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International Criminal Justice in 2012 – A Year of Highs, Lows and Raised Eye Brows

23 November, 2012

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The eleventh session of the Assembly of States Parties (ASP) to the Rome Statute came to an end this week in The Hague. While we can only hope that participants and States left inspired and committed to supporting and promoting the ICC, it is perhaps timely to reflect on what has certainly been an interesting year for international criminal justice. Here are just some of the highlights, and lowlights, of 2012.

The ICC celebrated its ten year anniversary this year. The Court has come a long way since negotiations in Rome. The Court delivered its first verdict, finding Congolese war lord, Thomas Lubanga  guilty of war crimes for his recruitment of child soldiers in the Democratic Republic of Congo. The ICC also confirmed that the right to reparations is a basic human right – a victory within a victory.  The Lubanga case also showed us that the credible and fair dispensation of justice is time consuming and costly, underscoring the need for States Parties to embrace the principle of complementarity by availing their court rooms to the prosecution of those accused of international crimes, and to share this responsibility with the Court.

Criticisms against the ICC continue to persist, the biggest critic perhaps being the African Union (AU). The AU continues to accuse the ICC of targeting Africa and remains insistent that proceedings against Sudanese president, Omar al Bashir, be deferred. The Security Council ability’s to refer countries to the ICC that are not party to the Rome Statute (Sudan and Libya) is also high up on the complaints list. This criticism is not without merit given the fact that certain members of the Security Council that are not party to the Rome Statue have the power to refer cases to the ICC but will never the subject of a referral themselves. They also can prevent referrals – Syria being the case in point, and questions have been raised as to why it should be distinguished from Libya.

The election of former Deputy Prosecutor, Fatou Bensouda, as Chief Prosecutor this year may go some way to repairing the strained relationship the ICC shares with Africa. Bensouda’s appointment has been welcomed the world over. Although it is still early days analysts and observers will certainly be watching her every move very closely to get a sense of what sort of prosecutorial strategy we can expect during her tenure – and perhaps the question on everyone’s mind is which non-African situation will she pursue first (Columbia, Georgia, Honduras?).

In Africa the AU appears to be persisting with its endeavor to vest the African Court of Justice and Human Rights with jurisdiction to prosecute a wide array of international crimes, but without any mention of the ICC. Is an African Criminal Court really needed? – the AU seems to think so.  It is believed that the budgetary implications are now being assessed, following South Africa’s intervention at July’s AU Summit. The East African Court of Justice also seems to like this idea. The AU  adopted a model law on universal jurisdiction earlier this year. Although its application is yet to be seen, it may however serve as a catalyst for States to adopt legislation implementing the Rome Statute or at least providing a legislative framework for the investigation and prosecution of international crimes.

Staying in Africa, al-Bashir continues to evade arrest (largely due to the AU’s call for non-cooperation with ICC in respect of his arrest warrant) – but the issuance of an arrest warrant in Kenya last year means that Africa has become just a little bit smaller for Bashir. Al-Bashir is not the only ICC fugitive at large. Bosco “the Terminator” Ntaganda remains free. Joseph Kony, the infamous Lords Resistence Army General, continues wreak havoc and evade capture in Uganda, despite his global profile going viral this year following the controversial Kony2012 campaign.

The highs of this year warrant special mention, and notably they are to be found in individual countries. First, Mauritius became the fifth country in Africa (out of 33) to enact the Rome Statute into its domestic law. Its International Criminal Court Act came into operation at the beginning of this year.

Malawian President Joyce Banda made a stand for international criminal justice in May this year when she refused to host Bashir at the AU Heads of State Summit that was scheduled to take place in Malawi, a move that cost Malawi the Summit, but garnered international applause. Even more encouraging was Botswana’s show of support for Malawi’s decision and criticism of the AU’s attack. Disappointingly, Botswana was the only African country to come to Malawi’s defence.

In South Africa, the High Court heard South Africa’s first case to deal with its obligations to investigate and prosecute international crimes under the Rome Statute in respect of crimes against humanity committed in Zimbabwe. The case, brought by SALC, provides practical and substantive content to these obligations and although it did not involve a prosecution under the Rome Statute Act, it nonetheless will significantly alter the international criminal justice landscape in South Africa, and beyond, and may well overshadow the inaugural prosecution (when it takes place) as it sets out in detail how the Rome Statute Act operates.

Outside of the ICC spotlight other highs include the conviction of Charles Taylor by the Special Court of Sierra Leone. The International Criminal Tribunal for Rwanda has transitioned into the Residual Mechanism bringing an end to a Tribunal (and cementing its legacy) that has over almost two decades shaped international criminal law jurisprudence and practice. The burden now shifts to Rwanda which with increased frequency, and trust, has been receiving cases from the ICTR under the safety net of Rule 11bis of the Tribunal’s Statute. Finally, victims of former Chadian president, Hissene Habre, may see justice done following  a ruling by the International Court of Justice that Senegal must either prosecute Habre or extradite him to Belgium. To do nothing is not an option. This is also a prosecution that the AU supports.

Looking to 2013, civil society must continue to advocate for the support of the ICC in Africa. Another issue to watch closely is the January AU Heads of State Summit in Ethiopia, where the African Court’s expanded jurisdiction is likely to feature on the agenda.

The ICC will also hear the Kenya election violence case in 2013. What is interesting here is that two of the presidential candidates will be in the dock, and the trial begins just weeks after Kenya’s elections. This means that Kenya’s future president may have to appear before the ICC while he holds office, and might be convicted whilst holding office – a political headache in the making? Already the ICC proceedings have been used as a campaign tool and to undermine the credibility of the ICC in Kenya. Even more interesting is that a Kenyan court has been asked to decide whether ICC defendants are eligible to run for office, and opponents of the ICC might jump on the anti-ICC bandwagon as we get closer to Election Day.

All in all, some good and some bad. All that is left to say is bring on 2013!

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