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32 BCICLR 129 32 B.C. Int'l & Comp. L. Rev. 129

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7 SANDILJ 5 7 San Diego Int'l L.J. 5

San Diego International Law JournalFall 2005

Article

*5 THE SUMMER HAS ENDED AND WE ARE NOT SAVED! TOWARDS A TRANSFORMATIVE AGENDA FOR AFRICA'S DEVELOPMENT

Nsongurua J. Udombana [FNa1]

Copyright (c) 2005 San Diego International Law Journal; Nsongurua J. Udombana

Table of Contents

I. An Eventful Summer

6

II. Debt Relief and Distributive Jus-tice

9

A. Poverty, Debts, and the Interna-tional Economic System

9

1. A Rich Continent Buffeted by Poverty

10

2 Decades of Unequal Development

13

3. The Debt Burden

18

B. Justice and Debt Relief

21

1. The Historicity of Campaigns for Debt Relief

21

2. The Legal and Moral Arguments 25



for Debt Relief

3. A Rising Hope

34

4. Debt Relief and Conditionality

37

III. Beyond Debt Relief

39

A. Examining the Aid Question

40

1. Reviving Aid

40

2. The Problem with Aid

42

3. Making Marginal Gains from Aid

46

B. Examining the Trade Question

46

1. Why Trade Matters to Africa

47

2. Towards a More Credible Multi-lateral Trading System

49

IV. Reinvigorating Africa's Regula-tory and Economic Policies for Sustain-able Development

51

A. Renovating Weak Political and Institutional Structures

51

B. Reinvigorating Africa's Economic and Regulatory Frameworks

54



C. Entrenching the Human Dimen-sion in Development Policies

57

V. The Summer has Ended. . .

59

*6 True compassion is more than flinging a coin to a beggar; it is not haphazard and superfi-cial. It comes to see that an edifice which produces beggars needs restructuring. A true revolution of values will soon look uneasily on the glaring contrast of poverty and wealth. [FN1]

I. An Eventful Summer

July 2005 was an eventful and atypical summer month; it was a month of great grief, great thrill, and great expectations. It was a month of great and inconsolable grief due to transnational terrorist at-tacks, including the devastating attacks in London on July 7 [FN2] and in Egypt on July 23. [FN3] Like-wise, the inexpressible carnage in Iraq continued unabated in July 2005; indeed, the degree of terror in Iraq has reached the utmost bounds of the imaginable and perhaps gone beyond them. The mindless car-nage in Iraq is a tumultuous consequence of the illegal and silly invasion of that country by the United States (U.S.) and its now dwindling coalition-of-the-willing states. Like communism, the inventors of the Iraqi invasion believe that it was a brilliant idea that could have worked had it been “done right.” [FN4] Notwithstanding, terrorism, like other transnational crimes *7 such as drug trafficking, represents a serious challenge to the values of civilization, since civilization is supposed to overcome the savage aggressiveness of the individual. [FN5]

July 2005 was also a month of great thrill, with Bob Geldof and other musical stars treating the world to a “Live 8” musical jamboree on July 2, reminiscent of the 1985 “Live Aid” concert that took place in the wake of the Ethiopian famine. The goal of the “Live 8” concert, attended by such world fig-ures as Nelson Mandela, Bill Gates, and Kofi Annan, was to “Make Poverty History”--poverty being an affliction that actually or potentially includes all other afflictions [FN6]--and, in particular, to raise awareness of Africa's poverty. [FN7] Finally, July 2005 was a month of great expectations: following “Live 8” and related activities, the Group of Eight (G8) industrial countries [FN8] was expected to make tangible commitments towards eradicating or reducing Africa's poverty at their 2005 Gleneagles July Summit. It is a great tragedy that Africa is being repeatedly acted upon rather than being an actor in the international arena. These outbursts of sympathies and emotions painfully constitute the collective and vicarious humiliation of Africa's governments and peoples.

The extent to which the “Live 8” concert and related campaigns influenced the Gleneagles Summit is unclear; but one outcome of the Summit was the agreement by the G8 to cancel the debt of the 18 poorest nations, 15 of which are in Africa. [FN9] Under the deal brokered by British Prime Minister Tony Blair, the G8 will fund debts to the World Bank and the African Development Bank (ADB), while debts to the *8 International Monetary Fund (IMF) will be catered for by “existing IMF resources.” The



G8 also promised to boost aid for developing countries by $50 billion (£28.8 billion), to provide rapid and flexible multilateral and bilateral debt relief for post-conflict countries and to allocate grant financ-ing for reconstruction needs. [FN10]

This article examines the promised debt relief and commends the G8 for taking the initiative to as-sist a continent in crisis. The article, however, argues that debt relief is far from a complete cure, and that Sub-Saharan Africa (SSA) needs more than handouts from the G8 to overcome poverty. Debt relief is merely the end of the beginning; [FN11] it is, at best, a gesture of support to Africa's effort at meeting human security, which the African Union (A.U.) defines as “the security of the individual in terms of satisfaction of his/her basic needs.” [FN12] Africa's problems are conspicuous, though their solutions seem to defy reason and common sense. There are three external trajectories to Africa's development cri-sis: the first is the debt question; the second is the aid question; and the third is the trade question. [FN13] The Blair Commission Report [FN14] sums up Africa's internal *9 development trajectories thus: “Africa's history over the last fifty years has been blighted by two areas of weakness. These have been capacity-- the ability to design and deliver policies; and accountability--how well a state answers to its people.” [FN15] This article will argue that while Africa needs the international community's support for capacity building, it must take up the challenge of accountability and pull itself up by its bootstraps.

Part II addresses the debt burden, the long struggle and arguments (legal and moral) for its relief, and the promised reprieve by the G8, all in the context of global distributive justice. Part III examines Africa's other external development trajectories--aid and trade--and argues that market access offers great potential for Africa's growth, though it is hard to draw the same conclusion about aid. Part IV fo-cuses on internal dynamics, including Africa's obstructive regulatory and economic policies, and calls for a transformative development agenda.

II. Debt Relief and Distributive Justice

After years of painful struggle, the international community, in particular the G8, finally responded with positive gestures to Africa's debt problem. Until recently, the G8 had stuck relentlessly to an un-changing line even in radically changed circumstances. It is reasonable to assume that the grinding and embarrassing poverty in SSA, arising from the debt burden and other exogenous and endogenous fac-tors, probably prized the G8 to finally shift ground. This Part examines the dialectics of Africa's debt problem and the silver lining that now appears in the hitherto dark clouds. Its central thesis is that debt relief should not be seen as an act of mercy but as a response to the demands of distributive justice.

A. Poverty, Debts, and the International Economic System

Why is Africa so poor? Is there a chance that the continent will meet the Millennium Development Goals (MDG)? How has the current international economic order (IEO)--including the asymmetrical world economic and trading system-- affected Africa's efforts at sustainable development and the reduc-tion of poverty? What, especially, is the nexus between debt burden and poverty?

*10 1. A Rich Continent Buffeted by Poverty



Africa is a huge paradox. The continent has immense wealth, potential, market and cul-ture. Twenty percent of its total area is made up of forests, making it “the planet's second lifeline with fabulous bio-diversity (flora and fauna).” [FN16] Africa is endowed with immense mineral and energy resources such as petroleum, gas, uranium, and hydroelectric basins. Its mineral reserves account for about 30 percent of global mineral resources. [FN17] Yet, the New Partnership for Africa's Develop-ment (NEPAD) has announced that, “Africa remains the poorest continent despite being one of the most richly endowed regions of the world.” [FN18] The defunct Organization of African Unity (OAU) had earlier reflected on the continent's plight in these sobering words: “We have noted, at the close of the 20th century, that of all the regions of the world, Africa is indeed the most backward in terms of devel-opment from whatever angle it is viewed and the most vulnerable as far as peace, security and stability are concerned.” [FN19]

Since the “Four Freedoms” speech of Franklin D. Roosevelt, in which he spoke, inter alia, of “free-dom from want,” [FN20] a frontier of freedom has grown across the world. The final decades of the 20th century were a glorious period for the majority of mankind, with the number of people *11 living in ex-treme poverty reduced to one billion, from one and a half billion. [FN21] However, behind the frontier of freedom are millions of Africans who live without the freedom to better their lives. SSA has not shared in the glow of the past decades; for it, they have been decades of despair. A few examples of the severe and pervasive poverty in SSA are warranted, [FN22] but many are not. Stein Ringen believes that Europeans are, on average, about 20 times better off today than Africans. [FN23] Although Ringen's claim is slightly over-stated, there is no denying that, in certain communities in some parts of the globe, a privileged group of persons collectively have vastly more than they need to maintain an adequate stan-dard of living. On the other hand, massive poverty, unemployment, crime, homelessness and other pathologies plague SSA and show no signs of abating.

HIV/AIDS, malaria, tuberculosis (TB), and other communicable but preventable diseases have fur-ther ravaged many African countries; the AIDS pandemic, in particular, is largely a poverty disease. [FN24] Like poverty, Africa's share in these diseases is disproportionate and ought to revolt the human conscience. Whereas less than 2 million persons live with HIV/AIDS in Latin America and less than 1 million in Western Europe, between 25 and 28 million Africans are infected, representing about 70 per-cent of worldwide infections. [FN25] Of the 5 million people infected with HIV/AIDS globally in 2003, 3 million, or 60 percent were Africans, compared to 30,000, or 6 percent in Western Europe. [FN26] Africa has so far lost over 22 million persons to HIV/AIDS. The death toll from other regions put to-gether is less than 3 million. [FN27]

The MDG has become the standard for identifying and measuring global development objectives in the period up to 2015. Elaborated by *12 the United Nations (U.N.) Secretariat in collaboration with the World Bank, IMF, and the Organization for Economic Cooperation and Development (OECD), the MDG seeks to harmonize reporting on the development goals set forth in the U.N. Millennium Declara-tion of 2000. [FN28] It calls for international cooperation to eradicate extreme poverty and hunger; achieve universal primary education; promote gender equality and empower women; reduce child mor-tality; improve maternal health; combat HIV/AIDS, malaria and other diseases; ensure environmental



sustainability; and develop global partnerships for development for the attainment of a more peaceful, just and prosperous world.

Many countries are on track to achieve at least some of the MDGs by the magic year 2015; but SSA remains steeply behind and is presently the only continent not on track to meet any of these goals. The MDG Report for 2005 estimates that there were 815 million hungry people in the developing world in 2002--9 million less than in 1990; but that the number has increased by tens of millions in SSA. [FN29] Between 1990 and 2003, the number of underweight children in SSA also increased from 29 million to 37 million. [FN30] The actual statistics may not be known, particularly as some of the so-called “AIDS victims” may be victims of malnutrition. In Niger, the world's second poorest country after Sierra Leone, about 3.5 million people are facing extreme hunger and malnutrition. According to James Mor-ris, Executive Director of U.N. World Food Program (WFP), “Whole families are suffering [in Niger] because of a desperate shortage of food, which has forced them to eat just one meal a day of maize, leaves or wild fruits.” [FN31]

About $3,050 billion will be needed to achieve the MDG goals; and at the current rate of develop-ment, many African states are unlikely to meet this target, due to lack of resources. SSA has witnessed two decades of negative per capita income growth. Its per capita growth rate was only 1.7 percent in 2003, “much too low to achieve the MDG for poverty reduction.” [FN32] The growth rate needed to at-tain the MDG in Africa falls between 5.6 percent for North Africa and 8 percent for Central and East Africa. This translates into an investment/Gross Domestic Product (GDP) *13 ratio of about 21 and 46 percent for the two regions, respectively. [FN33] The entire continent currently has an average of 3.5 percent economic growth, but twice this figure is necessary for Africa to halve extreme poverty by 2015. [FN34] The World Bank distressingly concludes that even if SSA were to achieve a projected growth rate of 1.6 percent per capita, it would still be at the low end of the developing-country growth spectrum, “inadequate to make much of a dent in poverty and other MDGs.” [FN35]

2. Decades of Unequal Development

Poverty is not a new phenomenon [FN36] and its causes are varied. [FN37] The IMF lists the fol-lowing causes: low levels of education, investment and savings; inadequate health care and nutrition; economic instability, including high inflation and currency volatility; high budget deficits that contribute to high interest rates; wars, coups, political instability, and corruption; lack of a strong, impartial judi-ciary and rule of law; inefficient, uncompetitive and corrupt financial systems; protectionist policies that discourage trade; and debts owed to foreign lenders that cannot be repaid. [FN38] As expected, the IMF classifies trade liberalization as a victim rather than a villain and confines the debt crisis to issues of good governance and economic reforms. Western countries and institutions often perceive Africa's prob-lems as mainly consequences of some inscrutable force of nature, compounded by corruption.

The truth is that much, certainly not all, of Africa poverty results from the ‘winner-takes-all’ global economic system that is geared towards protecting the rich at the expense of the poor. [FN39] Decades of unequal *14 development and an unfair IEO have contributed to the stalled development of most de-veloping countries and to poverty. [FN40] The race to the bottom fueled by globalization and liberaliza-



tion has lowered wages in many countries, “[d]espite efficiency and productivity gains,” creating un-precedented income inequality and a decrease in the standard of living for millions of people. [FN41]

The current IEO was elaborated shortly before the end of World War II and is symbolized in the trio of the IMF, World Bank and--with the conclusion of the Uruguay Round in 1994 [FN42]--the World Trade Organization (WTO). [FN43] The WTO, in turn, succeeds the General Agreement on Tariffs and Trade (GATT). [FN44] The IEO was elaborated at a time when most of Africa, with the exception of Egypt, Ethiopia, and Liberia, was colonized by the then European powers--Belgium, Britain, France, Portugal, and Spain. It was the wealth of Africa and the sweat of Africans that developed Europe, in the same way that the IEO continues to effectively ensure Africa's subjugation and neo-colonization. The so-called multilateral system is nothing but a projection of the “Washington Consensus,” with its insis-tence that “the market is the most rational way to do things correctly.” [FN45] As Joseph Stiglitz elo-quently puts it,

*15 the net effect of the policies set by the Washington Consensus has all too often been to benefit the few at the expense of the many, the well-off at the expense of the poor. In many cases, commercial interests and values have superseded concern for the environment, democracy, human rights, and social justice. [FN46]

The campaign for a New International Economic Order (NIEO), which began in the early seventies of the twentieth century, led to the elaboration of the Declaration on the Establishment of a NIEO. [FN47] The NIEO had three goals: First, it sought to eliminate developing countries' economic depen-dence on developed countries. Second, it sought to accelerate the development of economies in develop-ing countries based on the principle of self-reliance. Lastly, it sought to introduce appropriate institu-tional changes for the global management of world resources in the interest of mankind as a whole. In particular, the NIEO espoused an equitable approach to international trade and economic relations be-tween developed and developing countries and advocated preferential trade and investment treatment for developing countries. It also called for debt relief and grants-based assistance, access to technology transfers, and the recognition of the right to development. [FN48]

The campaign for a NIEO also led to the adoption of the Charter of Economic Rights and Duties of States in 1974 (Charter). [FN49] The Charter aimed to establish a new system of international economic relations based on equity, sovereign equality, and the interdependent interests of developed and develop-ing countries. [FN50] Some doubts exists whether the Charter forms part of customary international law--since it was adopted as a U.N. General Assembly resolution and without universal acceptance. [FN51] Nonetheless, the principles embodied in this and similar instruments, including the Program of Action on the Establishment of a NIEO, [FN52] *16 “represent an expansion of the movement for per-manent sovereignty over natural resources, and continuation of the legal effort by Southern countries to find voice and to exercise more power over their political and economic destinies.” [FN53]

The international community subsequently elaborated other initiatives-- multilateral, bilateral, and private--all aimed at promoting SSA's economic renaissance and alleviating poverty. Past multilateral initiatives include the U.N. Transport and Communications Decade in Africa, [FN54] the Industrial De-velopment Decade for Africa, [FN55] and the Program of Action for African Economic Recovery and



Development (PAAERD), [FN56] which led to the New Agenda for the Development of Africa (NADAF). These programs sought to invigorate African development and intensify global support for its economic reforms. The PAAERD and NADAF were particularly significant, targeting an average real growth rate of 6 percent of GDP and promoting a number of people-oriented objectives, such as promoting food production and developing agro-industries and human resources.

Whether the NIEO changed the development trajectory of international economic relations and, in particular, whether SSA made any meaningful gains from these campaigns and programs remains a mat-ter of academic conjecture. [FN57] Clearly, these initiatives have not succeeded in establishing legal obligations for the West. Rather, international law has “reinforced and reproduced the [current] eco-nomic and political inequities.” [FN58] Some commentators take the view that the NIEO-based agenda has been partially successful in practical terms, citing the World Bank and other multilateral and bilat-eral institutions that are implementing large-scale debt relief. [FN59] Others point to the Bretton Woods institutions' Poverty Reduction Strategy Papers (PRSPs), the World Bank's Comprehensive Develop-ment Framework (CDF), and the Common Country Assessment *17 and U.N. Development Assistance Framework (CCA/UNDAF), all of which “command the attention of decision makers, and make re-sources available for each country.” [FN60]

Critics have questioned the international financial institutions [IFIs] so-called debt relief--even from a developing country's perspective--arguably due to the implicit “moral hazard,” particularly if recipient nations appear to be not credit-worthy and unattractive to investors. [FN61] Other critics argue that the NIEO is not serving the interests of Africa's producers and exporters. The World Bank itself estimates that SSA lost half its market share in exports of primary products between 1970 and 1983. [FN62] As an illustration, whereas a ton of African copper bought 115 barrels of oil in 1975, it bought only 58 barrels by 1980. Similarly, a ton of African cocoa could buy 148 barrels of oil in 1975 but only 63 barrels by 1980; and while a ton of African coffee could buy 148 barrels of oil in 1975, it could buy only 82 barrels by 1980. [FN63] The reason for fluctuations in Africa's fortunes is that developed countries determine the price of their products as well as those of developing countries. Africa, says Cameron Duodu, “has been involuntarily locked into an earnings logjam on the international market, which keeps it poor when it sells to others, and poor when it buys from them.” [FN64]

The Lagos Plan of Action (LPA), adopted in 1980 by the now defunct OAU, [FN65] also noted that the NIEO was flawed and biased against Africa. Its Preamble opened with the following scathing words:

The effect of unfulfilled promises of global development strategies has been more sharply felt in Africa than in the other continents of the world. Indeed, rather than result in an improvement in the economic situation of the continent, successive strategies have made it stagnate and become more susceptible than *18 other regions to the economic and social crises suffered by the industri-alised countries. Thus, Africa is unable to point to any significant growth rate, or satisfactory index of general well-being, in the past 20 years. [FN66] It is doubtful that Africa's situation has changed dramatically for the better since 1980, largely due to its debt burden.

3. The Debt Burden



The debt burden has remained one of the main obstacles to Africa's economic recovery [FN67] and has elicited repeated and common concerns in Africa. In 1990, the OAU adopted the famous Declaration on the Political and Socio-Economic Situation in Africa and the Fundamental Changes Taking Place in the World, [FN68] stressing: “The continuing plummeting of the prices of Africa's commodities, sky-rocketing of prices of manufactured goods and the growing burden of external debt and the attendant re-verse flow of resources constitutes external factors which severely constrain our efforts for economic re-covery.” [FN69] That same year, the OAU adopted a resolution on International Cooperation for African Economic and Social Recovery and Development, [FN70] which expressed serious concern about the effects of unfair international trade practices, reverse resource flows and external debts on Africa's de-velopment. [FN71]

External debts have become a Sword of Damocles hanging over SSA and preventing it from meet-ing the basic needs of its teeming population. Much of SSA's debt dates back to the 1970s and 1980s, when poor countries borrowed to fund domestic projects because of the commodity price boom, believ-ing that high prices and export earnings would be sustained. About 90 percent of Africa's debt consisted of long-term loans or drawings from the IMF, though most--about 96 percent--was either *19 publicly contracted or publicly guaranteed. [FN72] According to the IMF, the commodity terms of trade of SSA improved by 76 percent between 1970 and 1980. [FN73] This improvement was also partly a product of the great oil boom produced by what Okeke calls “the effective cartel strategy of the Organization of Pe-troleum Exporting Countries (OPEC).” [FN74]

Trouble started for the borrowing nations when commodity prices failed to rise in proportion to ris-ing interest rates, which was compounded by the oil price shocks that led to global recessions. Between 1980 and 1987, for example, SSA experienced a 32 percent decline in the commodity terms of trade. [FN75] The OAU confirmed these developments in 1991 when it declared:

The unprecedented collapse of the prices of Africa's commodities and the consequential dete-rioration in its terms of trade as well as the mounting protectionist measures in the markets of the developed countries against exports from Africa and restrictive business practices are among the major external causes of Africa's external debt. [FN76]

Such outbursts were of little interest to the IFIs, which craftily induced the debtor states to give “preferred” status to loan re-payments. Korinna Horta captured the mindset of the IFIs: “Unlike com-mercial banks, the [World] Bank does not have to bear the consequences of loans for ill-conceived projects. Given its status as a preferred creditor, governments repay their World Bank loans irrespective of the success of the projects that were financed.” [FN77]

Few countries recovered from the aftershocks; many did not. Africa's external debt stock continued to rise astronomically and uncontrollably, from about $60 billion in 1980 to about $257 billion by the end of 1989. [FN78] Africa “spends approximately $13.5 billion per annum repaying *20 debts” to IFIs for past loans of questionable legitimacy. [FN79] These debts are paid in international currencies, earned largely through international trade. Africa earns very little international currency, because it earns very little from international trade. One reason for this downward spiral is that terms of trade are depressed, particularly for primary products such as minerals, other natural resources, agricultural products, and the



like. A recent survey conducted by the U.N. Development Program (UNDP) reveals that “primary com-modities account for more than two-thirds of exports in 16 of the 23 top or high priority Sub-Saharan countries with data.” [FN80] There has been a general decline in the share of agricultural products in global trade, [FN81] due in part to poor policies fostered by enclave-dependent economies.

Today, about 85 percent of the Heavily Indebted Poor Countries (HIPCs) are African. [FN82] The World Bank and IMF launched the HIPC Initiative in 1996 to reduce the debts of the world's most se-verely indebted countries to “sustainable” levels--ones that poor countries can afford to service. Some commentators have questioned the effectiveness of the HIPC initiative, “partly because of the major ob-stacles of its implementation. Even the criteria upon which certain African countries were dropped from the list of HIPCs have been seriously questioned.” [FN83] The World Bank's definition of “sustainable” has also been criticized for failing to include new funds that debtors borrow to pay charges on “old” debts and to run their economies.

Africa has been so crippled in resources that only doses of aid and new loans have kept it from com-plete bankruptcy. Even these new resource inflows are used to repay old debts, leading to net capital outflows. The Economic Commission for Africa (ECA) reports that “roughly 80 cents on every dollar that flowed into Africa from foreign *21 loans flowed out as capital flight in the same year.” [FN84] Debt repayment has also increased dependence in Africa, with food imports increasing considerably due to a general decline in domestic production. Africa is now a net importer of food and “currently the largest recipient of food aid in the world,” [FN85] which is scandalous for the continent most climati-cally suited for food production in the world. [FN86]

B. Justice and Debt Relief

This segment examines the legal and moral imperatives of debt relief, the first fruits to result from that struggle, and the question of conditionality vis-à-vis debt relief.

1. The Historicity of Campaigns for Debt Relief

Like poverty, debt forgiveness is not a new concept, but an age-old answer to the injustice and in-equality of capitalism. The Law of Moses, for example, “instituted a genuine social revolution aimed at preventing the accumulation of capital in the hands of a few.” [FN87] It called on Jews to cancel all debts owed them by other Jews every seven years and to redistribute their wealth every 49 years--Jubilee was the year of liberty or freedom for every Jew. [FN88]

If one of your countrymen becomes poor and sells some of his property, his nearest relative is to come and redeem what his countryman has sold. . . . But if he does not acquire the means to re-pay him, what he sold will remain in the possession of the buyer until the Year of Jubilee. It will be returned in the Jubilee, and he can then go back to his property. [FN89] *22 Jesus also made these Jubilee commandments a cornerstone of his teachings. In the famous Lord's Prayer, Jesus de-scribed a rigorous equation between practicing the Jubilee and the grace of God: “Forgive us our debts, as we also have forgiven our debtors.” [FN90] The parables of the unmerciful servant and



the unjust steward further clarify Jesus's thought on this point; the former expresses the strict “equation” of the Lord's Prayer: no mercy for him who has none. [FN91] “By proclaiming the Ju-bilee,” says André Trocmé, “Jesus wanted to bring about a total social transformation, with an eye to the future, yet based on the vision of justice God had already set forth in the past.” [FN92]

The initial phase of Africa's struggle with the debt question focused on favorable debt-servicing pro-grams as opposed to outright debt cancellation. It is difficult to determine the exact time frame when the struggle began; but in July 1987, the OAU at its 23rd Ordinary Session in Addis Ababa, Ethiopia, adopted a Declaration on Africa's External Indebtedness. [FN93] The Declaration examined Africa's mounting debt burden “in depth” [FN94] and its adverse consequences for the implementation of Africa's recovery program. [FN95] It stressed the international community's responsibility to contribute to the improvements of African economies “in order to enable . . . Member States to service their debts.” [FN96] It also called for an international conference on Africa's external debt for creditors and borrow-ers to discuss and arrive at “appropriate emergency, short, medium and long-term solutions to alleviate the debt burden.” [FN97] The OAU directed the Permanent Steering Committee (PSC) to analyze in de-tail the issue of African external indebtedness [FN98] and urged its members “to provide to the PSC (Technical Committee) all relevant data and information on their national and regional debts so as to fa-cilitate the formulation and adoption of an African common position.” [FN99] Then, “the PSC will for-mulate concrete proposals for an African Common position on the issue.” [FN100]

*23 African states promised to reconvene in an extraordinary session in the future “to formulate an African common position on the issue.” [FN101] In 1989, the OAU passed another resolution renewing its call for an international conference on Africa's external indebtedness [FN102] and appealing to the international community, especially the creditor countries, to provide meaningful reductions in Africa's debt stock and debt service burdens and significant new resource inflows to Africa. [FN103] The impact of the international conference on Africa's debt is questionable. Still, at its 25th Ordinary Session in 1989, the OAU adopted a Resolution for an Enduring Alleviation of Africa's Debt Problems. [FN104] The OAU adopted the resolution because of concerns with the worsening economic situation in Africa, due, in part, to “the excruciating debt burden, which has stunted growth and development and engen-dered political instability in some African Countries.” [FN105] The resolution, for the first time, re-vealed and welcomed “the various debt initiatives, especially the recent debt cancellation offers by Pres-ident François Mitterand of France and President George Bush of the United States.” [FN106] The reso-lution did not give specifics on these “debt cancellation offers” but it stressed that “much more debt re-lief has to be granted to the debt-distressed countries in Africa.” [FN107]

The resolution called on the international community “to urgently evolve a more comprehensive strategy to address all aspects of Africa's debt problems, both official and commercial loans, on an en-during basis.” [FN108] It urged creditor countries, in particular, to write-off the official debt of African countries, “in view of their generalized poverty and the attendant economic structures that are fragile and obsolete together with the low per capita incomes which now make them qualify as low-income or *24 debt distressed countries.” [FN109] The resolution made some specific recommendations, [FN110] including “the establishment of an international debt purchasing institution or agency, under the aegis of the IMF and the World Bank to purchase the existing commercial bank debt of African countries at sub-stantial discounts reflecting market rates, while the discounts so realized should be passed on to the obli-



gators.” [FN111]

In 1996, Africa again called for a “practical and durable solution to the debt crisis . . . through a sys-tematic re-appraisal and review of all measures intended for its servicing and through a concerted search for new, appropriate solutions commensurate with an equitable promotion of economic and social progress in all parts of the world.” [FN112] The avalanche of these soft laws evidences a continent in desperation. NEPAD sums up Africa's arguments for debt relief thus: “Credit has led to the debt dead-lock, which, from installments to rescheduling, still exists and hinders the growth of African countries. The limits of this option have been reached.” [FN113]

It was the Jubilee 2000 Movement--an international civil society campaign--that brought great pres-sure to bear on the then G8 leaders to cancel the unpayable debts of the poorest countries by the year 2000, under a fair and transparent process. The Movement mobilized enormous international support, including churches throughout the developing world, [FN114] by arguing that debt relief is a moral im-perative reflecting the basic principles of economic justice. [FN115] Its activities radically shifted the paradigm from favorable debt-servicing conditions to debt relief and even outright cancellation. In 2001, Chris Okeke argued that “[t]he debt burden of Africa is so great and the capacity to repay so limited that it is increasingly necessary to think not in terms of servicing, but in terms of the idea of complete debt forgiveness.” [FN116] Africa also began making strident calls for outright debt cancellation. As recently as January 2005, the A.U. Assembly called on the G8 to cancel Africa's debt and to take practical steps to urgently implement such cancellation. [FN117]

*25 2. The Legal and Moral Arguments for Debt Relief

Scholars and other commentators have explicated both legal and moral arguments for debt relief, though voices of dissent have also been audible. As Okeke puts it, “[i]f there are but only good moral arguments by the South for debt forgiveness unsupported by sound and indisputable legal case, the whole matter becomes problematic.” [FN118] In examining the “legitimacy and legality of debt forgive-ness under international law,” [FN119] Okeke advances the odiousness of debt as a legal argument for its relief. Citing Alexander Sack, an eminent scholar on the odious debt doctrine, [FN120] he posits: “If a despotic power incurs a debt not for the needs or in the interest of the State, but to strengthen its despotic regime, to repress the population that fights against it, etc., this debt is odious for the population of all the State.” [FN121] The specific elements of the odious debt doctrine are: (1) the people did not consent to the borrowing; (2) the proceeds did not benefit the people; and (3) the creditor knew (1) and (2) when lending. [FN122]

Other scholars believe that the odious debt doctrine is not a part of international law. According to Emily Mancina, the doctrine is unsupported by both treaty law and state practice. [FN123] She even ar-gues that the integration of the odious debt doctrine into international law would harm third world coun-tries by increasing the power of IFIs over the debtor countries and allowing the West to judge and dic-tate conditions to these countries. [FN124] She further asserts that “the international legal system should reject the odious debt doctrine because it ultimately undermines state sovereignty *26 and absolves states of liability for the actual human misery triggered by loans to odious state regimes.” [FN125] She



further agues that “Western ‘moral’ considerations include a fear of undermining accountability and, as a corollary, a fear of undermining institutional stability.” [FN126]

Mancina's arguments appear logical, though there is nothing as ugly as orthodoxy without compas-sion. Of course, general international law recognizes that internal forms of government do not affect le-gal rights and responsibilities of states. As the Arbitrator in Costa Rica v. Great Britain (Tinoco Arbitra-tion) [FN127] stated, “though the government changes, the nation remains, with rights and obligations unimpaired.” [FN128] The Arbitrator also held in that case that “when debt transfers from a previous, recognized regime, the debt becomes the obligation of the new government.” [FN129] He rejected the Tinoco regime's non-democratic status as grounds for nullifying the debt, but nonetheless nullified it be-cause “the bank knew that this money was to be used by the retiring president, F. Tinoco, for his per-sonal support after he had taken refuge in a foreign country.” [FN130]

Mancina downplays the obvious fact that political changes may lead to circumstances sufficient to alter particular types of treaty relations and that the Vienna Convention on the Law of Treaties [FN131]allows a party to terminate treaty obligations for various reasons, including impossibility of performance [FN132] and fundamental changes in circumstances. [FN133] Changes frustrating an agreement, apart from creating actual impossibility of performance, may also justify termination of the contract, based on the doctrine of rebus sic stantibus. As Hubert Beemelmans writes: “If a successor State or its treaty part-ners think that a certain treaty is no more adequate to changed circumstances they can renegotiate it. . . . The Vienna Convention . . . gives all the necessary remedies. Debts can be renegotiated, rescheduled, etc.” [FN134]

*27 With Okeke, and contrary to Mancina, the present writer emphatically embraces the odious debt doctrine and submits that Africa's debts fall into the class of “impossibility of performance.” Much of Africa's debts accrued during periods of military dictatorships and under the authority of crazy men “who hear voices in the air.” [FN135] Most Western countries and IFIs knew that African dictators never intended to use these loans to advance economic development. As Joseph Stiglitz justly argued:

When the IMF and World Bank lent money to the Democratic Republic of Congo's notorious ruler Mobutu, they knew (or should have known) that most of the money would not go to help that country's poor people, but rather would be used to enrich Mobutu. It was money paid to ensure that this corrupt leader would keep his country aligned with the West. [FN136]

Although the sense of injustice might be a capricious sentiment, the present writer agrees with Stiglitz that it is unfair to call on ordinary taxpayers in countries ruled by corrupt governments to repay loans made to leaders who did not represent these payers. [FN137] Transparent and accountable gover-nance is an integral part of sustainable development and international cooperation, and the West increas-ingly asserts these values in its dealings with developing countries. [FN138] It is a mockery of the hu-man rights rhetoric and good governance for the West to both approbate and reprobate. Why, it may be asked, did Western creditors not take “Western ‘moral’ considerations” into account before advancing loans to many corrupt governments in Africa? Why did they naïvely assume that “[a] *28 country does not go bankrupt” [FN139] and, thus, fail to adequately assess the risk before advancing loans?



International law does not operate in a vacuum, and, given that much of Africa's debts will never be repaid, the most reasonable action creditors can take is to write off the debts and save succeeding gener-ations of Africans from economic slavery. History shows that “the international system tacitly accepted widespread default in the similar economic conditions of the 1930s.” [FN140] The problem, as Cheryl Payer notes, is not just a generational one: “The real problem is that those who have to bear the heavy cost of repaying the loans with interest are not the same people who benefited from the loans, and are not even the children of those who benefited in most cases.” [FN141]

The debt question is a human rights question. Human dignity is often held as the basis of human rights. According to Jack Donnelly, “We have human rights not to the requisites for health but to those things ‘needed’ for a life of dignity, for a life worthy of a human being, a life that cannot be enjoyed without these rights.” [FN142] In adopting the International Covenant on Economic, Social and Cultural Rights (ICESCR), [FN143] the international community was responding to the ideal that all human be-ings could be free “from fear and want.” [FN144] The ICESCR declares that socio-economic rights are based on the inherent dignity of all human beings. [FN145] These ideals were the presuppositions, ex-plicit and implicit, underlying every article in the Covenant. Thus, the ICESCR guarantees everyone the right to “an adequate standard of living . . . including adequate food, clothing and housing, and to the continuous improvement of living conditions.” [FN146] It guarantees “the right of everyone to the en-joyment of *29 the highest attainable standard of physical and mental health” [FN147] and the right to education, which “shall be directed to the full development of the human personality and the sense of its dignity. [FN148]

The ICESCR obligates each State Party “to take steps, individually and through international assis-tance and co-operation . . . to the maximum of its available resources, with a view to achieving progres -sively the full realization of the rights recognized [therein],” [FN149] a provision that has “a dynamic relationship with all of the other provisions of the Covenant.” [FN150] The Committee on Economic, Social and Cultural Rights (CESCR) states that taking step should not be “qualified or limited by other considerations” and that “[s]uch steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant.” [FN151] It maintains that the phrase “to the maximum of its available resources” is “intended by the drafters of the Covenant to refer to both the resources existing within a State and those available from the international community through interna-tional cooperation and assistance.” [FN152] The CESCR stresses, finally, that international cooperation for development and the realization of economic, social and cultural rights is an obligation of all states. [FN153] This *30 entails both negative and positive obligations--to respect, protect, promote, and fulfill human rights. [FN154]

The U.N. Charter also provides a normative basis for debt relief, based on obligations of states as-sumed therein. The purposes of international economic and social cooperation, as outlined in the Char-ter, include promoting “higher standards of living, full employment, and conditions of economic and so-cial progress” [FN155] and finding solutions to “international economic, social, health, and related prob-lems.” [FN156] Africa is part of the international community, and if the term “international community” has any meaning, then it surely encompasses “the one continent in which a genuinely global political, economic, and social program merges practical and moral considerations.” [FN157] Like the U.N. Char-



ter, the UDHR provides that everyone is entitled to a social and international order that promotes the full realization of human rights. [FN158]

The notion of equal dignity and respect to all people is meaningless unless genuine steps are taken to limit the imbalance between advantaged and disadvantaged persons. [FN159] Alan Gewirth has justly argued that a government “violates human rights when its hands-off policy lets the most vulnerable members of its society suffer harms and injuries like poverty, disease, illiteracy, or unemployment when it can take measures to prevent or alleviate such ills and when the persons affected cannot ward them off by their own efforts.” [FN160] A fortiori, the international community *31 is complicit in the wide-scale violation of human rights when it insists that poor states use their scarce resources to service debts. [FN161]

Debt repayments exacerbate human rights violations, because they “divert money directly from ba-sic human needs such as health care and education, and fundamentally undermine African governments' fight against the AIDS pandemic and their efforts to promote sustainable development.” [FN162] Ac-cording to Eric Friedman, debts owed by one country to another country or institution are resources that do not form part of “the maximum of its available resources” that must be used to ensure the full realiza-tion of socio-economic rights. [FN163] The logical but ugly implication is that “States have a greater duty to meet their obligations with respect to debts than they have to meet their obligations with respect to the very lives of their people.” [FN164]

A contrario, debt relief will make it possible, though by no means certain, for African governments to channel resources into human development objectives, to redirect resources towards raising the level of production and services, and to create more job opportunities. It will enable African governments to revive the failed educational systems, acquire learning facilities, and hire new teachers. It will enable governments to develop infrastructures, including roads and electricity, and to satisfy the A.U. goal of generally raising the living standards of Africans. [FN165] It will enable governments to establish hospi-tals and to open many clinics that have been padlocked and unused across Africa, thereby fulfilling the A.U. goal of working with relevant international partners to eradicate preventable disease and promote good health on the continent. [FN166] Of course, all of this is based on the assumption that the resources will be well managed and not diverted into “supporting airports at villages of presidents in Africa, or buying executive jets.” [FN167]

*32 Some commentators have argued that there is no right to food, because it is unallocated, or lacks specific duty-bearers. [FN168] According to Onora O'Neill, “it is uphill work to show that there is a universal right to be fed.” [FN169] Her argument is that no one can truly claim to have a right without specifying from whom or against whom she claims it. Revisiting the Kantian categorical imperative, O'Neill argues that the maxim “I will ensure that all human beings have enough to eat” does not pass the test of universality, since no person can have an obligation to provide food for all others. [FN170] The present writer disagrees with O'Neill because the need for mutuality among all members of a society constitutes that society's legal and moral structure. Such a structure warrants a serious and active collab-orative effort to advance the freedom and well being of all humans as “productive agents” and to relieve extreme deprivation. [FN171]



Since the desire for betterment is universal, it stands to reason that squalor of any kind is incompati-ble with civilization, even if the latter is not concerned solely with utility. [FN172] Degrading inequali-ties represent a violation of the notion of justice as fairness--an essential element in most theories of jus-tice, from Plato's to John Rawls's. Each person, says Rawls, has a right to the most extensive basic lib -erty compatible with the like liberty for others. Inequalities in the distribution of wealth and power are just to the extent that they can be reasonably expected to work to the advantage of those who are worse off. [FN173] Indifference to gross inequalities makes human beings mere foam on the waves of global-ization and denies the fundamental importance of human dignity. [FN174] Even Immanuel Kant, whom O'Neill re-interprets, wrote that every human being should be treated as an end, not as a means; respect for the intrinsic worth of every person means that individuals are not to be perceived or treated merely as instruments or objects of the will of others. [FN175]

The problem with the postmodern view of development is that it encourages affluent societies to avoid assisting those in poor societies who live in absolute poverty. [FN176] Such indifference leaves the poor to their *33 own devices, and that cannot be right. The problem of poverty in any part of the world cannot be resolved by indifference in other parts of the world. If we believe that life has a purpose and is worth living, and that individuals everywhere have a right to dignity, then those who are in a posi-tion to do something about global poverty must respond not only out of compassion but also out of a “categorical imperative.” [FN177] They should work to remove the evils, structural and otherwise, that constitute violations of human rights. Human beings are a part of the whole that we call the universe. Our task is to free ourselves from the illusion of separateness and widen our circle of compassion to em-brace all persons of all nations. [FN178]

Poverty may not be a new phenomenon, but it is the greatest moral challenge of this age. [FN179] Africa's grinding poverty, in particular, is a challenge to a world that aspires to build a global order. [FN180] It is a reminder to the international community that an increasing share of the populace has been left behind, despite the technological successes of the 20th century and the increasing wealth in the world. It reflects an increasing inequality in the distribution of wealth [FN181] and signifies the moral bankruptcy of the current IEO. [FN182] The international community must respond with urgency to Africa's plight; [FN183] extreme poverty harms not only those who suffer but also those who fail to act to reduce, if not eliminate it. Africa's continued marginalization is a threat to global stability.

The enterprise of meeting human security and reducing or eradicating poverty will remain a mirage for as long as African governments are *34 laden with the heavy yokes of debts. Of course, misrule and political corruption has made the case for debt relief less attractive; but rich nations must look beyond some corrupt African leaders to individuals, who are the ultimate units of moral concern. As Chris Brown notes, “what is crucial to a cosmopolitan attitude is the refusal to regard existing political struc-tures as the source of ultimate value.” [FN184]

3. A Rising Hope

The struggle for debt relief has for years been like a voice crying in the wilderness; but the G8, with



its recent summits and commitments to Africa, now seems to be responding to the cry. The campaign for debt relief started yielding a dividend during the Cologne Summit of 1999, when the G8 launched the enhanced HIPC initiative. This was just one step in a long journey; [FN185] but it was a vital step, because it helped to increase social expenditure in 27 (mostly African) countries by around $4 billion per year, with 14 of these countries enjoying some debt cancellation. [FN186] The G8 and the IFIs, however, should have responded more generously. Thus, at the Okinawa Summit in 2000, the Group in-vited African leaders to participate in outreach dialogue for the first time. This dialogue culminated in the establishment of the Global Fund for AIDS, TB and Malaria in Genoa in 2001. [FN187] At the Genoa 2001 Summit, the G8 also recognized the need to respond to NEPAD through the Genoa Plan for Action and appointed Africa Personal Representatives to recommend specific actions. [FN188]

The Kananaskis 2002 Summit launched the Africa Action Plan (AAP) that inaugurated the new partnership between the G8 and A.U. According to its architects, the AAP was intended to ensure that no country committed to poverty reduction, good governance and economic reform would be unable to achieve the MDG due to lack of finance. [FN189] At the Evian Summit in 2003, the G8 announced spe-cific measures to accelerate the AAP, including a new G8/Africa plan to enhance African capacity to un-dertake peace support operations. It also created the Africa Partnership Forum *35 (APF) for dialogue between Africans and development partners beyond the G8. [FN190] At the Sea Island Summit in 2004, the G8 agreed on further measures to tackle the HIV and polio epidemics, enhance the role of the private sector in development, promote transparency and fight corruption, and to take additional steps to en-hance productivity. [FN191]

As noted earlier, the 2005 Gleneagles Summit has also resulted in promised debt relief to 18 heavily indebted countries. The sum involved--$40bn or £22bn-- will cost rich countries $1.2bn a year for the next three years. This is the equivalent to an expenditure of 1.5 pence per person per week in developed countries and represents about 5 pence per head to the populations of the 18 beneficial countries. [FN192] It also represents less than 1 percent of the annual shortfall from the 0.7 percent of Gross Na-tional Income (GNI) for development aid promised by rich countries to the developing world. [FN193]This clearly shows that there is still a long way to go in making poverty history in Africa.

Additionally, the G8 has promised to work towards establishing effective mechanisms for asset re-covery, including those stolen by corrupt leaders and government officials, and to return such assets to their legitimate owners. [FN194] The Group has also encouraged all countries to promulgate rules deny-ing entry and safe haven to officials and individuals found guilty of public corruption, including those who corrupt these individuals. [FN195] *36 Certainly, there is a need to prevent public officials in third world countries from laundering “dirty money” to the West. As the Blair Commission Report succinctly summarizes:

Money and state assets stolen from the people of Africa by corrupt leaders must be repatri-ated. Foreign banks must be obliged by law to inform on suspicious accounts. Those who give bribes should be dealt with too; and foreign companies involved in oil, minerals and other extrac-tive industries must make their payments much more open to public scrutiny. Firms who bribe should be refused export credits. [FN196]



The G8 itself has shown leadership in this area. A few years earlier, the G8 had established, in col-laboration with the President of the European Commission, the Financial Action Task Force (FATF). The FATF is charged with responsibility for developing and promoting policies to combat money laundering and its 40 Recommendations have grown to become the international best practices on anti-money laundering measures. [FN197] A lot of work, however, remains to be done to tackle the problem of money laundering, which continues to oxidize Africa's ability to promote sustainable devel-opment.

At a minimum, the G8's numerous initiatives and promises indicate a paradigm shift from the rich nations' hitherto hostile opposition to the notion of a right to development. [FN198] When the U.N. adopted the Declaration on the Right to Development (DRD) in 1986, [FN199] the U.S. was the only country to vote against it, arguing that the document tended to dilute and confuse the human rights agenda. [FN200] Other rich countries abstained from voting for spurious reasons. The Federal Republic of Germany, for example, maintained that the DRD would lead to the erosion of individual rights. [FN201] Japan argued that the right to development might be invoked to legitimize violations of citi-zens' rights, while Australia maintained that the DRD failed to draw a distinction between peoples' rights and individual rights. [FN202] The United Kingdom (U.K.) maintained that the DRD provided an over-*37 simplified view of the complex relationship between disarmament, security and development, and that it provided a mistaken link between the promotion of human right and the establishment of a NIEO. [FN203]

The current paradigm shift signals that rich nations now recognize what Rhoda Howard calls “the legitimate rights claims of poor nations.” [FN204] The present writer hopes that the G8 will make good on its promise, so that Africa can channel resources towards fighting the crushing and humiliating poverty of its people. The rising economic status of Africans will embolden governments to undertake complementary internal political and economic reforms for sustainable growth. Conversely, increasing poverty and decreasing incomes undermine support for reforms. [FN205] Lastly, the G8 must revisit the debt question regularly, realizing that the struggle to liberate mankind from poverty will be difficult and long. According to the U.N. Millennium Project, [FN206] “[a]ggregate debt service payments will need to be reduced by an estimated $7 billion in 2006, falling to $1 billion by 2015, to ensure that all coun-tries can finance MDG investments.” [FN207] This means that with regard to the debt question, the last card has not yet been played.

4. Debt Relief and Conditionality

Some have argued that debt relief should be conditional, since it has the potential to foster impru-dent future policies. Conditionality will ensure the economic transparency, accountability and sound macro-economic policies that could lead the economies of debtor nations towards sustainable develop-ment. Thus, the G8 could link debt relief to effective domestic policies, legal reforms, and tackling of corruption. Countries that have embarked on such reforms should be encouraged to continue to do so. Ordinarily, he who pays the piper has the right to dictate the tune of the music. Similarly, rich coun-tries have a right to monitor the economic policies of poor but debt free countries to prevent them from plunging into future debts.



The real question is how far conditionality can go before debt relief begins to meddle in the domes-tic affairs of foreign states and inflicts *38 another form of servitude. Larry Diamond has argued that debt relief should be matched with high-conditionality for more-accountable government practices. [FN208] However, high-conditionality has its downside. As the present writer has noted elsewhere, “[t]he increasing tendency to impose conditionalities of a political nature for development assistance to Africa has had unintended but negative consequences.” [FN209] Conditioning new loans on borrowing countries' credit-worthiness has proven to be impractical in the past, especially when the countries ap-plying for these loans already face debt crises. In addition, problems involving debt overhang preclude any success in high-conditionality lending. [FN210]

A movement is already underway to dilute the recent promised debt relief. Willy Kiekens, the Bel-gian representative on the IMF's executive board, has proposed that the IMF have the right to approve key economic policies in the 18 countries to which it offered debt relief. [FN211] There are also indica-tions that the U.S. and U.K. plan to allow multinational corporations to manage relief offered by them. [FN212] The G8 must avoid creating a relationship of dependence with recipient states. If the IMF or multinational corporations become the handmaidens of creditors, the West's priorities will be imposed on a people who have more urgent concerns. Often, what the IFIs mean by reforms is nothing but mea-sures that will ensure and secure free markets, free trade, and free access to Third World natural re-sources. Debt relief with “high-conditionality” could make a terrible situation worse; it could, in the words of Colgan, be “another means by which rich country creditors retain control of African economies, and it is an inappropriate intervention in the process by which these countries govern them-selves.” [FN213] Many of Africa's economic woes originate in the activities of the IFIs and multina-tional corporations. As George Monbiot argues: “The history of corporate involvement in Africa is one of forced *39 labour, evictions, murders, wars, the under-cutting of resources, tax evasion and collusion with dictators.” [FN214]

While donor nations have the right to monitor the expenditure of money they give to poor nations, it is more important that donor nations assist Africa in developing and using its resources, with “an effec-tive implementation of the sense of personal responsibility.” [FN215] African states, for their part, must not see debt relief as a means to access more free foreign funds. These newly debt-free countries could be tempted to borrow rashly, and some private-sector lenders might foolishly lend to countries with dis-mal credit histories, [FN216] thereby leading governments to abdicate their primary responsibilities for sustainable economic development. [FN217] It will be tragic for Africa to mistake this particular remedy of debt relief as the elixir of life.

III. Beyond Debt Relief

The cancellation of all of Africa's debt will not resolve its development crisis for the simple reason that Africa's problems go beyond debt relief. As the MDG Report 2005 points out, “[d]ebt relief, while welcome, often goes to countries that have ceased debt repayments, and does not necessarily provide new finance for social services or poverty reduction.” [FN218] Aid and trade top the current develop-ment discourse, but aid is not the real solution-- from an external vantage point. Since the best way to



solve a problem is to remove its cause rather than treat its effects, the present writer believes that open access to international trade is the most potentially beneficial measure for Africa. [FN219] The first seg-ment examines the aid question; the second examines the trade question.

*40 A. Examining the Aid Question

Orthodox approaches to development emphasize aid, loans, and other forms of resource trans-fers. Development haulers believe that breathing more aid air into Africa's paralytic lungs will resusci-tate and prolong its economic growth. Is aid the answer or part of the problem? This segment argues that aid is merely a powerful distraction that allows Africans to make light of their miseries.

1. Reviving Aid

Africa has received historically unprecedented amounts of foreign aid from the North. In the 1960s, when central planning was in fashion, the West poured money into massive irrigation and industrializa-tion projects in Africa. These avant-garde approaches soon unraveled and sustainable development be-came the next big idea. When sustainability failed, experts advocated community participation in plan-ning. Nicolas Van De Walle also notes that Africa's relationship with the international economy in the early 1990s was almost entirely mediated by resource transfers, due to the decline in the continent's share of international trade and foreign direct investment. [FN220] Statistics have shown that aid to Africa in the 1990s reached an average of $35 per capita, [FN221] reaching “staggering levels” in some countries. [FN222]

There is renewed focus on aid as a panacea to speed Africa's development. At its 2005 Abuja Sum-mit, the A.U. Assembly called on the G8 to transfer resources to Africa. [FN223] Tony Blair hinged his G8 and European Union (E.U.) Presidencies on an African recharge agenda that will make an additional $25 billion in aid available to a continent he once described as “a scar on the conscience of the world.” [FN224] The Blair Commission Report has also brought the issue of aid to the forefront of global poli-tics. The Report reflects its authors' belief that Africa is stuck in a “poverty trap” from which it cannot escape without a so-called “big *41 push.” “The big-push approach,” according to the Report, “is the only one that can address Africa's challenges with the urgency and effectiveness required.” [FN225]

The Blair Commission Report states that successful development is unlikely in Africa “[w]ithout si-multaneous and effective action on several priority fronts.” [FN226] It argues that aid has, so far, been dribbled out in small measures, in a manner analogous to sending a single fire-fighter to save an entire block of flats engulfed in flames. To douse the flames of debt, the Report recommends a package of dra-matically larger aid flows, complete debt relief, improved governance, and fundamental changes to the rules of aid and trade. It calls for an extra $25 billion a year in aid to Africa by 2010, another $25 billion a year by 2015 and recommends “‘aid for trade’ to help meet the economic and social costs of adjusting to a new global trading environment.” [FN227]

In January 2005, the U.N. unveiled the Report of its Millennium Project, which states that “tropical Africa, even in well governed parts, is stuck in a poverty trap--too poor to achieve robust and high levels



of economic growth, and in many places simply too poor to grow at all.” [FN228] The continent, ac-cording to the Report, is uniquely burdened with disease, accounting for 85 percent of malaria's global annual death toll of 1.2 million and 75 percent of the 3.1 million deaths from AIDS in 2004. [FN229] Africa is also geographically disadvantaged, as less than a quarter of Sub-Saharan Africans live within 100 km of the coast, so that the continent can attract and amass too little capital to support a growing population. Africa's gross national savings in 2003 was a mere 16 percent of GDP, compared to East Asia's 42 percent. [FN230] Without sufficient savings, the Report notes, Africa cannot overcome its shortage of capital.

Africa's unique circumstances require a “big push,” that is, a “[s]ubstantial co-financing” through Overseas Development Assistance (ODA), in order “to scale up the needed investments in infrastruc-ture, human capital, and public administration.” [FN231] The Millennium Report *42 calls for fast-tracking “well-governed poverty trap countries” in 2005, by basing aid on a true MDG-needs assessment and ensuring that such aid “is not the binding constraint to scaling up.” [FN232]

2. The Problem with Aid

The first problem with the new aid initiatives is that they have not convincingly established the cor-relation between aid and economic growth. Aid has never been a solution to Africa's development plight. [FN233] The reason is simple: Providing aid is like scratching an unremitting itch, which brings little respite but leaves lasting scars. Even if aid were the sure route to sustainable development in Africa, a contention this author refutes, [FN234] Africa has not been so lucky with ODA, the technical name for aid. Overall, aid has been a double-edged sword, “initially helping but eventually weakening a country's economic performance.” [FN235]

Aid initially ensured “a relatively peaceful transfer of power to independent governments at the end of colonialism and oversaw their entrance into the international community of states.” [FN236] How-ever, aid eventually became positively inimical to economic growth in Africa, because much of the aid project was poorly targeted and managed, and the North often attached political and commercial strings to such grants. [FN237] Besides strengthening the hand of predatory governments against claims from competing constituencies, [FN238] aid has sustained old policies, slowed reform and exacerbated neo-patrimonial tendencies in decision-making. [FN239]

Aid has led to the establishment of parallel systems of procurement and recruitment for expending project funds in Africa, thereby posing substantial burdens on already weak local managerial sys-tems. In Tanzania, for example, donors were reportedly implementing more than 15 stand-*43 alone projects in the health sector in the early 1990s, [FN240] and in Malawi, there were 44 distinct projects in the agricultural sector. [FN241] The U.S. used aid during the Cold War as a political strategy; bringing “progress” to the Third World was necessary to prevent “communist subversion.” [FN242] Such a strat-egy explained why the U.S. wasted resources in propping up economically illiterate kleptocrats like Mobutu Sese Seko of then Zaire (now the Democratic Republic of Congo), [FN243] a practice Yoweri Museveni calls “a life-support system for brain-dead regimes.” [FN244]



The aid regime was particularly punitive during the era of the Structural Adjustment Programs (SAPs) of the 1980s, arguably because both SAPs and aid were based on asymmetrical power relation-ships rather than partnerships. The Bretton Woods sisters--the World Bank and IMF--forced SAPs on African states, compelling them to liberalize their trade sector, eliminate distortions in prices, devalue their currencies, remove government subsidies, reduce the budget deficit and size of the public sector, and privatize government parastatals. [FN245] SAPs made the implementation of such policies a pre-condition for debt re-scheduling, new loan facilities, and other concessions. These interventions were ra-tionalized on the ideological but illogical grounds of economic neo-liberalism. [FN246]

SAPs provided only a partial solution to Africa's economic problems, promoting reforms that tended to remove serious price distortions, but devoting inadequate attention to social services. They failed to take into *44 consideration the specific needs of individual countries, thereby prescribing one medica-tion for different ailments. “As a consequence,” says NEPAD, “only a few countries managed to achieve sustainable higher growth under these programs.” [FN247] SAPs reinforced authoritarianism in Africa, as most governments were intolerant of opposition to adjustment measures. Even Ghana, the World Bank's showpiece of adjustment in Africa, repressed the demands of significant sections of civil soci-eties. [FN248] SAPs failed because privatization without the necessary institutional infrastructure leads to asset stripping rather than wealth creation, and privatizing monopolies without regulation leads to consumer exploitation. [FN249]

The economically obstructive policies of African governments have generally undermined the effec-tiveness of aid. Aid works where sound institutions and effective governments manage it. Good gover-nance has been, and continues to be, a scarce commodity in Africa. If good governance means “the re-sponsible use of political authority to manage a nation's affairs,” [FN250] then the U.N. Millennium Re-port is wrong when it flatters Africa, stating that “many parts of Africa are well governed.” [FN251] The NEPAD itself implicitly acknowledges that governance is still a problem in Africa:

The resources, including capital, technology and human skills, that are required to launch a global war on poverty and underdevelopment exist in abundance [in Africa], and are within our reach. What is required to mobilise these resources and to use them properly, is bold and imagina-tive leadership that is genuinely committed to a sustained human development effort and poverty eradication. [FN252]

If the yardsticks for measuring good governance are effective leadership, technical policy compe-tence, and administrative efficiency, [FN253] then only very few African governments, probably Botswana's, Ghana's, Senegal's, and South Africa's, pass the test--few good apples amid a barrel of bad ones. Besides the visible examples of “profoundly poor governance” that the Millennium Report cites, including Zimbabwe, Angola, Liberia, Sierra *45 Leone, Sudan, and the misleadingly renamed Demo-cratic Republic (DR) of Congo, [FN254] bad governance and mismanagement of public resources still afflict more than a dozen other African states. Most governments, past and present, have invested huge sums of public revenue into white elephant projects that undermine their ability to fulfill their primary responsibilities to their people. For example, Felix Houphouët-Boigny of Cote d'Ivoire not only moved his country's capital to his hometown of Yamoussoukro but also built the world's largest church there in 1989--the Basilica of Our Lady of Peace. A few years after his death, peace has eluded this country that



was once the bastion of stability in SSA

Some governments, like Nigeria's, have spent staggering sums of money building stadiums and thereafter lobbying to host international sporting events--Olympics, World Cup, etcetera--in a continent where most workers are forced to strike before receiving their monthly salaries, and where pensioners are habitually forgotten. Although Nigeria's President Obasanjo is seemingly fighting corruption [FN255] and preaching rectitude and accountability by public office holders, his sermons and his actions are incongruous. The Nigerian leader frequently seeks legislative approval to add new jets to his presi-dential fleet. [FN256] Yet, in Nigeria, the minimum wage for civil servants is N5,500 (less than $50) per month; [FN257] facilities needed for qualitative basic education are almost non-existent; and “per capita spending on health is shockingly $3.” [FN258] Such contradictions explain why critics are not con-vinced about the sincerity of his “war on *46 corruption,” [FN259] since the preacher gains few prose-lytes through teachings that his own behavior contradicts.

3. Making Marginal Gains from Aid

Aid can arguably promote good governance, “since good governance requires resources for wages, training, information systems,” etcetera. [FN260] Assuming, arguendo, that aid can help resolve Africa's development crisis, how may its beneficial impacts be realized? The answer lies in ensuring that future resources go directly to beneficiaries rather than through official bureaucracies that engender corruption. Donors should channel their monies directly to HIV/AIDS prevention and combating malaria and other deadly diseases by opening and funding independent research centers in Africa for these and related projects. They should work through relevant U.N. or A.U. agencies to procure laboratory, scientific and technological equipment, and provide these directly to African universities to enhance research. They should identify farmers' cooperative societies and provide direct assistance in procuring fertilizers. They should locate credible civil society institutions, like the media, and strengthen them through training and the provision of modern equipment. These measures, in turn, will strengthen good governance in Africa.

B. Examining the Trade Question

Trade is arguably the engine of economic growth. If the G8 is serious about integrating Africa into the international economic system, it should remove trade barriers and open its markets to African goods. Changes in the rule structure of international trade would help Africa more than all the aid pro-vided by the North. [FN261] This segment explicates why trade matters to Africa, and how the continent can be integrated into the global trading system to achieve an equitable IEO.

*47 1. Why Trade Matters to Africa

Trade matters to Africa because the continent is presently the weakest member of the world trading community. [FN262] Improved trade performance means access to new markets, increased competition, and productivity, all of which will accelerate growth in per capita income and reduce poverty. Improved access to industrial countries' markets for products in which Africa has a comparative advantage will “[o]pen, predictable and geographically diversified market access for exports from Africa.” [FN263]



Even before the Uruguay Round, Africa had raised the “market access conditions for products of interest to African countries and the inadequate treatment of the development dimension in the new areas of trade related aspects of intellectual property rights (TRIPS), trade related investment measures (TRIMS) and trade in Services.” [FN264]

Nothing has changed for the better in Africa since the Uruguay Round concluded in 1994. Lopsided implementation by the WTO continues to undermine Africa's contribution to global trade, causing real-life devastation and a growing social and political backlash. [FN265] As Lori Wallach and Patrick Woodall put it: “In the era of the WTO, and corporate-led globalization, the world has been buffeted by unprecedented financial crises which have shattered the lives of millions and unraveled decades of de-velopment. . . .” [FN266] Africa's report card on global trade has been dismal: “Africa in 20 years,” says the Blair Commission Report, “saw its share in world trade fall from six to two percent; just one per-centage point of that fall represents more than $70 billion in foregone revenues annually.” [FN267]

In his forward to the Economic Report on Africa 2004, the Executive Secretary of the Economic Commission for Africa (ECA) lamented:

*48 Trade is one of the main drivers of growth and development; yet Africa's trade perfor-mance is weak. The region's share in world merchandise exports fell from 6.3% in 1980 to 2.5% in 2000 in value terms. It recorded a meager 1.1% average annual growth over the 1980-2000 period, compared to 5.9% in Latin America and 7.1% in Asia. Further, while about 70% of developing countries' exports are manufactures, Africa has hardly benefited from the boom in these exports. Overall on the continent, and particularly in sub-Saharan Africa, progress on export diversification has been slow. [FN268]

African farmers have been squeezed to the point of starvation as global grain traders use WTO rules to manipulate markets and dump [FN269] goods in the continent. Tariff walls and finicky rules-of-origin and health-and-safety standards continue to obstruct Africa's efforts to participate meaningfully in the trading system. In 2001 alone, Mali lost $43 million as a result of large subsidies to U.S. and E.U. pro-ducers, which lowered the price of cotton--one of Mali's main exports. [FN270]

Such unceasing unfair trade practices led the A.U. Assembly at its 2005 Abuja Summit to call on the G8 to complete the Doha Round of trade negotiations as early as possible. [FN271] The Doha Round, which fell apart in September 2003 in Cancun, Mexico, [FN272] was expected to provide Africa with free, non-reciprocal access to industrial countries' markets and eliminate export subsidies for agri-cultural products. [FN273] Africa is partially justified in its expectation that the conclusion of the Doha Round will boost its sustainable development. Millennium Project participants also believe that a suc-cessful conclusion of the Doha Round will increase Africa's access to rich world markets and bring ben-efits to middle-income countries. [FN274]

The problem is that the G8 does not think Africa is benefiting its members by opening up its econ-omy; and one who does not think he receives a favor from another is unlikely to acknowledge or repay it. This probably explains why fair trade did not feature prominently at the G8 Gleneagles Summit; their communiqué was weak on subsidies--comforting words, but little real agreement or commitment to sub-



stantial action. Given the rat race that underpins world trade, it is unlikely that market access will soon become a reality, either through G8 summits, or through talks at the tranquil shores of Lake Geneva.

*49 2. Towards a More Credible Multilateral Trading System

The G8 carries the greatest responsibility to promote “the fuller integration of developing countries into the global trading system.” [FN275] It must take trade with Africa seriously if it is sincere about meeting the continent's development challenge. As President George W. Bush justly puts it, “Developed nations have a duty not only to share [their] wealth, but also to encourage sources that produce wealth: economic freedom, political liberty, the rule of law and human rights.” [FN276] Development and eco-nomic freedom are the most important issues facing SSA at the moment. [FN277] Africa needs help kick-starting development and the freedom and opportunity to create wealth and end poverty.

As a starting point, the G8 should provide free trade status for Africa in the global market, which means “giving African countries the opportunity not only to sell agricultural products in rich-country and world markets on fair terms, but also to diversify beyond traditional exports into new exports of manufactures and services.” [FN278] Industrial countries should tear down trade walls that keep African goods out of these countries' markets. They should end agricultural subsidies that “distort and depress the global commodity markets upon which African economies are dependent.” [FN279] As the ECA also advised:

*50 The industrialized countries must commit themselves to the development principles of the WTO's Doha Round, by widening market access for developing country exports and providing more trade-related assistance to poor countries. Such assistance is necessary, both to bear the heavy costs associated with trade liberalization and to help countries exploit the opportunities aris-ing from a more integrated global economy. [FN280]

International economic cooperation must be “based on mutual interest, shared commitments and binding agreements” [FN281] and should aim to promote sustainable development, contribute to poverty eradication and facilitate the smooth integration of African countries into the global economy. The re-vived Doha Round must be sensitive to Africa's development policy objectives, including questions of technology transfer and national capacity building in all sectors critical to Africa's development process. The credibility of the multilateral trading system rests upon the reduction of trade barriers and the inte -gration of marginalized nations into the international trading system. [FN282]

The international community must find acceptable common ground for working with Africa to se-cure a level playing field in global trade and achieving development-friendly rules. The right to devel-opment demands a form of globalization that is both ethical and sympathetic. [FN283] As Mohammed Bedjaoui correctly argues, “the international dimension of the right to development is nothing more than an equitable distribution with regard to global social and economic well being.” [FN284] Human rights, democracy, and the rule of law thrive only in an economically empowered society. Weak economic so-cieties are unlikely to become strong democratic societies. [FN285]

*51 IV. Reinvigorating Africa's Regulatory and Economic Policies for Sustainable Development



It is naïve to assume that all of Africa's failures and asymmetries are externally induced. Most coun-tries in Africa have not positively exploited the political and economic goodwill that have beckoned at their sovereign doorsteps over the years. The reasons for these failures include Africa's economically ob-structive policies; African states have not always adopted the right policy mix and strategies for sustain-able economic development. Political and economic failures have, according to NEPAD, “impede[d] the effective mobilisation and utilisation of scarce resources into productive areas of activity in order to at-tract and facilitate domestic and foreign investment.” [FN286] The result, says the A.U. Commission, is that, “[a]t this dawn of the 21st Century, Africa portrays the image of a Continent that has taken very lit-tle advantage of the economic globalisation which has been gathering pace since the 80s and is evi-denced by tremendous wealth creation.” [FN287]

For Africa to stay afloat in the ocean of corporate-led globalization, it must reinvigorate its regula-tory and economic policies. As the A.U. Commission again hints: “It has therefore become increasingly and absolutely necessary to undertake major changes by addressing the root causes of the structural defi-ciencies in Africa's economies, if we are to promote endogenous development.” [FN288]

A. Renovating Weak Political and Institutional Structures

The renovation of African economies must start with political transformation, which requires build-ing an effective state that can create an environment that allows economic activity and entrepreneurship to flourish. [FN289] Weak post-colonial structures and institutions continue to pull Africa backward with “shoestring” budgets, compromises, and external sources of power. Many African states possess ju-ridical statehood without *52 the empirical attributes, like control over the legitimate exercise of coer-cion within boundaries, financial self-sufficiency, leadership of national political communities, and pro-vision of basic services. [FN290] Neo-colonialism continues to pose a problem for Africa, as many of these states, especially Francophone ones, remain tied to the apron strings of their former colonial over-lords.

The typical post-colonial state evolved as a synthesis between the thesis of colonialism and the anti-thesis of nationalism, producing what Basil Davidson calls a “nation-statism [that] looked like a libera-tion.” [FN291] Colonialism was “the cradle of contemporary forms of fragmentation in Africa,” though, as Obiora Okafor pointedly observes, the colonial state weaved the “forms of fragmentation from the material that the pre-existing, pre-colonial sets of identities and relationships” provided. [FN292] None-theless, the transfer of power to African rulers did not change the basis of statehood, which continues to derive primarily from the international system--bilateral Western donors and international organiza-tions--with domestic sources of statehood remaining secondary. [FN293]

Weak states have allowed dictatorship to thrive in Africa in the past. Raw assertions of personal power become a form of legitimacy where the institutional concept of legitimacy is absent. [FN294] Even presently, the monster of dictatorship is rearing its head again in some parts of Africa. On August 1, 2005, some “semi-illiterate soldiers,” led by one Mr. Vall, staged a coup in Mauritania--one of the projected beneficiaries of the G8 debt relief-- ousting Maaouya Ould Taya. [FN295] Taya himself was a



despot who came to power as a result of a coup in 1984. Like most other so-called modern “democrats,” (Togo's Eyadema, Sudan's El-Bashir, Libya's Gaddafi, Gambia's Jammeh, and Uganda's Museveni are just a few of the “new political leaders” in Africa [FN296]) Taya seized power under the guise of saving his country, only to subsequently conduct sham *53 elections and stay on to become ever more corrupt and ruthless. [FN297] Most African rulers bathe in the same ambience of power: they came to power through treachery and cruelty and continue to exploit the noble motions of their victims for purely self-ish ends. Of all tyrannies, that which is purportedly exercised for the good of its victims may be the most oppressive.

Africa persists in intoning the mantra of democracy, but its practice of this concept is alien to ratio-nal thought. Most of Africa's governments continue to work against all known democratic principles, including the rule law, which is democracy's lifeblood. Hardly anyone, except the political class, can speak confidently about the integrity of the electoral process in most of Africa. The A.U. itself is largely a cheerleader and, despite its numerous resolutions and declarations on democratic governance, it has not been able to implement a program that ensures the credibility of the electoral process in its Member States. [FN298] Uganda's Yoweri Museveni, following in the disgraceful footsteps of Guinea's Lansana Conteh and Zimbabwe's Robert Mugabe, recently bribed his parliamentarians to eliminate term limits in the Constitution in order to remain president indefinitely, if not for life. [FN299] Uganda has operated a strange political system since Museveni came to power 19 years ago. In his desperate consolidation of power, he has restricted the opposition parties severely: Political parties are allowed to exist, but candi-dates for office must run as individuals, not as representatives of their parties. [FN300] In Cameroon, Paul Biya has spent 23 years in office but his supporters are clamoring for an *54 amendment to the Cameroonian Constitution to allow him serve a third seven-year term. [FN301] The rest of the demo-cratic world can only marvel at the steepness of Africa's learning curve.

Africa must embark on internal political and institutional transformations if only because of the in-terdependence between good governance and economic development; neither is possible without the other. “Economic development stalls when governments do not uphold the rule of law,” and “upholding the rule of law requires institutions for government accountability.” [FN302] Africa must also work to overcome corruption and conflict, which continue to undermine any external support. “Without progress in governance,” says the Blair Commission Report, “all other reforms will have limited impact.” [FN303]

B. Reinvigorating Africa's Economic and Regulatory Frameworks

African states must restructure and reinvigorate their regulatory and economic policies in order to reduce their marginalization, speed up their integration into the globalization process, combat poverty, and achieve the MDG. Trade policies should “promote macroeconomic stability and higher growth and . . . improve the delivery of social services.” [FN304] The private sector, both local and international, can only meaningfully contribute to Africa's development effort if conditions, such as peace and political stability, are present to promote investment. [FN305] Any outside support will fail as long as Africa fails to create the right conditions for development. [FN306] The temptation always exists to conclude that market access is the whole development story, but it is not; having the chance is not equal having the



ability. The present writer agrees with the World Bank that even if:

*55 developing countries succeed in obtaining access to new markets, they will have to adopt complementary policies--removing obstacles to private investment, improving public investment in infrastructure, and providing education--to ensure that domestic firms respond to new opportuni-ties associated with greater integration, and that the benefits of integration are transmitted to the poor. [FN307]

African states must take mutually reinforcing actions to accelerate growth and end years of aid de-pendency. As a starting point, they should streamline and strengthen their domestic legal frameworks for doing business, mindful that legal uncertainties discourage investors and that a weak legal system undercuts efforts to develop a modern, market-oriented economy. Many of the laws regulating business transactions in Africa are not just outdated but antediluvian. To register a business in Ethiopia, “a would-be entrepreneur must deposit the equivalent of 18 years' average income in a bank account, which is then frozen;” [FN308] yet experience in several rich countries shows that such capital requirements are unnecessary. [FN309] In Nigeria, multiple procedures are required to record or register a property transaction, [FN310] and about $6,621 is needed to start a business in Angola. [FN311] A continent that is in dire need of boosting FDIs to compete favorably in the global market cannot afford the luxury of retaining archaic and retrogressive business laws and regulations. As The Economist wisely counsels, “there is probably much more to gain from slashing red tape than from begging for more aid.” [FN312]

A major achievement of the MDG is in galvanizing unprecedented efforts to meet the needs of the world's poorest people. [FN313] It also has largely succeeded in making governments frame their poli-cies around specific intended outcomes rather than policy inputs. Allocations of aid, targets for budget deficits and other policy settings are increasingly being tested against the final goals. [FN314] African leaders, in particular, have adopted several policies and action plans--at the country, regional, and conti-nental levels-- towards tackling underdevelopment and poverty. In 2000, Kenya launched two poverty reduction strategies--the short-term Poverty *56 Reduction Strategy Paper and the long-term National Poverty Eradication Plan. [FN315] The strategy seeks to reduce poverty by 50 percent by 2015; em-power the poor to earn income; reduce most major forms of inequalities; and increase productivity through human capital development by investing in education and health. [FN316]

Clearly, more urgent action is needed to translate the MDG into reality in Africa. The real question, as The Economist correctly notes, is the kind of policy input that will be required to hit the targets set by the MDG. [FN317] The heterogeneity of African economies in terms of size and resource endowments evidently limits choices available to African states. Nonetheless, these states should reform their agricul-tural policies, since agriculture is the dominant sector of the continent's economy. They should subsidize agriculture and make fertilizers available and affordable to rural farmers. Most farmers in Africa farm in soil that is increasingly depleted of nutrients, and cannot afford much fertilizer because of high trans-portation costs. [FN318] Yet, growth in agriculture has a disproportionately positive effect on poverty reduction, especially as more than half of Africa's population lives in rural areas, where poverty is high-est. [FN319] Agricultural reform will ensure food security for Africa's growing population, provide in-dustrial raw materials, employment with income that is sufficient to ensure decent living standards, and much needed foreign exchange earnings.



African states should also adopt policies that promote export diversification favoring higher value-added industrial and service sectors. They should develop new industries and upgrade existing ones, particularly in areas where they have comparative advantages, including agro-based industries, energy and mineral resource-based industries. [FN320] They should increase investment in infrastructure, health, human resource development and education. States that do not have industrial development poli-cies and strategies should formulate them in collaboration with the private sector, which is the engine of economic growth. Finally, African countries should form cartels to control their commodity exports. They should set aside resources as a way to add value to their raw materials *57 before exporting them. [FN321] “Even if Africa cannot control the prices of its exports, but can only influence them,” says Cameron Duodu, “the continent wouldn't need anyone's assistance to end its poverty.” [FN322]

Clearly, Africa's development is the primary responsibility of Africa, a point that has been repeat-edly stressed both by the U.N. [FN323] and the extinct OAU. [FN324] The present writer agrees whole-heartedly with the Blair Commission Report, which unambiguously stated:

It is for Africa to create the conditions where the entrepreneurship and creativity of its people can flourish and drive growth. It is for Africa to take the lead in creating health and education sys-tems which can deliver investment in its people. It is for Africa to take the lead in creating the peace and security without which no development can happen. [FN325]

C. Entrenching the Human Dimension in Development Policies

Since every action and pursuit must aim at some good, it is imperative for Africa to entrench the hu-man dimension in all development policies. Humanity must be the objective and supreme beneficiary of development, otherwise development becomes a meaningless vanity and vexation of the spirit. As the U.N. Economic and Social Council (ECOSOC) maintained:

[C]omprehensive development cannot be fully achieved until the impoverished have gained access to the essential attributes of dignity; a goal that can be achieved only by combating all forms of destitution and marginalization and *58 making enhanced solidarity among all members of the national community an essential basis for all the reforms introduced. [FN326]

The now defunct OAU expressed the same sentiment in its 1996 Yaoundé Declaration: “Sustainable development aims primarily at ensuring a better standard of living for present and future generations. . . . [It] is founded on democracy, human rights, good governance, human resource promotion, economic and social development, environmental protection, all with the human being, as the focal point.” [FN327] Africa should translate such rhetoric into reality by uniting economic and social policies to spread protection against poverty to everyone. Governance, says Shedrack Agbakwa, “ceases to be meaningful when the majority of the people is [sic] put in a situation where it cannot appreciate the value of life, let alone enjoy its benefits.” [FN328]

Many Africans are not particularly enthused by their leaders' annual rendezvous with the G8 when they gather to discuss generalities and inanities. After more than four decades of independence,



Africans no longer expect their leaders to behave like patients newly released from an intensive care unit. It is sheer hype to hope that the G8, IFIs, WTO, African Growth and Opportunity Act (AGOA) [FN329] or any other Western contraption will “make poverty history” in Africa. The simple reason, as Duodu proverbially expresses, is that “it is not very sensible, if you are drowning in a river to expect a crocodile to offer you its tail to ferry you safely ashore.” [FN330] Besides, fighting poverty and adopt-ing compensatory policies are, in the words of Jack Donnelly, “functions of the state and not of the mar -ket. These are demands related to justice, rights and obligations, and not to efficiency. . . . Markets are simply unable to deal with them . . . because they have no vocation for this.” [FN331]

*59 The A.U., which carries the heavy burden of history, must urge its Members States to take tan-gible measures that will deliver basic needs to its citizens. These include nutritional food, affordable housing, clean drinking water, effective and affordable drugs, reliable electricity and telecommunica-tions, functional educational systems, and efficient transportation networks. Unless the A.U. works to translate the noble goals of the A.U. Act into reality, it risks being dismissed as another mutual adoration club, like the OAU. Basic needs are not unattainable, really, and the sacrifice is not so great as it seems. Citizens of other less endowed but better managed societies take these things for granted, while also en-joying “milk and butter, very fresh flowers in front of the window, [and] a few beautiful trees in front of the door.” [FN332] In most of Africa, the idea of meeting basic needs has remained a forlorn and frozen hope, with citizens left on their own, as it were, to shovel “snow in zero weather . . . just to put food in [their] belly.” [FN333] A country that cannot feed its population should have no claim to any kind of sovereignty.

V. The Summer has Ended. . .

The assertion that Africa has found the elusive Golden Fleece of sustainable development and pros-perity cannot be made with confidence, despite the debt relief promised by the G8 at its 2005 Summer Summit. The average African has become cynical a propos these gestures, given the history of failed declarations, summits, conferences, commissions, and action plans. Even actual development assistance has failed to produce growth and prosperity, obstructed by conflicts, corruption, and endemic misman-agement compounded by what Kenneth Karl calls the “shifting power play on the world's geopolitical chessboard, coupled with the demands of galloping globalisation.” [FN334] All of this explains why the summer of great expectations is giving way to another winter of depression and despair. Unnecessary destitution still persists in Africa because, to borrow Ringen's words, “the will to end it comes not from our hearts, where we *60 are all pure, but from our collective opinions and actions, where we are not.” [FN335]

Some think that Africa is predestined to be poor, that some long-lost ancient curses are causing its failures and poverty. These troubling, reckless, and irritating assertions have contributed to Africa's in-adequate self-image in the comity of nations. Those who make these claims fail to acknowledge that Africa was the cradle of civilization [FN336] and that ancient Egypt provided the first reliable system of irrigation known to mankind, besides its skills in architecture, writing and painting. [FN337] Under-standing and appreciating Africa's contribution to human existence is a part of the process of recon-structing the identity and self-confidence of its peoples. [FN338] Africa's poverty is not a strand in the



tapestry of primordial causation; many of the difficulties the continent is currently facing are home-made and, from a universal perspective, wholly unnecessary. It is the lack of visionary leadership or the pursuit of an alien vision that accounts for Africa's inability to harness its abundant human and natural resources to lift its citizens out of economic scarcity.

The poverty of leadership in Africa has persisted largely due to the poverty of the constituency. Un-til recently, Africans were so accustomed to the diffused darkness of dictatorship and tyranny that they found it difficult to raise themselves up to the penetrating lights of democracy, human rights and good governance. When one lives everyday in the midst of absurdity, it becomes far too easy to behave re-spectfully to it. The current challenge for all Africans, both at home and in the Diaspora, is to engage their leaders constructively and to work with them to reconstruct and transform the continent. The hu-man entity is endowed with intelligence and vision to regulate its conduct and constantly recreate its ex-istence. Africa is no exception. Although sorrow always longs for someone to blame, it is no longer reasonable to keep blaming the North for much of Africa's woes. A people cannot escape the judgment of history by seeking to transfer their own share of guilt to scapegoat international institutions or rich na-tion clubs.

[FNa1]. © 2005 Nsongurua J. Udombana. Associate Professor, Legal Studies Department, Central Eu-ropean University (CEU), Budapest; <[email protected]>. Professor Udombana, who also is Direc-tor of the CEU Center for Human Rights, divides his research interest and time between international law and the judicial process, with an Afro-centric outlook. He has published extensively in international legal journals. He gives thanks to the editors of the San Diego International Law Journal for making this piece more readable than it would otherwise have been. Any remaining error is his.

[FN1]. Martin Luther King, Jr., I Have a Dream: Writings and Speeches that Changed the World 148 (James Washington ed., 1992).

[FN2]. See London Rocked by Terror Attacks, BBC News U.K. Edition, July 7, 2005, http://news.bbc.-co.uk/1/hi/uk/4659093.stm (reporting on three terrorist blasts on an underground network and on a dou-ble-decker bus in London); see also Alan Cowell, Dozens Killed in Rush-hour Bombings 56 Minutes of Carnage Wipes out Olympic Joy, Int'l Herald Trib. (Fr.), July 8, 2005, at 1 (“Bomb explosions tore through three subway trains and a red-painted double-decker bus ... on Thursday, killing at least 37 peo-ple in carnage that left the city stunned and bloodied, but oddly stoic.”).

[FN3]. See Dan Murphy, Terror Strikes in Egypt, The Christian Sci. Monitor, July 23, 2005, available at http://www.csmonitor.com/earlyed/early_ world072305.htm (“Two powerful car-bombs struck at the heart of Egypt's $6 billion tourism industry early Saturday, killing 83 people from at least 5 countries.”).

[FN4]. For perspectives on the invasion, see generally Jutta Brunnée & Stephen J. Toope, The Use of Force: International Law After Iraq, 53 Int'l & Comp. Law. Q. 785 (2004); Ibrahim J. Gassama, Interna-tional Law at a Grotian Moment: The Invasion of Iraq in Context, 18 Emory Int'l L. Rev. 1 (2004) ; Henry J. Richardson, III, U.S. Hegemony, Race and Oil in Deciding United Nations Security Council Resolution 1441 on Iraq, 17 Temp. Int'l & Comp. L.J. 27 (2003).


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[FN5]. Cf. Sigmund Freud, Civilization and its Discontent 61-62 (Penguin Books 2004) (1930) (“Civi-lization has to make every effort to limit man's aggressive drives and hold down their manifestations through the formation of psychical reactions.”).

[FN6]. See C. S. Lewis, The Problem of Pain 96 (1940).

[FN7]. See, e.g., Live 8: Real Serious Music, CBS News Online, July 2, 2005, http://www.cbsnews.-com/stories/2005/07/02/world/main705970.shtml (“Musicians were taking to 10 stages from Tokyo to Toronto, Berlin to Johannesburg for a music marathon to raise awareness of African poverty and pres-sure the world's most powerful leaders to do something about it at the [G8] summit in Scotland next week.”).

[FN8]. The G8 countries are Canada, France, Germany, Italy, Japan, Russia, United Kingdom (U.K.), and U.S. Id.

[FN9]. African countries that will benefit from the debt relief/cancellation are Benin, Burkina Faso, Ethiopia, Ghana, Madagascar, Mali, Mauritania, Mozambique, Niger, Nigeria, Rwanda, Senegal, Tanza-nia, Uganda, and Zambia.

[FN10]. See The Gleneagles Communiqué, BBC News U.K. Edition (2005), http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/g8_gleneagles_communique.pdf (last visited Nov. 5, 2005) [hereinafter Gleneagles Communiqué]. See also G8 Leaders Agree $50bn Aid Boost, BBC News U.K. Edition, July 8, 2005, http:// news.bbc.co.uk/1/hi/business/4662297.stm.

[FN11]. Cf. Joseph Stiglitz, The End of the Beginning, The Guardian [U.K.], July 12, 2005, available at http:// www.guardian.co.uk/hearafrica05/story/0,15756,1526537,00.html (arguing that debt relief alone won't relieve third-world poverty).

[FN12]. African Union Non-Aggression and Common Defence Pact, Afr. Union art. 1, para. k, 4th Ord. Sess., (adopted Jan. 31, 2005), available at http:// www.africa-union.org (on file with author) [here-inafter AU Non-Aggression Pact] (stressing that human security includes “the creation of social, eco-nomic, political, environmental and cultural conditions necessary for the survival and dignity of the indi-vidual, the protection of and respect for human rights, good governance and the guarantee for each indi-vidual of opportunities and choices for his/her full development;” id.); see generally Globalization, Hu-man Security and the African Experience (Caroline Thomas & Peter Wilkin eds., 1999) (exploring secu-rity from a human perspective).

[FN13]. See Organization of African Unity, New Partnership for Africa's Development, P 3, (Oct. 2001), available at http:// www.iss.co.za/AF/RegOrg/unity_to_union/pdfs/oau/keydocs/NEPAD.pdf [hereinafter NEPAD] (“Historically accession to the institutions of the international community, the credit and aid binomial has underlined the logic of African development.”); cf. Algiers Declaration, Org. Afr. Unity, 35th Ord. Sess., at 7, O.A.U. Doc. AHG/Decl.1 (XXXV) (July 12-14, 1999), available at



http:// www.africa-union.org/Official_documents/Heads%20of%CC20State% 20Summits/hog/9HoGAssembly1999.pdf [hereinafter Algiers Declaration]. The OAU states that, [D]espite the tremendous efforts invested by our countries to reorganize and restructure their economics at a very high social cost, our economies are increasingly facing a serious deterioration of the terms of trade, a decline in international development co-operation, a continuous fall in official develop-ment aid, an exacerbation of the external debt problem and the resurgence of protectionism on the part of the developed countries. Id.

[FN14]. Commission for Africa, Our Common Interest: Report of the Commission for Africa 16 (2005), available at http:// www.commissionforafrica.org/english/report/thereport/english/11-03-05_cr_ re-port.pdf [hereinafter Our Common Interest].

[FN15]. Id. at 14.

[FN16]. Commission of the Afr. Union (AUC), Our Common Destiny: Guideline Document 5 (May 2004) [hereinafter Our Common Destiny].

[FN17]. See id.

[FN18]. NEPAD, supra note 13, P 19.

[FN19]. Yaoundé Declaration, Org. Afr. Unity, 32d Ord. Sess., P 2, O.A.U. Doc. AHG/Decl.3 (XXXII) (July 8-10, 1996), available at http://www.africa-union.org/Official_documents/Heads%20of%CC20S-tate% 20Summits/hog/6HoGAssembly1996.pdf [hereinafter Yaoundé Declaration]; cf. Henry Kissinger, Does America Need a Foreign Policy? Toward a Diplomacy for the Twenty-first Century 201 (2002) (noting the pervasiveness of poverty in Africa and stressing that the Continent has the lowest economic growth rate of any continent and has lagged far behind in modernization).

[FN20]. Franklin D. Roosevelt said, In the future days, which we seek to make secure, we look forward to a world founded upon four essential human freedoms... The third is the freedom from want, which, translated into world terms, means economic understandings which will secure to every nation a healthy peacetime life for its inhab-itants everywhere in the world. Franklin D. Roosevelt, Four Freedoms Speech (Jan. 6, 1941), in Frank Newman & David Weiss-brodt, International Human Rights: Law, Policy, and Process 361-62 (1990); cf. President Harry Tru-man's 1949 “Fair Deal,” aimed at improving the lives of people inhabiting the underdeveloped areas of the globe. In his famous Point IV Program, Truman declared: “More than half the people of the world are living in conditions approaching misery. Their food is inadequate, they are victims of disease. Their economic life is primitive and stagnant. Their poverty is a handicap and a threat both to them and to more prosperous areas.” Quoted in Arturo Escobar, Encountering Development: The Making And Un-making of the Third World 3 (1995).



[FN21]. Stein Ringen, Band of Hope, Times Literary Supplement, June 24, 2005, at 3-4.

[FN22]. See generally World Bank, Some Interesting Facts About Sub-Saharan Africa (2005), available at http://www.worldbank.org (on file with author) (last visited Aug. 10, 2005).

[FN23]. See Ringen, supra note 21, at 3.

[FN24]. See Bill Clinton, The Struggle for the Soul of the 21st Century, Richard Dimbleby Lecture (Dec. 14, 2001), available at http:// www.australianpolitics.com/news/2001/01-12-14.shtml.

[FN25]. See U.N. AIDS & World Health Organization, Aids Epidemic Update 5-13 (Dec., 2003), avail-able at http:// www.unaids.org/Unaids/EN/Resources/Publications/Corporate+publications/AIDS+epi-demic+ update+-+December+2003.asp [hereinafter Aids Epidemic Update 2003].

[FN26]. See id.

[FN27]. See id.

[FN28]. G.A. Res. 55/2, U.N. Doc. A/RES/55/2 (Sept. 8, 2000) [hereinafter Millennium Declaration].

[FN29]. See U.N. Dev. Programme [UNDP], The Millennium Development Goals Report 2005, at 8 (2005) [hereinafter MDG Report 2005] (arguing that the main reasons for food shortages in Africa lie in growing populations and poor agricultural productivity).

[FN30]. See id.

[FN31]. As Niger's Hunger Crisis Worsens, U.N. Agencies Greatly Increase Emergency Appeal, U.N. News Service, Aug. 3, 2005, http:// www.allafrica.com/stories/200508030291.html.

[FN32]. U.N. Econ. Comm'n for Afr. [UNECA], Economic Report on Africa 2004: Unlocking Africa's Trade Potential, at 2 (Sept. 2004) [hereinafter Era 2004].

[FN33]. See Our Common Destiny, supra note 16, at 8 n.1.

[FN34]. See id.

[FN35]. World Bank, Global Economic Prospects 2004: Realizing the Development Promise of the Doha Agenda, 43 (2003) [hereinafter Global Economic Prospects 2004].

[FN36]. See Gareth Stedman Jones, An End to Poverty? A Historical Debate (2004) (tracing the history of debates on world poverty and relating them to current discussions and policies); see also Jeffrey Sachs, The End of Poverty: Economic Possibilities for Our Time (2005) (reflecting on the problem of poverty and calling for the redistribution of wealth through development).



[FN37]. For an extensive discussion of the evidence and underlying causes of poverty and hunger, see Jean Dreze & Amartya Sen, Hunger and Public Action (1989); see also Christopher Clapham, Africa and the International System: The Politics of State Survival 161-86 (1996).

[FN38]. See What Causes Poverty?, Wash. Times, Apr. 13, 2002, at B11 (quoting the IMF).

[FN39]. See Susanna Mitchell, Inequality and Poverty--A Spiral of Despair, Jubilee Research, http://www.jubilee2000uk.org (last visited Nov. 5, 2005) (arguing that such a system has shown itself inher-ently opposed to redistributive policies).

[FN40]. See generally Kunibert Raffer & H.W. Singer, The Economic North-South Divide: Six Decades of Unequal Development (2001) (analyzing the ways in which global poverty and unequal development contribute to an increasing global rich-poor gap).

[FN41]. Lori Wallach & Patrick Woodall, Whose Trade Organization? A Comprehensive Guide to the WTO 284 (New Press 2d ed. 2004) (“Hunger has increased during the era of the WTO, not from a lack of food but from a lack of purchasing power by the poor.”).

[FN42]. The Uruguay Round was launched in September 1986 in Punta del Este, Uruguay. It took four years to prepare and seven years to complete in 1994. See Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Apr. 15, 1994, 33 I.L.M. 1125 (1994) [hereinafter Final Act].

[FN43]. The WTO was established in 1995 to implement principles, rules, and disciplines of the Uruguay Round. See Marrakesh Agreement Establishing the [WTO], Apr. 15, 1994, 33 I.L.M. 1125 (1994) [hereinafter WTO Agreement].

[FN44]. See General Agreement on Tariffs and Trade (GATT), Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 194 [hereinafter GATT 1947]. GATT 1947 was provisionally established to expedite the start of international negotiations on tariff reductions and their implementation, pending ratification and entry into force of the Havana Charter and establishment of the International Trade Organization (ITO). As the Charter never entered into force, GATT “was pressed into service by default to fill an institutional vacuum.” Kevin Kennedy, A Review of Globalization and Its Discontent, 35 Geo. Wash. Int'l L. Rev. 251, 252 (2003).

[FN45]. Denis O'Hearn, Tigers and Transnational Corporations: Pathways from the Periphery?, in Criti-cal Development Theory: Contributions to a New Paradigm 117 (Ronaldo Munck & Denis O'Hearn eds., 1999).

[FN46]. Joseph Stiglitz, Globalization and its Discontents 20 (2003).

[FN47]. G. A. Res. 3201 (S-VI), at 3-4, U.N. Doc. A/9559 (May 1, 1974) [hereinafter Declaration on


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NIEO].

[FN48]. See generally Rumu Sarkar, Development Law and International Finance (2d ed. 2002) (chapter seven discussing whether or not there is a human right to development); Edwin P. Reubens, An Over-view of the NIEO, in Challenge of the New International Economic Order 1, 1 (Edwin P. Reubens ed., 1981).

[FN49]. G.A. Res. 3281 (XXIX), at 50, U.N. Doc. A/9631 (Dec. 12, 1974) [hereinafter Charter of Eco-nomic Rights and Duties].

[FN50]. See Robert F. Meagher, An International Redistribution of Wealth and Power: A Study of the Charter of Economic Rights and Duties of States 92-128 (1979).

[FN51]. The Charter was adopted with 99 votes in favor, 8 against, and 29 abstentions.

[FN52]. G.A. Res. 3202 (S-VI), at 5, U.N. Doc. A/9559 (May 1, 1974) [hereinafter Program of Action on NIEO].

[FN53]. Ruth E. Gordon & Jon H. Sylvester, Deconstructing Development, 22 Wis. Int'l L.J. 1, 57 (2004) [hereinafter Deconstructing Development].

[FN54]. G.A. Res. 32/160, U.N. Doc. A/RES/32/160 (Dec. 19, 1977).

[FN55]. G.A. Res. 35/66B, U.N. Doc. A/35/592/Add.3 (Dec. 5, 1980).

[FN56]. G.A. Res. S-13/2, U.N. Doc. A/Res/S-13/2 (July 1, 1986) [hereinafter PAAERD].

[FN57]. See, e.g., N. S. Rembe, Prospects for the Realisation of the New International Economic Order: An African Perspective, 17 Comp. & Int'l L. J. South Afr. 322 (1984) (examining the NIEO initiative, its prospects, problems facing the realisation of an equitable and just international economic system, and options and responses of the African states).

[FN58]. See Deconstructing Development, supra note 53, at 7; see generally Mohammed Bedjaoui, To-wards A New International Economic Order (1979) (discussing the role of international law in shaping the IEO).

[FN59]. See World Bank, The Enhanced Heavily Indebted Poor Countries Initiative (2005), available at http://www.worldbank.org (on home page, follow topics--economic policy and debt--topics--HIPC).

[FN60]. Stephen Marks, The Human Right to Development: Between Rhetoric and Reality, 17 Harv. Hum. Rts. L.J. 137, 153 (2004).

[FN61]. See, e.g., Barbara Crossette, Ex-Premier of Singapore Sees Pitfalls in Debt Relief, N.Y. Times,





Oct. 15, 2000, at 4; Rumu Sarkar, Critical Essay: Theoretical Foundations in Development Law: A Rec-onciliation of Opposites?, 33 Denv. J. Int'l L. & Pol'y 367, 373 (2005).

[FN62]. See World Bank, Africa's Adjustment and Growth in the 1980s, at 2 (1989).

[FN63]. See Basil Davidson, The Black Man's Burden 220 (1992).

[FN64]. See Cameron Duodu, Africa: The Key is Economic Justice, New African, July 2005, at 14-15 (also calling on Africa to vertically integrate its industries; id.).

[FN65]. Org. Afr. Unity, The Lagos Plan of Action for the Economic Development of Africa, Apr. 28, 1980 [hereinafter LPA], available at http:// www.uneca/org/itca/ariportal/docs/lagos_plan.pdf.

[FN66]. Id. pmbl.

[FN67]. For a discussion of the debt crisis in SSA, see generally Jon H. Sylvester, Impracticability, Mu-tual Mistake and Related Contractual Bases for Equitably Adjusting the External Debt of Sub-Saharan Africa, 13 Nw. J. Int'l L. & Bus. 258 (1992); Barry Eichengreen, Historical Research on International Lending and Debt, 5 J. Econ. Persp. 149 (1991); John A. Bohn, Governmental Response to Third World Debt: The Role of the Export-Import Bank, 21 Stan. J. Int'l L. 461 (1985).

[FN68]. Org. Afr. Unity, 26th Ord. Sess. O.A.U. Doc. AHG/Decl.1 (XXVI) (July 11, 1990) [hereinafter Declaration on the Socio-Economic Situation in Africa].

[FN69]. Id. P 13.

[FN70]. Org. Afr. Unity, 26th Ord. Sess. O.A.U. Doc. AHG/Res. 196 (XXVI) (July 9-11, 1990) [here-inafter Resolution on International Cooperation].

[FN71]. Id. at pmbl; cf. Yaoundé Declaration, supra note 19, P 10; Ouagadougou Declaration, Org. Afr. Unity, 34th Ord. Sess. & Afr. Econ. Community (AEC) 2d Ord. Sess., P 2, O.A.U. Doc. AHG/OAU/AEC/Decl.1 (II) (June 10, 1998) [hereinafter Ouagadougou Declaration].

[FN72]. See Chris N. Okeke, The Debt Burden: An African Perspective, 35 Int'l Law. 1489, 1490 n.7 (2001).

[FN73]. Joshua Greene, The External Debt Problem of Sub-Saharan Africa table 3 (International Mone-tary Fund Working Paper No. 89/23, 1989).

[FN74]. Okeke, supra note 72, at 1495 n.42 (noting that some of the surplus earned by OPEC members found its way to the industrialized market economies, whose banks began to have excess liquidity).

[FN75]. Douglas Rimmer, External Debt and Structural Adjustment in Tropical Africa, 89 Afr. Affairs







283, 284 (1990).

[FN76]. Org. Afr. Unity, 27th Ord. Sess., P 2, O.A.U. Doc. AHG/Decl.2 (XXVII) (June 3-5, 1991) [hereinafter Declaration on Uruguay Round].

[FN77]. Korinna Horta, Rhetoric and Reality: Human Rights and the World Bank, 15 Harv. Hum. Rts. J. 227, 241 (2002).

[FN78]. See Declaration on the Socio-Economic Situation in Africa, supra note 68, P 6.

[FN79]. Third World Debt Undermines Development: Reality Check: The Need for Deeper Debt Can-cellation, Global Issues, Apr. 2001, http:// www.globalissues.org/TradeRelated/Debt/ExternalArticles/RealityCheck.asp.

[FN80]. U.N. Development Program [UNDP], Human Development Report 2004, at 134 (2004).

[FN81]. World Trade Organization, International Trade Statistics 2004, at 5 (2004) (noting, “While the share of agricultural products was about the same as in the preceding two years, at 9 per cent, it re-mained 2 per cent below the average level recorded in the 1990s.”).

[FN82]. There are currently 38 countries under the HIPC initiative, 32 of them in SSA. See World Bank, Heavily Indebted Poor Countries, Aug. 19, 2005, http://siteresources.worldbank.org/INTDEBTDEPT/Resources/081905.pdf. The African HIPC countries are Benin, Burkina Faso, Burundi, Cameroon, Cen-tral African Republic, Chad, Comoros, Congo, Cote d'Ivoire, DR Congo, Ethiopia, Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Madagascar, Malawi, Mali, Mauritania, Mozambique, Niger, Rwanda, Sao Tome & Principe, Senegal, Sierra Leone, Somalia, Sudan, Tanzania, Togo, Uganda, and Zambia. Id.

[FN83]. Okeke, supra note 72, at 1501 (stressing, “The effect of HIPC debt relief is therefore far less clear in some countries that have benefited from the initiative than in others.”).

[FN84]. U.N. Econ. Comm'n for Afr. [UNECA], Economic Report on Africa 2003: Accelerating the Pace of Development, at 2 (2003) [hereinafter Era 2003].

[FN85]. Declaration on Agriculture and Food Security in Africa, Afr. Union, 2d Ord. Sess., pmbl., A.U. Doc. Assembly/AU/Decl.7 (II) (July 10-12, 2003) [hereinafter Declaration on Agriculture & Food Secu-rity].

[FN86]. See id.

[FN87]. André Trocmé, Jesus and the Nonviolent Revolution 14 (Charles E. Moore ed., Orbis Books exp. ed. 2004) (offering a Christ-centered social ethic and arguing that Jesus inaugurated the kingdom of God based on the Jubilee principles which called for a political, economic, and spiritual revolution in re-sponse to human need).





[FN88]. Cf. Ezekiel 46:17 (New Int'l Version) (“If, however, he makes a gift from his inheritance to one of his servants, the servant may keep it until the year of freedom; then it will revert to the prince. His in -heritance belongs to his sons only; it is theirs.”).

[FN89]. Leviticus 25:25, 28 (New Int'l Version).

[FN90]. Matthew 6:12 (New Int'l Version): “For if you forgive men when they sin against you, your heavenly Father will also forgive you. But if you do not forgive men their sins, your Father will not for-give your sins.” See id. at 14-15.

[FN91]. See Matthew 18:21-35 (New Int'l Version).

[FN92]. Trocmé, supra note 87, at 14.

[FN93]. Org. Afr. Unity, 23rd Ord. Sess., O.A.U. Doc. AHG/Decl.3. (XXIII) (July 27-29, 1987) [here-inafter Declaration on Africa's External Indebtedness].

[FN94]. Africa's total debt at the end of 1987, including arrears of payments due, was about $141 bil-lion. See Rimmer, supra note 75, at 283 (citing Percy S. Mistry, African Debt: The Case for Relief for Sub-Saharan Africa (1988)).

[FN95]. Declaration on Africa's External Indebtedness, supra note 93, at pmbl.

[FN96]. Id.

[FN97]. Id.

[FN98]. See id. P i.

[FN99]. Id. P iv.

[FN100]. Id. P v.

[FN101]. Id. at pmbl.

[FN102]. See Resolution of the Work of the Contact Group of the Current Chairman on Africa's Exter-nal Debt Crisis, Org. Afr. Unity, 25th Ord. Sess., P 3, AHG/Res. 181 (XXV) (July 24-26, 1989). The OAU recalled another of its resolution--O.A.U. Doc. AHG/Res. 175 (XXIV) (May 25-28, 1988)--and the mandate given to the Chairman of that Session regarding the convening of an international confer-ence on Africa's external indebtedness. Id. pmbl.

[FN103]. Id. P 4.



[FN104]. Org. Afr. Unity, 25th Ord. Sess. O.A.U. Doc. AHG/Res. 185 (XXV) (July 24-26, 1989) [here-inafter Resolution for an Enduring Alleviation of Africa's Debt Problems].


[FN106]. Id. P 1.

[FN107]. Id. P 2.

[FN108]. Id. P 3.

[FN109]. Id. P 4.

[FN110]. See generally id. PP 5-8.

[FN111]. Id. P 8(a).

[FN112]. Yaoundé Declaration, supra note 19, P 12.


[FN114]. Stiglitz, supra note 46, at 243.

[FN115]. See id; see also Jeff M. Sellers, How to Spell Debt Relief, Christianity Today, May 21, 2001, at 64 (describing the Jubilee 2000 Movement's arguments for debt cancellation).

[FN116]. Okeke, supra note 72, at 1501.

[FN117]. Decision on the Report of Heads of State and Government Implementation Committee on NEPAD, Assembly of Afr. Union, 5th Ord. Sess., P 3, A.U. Doc. Assembly/AU/Dec.70 (IV) (Jan. 30-31, 2005) [hereinafter Decision on NEPAD].

[FN118]. Okeke, supra note 72, at 1501.

[FN119]. Id. at 1502.

[FN120]. See generally A. N. Sack, Les Effets des Transformations des Etats sur Leurs Dettes Publiques et Autres Obligations Financieres 157-84 (1927), available at http://www.odiousdebts.org/odiousdebts/publications/dettes_ publiques.html.

[FN121]. Okeke, supra note 72, at 1503 (quoting Patricia Adams, Odious Debts: Loose Lending, Cor-ruption, and the Third World's Environmental Legacy (1991)).



[FN122]. See Advancing the Odious Debt Doctrine 1 (Centre for Int'l Sustainable Dev. Law, Working Paper, 2003) (defining odious debts as those “contracted against the interests of the population of the state, without its consent, and with the full awareness of the creditor”); see also Anna Gelpern, What Iraq and Argentina Might Learn from Each Other, 6 Chi. J. Int'l L. 391, 403 (2005) ; Anupam Chander, Odious Securitization, 53 Emory L.J. 923 (2004).

[FN123]. Emily F. Mancina, Sinners in the Hands of an Angry God: Resurrecting the Odious Debt Doc-trine in International Law 36 Geo. Wash. Int'l L. Rev. 1239, 1252 (2004).

[FN124]. Id. at 1256-57 (drawing a parallel between the moral assessments involved in the odious debt doctrine and the problems entailed by high-conditionality lending).

[FN125]. Id. at 1242-43.

[FN126]. Id. at 1254.

[FN127]. Tinoco Arbitration (Gr. Brit. v. Costa Rica), 1 R.Int'l Arb. Awards 375 (1923).

[FN128]. Id. at 377 (internal citation omitted); see also Ian Brownlie, Principles of Public International Law 80 (6th ed. 2003).

[FN129]. Tinoco Arbitration, supra note 127, at 377.

[FN130]. Annual Digest of Public International Law Cases 176 (H. Lauterpacht ed., 1933).

[FN131]. Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, 339 [here-inafter Vienna Convention].

[FN132]. Id. art. 61, para. 1.

[FN133]. Id. art. 62, para 1(b) (permitting termination only if “the effect of the change is radically to transform the extent of the obligations still to be performed under the treaty”).

[FN134]. Hubert Beemelmans, State Succession in International Law: Remarks on recent Theory and State Praxis, 15 B.U. Int'l L.J. 71, 123 (1997).

[FN135]. John Maynard Keynes, The General Theory of Employment, Interest, and Money 383 (1964).

[FN136]. Stiglitz, supra note 46, at 244; cf. Ann-Louise Colgan, Africa's Debt--Africa Action Position Paper, Afr. Action, July, 2001, http:// php.africaaction.org/action/debtpos.htm (“Many of these loans were made to retain the loyalty of corrupt regimes, and much of the money went into the hands of unrep-resentative and repressive governments.”).




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[FN137]. See Stiglitz, supra note 46, at 244.

[FN138]. See, e.g., Partnership Agreement Between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part, June 23, 2000, art. 9(1), 2000 O.J. (L 317) 3 [hereinafter Cotonou Agreement]. The agreement states that cooperation shall be directed towards sustainable development centered on the human person, who is the main protagonist and beneficiary of development; this entails respect for and promotion of all human rights. Respect for all human rights and fundamental freedoms, including respect for fundamen-tal social rights, democracy based on the rule of law and transparent and accountable governance are an integral part of sustainable development). Id.

[FN139]. Walter Wriston, quoted in New Tricks to Learn: Survey of International Banking, The Econo-mist, Apr. 10, 1993, at 1.

[FN140]. David K. Leonard & Scott Straus, Africa's Stalled Development: International Curses and Cures 22 (2003) (arguing that the levels of debts in Africa are not repayable).

[FN141]. Cheryl Payer, Lent and Lost: Foreign Credit and Third World Development 124 (1991); cf. David O. Friedrichs & Jessica Friedrichs, The World Bank and Crimes of Globalization: A Case Study, 29 Soc. Just. 13, 16 (2002) ( “While Third World political elites reaped the immediate benefits of the loan money, the largely impoverished populations of Third World states were subsequently compelled to assume the responsibility for repayment.”).

[FN142]. Jack Donnelly, Universal Human Rights in Theory and Practice 17 (1989); see also Arthur Chaskalson, Human Dignity as a Foundational Value of Our Constitutional Order, 16 S. Afr. J. Hum. Rts. 193, 197-98 (2000); Alan Gewirth, Human Dignity as the Basis of Rights, in The Constitution of Rights 10 (Michael J. Meyer & William A. Parent eds., 1992).

[FN143]. International Covenant on Economic, Social and Cultural Rights, adopted Dec. 16, 1966, 993 U.N.T.S. 3 [hereinafter ICESCR].


[FN145]. Id.

[FN146]. Id. art. 11, para. 1. Compare the Universal Declaration of Human Rights, which states, Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.



G.A. Res. 217A(III), art. 25, para. 1, U.N. Doc. A/810 (Dec. 10, 1948) [hereinafter UDHR].

[FN147]. ICESCR, supra note 143, art. 12, para. 1.

[FN148]. Id. art. 13, para. 1; cf. UDHR, supra note 146, art. 26, para. 1-2.

[FN149]. ICESCR, supra note 143, art. 2, para. 1.

[FN150]. General Comment No. 3--The nature of State parties' obligations (art. 2, para. 1, of the Covenant), in Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies 18, P 1 (2001) [hereinafter General Comment 3].

[FN151]. Id. P 2.

[FN152]. Id. P 13 (stressing that the essential role of international cooperation in facilitating the full re-alization of socio-economic rights is further underlined by the specific provisions in ICESCR, including articles 11, 15, 22, and 23. Article 23, in particular, specifically identifies “the furnishing of technical as-sistance” and other activities as being among the means of “international action for the achievement of the rights recognized.”).

[FN153]. Id. P 14; cf. G.A. Res. 41/128, art. 4, para. 2, U.N. Doc. A/RES/41/128 (Dec. 4, 1986) [here-inafter Declaration on the Right to Development] (noting, inter alia, that sustained action is required to promote development in developing countries and calling on states to co-operate for this purpose). On the nature of third state obligations under the ICESCR, see Magdalene Sepulveda, The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights (2003); Rolf Kunnnemann, Extraterritorial Application of the International Covenant on Economic, Social and Cul-tural Rights, in Extraterritorial Application of Human Rights Treaties 201 (Fons Coomans & Menno T. Kamminga eds., 2004); Sigrun Skogly, The Obligation of International Assistance and Cooperation in the International Covenant on Economic, Social and Cultural Rights, in Human Rights and Criminal Jus-tice for the Downtrodden: Essays in Honour of Asbjorn Eide 403 (Morten Bergsmo ed., 2003); Philip Alston & Gerald Quinn, The Nature and Scope of States Parties' Obligations under the International Covenant on Economic, Social and Cultural Rights, 9 Hum. Rts. Q. 186 (1987).

[FN154]. For a discussion of the typology of obligations in relation to human rights, see African Com-mission on Human & Peoples' Rights, in Soc. & Econ. Rights Action Ctr. v. Nigeria, Comm. No. 155/96, 2001-2002 African Annual Activity Report, Annex V; see generally Nsongurua J. Udombana, Between Promise and Performance: Revisiting States' Obligations under the African Human Rights Charter, 40 Stan. J. Int'l L. 105 (2004); Henry Shue, The Interdependence of Duties, in The Right to Food 83 (Philip Alston & K. Tomasevski eds., 1984).

[FN155]. U.N. Charter, art. 55, para. a.

[FN156]. Id. art. 55, para. b.





[FN157]. See Kissinger, supra note 19, at 209.

[FN158]. See UDHR, supra note 146, art. 28.

[FN159]. See Mitchell, supra note 39 (“Grossly to exploit a person's relative weakness is not to treat her with respect; to watch her live, and often die, hungry, afraid, sick and oppressed is precisely to deny her human dignity.”).

[FN160]. Alan Gewirth, The Community of Rights 4 (1996).

[FN161]. See Eric A. Friedman, Debt Relief in 1999: Only One Step on a Long Journey, 3 Yale Hum. Rts. & Dev. L.J. 191, 192 (2000).

[FN162]. Colgan, supra note 136.

[FN163]. See Friedman, supra note 161, at 198.

[FN164]. Id.

[FN165]. See Constitutive Act of the African Union art. 3, para. k, July 11, 2000, OAU Doc. CAB/LEG/23.15 (as amended by the Protocol on Amendments to the Constitutive Act of the AU, July 11, 2003) available at http:// www.au2002.gov.za/docs/key_oau/au_act.pdf [hereinafter AU Act].

[FN166]. See id. art. 3, para. n.

[FN167]. Nii K. Bentsi-Enchill, Some Sensitive Issues of Deeper Debt Relief, June 1, 1999, available at http://www.odiousdebts.org/odiousdebts/print.cfm? ContentID=2415 (quoting Callisto Madavo, World Bank Vice President for Africa).

[FN168]. Onora O'neill, Faces of Hunger: An Essay on Poverty, Justice, and Development (1986).

[FN169]. Id. at 288.

[FN170]. Id. at 101-02.

[FN171]. See Gewirth, supra note 160, at 4.

[FN172]. See Freud, supra note 5, at 38-39.

[FN173]. See generally John Rawls, A Theory of Justice (2d ed. 1999) (1971) (positing a theory of “jus-tice as fairness.” Justice, for Rawls, does not require equality in social position; but it does require that people share one another's fate.).





[FN174]. See Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy 119 (2d ed. 1996).

[FN175]. See Immanuel Kant, Political Writings 23 (Hans Reiss ed., 1991).

[FN176]. David Simon, Development Revisited, in Development as Theory and Practice: Current Per-spectives on Development and Development Co-operation 17 (David Simon & Anders Närman eds., 1999).

[FN177]. See Maurice Cranston, What are Human Rights? 66 (1973) (arguing that positive obligation or duty attaches to those who are able to prevent or relieve starvation or deprivation by giving aid).

[FN178]. Our Common Interest, supra note 14, at 83-84 (observing that, “Africa is part of our world community and the world must show solidarity with the people of Africa. Common humanity and soli-darity demand that we all work together to overcome poverty, despair and death in Africa.”).

[FN179]. Id. at 83 (stating that, “African poverty and stagnation is the greatest tragedy of our time.”).


[FN181]. See Mitchell, supra note 39.

[FN182]. See Nsongurua J. Udombana, Back to Basics: The ACP-EU Cotonou Trade Agreement and Challenges for the Africa Union, 40 Tex. Int'l L.J. 59, 110 (2004) [hereinafter Back to Basics].

[FN183]. See Our Common Interest, supra note 14, at 84 (warning that, “The risks from delay far out-weigh the risks from acting strongly and swiftly. What is required is no less than re-casting of the rela-tionship between Africa and the rich world, in which both, as partners, have responsibilities to discharge in the interests of real and long-lasting change.”).

[FN184]. Chris Brown, International Relations Theory: New Normative Approaches 24 (1992).

[FN185]. See Friedman, supra note 161, at 191-92 (arguing that the 1999 debt relief program for the HIPC was too modest and calling for an earnest debt relief plan that should focus on eliminating debt service payments and connected to increasing social spending and creating effective democratic institu-tions).

[FN186]. See, e.g., Clean Slate, The Economist, Oct. 2, 2004, at 73.

[FN187]. See Highlights of the G8 Communiqué on Africa, Annex I, Direct Gov, http://www.number-10.gov.uk/output/Page7880.asp (last visited Nov. 6, 2005) [hereinafter Highlights Annex I].





[FN188]. See id.

[FN189]. See id.

[FN190]. See id.

[FN191]. See id.

[FN192]. See G8 Debt Relief Proposals: A First Step in the Right Direction-- and a Long Way to Go, Jubilee Research, http://www.jubilee2000uk.org/ (last visited Nov. 8, 2005) [hereinafter G8 Debt Relief Proposals].

[FN193]. Id.

[FN194]. See Gleneagles Communiqué, supra note 10.

[FN195]. See id; cf. Africa Union Convention on Preventing and Combating Corruption, Afr. Union, 2d Ord. Sess., art. 6 (July 11, 2003), available at http://www.africa-union.org/home/Welcome.htm (follow “Official Documents” hyperlink; then follow “Treaties, Conventions & Protocols” hyperlink). This doc-ument directs States Parties to adopt such legislative and other measures as may be necessary to establish as criminal of-fences: (a) The conversion, transfer or disposal of property, knowing that such property is the proceeds of corruption or related offences for the purpose of concealing or disguising the illicit origin of the property or of helping any person who is involved in the commission of the offence to evade the legal conse-quences of his or her action; (b) The concealment or disguise of the true nature, source, location, disposition, movement or own-ership of or rights with respect to property which is the proceeds of corruption or related offences; and (c) The acquisition, possession or use of property with the knowledge at the time of receipt, that such property is the proceeds of corruption or related offences. Id. For a commentary, see Nsongurua J. Udombana, Fighting Corruption Seriously? Africa's Anti-corruption Convention, 7 Sing. J. Int'l & Comp. L. 447, 467 (2003).

[FN196]. Our Common Interest, supra note 14, at 14.

[FN197]. See Financial Action Task Force on Money Laundering [FATF], The Forty Recommendations (June 20, 2003), available at http://www.fatf-gafi.org/dataoecd/42/43/33628117.PDF.

[FN198]. See, e.g., Marks, supra note60, at 141-52 (examining, inter alia, the politicization of the right to development discourse in the U.N.).

[FN199]. See Declaration on the Right to Development, supra note 153.





[FN200]. See Nsongurua J. Udombana, The Third World and the Right to Development: Agenda for the Next Millennium, 22 Hum. Rts. Q. 753, 766 nn.84-85 (2000).

[FN201]. See id. at 766 n.84.

[FN202]. See id.

[FN203]. See id.

[FN204]. Rhoda E. Howard, Human Rights, Development and Foreign Policy, in Human Rights and De-velopment: International Views 215, 215 (1989).

[FN205]. See Stiglitz, supra note 46, at 167.

[FN206]. U.N. Dev. Programme [UNDP], U.N. Millennium Project, Investing in Development: A Prac-tical Plan to Achieve the Millennium Development Goals (2005), available at http:// www.unmilleni-umproject.org/documents/MainReportComplete-lowres.pdf [hereinafter Investing in Development].

[FN207]. Id. at 297.

[FN208]. See Larry Diamond, Developing Democracy in Africa: African and International Imperatives, 14 Cambridge Rev. Int'l Aff. 191 (2001). Jeffrey Sachs defines “high-conditionality,” in relation to lend-ing, as “the process in which international institutions make loans based on the promise of the borrowing countries to pursue a specified set of policies.” Jeffrey Sachs, Conditionality, Debt Relief and the Devel-oping Country Debt Crisis, in Developing Country Debt and the World Economy 275 (Jeffrey Sachs, ed., 1989) [hereinafter Sachs, Conditionality & Debt Relief].

[FN209]. Back to Basics, supra note 182, at 100 (arguing that the provision in the ACP-EU Cotonou Agreement that allows for the use of resources for debt relief initiatives should not be obstructed by un-necessary political conditionalities).

[FN210]. See Sachs, Conditionality & Debt Relief, supra note 208, at 275-77.

[FN211]. See Nicholas Watt, Move to Dilute G8 Debt Deal, Guardian Wkly. [U.K.], July 22-28, 2005, at 4.

[FN212]. See George Monbiot, Africa's New Best Friends, Guardian Wkly. [U.K.], July 15-21, 2005, at 13 (fearing that multinational corporations will become the primary instruments of G8 policies in Africa and arguing that investment by many of these multinationals has not enriched Africa and its people but impoverished them).

[FN213]. Colgan, supra note 136.



[FN214]. Monbiot, supra note 212, at 13.

[FN215]. Gewirth, supra note 160, at 58; cf. Our Common Interest, supra note 14, at 86 (“Better gover-nance must be at the heart of the African resurgence and it must be managed by Africans”).

[FN216]. See Clean Slate, supra note 186, at 74.

[FN217]. See Jerry Rawlings, Africa Needs People Power, The Guardian [U.K.], July 14, 2005, avail-able at http://www.guardian.co.uk/hearafrica05/ (scroll down to comment section) (arguing that no funds are coming from external sources and that debt relief is merely the removal of debtors' obligations to transfer financial resources to creditors).

[FN218]. MDG Report 2005, supra note 29, at 37.

[FN219]. Cf. G8 Debt Relief Proposals, supra note 192 (“Until a fundamental reform of international fi-nance and trade is undertaken, debt cancellation-- though necessary in the short term--can only address the symptoms and not the cause of chronic poverty in the developing world.”).

[FN220]. See Nicolas Van De Walle, African Economies and the Politics of Permanent Crisis, 1979-1999, at 189 (2001) (discussing the crisis of foreign aid in Africa).

[FN221]. See chapter 1, in Aid and Reform in Africa: Lessons from Ten Case Studies (Shantayanan De-varajan, David Dollar & Torgny Holmgren eds., 2000).

[FN222]. Leonard & Straus, supra note 140, at 11 (noting that “for five African states, aid represented at least one-fifth of gross national product at some point in the 1990s, and in one year it stood at 42 percent for Mozambique”).

[FN223]. Decision on NEPAD, supra note 117, P 3.

[FN224]. Ewen MacAskill, Blair Scorns the Cynics--Out of Africa PM Attempts to Set New Partnership Agenda for West, The Guardian [U.K.], Feb. 8, 2002, at 1 (quoting Tony Blair).


[FN226]. Id. at 85.

[FN227]. Id. at 247.

[FN228]. Investing in Development, supra note 206, at 148.

[FN229]. See id. at 150.



[FN230]. See id. at 37.

[FN231]. Id. at 204 (noting that even a significant increase in domestic resource mobilization will not be enough to enable well governed countries caught in a poverty trap to achieve the MDG).

[FN232]. Id.

[FN233]. See generally Carol Lancaster, Aid Effectiveness in Africa: The Unfinished Agenda, 8 J. Afr. Econ. 487 (1999) (calling for honest debates on the effectiveness of aid in Africa); James Morton, The Poverty of Nations: The Aid Dilemma at the Heart of Africa (1994).

[FN234]. Nsongurua J. Udombana, How Should We Then Live? Globalization and the New Partnership for Africa's Development, 20 B.U. Int'l L.J. 293, 325 (2002) (arguing that aid, at best, “is like a birthday card: it is only a greeting, not the real gift”).

[FN235]. Era 2003, supra note 84, at 7.

[FN236]. De Walle, supra note 220, at 189.

[FN237]. See Back to Basics, supra note 182, at 100 (arguing: “The increasing tendency to impose con-ditionalities of a political nature for development assistance to Africa has had unintended but negative consequences.”).

[FN238]. See, e.g., Claude Ake, Rethinking African Democracy, in The Global Resurgence of Democ-racy 70 (Larry Diamond & Marc Plattner eds., 1993).

[FN239]. See De Walle, supra note 220, at 190.

[FN240]. See Mboya Bagachwa et al., A Study of Danish Aid Effectiveness in Tanzania (1996).

[FN241]. Elliot J. Berg, Rethinking Technical Cooperation 132 (1993); see also De Walle, supra note 220, at 203 n.32.

[FN242]. See Pierre de Senarclens, How the United Nations Promotes Development Through Technical Assistance, in The Post-Development Reader 190 (Majid Rahnema & Victoria Bawtree eds., 1997) (not-ing that just as the Marshall Plan was to contain the communist threat in Europe, economic aid became part of American political strategy during the Cold War.).

[FN243]. See James Gathii, A Critical Appraisal of the NEPAD Agenda in Light of Africa's Place in the World Trade Regime in an Era of Market Centered Development, 13 Transnat'l L. & Contemp. Probs. 179, 192 (2003) (arguing, “increased flows of capital and aid to Africa have acted as perverse incentives supporting regimes and economic policies that did not contribute either to growth or poverty reduction”).








[FN244]. Quoted in Douglas Rimmer, Book Review, 98 Afr. Aff. 589, 590 (1999) (reviewing Carol Lancaster, Aid to Africa: So Much to Do, So Little Done (1999)).

[FN245]. See Limits of Adjustment in Africa: The Effects of Economic Liberalization, 1986-94, at ix, 7 (Poul Engberg-Pedersen et al. eds., 1996).

[FN246]. Richard Falk, Predatory Globalization: A Critique 1 (1999).


[FN248]. See generally P. Thandika Mkandawire & Adebayo Olukoshi, Between Liberalisation and Op-pression: The Politics of Structural Adjustment in Africa 226 (1995).

[FN249]. See Stiglitz, supra note 46, at 220 (arguing, “privatisation accompanied by regulation, corpo-rate restructuring, and strong corporate governance has led to higher growth.”).

[FN250]. Clarence J. Dias & David Gillies, Human Rights, Democracy, & Development 4 (1993).

[FN251]. Investing in Development, supra note 206, at 146 (“there is no evidence that Africa's gover-nance, on average, is worse than elsewhere once we control for Africa's very low income.”).

[FN252]. NEPAD, supra note 13, P 6 (italics supplied).

[FN253]. See Nsongurua J. Udombana, Articulating the Right to Democratic Governance in Africa, 24 Mich. J. Int'l L. 1209, 1231 (2003).

[FN254]. Id.

[FN255]. In June 2000, the Obasanjo Government enacted legislation that prescribes punishment for and prohibits corrupt practices and other related offenses. The Corrupt Practices and Other Related Offences Act, (2000) Cap. 5, §§ 8-26 (Nigeria) [hereinafter Corrupt Practices Act], available at http:// www.nige-ria-law.org.LFNMainPage.htm. For commentary, see Paul D. Ocheje, Law and Social Change: A Socio-Legal Analysis of Nigeria's Corrupt Practices and Other Related Offences Act, 2000, 45 J. Afr. L. 173 (2001).

[FN256]. See, e.g., D. S. Dauda, Misplaced Priorities and Claptrap Policies, Amana Online, June 25, 2003, http://www.amanaonline.com/Articles/art_391.htm (writing on the squandering of Nigeria's re-sources on wasteful and diversionary projects, like procurement of presidential jets).

[FN257]. See National Minimum Wage (Amendment) Act No. 1 (2000), § 2 (Nigeria), available at http://www.nigeria-law.org/LFN-2000.htm (providing, “as from the commencement of this Act, it shall be the duty of every employer (except as provided for under this Act) to pay a wage not less than Na-





tional Minimum Wage of N5,500.00 per month to every worker under his establishment”).

[FN258]. Okeke, supra note 72, at 1496 n.51 (noting also that “[o]nly 38% of children are immunized against measles”).

[FN259]. See Peter Ezeh, War on Corruption Yet to Convince, New African, July 2005, at 28 (reporting that, six years into his presidency, Obasanjo's war on corruption has been met with a degree of uncer-tainty in some quarters).

[FN260]. Cf. Investing in Development, supra note 206, at 146 (“Controlling for income is necessary in evaluating governance since good governance requires resources for wages, training, information sys-tems, and so forth, and thus improves systematically with income levels.”).

[FN261]. See Udombana, How Should We Then Live?, supra note 234, at 326 (arguing that if the indus-trial countries should open up their markets, “then African countries could increase their exports and earn much more income than what has been coming to them by way of aid”).

[FN262]. Declaration on Uruguay Round, supra note 76, P 9.


[FN264]. Declaration on Uruguay Round, supra note 76, P 4.

[FN265]. See generally Nsongurua J. Udombana, A Question of Justice: The WTO, Africa, and Coun-termeasures for Breaches of International Trade Obligations, 38 J. Marshall L. Rev. (forthcoming 2005) (exploring some of the legal and developmental issues arising from the WTO trade regime, particularly as they affect Africa, and urging Africa to adopt unilateral measures to counterpoise breaches of interna-tional trade rules and strengthen its domestic economy and bargaining power in global trade negotia-tions, particularly as WTO remedies offer little prospects of effectiveness). For a defense of the liberal trade regime, see Brian McDonald, The World Trading System: The Uruguay Round and Beyond (1998).

[FN266]. See Wallach & Woodall, supra note 41, at 283-84.


[FN268]. K.Y. Amoako, Foreword to Era 2004, supra note 32, at xi.

[FN269]. Dumping is the selling of products below cost.


[FN271]. Decision on NEPAD, supra note 117, P 3.



[FN272]. See generally Fatoumata Jawara & Aileen Kwa, Behind the Scenes at the WTO: The Real World of International Trade Negotiations--The Lessons of Cancun (2004) (for an analysis of the multi -lateral politics and North-South relations as played out in the WTO).

[FN273]. See generally Global Economic Prospects 2004, supra note 35.


[FN275]. Cf. id. at 197 (quoting Rodrigo de Ratoy Figadero, IMF Managing Director); cf. Declaration on the Socio-Economic Situation in Africa, supra note 68, P 13 (announcing: “The developed countries bear a major responsibility for the transformation of the present inequitable international system.”).

[FN276]. President George W. Bush, Remarks at the International Conference on Financing for Devel-opment in Monterrey, Mexico (Mar. 22, 2002), http:// www.un.org/ffd/statements/usaE.htm.

[FN277]. See Deconstructing Development, supra note 53, at 2-3 (“For the Third World, however, de-velopment is the most important concept in the international system, for it is development that defines and locates the Third World within the international community.”).


[FN279]. Gathii, supra note 243, at 181 (noting that such practices are “inconsistent with the capitalist vision of market-centered development that industrialized countries and the multilateral economic insti-tutions they control require African economies to adopt.”); cf. MDG Report 2005, supra note 29, at 38 (“If developing countries are to realize the potential of international trade to enhance economic growth, the main barriers to their exports need to be removed. These include tariffs (taxes) imposed by devel-oped countries on imports from developing countries and the subsidies that developed countries provide to domestic agricultural producers.”).


[FN281]. NEPAD, supra note 13, P 205; cf. Algiers Declaration, supra note 13, at 8 (calling for “a mutu-ally beneficial and genuine international partnership; a partnership based on a balance of interests and mutual respect...”).

[FN282]. Declaration on Uruguay Round, supra note 76, P 8 (stressing that the durability of the multilat-eral trading system depends on its ability to provide benefits to all its partners).

[FN283]. Flavia Piovesan, Social, Economic and Cultural Rights and Civil and Political Rights, 1 Sur Int'l J. Hum. Rts. 21, 27 (2004), available at http:// www.surjournal.org/index.php?ed=1.

[FN284]. Mohammed Bedjaoui, The Right to Development, in International Law: Achievements and



Prospects 1182 (Mohammed Bedjaoui ed., 1991).

[FN285]. See Udombana, The Third World and the Right to Development, supra note 200, at 785 (“The West must recognize that underdeveloped societies are not likely to become democratic. Democracy will not thrive in instability. The West cannot simultaneously demand democracy and deny development. It cannot expect people to cherish the ballots when their stomachs are empty.”).

[FN286]. NEPAD, supra note 13, P 34; cf. Declaration on the Establishment within the OAU of a Mech-anism for Conflict Prevention, Management and Resolution, Org. Afr. Unity, 29th Ord. Sess., P 8, O.A.U. Doc. AHG/Decl.3 (XXIX) (June 28-30, 1993) (admitting: “We do recognize, however, that there have also been certain internal human factors and policies which have negatively contributed to the present state of affairs on the Continent.”).

[FN287]. Our Common Destiny, supra note 16, at 7 (emphasis added).

[FN288]. Id. at 8.

[FN289]. See Our Common Interest, supra note 14, at 87.

[FN290]. See Robert H. Jackson, Quasi-States: Sovereignty, International Relations, and the Third World 21 (1990) (arguing that African states were “not authorized and empowered domestically”); see also Robert H. Jackson & Carl G. Rosberg, Why Africa's Weak States Persist: The Empirical and the Ju-ridical in Statehood, 35 World Pol. 1 (1982).

[FN291]. Davidson, supra note 63, at 10.

[FN292]. Obiora Chinedu Okafor, Re-Defining Legitimate Statehood: International Law and State Frag-mentation in Africa 98 (2000).

[FN293]. Leonard & Straus, supra note 140, at 10-11.


[FN295]. See Mauritania: Army Says Has Seized Power to End Totalitarian Days, U.N. Integrated Re-gional Info. Networks, Aug. 3, 2005, http:// www.allafrica.com/stories/200508030836.html (subscrip-tion service required).

[FN296]. Our Common Interest, supra note 14, at 84 (asserting that, “Democracy has spread in Africa and the continent has new political leaders...”).

[FN297]. See Baba Galleh Jallow, Mauritania: An All Too Familiar Story, U.N. Integrated Regional Info. Networks, Aug. 9, 2005, http:// www.allafrica.com/stories/200508090298.html (arguing that the current scenario in Mauritania is all too familiar to observers of African politics).



[FN298]. See, e.g., Declaration on the Principles Governing Democratic Elections in Africa, Org. Afr. Unity/Afr. Union, 38th Ord. Sess., A.U. Doc. AHG/Decl.1(XXXVIII) (July 8, 2002), (laying down prin-ciples for the conduct of democratic elections in Africa). Elections, according to the Declaration, should be conducted “freely and fairly and under democratic constitutions and in compliance with supportive legal instruments.” Id. at II(4); see generally Udombana, Articulating the Right to Democratic Gover-nance in Africa, supra note 253, at 1253-70 (discussing Africa's regional instruments and action plans on democratic governance).

[FN299]. See MPs Back Museveni Re-election Bid, BBC News World Edition, June 28, 2005, http://news.bbc.co.uk/2/hi/africa/4630209.stm (reporting that Ugandan members of parliament have voted overwhelmingly in favor of a constitutional amendment allowing President Museveni to seek further terms in office).

[FN300]. See Uganda Reveals Democracy Question, BBC News World Edition, June 9, 2005, http://news.bbc.co.uk/2/hi/africa/4078168.stm.

[FN301]. See Tansa Musa, Third Term for Biya?, New African, July 2005, at 31 (reporting on the oppo-sition to the third term bid for Paul Biya).



[FN304]. U.N. Econ. Comm'n for Afr. [UNECA], Economic Report on Africa 2002: Tracking Perfor-mance and Progress, 40 (June 2002) [hereinafter Era 2002].

[FN305]. Nsongurua J. Udombana, A Harmony or a Cacophony? The Music of Integration in the African Union Treaty and the New Partnership for Africa's Development, 13 Ind. Int'l & Comp. L. 185, 223 (2002); cf. Yaoundé Declaration, supra note 19, P 24.

[FN306]. See, e.g., Declaration of International Economic Cooperation, G.A. Res. S-18/3, P 23, U.N. GAOR, 18th Spec. Sess., Supp. No. 2, at 6, U.N. Doc. A/S-18/15 (May 1, 1990) (urging developing na-tions to achieve “favourable conditions for domestic and foreign investment”); cf. AU Act, supra note 165, at pmbl. (stressing that the promotion of peace, security and stability is “a prerequisite for the im-plementation of our development and integration agenda”); Declaration on a Code of Conduct for Inter-African Relations, Org. Afr. Unity, 30th Ord. Sess., pmbl., O.A.U. Doc. AHG/Decl.2 (XXX) (June 13-15, 1994) (noting that “every co-operation effort is doomed to failure in an environment devoid of sta-bility, trust and security”).

[FN307]. Global Economic Prospects 2004, supra note 35, at xv-xvi.

[FN308]. Measure First, Then Cut, The Economist, Sept. 11, 2004, at 71 (reviewing a World Bank study



showing that bad regulations are a huge brake on global growth).

[FN309]. See id.

[FN310]. See id. (noting, rather sweepingly, that land is useless as a collateral in Nigeria because “[i]ts owners typically cannot prove, legally, that they own it”).

[FN311]. Some Interesting Facts About Sub-Saharan Africa, supra note 22.

[FN312]. Measure First, Then Cut, supra note 308, at 71.

[FN313]. See Kofi Annan, Foreword, in MDG Report 2005, supra note 29, at 3.

[FN314]. Recasting the Case for Aid, The Economist, Jan. 22, 2005, at 67.

[FN315]. See Government of Kenya, Kenya: Interim Poverty Reduction Strategy Paper 2000-2003, July 13, 2000, International Monetary Fund, http:// www.imf.org/external/NP/prsp/2000/ken/01/kenya.pdf.

[FN316]. Id. at 13.

[FN317]. Recasting the Case for Aid, supra note 314, at 67.

[FN318]. See Investing in Development, supra note 206, at 150.

[FN319]. Era 2003, supra note 84, at 5 (noting that poverty is more severe in rural Africa because, “[h]ouseholds in remote areas, living on fragile lands, would be expected to have fewer opportunities and face greater risks and vulnerability than households in better-endowed areas.”).


[FN321]. See Duodu, supra note 64, at 15.

[FN322]. Id.

[FN323]. See, e.g., G.A. Res. 2542, U.N. GAOR, 24th Sess., Supp. No. 30, U.N. Doc. A/7630 (Dec. 11, 1969) (noting that “the primary responsibility for the development of the developing countries rests on those countries themselves”); U.N. Secretary General, Report of the Secretary-General on the Work of the Organization, P 189, U.N. Doc. A/56/1 (2001) (“While international support remains essential, ulti-mately African countries themselves are best placed to overcome the pressing challenges that confront the continent...”).

[FN324]. See, e.g., Declaration on the Economic Situation in Africa, Org. Afr. Unity, 21st Ord. Sess., P 6, O.A.U. Doc. AHG/Decl.1 (XXI) (July 18-20, 1985), available at http://www.africa-union.org/Offi-



cial_documents/Heads%20of%CC20State%C UMMITS/HOG/UHOGASSEMBLY1985.PDF (“WE RE-AFFIRM THAT THE DEVELOPMENT OF OUR CONTINENT IS THE PRIMARY RESPONSI-BILITY OF OUR GOVERNMENTS AND PEOPLE.”); DECLARATION ON THE SOCIO-ECO-NOMIC SITUATION IN AFRICA, SUPRA NOTE 68, P 8 (“WE REAFFIRM THAT AFRICA'S DE-VELOPMENT IS THE RESPONSIBILITY OF OUR GOVERNMENTS AND PEOPLES.”); NEPAD, SUPRA NOTE 13, P 203 (“IN PROPOSING THE PARTNERSHIP, AFRICA RECOGNISES THAT IT HOLDS THE KEY TO ITS OWN DEVELOPMENT.”).

[FN325]. Our Common Interest, supra note 14, at 89 (stressing, “If Africa fails to do all this, the interna-tional community will find it far more difficult to discharge its responsibilities, act in solidarity with Africa and deliver effective support.”).

[FN326]. U.N. Econ. & Soc. Council [ECOSOC], Implementation of the International Covenant on Eco-nomic, Social and Cultural Rights: Second Periodic Reports Submitted by States Parties under Articles 16 and 17 of the Covenant, P 5, U.N. Doc. E/1990/6/ Add. 14 (Oct. 8, 1996), available at http:// www.unhchr.ch/tbs/doc.nsf/(Symbol)/E.1990.6.Add.14.En?Opendocument.

[FN327]. Yaoundé Declaration, supra note 19, P 19.

[FN328]. Shedrack C. Agbakwa, Reclaiming Humanity: Economic, Social, and Cultural Rights as the Cornerstone of African Human Rights, 5 Yale Hum. Rts. & Dev. L.J. 177, 181 (2002).

[FN329]. The AGOA was enacted into law in the U.S. as part of the Trade and Development Act of 2000 (African Trade Bill), 19 U.S.C. §§ 3702(1), (4), (5) (2000), 2001 O.J. (L60). It is a part of the “post-Cold War constructive re-engagement” in Africa and is based on the philosophy that trade, not aid is the chief tool for promoting economic development. See Jeffery M. Brown, Black Internationalism: Embracing an Economic Paradigm, 23 Mich. J. Int'l L. 807, 862 (2002).

[FN330]. Duodu, supra note 64, at 15.

[FN331]. Jack Donnelly, Ethics and International Human Rights, in Ethics and International Affairs 153 (2001); cf. Jack Donnelly, International Human Rights 160 (1998) (noting: “Markets seek efficiency and not social justice or human rights for all”); Gewirth, supra note 160, at 59 (arguing that markets cannot guarantee sufficient funds to meet basic goods and opportunities, which “must be securely provided as needed” and, therefore, that “the state, as a community of rights, should be the primary, even if not the only, respondent of these rights”).

[FN332]. Freud, supra note 5, at 59 (citing Heine).

[FN333]. James Baldwin, Early Novels and Short Stories 21 (1998).

[FN334]. Kenneth Karl, From Georgetown to Cotonou: The ACP Group Faces Up to New Challenges, ACP-EU Courier, Sept. 2000, at 20, 23, available at http:// europa.eu.int/comm/development/body/pub-




http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=19USCAS2001&FindType=L

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=19USCAS3702&FindType=L&ReferencePositionType=T&ReferencePosition=SP_362c000048fd7

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=19USCAS3702&FindType=L&ReferencePositionType=T&ReferencePosition=SP_0bd500007a412

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=19USCAS3702&FindType=L&ReferencePositionType=T&ReferencePosition=SP_f1c50000821b0




lications/courier/courier_acp/en/en_ 020.pdf.

[FN335]. Ringen, supra note 21, at 3.

[FN336]. Our Common Destiny, supra note 16, at 3 (“Africa was the birthplace and source of civiliza-tion for the longest period in the history of humanity, a period that people persist in describing wrongly, as “Prehistoric” using one sole criterion--‘lack of written records.”’); see also NEPAD, supra note 13, P 14 (“Modern science recognizes Africa as the cradle of humankind ... Africa's status as the birthplace of humanity should be cherished by the whole world as the origin of all its peoples.”).

[FN337]. See generally George Guest, The March of Civilization (1974).

[FN338]. See NEPAD, supra note 13, P 14. 7 San Diego Int'l L.J. 5

END OF DOCUMENT


39 DENJILP 239 Page 139 Denv. J. Int'l L. & Pol'y 239

Denver Journal of International Law and PolicySpring 2011

General Article

*239 PROSECUTION AND PEACE: A ROLE FOR AMNESTY BEFORE THE ICC?

Kate Allan [FNa1]

Copyright (c) 2011 Denver Journal of International Law and Policy, University of Denver (Col-orado Seminary) College of Law; Kate Allan

Introduction

The adoption of the Statute of the International Criminal Court [FN1] at the Rome Confer-ence was a landmark event in international law. It expressed states' intention to cede what was guardedly reserved as a sovereign power to prosecute in exchange for international justice and the prevention of impunity. To restrain the International Criminal Court (ICC), states adopted complementary jurisdiction; the ICC can only act where a state has not genuinely investigated or prosecuted perpetrators of serious crimes, or where it is unwilling or unable to do so. [FN2] The difficult question was how far should complementarity go?

It was not surprising, given divergent state practice and opinion, that a provision on amnesties was not agreed upon. [FN3] Some states argued that transitional justice mechanisms ought to be accommodated. [FN4] Domestic responses to mass atrocity or international crimes in previous years had involved a combination of complementary processes selected from what is becoming commonly referred to as the ‘toolkit’ of transitional justice. [FN5] These multi-faceted approaches combined limited prosecutions with truth commissions and blanket or conditional amnesties. Other states were nevertheless steadfast in their opposition. Consequently, the drafters of the ICC Statute left the provisions regulating jurisdiction “‘creatively ambiguous.”’ [FN6]

*240 This paper asks whether the ICC can, and ought to, defer to domestic grants of amnesty. In doing so, this paper also questions more broadly whether the ICC ought to take the impact of prosecution on peace into account. Before this article goes on to outline the ways in which the ICC might do this, it is important to understand: (1) the position of amnesties in inter-national law, and (2) the forms of amnesty that are granted and the justifications which aim to le-gitimize them.



In regard to the first issue, as a matter of international law, an express customary prohibition of amnesty has not yet crystallized. There is support for customary and treaty [FN7] based duties to prosecute pursuant to the Geneva Conventions (GCs), and jus cogens norms including torture, genocide. Various judicial and UN bodies confirm that amnesties are inconsistent with treaty based duties to prosecute. [FN8] Exceptions can nevertheless be made. The most notable of *241 these is Article 6(5) of Additional Protocol II to the GCs, which states that authorities “shall en-deav[o]r to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict.” [FN9] The South African Constitutional Court in Azapo v. President of the Republic of South Africa [FN10] relied upon Article 6(5) to support an exception to the prohibition on amnesty. [FN11] The explicit or constructive duty to prosecute is nevertheless limited by subject matter and recip-ient, with the obvious gaps being crimes against humanity and war crimes, which do not give rise to grave breaches of the GCs. Customary international law established through state practice and opinio juris may fill these gaps. [FN12] There is an emerging state practice supporting an obliga-tion to prosecute the most serious violations of international law, [FN13] with supportive opinio juris. [FN14] Nevertheless, courts have been *242 reluctant to find amnesties “unlawful per se.” [FN15] While much of the debate concerns the permissibility of conditional amnesties, [FN16] it is nonetheless difficult to avoid the conclusion that while customary law had not crystallized be-fore the Rome Conference, international law is heading towards the prohibition of amnesties for international crimes. [FN17]

Looking to the second issue, amnesties can come in a variety of forms including blanket amnesties, self-amnesties, and conditional amnesties. However, only conditional have attracted any real support. It is therefore only in the context of conditional amnesties that we ought to con-sider whether customary international law permits grants of amnesty. Conditional amnesties are ordinarily granted following a determination by a quasi-judicial body, such as a truth commis-sion, applying legislative criteria. [FN18] Criteria might include: whether a perpetrator acted in pursuit of a political objective and whether he or she disclosed the truth regarding their role and the role of others in the commission of a crime. [FN19] Truth commissions gain legitimacy when they provide victims with an opportunity to participate by confronting perpetrators, with some form of reparation, and when they have authority to make broad findings and recommendations regarding the causes of and events giving rise to violations. It is not amnesty itself that is justifi-able, but the process by which it is granted. Advocates of truth commissions also argue that, not only do they have a broader mandate than domestic prosecution, they have a greater capacity to reconcile communities and engender peace. [FN20] The quintessential example is that of South Africa, where conditional amnesty was bartered for democratic rule, and where the South Africa Truth and Reconciliation Commission (SATRC) was hailed as a key contributor to a relatively peaceful transition to stable democracy. [FN21] Its supporters argue that without the availability of amnesty, South Africa might have lapsed into civil war. [FN22] States have subsequently used this *243 model to argue that amnesty can be a vital ingredient of peace negotiations because they “stabilize and consolidate. . . transition.” [FN23]



Amnesty is therefore a policy and rule of law issue. As a policy matter, it is justified by its contribution to resolving conflict, attaining peace, and preventing further human rights viola-tions. As a rule of law matter, it is justified on the basis that it is granted by a quasi-judicial body pursuant to legislation, even though brought about by an executive act. The disentangling of law and politics however is not so easy in the contexts in which amnesties are granted:

The construction of the transitional rule of law as independent of politics shares cer-tain affinities with the understanding of the rule of law applicable in ordinary times. Yet, controversies over transitional justice in highly politicized contexts present hard cases for adherence to the rule of law. Despite radical political change, the aim is the rule of law not primarily motivated by politics. Transitional jurisprudence reveals a shining vision of the rule of law as antipolitics. [FN24]

Policy and rule of law considerations are relevant for the ICC, particularly given it is not limited to post bellum justice and separating law from politics is more difficult during conflict. [FN25] How then does and should the ICC respond? Does the process by which conditional amnesties are granted satisfy due process under international law and the ICC's admissibility re-quirements? Are conditional amnesties a matter of both law and politics beyond the national realm? Or, if amnesty is a matter of mere politics, what is the impact on prosecutorial discretion to act?

The Rome Statute sets out the roles for the Prosecutor, the Security Council, and the Pre-Trial Chamber in determining whether the ICC can exercise jurisdiction over a matter. [FN26] The Prosecutor plays a lead role because he has discretion to determine whether to proceed with an investigation or prosecution. [FN27] The Prosecutor has two avenues to defer to conditional amnesty. First, he can determine that amnesties satisfy the admissibility requirements of Article 17. [FN28] Second, pursuant to Article 53, he can determine that it is not in the interests of jus-tice to proceed with an investigation or prosecution where an amnesty has been or might be granted. [FN29]

ICC Prosecutor Luis Moreno-Ocampo has been patently clear about his approach to admissi-bility and the interests of justice. In regard to admissibility, he *244 stated in a report to the Se-curity Council that alternative justice mechanisms “are not criminal proceedings as such for the purpose of assessing the admissibility of cases before the [ICC], but they are an important part of the fabric of reconciliation for Darfur, as recognized in resolution 1593 (2005).” [FN30] Even where amnesty is granted by quasi-judicial bodies such as the SATRC, Prosecutor Moreno-Ocampo would not find that they are determinative of admissibility under Article 17 of the Rome Statute. While he seemed to leave open the question of whether amnesties might be in the inter-ests of justice because of their reconciliatory capacity, he foreclosed this possibility in September 2007 when he released a policy paper on the interests of justice. [FN31] In that paper, he notes that justice and peace are not mutually exclusive, [FN32] and in dealing with the intersection of



justice, peace, and security, he will work with other institutions such as the Security Council. [FN33] He further stated that while Security Council intervention would not presuppose the Prosecutor's position on the interests of justice, he will adopt “a presumption in [favor] of inves-tigation or prosecution” and use his discretion only in exceptional circumstances. [FN34] In case of any doubt regarding his position on amnesties, the paper footnotes a quote from the Under-Secretary-General for Legal Affairs and United Nations Legal Counsel, who said “[j]ustice should never be sacrificed by granting amnesty in ending conflicts.” [FN35]

Should the Prosecutor exercise unfettered discretion to determine admissibility and the inter-ests of justice, we might then end the discussion here. However, Prosecutor Luis Moreno-Ocampo's paper is a policy document and not binding for the purposes of judicial review, [FN36] and could be amended by the next appointee. [FN37] While the object of preventing serious crimes through ending impunity is likely to continue to play a decisive role, it is possible that time and progressive development of the law may lead the Prosecutor to favor peace and security in certain circumstances. Moreover, the Prosecutor is subject to Security Council and Pre-Trial Chamber oversight. The Security Council has the power to issue a resolution referring a matter to the Prosecutor or requesting that the ICC defer an investigation or prosecution of a matter where it is a threat to international peace or security. [FN38] The Pre-Trial Chamber has authority to re-view the Prosecutor's decision to proceed (although it might adopt a less intrusive role regarding policy matters). [FN39] Neither the Security Council nor the Pre-Trial *245 Chamber have inter-vened on the basis of amnesty as of yet. Whether amnesty might be accommodated is, therefore, still open to debate.

There are two approaches that may be adopted by each of these bodies. The Prosecutor and the Pre-Trial Chamber can adopt a restrictive approach. With regard to admissibility, truth com-missions would fail to satisfy the requirements of “criminal justice,” [FN40] and amnesty would indicate an unwillingness or inability to prosecute. The President of the International Crisis Group, Gareth Evans, aptly summarized the restrictive approach with regard to the interests of justice:

I have no doubt that dealing with impunity and pursuing peace can work in tandem even in an ongoing conflict situation: these are not necessarily incompatible objectives. The prosecutor's job is to prosecute and he should get on with it with bulldog intensity. If a pol-icy decision needs to be made, in a particular case, to give primacy to peace, it should be made not by those with the justice mandate, but with the political and conflict resolution mandate, and that is the Security Council. The Statute allows for this in Article 16, and this is the way the international community should be thinking about it. [FN41]

According to this approach, the ICC prioritizes its prosecutorial mandate and policy issues remain a matter for the Security Council.

Alternatively, the Prosecutor and the Pre-Trial Chamber can adopt an expansive view, where



the process by which amnesty is granted satisfies the requirements of admissibility, and/or the in-terests of justice accommodate legal, political, and social issues. [FN42] The expansive approach allows the Prosecutor and Court to consider whether prosecution may prevent the conclusion of peace negotiations by deterring perpetrators from engaging in actions that might lead to their dis-armament and arrest, and whether prosecution at the post-conflict stage may lead to the resump-tion of hostilities. [FN43]

Literature following the ratification of the Rome Statute adopted positions ranging from a narrow application of the law and confinement to prosecutorial criminal justice mechanisms [FN44] to expansive policy approaches, which argue that the Prosecutor could decline jurisdic-tion “where prosecution is likely to have [destabilizing] effects on the state which has granted the amnesty.” [FN45] This paper builds upon that body of literature in two ways. First, it synthesizes the positions put forward by scholars and practitioners and frames them in terms of the *246 re-strictive or expansive approach. Second, it applies these approaches to the situations of Uganda and Darfur, which are currently subject to ICC jurisdiction. Over the last few years, events in these countries and state responses to intervention by the ICC have altered the way in which one might view the role of the ICC. In Uganda, ICC intervention has led to attempts by the govern-ment to establish domestic criminal justice mechanisms that incorporate criminal prosecution, reparations, and reconciliatory mechanisms. [FN46] In Darfur, ICC arrest warrants for President Omar al-Bashir and other political leaders resulted in the expulsion of humanitarian aid groups and the withdrawal of some United Nations peacekeepers. [FN47] Much of the scholarly debate regarding amnesties and the ICC pre-dated the Prosecutor Moreno-Ocampo's policy, and subse-quent reactions were few. As a result, the key contribution of this paper to that debate is its appli-cation of the synthesized debate to recent events in states subject to ICC jurisdiction. It deter -mines whether, in the context of present circumstances in Uganda and Sudan, the Court should, or has scope to, take into account political factors.

The paper will be structured as follows. Part I will discuss the Prosecutor's application of the provisions regarding admissibility and the interests of justice to determine whether, prima facie, a restrictive or expansive approach may be applied. It will then go on to discuss the role of the Security Council and the Pre-Trial Chamber. Part II will discuss four case studies: Darfur, Uganda, Sierra Leone, and South Africa. Uganda is the only situation currently subject to ICC jurisdiction that provides an example of the intersection of domestic amnesty and international prosecution. While Sudan has not granted amnesties for the conflict in Darfur, the case study is useful because it provides insight into the role of the Security Council in maintaining interna-tional peace and security. The case studies of Sierra Leone and South Africa are pertinent be-cause they granted amnesties (blanket and conditional respectively), established truth commis-sions, and conducted prosecutions, and they inform the extent to which amnesty may be desir-able as a policy matter. [FN48] Part III will apply the findings of Parts I-II to the restrictive and expansive approaches. The key finding of this paper is that the restrictive approach should be adopted for both legal and policy reasons.



I. The Rome Statute

A situation can fall within the jurisdiction of the ICC in one of three ways: (1) referral by a state party; (2) referral by the Security Council using its Chapter VII powers; [FN49] or (3) a propio motu investigation by the Prosecutor. [FN50] Even where a matter has been referred, prosecutorial discretion to investigate and prosecute is regulated by Article 53 of the Rome Statute. Article 53 provides that the *247 Prosecutor shall consider: (1) whether he has sufficient factual evidence to support a reasonable basis for investigation or sufficient basis for an arrest warrant or summons, [FN51] (2) whether a matter is admissible in terms of article 17, [FN52] or (3) whether it is in the interests of justice to proceed. [FN53] For our purposes, admissibility and the interests of justice are determinative. Before proceeding to discuss these provisions, regard ought to be had to the objects and purposes of the Rome Statute.

A. Object and purpose of the Rome Statute

The Vienna Convention on the Law of Treaties (the Vienna Convention) provides that a “treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to [its] terms. . . and in the light of its object and purpose,” [FN54] having regard to inter alia its preamble. [FN55] If the application of interpretive guides leads to a meaning that is ambiguous or obscure, or a result manifestly absurd or unreasonable, regard may be had to supplementary means including preparatory work and the circumstances of the treaty's conclusion. [FN56]

Preamble

The preamble provides that the Rome Statute:

Affirm[s] that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured[,]. . . [r]ecall[s] that it is the duty of every state to exercise its criminal jurisdiction over those re -sponsible for international crimes,. . . [and] [e]mphasiz[es] that the [ICC] established under [the] Statute shall be complementary to national criminal jurisdictions. [FN57]

Notable phrases include that the most serious crimes “must not go unpunished” and that their “effective prosecution” must be ensured, as well as that it is a “duty” of states to exercise “criminal prosecution” to which the ICC shall be complementary. These objects must underscore the interpretation of provisions even where they are unambiguous. It is important to bear in mind, however, that the preamble and the procedural provisions (i.e. Articles 16, 17 and 53) were drafted by different committees within the conference which did not interact, and that there was little effort to make these sections of the Statute consistent. [FN58]

*248 Travaux Préparatoires



The issue of amnesties was “acutely controversial” in the debate over jurisdiction at the Rome Conference. [FN59] The United States advocated for amnesties by circulating a non-pa-per, which argued “that a decision by a democratic regime to grant an amnesty should be a con-sideration in determining the admissibility of a case before the ICC.” [FN60] Some states, such as South Africa and Colombia, claimed that they reserved the right to grant amnesty in appropri-ate circumstances. [FN61] The treaty prohibited reservations so Colombia, which had considered granting amnesties and pardons to bring an end to decades of armed conflict, [FN62] entered its ratification with the following interpretive declaration:

None of the provisions of the Rome Statute concerning the exercise of jurisdiction by the [ICC] prevent the Colombian State from granting amnesties, reprieves or judicial par-dons for political crimes, provided that they are granted in conformity with the Constitution and with the principles and norms of international law accepted by Colombia. [FN63]

Whether interpretive declarations are binding depends upon a complex and often indetermi-nate examination of whether the declaration is, in effect, a reservation that is inconsistent with the object and purpose of the treaty and whether other ratifying states object. [FN64] As far as it is possible to ascertain, no states objected on this basis. Even so, the declaration is not necessar-ily determinative of the treaty's interpretation for all parties.

Nevertheless, there are two ways in which the omission of a provision on amnesty could be read. The absence of an explicit prohibition could indicate that amnesties are permissible under Article 17. [FN65] Whether or not participating states concurred that amnesty should be permit-ted may depend upon distinguishing unconditional from conditional amnesties. [FN66] On the other hand, it could indicate *249 they have no jurisdictional impact. [FN67] Neither approach appears to be appropriate. According to the Chairman of the Committee of the Diplomatic Con-ference, the question was deliberately undecided. [FN68] The travaux préparatoires might then be of little assistance, other than to confirm no state consensus exists and, therefore, no custom-ary rule.

B. The Prosecutor

Before engaging in an analysis of admissibility and the interests of justice, it is important to note that the Prosecutor may exercise jurisdiction over an individual even where a domestic court is prosecuting him. The Pre-Trial Chamber held that “for a case arising from the investigation of a situation to be inadmissible, national proceedings must encompass both the person and the con-duct which is the subject of the case before the Court.” [FN69] Accordingly, in the case against Thomas Lubanga, the Court deemed the case admissible because he had not been charged with all crimes for which he could be accused. [FN70] The ICC's holding may have consequences for conditional amnesties. The SATRC allocated hearings by victim rather than perpetrator. [FN71] Perpetrators of numerous violations were only granted amnesty for conduct that would not nec-



essarily encompass all acts that give rise to liability. [FN72] The jurisdiction of truth commis-sions might mean perpetrators are only granted amnesty for some but not all conduct (whether through rejection or through a perpetrator's omission in disclosing conduct in their application). In principle, in a way similar to the Lubanga case, the Court and Prosecutor might therefore exer-cise jurisdiction over an individual subject to amnesty for conduct that was not subject to an in-vestigation or grant of amnesty by the SATRC. [FN73]

1. Admissibility

Article 17 of the Rome Statute sets out the test for admissibility. It provides that the Court, with regards to paragraph 10 of the Preamble and Article 1, shall *250 determine that a case is inadmissible: (a) where it is being investigated or prosecuted by the referring or affected state; (b) where that state has investigated the matter and decided not to proceed with prosecution, un-less the state is unwilling or unable to genuinely investigate or prosecute; [FN74] or (c) where a person has been tried by another court for crimes falling within the Court's jurisdiction, unless the proceedings in the other court were, (i) for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court, or (ii) otherwise not conducted independently or impartially in accordance with the norms of due process recognized by international law and conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice. [FN75] While the provision is directed at the Court, the Prosecutor must have regard to admissibility pursuant to Article 53. [FN76] To de-termine whether amnesties and truth commissions prevent the prosecutor from exercising juris-diction, it is necessary to determine whether the procedure for granting amnesty falls within the ambit of “investigation,” “decision,” “trial,” “court,” “independent and impartial,” and “unwill-ing or unable.” [FN77]

a. Investigation and Decision: Article 17(1)(a) and (b)

The requirement to investigate is found in of Article 17(1)(a) and (b). The preamble and Ar-ticle 1, which refer to “criminal jurisdiction,” infer that investigation means criminal investiga-tion. [FN78] Sub-paragraph (a) itself refers to “criminal responsibility,” and sub-paragraph (b) refers to the “intent to bring the person to justice.” [FN79] Sub-paragraph (a) also requires “the case” to be investigated. [FN80] The provision impliedly contemplates criminal investigations. [FN81]

By adopting an expansive approach, institutions granting conditional amnesties, such as the SATRC, might satisfy the requirements of “investigation” and “case” where they engage in “good-faith, methodological evidence *251 gathering” [FN82] of facts, to make an objective de-termination of criminal liability in individual cases. [FN83] The SATRC operated as a quasi-ju-dicial body, [FN84] because it conducted investigations through expansive powers of search and seizure, [FN85] and could subpoena the provision of information or attendance by any person



and question such persons in public or in camera hearings. [FN86] Victims and amnesty appli-cants were entitled to be present at committee hearings with exception [FN87] and cross-exam-ine witnesses, [FN88] and persons questioned were entitled to legal representation (albeit with-out a right to freedom from self-incrimination and a presumption of innocence). [FN89] Follow-ing a hearing, the Amnesty Committee provided written reasons for its decision regarding whether a perpetrator of human rights violations was granted amnesty. [FN90] Such institutions may also satisfy “criminal jurisdiction” by the mere fact of their jurisdiction over crimes and “criminal responsibility” where perpetrators were brought to account through submitting to the jurisdiction of the institution, facing victims, truth telling, and providing reparation. Moreover, recognizing “decisions” for individualized amnesties might be consistent with the references to “the case” and “person” in the provision, which suggests individual decisions are required. [FN91]

This approach could be adopted if the distinction between investigation or prosecution in Ar-ticle 17(1)(a) and (b) accepts that an investigation can be conducted irrespective of the body that conducts it, [FN92] and irrespective of its purpose. [FN93] However, according to the rules of statutory interpretation, Articles 17(1)(a) and (b) must be read together. [FN94] Sub-paragraph (a) protects matters that *252 are in the preliminary phase of sub-paragraph (b), [FN95] i.e. where a decision not to prosecute has not yet been taken. The duty to prosecute is inextricably linked to “the triad of obligations - investigate, take action against those responsible, and provide redress,” which “suggests that prosecution is thought necessary in order to fulfill the other two obligations in the triad.” [FN96] An investigation and decision might be sufficient provided pros-ecution was one of the possible options for achieving justice; investigation must at least contem-plate prosecution. [FN97] The provision cannot incorporate an investigation whose principle ob-jective is to determine whether amnesty should be granted. The same principles might be applied to interpreting “decision,” such that individualized decisions must be considered in terms of their purpose.

The SATRC conducted a broad range of investigations propio motu and upon application for amnesty. [FN98] Investigations connected to grants of amnesty would have been made upon an application and were, therefore, for the purpose of determining whether amnesty ought to be granted. [FN99] While denials of amnesty left the possibility of prosecution open, [FN100] SATRC investigations did not contemplate prosecution, rather, they contemplated amnesty. [FN101] The final outcome was a decision rejecting the amnesty application and possibly a rec-ommendation (but not a decision) to prosecute, [FN102] but the exercise of jurisdiction pre-cluded even the exercise of prosecutorial discretion. The National Prosecuting Authority (NPA) did not retain any discretion to determine whether or not to prosecute until the SATRC had made its decision. [FN103] Along a procedural spectrum, it is pre-investigation and would only have an impact upon the decision to prosecute if an amnesty arose from it. Whether a prosecution would occur following a rejection of amnesty was a matter for an entirely new investigation be-cause of the restrictions on using evidence gathered during SATRC investigations in subsequent



prosecutions. [FN104] If the SATRC type process was accommodated, a state could argue that it is investigating a matter with a view to granting amnesty rather than prosecuting, before an in-vestigation regarding whether or not to prosecute has even occurred. Upon these grounds, a more restrictive approach is warranted.

*253 The South African example is complicated by the NPA's recent prosecution guide-lines, which permit executive and prosecutorial grants of amnesty. [FN105] The guidelines allow perpetrators to apply for amnesty pursuant to conditions that are substantially similar to those ap-plied by the SATRC, but which include additional factors such as whether the NPA has the re-sources to investigate and prosecute the matter. [FN106] An overly expansive construction of the term accommodating a broad executive decision would clearly be contrary to the objective of the Statute. [FN107] However, investigations conducted prior to grants of amnesty in such a case may not contemplate amnesty, because a grant of amnesty may be considered by the Minister of Justice following the NPA's investigation or upon the application of the accused. [FN108] An in-vestigation may then still be conducted for the purpose of prosecution. Should a state incorporate amnesty decisions within the role of its NPA, such that amnesty might be an exception to the pri-mary goal of prosecution, Article 17(1)(a) and (b) might be satisfied. This might even be the case where an application was made by a perpetrator prior to an investigation, if an investigation is nevertheless conducted. However, if the application is considered on its merits without investiga-tion, the Prosecutor will be put in the same position as the TRC; the determination would first be whether amnesty should be granted. The existence of the amnesty policy would negate an expan-sive approach. Whether the guidelines withstand Article 17 is nevertheless determined by their expression of willingness.

b. Unwilling: Article 17(1) and (2)

Article 17(2) gives meaning to the term unwilling in Article 17(1)(a) and (b) by providing that the Court must consider the following: (1) whether a national decision was made for the pur-pose of shielding a person from criminal responsibility, (2) whether there has been an unjustified delay in proceedings which is inconsistent with an intent to bring a person to justice, and (3) whether the proceedings were not conducted independently or impartially but in a way inconsis-tent with an intent to bring a person to justice. [FN109] In interpreting the provision, the Prose-cutor must consider the principles of due process recognized by international law. [FN110] An investigation and prosecution must be conducted genuinely, [FN111] and a judicial decision made, with a view to making a person criminally responsible. [FN112] The provision was in-serted following consensus that it was necessary to “refute the presumption that a national sys-tem was handling the *254 case in an adequate manner,” so that states could not “easily prevent the ICC from taking jurisdiction by initiating an investigation or prosecution.” [FN113] Some posit that the underlying purpose of the qualification is to filter bona fide from mala fide state conduct. [FN114] However the provision could be read more broadly, because even if a state subjectively demonstrates good faith, it may be objectively unable to achieve impartial and inde-



pendent results through investigation or prosecution. [FN115] The requirement of “genuineness” in sub-paragraphs (1)(a) and (b) supports a broader reading. [FN116]

In order to determine whether a truth commission's grant of amnesty satisfies the qualifica-tion we must determine whether it “shields” a person. [FN117] An expansive approach requires the Prosecutor to demonstrate “a devious intent on the part of a State, contrary to its apparent ac-tions.” [FN118] The restrictive approach requires that shielding “must be an intended conse-quence [of the amnesty], whether or not there is a primary, greater intention.” [FN119] The for-mer position might be satisfied where an outgoing regime negotiates an amnesty, even condi-tional. Siebert-Fohr argues that a truth commission established to serve peace and security would demonstrate willingness because accountability may also be realized by non-judicial efforts even if they fall short of criminal prosecution. [FN120] This approach is flawed because the preamble calls precisely for criminal prosecution. There are other cogent reasons supporting this approach, the most compelling of which is that upon a broader approach the Pre-Trial Chamber is required to “pass judgment on the long-term political goals of a State,” [FN121] a decision which is not only highly difficult to make but beyond the authority of the Court.

In any event, it seems unnecessary to engage in this analysis because the ordinary meaning of the words is clear: the effective provision requires a willingness to investigate or to prosecute. [FN122] The grant of amnesty must ultimately fail at the prosecution stage even if it doesn't at the investigation stage because *255 amnesty shields a person from prosecution. One might then conclude that the intent to bring a person to justice requires a person to be investigated and, where appropriate, prosecuted. Even adopting the latter approach means that an amnesty, adopted with legitimate intent such as the “pacification and reconciliation of a society” will by default adopt the goal of shielding. [FN123] This is supported by the Inter-American Court on Human Rights, which found that national reconciliation is insufficient to make amnesties lawful. [FN124] Consequently, South Africa's “wider policy to restore social peace and reconciliation after a period of transition” [FN125] would not make an investigation or prosecution inadmissi-ble. As will be further discussed in Part II of this article, amnesties granted by Uganda and Sierra Leone [FN126] would also fail the test of admissibility because their by-product is impunity from criminal responsibility. In the context of Uganda, MacMillan argues that it is possible to find in the present circumstances that the Amnesty Act 2000 does not shield persons from prose-cution because it is used in context of a multi-pronged approach to accountability which incorpo-rates domestic prosecutions and traditional justice mechanisms. [FN127] As with the South African situation, the decisive issue, however, is whether the amnesty shields the individual; the overall approach is not assessed. Even if the State seeks in good faith to achieve other legitimate goals, the foreseeable consequence of shielding can be nothing other than intentional. If we apply this reasoning to the terms “investigation,” “prosecution,” and “decision,” an investigation con-ducted by a body such as a truth commission is not sufficient. To hold otherwise would mean that the Prosecutor is prevented from investigating a case where a state was investigating for the purposes of an amnesty *256 determination, but would assume jurisdiction once the investiga-



tion was complete and amnesty was granted.

What forecloses the ability of a grant of amnesty by a truth commission to satisfy willing-ness is the extent to which it hinges on what “justice” means. An expansive approach incorpo-rates restorative justice, while the restrictive approach is limited to retributive. We might find the answer in the principles of due process recognized by international law, and the objects and pur-poses of the Statute. While a conditional grant of amnesty requires a person to take responsibility through confession, disclosure of the truth, an apology, or financial compensation, [FN128] these do not import criminal responsibility because our traditional understanding of criminal responsi-bility entails punishment through imprisonment, community service, and/or fines. [FN129] If due process includes procedural as well as substantive fairness, [FN130] punishment is a component of due process recognized by international law. This approach is supported by the preamble, which states that the most serious crimes of concern must not go “unpunished.” [FN131] Restorative justice cannot not be a substitute for retributive justice in any case, no matter the stage at which amnesty is granted. Therefore, amnesty does not just preclude admissibility be-cause it shields a person from prosecution in a trial, but because it shields them from the criminal consequences of guilt, namely, punishment. Even where the current South African NPA prose-cuting policy satisfies investigation and decision, amnesty does not determine a matter inadmis-sible because it shields a perpetrator from retributive justice.

c. Unable: Article 17(3)

Article 17(3) similarly gives meaning to “unable” by providing that the Court shall consider whether a State is unable to arrest the accused or obtain necessary evidence and testimony, or is otherwise unable to carry out its proceedings due to a total or substantial collapse or unavailabil-ity of its national judicial system. [FN132] Where a state grants amnesties as part of a package because the number of perpetrators makes it impossible, because it is unable to arrest the ac-cused, or because its legal system is in a state of disarray or collapse, [FN133] it would be held “unable” upon a plain meaning of the word. Given the difficulty of satisfying the requirements of other key terms, it would be absurd to attempt to find ways in which an amnesty granted for these reasons would not be characterized as an indication of an inability. The South African, Sierra Leonean, and Ugandan situations demonstrate inability because the volume of perpetrators made it impossible for the states to investigate and prosecute them.

*257 d. Ne Bis In Idem - Trial and Court: Articles 17(1)(c) and 20

Articles 17(1)(c) and 20 preclude prosecution where the individual has been tried for the same conduct in another court and convicted or acquitted. [FN134] The ground is satisfied un-less: (1) the trial shielded the accused from criminal responsibility, or (2) was not independent and impartial in accordance with the norms of due process and was inconsistent with an intent to bring a person to justice. [FN135] There are three ways in which truth and reconciliation com-



mission processes granting amnesty fail to meet this provision. [FN136] First, a truth commis-sion hearing does not comport with what we ordinarily understand as a “trial” and “court.” [FN137] Even if we accept that the SATRC was sufficient because matters were heard before Commissioners making reasoned determinations on the basis of legislative criteria that were binding on local courts, it fails to meet the due process requirements of criminal trials. [FN138] While witnesses could be examined and cross-examined, the accused was not afforded the pre-sumption of innocence and freedom from self-incrimination. [FN139] Rather, proceedings com-menced from an assumption of guilt, and the grant of amnesty hinged on an ability to incriminate oneself and others. These requirements are contrary to fundamental rights contained in the right to a fair trial in Articles 9 and 14 of the International Covenant on Civil and Political Rights [FN140] and other regional instruments, such as the African Charter on Human and Peoples' Rights. [FN141] While the reference to “norms of due process recognized by international law” relates to independence and impartiality, [FN142] the *258 Pre-Trial Chamber may nevertheless take these additional norms into account. [FN143] Second, amnesty does not meet the qualifying words of “convicted” and “acquitted.” Not only does amnesty preclude a criminal trial in which a person can be convicted, [FN144] it can hardly be said that amnesty constitutes an “acquittal,” which denotes an absence of guilt. Third, the traditional goal of the rule on double jeopardy is “to prevent the state from repeatedly prosecuting a person for offen[s]es arising out of the same incident until a conviction is obtained.” [FN145] Given a truth and reconciliation process is nei-ther a prosecution nor an attempt to obtain a conviction, upon a traditional approach, it would fall outside the ambit of ne bis in idem.

A more expansive approach encompassing truth commissions is advocated by states claim-ing that the restrictive approach is tainted by cultural imperialism and is therefore not truly satis-factory as a norm of due process recognized by international law. [FN146] This problem arises partly because treaty based rights and norms are not yet universal. Claims of cultural imperialism have some merit if the norms of due process were required to be customary. This is a hotly de-bated issue; how it might be resolved involves a complex analysis of custom, its role, and the participation of states in its establishment. It is tentatively posited that claims of cultural imperi-alism are often closely tied to claims of cultural relativism, [FN147] which are widely rejected on a number of grounds because the people often affected by them object. While affected perpe-trators might benefit from exceptions based on cultural relativity, it cannot be said that victims would necessarily be so accepting. In any event, this issue is foreclosed by the fourth ground, which is that amnesty shields an accused from criminal responsibility and is inconsistent with the intent to bring a person to justice.

2. The Interests of Justice

Article 53 provides that the prosecutor shall initiate an investigation unless he or she deter-mines that, when taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests



of justice. [FN148] It also provides that the *259 prosecutor may decline to prosecute if, upon in-vestigation, he or she concludes that there is no sufficient basis for a prosecution because it is not in the interests of justice, taking into account all the circumstances including the gravity of the crime, the interests of victims, the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime. [FN149] The Prosecutor applies both an evidentiary and appropriateness test to determine whether to proceed with an investigation. [FN150] Whether the prosecutor can adopt an expansive approach accommodating amnesty or must adopt a restrictive and exclusive approach depends upon two issues: (1) the relevance and scope of the listed factors, including whether the interests of justice are confined to the individual or to the situation as a whole, and (2) whether those factors are exhaustive.

a. Scope of the Interests of Victims and the Role of the Perpetrator

In determining scope, the most relevant factor is the interests of victims. [FN151] Whether amnesties are relevant to the interests of victims depends upon whether those interests are limited to the matter at hand (i.e. the victims of the perpetrator) or to the situation (i.e. future victims). The latter interpretation includes considerations such as the extent to which prosecution might lead to further violations because it creates incentives for those indicted to avoid conflict resolu-tion, and the extent to which alternative justice processes incorporating amnesty facilitate stabil-ity and reconciliation of communities. This expansive approach would require the Prosecutor to consider a tenuous connection between investigating and prosecuting a perpetrator of crimes and future unknown victims. The provision more logically requires that the interests of justice are limited to the matter at hand because it requires the Prosecutor to demonstrate that it is not in the interests of victims to investigate or prosecute. [FN152] In any event, even if a broader view is adopted, it is difficult to argue that prosecution is not in the interests of victims. In the case of ac-tual victims, it does not presuppose an absence of other reparative benefits. In the case of future victims, it might prevent that perpetrator from committing further violations. [FN153] Upon the limited subset of factors, the interests of justice would not accommodate amnesty.

Whether the role of perpetrators is relevant depends upon whether the role regards their con-duct in relation to the crime, their position in the organization to which they belong, or the con-flict. If role is to be relevant to amnesty, the Prosecutor must be able to take a perpetrator's posi-tion into account. If a *260 perpetrator's role were relevant to amnesty, it would not be possible to adopt an entirely expansive approach that defers to all amnesties because the role in itself re-quires distinction between perpetrators. Role, in this regard, is relevant in one of two ways. On the one hand, if amnesty granted to an authoritative figure facilitates peace by permitting them to engage in negotiations without fear of prosecution, a less restrictive view would find it not in the interests of justice to proceed with an investigation or prosecution. The Prosecutor might take the role of the perpetrator into account by deferring to amnesties for individuals with authority to ne-gotiate peace agreements. On the other hand, prosecuting authoritative figures might prevent them from committing further violations. The prosecutor might then prosecute only those most



responsible, but not low-level perpetrators.

There is value in targeting those with authority and effective control to condone or effectuate crimes because it may provide the only deterrent: making government and rebel leaders aware of the possibility of prosecution might lead to fewer violations. [FN154] In Uganda, Kony's re-moval is vital to making the LRA ineffectual, as he “stands at the apex of the LRA structure, po-litically, militarily, and spiritually.” [FN155] The situation in Sudan is more complicated because government leaders have been indicted, and instability in Darfur entrenches al-Bashir and other government leaders' positions (by preventing a unified front in the region). [FN156] If those in-dicted were arrested and successfully prosecuted, it is possible that regime change (and possible international intervention) could reduce crime and even stabilize the region.

The difficulty with this approach is that international courts and tribunals have tended to commence their investigations by focusing on lower level perpetrators in order to extract evi-dence to build their case against more senior officials. [FN157] Like the ad hoc tribunals, the ICC has statute-based mechanisms by which it can obtain evidence to build its case. For exam-ple, Article 93 provides that states' parties must assist the ICC with evidence gathering, including the taking of witness statements, execution of searches and seizures, and the provision of records and documents. [FN158] Gathering evidence necessarily relies on state support, initially prof-fered by Uganda, but not at all by Sudan.

How the Prosecutor and the Court might consider role can be deduced from the Appeals Chamber's decision in the Lubanga case. [FN159] While the case dealt with *261 the role of the perpetrator in relation to gravity, [FN160] it discussed the relevant perpetrator's authority when determining the appropriateness of commencing an investigation and prosecution. [FN161] In considering gravity, the Pre-Trial Chamber held that the ICC's “deterrent effect would be greatest if [it] only dealt with the highest-ranking perpetrators” because they “are the ones who can most effectively prevent or stop the commission of such crimes.” [FN162] Those “most senior lead-ers” could be identified by: (1) the position played by the accused; (2) their role in systemic or large-scale crimes; and (3) the role of state entities, organizations or armed groups. [FN163] On appeal, the Prosecutor opposed this test because he said it would:

[I]nappropriately limit his Prosecutorial discretion and would make it impossible to in-vestigate and prosecute perpetrators lower down the chain of command. . .; the investiga-tion and prosecution of low and mid-level perpetrators may in certain circumstances be necessary to generate evidence and build a case against the perpetrators on the highest level. [FN164]

He went on to argue that:

[T]he Pre-Trial Chamber improperly placed emphasis on the authority of suspects to negotiate and sign peace agreements, and. . . improperly created a criterion that suspects



have to be core actors in the decision-making process of policies or practices or have auton-omy to change or to prevent the implementation of policies and practices. [FN165]

The Appeals Chamber agreed. It found that it is “more logical to assume that the deterrent effect of the Court is highest if no category of perpetrators is per se excluded from potentially be-ing brought before the court,” [FN166] and the “capacity of individuals to prevent crimes in the field should not be implicitly or inadvertently assimilated to the preventative role of the Court more generally.” [FN167] The Appeals *262 Chamber found that the criteria developed by the Pre-Trial Chamber ignored that “the highly variable constitutions and operations of different or-ganizations could encourage any future perpetrators to avoid criminal responsibility before the [ICC] simply by ensuring that they are not a visible part of the high-level decision making process.” [FN168] It emphasized that “individuals who are not at the very top of an organization may still carry a considerable influence and commit, or generate the widespread commission of, very serious crimes.” [FN169] Consequently, the Appeals Chamber found the factors related to role identified by the Pre-Trial Chamber were “not necessarily directly related to gravity in arti-cle 17(1)(d).” [FN170]

The Prosecutor and the Court were concerned that: (1) the authority and influence of indi-viduals is highly variable and may not be determined by ranking within an organization or in a situation, and (2) regard to role in an organization or conflict would detract from the preventative and punitive goals of the Court. [FN171] Even though the decision concerned gravity, these prin-ciples are highly pertinent to the scope and relevance of role more generally. The case indicates that not only the Prosecutor, but also the Court, will adopt the more restrictive approach; that is, that role relates to the crime rather than the perpetrator's authority and influence. [FN172] Adopt-ing a middle road, where only amnesty for those most responsible is upheld, is not a viable op-tion.

b. Other Factors

While subject to debate, the Prosecutor may take into account other grounds at both the in-vestigation and prosecution stages. In determining whether to investigate, the Prosecutor must consider whether he has substantial reasons to believe investigation would not serve the interests of justice, even when taking into account the gravity of the crime and the interests of victims. [FN173] Additional factors are required to determine whether the Prosecutor can demonstrate substantial reasons. [FN174] Article 53(2)(c) adopts a more straightforward approach in its use of the word “including.” Additional gaps in Article 53 lend support to a broad discretion to con-sider the additional political and social factors identified above. [FN175]

*263 The factors that may be taken into account depend upon what we mean by justice. There are three ways in which we might define it: (1) as a term of law limited to retributive jus-tice (as per article 17); (2) as a term of law which has been broadened by state practice to incor-porate peace building, reconciliation, and reparation; or (3) where law has not been broadened by



state practice, as a term incorporating legal, political, and social factors. [FN176] The first and most restrictive view would limit justice to retributive justice. As noted in the introduction, the second approach is unclear as a matter of customary international law. The third and expansive approach leaves scope for amnesties to be accommodated. [FN177]

Many scholars put forward grounds supporting an expansive view. [FN178] According to Ohlin, “it is difficult to think of a factor that would not be relevant.” [FN179] Gropengießer and Meißner concur, arguing that the interests of justice incorporate more than “just criminali[z]ation of an offence, because the circumstances of the offence, the perpetrator, and the victim can be outweighed by other factors not related to wrongfulness and guilt.” [FN180] According to their interpretation, justice incorporates “a peaceful society.” [FN181] Bourdon notes that the statute drafters “wished. . . to give ‘carte blanche’ to the Prosecutor to take a decision which is quite clearly entirely political, namely a decision in the course of which he would have to weigh the requirement of peace and reconciliation on the one hand against the need for justice on the other.” [FN182] Goldstone and Fritz agree that “few would aver that [justice] is demanding in the sense that it is always retributive.” [FN183] According to these scholars, the expansive ap-proach allows the Prosecutor to consider broader goals such as amnesty's contribution to effect-ing *264 conflict resolution, reconciling communities, eliciting truth about and causes of the conflict, in addition to a need for certainty and stability (post-conflict) to maintain the rule of law.

Many others opt for the more restrictive approach. [FN184] While ICC's Office of the Prose-cutor's Policy Paper on the Interests of Justice dealt with amnesty in passing, it comprehensively set out the grounds for adopting a more restrictive approach. [FN185] The Prosecutor submits that justice contributes to peace, which he reinforces with the statement made by the Secretary General of the United Nations that “[j]ustice, peace and democracy are not mutually exclusive objectives, but rather mutually reinforcing imperatives.” [FN186] Discretion is to be guided by the objects and purposes of the Statute, “namely the prevention of serious crimes of concern to the international community through ending impunity” and the guarantee of “lasting respect for and enforcement of international justice.” [FN187] The Prosecutor's conclusion is buttressed by the consistent trend in the last ten to fifteen years of imposing a duty on states to prosecute, which indicates that the pursuit of justice is not a question of whether we agree or disagree in moral or practical terms, but a matter of the law. [FN188] The policy is explicit that the ICC's justice mandate (i.e. to prosecute) must be carried out independently and that, for all other mat-ters involving the interaction of humanitarian, security, political, development, and justice ele-ments, the OTP will “work constructively with and respect the mandates of those engaged in other areas.” [FN189] While the interests of justice accommodate “crime prevention and secu-rity[,]. . . the broader matter of international peace and security is not the responsibility of the Prosecutor” but that of the Security Council. [FN190] Factors which might then be taken into ac-count in this restrictive approach would include those already identified by the objects of the statute, such as the prevention of impunity. The Prosecutor might then decide it is not in the in-



terests of justice to proceed where the victims have already obtained some form of reparation, the perpetrator is a low-level offender who might have committed a small number of violations, in-vestigation and prosecution of the matter will not extract evidence that might be useful in cases against more senior figures, and refraining from prosecution will not contribute to widespread impunity and lawlessness.

Before going on to consider how the Security Council and the situations in four countries af-fect the application of these approaches, there are three restrictions on Prosecutorial discretion that impact additional factors and might be taken into account. First, while it is desirable to ac-commodate all other relevant factors, it is necessary to exclude factors that are explicitly or im-pliedly taken into account by *265 the interests of victims and the role of the perpetrator. These would include consideration of the Prosecutor's impact upon potential future victims, i.e. the pos-sibility that prosecution might lead to further violations, and whether the perpetrator might be in a position to effect peace negotiations. Further, the factors must demonstrate that it is not in the interests of justice to investigate or prosecute. Second, because of the explicit phrase “under this Statute” in the chapeau of Article 53(1), when making decisions the Prosecutor must take into account the Statute's preambular objectives of ensuring that the most serious crimes do not go unpunished, effective prosecution is ensured, and ICC prosecutions are complementary to na-tional criminal jurisdiction, put an end to impunity, and guarantee lasting respect for the enforce-ment of international justice. [FN191] What justice might mean is justice in the international rather than domestic sense; according to the weight of state practice, international justice gener-ally requires criminal prosecution and punishment. Third, Articles 53(1)(c) and 2(c) adopt a higher burden of proof at both the investigation and prosecution stage. [FN192] The chapeau of Article 53(1) requires the Prosecutor to have a reasonable basis to refrain from investigating. [FN193] However, reasonable basis upon investigation is raised to reasonable grounds at the ar-rest warrant stage (Article 58) and substantial reasons and sufficient basis at the confirmation of indictment stage (Article 53(1)(c) and 2(c) respectively). [FN194] On their ordinary meaning, substantial and sufficient require more than “reasonable.” [FN195] The Prosecutor must have more than suspicion that a prosecution (irrespective of whether amnesty had been granted) would impact upon peace negotiations. [FN196] Fourth, and as discussed in relation to the interests of victims, the factors should be limited to matters “directly bearing on the case itself,” that is, the individual matter rather than the broad situation. [FN197] This might be supported by the sub-stantial reasons test, because a more expansive approach would require a considerable amount of speculation regarding tenuous connections between potential victims and the effects of investiga-tion and prosecution. Individualization is consistent with the scope of the other factors that the Prosecutor may take into account including the role and age of the perpetrator, and the gravity of the crime, which are necessarily individual in nature. This *266 limitation alone could exclude amnesty from consideration because it requires the Prosecutor to consider the impact of prosecu-tion of one individual on the peace process, rather than the impact of failing to give deference to national amnesties more generally.



C. The Security Council

The Security Council may request deferral of any investigation or prosecution into situations or of individuals for twelve months, irrespective of the method by which the ICC exercises juris-diction. [FN198] It may do so under two circumstances: (1) when it has issued a resolution pur-suant to Chapter VII of the UN Charter, and (2) where “deferral is consistent with the purpose and principles of the United Nations with respect to maintaining international peace and security, resolving threatening situations in conformity with principles of justice and international law, and promoting respect for human rights and fundamental freedoms under Article 24 of the UN Charter.” [FN199] While each deferral may only extend for twelve months, there is no limit to the number of times it can be renewed; [FN200] it could defer indefinitely provided there is po-litical willingness within the Security Council. Nevertheless, Chapter VII of the UN Charter lim-its the Security Council as the deferral must be justified on the grounds of peace and/or security. [FN201] When a situation has stabilized, and peace is seemingly achieved, the Security Council would lose its power to defer.

Some argue that the referral power in Article 13 nevertheless gives the Security Council greater scope to limit jurisdiction by allowing it to impose conditions on referrals of situations, and thereby allowing it to “insulate domestic amnesty arrangements from the reach of the ICC.” [FN202] However, this view is unwarranted. Even if the phrase “acting under Chapter VII” in Article 13 could be interpreted to afford the Security Council a broad power, the drafting history justifies a restrictive view. The first draft put forward by the International Law Commission (ILC) in 1994 provided that the ICC could not exercise jurisdiction over a situation where the Se-curity Council was dealing with it as a threat to peace or security, unless the Security Council is -sued a resolution. [FN203] Some ILC members opposed the provision on the basis that it was in-appropriate that a political decision of another forum could prevent the Court from operating. [FN204] Investigations and prosecutions upon referral or propio motu were introduced and the Security *267 Council's power was restricted to 12-month deferrals. [FN205]

Whether the Security Council would exercise its deferral power on the basis of amnesty is likely to depend upon the means by which the ICC came to exercise jurisdiction. It is difficult to reconcile deferral with a prior referral by the Security Council, such as in the case of Darfur, be-cause referral assumes that exercising international criminal jurisdiction contributes to peace. [FN206] It is also unlikely that the Security Council would defer a matter where a state had re-ferred the situation, unless that state made a subsequent request for it to do so. There are few ob-vious constraints impeding Security Council intervention in the case of a propio motu investiga-tion [FN207] other than a desire to maintain the perception of prosecutorial independence.

While the Security Council has been willing over the last two decades to intervene in con-flicts that will fall within the ICC's jurisdiction on the basis that they are a threat to peace and se-curity, [FN208] the threshold might be such that the power would very rarely be used [FN209] in



general, let alone for amnesty. Moreover, it is unlikely that the Security Council would vote for repeated and indefinite deferrals affecting the long-term ability of the Court to exercise jurisdic-tion. The consequence of a Security Council deferral is, at least in the short-term, a political one. It might add legitimacy to amnesties as a tool for ensuring peace and security, and strengthen the position of advocates of amnesty. However, in the face of eventual prosecution, the political im-pact is unlikely to lead to a customary norm in favor of amnesty, particularly given the debate re-garding amnesties for serious crimes is more concerned with conditions imposed on the amnesties rather than on permission or prohibition per se. [FN210]

If the Security Council required deferral, the Prosecutor could challenge the resolution in the Pre-Trial Chamber. It is arguable that the Court would not be constrained by a Security Council resolution because it retains competence de la competence: the competence to determine its own jurisdiction over rationae loci and rationae personae. [FN211] It is not a subsidiary body. Rather, it “wrest[s] some powers from the [Security Council].” [FN212] If this were the case, the deci-sion whether to uphold an amnesty turns on: (1) whether the Security Council has jurisdiction to *268 exercise its powers, and (2) whether it has done so in a way consistent with the purposes and principles of the UN Charter.

In regards to the first, it is debatable whether the Pre-Trial Chamber has the competence to determine the existence of a threat to peace or an act of aggression, as these are primarily politi -cal determinations. [FN213] States have conferred primary responsibility to the Security Council for the maintenance of peace and security. [FN214] According to Bergsmo, the ICC Statute does not and could not weaken the Council's ability to fulfill its obligations under the UN Charter; rather, the Court becomes a tool for maintaining peace and security. [FN215] While seemingly inconsistent with the independence of the Court, as a matter of constitutional order, authority to assess threats to peace and security could be an inappropriate extension of power in determining admissibility. [FN216] This is not to say that support for a residual power to determine whether the Security Council resolution is consistent with the purposes and principles of the UN isn't warranted. The competence de la competence of international judicial institutions to review Se-curity Council resolutions was upheld in the International Criminal Tribunal for the Former Yu-goslavia's (ICTY) Tadic case, [FN217] and the International Court of Justice's Namibia, Wall, and Serbia cases. [FN218] The Court's power of review would be limited to assessing its own ju-risdiction, [FN219] and the extent to which a Security Council resolution complies with article 16 of the Rome Statute, [FN220] such as to determine *269 whether it constitutes “an abuse of authority. . . or [an] obvious and grave deficiency.” [FN221] Determining an abuse of process or grave deficiency would allow the Court to find that the resolution was unfounded because it was clearly outside Security Council power. The Court could also find that the resolution was incon-sistent with the purposes and principles of the UN as required by Article 24, paragraph 2 of the UN Charter, [FN222] where the Security Council attempted to resolve a threatening situation in a way that is inconsistent with “justice and international law,” [FN223] a legal rather than politi-cal determination. This would require an assessment of the status of amnesties under interna-



tional law. [FN224] It is arguable that the Court can find a resolution invalid if it does not take into account the jus cogens character of an obligation or a duty to prosecute. [FN225]

How this issue is resolved may still depend upon the international constitutional order, the hierarchical status between member states, the Security Council, and the ICC. According to Gropengießer and Meißner, any findings by the Court would be binding on ratifying states since they have subjected themselves to its authority. [FN226] However, states are also bound by Se-curity Council resolutions pursuant to Article 103 of the UN Charter, which provides that “[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” [FN227] Security Council resolutions have a hierarchi-cal supremacy over international treaties. [FN228]

One view is that, to the extent that a resolution would require a state to take or not take ac-tion, it would only bind that member state and not the ICC, which has a distinct legal personality. [FN229] The Security Council cannot operate beyond its own powers to require the ICC to act inconsistently with its own treaty obligations. The court retains authority to determine whether Article 16 was complied with [FN230] *270 because neither member State obligations nor Secu-rity Council Resolutions could alter its treaty-based obligations. [FN231]

The alternate view is put forward by Gropengießer and Meißner, who argue that member states cannot contract out of the UN Charter and Security Council obligations by creating an in-ternational organization, and that any such international organization is indirectly bound by the obligations of its member states. [FN232] That resolutions are directed at the ICC rather than member states might be resolved by Cassese who described an analogous institution, the ICTY, as a “giant without arms and legs - it needs artificial limbs to walk and work. And those artificial limbs are state authorities.” [FN233] The ICC becomes a conglomeration of member states. Sa-rooshi adds that the retention of Security Council “veto” rights supports the retention of Security Council discretion because states could merely have required a referral without a Chapter VII resolution. [FN234] That referral required such a resolution could indicate an intention to pro-vide the Security Council with authority over the ICC. This is nevertheless resolved by accepting that the Court has the authority to determine whether the Security Council acted in excess of its power because as a judicial body, it is distinguished from member states. [FN235] The ICC ful-fills a judicial function in an international separation of powers, and the Security Council the ex-ecutive. [FN236] Member states will be bound by court decisions because the resolution would not be lawful and would not withstand Article 103 of the UN Charter.

Whether the Pre-Trial Chamber will adopt a cautious approach is yet to be seen; the paradox is that, while politicization might threaten the ICC's legitimacy, it needs political backing to maintain it. Nevertheless, as Ohlin notes, it might be “highly unlikely that the [ICC] will be staffed by sitting judges who are inclined to take the conservative legal view that the Court - an



independent judicial body - must bow to determinations made by the Security Council, an explic-itly political legal body.” [FN237]

D. Summary

If the Prosecutor defers to amnesties granted by truth commissions in terms of admissibility, he must find that they satisfy two things: (1) the terms investigation and decision, or (2) the re-quirement of ne bis in idem. [FN238] In either case, they must *271 also demonstrate a willing-ness to bring a perpetrator to justice. [FN239] The first ground is arguable if investigation and decision do not require prosecution to be the objective of investigation (albeit unlikely given the intersection of investigation and prosecution in the statute). The second ground, ne bis in idem, is likely to fail largely because a truth commission does not have the power to convict or acquit. Even if either of those grounds were satisfied, a conditional amnesty granted by a truth commis-sion will not satisfy admissibility because amnesty cannot do anything other than shield a perpe-trator from prosecution and from retributive justice. The only avenue open to the Prosecutor to defer to amnesty is to find that it is in the interests of justice because: (1) justice is a term of law which has been broadened by state practice to incorporate peace building, reconciliation, and reparation; or (2) justice is a term incorporating legal, political, and social factors. [FN240] How the Prosecutor or the Pre-Trial Chamber might decide the latter could be informed by assessing the functional and structural significance of Security Council power. The residual deferral power of the Security Council indicates that the ICC's role is to, as contended by Gareth Evans, inter-pret its rationae personae as a purely legal matter to the exclusion of world, regional, or domestic politics. [FN241] The Security Council retains the power to trump ICC jurisdiction for a determi-nate period where policy matters prevail. [FN242]

II. Case Studies

In order to consider whether the Prosecutor can or should adopt an expansive view of the in-terests of justice, it is necessary to place the framework outlined in context by examining the sit-uations of Darfur and Uganda, which are currently subject to ICC jurisdiction, and Sierra Leone and South Africa, which offered amnesties in conjunction with domestic or international prose-cution.

A. Darfur

The conflicts plaguing the South, West (Darfur), and East of Sudan since the 1980's evolved out of increasing marginalization of periphery communities from the centralized government led by General Omar al-Bashir. [FN243] Al-Bashir's military dictatorship following seizure of power in 1989 neglected periphery communities and exploited the cleavage between farmers and herdsman by abolishing tribal land allocation and the governing structure; it imposed govern-ment appointed administrators and politicized the divide between Africans and Arabs. [FN244]



The *272 simmering conflict in Darfur erupted in April 2003 when the rebel groups, the Su-danese Liberation Army/Movement (SLA/M), and later the Justice and Equality Movement (JEM), attacked government forces. [FN245] When the government failed to halt the insurrection it recruited mercenaries from other countries [FN246] and re-armed, trained, and funded the Arab militia group, the Janjaweed (literally ‘devils on horseback’), and partly incorporated them into the army through the Popular Defense Force. [FN247] The Janjaweed, allegedly upon gov-ernment orders, targeted the civilian populations of the Fur, Zaghawa, and Masalit tribes to pre-vent them from joining or supporting the SLA/M and JEM. [FN248] International crimes consti-tuting crimes against humanity and war crimes [FN249] - including genocide, persecution, mur-der, rape, burning and pillaging of villages, disappearances, torture, the forced recruitment of child soldiers, and attacks on peacekeepers, humanitarian forces, [FN250] and internally dis-placed persons (IDPs) within IDP camps [FN251] - were allegedly committed by government or government backed actors. In May 2004, the Sudanese government established the National Commission of Inquiry (National Commission) to investigate alleged violations of human rights by armed groups in Darfur, which reported that all parties committed crimes, but that the num-bers of persons killed was exaggerated, and that rape and crimes of sexual violence were not widespread or systemic. [FN252] It recommended judicial investigation of specific incidents and a committee to investigate property losses. [FN253]

The international community was slow to respond. It initially turned a blind eye to Darfur with the expectation that Sudan's demonstration of good faith and resolution of the North-South conflict would serve as a precursor and model for peace. [FN254] Despite invoking Chapter VII of the UN Charter, [FN255] deference to state *273 sovereignty and ongoing economic interests meant the Security Council only provided for a limited arms embargo that failed to include the government, and therefore, the Janjaweed, but did not impose economic sanctions or support in-tervention on humanitarian grounds. [FN256] When these measures were largely ineffective, [FN257] it established a Commission of Inquiry, [FN258] which recommended that the Security Council refer the matter to the ICC on the basis that prosecution outside of the locus delicti “might ensure a neutral atmosphere and prevent the trials from stirring up political, ideological or other passions.” [FN259] The impossibility of domestic trials, it reasoned, was demonstrated by the insufficient findings of the Sudanese National Commission of Inquiry, which lacked im-partiality because it was under pressure to present a view favorable to the government. [FN260] The Security Council referred the matter to the ICC in March 2005. [FN261] On June 6th, the Prosecutor opened an investigation into the situation, noting that it would “form part of a collec-tive effort, complementing African Union and other initiatives [including traditional African mechanisms] to end the violence in Darfur and to promote justice.” [FN262]

In response to the referral, the Sudanese government created the Darfur Special Criminal Court to prosecute crimes against humanity in June 2005. [FN263] The ICC Prosecutor indicated that he would monitor its role, [FN264] but it soon became apparent that the Court would not meet the test of genuineness. [FN265]



The unwillingness of the Sudanese government to genuinely resolve the situation was fur-ther demonstrated by the Darfur Peace Agreement negotiated by the Sudanese government in May 2006 in Abuja. [FN266] The agreement failed largely because the government insisted that the Comprehensive Peace Agreement for the North-South conflict define the boundaries of the Darfur agreement, which left little room for negotiation and indicated that the government held on to the *274 possibility of a military victory. [FN267] As a result the JEM and some factions of the SLA (which had splintered by then) did not sign it, [FN268] which the government used as a justification to attack them. [FN269] The Prosecutor consequently obtained arrests warrants for Ahmad Harun, [FN270] Ali Kushayb, [FN271] and al-Bashir on multiple counts of crimes against humanity, two counts of war crimes, and genocide. [FN272] Despite the arrest warrants, al-Bashir and his party were re-elected in 2010 amidst claims of electoral fraud. [FN273]

Two key factors hinder peace in Darfur. First, there are few clear lines dividing the various groups involved in the conflict. The Darfur agreement led to infighting in the rebel groups, and division between them and the Darfurian population. [FN274] Some Arab tribes remained neu-tral or supported the government for strategic reasons and some have fought amongst themselves over land. [FN275] There are accounts of Janjaweed fighters switching sides and attacking gov-ernment forces, possibly for fear of being used as scapegoats by them. [FN276] The interchange and division between groups supports the finding that the divide is a political rather than an eth-nic one. Second, the Darfur situation cannot be isolated from the conflicts in the east and south of Sudan that were not subject to referral by the Security Council. [FN277] The peace agree-ments to which these conflicts are subject also exclude significant sections of society located in the periphery which have been *275 marginalized, exploited, and subject to the “divide and rule” policies of the Sudanese government. [FN278] Comprehensive peace in Sudan requires much more than peace in Darfur. It is convincingly posited by some that what is required in Sudan is regime change, [FN279] a goal which was not discussed in negotiations. The indictment had pos-itive and negative effects on the conflict in Darfur. On the one hand, it put international pressure on al-Bashir and the Sudanese government and reinforced the norm that no one is above the law, whether incumbent head of state or not. On the other, it served to ensure al-Bashir would do ev-erything he could to maintain power to avoid arrest. The UN Special Envoy for Sudan argued that the Security Council should consider the impact that an arrest warrant might have on the im-plementation of North-South Peace Agreement of 2005. [FN280] The African Union, the Arab League, and China called on the Security Council to intervene, arguing that an arrest warrant would complicate the peace process in Sudan and that “the need for justice should not override the need for peace.” [FN281] Costa Rica's Security Council representative, Jorge Urdina, re-sponded that the peace and justice debate is a “false dilemma,” and that the Security Council “supports peace and justice” through referring the case to the ICC. [FN282] The Security Coun-cil declined to vote on the matter, and an arrest warrant was issued on March 4th, 2009. [FN283] In response, al-Bashir suspended the operation of aid groups, leaving many Darfurians and IDPs without access to food, water, or health care services, [FN284] and there were subsequent reports



of attacks on foreign aid workers. [FN285] The arrest warrants also had the effect of drumming up the support of the local population, although, notably, only in Khartoum. [FN286] The con-flict was complicated by a dispute between Sudan and Chad in which each side accused the other of “aiding rebels to topple their respective governments.” [FN287] An agreement to “normalize relations” signed between the respective governments in Doha in May 2009 was *276 subse-quently breached; [FN288] collapse of the agreement would serve to complicate and exacerbate the conflict in Darfur.

B. Uganda

Uganda has a long history of repression. British Colonial rule was followed by Milton Obote's dictatorial rule from 1962, Major-General Idi Amin's military rule from 1971, and a re-turn to Obote rule in 1980. [FN289] The rigged elections returning Obote to power sparked a six-year civil war between Acholi forces in the north (representing the government) and the National Resistance Army led by Yoweri Kaguta Museveni in the south. [FN290] In a military coup in 1986, Museveni gained control of the capital. [FN291] In 1996, he banned political parties, and the one-party system was extended by referendum in 2000. [FN292] Following the 1986 coup, Joseph Kony formed the Lord's Resistance Army (LRA) to fight the Museveni led government, [FN293] and from its Sudanese base, started targeting the local population in northern Uganda. [FN294] Its members allegedly committed crimes against humanity and war crimes, including abduction, murder, rape, attacks on IDP camps, torture, forcible relocation, and child recruitment and enslavement. [FN295] The conflict caused the death of around 100,000 civilians and the dis-placement of up to two million. [FN296] The LRA does not have a popular base of support be-cause it targets civilians, and abducts and conscripts children. [FN297] According to some sources, the LRA leadership contains around 150 to 200 commanders, with the remaining 1000 to 3000 members consisting of abducted children. [FN298]

In 2000 the Ugandan government passed the Amnesty Act in an attempt to abate the con-flict. [FN299] Blanket amnesty was granted to those engaged in “war or *277 armed rebellion” against the government for acts committed between January 16th, 1986 and the expiry of the Act. [FN300] Amnesty prevents criminal [FN301] prosecution for all offences provided the par-ticipant reports to the authorities, renounces and abandons involvement in the rebellion, and sur-renders their weapons. [FN302] An Amnesty Committee was established to “consider and pro-mote appropriate reconciliation mechanisms in the affected areas,” “promote dialogue and recon-ciliation within the spirit of [the] Act,” “monitor progra[ms] of demobilization, reintegration[,] and resettlement of ‘reporters,”’ and “co-ordinate a progra[m] of sensitization of the general pub-lic.” [FN303] The Committee was neither required nor empowered to investigate any conduct for which an amnesty is granted. [FN304] The Act was generally supported by the population and by non-government organizations and various states as a mechanism for reconciliation. [FN305] It resulted in around 21,000 reporters surrendering arms and renouncing the LRA, [FN306] but failed to attract high-level commanders. [FN307] It therefore failed to achieve its primary pream-



bular objectives of facilitating peace and democracy [FN308] because the structure and mandate of the LRA remained intact, and violence continued after a short period of abatement. [FN309]

In December 2003, President Museveni referred the situation to the ICC. [FN310] The ICC issued arrest warrants for Joseph Kony and four other senior figures, Vincent Otti, Okot Odhi-ambo, Dominic Ongwen, and the now deceased Raska Lukwiay, [FN311] on multiple counts of crimes against humanity and war crimes. [FN312] The *278 LRA allegedly responded to the in-dictments by burning villages and IDP camps, killing at least 337 people. [FN313] After issuance of arrest warrants in October 2005, the LRA attacked foreign aid workers, killing at least six peo-ple. [FN314] However, the UN reported that, after a period of renewed violence, matters im-proved. [FN315] The ICC Prosecutor submitted that the arrest warrants also led to an overall de-crease in violence in northern Uganda: [FN316]

The Court's intervention has galvanized the activities of the states concerned. . . . Thanks to the unity of purpose of these states, the LRA has been forced to flee its safe haven in southern Sudan and has moved its headquarters to the DRC border.

As a consequence, crimes allegedly committed by the LRA in Northern Uganda have drasti-cally decreased. . . . The loss of their safe haven led the LRA commanders to engage in negotia-tions, resulting in a cessation of hostilities agreement in August 2006. [FN317]

The reduction in violence, albeit swinging, was linked to the advantages the referral offered Museveni. It posed a credible threat of prosecution by raising the conflict's international profile and transferring the political and economic costs of prosecution to international actors. [FN318] Not only did referral and subsequent arrest warrants lead to the LRA's political and military iso-lation and incapacitation, [FN319] but resultant international pressure meant both sides had to genuinely participate in peace talks. Negotiations in Juba began on July 14th, 2006, [FN320] re-sulting in an agreement to cease hostilities that took effect on August 29th, 2006 and was revised on November 1, 2006 after renewed violence. [FN321]

While the arrest warrants served to compel negotiation, they were also a stumbling block be-cause LRA was soon negotiating for a withdrawal of the arrest warrants in return for peace. [FN322] The Prosecutor refused to bow to pressure on the *279 basis that withdrawal was incon-sistent with the Rome Statute. [FN323] In 2006, after initially promising immunity from ICC prosecution, Museveni supported the arrest warrants but extended the availability of amnesty for another two years. [FN324] When the arrest warrants were not withdrawn, Kony offered to sub-mit cases to the domestic jurisdiction as an alternative. [FN325] In June 2007, the LRA and the Ugandan government agreed to a range of accountability measures, including domestic civil and criminal prosecutions, traditional justice mechanisms, [FN326] and a range of alternative sen-tences reflecting the gravity of the crimes and seeking to promote reconciliation, rehabilitation, and reparations. [FN327] The 2007 agreement was bolstered by further discussions in February 2008, which led to an agreement for the establishment of a “special division of the High Court of



Uganda. . . to try individuals who are alleged to have committed serious crimes during the con-flict,” [FN328] “planned or carried out widespread, systematic, or serious attacks directed against civilians or. . . committed grave breaches of the Geneva Conventions.” [FN329] The agreement also provides that the government will examine traditional justice mechanisms and es-tablish a truth-seeking body akin to the truth and reconciliation commissions of Sierra Leone and South Africa. [FN330]

While these have been significantly positive developments, settlement discussions are still ongoing and a conclusion to the conflict remains “elusive.” [FN331] This is partly because “Kony and Otti have no serious interest in negotiations except perhaps as a means of buying time when under pressure.” [FN332] Prosecutor Moreno-Ocampo argues that Kony strategically uses peace negotiations to avoid arrest and prosecution when he is in a weak position, and returns to violence when strengthened. [FN333] The commission of serious crimes therefore continues. In December and January, the LRA abducted and massacred hundreds of civilians and children. [FN334] In February 2009, the government launched a US backed offensive *280 aiming to crush the LRA, which was hiding in northern Congo. [FN335] The plan backfired when the lead-ers escaped and the LRA splintered into small groups that went through towns “in northeastern Congo hacking, burning, shooting and clubbing to death anyone in their way.” [FN336] Despite poor planning being responsible for many of the operation's failures, the reaction of the LRA demonstrates that neither amnesty, nor threat of prosecution, has prevented the continuing com-mission of atrocities. [FN337] The Ugandan government maintains that, since Kony refused to sign the most recent peace treaty, the only available option is a military one. [FN338]

C. Sierra Leone

Conflict erupted in Sierra Leone when Liberian forces, accompanied by the Revolutionary United Front (RUF), the Armed Forces Revolutionary Council (AFRC), and forces from Guinea, Burkina Faso, and Libya, invaded the diamond fields in the remote east of the country. [FN339]The resultant war was brutal. Atrocities, including mass rape, sexual slavery, forced rape of fam-ily members, child abduction, torture, killing of civilians, maiming (by cutting off arms, legs, ears, and lips), and mass displacement, [FN340] resulted in the physical and psychological scar-ring of a significant section of the population. [FN341] The RUF, the dominant rebel group, did not “articulate. . . a political agenda other than ousting successive governments.” [FN342] It is nevertheless largely accepted that rampant corruption, centralization of government, unemploy-ment, and “ethnocization of national policies” were causal factors in the conflict. [FN343]

In November 1996, the RUF and President Kabbah's Sierra Leone's Peoples Party (SLPP) signed the Abidjan Peace Accord, which provided that, in return for peace and disarmament, members of the RUF would not be prosecuted, all political prisoners would be released, and the RUF would be afforded the opportunity to transform itself into a political party with representa-tion before domestic bodies. [FN344] Nevertheless, the RUF continued to perpetrate atrocities



against the civilian *281 population. In 1997 the AFRC staged a coup, but was ousted in 1998 by the Security Council endorsed Economic Community of West African States Monitoring Group (ECOMOG) and President Kabbah was restored to power. [FN345] When the government was again overthrown in 1999, Kabbah returned to the negotiation table under international pressure. [FN346] On July 7th, 1999, the government, the RUF and the AFRC signed the Lomé Accord. [FN347] It transformed the RUF into a political party whose members would be appointed to public office and cabinet. [FN348] It also granted Foday Sankoh, the RUF leader, an explicit par-don, [FN349] gave “absolute and free pardon and reprieve to all combatants and collaborators in respect of anything done by them,” [FN350] and provided for the creation of a Truth and Recon-ciliation Commission (the SLTRC). [FN351] The agreement stated that amnesty was granted “[t]o consolidate the peace and promote the cause of national reconciliation.” [FN352] Prior to the agreement, prosecutions and executions had taken place for actions related to the 1997 coup. [FN353] The RUF had therefore faced a real threat of prosecution. [FN354] It was clear to all parties that the RUF, and Foday Sankoh in particular, would not have signed the agreement with-out amnesty. [FN355] According to Hayner, there was local support for amnesty provided it led to cessation of violence, [FN356] but the international community condemned it. The Special Representative for the UN was instructed at the last minute to insert a reservation declaring that the amnesty would not apply to genocide, crimes against humanity, war crimes, and other serious violations of international humanitarian law. [FN357] Foday Sankoh was not aware of the reser-vation until after he signed the document. [FN358]

Constraining amnesty by imposing conditions on its availability was never seriously consid-ered. [FN359] The Truth and Reconciliation Commission Act 2000 (SLTRC Act) provided a fo-rum for perpetrators and victims to tell their stories *282 without offering the carrot of amnesty. [FN360] The SLTRC aimed, among other things, “to address impunity,. . . to promote healing and reconciliation and to prevent a repetition of the violations and abuses suffered.” [FN361] The SLTRC could “investigate all or any abuses and violations of human rights and international humanitarian law related to the armed conflict in Sierra Leone.” [FN362]

Ongoing disputes between the parties led to a breakdown of the ceasefire, resurgence in vio-lence, and repeated violations of the terms of the Accord. [FN363] When it became clear that the “RUF had no intention of allowing peace to reign in Sierra Leone and, in particular, letting the UN take control of the country's diamond-rich areas,” [FN364] an agreement between the United Nations and Sierra Leone, [FN365] ratified pursuant to the Special Court Agreement (Ratifica-tion) Act 2002, established the Special Court for Sierra Leone (SCSL) with a mandate to try those “who bear the greatest responsibility for serious violations of international humanitarian law and the laws of Sierra Leone.” [FN366]

While conducting investigations, the Prosecutor of the SCSL and his team determined that it would be necessary to arrest all indictees simultaneously “because arresting the key players one at a time would be political suicide”; the indictees might rally support, return to violence, and se-



cure their positions so as to *283 prevent arrest. [FN367] The covert operation, coined “Opera-tion Justice,” involved the cooperation of several local, regional, and international actors includ-ing diplomats, the Chief of Staff of the UN peacekeeping force, and the Inspector-General of the Sierra Leone National Police. [FN368] The indictments and arrest warrants were sealed, and all indictees (with the exception of Charles Taylor) were arrested simultaneously on March 10th, 2003, without a shot fired. [FN369] While serious problems persist, including corruption, serious rule of law deficiencies, and a poor human rights record, [FN370] mass violence has been abated thus far and, as according to reports, the groups most responsible for the atrocities have been dis-abled. [FN371]

D. South Africa

The minority rule of the apartheid State was characterized by legalized racial discrimination of groups defined “on a territorial, residential, political, social, and economic basis” in all areas of life including land, housing, education, health, and access to services and premises. [FN372] The resultant conflict spanning four decades led to extensive human rights violations, including arbitrary imprisonment, forced displacement, denationalization, torture, disappearances, killings, and other human rights violations. [FN373] When oppression heightened in the 1970's and 1980's, the African National Congress (ANC) established Umkhonto we Sizwe (literally “spear of the nation”), a military wing engaged in guerrilla warfare. [FN374] The increasing public face of violence and resultant international pressure in the 1980s led the National Party to abandon movement control laws, un-ban political parties, and release political prisoners. [FN375] In 1990, the National Party initiated secret negotiations with ANC leader Nelson Mandela, [FN376]and Parliament enacted the Indemnity Act, [FN377] by which the President could pronounce op-pressed persons *284 indemnified for conduct if necessary for negotiation of peace. [FN378] In democratic elections in 1994, the ANC gained power and Mandela was elected president. [FN379]

Peace negotiations gave rise to a political compromise: free and fair elections in exchange for conditional amnesty. [FN380] The 1993 Interim Constitution and the SATRC Act provided that amnesty from civil and criminal liability [FN381] could be granted for offenses “associated with a political objective and committed in the course of the conflicts of the past.” [FN382] The SATRC granted amnesty to applicants that gave “a full account of what they had done and the context within which it was done,” where their act was associated with a political objective. [FN383] Accordingly, applicants must have demonstrated that they “acted in support of a pub-licly known political organization, the state, or in furtherance of a coup d'etat.” [FN384] While around 9,000 applications were received, [FN385] the posited success of the judicial stick and TRC carrot was limited by the very few applications received from government operatives. [FN386]

The SATRC was lauded in some quarters, and quietly accepted in others. [FN387] Some



praised the approach as a domestic solution, based on “the African notion of ubuntu, which ex-plicitly excludes retribution and favors restorative justice.” [FN388] Others were more pragmatic in their support. Senior generals of the security forces warned that “dire consequences [would re-sult] if members of those forces had to face compulsory trials and prosecutions after the elec-tion.” [FN389] Some, like Archbishop Desmond Tutu, the SATRC Chairperson, and Justice Richard Goldstone, [FN390] were convinced that criminal trials like Nuremberg were not appro-priate because they would have been sabotaged by security forces and right wing groups, and ne-gotiations would have broken down. [FN391] In the middle of the spectrum, the UN General As-sembly was silent on amnesty despite having *285 previously called for prosecutions. [FN392] There were nevertheless many who opposed amnesty, so much so that they brought an unsuc-cessful constitutional challenge. [FN393]

On the one hand, supporters of the SATRC were vindicated. According to Black, “South Africa's transition from racial authoritarianism of the apartheid era to the non-racial democratic institutions and entrenched constitutional rights of the post-1994 period is. . . one of the great hu-man rights triumphs of the post-Second World War era.” [FN394] This is undoubtedly due the significant role the SATRC played in airing dirty laundry, identifying those responsible, estab-lishing a historical record to prevent future denials, offering a forum for victims and their fami-lies to be given a voice, and providing some form of financial reparations to those most affected by apartheid policies. [FN395] The success of the transition must also be attributed to the exem-plary role played by senior figures such as Mandela in adopting a conciliatory, forgiving, and pragmatic position in peace negotiations. [FN396]

On the other hand, whether the model will play a real and lasting contribution in combating impunity in South Africa is yet to be seen. Its intention was that those who were not granted amnesty would be subject to investigation, and possibly prosecution, by the South African Na-tional Prosecuting Authority (NPA). [FN397] Since the close of its operations, and despite refer-ral of around 900 cases, only a handful have been subject to investigation and prosecution, and many of those have been unsuccessful or unsatisfactory. [FN398] The NPA's reluctance to pur-sue apartheid crimes has been apparent since the completion of the SATRC's work. In 2002, then President Mbeki granted pardon to thirty-three persons who fought against *286 apartheid, some of whom had either applied for amnesty and been rejected or been convicted of murder. [FN399]In 2005, the NPA issued guidelines for prosecuting apartheid era offenses, which allow the Min-ister to grant amnesty, without publication, under specified conditions. [FN400] While the fac-tors that may be taken into account are substantially similar to those considered by the TRC, the Minister may also consider whether the NPA has the resources to investigate and prosecute the matter. [FN401] In a successful Constitutional Court challenge to the policy [FN402] the South African High Court found that it amounted to an unlawful “copy or duplication” of the TRC amnesty process [FN403] because the NPA is under a constitutional obligation to prosecute when there is sufficient evidence to do so, many of the criteria were irrelevant to deciding whether to prosecute, [FN404] and the policy infringed victims' constitutional rights, such as the



rights to life, dignity, freedom, equality, and security of the person. [FN405] Despite the finding, the NPA's inability to prosecute is likely to be decisive. In a conference held by the Institute for Justice and Reconciliation in March 2006, Dr. J. P. Pretorius, an Advocate in the Priority Crimes Litigation Unit in the Department of Justice, stated that the NPA did not have investigators dedi-cated to apartheid era offenses and it was likely that not more than half a dozen cases would be prosecuted. [FN406]

The success of amnesty must be considered in the current context of mass violent crime, not connected to conflict but to a range of political, social, and *287 economic factors. [FN407] Should some of the resources directed to the SATRC have been directed to building the NPA's capacity to combat the conduct that has led to one of the highest crime rates in the world? Did impunity breed impunity? Such conclusions must be acknowledged as crude and unsophisticated. The TRC can be credited with assisting to prevent lapse into civil war and some individuals' moves from helplessness and persecution to relative hope and equality. However the crudeness of the conclusion serves the point: do we really know what the long-term outcome and impact of amnesty is on South Africa? Can we really say it hasn't led to impunity? Can we accept that those most responsible have walked free to live what may be comfortable lives without punish-ment?

III. Amnesties and the Interests of Justice

International law has not yet accommodated the political and social goals underpinning amnesties and truth commissions in justice as a term of law. Amnesties can only be upheld if the Prosecutor finds that the interests of justice do and should accommodate political and social fac-tors, and that there are substantial reasons or a sufficient basis to show that they will contribute to peace and reconcile the community. Should legal and policy reasons dictate an expansive or re-strictive approach? Is it the ICC's role to facilitate peace, or is it merely to punish wrongdoing and prevent impunity?

A. The ICC and Politics: Adopting an Expansive Approach

The factors that may be taken into account under the expansive view may be restricted by the inherent limitations in article 53 of the ICC Statute: the negative nature of the burden and its application to the individual case rather than the situation as a whole. In the interests of exploring the most expansive role that the Prosecutor might adopt, the first two grounds apply only to the limited view, but the remainder apply to all grounds that support conditional amnesties accompa-nied by truth commissions.

Amnesty is a Persuasive Bargaining Chip

As demonstrated in South Africa, amnesty can be a useful bargaining chip in peace negotia-



tions. [FN408] The Prosecutor may deter perpetrators from disarming or contribute to the re-sumption of hostilities at the post-conflict stage, and therefore the commission of more serious crimes, because he poses a real threat of arrest. [FN409] Deferring to amnesty might force lead-ers to make a choice between survival and peace. While amnesty is not presently offered in Dar-fur, some posit that the possibility of deterring violence in Darfur is now a “specious hope.” [FN410] The arrest warrant for al-Bashir has led to the withdrawal of humanitarian groups and peacekeeping forces and the creation of a “nothing-to-lose” attitude among the leaders of bel-ligerent groups has “increase[ed] the incentive to ramp up the attacks *288 and force [d] a final resolution by eliminating [civilians and rebel groups],” [FN411] arguably, strengthening al-Bashir's position. [FN412] Uganda might support amnesty where it can be shown that indict-ments have stalled peace; indeed the Ugandan government attempted to persuade the Office of the Prosecutor to suspend the indictments to allow domestic judicial processes to be put in place. [FN413] Amnesty might expedite the transition and “decrease the probability of the continuation of human rights violations.” [FN414]

Deferring to Amnesty Reduces Uncertainty

The restrictive approach creates uncertainty for parties to peace negotiations and results in the failure of amnesty as a bargaining chip. [FN415] It might become a zero sum game; greater prosecutions, less prospects for peace. Support for al-Bashir has increased since he was indicted; [FN416] certainly regional support has lessened support for the ICC. [FN417] The ICC might avoid this problem by sealing indictments and arrest warrants such as Crane did in Sierra Leone, or waiting until peace negotiations are relatively successful before investigating or prosecuting perpetrators. [FN418] However, over the long term it will become apparent that the ICC will not respect amnesty. [FN419]

Truth Commissions Advance Political Transformation

Conditional amnesty might “play a part in advancing the political transformation” [FN420] of States by mobilizing institutions and actors to submit to an accountability mechanism, identi-fying systemic causes of the conflict and actors most responsible, and making recommendations for institutional reform. [FN421] The identification of systemic causes and the self-examination that flows from truth commissions “provides a critical buffer against repeated abuses” by de-manding “civic and social transformation needed to ensure that abuses are not repeated in *289 the future” [FN422] and “building a culture of respect for human rights.” [FN423] There is little doubt that international prosecutions fail to fulfill these goals on the domestic level, if at all. [FN424] Moreover, their deterrence capacity, which “is unclear at best,” [FN425] has a limited ability to address collective consciousness that often leads to the justification of unlawful con-duct on a systemic or mass scale. [FN426] Prosecutions can hinder national reconciliation by iso-lating supporters of former regimes and pushing them into hostile subcultures. [FN427] The Ugandan model does not advance political transformation because of its unconditional nature, its



failure to ensure victim participation, and its lack of investigatory procedure, while the SATRC provides a more useful basis from which to develop a conditional amnesty model. [FN428]

Mass Atrocities, the Interests of Victims, and Recognition of Guilt

In situations in which mass atrocities have occurred, domestic and international justice sys-tems cannot investigate and punish all perpetrators. [FN429] Truth Commissions offer an alter-native that fulfills a number of goals. They provide victims with a forum within which to tell their story, confront perpetrators, and obtain reparation. They expose crimes, identify perpetra-tors, and reveal more facts than the handful of prosecutions that might be conducted, [FN430]and therefore facilitate public condemnation, respect for victims' rights, and recognition of guilt. [FN431] Moreover, they ensure that perpetrators are accountable in some way [FN432] and vic-tims are afforded some redress through confrontation, participation, and reparation.

Development of a Norm

Deferring to grants of amnesty would contribute, by default, to the crystallization of a norm of international law in which amnesty would be a recognized exception to a duty to prosecute provided it meets particular criteria. [FN433] *290 The ICC could thereby be instrumental in de-termining that criteria and play a lead role in ensuring that the model adopted meets the goals of justice.

State Control and Cultural Imperialism

A state is best placed to determine how justice mechanisms contribute to conflict resolution and reconciliation because the needs of different societies experiencing different conflicts will vary. Affording states latitude to determine appropriate solutions to conflicts ensures their sovereignty is not overborne and contributes to a broader notion of complementarity. Affording states latitude also ensures that application of the Rome Statute does not lead to cultural imperi-alism, in which western notions of criminal justice overcome more traditional and alternative ac-countability mechanisms more commonly adopted by non-western states. The international com-munity's failure to defer to sovereignty in such circumstances by insisting on prosecution can be viewed as a substitute for their failure to intervene to stop the injury because it “is not worth the cost associated with military intervention.” [FN434] On the one hand, the importance of sovereignty has lessened in the past two decades because the international community has ac-knowledged that infringements of human rights are of global concern. [FN435] However, states have failed to follow through with meaningful actions that prevent atrocities. [FN436] As a re-sult, the cost of prosecution is placed on the victims and communities of the conflicted state. [FN437]

Facilitating Information Exchanges



If the Prosecutor deferred to amnesty, he could still prosecute those who are not granted amnesty. Truth Commissions and amnesties might facilitate prosecutions through information exchange by providing the Prosecutor with lead evidence that will assist him to target investiga-tions and gather other information necessary to build his case. [FN438] They might also assist the Prosecutor to overcome language constraints and difficulties collecting local evidence. [FN439] While the information and evidence gathered by the SATRC could not be used as pro-bative *291 evidence in prosecutions, the NPA has nevertheless been able to use that information as lead evidence. [FN440] This might assist the Prosecutor to expend resources more appropri-ately on those most responsible. [FN441]

B. The ICC and Law: Adopting a Restrictive Approach

Theoretically valid arguments are put forward for an expansive approach, however, a restric-tive approach is justified. Given the negative burden imposed on the Prosecutor, the question to be answered is not whether it is in the interests of justice to prosecute, but whether it is not. Ac-cordingly, the following grounds set out the reasons why the Prosecutor should determine that it cannot be concluded that prosecution is not in the interests of justice where an amnesty has been granted.

The Rome Statute and the Norms of International Law Do Not Conclusively Support Amnesties

Article 53 of the Rome Statute does not make reference to international norms [FN442] and international duties on member states to prosecute are not binding on the ICC. [FN443] How-ever, the objects of the Rome Statute and international norms and duties should be taken into ac-count in interpretation of ambiguous treaty provisions. [FN444] If we apply a purposive ap-proach to the Rome Statute, it serves three primary goals: to combat impunity by prosecuting in-dividuals for international crimes, [FN445] to “prevent governments from shielding perpetrators from prosecution for political reasons” [FN446] and, by doing so, “restore and improve regional peace and security.” [FN447] While the last goal may be perceived as justifying amnesty where it leads to conflict resolution, the underlying presumption of the Court is that prosecution in itself contributes to peace and security, apparent in both states' rejections of immunities for heads of state or persons in official positions [FN448] and the Security Council's referral of the Darfur sit-uation to the ICC. [FN449] If we will not permit immunities, why then would we permit amnesties? The mere establishment of the ICC and state ratification contributes to a customary duty to prosecute because it indicates that “[t]he international community. . . *292 decided that justice, in the form of prosecution, must take priority over peace and national reconciliation.” [FN450] States' intention to send such a message is apparent in the preamble, which recalls “it is the duty of every State to exercise its criminal jurisdiction [as understood in relation to admissi-bility] over those responsible for international crimes.” [FN451] Moreover, the states intending



that justice meant international justice (i.e. retributive) is indicated in the preambular resolution to “guarantee lasting respect for and enforcement of international justice.” [FN452] Ratification goes some way in dispelling claims of cultural imperialism.

Despite the Rome Statute's contribution to crystallization of a norm, and despite customary and treaty based duties to prosecute some serious crimes and other jus cogens norms, a norm prohibiting or permitting amnesty per se has not yet crystallized. Except for the SATRC, no state has adopted a conditional amnesty model with comprehensive criteria; whether a State might be partly dependent on whether it views amnesty as contrary to international law. Whether it is con-trary to international law brings us back to our original question: is there a prohibition on amnesty? In regard to member states in particular, we might simply answer this question by find-ing that they have irrevocably “conferred the authority to exercise their criminal jurisdiction to the [ICC].” [FN453] This has little significance for Sudan, which is not a member state, but is relevant to Uganda, which invoked jurisdiction by referral. [FN454] In any event, this leads to the conclusion that the term “justice” has not yet been broadened as a matter of law by state prac-tice to incorporate peace building, reconciliation, and reparation. The ICC might assist crystal-lization of a norm permitting amnesty if it finds that “justice” incorporates political and social factors. However, it should not do so for three reasons. First, according to Scharf a strong argu-ment can be made that the Rome Statute does not incorporate procedural aspects of the Geneva Conventions or the Genocide Convention that require prosecution. [FN455] However, it would be incongruous for the Prosecutor to *293 apply a more permissive approach than that which states have agreed to, [FN456] or to override amnesty for crimes where a duty is imposed but not for others where it is not (i.e. crimes against humanity and war crimes). Even though the ICC ap-plies complementarity rather than universal jurisdiction, the purpose is to retain the operation of domestic criminal justice processes where possible, not to limit ICC jurisdiction with regard to personal or subject matter jurisdiction. Second, if the ICC determines what is and what is not an appropriate amnesty model, it would in fact impinge on the role of states that are, as advocates of an expansive approach might posit, better placed to determine appropriate solutions to conflicts. Third, any such determination would have adverse legal consequences on state obligations to prosecute. [FN457] The Court would serve to solidify the law on amnesties when its permissibil-ity and precise contours are still subject to debate in the international community and within states. Should states wish to permit an amnesty model, they ought not to ratify the Rome Statute on the one hand and argue for crystallization of a norm on the other. They ought, rather, to adopt explicit provisions which resolve the inter-relationship of the duties to prosecute, deference to the ICC, and grants of amnesty.

Prosecution by the ICC Facilitates a Comprehensive Approach

The ICC cannot be “a panacea for the world's ills,” [FN458] but neither can truth commis-sions nor amnesties. Adopting an expansive approach limits justice for victims because it ex-cludes retribution. South Africa is a case in point. It is doubtful that a significant percentage of



victims do not want retributive justice as well as reconciliation and reparation. Defining the in-terests of justice to exclude amnesty should not and does not presuppose the exclusion of alterna-tive justice mechanisms altogether. Rather, it permits a “three pronged approach involving the ICC. . . truth commissions,” and, where possible, national prosecutions. [FN459] The Prosecutor has recognized that traditional African mechanisms can achieve local reconciliation and be a complementary tool to the Court's efforts. [FN460] A multi-faceted approach facilitates comple-mentarity by punishing perpetrators, promoting reconciliation, and building a comprehensive picture of the situation. [FN461] Prosecution by the ICC also strengthens the rule of law in na-tional systems by compelling states to conduct domestic prosecutions, as demonstrated by the proposal of the Ugandan government to adopt a multi-layered approach involving prosecutions and traditional justice mechanisms. [FN462] Prosecution also prevents *294 revisionism by state actors [FN463] and ensures that victims' fundamental rights under international law are not in-fringed. [FN464]

Alternative mechanisms that do not grant amnesty could most clearly operate concurrently with ICC prosecutions. Amnesty would give rise to uncertainty regarding whether a perpetrator would in fact benefit from it but, as shall be discussed below, uncertainty for perpetrators is out-weighed by the uncertainty regarding recidivism.

Deferring to Amnesty Holds the ICC Hostage

If the Prosecutor refrains from prosecuting for political reasons, whether framed solely in terms of amnesty or premised on facilitating peace negotiations more generally, the ICC may be “held hostage by the likes of Kony.” [FN465] This might set a precedent for future indictees be-cause it provides an incentive for leaders guilty of perpetrating serious crimes to refuse to negoti-ate peace unless amnesty is assured. While they may do this in any event, a greater incentive is available should the possibility of amnesty be made available. This applies equally to govern-ments negotiating or granting amnesty, because it is seldom the case that individual actors within government have not committed violations. Relying on the state in pursuit of culturally specific justice might fail to combat impunity or ensure lasting peace.

Selectivity

The Prosecutor must assess the interests of justice on a case-by-case approach; [FN466] a le-gitimate amnesty in one instance may not be so in another. Decisions turn on the information and evidence on hand and rely on inextricably interlinked factual circumstances, such as the granting of amnesty, the role and number of perpetrators, the number of victims, and whether the country is at the conflict or post-conflict stage. Moreover, one size does not fit all when considering the complexity of the “interface of international law and politics.” [FN467] This issue was central to the inability of states to draft a provision for amnesty in the Rome Statute. [FN468] States had sympathy for South Africa's position, but were concerned about decisions not to prosecute by



South American dictators. [FN469] If the Prosecutor engages in an assessment of models, it might give rise to selectivity in application of an exception to prosecution and to resultant chal-lenges to the ICC's legitimacy. How would the Prosecutor differentiate between the case studies described? Would *295 Ugandan perpetrators be permitted amnesty because they played a lead role in negotiations and amnesties served as a valuable bargaining tool? Or, despite that the situa-tion was post-conflict, would South African perpetrators be permitted amnesty because of the relative merits of a model that facilitated victim participation and reparations? Deferring to polit-ical interests might compromise the independence of the ICC and politicize the pursuit of inter-national justice because it would be required to make assessments about the value of one system over another. [FN470] If we move from the case studies into an international armed conflict, these concerns might be further exacerbated where one state grants amnesty, which is upheld by the Prosecutor, but another other doesn't.

Lack of Empirical Evidence

Kastner submits that one way to determine whether to defer to amnesties is to hold “individ-uals accountable [only] ‘if the benefits of accountability over the long term are likely to out-weigh the costs on the short term of prolonging an ongoing conflict.”’ [FN471] The problem is one of ascertainment. While there are many situations in which amnesties have been granted since individual criminal liability was established as a matter of international law, there have been very few empirical studies on the long-term impact of amnesties and alternative justice mechanisms. [FN472] Moreover, there are competing claims regarding whether amnesties or re-fraining from prosecution for political reasons lead to peace and reconciliation. In regard to South Africa, Slye submits that, “even assuming amnesties contribute to short-term social stabil-ity, in the long-term they undercut efforts to establish a stable democracy that honors human rights and the rule of law” and create a culture of impunity. [FN473] Contrary to this position, Helena Cobban “concludes that the TRC in South Africa, granting conditional amnesties, and the absence of any individual accountability in Mozambique have delivered much better results than, for instance, international prosecutions in Rwanda.” [FN474] Even accepting Cobban's position, comparing South Africa with Rwanda is like comparing apples and oranges. To understand the impact of alternative justice mechanisms, long-term comprehensive and contextual analysis needs to be undertaken. While it is also yet to be shown whether international prosecutions result in peace and security and entrenchment of the rule of law, it is difficult to rely on examples like South Africa to demonstrate amnesties do.

*296 The Impact of Amnesty and Indictment on the Peace Process

We might argue that amnesty encourages leaders to the negotiating table and to cease-fire. Archbishop Tutu and others argued that prosecutions in South Africa would have been sabotaged and would have led to more violence. [FN475] However, if we look at Sierra Leone and Uganda, this position is not always substantiated over the short or long term. Sankoh and the RUF re-



turned to violence following grants of unconditional amnesty, and Kony and other leaders of the LRA didn't come forward to claim amnesty, even though the law permitted them to do so. [FN476] In Uganda, dealing with Kony has been described by Roth as “dealing with a madman.” [FN477] There is no certainty that such leaders would seize amnesty or cease violent acts if of-fered it. The same might be said for indicted Sudanese leaders. The problem is that trading amnesty for peace is not always so simple. Some leaders with authority to negotiate don't accept the carrot of amnesty, and some continue to perpetrate violations despite it. The benefits of amnesty, grassroots reconciliation, rehabilitation, and reparation might still be realized if prose-cution by the ICC is “sufficiently removed” to enable it to prosecute without disturbing the inter-nal balance that amnesty may bring. [FN478]

What the Sudanese and Ugandan situations show us is that indictment served to bring lead-ers to the negotiating table. In Sudan, attempts to negotiate peace in Darfur had been deferred (with the acceptance of the international community) on the basis that resolution of the North-South conflict and implementation of its peace agreement was a necessary prerequisite. [FN479] On the one hand, the position acknowledged the links between the conflicts by acknowledging that there would be no resolution in one until the other was resolved. However, at the same time it served to dissociate the North-South conflict from that in Sudan by failing to recognize that the conflict in Darfur might serve to destabilize that in the south. In addition, in order to motivate the international community to act, the indictments served to provide a compelling incentive for the government to reduce its support for the Janjaweed. [FN480] The indictments further served to isolate rebel groups from international support and motivate them to negotiate. [FN481] Even the prospect of prosecuting enemies might in itself motivate leaders to negotiate. [FN482] The Secu-rity Council referral, and subsequent investigation by the Prosecutor, may then have been a cru-cial factor in the 2006 peace agreement.

*297 In Uganda, the indictment of LRA leaders not only drew them to the negotiating table, but contributed to a decrease in crime. [FN483] While there were a number of factors that led to Kony's involvement in negotiation, the ICC served a useful role by de-legitimizing the LRA. Subsequently, it less frequently “ran off [to hide] in a game reserve in north-eastern Congo.” [FN484] Moreover, it might serve to strengthen the domestic rule of law. As noted, the Ugandan government has sought the withdrawal of ICC indictments on the basis of admissibility; it pro-poses to conduct domestic criminal prosecutions of, at least, those most responsible. [FN485]Representatives of Kony and the LRA have agreed to participate. [FN486] The indictment of leaders may, if domestic processes operate in accordance with the requirements of admissibility, serve to “augment the number of national prosecutions in the future” [FN487] and meet the goals of complementarity. [FN488]

While the ability of international prosecutions to have any significant deterrent effect is doubted, if the ICC upholds grants of amnesty for those most responsible, any deterrent effect would be reduced. One can only hope that “political and military leaders will be more careful in



their decisions once the Prosecutor's role has switched from a theoretical threat to a concrete Prosecutorial organ.” [FN489]

Complexity

The case studies demonstrate the inordinate complexity involved in conflict, amnesty, and international prosecutions. In Sudan, the periphery-centre divide is complicated by a one-party system, oil revenues, Sudan's geographic expanse, shifting loyalties between rebel groups, the Janjaweed, the PDF, and government institutions and authorities, and cross-border disputes with Chad. [FN490] In Uganda, Kony's attempts to evade prosecution and peace by entering negotia-tions only when necessary to buy time, [FN491] and the LRA's attacks on Ugandan and Con-golese civilians and retreat to the DRC, [FN492] make it difficult to ascertain their movements, intentions, and sincerity. Even if the Prosecutor deferred to amnesty only for those less responsi-ble [FN493] for atrocities, or for those with less negotiating power, differentiating between those with de jure and de facto power is an impossible task *298 when low level perpetrators wield the power to wage violence even if they don't have the authority to negotiate peace. [FN494] Estab-lishing whether amnesty will serve the interests of justice in these contexts would therefore be extremely difficult, if not impossible.

Collective vs. Individual Justice: the Security Council and Functional Limitations

It is difficult to dismiss political considerations entirely given the Security Council's residual role in the ICC Statute and the inherent interplay of law and politics in international law. How-ever, the temporal restriction on Security Council deferrals indicates that politics, ever-changing, are not a permanently determinative factor, [FN495] the appropriate body to determine the im-pact of politics is the Security Council, and the Prosecutor retains an ultimate discretion in re-spect to all other issues. [FN496] We might nevertheless consider three different scenarios: (1) where the Security Council referred the situation to the ICC; (2) where the state referred the situ-ation; and (3) where the Prosecutor commenced an investigated propio motu.

In discussing whether the Prosecutor could determine that an investigation was not war-ranted despite the Security Council's referral of the situation in Darfur, Ohlin puts forward a co-gent basis for rejecting amnesty under the first scenario:

If one takes the legal basis for such referrals seriously - i.e. one thinks of Chapter VII authority as something more than just an excuse or legal fiction to make such pronounce-ments - then the Security Council's actions would seem to allow less room for prosecutorial discretion than the Assembly of State Parties had initially anticipated. Indeed, however one wishes to conceive of prosecutorial discretion, it cannot be interpreted in such a way that the prosecutor has the power to ignore judgments made by the Security Council - a power that no one has under international law. [FN497]



Referral presupposed the question of peace and justice; they were assumed to go hand in hand. [FN498] The logical conclusion is that the ICC does not have the power to make determi-nations about collective peace and security itself. The Security *299 Council seeks peace and se-curity as a collective action, [FN499] whereas the Prosecutor considers the interests of justice in individual cases. Limiting the Prosecutor to considerations of individual justice is appropriate given the converse limitations on the Security Council, which can refer a situation, but has lim-ited authority to restrain the Court in individual matters. [FN500] In referring Darfur to the Pros-ecutor, the Security Council acted pursuant to its authority to make determinations regarding peace and security. [FN501] Consequently, the Prosecutor should be restricted to a range of fac-tors relevant to the individual case, rather than the broader impact on peace. [FN502] Collective assessments by the Prosecutor would undermine the international constitutional order and possi-bly destabilize the peace process.

By default, the remaining two scenarios are answered because it will never be within the Prosecutor's scope to determine threats to peace and security. In any case, where a state refers a situation, it is difficult to conclude other than that the state itself is competent to determine such issues and that its referral impliedly rejects amnesty. While the Ugandan government sought the withdrawal of ICC indictments post-referral because they are purportedly hampering peace nego-tiations, it did not do so because it seeks to uphold amnesty, but on the basis that it would con-duct domestic trials. [FN503]

Regime Change

One of the ways in which prosecution contributes to peace and security is by preventing those responsible for serious crimes from committing them, and by criminalizing actors, groups, or regimes. The symbolic act of criminalization may pressure the international community, gov-ernments, and other groups such as civilians from supporting perpetrators. According to Udom-bana, “[h]istory has shown that the involvement of highly placed functionaries or officials of states makes the commission of most international crimes possible; it is great men, potential saints, not little men, who become merciless fanatics.” [FN504] In Uganda, Kony's removal is a vital step in making the LRA ineffective, as he “stands at the apex of the LRA structure, politi -cally, militarily, and spiritually.” [FN505] The situation in Sudan is more complicated because instability in Darfur serves to entrench al-Bashir and other government leaders' positions by pre-venting a unified front in the region. [FN506] If those indicted were arrested and successfully prosecuted, it is possible *300 that a regime change (and possible international intervention) could reduce crime and stabilize the region. [FN507]

Indictment by the ICC may nevertheless have the opposite effect. While indictments, arrest warrants, and consequent international attention regarding the Darfur crisis purportedly reduced Sudanese government support for the Janjaweed, [FN508] they also served to strengthen support for al-Bashir within the country and within regional blocks or alliances. [FN509] Since issuance



of the arrest warrant, al-Bashir has visited up to half a dozen countries within the region. [FN510] Nevertheless, indictment might have the adverse effect of ensuring that indictees will do everything to hold on to power by committing more serious crimes and impeding the investi-gation and prosecution. In any event, the extent to which prosecutions could facilitate regime change and conflict resolution would be hampered where removal from office simply creates space for individuals who may also perpetrate crime.

What this tells us though, is not that we must uphold amnesty (because it will have no im-pact on regime or institutional change anyway), but that there are broader constitutional and functional problems with international law, which the ICC should not attempt to resolve. Akha-van aptly states:

The view that dialogue with fanatical murderous leaders would somehow lead to a peaceful settlement is a chimera, often encouraged by an international community that is eager to insulate itself from genuine engagement in putting an end to the atrocities. As one observer concluded, Kony's “refusal for years to accept olive branches and huge conces-sions including total amnesty. . . indicate his mental incapacity.” . . . But even if Kony proves to be willing and able to negotiate when presented with the right incentives, the best means of ensuring such a negotiation appears to be sustained military and political pres-sure. In this respect, peace and justice are by no means mutually exclusive.” [FN511]

That a state engages with leaders despite their unwillingness to refrain from violence is linked to the international community's reluctance “to use force to topple a rogue regime.” [FN512] In an ideal world, the ICC would be supported by economic sanctions, and arms embar-goes, [FN513] and possibly even an obligatory norm *301 to intervene on humanitarian grounds pursuant to the responsibility to protect. On a smaller scale, the investigation and prosecution of al-Bashir and other leaders would have been buttressed by a further resolution calling on states to cooperate with the ICC. That the Security Council doesn't adopt complementary measures is a consequence of the freedom to act (or not to act) under its constitution, i.e. the veto power of states such as the United States, China, and Russia, with economic, ideological and political in-terests to protect.

IV. Conclusion

The Prosecutor of the ICC has adopted the correct approach to admissibility and the interests of justice. Amnesties granted by truth commissions do not satisfy the terms of admissibility un-der article 17 of the Rome Statute when interpreted in light of the Statute's objects and purposes. An expansive interpretation of the interests of justice, incorporating political and social factors underpinning grants of amnesty, is inconsistent with states' intention in enacting the Rome Statute. Moreover, it is undesirable and impractical given the position of amnesties in interna-tional law, the complexity of both internal and international conflicts and associated peace nego-tiations (even at the post-conflict stage), and the retention of Security Council authority over in-



ternational peace and justice. [FN514] The Pre-Trial Chamber is not best placed to determine or define an international norm regarding conditional amnesties, which it would inevitably do if it makes judicial determinations regarding whether the amnesties are in the interests of justice. The role of the Prosecutor is to determine whether the interests of justice are served, by considering factors such as whether the victims have access to some form of justice, whether the perpetrator is a low-level offender who has committed a small number of violations, and whether investiga-tion and prosecution of the matter will extract evidence which might be useful in cases against more senior figures. The Pre-Trial Chamber's role is to determine whether the Prosecutor has ex-ercised his role in an appropriate manner, and to apply the law to the exclusion of global, re -gional, or domestic politics. Where the Security Council does intervene on the basis of amnesty, the Pre-Trial Chamber may only engage in judicial review of a resolution to the extent that it complies with Article 16 of the Rome Statute, such as to determine whether it constitutes “an abuse of authority. . . or [an] obvious and grave deficiency.” [FN515] This approach allows States to engage in actions that lead to the development of a treaty or customary norm regarding alternative justice mechanisms and their reconciliatory and reparatory functions, and how, or even whether, amnesties might feature in restoration; such States being best placed to do so.

[FNa1]. Associate Legal Officer at the International Criminal Tribunal for the former Yu-goslavia; L.L.M. (Harvard); L.L.B. (QUT); B.Bus (International) (QUT). The views expressed herein are those of the author's alone and do not necessarily reflect the views of the International Criminal Tribunal for the former Yugoslavia or the United Nations in general. I am grateful to Martha Minow for her supervision and comments on the Masters thesis upon which this article is based. All errors of fact and interpretation are my own.

[FN1]. Rome Statute of the International Criminal Court, Jul. 17, 1998, 2187 U.N.T.S. 90 (en-tered into force July 1, 2002), available at http:// treaties.un.org/doc/source/RecentTexts/rome-en.htm [hereinafter Rome Statute].


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