It has been an interesting few weeks for international criminal justice. The recent ruling on aiding and abetting the crime of Apartheid; the International Criminal Court (ICC) Prosecutor agreeing to stagger the hearings in the Prosecutor v. William Samoei Ruto and Joshua Arap Sang case at the request of the accused; Saif al Islam Gaddafi’s case; fugitives Abdel Raheem Muhammad Hussein and Omar Hassan al Bashir freely travelling to neighboring African countries; and the failure of international justice in Syria. The following text is a brief look at all these events and how they have affected international criminal justice.
Just a few months after the Kiobel dust settled, the court in Balintulo v Daimler became the first court to actually apply Kiobel rational and reasoning. Last week the court ruled that Daimler could not be held liable under the Alien Torts Statute (ATS) for aiding and abetting the crime of apartheid in South Africa. As stated in the Kiobel Supreme Court Judgment, the extraterritorial application of the ATS should be interpreted narrowly, providing geographical limitations to the statute. This judgment along with the Balintulo judgment, leave us wondering what will become of the ATS.
The importance of corporate liability and corporate social responsibility cannot be emphasized enough, and in a world where multinational corporations, in particular, exercise unprecedented power, these bodies need to know that they can and will be held accountable for human rights violations. The Balintulo and Kiobel judgment are disappointing and unfortunate in this regard.
However, not all is lost, as there was one victory for international criminal justice this month- the ruling that the persecution of LGBTI people is a crime against humanity. In a case brought by the America based Centre for Constitutional Rights on behalf of Ugandan organization Sexual Minorities Uganda, against the actions of homophobic church leader Scott Lively, it was ruled that persecution based on sexual orientation or identity is indeed a crime against humanity. In this ruling Judge Ponsor not only declared this but also allowed the matter to proceed under the ATS to the pretrial stage. There is hope for the ATS.
In other international criminal justice matters, the ICC remains in the spotlight. The on-going cases against Ruto and others for their involvement in the 2007 post-election violence in Kenya, remain points of interest as they are the very first cases initiated proprio moto by the prosecutor. This week the prosecutor agreed to having the hearing dates staggered so as to accommodate the accused persons who currently appear as summoned but continue to live as free men. This demonstrates the flexibility of the Office of the Prosecutor (OTP) though some may argue that this kind of manoeuvring is impractical and may merely prolong the process. However, the judges will have to make the final decision about the dates of hearings.
Also making international news headlines was the EU criticising the Central African Republic(CAR) for not arresting Sudanese national, Abdel Raheem Muhammad Hussein when he visited the nation recently. Hussein is a fugitive of justice and Current Minister of National Defence and former Minister of the Interior and former Sudanese President’s Special Representative in Darfur. He is wanted by the ICC for 13 counts on the basis of his individual criminal responsibility as an indirect (co)perpetrator for crimes against humanity and war crimes. He stands accused of rape, persecution and torture, to name but a few of the charges. CAR signed the Rome Statue in December 1999, and ratified a few years later in October 2001, making their conduct clearly unlawful and destructive of the objectives of the Rome Statute.
Ethiopia is also guilty as they have allowed Sudanese president Omar Hassan al Bashir to visit Ethiopia for the ninth time since his arrest warrant was issued. According to Bashir-Watch, Bashir was recently seen in Ethiopia, attending the late Ethiopian Prime minister Meles Zenawi’s memorial service. Bashir is wanted by the ICC for 10 counts of crimes against humanity, war crimes and genocide as an indirect (co) perpetrator.
The lack of enforcement power and the reliance on state cooperation as a means to achieve justice continue to limit the ambit and effect of the ICC. In addition, rumours of Saif al Islam and Abdullah al Senussi being tried in Libya as opposed to the ICC, continue to do the rounds.
According to newspapers, Saif al Islam and Abdullah al Senussi have been charged with a number of crimes ranging from murder, forming armed groups in violation of the law, inciting rape and kidnappings in Libya and will stand trial next month. This announcement comes roughly a month after the ICC Appeals chamber rejected the Libyan authorities’ request to suspend the surrender of Saif al Islam Gaddafi and recalled that Libya is currently obliged to surrender Mr Gaddafi to the Court.
Yet another example of the flouting of ICC authority.
The crimes being perpetrated in Syria are weighing heavily on the conscious of the international community. The hands of the ICC are tied as they lack jurisdiction save a UNSC resolution referring the matter. This is yet another example of the limits of the system and the consequences cannot be more manifest than the thousands of dead in Syria. There is no deterrence factor, no recourse, no justice for victims and currently no way for the international criminal justice system to deal with the situation in Syria. Though we can explain the limits of the ICC, and appreciate that it can do nothing – Syria remains a failure of international justice.
The past few weeks have indeed been busy for international criminal justice, from the ATS jurisdiction to the alleged use of chemical weapons in Syria. Future developments will continue to shape the face of international criminal justice and reveal its effectiveness or lack thereof. With the Peace Palace recently having celebrated its centenary, the metaphoric failures and successes of international justice remain on the minds of many.