The Future of the International Criminal Court in Africa (Part II): The Birth of an “African Criminal Court”

This guest blog by Kiconco Katabaazi Patrick (candidate on the UCC LLM International Human Rights Law & Public Policy programme) examines the African Union’s proposed African Court of Justice and Human and Peoples’ Rights.

Introduction

In 2012, after series of engagements within the African Union system, Ministers of Justice and Attorneys General on Legal Matters resolved to amend the Protocol on the Statute of African Court of Justice and Human Rights by extending its jurisdiction to cover international crimes.

On 27th June 2014 the AU’s Assembly of Heads of State and Government sitting at the 25th ordinary session of African Union adopted the Protocol in Malabo, Equatorial Guinea and in effect extended the mandate of the African Court of Justice and Human and Peoples’ Rights to cover International Criminal Law.

Through this intervention, the African Union replicated crimes covered under Rome Statute of the International Criminal Court (ICC) such as genocide, crimes against humanity and the crime of aggression, but additionally included crimes that were not previously known as traditional crimes under international law such the crime of unconstitutional change of government, terrorism, corruption, money laundering and others.

From the list of crimes under the jurisdiction of this court one would conclude that the African Union has embarked on a very ambitious journey which may present some future hurdles in implementation.

As discussed in the previous blog article, African leaders were very enthusiastic in embracing the ICC and became very active in referring both real and perceived political opponents – until the reality of their own possible prosecution set in.

It is still too early for one to dismiss the newly constituted African court as a non-starter, but it is important to appreciate that to-date only 11 out of 55 AU member states have signed the amended statute, with zero ratifications and zero deposits in spite of the fact that the Protocol and the accompanying statute are mandated to enter into force 30 days after the deposit of instruments of ratification by 15 member states. As a result, the court does not yet have the authority to utilise its newly granted powers.

It would seem to me that the pressure and zeal of African leaders demonstrated at the height of the ICC’s hot pursuit of the Presidents of Kenya and Sudan has since subsided and the need for an African specific criminal court may after all not be as urgent as it was in yester years .This is particularly so because one of the arguments that has been consistently flaunted by Kenya was that the ICC needs to allow national courts and other African-based judicial mechanisms to be given a chance and that intervention from The Hague should be at last resort.

With Kenya off the radar of the ICC for now, this aggressive campaign to start an African version of ICC may no longer seem very attractive. This may explain why Kenya became the symbolic first signatory on 27th January 2015 but has since failed to ratify and deposit the Protocol and statute.

It may be argued that with the changes in the political landscape particularly in South Africa, Zimbabwe, Gambia and others, the issue of having a court motivated by the leaders’ misgivings against the ICC may be watered down.

Besides, one of the biggest concerns that preceded this protocol, which is still relevant today, is the issue of funding. The African Union itself is largely dependent of donations and as such supporting a very expansive court to standards required may be a tall order in light of the fact that most African states are still struggling to provide adequate funding for their own national courts.

How will the African Court of Justice and Human and Peoples’ Rights affect ICC?

Whereas it is speculative to focus so much on the likely effects of the new powers of the African Court of Justice and Human and Peoples’ Rights before the Protocol comes into force, it clear that Africa as a block constitutes a third of the total membership under the Rome Statute and its decisions (as long as they are taken as a block) have implications on the ICC.

One such decision to circumspectly look out for and how it will play out is the ‘withdraw strategy’ which was adopted at the Assembly of African Union that I have already pointed out. It will be interesting to see how this African Court will relate with the ICC given that that some hitherto vocal supporters of the former, such as South Africa and Gambia, seem to have developed cold feet.

However, it remains a concern that an African criminal court may pose challenges for the ICC as this could give room for excuses for African leaders to withdraw from the ICC on the pretext that they have their own court of a similar jurisdiction. It is also likely that some may not withdraw from the ICC but may find it difficult to cooperate with requests and warrants from the ICC as has been the case with President Al-Bashir.

The other glaring challenge is that the ‘African Criminal Court’ will not have jurisdiction to charge sitting Heads of State and Government and thereby lowering the standard set by the Rome Statute and as such if African states prioritise their court ahead of the ICC, citizens on the continent will be denied a sense of protection from ruthless rulers and leaders.

Whilst this fear is logical, it needs to be clear that whereas the Rome Statute recognises national courts, it does not have any provision that recognises interstate or regional courts and so developments within the African Union may not have direct adverse legal implications on the power and authority of the ICC.

Nonetheless, it remains to be seen how the ICC will deal with the mounting pressure from the African block and my view is that there is a need for strategic engagements by stakeholders to see how ICC can be strengthened rather than weakened. Stakeholders such as UNSC are important because if their actions in referring cases to ICC do not reflect fairness, the ICC as a justice-centred institution will continue to face reputational problems.

Further, ICC needs to broaden stakeholder engagements and consider establishing closer relationships with citizens of member states through their representatives. This is important because it has been established that the ICC enjoys great public support from ordinary citizens including from those countries whose leaders have been vocal against the court. In Kenya for example, an opinion poll conducted by IPSOS Synovate in 2013 revealed that 67% of respondents were in favour of the ICC’s process at same the time when President Uhuru Kenyatta and his henchmen were vigorously campaigning against it.

Citizens can be engaged through their respective Parliaments/National Assemblies with aim of broadening support and building a knowledge base that can help legislators make informed decisions. Parliaments are critical and the case of Gambia and Burundi is clear demonstration that weak parliaments can be used by leaders to rubber stamp things that may even be against public interest such as casually withdrawing from the Rome Statute without public participation.

Other institutions such as the judiciary and civil society organisations play a vital role in creating checks and balances in member states .In South Africa, for example, when the executive arm of government defied the ICC by refusing to detain and hand over Al–Bashir, the High Court and later South African Supreme Court of Appeal made orders that have capacity to influence how situations of a similar nature will be handled in future.

Beyond strategic engagements with Heads of States/Heads of Government and departments responsible for foreign affairs, the need to create linkages with legislature, judiciary and civil society cannot be over emphasised. This may require the creation of a strategy and policy coordination office which may be a stand-alone department or it can be placed under the Independent Oversight Mechanism (IOM) to ensure that the ICC as an institution gets reasonable visibility on key issues.

Conclusion

It should be recalled that the establishment of the International Criminal Court was a long and often a very capricious process involving extensive negotiations and compromises. What we learnt from the two world wars is that human-made catastrophes such as the ones witnessed then may be caused by very small things. What starts as a small dispute involving few countries has the potential to generate into a full blown crisis with very serious consequences for the human race. With improved technology the threat of mass destruction caused by a small dispute is even greater.

The idea to create a global criminal court started way back in the 19th Century but did not materialise until 1948 when the International Law Commission was established. Even then, it took over fifty years to finally deliver the Rome Statute. The ‘road to Rome’ was long and more often than not bumpy and therefore any attempts to weaken or kill this clearly betrays victims of crimes this court was set up to fight and in addition such endeavours undermines huge sacrifices made by all players involved in the birth of the ICC.

Further, our inability to forecast future events with precision is another strong reason why we must fight to consolidate the achievements made and perhaps strive to make the ICC stronger and tougher.

African Union therefore, should instead advocate for reform of the ICC to ensure that it achieves its objectives rather than weakening it, and even if the African Court of Justice and Human and Peoples’ Rights opens its doors for business there is a need for dialogue – particularly on crimes under the jurisdiction of ICC. The Chief Prosecutor Ms Fatou Bensouda of the ICC and newly elected President Judge Chile Eboe-Osuji are from Africa and who knows – the future of the ICC could have greater prospects on the continent after all!

The Future of the International Criminal Court in Africa (Part I): Tracing the Roots of the Love/Hate Relationship

This guest blog is written by Kiconco Katabaazi Patrick who is a candidate on the UCC LLM International Human Rights Law & Public Policy programme.

Introduction

In July 2018, the International Criminal Court (ICC) will celebrate 20 years since the Rome Statute was opened for signature on 17th July 1998, thereby establishing a global criminal court whose idea had been mooted several decades back.

Over the course of two blog articles, I will shed light on the genesis of the ICC, the relationship the Court has had with African countries and how the creation of an African version of ICC in the name of the African Court of Justice and Human and People’s Rights is taking shape .This new Court is expected to try international crimes including those under the jurisdiction of ICC, thereby opening debate on the future of ICC in Africa.

Tracing the origins of ICC

The idea to set up a world criminal court owes its origins in 19th century during the Franco- Prussian War. In 1872, Gustav Moynier – a Swiss jurist and one of the founding fathers of the International Committee of the Red Cross advocated for the establishment of a permanent court to respond to crimes committed in interstate conflicts .This idea did not gain traction largely because the impact of war at that time was not felt by many states in Europe.

The effects of First and Second World Wars played a very significant role in the establishment of an international court responsible for prosecuting perpetrators of crimes against humanity, breach of peace and crimes of aggression. The genesis of this deep seated desire has roots in the Versailles Treaty of 1919 between Germany and Victorious Allies that signalled the end of the First World War. However, it was not until 1945 that active steps were taken towards setting up a court to prosecute perpetrators of serious international crimes. This culminated in the Nuremberg Tribunal and Tokyo war crimes trials established under the 1945 Nuremberg Charter and International Military Tribunal for Far East Charter respectively.

It should be noted that the Nuremburg and Tokyo trials and their founding charters were limited in scope. The main focus was on crimes committed in the Second World War and did not address future similar events – thereby leaving a lacuna in the international judicial system. The desire to establish a permanent international criminal tribunal/court gained momentum at the 179th plenary meeting of the UN General Assembly in December 1948 in which Resolution A/RES/3/260B specifically mandated the International Law Commission (ILC) to explore the necessity and prospects of setting up an International Criminal Tribunal.

The International Law Commission went ahead to produce the first draft in 1950s but further progress on this process was affected by disagreements occasioned by Cold War politics. Work on the statute was rejuvenated in early1990s by two major factors namely conflicts in Bosnia-Herzegovina, Croatia and Rwanda as well as the end of Cold War which made consensus building for the promoters of the ICC much easier than ever before.

The ILC produced the final draft on International Criminal Court statute in 1994 which was considered at the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. The resulting Rome Statute created the first ever International Criminal Court (ICC) with a universal mandate to try perpetrators of war crimes, crimes against humanity, genocide and crimes of aggression.

The creation of the ICC was touted by experts and leading politicians as a momentous step towards a world of accountability and peace. This optimism was equally espoused by Kofi Annan, then UN General Secretary, when he stated in his speech:

“For nearly half a century – almost as long as the United Nations has been in existence – the General Assembly has recognized the need to establish such a court to prosecute and punish persons responsible for crimes such as genocide. Many thought … that the horrors of the Second World War – the camps, the cruelty, the exterminations, the Holocaust – could never happen again. And yet they have. In Cambodia, in Bosnia and Herzegovina, in Rwanda. Our time – this decade even – has shown us that man’s capacity for evil knows no limits. Genocide … is now a word of our time, too, a heinous reality that calls for a historic response.”

The memories of the genocide in Rwanda and the effects of wars in Cambodia, Bosnia-Herzegovina and Kosovo/Serbia were still very fresh and this perhaps provided motivation for many countries to sign up to the Rome Statute. The other motivation may be deduced from the desire by some leaders whose countries were facing internal threats to create a platform whereby rivals who had taken up arms against the state would be neutralised by threats of indictments. It has been suggested that President Yoweri Museveni of Uganda – one of the earliest supporters of the ICC – was largely motivated by a belief that the court would assist him end a decade long war championed by the notorious Joseph Kony of Lord’s Resistance Army in the Northern part of Uganda.

It can be safely argued that while some proponents were desirous of seeing a world court that would contain international crimes thereby promoting world peace and harmony, the mandate of the court to some remained narrow – as evidenced by events that have characterised the implementation of the Rome Statute.

How Africa became a focus of the ICC

The wheels of justice started spinning at ICC headquarters in The Hague leading to the arrest and detention of Thomas Lubanga. By 30th November 2011, Charles Taylor (the former President of Liberia), Germain Katanga, Ngudjolo Chui, Jean Pierre Bemba, Callixte Mbarushimana and Laurent Gbagbo (the former Ivorian President) had been apprehended by the ICC.

From the word go, the African continent became the main area of ICC operations largely because most heinous crimes were ostensibly being committed on the continent. Moreover, African leaders themselves sought the court’s intervention and were very enthusiastic in referring the initial cases for prosecution. While it is true that the arrest and detention of high profile figures such as Charles Taylor and Laurent Gbagbo attracted mixed reactions across the African continent largely because of their status as ex-Presidents, the arrests also demonstrated the vulnerability of future heads of State particularly in Africa. However, this issue did not become contentious at that point. It was rather the case of President Omar Al-Bashir of Sudan that propelled the loud voice of resentment and resistance to the ICC by many African Heads of State and Government largely because it became apparent that the ICC was getting closer and closer to the gates of their palatial presidential palaces and statehouses.

The indictment of Al-Bashir seemed to have surprised many Heads of State since Sudan was not a state party to the Rome Statute. In addition; they seemed to have imagined that the referral system by the UN Security Council (UNSC) was farfetched because of the UN rigorous processes. That was until 2015, when the UNSC referred the Darfur crisis to ICC for investigation by Resolution 1593. This culminated in the issuance of warrants of arrest against the President of Sudan, among others for crimes against humanity and other crimes related to genocide, thereby effectively putting African leaders on unprecedented collision course with the ICC. African leaders under the umbrella continental body of the African Union challenged the institution of the ICC and requested the court to suspend warrants of arrests, but to no avail.

On 3rd July 2009, the 13th African Union Summit of Heads of State in Libya unanimously resolved to defy the ICC and not to cooperate in any endeavours to apprehend and hand over the Sudanese President Al-Bashir.

The ICC-Africa affair was further complicated by the warrant of arrest in the cases of Muammar Gaddafi and Saif Gaddafi and the subsequent summons issued in the cases against Uhuru Kenyatta and William Ruto – the President and Vice-President of Kenya respectively. These new cases galvanised resistance of some African Heads against the ICC. Consequently, the African Union passed numerous resolutions calling for the suspension of active trials involving Heads of States and barred any action against any sitting Head of State or anyone acting in that capacity from being subjected to ICC jurisdiction until their concerns were addressed by the ICC and UNSC.

The Governments of Burundi, South Africa and The Gambia initiated processes aimed at withdrawing from ICC .The decision by these countries to withdraw from the ICC was cited with approval at the African Union General Assembly and ultimately inspired the assemblage to unanimously adopt ‘the ICC withdrawal strategy’ recommending member states to follow suit.

While the effect of ‘the ICC withdrawal strategy’ remains a subject of intense debate, the move is arguably the clearest expression of interest to quit the Rome Statute by African countries to date.

The crux of the dispute between Africa and ICC

From the onset, the indictment of President Al-Bashir reignited the debate on the sizzling issue of sovereignty and immunity of Heads of State. The issue of immunity had seemingly been resolved in 2002 (the same year ICC came into force) by the verdict of the International Court of Justice (ICJ) in the widely reported Arrest Warrant case in which that court held that diplomatic immunity extended to:

“Diplomatic and consular agents and certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs.”

From the traditional international law perspective, the immunity for a Head of State/Head of Government in respect to acts done in both an official and private capacity remains assured for as long as such a Head of State remains that position. This school of thought regarding acts done in a personal capacity changed in light of the Pinochet case in which Lord Browne-Wilkinson held that an ex-Head of State has no immunity for acts done in a private capacity while he was Head of State.

However, by signing the Rome Statute state parties had consciously or inadvertently waived all probable immunities under international law and customs for Head of State and other state officials as regards to crimes under the jurisdiction of the ICC, as evidenced by Article 27 of the Rome Statute:

  1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

  2. Immunities or special procedural rules which may attach to the official capacity of a person whether under national or international law shall not bar the court from exercising its jurisdiction over such a person.

In addition, Article 13b of the Rome Statute provides for the mandate of the Security Council to make referrals to ICC, which has been interpreted by the ICC Trial Chamber to mean that such referral is capable of extending court’s jurisdiction to non-party states.

Different scholars and politicians have argued African leaders were tricked into signing the Rome Statute and that they were not alive to the wide implications this had on their immunity and state sovereignty .This view is espoused by Professor Mahoomed Mamdani who asserts that African member states joined in unthinkingly and not knowing that the ICC was likely to be used as tool of oppression for powerful states.

I strongly disagree with a proposition that African leaders were outwitted or that in fact they unthinkingly joined the ICC, largely because the objectives of the court were comprehensible and largely conspicuous as evidenced from annals of history dating from the Nuremburg Tribunal and the final text of the International Law Commission. The spirit of the Rome Statute from the onset could not have been articulated better by anyone than Kofi Annan, then UN General Secretary, when he emphatically avowed:

“In the prospect of an international criminal court lies the promise of universal justice. That is the simple and soaring hope of this vision. We are close to its realisation. We will do our part to see it through till the end. We ask you … to do yours in our struggle to ensure that no ruler, no State, no junta and no army anywhere can abuse human rights with impunity. Only then will the innocents of distant wars and conflicts know that they, too, may sleep under the cover of justice; that they, too, have rights, and that those who violate those rights will be punished.”

It is unquestionably clear that in circumstances such as the ones under which party states signed the Rome Statute, there was an overwhelming desire for the creation of an international court that would hold anyone liable and accountable. Thus, any suggestion that some member states were not aware of the nature of likely implications of the Rome Statue is either unfathomable or simply in bad faith.

Perhaps what seems to be of more concern is the perception that the AU has regarding the UNSC referral process which has been termed as “unfair”, and in some cases deemed to be “selective”. At the annual meeting of 123 ICC state parties in 2013, Ethiopia’s Foreign Minister acknowledged that the ICC was “no longer a court for all” and more ardently this popular criticism was summed up by President of Chad Idriss Deby after being elected African Union Chairman in 2016 thus; “Elsewhere in the world, many things happen, many flagrant violations of human rights, but nobody cares.”

The conduct of the UNSC’s handling of requests from the African Union may have been less than satisfactory, but that cannot be blamed on the ICC but rather on the statute which created an alternative powerbase at the UN where non-party states could sanction or veto any proposals relating to the ICC depending on their own interests. This means that countries such as Russia and USA, which are non-party states, can veto any resolution at the UNSC that is not in tandem with their own interests which has the potential to create double standards and ultimately defeat the principle of equality for all before the law.

Whereas the foregoing criticism is reasonable, it is important not to lose sight of the fact that the African continent has 5 seats at the UNSC and African representatives voted alongside other members on the question of impugned referrals to the ICC – which further reflects the lack of unanimity of African Union member states on the subject matter.

Further, it is equally vital to emphasize that, beyond the two cases at the ICC under UNSC referral and perhaps the unique case of Kenya where the ICC Prosecutor exercised proprio motu powers; all other cases on the African continent were self-referrals to the ICC by party states.

This suggests that the alleged issue of targeting African leaders can only be viewed in the unique context of cases of Al-Bashir and Gaddafi respectively and in my view may not be support this often touted accusation. What remains undeniably apparent is that the UNSC has remained less enthusiastic about other similar cases elsewhere such as Syria, Iraq, Burma and other places which cast doubt on the efficacy of this referral system under the UNSC.

The second part of this analysis will continue by examining the potential for an “African Criminal Court” – as proposed by the AU to establish the African Court of Justice and Human and People’s Rights.

The Value of the Charles Taylor Judgment, by Fiona O’Regan

On Thursday 26 April 2012, Charles Taylor, former President of Liberia was convicted of aiding and abetting eleven counts of war crimes and crimes against humanity by the Special Court for Sierra Leone (SCSL).  Among the crimes Taylor was convicted of were murder, rape, recruitment and use of child soldiers, pillage, enslavement and acts of terrorism (judgment summary available here).The Taylor judgment is historic because it marks the first occasion since Nuremberg that a sitting or former head of state was convicted by an international criminal court. 

The Taylor conviction is the latest in a series of significant achievements for the SCSL.  The Court has in the past drawn praise for being the first international court to convict individuals of recruitment and use of child soldiers as well as, in the same case (the AFRC case), recognise the crime of forced marriage.  In addition, the SCSL has been relatively efficient and managed admirably with its far more limited resources in contrast to the heavily financially supported ad-hoc tribunals who have attracted consistent criticism for their perceived wastefulness.  The Court has also developed a comprehensive outreach programme and engaged in effective capacity building, through employing a significant number of native Sierra Leoneans in its activities.  Furthermore, the conclusion of the Taylor case will mark the final chapter in the work of the SCSL, so that it shall become the first of the major international criminal tribunals of the modern era to complete its mandate.

However, the Taylor judgment is problematic in certain respects.  Firstly, Taylor has only been convicted of crimes committed in connection to the Sierra Leone conflict and thus, the myriad of crimes he is linked to in his native Liberia look likely to remain unpunished.  In addition, Taylor has been convicted of aiding and abetting the crimes by the SCSL, a less serious mode of liability than the Prosecutor would have hoped of securing the convictions under.  Finally, many of those directly responsible for the crimes Taylor was convicted of are unlikely to be brought to justice, which for many of the victims of these crimes is unacceptable and mars the significance of the Taylor judgment. Each of these factors contributes to an image of what J. Peter Pham, in a New York Times Op-ed, calls “incomplete justice” in the Taylor case and “demonstrates the severe limitations of an international criminal justice system that is insufficient to deter future atrocities”.  Thus, whilst Charles Taylor has been found guilty by an international criminal court, the limited scope of this accountability and the impunity gaps it exposes, detracts from the impact such a judgment could have had had the case been more all-encompassing.

Nevertheless, the value of the Taylor verdict should not be dismissed.  International criminal justice by its nature will always be limited and imperfect, considering the amount of potential defendants, the restricted resources and the complex political difficulties that surround the task of bringing individuals to justice.   However, these challenges do not mean that constructive results cannot emerge from this flawed system.  In particular, international criminal trials possess a considerable expressivist potential, whereby the message sending ability of the system can help increase respect for the rule of law as well as facilitate the creation of a historical record of the relevant atrocities.  As Drumbl posits, “International trials have a better chance of becoming the kinds of “popular trials” that define a debate, remind us of the content and value of law, or serve as intergenerational “signposts” in history”.  The classic example of this powerful function is of course the Nuremberg trials, which for all their flaws, still serve as a source of inspiration to those engaged in international justice today.

The Taylor judgment may also carry some of this expressivist potential.  Although the case may not have been ideal, it still represents an exceptional occurrence: a once very powerful figure being held to account by the international community for very serious crimes. According to the Prosecutor in the case, Brenda J. Hollis, the judgment “reinforces the new reality, that Heads of State will be held to account for war crimes and other international crimes,” and “affirms that with leadership comes not just power and authority, but also responsibility and accountability. No person, no matter how powerful, is above the law.” Thus, this conviction ought to send a powerful message to other errant heads of state engaged in similar crimes that impunity is no longer guaranteed.  The limitations of the case may reduce the potency of this message, but they are unlikely to diminish it completely and thus, the Taylor judgment could yet become a beacon of hope to victims of similar leaders that one day these individuals (such as Laurent Gbagbo and Omar Hassan Ahmad Al Bashir) may yet be brought to justice.

Charles Taylor Found Guilty before the Special Court for Sierra Leone by Anna Marie Brennan

The Special Court for Sierra Leone delivered its verdict in the trial of Charles Taylor last Thursday. Charles Taylor had been charged with providing material support to the Revolutionary United Front which killed thousands of civilians in Sierra Leone during the civil war from 1991 until 2002.

 

This is a very significant decision for a number of reasons. First of all, Charles Taylor is the first former head of state to have been convicted before an international criminal tribunal since the Nuremberg Trials in the aftermath of World War II. Even though Charles Taylor was found not guilty of ordering war crimes or crimes against humanity the Special Court for Sierra Leone concluded that he had supplied weapons and soldiers to the Revolutionary United Front. The Court therefore found Charles Taylor guilty of aiding and abetting war crimes during the civil war in Sierra Leone. Moreover, the Special Court for Sierra Leone concluded that Taylor had express knowledge that the Revolutionary United Front were carrying out atrocities against the general civilian population. Even though Taylor claimed that he had attempted to facilitate peace talks with the Revolutionary United Front the Court nevertheless concluded that Taylor had in fact encouraged the rebel group not to disarm and to carry on their armed attacks against civilians.

Human rights groups have welcomed last week’s verdict. In particular, Elise Keppler from Human Rights Watch told the BBC that “[t]his is a significant decision” and that “Charles Taylor has been called to account for the crimes in Sierra Leone. It is an incredible day for international justice but most of all for victims in Sierra Leona and everywhere.” Nevertheless, the Court’s judgement last Thursday was not without controversy. Following the reading of the verdict by Presiding Judge Lussick, Judge El Hadji Malik Sow made an attempt to speak. According to both Jennifer Easterday and Sara Kendall who were seated in the public gallery, “a few words from an unidentified speaker [were heard] before the microphones were cut off.” A metal grate was also lowered to hide the courtroom from the public gallery. Moreover, while people waited for press statements from the prosecution and the defense teams, a document was apparently circulated containing the statement made by Judge Sow. It would appear that the court stenographer had carried on typing into the transcription program even though the other judges were filing out of the courtroom. This text appeared on the screens of those seated in the courtroom. A legal assistant on the defense team of Charles Taylor wrote down the brief statement out of concern that the Special Court for Sierra Leone would not include the judge’s statement in the official record. Judge Sow’s statement was as follows:

The only moment where a Judge can express his opinion is during the deliberations or in the courtroom, and pursuant to the rules, when there is no deliberations, the only place for me in the courtroom. I won’t get – because I think we have been sitting for too long but for me I have my dissenting opinion and I disagree with the findings and conclusions of the other Judges, standard of proof the guilt of the accused from the evidence provided in this trial is not proved beyond reasonable doubt by the Prosecution. And my only worry is that the whole system is not consistent with all the principles we know and love, and the system is not consistent with the values of international criminal justice, and I’m afraid the whole system is under grave danger of just losing all credibility, and I’m afraid this whole thing is heading for failure.

 

Despite the fact that Judge Sow, as an alternate judge, was not entitled to speak during the delivery of the verdict, his brief statement raises a number of interesting questions. First of all, his statement indicates that there were “no deliberations” indicating that there were significant communication problems among the judges in Trial Chamber II. Judge Sow also criticised the length of the trial which lasted for nearly four years. He also questioned the Trial Chamber’s judgment that the Prosecution had satisfactorily proven their case against Charles Taylor beyond reasonable doubt. Nevertheless it is important to note that the full judgment has yet to be released. Therefore, it is not yet clear what evidence was found satisfactory to meet the burden of proof required. In any event, it remains to be seen whether the Judge Sow’s statement will have a lasting impact on the legacy of the Special Court for Sierra Leone.

International Criminal Court Delivers First Ever Verdict in Lubanga Case by Anna Marie Brennan

The International Criminal Court delivered its first ever verdict in The Hague this morning in the case of Thomas Lubanga.

Lubanga, who became the political leader of the Union of Congolese Patriots in 2002, had been charged with recruiting and using child soldiers in armed hostilities in the north-eastern region of the Democratic Republic of Congo (DRC). He pleaded not guilty to the charges and contended during trial that he did not take any part in the hostilities. Lubanga also argued that he was only the political leader of the UCP and was not the commander of the party’s armed wing. However, the Prosecution accused Lubanga of using boys and girls under the age of 15 as bodyguards, sex slaves and soldiers.

During the proceedings video footage was admitted into evidence which appeared to depict Lubanga inciting child soldiers to actively participate in tribal warfare in the north-eastern region of the DRC. In a unanimous decision, the three trial judges held that the evidence proved that as the leader of the UCP and its armed faction, Lubanga was responsible for the recruitment of child soldiers who took part in inter-tribal warfare in the region. 

This is landmark decision for a number of reasons. First of all, it is the first verdict to be handed down by the International Criminal Court after it was established more than ten years ago. It is also the first ever trial to focus specifically on the use of child soldiers in an armed conflict situation and therefore could set a precedent for individuals such as Joseph Kony, the leader of the Lord’s Resistance Army in Northern Uganda, who still remains at large.

At the same time, the trial of Thomas Lubanga was not without controversy. In June 2008, the proceedings were halted after the court ruled that the refusal by the Prosecutor to disclose exculpatory evidence, from sources such as the United Nations, had infringed the accused’s right to a fair trial. Even though the Prosecutor had acquired the evidence on the condition of confidentiality the trial chamber held that the Prosecutor had wrongly applied the Rome Statute of the International Criminal Court. As a consequence, the International Criminal Court ordered the release of Lubanga on the grounds that a fair trial of the accused was not possible because there was no longer any justification for his continued detention. However an Appeal Chamber agreed to keep Lubanga in custody while the Prosecutor appealed the trial chamber’s decision. In November 2008, the Prosecutor agreed to make all confidential information available to the trial chamber. As a result, the trial chamber overturned its ruling and ordered the resumption of the trial. Although the Prosecutor was widely criticised for his conduct the International Criminal Court was commended for its efforts to ensure the fair trial of Lubanga. 

Nevertheless, the International Criminal Court can be criticised for a number of reasons. States such as China, Russia and the United States who are permanent veto-holding members of the UN Security Council have not signed the Rome treaty establishing the Court. This in turn has arguably undermined the authority and influence of the court in the international arena. The Court is also impeded in carrying out its functions by not having its own police force to execute arrest warrants and as a consequence relies on the goodwill and support of the international community to capture and detain suspects. However, the most contentious issue is that despite the fact that the International Criminal Court has nearly 700 employees and had a budget of nearly 900 million dollars during the first decade of its existence it still took almost seven years to initiate the trial of Thomas Lubanga. 

International legal experts, such as Professor Schabas at Middlesex University, have also criticised the outgoing Prosecutor of the ICC, Moreno Ocampo, for only investigating and initiating proceedings against the losing parties in armed conflict situations. In particular, Professor Schabas has argued that the prosecutor has “avoided situations where he would be likely to step on the toes of the permanent members of the Security Council, from Afghanistan to Gaza, to Iraq, to Columbia.” In conclusion, a persuasive argument can be made that the International Criminal Court may not be fulfilling the actual purpose for which it was established; to bring individuals suspected of committing international crimes to justice.

ICC reverses Al-Bashir Genocide ruling

The appeal chamber of the ICC has today issued a ruling reversing a decision of the pre-trial chamber on the Al-Bashir case. Last year the pre-trial chamber had decided that the prosecution had failed to provide sufficient evidence to charge Sudanese president Omar Hassan al-Bashir with genocide. The appeal court has now concluded that

The decision by the pre-trial chamber not to issue a warrant in the respect of the charge of genocide was materially affected by an error of law.

The case will now go back to the pre-trial chamber for them to rule on whether to add genocide to Bashir’s charge sheet. The president of Sudan is already charged with seven counts of crimes against humanity and war crimes, including murder, extermination, torture and rape.

Sudan’s response was, as would be expected, critical of the ruling claiming that it was motiviated by politics and designed to harm democratic elections due to take place in April. A senior information ministry official was quoted as saying:

This procedure of the ICC is only to stop the efforts of the Sudanese government towards elections and a peaceful exchange of power.

ICC issues arrest warrant against Sudan president

The International Criminal Court (ICC) today issued an arrest warrant and charged the Sudanese head of state Omar al-Bashir with war crimes and crimes against humanity arising out of the conflict in Darfur. The judges dismissed the prosecution’s most contentious charge of genocide which arose out of allegations that Bashir had tried to wipe out three non-Arab ethnic groups.This is the first time the ICC has issued an arrest warrant against a sitting head of state.An aide to President Bashir was quoted in the Guardian as describing the decision as “neo-colonialism”; whilst protesters took to the streets of the Sudanese capital, Khartoum.

The ICC, in its press release, reported that

“The Chamber found that Omar al Bashir, as the de jure and de facto President of Sudan and Commander-in-Chief of the Sudanese Armed Forces, is suspected of having coordinated the design and implementation of the counter-insurgency campaign. In the alternative, it also found that there are reasonable grounds to believe that he was in control of all branches of the “apparatus” of the State of Sudan and used such control to secure the implementation of the counter-insurgency campaign.”

Human rights groups, including Amnesty International and Human Rights Watch, welcomed the decision but there has been disquiet amongst those who have been trying to broker peace talks in the area. Arab states and the African Union had argued for a postponement of the charges to allow Bashir a final chance to end the Darfur conflict while not under duress.

Sudan does not recognise the ICC, and Bashir said the court could “eat” the arrest warrant, which he described as a western plot to hinder Sudan’s development. Despite this, the case will raise questions about his political future.

Seminar: Phakiso Mochochoko

On 27th February 2009 the Centre for Sustainable Livelihoods and the Centre for Criminal Justice and Human Rights will host a Seminar by Phakiso Mochochoko on MDGs and International Justice. The seminar will be chaired by Mrs Mannete Malethole Ramaili, Ambassador of the Kingdom of Lesotho.

The seminar will take place at 1.00 pm in Room 201 O’Rahilly Building (ORB), UCC

Phakiso Mochochoko is the Senior Legal Advisor (Registry) at the International Criminal Court.

For further in formation please contact Dr. Stephen Onakuse at s.onakuse@ucc.ie or at ext. 3350

CCJHR Advisory Board Member appointed as new High Commissioner for Human Rights

This blog post was contributed by Dr Siobhan Mullally, Joint Director of the CCJHR

The CCJHR is delighted to welcome the appointment of Navanethem (Navi) Pillay, of South Africa, to succeed Louise Arbour as High Commissioner for Human Rights — the leading UN human rights official. At a special meeting in New York on 28 July 2008, the UN Secretary-General’s nominee was confirmed by consensus. Ms. Pillay’s four-year term as High Commissioner will start on 1 September 2008.

Judge Pillay is a member of the CCJHR Advisory Board. In February 2008, Judge Pillay delivered the Second Annual Lecture of the CCJHR on the subject of The Role of the International Criminal Court in Promoting Human Rights. The lecture was chaired by Hon Justice Maureen Harding Clark of the High Cour (former judge of the ICC). The lecture can be viewed here.

Biography of Navanethem Pillay
As a member of a non-white minority in apartheid South Africa, and as a front-line, grassroots lawyer who acted as a defense attorney for many anti-apartheid campaigners and trades unionists, Ms. Pillay has direct personal experience of many of the issues that a High Commissioner for Human Rights covers under her mandate. She has also been very active in supporting women’s rights, and was one of the co-founders of the international NGO Equality Now, which campaigns for women’s rights. She has also been involved with a number of other organizations working on issues relating to children, detainees, victims of torture, and of domestic violence as well as a range of other economic, social and cultural rights. More recently, Ms. Pillay has served as a judge on two of the most important international criminal courts in the modern era, spending eight years with the International Criminal Tribunal for Rwanda, including four years as its President, and then the past five years on the International Criminal Court in the Hague. Both of these courts deal with the extreme end of the human rights spectrum — war crimes, crimes against humanity and genocide, and are at the cutting edge of the development of international law in these areas.

ICC Prosecutor to Charge Sudanese President?

This blog post was submitted by PhD candidate and Government of Ireland Scholar Pádraig McAuliffe, who is reading for a PhD entitled The Serious Crimes Process of East Timor in the Field of Human Rights Law under the supervision of CCJHR Co-Director, Dr. Siobhán Mullally

The Guardian, The New York Times and the BBC this morning report that the ICC Prosecutor, Luis Moreno Ocampo is to seek the arrest of the Sudanese President Omar Al-Bashir on Monday next for war crimes, crimes against humanity and genocide committed in Darfur. Currently, two Sudanese (Ali Kushayb, a leader of the Janjaweed militia, and Ahmad Harun, currently fulfilling one of the more ironic positions imaginable, that of domestic Humanitarian Affairs minister) are charged with 51 counts of war crimes and crimes against humanity, including acts of murder, persecution, torture, rape and forcible displacement. Neither has come before the Court. At a time of existential crisis for the ICC, the move can be interpreted as a bid to reassert the ongoing relevance of a body that has yet to complete a trial since establishment in 2002 after the signing of the Rome Statute in 1998. As William Schabas, the head of the Irish Centre for Human Rights at the National University of Ireland, notes: “This is a very decisive moment for the court. It has been going through a terrible period, this could revive its image and make people feel it’s a robust dynamic institution, or it could be another blow.” This note of pessimism is worth bearing in mind – the story of the ICC has been one of disappointment, disillusionment and anticlimax, most notably in the disintegration of the case against Joseph Kony and allegations by diplomats that the pursuit of arrest warrants in Uganda hampered peace negotiations.

There are justifiable fears that an indictment of Al-Bashir will impair what halting progress there has been made in calming, albeit imperfectly, the situation in Darfur. There are also fears an indictment might serve as motivation to remove international aid workers and peacekeepers in Darfur. The NY Times quotes Alex de Waal, a Sudan expert at the Social Science Research Council in New York: “Bashir is paranoid; he feels the world is out to get him. He is prone to irrational outbursts and could respond in a very aggressive way.” Indeed, peacekeepers were attacked with seven fatalities last Tuesday, while several members of Doctors Without Borders were expelled from the country last week. A charge against Al-Bashir would represent another welcome erosion of the idea of head of state immunity most notable in the prosecutions of Slobodan Milosevic and Charles Taylor. Though both were sitting heads of state at the time of indictment, there was little prospect of them being brought before the ICTY and SCSL while in power, as the Sudanese President so securely is. Milosevic and Taylor had to be removed from office domestically before being brought to justice, something there is little prospect of in Khartoum. Charges might also be welcomed as a move away from the patent absurdity of charging militia leaders and Ministers but ignoring those “conflict entrepreneurs” further up the chain who instigate or retain the capacity to restrain the violence.

Nonetheless, aside from the Kantian moral imperative to prosecute, what of the other instrumental purposes that so often animate transitional justice? Put more simply, given the patent unlikelihood of Al-Bashir being arrested and brought to The Hague any time in the foreseeable future, what good will come from charging someone who will never come before the courts and from hardening the attitude of someone who has shown a willingness to slaughter his own people and to remove international peacekeepers and aid workers whenever it becomes politic to do so? The ICC Chief Prosecutor’s attitude seems to be that it is better to light a single candle than to curse the darkness, but the candle could set fire to the negotiations that have brought peacekeepers to Darfur and restrained the butchery. It may dash what little hope of progress that remains.