On the African continent, we talk a lot about international justice. With good reason: like anywhere else in the world, Africa has bad guys who must be brought to book, violence that should be accounted for and criminal activity – think drugs, human trafficking and conflict minerals – that must be stopped.
But international justice is particularly pertinent to Africa. The continent’s unusually numerous and especially porous borders make transnational crime prevalent. The under-developed (and overly-politicised) legal systems of too many African countries often make domestic justice impossible. And the high-profile indictments of African leaders – especially Sudanese President Omar al-Bashir and Kenyan President Uhuru Kenyatta – has forced international justice issues onto the continental agenda.
The over-politicised legal systems of too many African countries often make domestic justice impossible
In this context, it is with considerable interest that African policymakers should be looking at the corruption scandal that is currently enveloping the Federation International de Football Association, commonly known as FIFA.
As every fan knows, football is more than a game. FIFA, likewise, is more than just a governing body. It has become a multi-billion dollar international empire that sprawls wider even than the United Nations. (This is no joke: FIFA boasts 209 national associations, while the UN has just 193 member states.) FIFA is the world’s most popular international institution and one of its most influential – at least in the cultural sphere.
However, as is becoming increasingly apparent, FIFA is also an endemically corrupt institution, and its business dealings are marked with bribes, kickbacks and nepotism. This is old news: serious, substantiated allegations have dogged the organisation for years. But it was only in May, in that dramatic dawn raid on Zurich’s luxurious Baur au Lac Hotel where seven top FIFA executives were nabbed, that the organisation was finally asked to account for its alleged crimes.
Finally, international justice had caught up with FIFA. There are lessons to be learnt in how it did so. The first is that, despite all the criticism it receives, international justice really can work. ‘This affair shows the intermingled nature of even domestic crimes with territorial links, with international cooperation and activity,’ observed Robert Cryer, professor of International and Criminal Law at the University of Birmingham. He added: ‘Such crimes require international cooperation and relate to conduct that crosses borders, which also leads to multiple investigations in different states.
‘This is clearly one step in a very long journey in relation to the FIFA corruption allegations, but one that shows us a great deal about how in our interconnected world, it is no longer enough to think solely in terms of borders.’
Much of the discourse in Africa around international justice has centred on so-called international crimes: war crimes, genocide and other atrocities. The FIFA scandal also demonstrates that the ambit of international justice can go much further than that. ‘I think over the last few years, certainly in the last decade, the whole idea of accountability for mass atrocity crimes has been made very popular by a mixture of the International Criminal Court, universal jurisdictions and development of an international NGO community that is interested in just that,’ said Donald Deya, Chief Executive Officer of the Pan-African Lawyers Union. ‘Really, it would be a pity if we concentrated on these boutique crimes because they are internationally sexy, and failed to reform the system in general.’
For Deya, however, there is a more sobering lesson to be drawn from the FIFA affair, which is largely driven by the investigative might of America’s Federal Bureau of Investigation. All too often, international justice only works for the superpowers. ‘What it shows is that when a big state wants something, it will get it done, and if it doesn’t want it done it will not get it done… When it’s about protecting their interests, they’ll get on with it.’
Establishing a credible criminal justice system is sometimes at the bottom of that list
It’s not just usual power politics at play here, although of course that is a major factor when it comes to international justice. (How different would the International Criminal Court’s track record look, for example, had the United States, Russia and China all been signatories to the Rome Statute?) It was also crucial that the United States and Switzerland, where the arrests were carried out, have strong, robust criminal justice systems of their own.
It’s clear what this means for Africa. It’s not sufficient to focus our attentions on developing international or continental justice mechanisms such as the African Court of Justice and Human Rights; it’s just as important to consolidate national criminal justice systems along the way.
This is easier said than done, however. ‘We don’t always have the resources, capacity or political will to develop domestic institutions. In addition, African states have competing priorities. Some states have to prioritise food security, building roads and constructing hospitals, and establishing credible criminal justice systems is sometimes at the bottom of the list. This is notwithstanding that a credible criminal justice system will eventually lead to a certain degree of accountability and eventual development,’ said Jemima Kariri, a senior researcher at the Institute for Security Studies.
For Deya, the solution must be organic, and can’t be imposed at a continental level. ‘We should … ask the law society, the bar association, the women lawyers’ association, the human rights NGOs, the private sector and youth associations how all those commitments that our states makes at the level of the AU [can be turned] into national law, so they’re really practical at the national level. The AU is created as a supranational body… it comes up with policy frameworks that then need to be implemented nationally. So we’ll end up with a huge bureaucracy of the AU if you expected it to actively go and police in each state [to ensure] that the laws are [implemented].’
Ironically, it is the very weakness of national justice systems in so many countries that has contributed to the importance of international justice on the continent; most of the Africans indicted at the International Criminal Court are there at the request of their own countries, which freely admit they don’t have capacity to deal with these issues themselves. But as the FIFA scandal illustrates, all too often, international justice is only as strong as the domestic justice available in the countries involved.
Simon Allison, ISS Consultant