Africa and International Criminal Justice

Radical Evils and the International Criminal Court

Fred Agwu

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781000733938
• Edition: 1
• Topic: Droit
• Subtopic: Théorie et pratique du droit

This book provides an overview of crimes under international law, radical evils, in a number of African states. This overview informs a critical analysis of the debates surrounding the African Union's call for withdrawal from the International Criminal Court and proposes a way forward with a more pertinent role for the Court.

The work critically analyzes the arguments around withdrawal from the ICC and the extension of the jurisdiction of the African Court into criminal matters. It is held that this was not intended in the spirit of complementarity as envisaged by the Rome Statute, and is subject to political calculation and manipulation by national governments. Recasting the ICC as a court of second instance would provide a stronger institutional and jurisdictional regime.

The book will be a valuable resource for students, academics, and policymakers working in the areas of international humanitarian law, international criminal law, African studies, and genocide studies.

Part I

The historical context

1 A précis on radical evils, the ICC, and African armed conflicts

The humanization of armed conflicts

There were laudable efforts to humanize armed conflicts through the development of International Humanitarian Law in the nineteenth century. These efforts range from the works of Hugo Grotius¹ to that of Henri Dunant after witnessing the human carnage at the Battle of Solferino in 1859 and inspiring the establishment in 1863 of the Comité International et Permanent de Secours aux Blessés Militaires that adopted the emblem of the Red Cross that year.² But despite all these, the nineteenth century still went down in history as an era of humanity’s descent into atavistic bestiality. This was particularly so in the Sino-Japanese war of the late 1930s; and during the Second World War, when, in trying to justify the Allied Forces’ fire-bombing of the German city of Dresden in February 1945, the Deputy Air Marshal of the Allies bomber command, Robert Saunby, remarked that “what is immoral is war itself; [for] once full-scale war has broken out, it can never be humanized or civilized, and if one side attempted to do so, it would be most likely to be defeated”.³

1 See James E. Bond (1974); The Rules of Riot: Internal Conflict and the Law of War, New Jersey, Princeton University Press, p. 8.

2 See John O’Brien (2001, 2002); International Law, London, Cavendish Publishing Limited, p. 19.

3 See Janice Anderson, Anne Williams, and Vivian Head (2007); War Crimes and Atrocities: Horrific Crimes Committed Under the Guise of War, London, Futura Books, p. 230. Parentheses mine.

It was because many belligerent entities were minded like Robert Saunby that many unspeakable war crimes were committed during this era.⁴ It was an era in which war assumed a Marxist-Leninist character, drawing something like a class line and acting with vengeance—asking the downtrodden to develop a deep propensity for violence, and to inflict it with some immeasurable style on the Aristocratic or propertied class.⁵ War was also deemed Clausewitzian in the sense of being a continuation of politics by violent means.⁶ In the Marxist-Leninist and Clausewitzian approaches to armed conflicts, any tendency towards humanitarian principles was deprecated and dismissed as a sanctimonious mush; and this was to lead to the ideology of unbridled commitment to the philosophy of radical evils or holding fast to the belief that in war, “everyone is a sacrificial lamb”.⁷

4 Ibid., pp. 318–320; see also Fred Aja Agwu (2011); The Law of Armed Conflict and African Wars, Lagos, Ibadan, MacMillan Nigeria, pp. 159–166.

5 See Fred Aja Agwu (2011); The Law of Armed Conflict and African Wars …, Ibid., pp. 24–25, 445.

6 Ibid., pp. 24–25.

7 Ibid., p. 24.

Radical evils in philosophical context

In his review of the book Radical Evil on Trial by Carlos Santiago Nino, Wilber A. Chaffee noted that the book took its name from Immanuel Kant’s work that defines radical evils as “those crimes against human rights that are so grand that no punishment can suffice”.⁸ Carlos Santiago had written the book as a personal testament to his participation in Argentina’s programme of retroactive justice following the ouster of the country’s military regime and its “dirty war”.⁹ It was an account of a personal “involvement in the democratization process and in battling for human rights and creating a basis for trying and punishing perpetrators of state-sponsored terrorism”.¹⁰ The work placed the “Argentine experience against a backdrop of history, relating it to the Nuremberg trials and to the efforts to define crimes against humanity in the former Yugoslavia” with all the concomitant “legal, political, and philosophical problems of meting out justice in cases of human rights abuses”.¹¹

8 See Wilber A. Chaffee in “Radical Evil on Trial (review)”, available at https://muse.jhu.edu/article/12310 (last visited on July 18, 2019).

9 Loc. Cit.

10 Loc. Cit.

11 Loc. Cit.

In fact, Martha Nussbaum recalled that Immanuel Kant himself described a “radical evil” as that evil that “goes to the root of our humanity”.¹² She stressed that a “radical evil” occurs, according to Kant, because human beings have a propensity to both good and evil—all tendencies that are deeply rooted in human nature; but that, although man can follow morality, there is also something about human nature that makes it virtually inevitable that under certain circumstances man would disregard morality and behave badly.¹³ Some of these circumstances include the situations of an armed conflict and those inherent in the theories of genocide.

12 See Martha C. Nussbaum in “Radical evil in the Lockean state: The neglect of the political emotions”, Research Gate, available at https://www.researchgate.net/publication/233597612_Radical_Evil_in_the_Lockean_State_The_Neglect_of_the_Political_Emotions (last visited on July 18, 2019).

13 Loc. Cit.

In fact, humans so disregarded morality and law in armed conflicts during the epoch of might is right that Antigonus (the Macedonian nobleman, general, and satrap under Alexander the Great, and who was a major figure in the wars of Diadochi after the death of Alexander the Great, declaring himself king in 306 bc and establishing the Antigonid)¹⁴ ridiculed the man who brought him a treatise on justice when he was engaged in besieging cities that did not belong to him; and Pompey, who wondered whether he was supposed to think about the law when he was in arms; just as Plutarch Lysander displayed his sword and declared that “he who is master of this is in the best position to discuss questions relating to boundaries between countries”; while Julius Caesar declared that “the time for arms is not the time for laws”.¹⁵ Although genocide can be termed the ultimate crime that can be perpetrated by man, war crimes and crimes against humanity are also categories in the league of radical evils.

14 See Antigonus I Monophthalmus in Wikipedia, available at https://en.m.wikipedia.org/wiki/Antigonus-1-Monophthalmus (last visited on July 18, 2019).

15 See Fred Aja Agwu (2005), United Nations System, State Practice and the Jurisprudence of the Use of Force, Lagos, Malthouse Press Limited, p. 36.

The idea of radical evils in Africa

But the essence of warfare in the form of an armed conflict is not a Marxist-Leninist or Clausewitzian annihilation of the enemy combatants and the civilian population in absolute terms. In furtherance of this philosophy of non-annihilation, every armed conflict is usually undergirded by the idea that it is only states that are in arms; it is not their societies that are in arms. Rather than fight for total annihilation, every armed conflict should only intend to force the belligerents to the negotiation table for purposes of finding an amicable political solution to their differences; for ultimately, force in itself does not resolve problems amicably. It is diplomacy that does; and in an armed conflict, it is only through diplomacy that peace treaties can be forged. In pursuit of this ideal of humanity, there are basic humanitarian principles that are intrinsically embedded in all armed conflicts. Much more than anything else, these humanitarian principles secure the hallowed principles of humanity—the knowledge that humanity is sacrosanct, irrespective of our innate aggressive tendencies.

This knowledge is furthered in the paradoxical insistence in the goodness of the human being, irrespective of his inclination to aggression; hence, in every armed conflict, belligerents are enjoined to preserve the principles of our common humanity because, as Michael Grant has averred, “each and every human being possesses a spark of divinity”—that “force that pervades and animates the whole of nature”.¹⁶ It is this virtue of preserving the principles of humanity (even in armed conflicts) that sets humanity apart as an organism with a civilization. And the boldest measure of this human civilization is the capacity to, at all times, insist that the allied morality content of civilization triumphs over all its material considerations; after all, what is civilization when devoid of “culture plus cosmic conscience”—what the Igbos in Nigeria call “ogu” or “truth-justice”.¹⁷ This is the reason why civilization is not just about economic growth (measured in either “growth in per capita income” or “progress in technology”, amongst others); it is also about human improvement, measu...