement clinical measures. For instance family and kinship ties can be utilised so that the interaction between the sick and their kin are not just opportunities for further infection but resources for the transmission of knowledge and evidence about Ebola. One important aspect of the intervention is tracing, and this can be made easier by following known kinship trees and networks. Here, Griots are particularly well suited because apart from the genealogical knowledge they possess, they can use their social position to motivate others to fight for life while invoking positive values associated with the family lineages, such as resilience and bravery in the face of terror. In this example, Griots can be incorporated in a counselling role and in this way Ebola can be tackled by a combination of clinical and socio-anthropological approaches.

From an anthropological point of view, it must be remembered that intervention, even with the good intention of saving lives, is not only intrusive but interferes with the day to day management of social and political relations within families and society. When victims, their families and social networks are not consulted, intervention can be seen as taking over roles and upsetting the distribution of responsibilities and power. For instance, the duty of care is anonymously appropriated by masked agents of the state; the sociology of food is replaced by a by mechanical intravenous drip systems; valuable kin and family members are turned into dangerous agents of infection; societal management of death and grief is denied. All these apparent contradictions create a fertile ground for resistance, which, while addressed to the arbitrary appropriation of societal roles and power, may be manifested as resistance to potentially useful medical interventions.

Prestigious Achievement for Dr. Michael Odhiambo

Dr. Michael Odhiambo and his Supervisor Prof. Michael Bollig (front row,far left) and some members of his Reading Committee 

On the 1^st of July 2015,  Michael Odhiambo, post-doctoral researcher working on the Receptor Approach at the School of Human Rights Research, successfully defended his PhD thesis at the Department of Cultural and Social Anthropology, University of Cologne, Germany. We are very proud of  Michael on achieving his doctorate cum laude.

Michael’s thesis entitled, Il Chamus versus the State: Vulnerability, Litigation and Resilience Building in the Baringo Lowlands of Kenya. Within the context of resilience in social-ecological systems (SES), the thesis looked at the role of several legal actions by the Il Chamus community of the Baringo lowlands of Kenya in providing social resilience. The thesis shows that the targets, outcomes and social processes involved in the legal actions were crucial to the resilience of the Il Chamus as a politically bounded SES. The thesis will be made available online in due course.

Well done Michael!

Posted by Ingrid Roestenburg-Morgan

The Realities of a Cultural Defence at the ICC ?

Cartoon from fleasnobbery.blogspot.com

Recently much has been written on the capture and transfer of Dominic Ongwen to the International  Criminal Court. Issues on his status as both victim and perpetrator has been mostly debated upon as he represents a complex case having being kidnapped at the age of 10 years and then subsequently trained within a setting of extreme brutality to become an efficient killing machine within the higher echelons of the Lord’s Resistance Army. While the debate continues on how his criminal responsibility, considering his status, should be addressed, not much attention has been paid to Ongwen's defences, which may rest on various pillars as laid out under article 31 of the Rome Statute. For purposes of this discussion, available defences will be limited to a few. Understanding the larger circumstances warranting the use of a specific defence means also understanding the circumstances under which the LRA operated hence their exact laws and rituals, and an understanding of Ongwen’s background and the circumstances surrounding his subsequent abduction and way of life.

Important to remember is that Ongwen was abducted at the very tender age of 10 years. According to empirical studies conducted on child soldiers, it has been established that part of the general practice of the LRA has been to kidnap individuals between the ages of 11 to 24. Whether children are abducted or join the ranks of the LRA voluntarily their introduction to the LRA way of life will initially include the forced murder of an individual or individuals whether they be family, friends, or any other person as part of their initiation into the group. Thus, their initial introduction to the LRA ‘way of life’ is initially marked by trauma and fear perpetuated continuously through repeated and similar cycles of violence igniting further fear and trauma.   

One argument that is made in this regard, is that any first or initial trauma experienced may serve as a precursor to post traumatic stress disorder, which some experts believe seriously impairs the mental health of such children and is such a catalyst of post traumatic stress disorder. Traumatic events spurring this development and closely associated to the experiences of young combatants, according to empirical studies conducted worldwide into issues of child soldiering, by Schauer and Elbert, include “skinning, chopping and cooking dead bodies, eating human flesh, forced mutilations and serious injury to others, physical assault including being kicked, beaten or burnt, sexual assault and rape,” as well as a range of others listed by the authors, who have studied the psychological implications of trauma on the development of child soldiers.

In the view of Schauer and Elbert the fact that post traumatic stress disorder might manifest in chronic mental health impairment means that in situations of serious or imminent danger, fear responses are heightened and could result in a numbing of the senses, further increasing risk taking behavior, depersonalization, defiance, recklessness and aggression. Where the trauma is recurring it is most likely that the person may suffer from Post-Traumatic Stress Disorder, immediately and more intensely especially, if the trauma is cumulative. This raises important flags under the defence of mental incapacity where it can be shown that the acts of recurring violence took place when the defendant was in a dissociative state, resulting in the failure of a defendant to appreciate the criminality of his acts or change his conduct so as to comply with the law. Furthermore, PTSD has already in the past and nationally, been offered as basis for criminal defenses including insanity, unconsciousness, self- defense, diminished capacity and sentencing mitigation. (interesting to refer to Omri Berger article in this respect)

According to Article 31(a) of the Rome Statute a criminal defence based on mental illness comprises a the scenario where a “person suffers from a mental disease or defect that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law.” According to Sliedregt, an ICC defence based on mental illness will demand complete destruction of the defendants mental capacity, a substantial mental capacity in other words will not qualify but will only feature as a mitigating factor when determining the sentence. Thus it will need to be established that there was complete destruction of the defendant’s mental capacity at the time of the commission of the criminal act in question in order to invoke a successful defence in this regard. Like most cases where mental illness is proffered as defence, qualifying such a defence is difficult and remains a challenge where most of the time, the testimony of mental health experts are the main evidence relied upon.

Ongwen in the Battlefield

Another defence that might be employed is duress. Part of the LRA organization and strategy also comprises a heavy or strong reliance on the use of religion and tradition to instill fear, intimidation and ultimately obedience amongst their followers.  Various studies from various authors have demonstrated the importance of religion and spirituality in Africa as both a cultural practice and a determinant of social action. (See Green, Titeca, Ellis, Ter Haar and Wlodarczyk). According to Nathalie Wlodarczyk the struggle of the LRA against the Ugandan government is framed specifically in the use of spirituality in order to mobilise support and legitimacy for it cause.  The motivation for young recruits to join LRA ranks assumes that they will be spiritually protected during battle. This is usually guaranteed through the use of immunizing rituals and through direct spiritual reinforcement. Wlodarczyk holds that spiritual protection in the ‘African’ context (through reliance on case studies on the Holy Spirit Movement and LRA and examples from Liberia, Mozambique and Zimbabwe) are offered through the form of rituals, charms potions rituals and codes of conduct. In the case of immunizing rituals, new recruits are “sprinkled with holy water and their bodies smeared with shea butter oil and white ashes.” (this ritual is known as Moo yoo). Such rituals promise that on the battlefield bullets will turn into water, miss their targets and on the level of certain ranks make soldiers invincible. Furthermore, spiritual protection to soldiers are grounded in the belief that fighters of the LRA once killed will “briefly stop over in purgatory and return to the battlefield to support those combatants still fighting.” This type of religiosity genuinely perpetuates obedience and fear amongst recruits especially since as Wlodarczyk establishes, it creates a link to the duty to fight amongst LRA members, and thus indirectly establishes a hierarchy.

Central to this hierarchy is Kony, as spiritual head claiming to be possessed by various spirits. These spirits lay down the rules and if members adhere closely to them they will avoid punishment by the spirits, which may result in the final punishment of death on the battlefield. According to Titeca there are many instances and accounts where LRA combatants are afraid to escape therefore carry out spiritual orders for fear of reprisal by the spirits. Reprisals allegedly take the form of LRA combatants no longer being able to move upon their decision to escape, being found by the spirits when trying to escape, and the spirit conferring power of Kony to read the minds of his followers.

The impacts of the aforementioned spiritual beliefs are numerous. 

However, two relevant points suffice for discussion here. First, belief in this spiritual order creates control amongst combatants. According to Titeca, abductees realize that they have to only adhere to the spiritual rules if they themselves want to survive; non-adherence of rules would mean sanction or even worst death of the person, invoked through the spiritual realm. So in other words, it is clear that there is undue pressure on members to comply or else face attack from spiritual forces. A second reason is that this belief constructs a perception of fearlessness and omnipotence on the battlefield enabling LRA combatants to walk unarmed on the battlefield and not to take cover since it is believed that God will protect them on every side. Those considering hiding are confronted with the threat that fired bullets will find them, no matter where they attempt to hide. Thus they should take up arms and submit to both Kony and the advice of the spirits if they are to survive.

Keeping this scenario in mind and returning to the defences as stipulated articles 31 of the Rome Statute, it might be possible to consider the defence of duress in this regard. Article 31(d) stipulates a mixture of two types of duress, duress as a choice of two evils and duress as compulsion. According to the defence of duress, three main elements may be identified: a threat of imminent death or serious bodily harm against the person concerned or other person; a necessary and reasonable reaction to avoid that threat; and the intent not to cause greater harm than the one sought to be avoided. In all three instances the central thread that needs to be established is firstly a genuine and rational belief in such a spiritual order and secondly that such a spiritual order served to control, motivate and intimidate combatants. According to Titeca, Richards, and Kastfelt, this is not implausible at all. These authors support the rationality of religion in war, and support the idea that belief in the religious and the spiritual in fact serves strategic and rational functions. It would therefore not be so outlandish to make the connection to duress where compulsion through religion spurred criminal behavior. Nevertheless, it will still remain a challenge to qualify the proportionality requirement in the form of the reasonable person test if one considers the excessiveness of force used by the LRA, as evidenced from the brutality of the crimes committed, let alone prove or provide support for the rationality of such spiritual beliefs where the theory of rationality is grounded in Western understandings of the concept.

Along similar lines and in the same vein another option is to consider the use of other defences which are and might still be allowed under article 67 of the RS. A non-statutory defence in this regard could be a cultural defence. According to Alison Renteln culture should be able to be presented as defence in certain and limited circumstances and instances where it can be shown that cultural factors genuinely played a role in the circumstances involved.  It might also be used as a mitigating factor during sentencing. This no doubt is a difficult and subjective determination for judges to consider, Renteln has thus proposed Judges use her three-step test in such situations. The following questions must be considered:

Is the litigant a member of the ethnic group?

Does the group have such a tradition?

Was the litigant influenced by the tradition when he or she acted?

Dominic Ongwen recently photographed at the ICC

The biggest controversy surrounding the cultural defence is that it might be misrepresented or abused by defendants. But wouldn’t that be the case for most defences.? However, to overcome such hurdles Renteln proposes that judges be better equipped to deal with these issues by involving experts and exercising discretion whether to accept or not accept the arguments made by the defence. Given, the already strong discretion accorded to judges, to already decide on the numerous defences presented such mental illness, duress etc there is no reason why a cultural defence can also not be included and deliberated upon in the same way. Renteln suggests that the cornerstone of a criminal trial is the fair trial rights of the defendant, which includes the presumption of innocence. Fair trial rights, she suggests, should be balanced with the right to culture, both as important human rights, in the assessment of accepting or rejecting a cultural argument. Of course the context specificity of each case must be taken into account and within such a determination establishing which human rights supersede the right to culture. This is food for thought, especially when cultural motivations and arguments are ignored or glossed over, despite featuring explicitly in the case concerned. Avoidance might have the effect of jeopardizing the truth finding process, as well as compromising both accurate and just judicial determinations.  

Posted by Ingrid Roestenburg-Morgan

SIM Summer School 2015

The Netherlands Institute of Human Rights will be offering three short summer school options in the coming summer months. These include:

International Human Rights Law: An Introduction (one week course)

http://www.utrechtsummerschool.nl/courses/law-economics/international-human-rights-law-an-introduction

International Law from a Gender Perspective (one week course)
http://www.utrechtsummerschool.nl/courses/law-economics/international-law-from-a-gender-perspective

Human Rights and Gender (two week combined course)
http://www.utrechtsummerschool.nl/courses/law-economics/human-rights-and-gender

For more information please visit the respective websites outlined above!

Posted by Ingrid Roestenburg-Morgan 

Prosecution of Sitting Heads of State at the ICC: A Worthwhile Endeavour?

Photo ICC Status Conference Kenyatta Case 8 October 2014

The withdrawal of the case against President Kenyatta by the ICC Office of the Prosecutor (OTP) gives rise to the question whether the prosecution of a sitting head of state is a worthwhile endeavor.  This questioned is further strengthened by the challenges the ICC faces in relation to the refusal of states to arrest and surrender President Bashir of Sudan years after the first warrant of arrest was issued against him. It goes without saying that the prosecution of sitting heads of states is very politically sensitive matter. This is first, because heads of states, being politicians, have very strong supporters (and detractors) in their respective countries. Take President Kenyatta for instance; in the wake of his indictment by the ICC, he was nevertheless elected in democratic and peaceful elections, albeit contested, together with Deputy President Ruto who is himself on trial at the ICC. The election of indicted persons raises the question of how prosecution at the ICC is viewed by Kenyans, and Africans by extension. As Professors Zwart and Knoops put it in the article The Kenyatta case shows that the International Criminal Court needs to reset it relations with Africa – “The presidential elections in Kenya turned into a referendum on the ICC, which emerged with a bloody nose”.

The second reason is that the prosecution of a head of state raises issues of state sovereignty and immunity of heads of state which are the very under pinning of international law and international relations. It does not help matters that the heads of state that have so far been prosecuted are all African. The worsening relationship between Africa and the ICC is proof of this complication.

Aside from these political issues, a very practical challenge relating to prosecution of heads of state is ensuring cooperation of states. As is well known, the ICC does not have an enforcement mechanism and relies entirely on the cooperation of states. This is provided for under article 86 of the Rome Statute. However, as has been demonstrated by the case against Presidents Bashir and Kenyatta, the prosecution of sitting heads of state complicates states parties obligation to cooperate. To begin with, President Bashir’s case gave rise to seemingly conflicting obligations which have been the subject of debate among scholars since the first warrant was issued against him in 2009. The crux of it is that article 27 of the Rome Statute provides that immunities, whether under international or national law, including that of heads of state, shall not apply before the ICC. However, article 98 provides that the ICC shall not request a state to cooperate if such cooperation would make the state breach the immunities of a third state. The argument, therefore, is whether President Bashir is protected from surrender under article 98 of the Rome statute. The matter is not settled yet, some commentators argue that he is protected by article 98 while others opine that he is not.

The second pair of conflicting obligations in the arrest and surrender of President Bashir is faced by African States Parties to the Rome Statute. The African Union (AU) made several decisions urging African States not to cooperate with the ICC in the arrest and surrender of President Bashir. African States have the obligation to comply with AU decisions under article 23 of the AU Constitutive Act. The article also permits the AU to impose sanctions against non compliant states. On the other hand, African States Parties to the Rome Statute have a treaty obligation to cooperate with the ICC. This has resulted in a dilemma for African States parties to the Rome Statute who have responded differently to their cooperation obligation. For example, Chad and Malawi, have relied on the AU decisions to refuse cooperation with the ICC while the High Court of Kenya issued a warrant of arrest against President Bashir.

Apart from the President Bashir case, cooperation was also a problem in the ICC case against

President Kenyatta. Although Kenya says it cooperated with the ICC to the extent possible, the OTP’s statement is that the refusal of Kenya to cooperate led to the withdrawal of the case. The witnesses previously relied on by the OTP either rescinded their statements or refused to testify leading the OTP to allege witness tampering. The result was that the OTP case then relied entirely on documents and financial record that the OTP had requested Kenya supply. The question is, how likely is it that a government led by an accused person would provide possibly incriminating documents to a court? It is very likely that had it not been the head of the Kenyan   government on trial, the government would have been more inclined to cooperate with the ICC.

Be that as it may, if the case against President Kenyatta had resulted in a conviction, it would most likely have resulted in wrangles in Kenya between his supporters and non-supporters akin to the events of 2007-2008 post election violence. Such violence would most likely have been divided along ethnic groups since in Kenyan politics allegiance to politicians is more often than not determined by one’s ethnic group. The imprisonment of a person as popular as President Kenyatta, especially among the members of his ethnic group, the Kikuyu, would most likely result in violence between the Kikuyu and members of other ethnic groups perceived to be somehow responsible for his conviction.

The punishment meted upon ICC conviction seems very lenient compared to the effort and the resources utilized to obtain such conviction as well as its possible consequences in the respective countries. For example, Mark Kersten, in the blog article Looking For Flatmates – Behind the Scenes at Scheveningen Prison describes very luxurious conditions among inmates in the said prison. The conditions described are much better than those of many people in Africa not to mention the persons displaced by conflict who live under horrid conditions in camps.

The question is whether the prosecution of a sitting head of state, in light of the above, is a worthwhile enterprise even if conviction can be ensured, which it often isn’t. The consequences of such prosecution, such as, the reluctance of states to cooperate with the ICC when a sitting head of state is involved; the ever deteriorating relationship between the ICC and Africa; as well as the likely loss of more lives and suffering upon conviction, seem to outweigh the benefits of a possible conviction. Although article 27 of the Rome Statute gives the ICC jurisdiction over heads of state and government, for the above stated reasons, the ICC should rethink the prosecution of sitting heads of state.

Guest Post by Phoebe Oyugi (Phoebe is a Kenyan Scholar Completing her LL.M at Rhodes University, Grahamstown, South Africa)

 Xi Jinping at Fourth Plenum, Beijing

Introduction

From 20 to 23 October, the Fourth Plenum of the Central Committee of the Communist Party of China convened in Beijing. The fact that the meeting was devoted exclusively to the Rule of Law was remarkable by itself. Below we will explain why the outcomes of the meeting are so important. We will do so after having explained the status of the 'Fourth Plenum'.  

The status of a Fourth Plenum

Since 1982, when the Constitution abolished lifelong tenure for leadership positions, Communist Party officials serve for a five year period. Since 1978, the Central Committee of the CPC has consistently held seven meetings, called 'plenums' during this term of office. Traditionally the First and Second plenums are devoted to filling the positions within the CPC and state organs.

The Third Plenum traditionally lays out the “big agenda” to be pursued by the Central Committee. Not surprisingly, Third Plenums have traditionally served as significant turning points for the course of the CPC. Thus, in 1978, the Third Plenum of 11^th Central Committee decided to put an end to “mass class struggle” and to “make China a modern, powerful socialist country before the end of this century”. In 1993, the Third Plenum of 14^th Central Committee formally endorsed the “socialist market economy”.

Historically, the Fourth Plenum focuses on strategies to be adopted in order to achieve the goals that have been set by the Third Plenum. Accordingly, the Fourth Plenum of the 11^th Central Committee in 1979 adopted a number of important rural and land reforms. The Fourth Plenum of the14^th Central Committee in 1994 discussed how to strengthen the CPC’s leadership role during the introduction of a socialist market economy.

On 12 November 2013, the Third Plenum of the 18^th Central Committee adopted a reform agenda which listed 60 items aimed at deepening the reform. The Final Communiqué of the Third Plenum contains references to the traditional ideological sources, such as Marxism-Leninism, Mao Zedong Thought, and Deng Xiaoping Theory, but it stopped short of presenting the new philosophy of the Xi Jinping Administration. Therefore, the Fourth Plenum was expected not only to provide guidance on the implementation of the reform agenda, but also to lay out the ideology of General secretary Xi Jinping to guide the CPC. 

Embracing the Rule of Law

According to the Communiqué of the Fourth Plenum, the target of the Central Committee is  to build a country 'under the socialist rule of law'. This should lead to 'administration by law' and a 'law-abiding government'. This language goes one important step further that that used by the 15th Central Committee in 1997, which referred to 'building a socialist country ruled by law'. That language was mirrored in Article 5 of the Chinese Constitution, adopted in 1999, which stipulates that the People's Republic of China implements the rule of law and builds a socialist country ruled by law. 

According to the Communiqué, the Central Committee has committed itself to forming a system serving 'the socialist rule of law with Chinese characteristics'. Although it has undoubtedly been motivated by the intrinsic value of the Rule of Law concept, it is likely that other considerations also were taken into account. Thus, the Xi Jinping Administration has started a very visible and wide-ranging anti-corruption campaign, which targets both the 'tigers and the flies', i.e. both high- and low-ranking officials. This campaign can now be founded on the Rule of Law which will provide it with additional legitimacy.

In addition, it is clear that the Administration is keen on maintaining or even boosting economic growth figures on which its legitimacy depends to a certain extent. Embracing the Rule of Law will contribute to achieving this aim, since legal stability benefits the economy: it provides the legal certainty which people need to invest. The positive effect is not limited to Chinese companies but also extends to foreign owned ones, which will be even more eager to set up business in China. Thus, Charles Powell, who was Mrs. Thacher's foreign policy advisor and who now chairs the China-Britain Business Council, welcomed the decisions of the Fourth Plenum on the Rule of Law as being good for business.  

The Rule of Law may also assist the central government in keeping the local authorities in check and this too has an economic dimension. Local governments play a very important role in China also in the economic area. During the Deng era, their autonomy, also in fiscal matters, was enhanced, to unleash their economic potential. Consequently, the activities of local authorities increasingly have an impact on the economy, be it by running their own companies, by levying taxes, or by incurring debt. They also make a considerable contribution  to the revenue of the central government. The central government has some leverage through the promotion system of officials, but using the Constitution and the law as a correctional mechanism provides an additional safety valve.

The Constitution as core

The Central Committee has given centre stage to the Constitution. According to the Communiqué, the Constitution should be regarded as the core of the socialist legal system with Chinese characteristics. In order to realise the Rule of Law, the country should be ruled in line with the Constitution. This does not mean, however, that the Constitution will become justiciable or that China is about to introduce judicial review.

Currently there are two models for reviewing the constitutionality of legislation, i.e. judicial and political review. Judicial review was introduced by the U.S. Supreme Court in the well-known Marbury v. Madison case in 1803. Under this model judges are allowed to consider whether legislation is conformity with the Constitution and to declare it null and void when it fails that test. American style judicial review has spread to other parts of the world, especially to Europe. Political review is exercised by a body which is part of or set up by the legislature, which still has the final say. Thus, although the Constitutional Council in France can declare an act to be contrary to the Constitution, it is up to Parliament to translate this decision into a new law.    

Under China's current constitutional system, the introduction of judicial review is highly unlikely. The leading role of the CPC as guaranteed by the Constitution does not sit well with the Western concept of separation of powers or the authority of judges to overturn legislation. The 2001 Qi Yuling case, in which the Supreme People's Court proved willing to apply the right to education as guaranteed by the Constitution in a case brought against a public school, was regarded by some commentators as heralding a new era. However, the case was overturned by the Supreme People's Court at the end of 2008, and there are no signs that the Court is about to change track.

As the Communiqué makes clear, it will remain the task of the National People's Congress and its Standing Committee to supervise the implementation of the Constitution. However, according to the Communiqué, they are supposed to do a better job at it. Words matter in China, and it is a pubic secret that policymakers in Beijing are looking for ways to amply the political review of constitutionality of legislation, while leaving the power in the hands of the National People's Congress and its Standing Committee. Creating a review committee within the National People's Congress, comparable to the Comité Constitutionnel which was created by the Constitution of the Fourth French Republic, might be an option. The Comité had the authority to declare that a bill could only be adopted if the Constitution would be amended accordingly. The plenary Parliament was not formally bound by that decision, but it had a lot of explaining to do if it would decide to overrule it.

Interestingly, just after the Fourth Plenum had ended, a group of scholars led by Prof. Han Dayun of Renmin University in Beijing published an expert opinion on the interpretation of the Constitution. They suggest to enable all state organs, as well as all social organisations, enterprises, non-profit institutions and individuals to file a request with the Standing Committee of the National People's Congress for an interpretation of the Constitution. This suggestion, which leaves the political primacy of the National People's Congress and its Standing Committee intact, seems to have been inspired by the Chinese petition system, or xinfang, which dates back millennia. The publication of the expert opinion, which is based on the outcomes of a research project commissioned by the Justice Ministry in 2005, was very well timed. 

Letter from Ethiopia

Dear Reader

Cape Town, South Africa

I recently had the pleasure of visiting Ethiopia and revisiting South Africa, the country of my birth. I had never been to Ethiopia before and previous to that, heard many remarkable and wonderful things about it. Now that I have been there, I can safely vouch that it is remarkable country, rich in history, culture and tradition, with a delicious cuisine and great coffee. Most importantly, I found Ethiopians to be peace loving, and a warm and friendly people, and Ethiopia, a very safe place to be in. The lessons I learnt about and in Ethiopia will remain with me for a lifetime and has added to my development as a person, both personally and professionally. I am grateful, therefore, in this short way, to share my experiences with you.                                  

During January to April 2014, I conducted field research at African Union in Addis Ababa and at the Pan-African Parliament, an organ of the African Union in Midrand, South Africa. I chose to conduct interviews at both organizations mainly because I believed that they would better inform my insights on the legitimacy crisis currently characterizing the relationship between the International Criminal Court (ICC) and the African Union (AU), a topic on which my research is based. Some of the arguments in favor of this position and also advocated for by the African Union is that the Court is biased because all its prosecutions are against Africans.

The ICC, on the other hand, maintains that as an institution set up to combat impunity, it is keeping to its mandate by advocating for justice and victims needs in Africa, which remain inadequately addressed by some African leaders. While many of these assertions may or may not be true, there is a perception that the rift is widening between the Court and its African constituency.

Ethiopian Coffee Ceremony

To test this hypothesis, I decided that it would be best if I spent some time on the ground at the African Union, to see if this was indeed the case. The African Union is the spokesperson of African States and its relationship with the Court, from my perspective, should be explored more broadly than solely from a purely legal perspective, given the context in which it operates, namely more from a political vantage point. Similarly, the ICC, although established as a judicial institution and acknowledging itself as such, nonetheless functions in a politically charged, global environment. Taking these contexts into account, I have therefore decided to approach my research from both a legal and social science perspective, hoping to be better informed on the underlying issues, which needs uncovering.

The research methods I used during my travels were thus qualitative in nature, comprising participant observation and semi structured research interviews. Access to most respondents was secured through the snowball technique, a technique, which surprisingly was easy to accomplish at both institutions, where a very friendly and warm demeanor met me.

AU Headquarters, Addis Ababa, Ethiopia

My initial observations of the AU were impressive, and the main thing that stood out, was the new AU headquarters, costing roughly around 200 million dollars, considered a generous gift from the Chinese government. This magnanimous gift from the Chinese symbolizes the extent of the newfound friendship China and Africa share and serves as a precursor to future investment and future relations between both countries. Aside from the impressive AU architecture, the highlight of my stay was attending the 22^nd AU Summit in Addis, with this year’s theme, focusing on Agriculture and Food Security In Africa. The discussions were stimulating ranging from conflict prevention, climate control, illegal exploitation of resources, and increased agricultural sustenance for the optimal development of a prosperous Africa in the coming years. 

In order, to tackle its core problem of African disunity, the AU has focused strongly on African culture, heritage and identity through the promotion of an ‘African Renaissance’ coined by the former President of South Africa, Thabo Mbeki, an intellectual and influential player within AU circles. The African Renaissance is aimed at fostering integration amongst African States, by forging a common African identity and is of particular relevance to the AU, because it contributes to strengthening the institution vocally, so as to speak with one voice, on vital issues of concern to Africa. Given its 54 member states, it is no easy task to mobilize and motivate States to unite on pertinent issues of particular relevance, especially when each State has its own political agenda and varied interests to take into account.

The AU, also, as an organization, focuses on security, and uses the full range of diplomatic and coercive measures available to it, to meet its mandate of fostering peace and security on the African continent. Given the severity of conflicts currently taking place in South Sudan, Mali and Central African Republic, peace concerns are pressing on the continent, and it is important to note that development of the African continent can only take place if conflicts are curbed and peace prevails. Peace, in other words, engenders development and development economic and social prosperity. It is therefore crucial for the AU to succeed in this part of its mandate if it is to be considered a legitimate regional institution in Africa and the world.                                                                 

Peace and Security Meeting AU Summit

These insights, I found are rather relevant because they relate to current ICC prosecutions, which some say, have had a destabilizing effect in certain regions in Africa, and impact larger concerns, such as peace efforts in Africa.  These and more related issues are explored in deeper detail in my thesis. So, whilst issues of AU and ICC discord go deeper than merely the ICC targeting Africa and the “race hunting of Africans”, I am optimistic that there is ample room for dialogue and improvement on this front. It is to this end that I am hoping that my research will contribute, and represent a balanced view of the issues at play, from the perspectives of both key players. I am grateful to report that a new chapter awaits me at the ICC where I will undertake a Visiting Professionals Programme for a period of three months, so as to be able to gauge the ICC’s perspective on issues of concern between itself and the AU. I look forward to report to you on my experiences at the Court, and the developments of my research, at a later stage. 

Yours sincerely,

Ingrid Roestenburg Morgan

Posted By Ingrid Roestenburg Morgan (Extracted from School of Human Rights Research Newsletter Fall 2014 available online at http://www.schoolofhumanrights.org/fileadmin/user_upload/PDF_files/Newsletter_OZS_RvdM_Autumn_WEBSITE.pdf

Africans and Hague Justice Conference

On the 23^rd and the 24^th of May 2014, The Netherlands Association for African Studies (NVAS) together with the Hague University of Applied Sciences (HHS) as well as the Netherlands School of Human Rights Research (SHRR) hosted the multidisciplinary conference Africans and Hague Justice: Realities and Perceptions of the International Criminal Court in Africa, which was held at the University of Applied Sciences in The Hague. The conference was groundbreaking in that it reflected the complex and multi-layered perceptions of the International Criminal Court and Africa from the perspective of various different disciplines and backgrounds.

Thematic angles included the ICC’s influence on national politics as well as interstate relationships in Africa, the position of the African Union in the African debate on the ICC, the role of ICC bodies such as the African Court and the socio-cultural impact of the ICC and its compatibility with other international judicial frameworks.

Keynote addresses were given by Professor Makau Mutua, Dean of SUNY Buffalo Law School, Professor Kamari Clarke, Professor of Anthropology and Law at the University of Pennsylvania, Professor Charles Jalloh, Associate Professor at Florida International Law School, as well as Dr. Solomon Dersso from the Institute of Security Studies, in Addis Ababa and last but yet not least, Shamiso Mbizvo from the ICC’s Office of the Prosecutor.  Aside from the high quality and lively presentations given, there were also were a number of side events including an art exhibition, showcasing cartoons by Creative Court, as well as a number of bookstalls presenting the latest publications by Eleven Publishers, Brill Publishers and Intersentia, which had to do with some of the themes of the conference. There was also wide media coverage of the event by various media agencies, including the Dutch Newspaper Trouw, which ran an insightful piece on Court through the lenses of two keynote speakers, Solomon Dersso and Makau Mutua.

Prof. Makau Mutua

Dr. Solomon Dersso

The conference comes at a pressing time, where the ICC’s reputation is increasingly becoming compromised in Africa, given the fact that all ICC prosecutions opened are against Africans. This has resulted in a perceived loss of legitimacy for the Court from the viewpoint of many academics and scholars, not only in Africa, but also throughout the world.  The Hague Justice Conference has been one of the first, of hopefully many conferences to come, aiming to exposition the many underlying issues at play regarding the ICC and its impact in Africa over the past decade. Issues alluded to in the past through media reports and the few academic articles covering topics such as the ICC’s legitimacy, its relationship with the African Union and African society in general, have been sparse and often of the time publicly denied or ‘swept under the carpet’ by some academics and ICC officials alike. But from the recent discussions at the conference, it has emerged that major challenges lie in wake of current and future ICC prosecutions. If the Court is to function optimally, there needs to be open and honest discussion facilitating solutions to problems identified, to strengthen the Court as an international justice mechanism.          

Hopefully, conferences following in the same 'ICC vein' will be bold enough to gauge broader views from multidisciplinary audiences necessary to address crucial criticisms, essential to developing a fair and effective International Criminal Court.

So kudos go out to the members of the organizing committee, Froukje Krijtenburg, Eefje de Volder, Jos Walenkamp and (myself) Ingrid Roestenburg-Morgan for bringing this conference to life and making it a real success J

For more information on the conference read the views of Cecilia Bailliet, on her Blog IntLawGrrls available at:

http://ilg2.org/2014/05/27/highlights-from-the-conference-on-africans-and-hague-justice-realities-and-perceptions-of-the-international-criminal-court-in-africa/

Posted by Ingrid Roestenburg-Morgan