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International criminal justice in 2013, a year of ups and downs

In a recent SALC report, International Criminal Court (ICC) Judge Sanji Mmasenono Monageng noted that the “entry into force of the Rome Statute of the International Criminal Court in 2002 is likely the most significant event in the coming-of-age of international criminal justice.” Its significance is undeniable and the support of 122 countries, at least on paper, is testament to this.

July 17 was International Criminal Justice Day, marking 15 years since the adoption of the Rome Statute. The establishment of the world’s first international criminal court certainly warrants celebration however, the intention, particularly in Africa, behind the ICC’s establishment  is yet to be fully realised and embraced.

The ICC, like any international institution, has been subject to criticism. Some question its impartiality and dispensation of what they perceive as “selective justice” and others its financial viability. This in turn has translated into some states refusing to cooperate with the Court. However, for every critic there is also a supporter, and the rich debate that surrounds the ICC and the international justice project is certainly to be welcomed. In the spirit of International Criminal Justice Day, some highs and lows warrant mention.

In March this year Congolese warlord and ICC fugitive Bosco “the terminator” Ntagandaturned himself in after being on the run since 2006. In a surprise move he voluntarily surrendered himself to the American Embassy in Rwanda and was swiftly transferred to Hague, where he will go on trial next year.

In April this year Uhuru Kenyatta and William Ruto took power in Kenya’s presidential elections. Kenyatta and Ruto are facing charges of crimes against humanity committed during the violent 2008 elections. They are due to stand trial in the Hague and their victory has done little to deter ICC Prosecutor, Fatou Besouda, from continuing the cases.  They join Sudanese President, Omar Al Bashir in the “Presidents’ Club”, of sitting heads of state that are accused of international crimes. Following their victory Kenya petitioned the United Nations Security Council (UNSC) to terminate proceedings against them. Despite maintaining that they would cooperate with the ICC, they took their campaign against the ICC to the 50th Anniversary Summit of the African Union (AU).

Despite not being on the agenda of the recent AU Summit, the ICC dominated much of news coming out of the Summit. Kenya successfully convinced the AU heads of state to pass a resolution on the referral of the Kenya cases to Kenya.  The decision also maintained the AU’s call on African states not to arrest Al-Bashir. The ICC’s strained relationship with the AU continues to cast a shadow over the Court’s work in Africa and it remains persistent in its view that the ICC is targeting Africa because all situations before the ICC are in Africa. Proponents of the Court argue that of the 8 situations currently before the Court, 5 situations were referred to the ICC by the countries concerned; 2 were the result of a United Nations Security Council Referral (Sudan and Libya) and the ICC has only has launched one case in Africa (the Kenya prosecutions) on its own initiative. How the cases got to the Court however has done little to temper the perception of a geographical bias towards Africa.

However amidst the anti-ICC rhetoric of the AU Summit, a lone Southern African voice warrants commendation. Botswana was the only country not to support the decision and entered a reservation against the decision taking the opinion that ICC related decisions have no place in AU decisions. Botswana has long been vocal supporter of the ICC and it is encouraging to see it continue on this path. Botswana was also one of the first countries to ratify the Kampala amendments to the Rome Statute earlier this year.

The AU/ICC debate will continue to rage on. Going forward, between AU Chairperson Dlamini Zuma and ICC Prosecutor, Fatou Bensouda, we have two of Africa’s most influential and competent women, both at the helm of very relevant institutions, and who ultimately share the same objectives and hopes for Africa. Both should look to creating constructive dialoguebetween their institutions.

A recent low happened happened just days before International Criminal Justice day when Nigeria, a signatory to the Rome Statute, allowed ICC indictee, Omar Al-Bashir to visit Nigeria for an African Union (AU) health conference. Justifying its refusal to arrest Bashir was that Nigeria did not invite Bashir to what was an AU event, and that by not arresting Bashir it was simply acting in compliance with an AU resolution. However, does an AU resolution take precedence over binding international obligations that Nigeria assumed upon signing the Rome Statute? Despite Nigeria’s refusal to arrest Bashir, there is a bright side to this story. Civil society in Nigeria approached a Nigerian court to issue an arrest warrant for Bashir. Bashir left Nigeria before the close of the conference and this may have had something to do with this civil society initiative. The rapid mobilization of rights groups in Nigeria highlights the important role civil society can play in securing principled support for the ICC and securing compliance through the novel use of strategic litigation, which has been seen in Kenya and South Africa.

Outside of Africa, the ICC has 7 preliminary examinations underway 5 of which are not in Africa.  This is perhaps indicative of a move away from Africa, which will hopefully dilute the “anti-African” criticisms.

Questions continue to be raised as to why Syria has not been referred to the ICC by the Security Council despite the death toll topping 100 000. The Security Council is being accused of not being objective in the exercise of its referral power and this may warrant attention. The manner in which the Security Council has exercised its referral power to date has done little to justify the exceptionalism inherent in this arrangement. This criticism is also unfairly leveled at the ICC itself which in fact has no say in decisions of the Security Council. The discontentment became particularly apparent when Switzerland, with the support of 56 countries, called on the Security Council to refer Syria to the ICC in January this year.

Outside of the Rome Statute and the ICC, there has been traction in the prosecution of Hissene Habre, who has evaded prosecution for some time now. On 30 June 2013, the former President of Chad was arrested and taken into police custody in Dakar, Senegal.

All in all, some good and some bad. Although debates around the international criminal justice project continue to revolve around the ICC and Africa, this is not necessarily a bad thing. We must, as Judge Monageng notes, remember that “Africa has made a substantial intellectual investment in the international criminal justice project: vocal during the Rome Statute negotiations, the Africa bloc was critical in fending off interventions that would have resulted in a less independent court. Africa also represents the largest regional bloc of states parties to the ICC. Its citizens are represented at all levels of the staff comprising the ICC. In the landscape of global governance, the ICC represents an unprecedented advance – it is a development in which Africa has had a chance to play a critical role.”




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