Centre for Criminal Justice and Human Rights

University College Cork, School of Law Blog

Centre for Criminal Justice and Human Rights

An Analysis of Common Justifications for Prisoner Disenfranchisement

This guest blog by Samantha Morgan-Williams (UCC School of Law PhD researcher) examines recent developments in the UK regarding prisoner disenfranchisement.

The ongoing saga of prisoner disenfranchisement in the UK has recently come to a head with the Committee of Ministers of the Council of Europe closing the supervision of the prisoners’ voting rights cases against the United Kingdom (UK) in December 2018. In adopting final resolution CM/ResDH(2018)467 the Committee has effectively accepted that the limited ‘administrative amendments’ are sufficient to satisfy the ECtHR. In the wake of the New Zealand Supreme Court’s confirmation that disenfranchising prisoners is inconsistent with the Bill of Rights, and amidst the enfranchisement of 1.5million convicted felons in Florida, this post seeks to revisit the political basis for disenfranchising prisoners, appraising determining the core arguments presented for justifying blanket bans on prisoner disenfranchisement.

Justification for Prisoner Disenfranchisement

Proponents of a ban on prisoner voting often justify disenfranchisement under one of the following reasons: the civic death or civic virtue ground; the social contract; or that disenfranchising prisoners achieves sentencing aims.

The Civic Death/ Civic Virtue Argument

The civic virtue and civic death arguments, although predominantly intertwined and spawned from the same ideology, differ on the actual reason or main aim of their use. The civic virtue argument stems from the act of committing of a crime as a member of a democratic process. This strand of this argument asserts that when one violates the laws one participated in creating, that one defaults on the agreement to respect the law and hence forfeits any right to assist further in creating it, in short, one loses their civic virtue. However, in order to say that prisoners lack civic virtue, certain generalisations must be inferred about their character and although it is true that people who break the law seemingly do not respect the law, the justification on this premise for taking away their vote based on a lack of civic virtue appears to create or infer a second punishment. Traditionally in most jurisdictions, sentences for crimes appear in the form of incarceration, thereby invoking the issue that if there has already been a punishment given, then what is the second crime then that prisoners are being punished for by forfeiting their vote? It follows that disenfranchisement is fundamentally an additional punishment and as such requires an additional justification, yet none has ever been supplied as far as this author can gauge. Consequentially this idea of civic death or a second punishment appears jurisprudentially to be morally unjustifiable. Thomas Hammarberg, former Commissioner for Human Rights at the Council of Europe, has articulated his opinion on this matter stating that:

 Prisoners though deprived of physical liberty, have human rights … Measures should be taken to ensure that imprisonment does not undermine rights, which are unconnected to the intention of the punishment.

Thomas Hammarberg

The civic death argument, much like the civic virtue argument, centres on a removal of civic rights or the right to be involved in the shaping of society by virtue of committing a crime. In losing civic virtue, one befalls civic death, a term which conjures forth draconian ideas of having damaged the democratic process and as a result losing all rights. In other words, if you refuse to follow the law, you clearly do not respect it and should lose the ability to partake in its development.

Although this is the most common justification used to justify the continuation of a blanket ban on voting for those imprisoned, it is undoubtedly the weakest, stemming from the fact that those who utilise the argument have yet to explain its rationale. Further, a brief overview of the history of this particular justification serves to undermine its very practice. The claim of civic death suggests that through the act of their crimes, prisoners lose their civic virtue, are no longer worthy of being afforded civic duties and as a result befall ‘civic death.’ It is apparent therefore that the relationship between the individual and the state changes radically when one is found guilty of an offence and incarcerated.

It is clear therefore the connected civic death and civic virtue argument is decidedly weak and standing as it does on feeble and unpersuasive evidence. The term ‘civic virtue’ is used as haphazardly as ‘civic death’ in support of prisoner disenfranchisement, with little evidence that its proponents can even define the essential term of the premise nor explain how it justifies the ban.

The Social Contract

The Social Contract theory has been used to justify the current stance taken in Australasia by the Australian and New Zealand Legislators respectively. In Australia, prisoners serving sentences of more than three years are denied the right to vote, and the Australian Human Rights Commission recognised that this is in breach of the State’s obligations under Article 25 ICCPR. In New Zealand, the position was much more severe, mirroring the UK’s stance with the effect that no person incarcerated after the amendment could register on the electoral roll. The High Court of New Zealand, highlighted the weakness of such arguments in the Arthur William Taylor case:

[T]hose ‘who infringe the laws of society to the extent that they are put into penal institutions should not be entitled to exercise a vote in a general election.’ A principled view to the contrary of Justice, is that a sentence of imprisonment should not deprive a person of civil rights, beyond those inherent in the sentence, namely freedom of movement and association. (Taylor v Attorney General [2015] NZHC 1706 at 25).

Taylor v Attorney General [2015] NZHC 1706 at 25

The use of the Social Contract argument places a great deal of trust and onus onto the effectiveness of a criminal justice system, as in order for the Social Contract theory to stick as a justification, we would need to ensure that all criminals are incarcerated or there would need to be an insured and complete consistency in sentencing process and a clear delineation of such. Pursuant to this, the Social Contract theory gives no guidance as to how we should do this or how we should create this degree of seriousness and minimal threshold. Furthermore, this argument neglects the comparative and complementary question of whether society has upheld its duties to the criminal, as they are also a person given obligations under the Social Contract. In short, we must not forget that the contract is bilateral.

The second strand of the Social Contract argument can perhaps be offered as an indicator of why the punishment manifests itself in such a way. The Social Contract theory asserts that when one violates the laws one participated in creating, the criminal defaults on the agreement to respect the law and hence abdicates any right to assist further in creating it. In short, while the first argument is based on the fact of the law breaking, the latter part of the argument claims that society can deny the vote to citizens based on an inference about their attitude to the law, given their law-breaking. In summary, both the civic death and Social Contract argument appear to follow the rather arbitrary approach that if you refuse to follow the law you clearly do not respect it and should lose the ability to partake in its development.

Achieving Sentencing Aims

A further justification often presented in favour of a continuing ban on prisoner enfranchisement is the premise that the blanket ban serves certain sentencing aims. Such a position is arguably the most untenable, particularly when one considers the vast research evidencing that engaging prisoners in civic duties mitigates ‘othering’ and has a direct consequence lowered rates of recidivism. This position however, found great favour in the UK in their attempts to justify the blanket ban created under the s.3 of the Representation of the People Act, 1983.

During a statement providing evidence before the Joint Committee on the Draft Voting Eligibility (Prisoner) Bill, the Right Honourable Jack Straw MP (former Home Secretary and Justice Secretary) and David Davies MP (former Shadow Home Secretary and Minister for Europe) both advocated this approach:

By committing offences which by themselves or taken with any aggravating circumstances including the offender’s character and previous criminal record require a custodial sentence, such prisoners have forfeited the right to have a say in the way the country is governed for that period.

Joint Committee on the Draft Voting Eligibility (Prisoner) Bill

Consequently, despite the over-generalisation of politicians contrary to this, research proves that maintaining a life as close to normality as possible during incarceration will make re-integration an easier process, aide rehabilitation and diminish recidivism rates upon the prisoner’s release. This point was recognised by Judge Caflisch in Hirst (No. 2) at para. 5 of his concurring judgment where he stated that:

The UK Government further contended that disenfranchisement in the present case was in harmony with the objectives of preventing crime and punishing offenders thereby enhancing civic responsibility (judgment, §50). I doubt that very much. I believe, on the contrary, that participation in the democratic process may serve as a first step toward re-socialisation.

Judge Caflisch in Hirst (No. 2) at para. 5

The supporting claim here is that the loss of the vote sends a clear message to the wrongdoer about the evil of their conduct: are we telling them that because they are a bad person they will not only be incarcerated but also further excluded as they committed a crime and their opinion is no longer valued? The second aim offered under the title of sentencing aims is deterrence. However, there is little evidence to support this stance and therefore this justification fails for two reasons. Firstly, policy makers are assuming that people know about disenfranchisement laws. Evidence suggests however the majority of those incarcerated are more concerned with maintaining their personal and familial relationships and losing their freedom than with their suffrage. Thus, the deterrence value of the deprivation of a right to vote is slim to none. Acknowledging that there are exceptions to each rule, it appears that if a person has chosen to forsake their civil liberties then deprivation of their electoral rights may not provide effective deterrence. On the contrary, greater civic involvement actually contributes to an easier transition into life post-incarceration.


In summary, recent events resulting in the enfranchisement of prisoners have been both welcomed and scorned in equal measure. When considering the interdivisibility of human rights and the apparent ‘worthy’ rights holder which disenfranchising prisoners creates, it is clear that prisoner disenfranchisement is an extremely polarising issue and arguably at odds with a number of legal norms. However, when the justifications for restricting prisoners from exercising their voting rights are examined, it is clear that such justifications – civic death, civic virtue, the social contract and the ambiguous achieving of sentencing aims – cannot withstand scrutiny.

‘Beyond McMahon – the future of asylum reception in Ireland’

We are delighted to welcome this guest post by Claire Dorrity, lecturer in social policy in the School of Applied Social Studies, UCC.

Nasc logoOn Wednesday 25th April 2018 Nasc and the Centre for Criminal Justice and Human Rights (CCJHR) co-hosted a conference in UCC on the future of asylum reception in Ireland. The conference participants included members of the Working Group (Working Group to Report to Government on the Protection Process, including Direct Provision and Supports to Asylum Seekers), academics, representatives from state institutions, international speakers from both the Portuguese and the Scottish Refugee Councils, representatives from the Irish Human Rights and Equality Commission, Migrant NGO representatives, and members of the asylum seeking community in Ireland. The main foci of the conference related specifically to the system of direct provision, models of integration and rights that are afforded to asylum seekers.

Broadly speaking, asylum policy incorporates three key areas: – 1) the rights and entitlements of those entering the state to seek asylum, 2) the reception conditions afforded to asylum seekers by the state, and 3) how asylum issues are represented both in policy and practice. The political representation of asylum issues will also be determined by the modes of participation, engagement and inclusion available to asylum seekers. In Ireland, rights available to asylum seekers to influence political outcomes and decision-making processes remain severely restricted. This is mostly attributed to the nature of immigration policy, more specifically the asylum process and the restricted status asylum seekers occupy within the Irish state (Titley, 2012; Lentin, 2004).

The system of direct provision (DP) has been in operation in Ireland since 1999 and was made the official mechanism for the reception of asylum seekers in 2000. Prior to the introduction of DP, asylum seekers had the right to access the labour market and receive social welfare payments, equivalent to that of an Irish citizen. The system of DP, however, removed that right and since then asylum seekers have been the subject of an increasing array of restrictions on many of their basic human rights. The system of DP placed asylum seekers in designated accommodation centres dispersed around the country and has continued to operate for the past 18 years.

The exclusionary aspects of DP are well documented (Kinlan, 2013; Arnold, 2012; Lentin, 2012; Titley, 2012; Akidwa, 2010; FLAC 2010; Considine and Dukelow, 2009). They are evident in the location of DP centres, generally located away from local communities, limiting the ability of asylum seekers to integrate into communities. Also evident in this system is the denial of the right to work and third level education, economic marginalisation, conflated with limited rights and freedoms. A weekly allowance of €19.10 per week adults and €9.60 per child was permitted from 2000 until 2016. This rate did not change in over 16 years despite incremental increases in other social welfare allowances. In January 2016 the child allowance increased to €15.60 and the adult weekly allowance now stands at €21.10 (Department of Social Protection, 2016). In 2017 the rate increased to €21.60 for both adults and children (Department of Employment Affairs and Social Protection).

The administering of the direct provision system is carried out by the Reception and Integration Agency (RIA), as part of the Department of Justice and Equality, who are contracted to provide full board and accommodation for asylum seeker residents. There is currently no requirement for staff employed in DP centres to undertake training in the area of child protection or to have had any training of working with asylum seekers, vulnerable people or children (Irish Refugee Council, 2013). However, RIA has now brought their child protection policies in line with new legislation and have a dedicated seconded Tusla social worker on staff. There is also now a requirement for training in child protection when working with vulnerable children and adults (RIA, 2018).

The introduction of the policy of DP has been widely criticized, by both academics and migrant NGOs alike, for its failure to consult with asylum seekers and migrant NGOs prior to its implementation and also for the exclusionary and restrictive nature of the system and its impact on the daily lives of asylum seekers (O’Connor, 2003; Healy, 2007; Lentin 2012). Furthermore, while the European Union introduced a Council Directive 2003/9/EC of 27 January 2003 (revised in 2013) putting in place minimum standards for the reception of asylum seekers, the Irish state opted out of this directive. This allowed Ireland to continue administering the system of DP at a policy level. The system allows for little recourse for those living within DP accommodation (Irish Refugee Council, 2011). In 2012 the Irish Refugee Council released a document addressing child poverty in the DP system entitled ‘State Sanctioned Child Poverty and Exclusion’. The report highlighted both child poverty and child protection issues. More specifically it stated:

The Special Rapporteur on Child Protection, Geoffrey Shannon, has raised concerns about the detrimental effect of Direct Provision accommodation on children and on parents’ ability to provide adequate care. He describes the system as amounting to institutionalised poverty (2012:21)

Also highlighted was ‘unsuitable living conditions, malnourishment, poverty, exclusion and lack of play space’ (2012: 21). The Irish Human Rights and Equality Commission have also repeatedly expressed concern about the human rights of residents in DP (Irish Human Rights and Equality Commission, 2014). Both NGOs and academic commentators have criticised the system and highlighted the challenges to integration that DP presents for asylum seekers (Irish Refugee Council, 2012; FLAC, 2010; Nasc 2007; Fanning 2002).

Reflections on the Conference

Political representation is highlighted as one of the most crucial avenues to democratic processes of representation (Pitkin, 1967). It both establishes the legitimacy of democratic institutions while also creating institutional incentives for state bodies to respond (Dovi, 2017). Political representation has been acknowledged as an important means of providing voice to oppressed groups through assigning meaning to the manner in which groups are represented and importing significant issues and their relevance into the body politic (Young, 2000). The literature on inclusive political representation indicates that the exercise of voice and demanding more responsiveness and accountability from state institutions is more likely to occur when other participatory mechanisms are present (Rocha Menocal, 2014). In this context, developing more inclusive representative structures and fostering strong mechanisms of inclusion is highly significant.

The conference ‘Beyond McMahon – the future of asylum reception in Ireland’ took a step towards facilitating inclusive dialogue on key asylum issues. It provided an interactive space involving the participation of state and non-state actors, along with a range of participants working directly or indirectly with asylum seekers. Most refreshing was the inclusion of the voices of asylum seekers. Lucky Khambule, a spokesperson from MASI (Movement of Asylum Seekers in Ireland) gave a poignant contribution from the perspective of the asylum seeker, giving the audience a real insight into the lived experience of those accommodated in the DP system. This provided both the speakers and the attendees with a clear sense of how oppression and injustice operates within the DP system.

The international perspectives from both Teresa Mendes, Director of the Portuguese Refugee Council and Sabir Zazai, Director of the Scottish Refugee Council provided an invigorating alternative to systems such as DP, placing a focus on the importance of making explicit the vital supports required for asylum seekers when arriving in host countries. Both of these approaches provided avenues for new thinking in relation to how Ireland might respond to the reception of asylum seekers in future policy formation. Both contributions highlighted the important role refugees play in enriching and providing positive contributions to host societies. The right to work was highlighted as playing a crucial role in supporting refugees to integrate into community life. Promoting autonomy within the asylum seeking community was also viewed as a key factor in ensuring successful and inclusive participation and integration. These explicitly inclusive and supportive systems of reception illustrate how the Scottish and Portuguese models emphasise humanitarian principles and place human security at the centre of their approach. It also highlights how such approaches can assist in resolving some of the tensions and challenges Ireland currently faces.

Overall the conference discussions illuminated the need for a more coordinated approach to asylum policy that does not involve punitive measures or prolonged periods of time in DP. The contributions and discussions made clear that any coherent policy must prioritise rights and dignity. This will require a willingness on the part of all parties to accept that the current system is not fit for purpose and failing asylum seekers socially, financially and politically. In bringing together all parties, the conference set the foundations for building better working relationships but highlighted that such relationships must place asylum seekers at the forefront of this process. This will require new and different approaches, one that treats asylum seekers in a more humane and dignified way and as people who can make a valuable contribution to Irish society if given the opportunity to do so.

Further References:

Reflections from the Exercise Viking18 on civil-military cooperation in multinational crisis response and peace operations

Viking18 Red Cross team

Viking18 Red Cross team

This guest blog by Lenin Tinashe Chisaira (candidate on the UCC LLM International Human Rights Law & Public Policy programme) reflects on his experience in the Viking18 civil-military training exercise in Custume Barracks, Athlone.

The Exercise Viking18 on civil-military cooperation in crisis response and peace operations was conducted from 16th – 26th April 2018 at sites in Brazil, Bulgaria, Finland, Ireland, Serbia and Sweden, with over 2,500 military personnel and civilian humanitarians simultaneously working on the same fictitious scenario in real-time. The Swedish Armed Forces are the primary coordinator and host of the exercise, in conjunction with the Folke Bernadotte Academy (the Swedish agency for peace, security and development). The Viking training exercises are held every four years; therefore 2018 was an opportune time for the dozen law and international relations students from University College Cork who applied and got selected to participate in the exercise. It was an informative and hectic week for students interested in international humanitarian law.

The exercise is conducted in real-time. The Exercise Viking focused on the fictional State of Bogaland, whose map, however, is modelled on Sweden. There is an excellent level of seriousness from both military, police and civilian participants and that makes the whole exercise worthwhile. The Exercise Viking indeed develops a sense of ‘on the ground’ experience for all participants.

In Ireland, the exercise was conducted at Custume Barracks in Athlone, County Westmeath. The participating UCC team was joined by other students from University College Dublin and NUI Maynooth. Students were divided amongst dedicated Irish Aid mentors, and they participated in the simulated ground operations of some humanitarian aid agencies. These agencies included the Red Cross, UN Office for the Coordination of Humanitarian Affairs (OCHA), UN Mission in Bogaland (UNMIB), the UN High Commission for Refugees (UNHCR) and non-governmental organisations (NGO).

As UCC students, we had some helpful prior pieces of training in Cork, conducted by our UCC coordinators Dr Dug Cubie from the School of Law and Dr David Fitzgerald from the School of History. We also had a briefing from Comdt Laura Fitzpatrick, from the Defence Forces Ireland. She is also the Chief Instructor at the United Nations Training School Ireland (UNTSI).

As a participant, I was first deployed to the Red Cross office and then to the OCHA office due to the availability of experienced mentors. My day during the exercise would start at 0700hrs each morning with breakfast and then going over the events of the previous night. Information was shared via email, telephone and especially dedicated social media and newspapers. I would draft emails to seek clarity on specific issues with the military side of the exercise.

There were also daily briefing meetings. As a participant, I attended the OCHA briefing meetings with humanitarian agencies where we planned activities such as the deployment of secure aid convoys to disaster-affected regions of Bogaland. This participation in meetings was very informative as it informed how civilians and the military should communicate in a conflict zone.

I also managed to attend some army briefings as an observer, notably the morning Commanders Briefing and the Operations Briefing. During the Commanders Briefing, leaders of each army unit from intelligence, operations, legal and others would brief the commander about the situation on the ground and discuss the planned activities for the next 24 hours. This method was also the situation with the Operations Briefing.

On the overall, the Exercise Viking was a critical and practical element to my LLM experience in Ireland. I imagine that it was similarly helpful and practical for all the other participating students, civilian, police and military personnel from around the world. It added a real-world dimension on what life and interaction would be like in a humanitarian situation, in conflict areas.

The only downside is that the exercise is only held every 3-4 years, which means such an opportunity would only be availed to students and other stakeholders in the year 2021.

For future participants, the training is a once in a lifetime event, and it adds to the practical side of learning. It is a welcome experience that holds together lessons from international humanitarian law, international relations, development planning, crisis response, and conflict resolution and human rights sides. And yes, in the end, we were awarded #Viking18 pins and certificates for successful participation in Exercise Viking 18.

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.


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.


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.


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.

Zimbabwe’s November 2017 Military Action: A Critique on Constitutionalism, Liberation Armies and Political Realities

This guest blog is written by Lenin Tinashe Chisaira (LL.B (Hons) (Univ. of Zimbabwe)) who is a candidate on the UCC LLM International Human Rights Law and Public Policy programme.


From the time on 13 November 2017, when Commander of the Zimbabwe Defence Forces (ZDF), General Constantino Chiwenga issued a press statement ostensibly protesting against purges occurring in the ruling Zimbabwe African National Union – Patriotic Front (Zanu-PF) party, there were debates, justifications and criticisms concerning military interference in the affairs of a civilian government. On 15 November 2017, a mere two days after the General’s statement, the ZDF blockaded the centres of State power in Zimbabwe’s capital Harare although insisting that the actions were not a military takeover of government. The centres of state power are contained in a few colonial era-buildings clustered around the Anglican (Church of England) Cathedral of St Mary’s and All Saints in Harare, the proximity to the Church bearing testimony of the country’s colonial past. The buildings that were barricaded include the President’s and Cabinet meeting offices at Munhumutapa Building (Executive); the High Court, Supreme Court and Constitutional Courts mainly housed in the Mapondera Building opposite Munhumutapa (Judiciary) and the Parliament Buildings (Legislative). The ZDF military action was code-named “Operation Restore Legacy” and resulted in the eventual resignation of President Robert Gabriel Mugabe and the nomination of former Vice President Emmerson Dambudzo Mnangagwa as Mugabe’s successor.

The ZDF relied on the preamble to the 2013 Constitution of Zimbabwe to justify military intervention in politics. General Chiwenga indicated that people who had participated in the liberation struggle were being targeted by “counter-revolutionary elements” and hence the Zanu-PF purges signified disrespect for liberation struggles and violated the constitution. The constitutional preamble included the following phrase: “Exalting and extolling the brave men and women who sacrificed their lives during the Chimurenga/Umvukela and national liberation struggles and honouring our forebears and compatriots who toiled for the progress of our country” (ZDF Statement, 13 November 2017) (Constitution of Zimbabwe, preamble, 2013). This was mainly meant to pre-empt other constitutional provisions such as Section 211(3): “The Defence Forces must respect the fundamental rights and freedoms of all persons and be non-partisan, national in character, patriotic, professional and subordinate to the civilian authority as established by this Constitution.” (Constitution of Zimbabwe, 2013)

In place of usual protestations aimed at usurpations of democracy and human rights, that usually accompany a coup d’état elsewhere in the world (See for instance the UN statement on the 2009 coup in Honduras), the ZDF military action was seemingly met with reasonable popular support and sighs of relief around the world and in Zimbabwe. The opinion would not be meant to serve as either a vote of confidence or no confidence in the military action, but to make a constitutional and political realist analysis of the ZDF’s actions. The analysis will seek to balance the context of the Zimbabwean political realities and liberation legacies with the dictates of an era of democracy, constitutionalism and human rights.


At both domestic and international level, there was general acceptance of the November 2017 military action. This was mainly as consideration for the unique status of affairs in Zimbabwe where the one-man Robert Mugabe rule has been a feature for the 37 years between 1980 and 2017. On 18 November, thousands of Zimbabweans took to the street in a solidarity march with the ZDF. In addition, in the House of Commons of the United Kingdom, the country’s erstwhile colonial power, the Foreign Secretary issued a statements that “Honourable Members on all sides of the House have taken a deep interest in Zimbabwe for many years – and I pay tribute to the courage and persistence of the Honourable Member for Vauxhall, who has tirelessly exposed the crimes of the Mugabe regime, visiting the country herself during some of its worst moments… Every Honourable Member will follow the scenes in Harare with goodwill and sympathy for Zimbabwe’s long-suffering people”. (Oral statement to Parliament- Situation in Zimbabwe: Foreign Secretary Boris Johnson’s statement, 15 November 2017). Subsequently the leader of Zimbabwe’s neighbour, Republic of Botswana’s President Ian Khama clearly said that: “I don’t think anyone should be President for that amount of time. We are Presidents, we are not monarchs. It’s just common sense” (Reuters)

The November 2017 military action also exposes a number of realities about Zimbabwean politics, or indeed about the politics of post-colonial and post-liberation states. The events invite an analysis of the character and outlook of a liberation army turned into a national defence force as well as the growing acknowledgements of social and economic problems faced by the people of Zimbabwe. The November events reveal the following:

2.1.    Identity of the Zimbabwean Defence Forces as a liberation militia

The November 2017 military action highlighted the ZDF as a perennial liberation army that still beholds itself as a continuous product of a political and ideological process. In reality though, the ZDF was crafted from both military and political processes at the end of the Zimbabwean liberation struggle in 1979-80. At independence, the ZDF was built up from two main liberation armies, namely the Zimbabwe National Liberation Army (ZANLA) and Zimbabwe People’s Revolutionary Army (ZIPRA), which were military wings of Zanu-PF (and of the Zimbabwe African Peoples Union, ZAPU, which eventually joined Zanu-PF). Some units of the Rhodesian security forces were also amalgamated into the ZDF whilst extreme units of the Rhodesian army such as the Selous Scouts were immediately disbanded. Even during the integration of the armies with professional support from the United Kingdom, there was “some conflict between the agreed nature of the new force under training with Mugabe, whose ZANLA forces had been trained by the Chinese and who wished to adopt a people’s militia model on one side, and the British who wished to create a more conventional, professional army” (Jackson: 2011)

Therefore, having originated in Zimbabwe’s liberation struggle, the ZDF leadership still views itself as involved in political and ideological warfare against neo-colonialism, as the ZDF Statement of 13 November 2017 shows. The ZDF posture had problems in a democracy where the army was supposed to be a professional entity subordinate to the civilian government. The ZDF desire to be on a footing with the militaries of countries such as the People’s Republic of China where the People’s Liberation Army owes its founding to, and was under the control of, both the state and the Communist Party of China, was a bit misplaced. The ZDF was no longer the Zimbabwe African National Liberation Army for starters. Rather the 2013 Constitution of Zimbabwe clearly provided that: “Neither the security services nor any of their members may, in the exercise of their functions act in a partisan manner or further the interests of any political party or cause.” (Constitution of Zimbabwe, Section 208 (1) and (2))

2.2.    Political justifications of defending “the gains of the liberation struggle” and Anti-colonialism

The ZDF statement justifying interference in Zanu-PF politics, on 13 November 2017, stated that “…the Zimbabwe Defence Forces remain the major stockholder in respect to the gains of the liberation struggle and when these are threatened we are obliged to take corrective measures.” This statement conjured memories of past instances when the ZDF command evoked links to the liberation struggle to justify political involvement. The most comparative moment was on the eve of the 2002 Presidential Election when President Robert Mugabe and Zanu-PF were facing their toughest electoral challenge since 1980 at the hands of Morgan Tsvangirai and the newly formed Movement for Democratic Change (MDC) party. At that time the then ZDF Commander General Vitalis Zvinavashe issued a statement: “We wish to make it very clear to all Zimbabwean citizens that the security organisations will only stand in support of those political leaders that will pursue Zimbabwean values, traditions and beliefs for which thousands of lives were lost in the pursuit of Zimbabwe’s hard-won independence, sovereignty, territorial integrity and national interests. To this end, let it be known that the highest office in the land is a straitjacket whose occupant is expected to observe the objectives of the liberation struggle. We will therefore not accept, let alone support or salute, anyone with a different agenda that threatens the very existence of our sovereignty” (ZDF Statement, 9 January 2002) (Tendi: 2013).

On the day of the November 2017 military action itself however, contrary to the statement of two days earlier, further reference to the liberation struggle was markedly absent in the ZDF statement read out on the morning of the military action. The ZDF instead justified military intervention in an anti-corruption tone. They stated that their action was targeted at allegedly corrupt cabinet ministers who were mostly pro-Grace Mugabe and these ministers had long been reportedly involved in the corrupt handling of public funds, allocations of public lands and interference with the operations of local governments. In the second ZDF statement therefore, the mission of the military action was stated as: “…targeting criminals around him (President Robert Mugabe) who are committing crimes that are causing social and economic suffering in order to bring them to justice” (ZDF Statement, 15 November 2017). This highlighted that the ZDF was beginning to balance its own interests with the anti-corruption sentiments and interests of the majority of the people.

The ZDF also initially indicated that they were going to take action against “neo-colonialism”. It is widely argued and accepted that Third World countries such as Zimbabwe suffer from unfair economic and political relations with super powers as highlighted by the compositions of multinational institutions such as the United Nations Security Council, World Bank and International Monetary Fund among others. The military action and statements however gave no further helpful or tangible links of evidentiary value between “neo-colonialism” and the perceived “criminal elements” (i.e. cabinet ministers) who were allegedly detained at the KGVI (King George the Sixth) military barracks for interrogation.

2.3.    Acknowledgment of Social Economic Problems

In addition to addressing internal Zanu-PF politics, the November 2017 military action events partly sought to acknowledge socio-economic problems faced by the ordinary people. The ZDF 13 November statement stated that “As a result of squabbling within the ranks of Zanu-PF, there has been no meaningful development in the country for the past 5 years. The resultant economic impasse has ushered-in more challenges to the Zimbabwean populace such as cash shortages and rising commodity prices”.

This part of the statement was bound to evoke popular/grassroots support at a time where the country was facing economic and social problems such as cash shortages and administrative onslaught upon vendors and the urban poor. The ZDF addressed issues of concern such as “cash-shortages” and “rising commodity prices.” Throughout the action they also acknowledged the importance of various sectors of Zimbabwean society such as the civil service, the judiciary, the legislators and the youths. These gestures were calculated at endearing the majority of the populace to the military action and judging by the mass marches of 18 November, the tactic worked.


The November 2017 military action was still unfolding at the time of the writing. However, events surrounding the action have revealed a number of lessons and insights for the democracy and human rights movements in Zimbabwe and beyond. These include the need for an ever-vigilant and vibrant opposition and civil society sector, the need for clear-headed watchdogs for human rights and constitutionalism during the heady moments of a “revolution” and the need to check the implications of partisan military involvement on the future of democratic politics.

3.1.    The failure of mainstream opposition to develop alternative pro-poor economic policies

The main concern for people within Zimbabwe has been on organising around socio-economic challenges. In that regard Zimbabwe had had significant civil society, trade union and students’ movements at various stages of its post-colonial history. However, in the decade since 2005, there has been a marked failure by mainstream opposition parties and most of the civil society to develop pro-poor alternative economic plans. Instead these sectors have developed neo-liberal manifestos and pro-business policy briefs that have never resonated with the majority of the working class populace. In the absence of a pro-people civil society and opposition sector, the ordinary people saw the November military action as the clear salvation against the years of President Robert Mugabe’s economic and policy blunders.

3.2.    The palace coup that ended an era and the 2018 elections

The November military action was definitely a palace coup, in that it sought to replace a leader with another member of the elite, namely expelled Vice-President Emmerson Dambudzo Mnangagwa who had the support of the military. The long awaited ouster of President Robert Mugabe would likely remain the major contribution of the action. The military action, was however worrisome considering that the country was going for elections in mid-2018, and as in key Presidential elections in 2002 and 2008, there would likely be tacit support by the military for a Presidential candidate, namely Emerson Dambudzo Mnangagwa. In the past years that involvement was very problematic for the outcomes of the elections and resulted in reports of the military being involved in torture and human rights violations of political opponents to the army’s preferred associated, with in the past has been Robert Mugabe.

3.3.    Human rights, democracy and personalisation of the liberation struggle

As indicated before, Zimbabwe remains a product of the liberation struggle. In that regard, the mainstream opposition parties’ reluctant efforts to acknowledge that history has continued to be their downfall especially at elections and mass mobilisation.

The liberation legacy has therefore been personalised by the Zanu-PF elite, and of late by the military elite. In essence the liberation struggle legacy presupposes any opponent to be a “counter-revolutionary” devoid of human rights. Hence the worrisome military style raids and detentions of cabinet ministers who were deemed to be G40.


In conclusion, the November 2017 “Operation Restore Legacy” military action in Zimbabwe, highlight a state that was going through a social and economic crisis in addition to political uncertainty. These were fertile grounds for elite infighting within the ruling Zanu-PF party where military intervention unwittingly led to the end of the 37 years of the Robert Mugabe presidency, something which democratic elections and protest have failed to do. This was widely welcomed as a small but significant step towards a better and more democratic Zimbabwe. The November 2017 military action, no matter how it would play out to the end, will continue to be an interesting reference to the necessity of balancing demands for human rights, constitutionalism and democracy with an open-minded understanding of political reality.

The Story of King Tex: A Modern Allegory

Dr Dug Cubie

1st February 2017

This blog presents a modern allegory (with apologies to Lon Fuller).

In Lon Fuller’s 1969 book The Morality of Law, Fuller set out the story of King Rex, as a cautionary tale of the need for clarity, consistency and predictability within legal systems. Profoundly influenced by the horrors of the 20th Century, in particular the Nazi regime in Germany and the Stalinist regime in the USSR, Fuller desired to establish certain benchmarks for legal systems based on his view of the “inner morality of the law.” Fuller argued that the inner morality of a legal system was based first on the morality of duty (the duty to provide basic rules for the ordering of society) and then the morality of aspiration (the aspiration of excellence within a legal system). Surprisingly little of Lon Fuller’s account of King Rex needs to be changed to fairly accurately reflect the start of President Trump’s administration…

So, as Fuller might have written: This story concerns the unhappy reign of a monarch who bore the convenient, but not very imaginative and not even very regal sounding name of Tex.

Eight Ways to Fail to Make Law

Tex came to the throne with the zeal of a reformer. He considered that the greatest failure of his predecessors had been in the field of law. For generations the legal system had known nothing like a basic reform. Procedures of trial were cumbersome, the rules of law spoke in the archaic tongue of another age, justice was expensive, the judges were slovenly and sometimes corrupt. Tex was resolved to remedy all this and to make his name in history as a great lawgiver. It was his unhappy fate to fail in this ambition. Indeed, he failed spectacularly, since not only did he not succeed in introducing the needed reforms, but he never even succeeded in creating any law at all, good or bad.

His first official act was, however, dramatic and propitious. Since he needed a clean slate on which to write, he announced to his subjects the immediate repeal of all existing law, of whatever kind. He then set about drafting a new code. Unfortunately, trained as a lonely property developer, his education had been very defective. In particular, he found himself incapable of making even the simplest generalisations. Though not lacking in confidence when it came to deciding specific controversies, the effort to give articulate reasons for any conclusion strained his capacities to the breaking point.

Becoming aware of his limitations, Tex gave up the project of a code and announced to his subjects that henceforth he would act as a judge via Twitter in any disputes that might arise among them. In this way under the stimulus of a variety of cases he hoped that his latent powers of generalisation might develop and, proceeding case by case, he would gradually work out a system of rules that could be incorporated in a code. Unfortunately the defects in his education were more deep-seated than he had supposed. The venture failed completely. After he had handed down literally hundreds of fabulous decisions within the confines of 140 characters neither he nor his subjects could detect in those decisions any pattern whatsoever. Such tentatives toward generalisation as were to be found in his opinions only compounded the confusion, for they gave false leads and alternative facts to his subjects and threw his own meagre powers of judgment off balance in the decision of later cases.

After this fiasco Tex realised it was necessary to take a fresh start. His first move was to subscribe to a course of lessons in generalisation. With his intellectual powers thus fortified, he resumed the project of a code and, after many hours of solitary labour, succeeded in preparing a fairly lengthy Executive Order. He was still not confident, however, that he had fully overcome his previous defects. Accordingly, he announced to his subjects on Twitter that he had written out a GREAT CODE and would henceforth be governed by it in deciding cases, but that for an indefinite future the contents of the code would remain an official state secret, known only to him and his family. To Tex’s surprise this sensible plan was deeply resented by his subjects, who took to the streets in their thousands to protest. They declared it was very unpleasant to have one’s case decided by rules when there was no way of knowing what those rules were.

Stunned by this rejection, Tex undertook an earnest inventory of his personal strengths (which were legion) and weaknesses (of which he had none). He decided that life had taught him one clear lesson, namely, that it is easier to decide things with the aid of hindsight and by reflecting on the good old days than it is to attempt to foresee and control the future. Not only did hindsight make it easier to decide cases, but – and this was of supreme importance to Tex – it made it easier to give reasons. Deciding to capitalise on this insight, Tex hit on the following plan. At the beginning of each calender year he would decide all the controversies that had arisen among his subjects during the preceding year. He would accompany his decisions with a full statement of reasons. Naturally, the reasons thus given would be understood as not controlling decisions in future years, for that would be to defeat the whole purpose of the new arrangement, which was to gain the advantages of hindsight. Tex confidently announced the new plan to his subjects over Twitter at 3am, observing that he was going to publish the full text of his judgements with the rules applied by him, thus meeting the chief objection to the old plan. Tex’s subjects received this announcement in silence, then quietly explained through their more enlightened democratic representatives that when they said they needed to know the rules, they meant they needed to know them in advance so they could act on them. Tex muttered something to the effect that they might have made that point a little clearer, but said he would see what could be done.

Tex now realised that there was no escape from a published code declaring the rules to be applied in future disputes. Continuing his lessons in generalisation, Tex worked diligently on a revised GREATER CODE, and finally Tweeted that it would shortly be published. This announcement was received with universal gratification. The dismay of Tex’s subjects was all the more intense, therefore, when his code became available and it was discovered that it was truly a masterpiece of obscurity. Legal experts who studied it declared that there was not a single sentence in it that could be understood either by an ordinary citizen or by a trained lawyer. Indignational became general; and soon a protest appeared before Tex’s gaudy palace of gold carrying signs that read, “How can anybody follow discriminatory immigration rules that nobody can understand?”

The GREATER CODE was quickly withdrawn. Reluctantly recognising for the first time that he needed assistance, Tex put a staff of experts who he hadn’t purged to work on a revision. He instructed them to leave the substance untouched, but to clarify the expression throughout. The resulting GREATEST CODE was a model of clarity, but as it was studied it became apparent that its new clarity had merely brought to light that it was honeycombed with contradictions. It was reliably reported by respected journalists that there was not a single provision in the code that was not nullified by another provision inconsistent with it. An even larger protest appeared before the golden palace, carrying signs that read, “This time the king made himself clear – in both directions.”

Once again the code was withdrawn for revision. By now, however, Tex had lost patience with his subjects and the negative attidude they seemed to adopt toward everything he tried to do for them. He decided to teach them a lesson and put an end to their carping. He instructed his remaining experts to purge the code of contradictions, but at the same time to stiffen drastically every requirement contained in it and to add a long list of new crimes such as practicing a different religion or being an immigrant. Thus, where before individuals summoned to the throne were given ten days in which to report, in the revision the time was cut to ten seconds. It was made a crime, punishable by ten years imprisonment to cough, sneeze, hiccough, faint or fall down in the presence of the king (he stressed that he was a germaphobe). It was made treason not to understand, believe in, and correctly profess that fossil fuels and human activity have no impact on climate change whatsoever.

When this GREATEST EVER CODE was sent out on Twitter a near revolution resulted. Leading citizens declared their intention to flout its provisions. Someone discovered in an ancient author a passage that seemed apt: “To command what cannot be done is not to make law: it is to unmake law, for a command that cannot be obeyed serves no end but confusion, fear and chaos.” Soon this passage was being quoted in a hundred petitions to the king.

The code was again withdrawn and a staff of experts chaired with the task of revision. Tex’s instructions to the experts were that whenever they encountered a rule requiring an impossibility, it should be revised to make compliance possible. It turned out that to accomplish this result every provision in the code had to be substantially rewritten. The final result was, however, a triumph of draftsmanship. It was clear, consistent with itself, and demanded nothing of the subject that did not lie easily within their powers. It was printed and distributed free of charge through social media.

However, before the effective date for the new GREATEST EVER CODE, REALLY had arrived, it was discovered that so much time had been spent in successive revisions of Tex’s original draft, that the substance of the code had been seriously overtaken by events. Ever since Tex assumed the throne there had been a suspension of ordinary legal processes and this had brought about a climate of uncertainty for the economy and institutions of the country. Accommodation to these altered conditions required many changes of substance in the law. Accordingly as soon as the new code became legally effective, it was subjected to a daily stream of amendments. Again popular discontent mounted; an anonymous blog appeared online carrying scurrilous cartoons of the king and a leading article with the title: “A law that changes every day is worse than no law at all.”

Within a short time this source of discontent began to cure itself as the pace of amendment gradually slackened. Before this had occurred to any noticeable degree, however, Tex announced an important decision. Reflecting on the misadventures of his reign, he concluded that much of the trouble lay in bad advice he had received from experts. He accordingly declared he was reassuming the judicial power in his own person. In this way he could directly control the application of the new code and insure his country against another crisis. He began to spend practically all of his time hearing and deciding cases arising under the new code.

As the king proceeded with this task, it seemed to bring a belated blossoming his long dormant powers of generalisation. His opinions began, indeed, to reveal a confident and almost exuberant virtuosity as he deftly distinguished his own previous decisions, exposed the principles on which he acted, and laid down guidelines for the disposition of future controversies. For Tex’s subjects a new day seemed about to dawn when they could finally conform their conduct to a coherent body of rules.

This hope was, however, soon shattered. As the online record of Tex’s judgments became available and were subjected to closer study, his subjects were appalled to discover that there existed no discernible relation between those judgments and the code they purported to apply. Insofar as it found expression in the actual disposition of controversies, the new code might just as well have not existed at all. Yet in virtually every one of his decisions Tex declared and redeclared the code to be the basic law of his kingdom.

Leading citizens from all walks of life began to hold private meetings to discuss what measures, short of open revolt, could be taken to get the king away from the bench and back on the throne. While these discussions were going on, Tex was impeached for nepotism and conflict of interests, old before his time and deeply unloved by his subjects.

The first act of his successor, President Hex, was to abolish the monarchy and introduce genuine democracy and the rule of law based on the values of non-discrimination and accountability of elected officials.

Coda: During their famous debates in the 1950s over the legality of the Nazi regime and so-called grudge informers, Lon Fuller and HLA Hart disagreed on the role of morality and the law. Hart was swift to point out that Fuller’s concept of the inner morality of the law, and his eight principles of legality, could actually uphold unjust laws. Hart argued that Fuller’s procedural natural law approach failed to engage with the substantive morality of flawed laws, as a legal system may be structurally sound yet still allow unjust laws. Fuller meanwhile countered that when people are ‘compelled to explain and justify their decisions, the effect will generally be to pull those decisions towards goodness…’ Both Hart and Fuller’s arguments have resonance today. The cautionary tale of King Rex was based on some of the most brutal regimes in history. One can only hope that these warnings are heeded over the next four years.

With thanks to my legal theory colleagues Patrick O’Callaghan and Natasa Mavronicola for their illuminating comments.

The concept of ‘international community’ and the International Court of Justice


By Gleider I Hernández

Despite its constant invocation in doctrine, rhetoric and countless international documents, international lawyers still struggle with arriving at a well-defined understanding of the concept of an ‘international community’, whether in identifying the members that compose it, the values and norms that it represents, or the processes which underlie its functioning. The term could be reduced merely to ‘constructive abstraction’, or rhetorical flourish; yet a concept of international community that would be legally operative (create enforceable legal rights and obligations) would require reflection as to the nature of international law and whether it serves the interests of a constituted community.

There are two primary understandings of the concept of ‘international community’. The first that the concept is purely relational: a fully inter-State order, with only a law of co-existence that demands only such rules and norms such as to ensure the survival of members of that society. According to such a view, the members of international society are primarily, if not exclusively, sovereign States. No common interest can be distilled from such a form. The second understanding is not formal, but substantive: the international community would be said to share a number of common interests and fundamental values that the legal order would exist to safeguard. Made legally operative, and embracing a distinct extra-legal element, the claimed ‘promise of justice’ embodied therein would lead to actors and institutions within the system claiming the obligation to protect the community interest.

I sought first to distil the essential differences between the two terms, as the latter understanding especially would empower international actors and institutions to enforce the community’s interest or ‘will’. In many respects, the very identification of the community’s interest is controversial, and as such has not always been specified or made clear in multilateral treaties. Hence, it has been left to judicial institutions, and primarily the principal judicial organ of the United Nations, the International Court of Justice, to elucidate these difficult concepts and to uphold or reject claims based on community interest. What transpired from my research was very interesting. In most cases, the Court was very cautious not to defend an international common interest, instead reading such obligations through a prism of multilateral or bilateral treaty relations: in short, through the prism of consent.

I would like the highlight four cases in which the Court refused to recognise the substantive character of norms claimed to be fundamental to the international community, which we international lawyers call jus cogens (peremptory norms of general international law), and obligations erga omnes (obligations ‘owed to all’). The Court has rejected claims that States sought with respect to indirect injuries (ie not injuries to their territory or to their nationals) against other States in the name of the international community. It rejected, for example, the claims of Ethiopia and Liberia in South West Africa (1966) where they claimed against South Africa for its imposition of apartheid over Namibia in purported violation of the League Covenant and the United Nations Charter. The erga omnes claim was rejected, where the applicants were denied standing on the basis that they could not bring forward an actio popularis (an action brought by a member of the public in the name of public order).

It rejected those of Portugal in East Timor (1995), where that State claimed, on behalf of the people of East Timor, against Australia for treaties that it had signed with Indonesia on the maritime delimitation in the area. Although the Court did not formally declare that Portugal had no standing, it concluded that Indonesia was an indispensable third party to the dispute, and that without Indonesia’s consent, it could not possibly proceed to hear the merits.

The jus cogens or peremptory, non-derogable character of various human rights obligations has fared little better before the Court. In Armed Activities in the Congo (2006), the Democratic Republic of the Congo claimed against Rwanda for various serious human rights violations, including war crimes, crimes against humanity, and even genocide. The Court, for the first time, actually recognised the concept. Yet even though it was willing to concede that the human rights violations could, if proven, constitute violations of jus cogens, it considered that it did not have consent over the dispute. Rwanda’s lack of consent was clear from its ‘reservations’ (unilateral statements tagged on to its ratification of treaties), through which it refused to consent to the Court’s jurisdiction. The Court upheld Rwanda’s lack of consent and declined to proceed to the merits.

Finally, in Jurisdictional Immunities of the State (2012), Germany claimed against Italy’s inaction against the Italian domestic courts, which were not recognising Germany’s immunity in respect of Nazi actions committed in Italy and against Italian nationals. Italy claimed that the jus cogens nature of the violations allowed its courts to ignore Germany’s immunity. However, the Court concluded that, whatever the jus cogens character of the violations committed by Nazi Germany, Germany’s immunity served as a procedural bar in the Italian courts, and Italy had thus violated Germany’s immunity by allowing the claims to go forward.

Taken as a whole, these cases demonstrate that the International Court continues to adhere to a restrictive vision of the international community. Without commenting on whether this is a ‘good’ or ‘bad’ development, it is an important point to make in the light of claims in scholarship that we ought to be assigning greater law-making power to judicial institutions, in particular with respect to the safeguarding of fundamental human rights. The Court’s reluctance may be due to institutional self-preservation, as its jurisdiction remains dependent on the consent of States; but equally so, the Court’s caution may be due to the difficulties and lack of agreement as to the consequences entailed by an embrace of a nebulous community interest that remains yet to be elucidated. In a decentralised, highly indeterminate legal order like international law, perhaps the unwillingness to assume a centralised interpretative role for itself is a statement more on the nature of international law than any value judgment on the concept of ‘community’.



Dr Gleider I Hernández is Lecturer in Law at the University of Durham, where is he is also Deputy Director of the new Institute for Global Policy. Previously, he served as law clerk to Judges Bruno Simma and Peter Tomka at the International Court of Justice; he holds law degrees from McGill, Leiden, and Oxford universities. His research interests extend to all areas of public international law, and he is especially interested in the nature and function of the international legal system. His first monograph, The International Court of Justice and the Judicial Function, will be published by the Oxford University Press in early 2014. He is the author of “A Reluctant Guardian: The International Court of Justice and the Concept of ‘International Community’” in the British Yearbook of International Law, available to read for free for a limited time.

Through a mixture of articles and extended book reviews it continues to provide up-to-date analysis on important developments in modern international law. It has established a reputation as showcase for the best in international legal scholarship and its articles continue to be cited for many years after publication. In addition, through its thorough coverage of decisions in UK courts and official government statements, The British Yearbook of International Law offers unique insight into the development of state practice in the United Kingdom.

Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw. – See more at: http://blog.oup.com/2013/11/international-community-court-of-justice-law-pil/#sthash.HYG6TUAK.dpuf

The final judgement in the trial of Charles Taylor

By Simon Meisenberg

The trial of former Liberian President Charles Taylor moved the Special Court for Sierra Leone (SCSL) into the limelight of international criminal justice for the last half decade. Without any doubt, the presence of a former Head of State in the dock drew international attention to the smallest of the ad hoc international criminal courts. The Appeals Chamber of the Special Court for Sierra Leone (SCSL) has now announced that it will render the appeal judgment in the case of Charles Taylor on 26 September 2013 at 11.00 a.m. CET. Taylor, who is in his sixties, was found guilty by the trial panel and sentenced to 50 years of imprisonment. Given the importance of the Taylor case, the forthcoming issue of the Journal of International Criminal Justice contains a special symposium on the Taylor Trial Judgment and the future of the Residual Special Court. The symposium, edited by Laurel Baig and myself, features articles by Kai Ambos and Ousman Njikam on “Charles Taylor’s Criminal Responsibility,” Kevin Jon Heller on “The Taylor Sentencing Judgment,” Fidelma Donlon on the “Transition of Responsibilities from the Special Court to the Residual Special Court for Sierra Leone,” and Kirsten Keith on “Deconstructing Terrorism as a War Crime.”The Taylor trial is the first completed criminal appeals process judging a former Head of State in modern international criminal law. There has been much debate about whether the SCSL was truly the first international criminal tribunal to have tried a head of state, pointing to the conviction of Karl Dönitz at the International Military Tribunal in Nuremberg, who was the Head of State of the Nazi German Reich for about 20 days before Germany’s capitulation. But as the IMT did not have any appeal process, let’s simply give the credit to the SCSL of being the first ever to have accomplished such an historical task. The magnitude of this accomplishment is illustrated both by how long it has taken for the international community to fully try a former head of state and the practical challenges encountered by other courts, such as the incomplete Milosevic trial before the ICTY or the failure to arrest of Bashir for trial at the ICC. From a legal perspective, however, the SCSL should not be judged simply by such an historic achievement, but rather by the soundness of its legal and factual findings.  A daily news chalk board in Monrovia, Liberia. Photo by Lieutenant Colonel Terry VandenDolder, U.S. Africa Command. Public domain via Wikimedia Commons. The Achievements of the SCSL Looking back at the SCSL’s activities since mid-2002, when the first investigations started, it is obvious that bringing Charles Taylor to trial was not an easy task. The Court was plagued with challenges: financial constraints, challenging legal questions, the staggeringly slow pace of proceedings, lacking interest from the Sierra Leone population towards the end of the mandate, the precarious security situation in the first years of operations, the difficult relationship with the Truth and Reconciliation Commission. Then add further challenges unique to the Taylor proceedings such as the need to operate in three different countries and two different continents. These are only a few challenges amongst many more that endangered the success of this shoestring court. At the end of the day, SCSL has overcome these challenges to complete its mandate and contributed to Sierra Leone’s transition to peace and democracy. In retrospect, many of the problems encountered by the court now appear to be less acute in comparison to the other hybrid experiences in international criminal law. Initially the sponsors of the court wished the court to deliver justice within three years. In the end it took more than a decade to accomplish the mandate. The Taylor trial alone lasted over six years. In its eleven years of existence, the SCSL issued 13 indictments against members of all warring factions resulting in eight convictions (not counting the Taylor conviction at the trial level, which if upheld would be the ninth). Only one accused, Johnny Paul Koroma, was never arrested and is believed to be deceased. Two accused (Foday Sankoh and Sam Bockarie) died shortly after charges were laid against them. Sam Hinga Norman died shortly before his judgment day in the Civil Defence Forces trial. Apart from those main “atrocity” trials, twelve contempt proceedings were initiated by the Prosecution resulting in ten convictions (one contempt case is still pending on appeal; one resulted in an acquittal, which so far is the one and only acquittal issued by the SCSL). Following the Taylor Appeal Judgment, the SCSL will “transform” into the Residual Special Court for Sierra Leone (RSCSL) shortly after the completion of its mandate. According to the RSCSL statute this residual court will “continue the jurisdiction, functions, rights and obligations” of the SCSL. The developments leading to and the structure and work of this future organisation are explained in detail by Fidelma Donlon in the JICJ Symposium. The Taylor Case and the Appeals Judgment Taylor is accused of four charges of crimes against humanity (murder, rape, sexual slavery, other inhumane acts (i.e. mutilations), and enslavement), four charges of violations or Article 3 Common to the Geneva Conventions and of Additional Protocol II (acts of terrorism, murder, outrages upon personal dignity, cruel treatment, pillage) and for the conscription, enlistment or use of child soldiers. It is alleged that he committed those crimes on Sierra Leone soil from 30 November 1996 to 18 January 2002 remotely from Liberia. Taylor was found guilty on all 11 counts by the trial judges on 26 April 2012. Even though Taylor’s conviction at trial may not have surprised the casual observer, he was actually convicted for far less than was initially charged by the prosecution. The prosecution was of the view that Taylor acted in concert with the leaders of the rebel movements in Sierra Leone (i.e. the RUF and AFRC) and that he and his co-conspirators shared the intend to commit all the crimes perpetrated in the Sierra Leone civil war. The judges rejected this claim, finding that the prosecution failed to proof the allegation that Taylor forged an agreement with the Sierra Leone rebels to commit crimes against the Sierra Leone population. The Trial Chamber instead considered Taylor as an accessory and convicted him for aiding and abetting and planning crimes in a narrower time frame, i.e. from August 1997 to 18 January 2002. It found that Taylor aided and abetted by providing practical assistance, encouragement or moral support to the RUF in the commission of crimes during the course of their military operations in Sierra Leone. In that respect the Trial Chamber noted that “a common feature of all of the aforementioned forms of assistance is that they supported, sustained and enhanced the functioning of the RUF and its capacity to undertake military operations in the course of which crimes were committed” (Taylor Trial Judgment, para. 6936). It importantly and rather controversially held that the military operations of the RUF and RUF/AFRC were “inextricably linked to the commission of the crimes charged in the Indictment” (Taylor Trial Judgment, para. 6936). An individualized assessment of Taylor’s contribution to the specific crimes committed on Sierra Leone territory was therefore unnecessary. It was sufficient to simply proof that Taylor sustained the military operations of the rebels. As such military operations were, according to the Trial Chamber, “inextricably linked to the commission of the crimes” no proof to the substantial contribution to the individual crimes was any longer necessary. The Trial Chamber additionally found that Taylor devised a plan to attack major towns and the capital Freetown in late 1998 and early 1999 during which crimes were committed. Regarding his knowledge, the Trial Chamber found that Taylor was aware of the atrocities from at least the time when he assumed the presidency in Liberia in August 1997. Many of the defence challenges on appeal questioned the evaluation of evidence by the trial judges. The facts of the case, and of the civil war more generally, were unsurprisingly complex. The trial judgment had to rely extensively on hearsay and circumstantial evidence. Some of the more troubling approaches to fact finding by the SCSL Chambers have been highlighted by Nancy Combs in her seminal book on “Fact Finding without Facts” and much of the same judicial attitudes towards inconsistencies and contradictions can be found in the Taylor Trial Judgment. It will be interesting to see how the Appeals Chamber addresses such challenges or whether it will simply rely on the principle that a “margin of deference” will be given to the fact finding of the Trial Chamber. Apart from evidentiary questions one of the most controversial points on appeal will be the definition of aiding and abetting and whether this mode of attribution requires that the accused contributed with “specific direction” towards a crime. The Trial Chamber was of the opinion that the actus reus of aiding and abetting did not require such “specific direction”, relying on ICTY precedents in the Perišić Trial Judgment and Mrkšić Appeal Judgment. As other SCSL cases did in fact require such an element the rejection in the Taylor case is notable (RUF Trial Judgment, para. 277; CDF Trial Judgment, para. 229). In the Perišić Appeals Judgment, however, the ICTY Appeals Chamber controversially held that “specific direction” is a necessary element of aiding and abetting holding that:“[I]n most cases, the provision of general assistance which could be used for both lawful and unlawful activities will not be sufficient, alone, to prove that this aid was specifically directed to crimes of principal perpetrators. In such circumstances, in order to enter a conviction for aiding and abetting, evidence establishing a direct link between the aid provided by an accused individual and the relevant crimes committed by principal perpetrators is necessary.”More importantly, the SCSL Appeals Chamber’s own jurisprudence on this point is remarkable. In the CDF case it relieved an accused from criminal responsibility for aiding and abetting for providing military equipment, which was later used in the commission of crimes. At the time of his contribution CDF fighters were notorious for committing crimes against civilians. The Appeals Chamber stated that “the provision of logistics is not sufficient to establish beyond reasonable doubt that [the accused Fofana] contributed as an aider and abetter to the commission of specific criminal acts in Bo District” (see CDF Appeals Judgment, para. 102). The similarities with the Taylor case are striking and it will be interesting to see whether the Appeals Chamber will apply the same standards to Taylor. In a critical analysis of the Trial Chamber’s legal findings, Kai Ambos and Ousman Njikam highlight some considerable deficiencies in the Taylor Trial Judgment, placing the judgment’s assessment within the broader international criminal law jurisprudence on individual criminal responsibility by addressing the effect of the recent Perišić Appeal Judgment. As mentioned above, the significance of the Taylor case is usually attributed to the fact that Taylor was indicted as the sitting Liberian head of state. The Appeals Chamber dismissed the legal questions surrounding any claims of immunity in 2004, before Taylor’s arrest and initial appearance in spring 2006 (when Taylor had already stepped down from his presidency). Any questions of immunity will therefore not feature in the forthcoming Appeal Judgment. His “special status” as a Head of State at a time when he allegedly contributed to the crimes in Sierra Leone was however considered as an aggravating circumstance in the sentencing judgment of the Trial Chamber. This “special status” and the extraterritoriality of Taylor’s acts trumped all mitigating circumstances. A detailed critique of the Sentencing Judgment by Kevin Jon Heller in the JICJ symposium points to some of the possible flaws of the 50 year sentence, in particular addressing the fact that Taylor was convicted as an accomplice and not as a principal. Comparing the sentence received by Taylor with other SCSL convicts, Heller concludes that the 50 years sentence may be disproportionate. The fact that the extraterritoriality of Taylor’s acts was considered as an aggravating circumstance is striking. Here the Chamber’s silence on the nature of the conflict in its verdict is notable. Other SCSL judgments found that despite the alleged assistance from Liberia, the nature was non-international in character. If this holding is correct, crimes committed in international armed conflicts would routinely deserve a higher penalty. The historical pronouncement of the Appeals Chamber Judgment will be accessible over live stream. Simon Meisenberg is a Legal Advisor, Extraordinary Chambers in the Courts of Cambodia (since 2011); former Senior Legal Officer (2009-2011) and Legal Officer (2005-2009) in the Special Court for Sierra Leone. Laurel Baig is the editor of the forthcoming symposium from Journal of International Criminal Justice entitled, Symposium: Last Judgment – The Taylor Trial Judgment and the Residual Future of the Special Court for Sierra Leone. This issue will be published online imminently, and all articles mentioned in the text of this blog post will be freely accessible for a limited time. The views expressed here are those of the author alone, and do not necessarily reflect the views of the Extraordinary Chambers in the Courts of Cambodia, or the United Nations in general. The Journal of International Criminal Justice aims to promote a profound collective reflection on the new problems facing international law. Established by a group of distinguished criminal lawyers and international lawyers, the journal addresses the major problems of justice from the angle of law, jurisprudence, criminology, penal philosophy, and the history of international judicial institutions. Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw. – See more at: http://blog.oup.com/2013/09/charles-taylor-trial-judgement-special-court-sierra-leone-pil/#sthash.IxqeupA3.dpuf

How can a human being disappear?

On the 30th of August the United Nations observes the International Day of the Victims of Enforced Disappearances. Emmanuel Decaux (President of the UN Committee on Enforced Disappearances) and Olivier de Frouville (Chair and Rapporteur of the Working Group on Enforced or Involuntary Disappearances (WGEID)) have taken the time to consider a few questions with us in recognition of this important observance day, which was established by the UNGA (resolution 65/209, para. 4).

Installation on the Disappeared on the day of the celebration of the 8th anniversary of the Peruvian Truth and Reconciliation Commission, Plaza San Martin, August 26th, 2011. Photo by Catherine Binet. Creative Commons License via The Advocacy Project Flickr.

Installation on the Disappeared on the day of the celebration of the 8th anniversary of the Peruvian Truth and Reconciliation Commission, Plaza San Martin, August 26th, 2011. Photo by Catherine Binet. Creative Commons License via The Advocacy Project Flickr.

How can a human being ‘disappear’? What does this term represent?

Emmanuel Decaux: There is a big difference between a “missing person” and an enforced disappearance, with a secret detention of a person and a denial of his whereabouts. The legal definition of enforced disappearance implies an imputability to the State, which can act directly by its agents (such as the police or armed forces), but also indirectly, by giving its authorization, support, or acquiescence to non-State actors (such as paramilitary groups or clandestine forces). When private actors are responsible and the State is not involved, neither directly nor indirectly, its duty is to find the disappeared person and to prosecute the perpetrators. However, in this case we are referring to a crime of “droit commun” (common law) and not a crime of the State. The Convention of 2006 takes a step further in calling on States to investigate acts committed by persons or groups of persons acting without its authorization, support, or acquiescence and to bring those responsible to justice. But the main responsibility is the responsibility of States, by action or by omission.

Olivier de Frouville: Enforced disappearance is a technique of terror. Victims of disappearances do not disappear willingly or by accident. They are the victims of a crime, consisting in the deprivation of their liberty, and the subsequent denial of that deprivation of liberty or the refusal to provide any information about the fate or the whereabouts of the disappeared person, thus placing this person outside the protection of the law. Enforced disappearances are part of counter-subversive strategies used by some intelligence services and security personnel, together with torture and summary executions. Typically, a number of persons are arrested, in an effort to obtain information and dismantle illegal groups or simply to terrorize the civilian population and obtain obedience.

Many people associate the term ‘disappeared’ (Desaparecidos) with the crimes carried out by Pinochet’s regime. Is this the origin of the term?

Emmanuel Decaux: The phenomenon was not new but its systematic use was a characteristic of military regimes in Latin America. They established between them a secret transborder cooperation with the Condor plan. It explains the concern of Latin American countries, with both a regional instrument and also a leading role in the UN system. But we have to say that every country ought to be concerned by enforced disappearance, not only due to military dictatorships or civil wars, but also in democracies, as we’ve seen in the reports of the APCE on the network of secret detentions of the CIA and the case law of the European Court on Human Rights. The legal nature of the Convention could be a motivation for all States to take preventive measures, looking to the future rather than only at the past, and to fully cooperate with others States in an international framework.

Olivier de Frouville: If you read the Nacht und Nebel Decree signed by Keitel in 1941, you will find an exact description of what enforced disappearances are. This is a codification of the practice, condemned as a crime against humanity and a crime of war by the International Military Tribunal in Nuremberg:

“The territories occupied by Germany were administered in violation of the laws of war. The evidence is quite overwhelming of a systematic rule of violence, brutality and terror. On 7 December 1941 Hitler issued the directive since known as the ‘Nacht und Nebel Erlass’ (Night and Fog Decree), under which persons who committed offenses against the Reich or the German forces in occupied territories, except where the death sentence was certain, were to be taken secretly to Germany and handed over to the SIPO and SD for trial or punishment in Germany. This decree was signed by the Defendant Keitel. After these civilians arrived in Germany, no word of them was permitted to reach the country from which they came, or their relatives; even in cases where they died awaiting trial, the families were not informed, the purpose being to create anxiety in the minds of the family of the arrested person.”

Hitler’s purpose in issuing this decree was stated by the Defendant Keitel in a covering letter, dated 12 December 1941:

“Efficient and enduring intimidation can only be achieved either by capital punishment or by measures by which the relatives of the criminal and the population do not know the fate of the criminal. The aim is achieved when the criminal is transferred to Germany.” (Nuremberg Judgement, IMT Serie, vol. I, 232-233)

Other interesting analysis of the NN Decree is included in the Justice Case (4 December 1947, TWC, vol. III, 1057-1058). The practice seems to have been revived during the colonial wars in an effort to find new techniques to dismantle illegal armed groups and their cells. It was then exported to Latin America, and then used extensively in the context of the Condor plan. Afterwards, it spread all over the world.

How can international law make a difference?

Emmanuel Decaux: The elements of the crime of enforced disappearance are already violations of international human rights law, as a breach of such basic rights as to the right to life, the prohibition of torture, the “right to recognition everywhere as a person before the law,” the due process of justice, etc. There is a strong case law of the Human Rights Committee and of regional Courts, such as the European Court of Human Rights or the Inter-American Court of Human Rights, in this field. But the “complex phenomenon” of enforced disappearance was not dealt as such in its systematic nature.

The new trend of international law is to stick to the core element and to create a new human right, the right to not being subjected to enforced disappearance and to organise the international cooperation in matters of prevention, protection, prosecution, and reparation. The first step was the creation of the WGEID in 1980 and the adoption of the Declaration on the protection of all persons from enforced disappearance by the GA in 1992. Another important step was the qualification of enforced disappearance as a crime against humanity by the Rome Statute. The latest development was the adoption in 2006 of a new treaty, the Convention on the protection of all persons from enforced disappearance, which entered into effect on 23 December 2010, after the twentieth ratification. As of today, there are 40 State Parties and the Committee on enforced disappearances (members were elected in May 2011) is fully functioning with 10 independent experts from all regions of the world.

The Convention is at the crossroads of international human rights law and of criminal law. As other treaty-bodies, its main functions are to examine the reports submitted by States parties on the implementation of the Convention and to consider individual communications. But it can also receive and consider urgent actions, undertake country visits, and bring reports of widespread or systematic practise of enforced disappearance to the attention of the UN General Assembly. The Convention qualifies enforced disappearance as a crime and requires States parties to adapt their domestic legislation in order to incriminate enforced disappearance as such, as an autonomous crime. Furthermore it underlines that the widespread or systematic practice of enforced disappearance qualifies as a “crime against humanity” according to the rules of international law. The Convention is also very important to prevent enforced disappearance, with legislative and administrative measures strengthening the rule of law, in order to forbid secret detention and to create accountability. Its last field is the rights of victims, taking into account vulnerable groups, such as children. All these legal obligations taken together constitute a strong framework to fight against impunity and to promote justice.

The Convention created an important momentum and the first goal is to trigger universal ratification and effective implementation. The Committee is the watchdog of the Convention but its broad mandate is to cooperate with other international bodies, such as the Human Rights Committee or the WGEID, and with the International Red Cross Committee (IRCC) and NGOs. The Committee has close links with the WGEID and the International Day is a special occasion for us to pay tribute to the victims and to the struggle of civil society across the world.

Olivier de Frouville: At the time when the Mothers of the Plaza de Mayo in Argentina were challenging the military dictatorship and calling the international community to help them in their quest for truth and justice, enforced disappearances were not well identified as such. Identifying the phenomenon and giving it a legal definition, as well as defining the legal obligations of States, was really the first essential and necessary step towards an effective action against this scourge. The WGEID played a major role to this regard, as it analysed the phenomenon on the basis of the communications and cases it received, and tried both to come up with a legal definition and with a satisfactory legal regime, dealing with all aspects of the problem.

Enforced disappearance is a complex crime and almost all fields of law are affected. It is important to create an autonomous crime of enforced disappearance in the penal code, to submit this crime to universal jurisdiction, but also to provide for integral reparation to the victims, as well as with a strong national mechanism aiming at clarifying the fate or the whereabouts of the victims. Civil status issues are also at stake, as the disappearance of persons leaves pending a whole range of matters, like marriage, inheritance, or guardianship. The disappearance and appropriation of children also create difficult problems. Identification of stolen children can lead to the restitution of their true identity, sometimes against their own will. In many cases, international cooperation is needed, due to the transnational nature of the practice. For instance, in the framework of Condor, citizens from Uruguay or Chile were abducted in Argentina through joint operations undertaken by the intelligence services of both countries, and then taken to Montevideo to be tortured and executed. Unfortunately, this pattern was used again in the context of post 9/11 “war on terror”: the “extraordinary renditions” program is strikingly similar to what happened in Latin America in the past.

What issues is the United Nations Working Group on Enforced and Involuntary Disappearances focused on currently?

Olivier de Frouville: The WGEID did a fantastic job in its first years. If you read the first reports, all the main issues are well-identified. During its 30 years of existence, the WGEID explored those issues on the basis of the communications, allegations, and testimonies it received from families of victims, NGOs, and States. It drafted a number of studies but also, from 1993, “general comments” aiming at interpreting the 1992 Declaration for the Protection of All Persons Against Enforced Disappearances. These general comments can be found on the WGEID’s website.

What we are doing now is revisiting a number of issues in the light of new facts and situations, but also in the light of the evolution of international law. For instance, the idea that there is a right to the truth of the families of the disappeared was asserted in the very first report of the WGEID in 1981. But now it has become an emerging right in international law and it applies not only to enforced disappearances but also to other serious human rights violations. There has been major developments in this field, which led us to adopt a General comment on this issue. Now, there are many new challenges arising and touching upon a broad range of issues. We have recently adopted two new General comments, one on Women facing enforced disappearances (as disappeared persons, as family members, and as being often at the forefront of the fight against enforced disappearances), and another on children (as disappeared and appropriated children, but also as family members). We dedicated our last annual report to new trends in the field of reparation. And we are currently starting a study on the consequences of enforced disappearances on economic, social and cultural rights. Other issues we would like to look at in the coming years are the use of forensic analysis (particularly DNA tests in the search of the disappeared), the prevention of enforced disappearances (particularly the role of habeas corpus), and enforced disappearances during armed conflicts. Strangely, international criminal law recognizes enforced disappearance as a crime against humanity, but not as a crime of war. Of course, we also continue to try to improve our methods of work. Our main task is to provide assistance to the families of the disappeared: we aim at being as efficient as possible in fulfilling this task.

What issues is the Committee on Enforced Disappearances (CED) focused on currently?

Emmanuel Decaux: The CED began its work two years ago with a broad mandate. First it had to adopt the rules of procedure and a lot of legal niceties (guidelines on submission of reports, individual communications, and urgent actions), with translation in an user-friendly manner, in order to liaise with civil society and other stakeholders.

Since its fourth session, the CED started to carry out constructive dialogues with State parties in the context of the consideration of their reports. The first reports to be considered were those of Uruguay and France. Argentina and Spain will follow in November. The remaining reports will be considered by the CED as they are submitted by the other States parties. Germany, the Netherlands, and Belgium have already submitted their reports and they are scheduled to be considered in 2014. The common methodology of consideration of reports includes the preparation of a list of issues followed by an interactive dialogue with the State party concerned and the issuance of concluding observations, containing recommendations on how to meet the obligations stemming from the Convention. This process is carried out with great openness and transparency, including by the acceptance of alternative reports from civil society actors. The examination of reports by the CED is public and webcasted. There is a lot to do in order to timely consider the reports of the 40 States Parties, but it is essential to have this sort of “check-up” within two years after the ratification by any state.

Our second task is to be ready to answer to the communications or information from NGOs dealing with specific issues, such as urgent actions and allegations of serious violations which could lead to a country visit. We have already dealt with some cases related to Mexico, for example, as indicated in our report to the GA. However, it is important to highlight that before conducting a country visit, the Committee endeavors to engage with the State party concerned. We need a greater awareness and on-ground advocacy from the civil society to trigger the mechanisms of the Convention.

The CED is eager to cooperate with States to obtain a full respect of their legal duties and to apply a convention which is victim-oriented. But the first step is accountability, with compliance by States parties with their conventional responsibility of submitting a report on the measures taken to give effect to their obligations under the Convention. We hope that the first steps taken by the CED in a very professional and dedicated manner, will encourage all UN Members States to ratify the Convention as soon as possible as a preventive tool, a sort of “life assurance”.

What do you hope to see in terms of truth, justice, and reparation to victims of enforced disappearances in the coming years?

Olivier de Frouville: Enforced disappearances are not a fatality. This is a technique of terror, which is being taught to intelligence and security officers and allowed to be used by governments in “exceptional circumstances” in a number of situations across the world. We need to make those people understand that, as the Declaration says, no circumstances whatsoever may justify enforced disappearances. Enforced disappearance is torture. It is now widely accepted that there is an absolute jus cogens prohibition of enforced disappearances and a correlative absolute right not to be subjected to enforced disappearances.

The consequence is that enforced disappearance is a serious crime in international law, with all the consequences flowing from it in terms of international responsibility of the State, but also in terms of international responsibility of individual perpetrators. States and individuals must be held accountable. This is the reason why we continue to insist that investigations are undertaken and that perpetrators are punished, but also that the State should take measures to provide for reparations to victims, not only through compensation, but also through rehabilitation and satisfaction. Acknowledgement of the responsibility of the State, rehabilitation of the memory of the disappeared is particularly important.

Huge challenges also remain ahead as far as the right to the truth is concerned. Finding the truth about the fate of disappeared persons implies exhumation and identification of sometimes thousands of victims. This is a very complicated long-term and costly task, especially for developing countries. We need to think more of how to help countries in transition and who are willing to undertake this task but who do not have financial means and technical capacities. What was done by the international community in Bosnia-Herzegovina may serve as example. Even though we are still far from the end of the road in this country, great progresses have been made and a methodology has been defined that could be replicated in other countries.

Finally, we are very much concerned by the situation of those who fight against enforced disappearances on the field: families of victims, sometimes very simple people, human rights defenders, NGOs. Almost every week we receive calls for urgent actions because these peoples are subjected to threats, intimidation, or reprisals. They work in difficult conditions; they are often accused of defending “criminals”. It is hard for a mother who asks for the truth about her son, who has been abducted by the police or the military in front of many witnesses, to be answered: “Your son is a criminal, he fled and is now fighting with the guerrillas.” The fact is that the criminals are those who abducted her son. Another problem we see, especially due to the current times of financial crisis, is that those courageous peoples who are mobilizing themselves against enforced disappearances in their countries are lacking funds. It is more and more difficult to find financial support for what is often perceived by donors as a “politicized” issue, whereas other issues may seem less problematic. This is an absolute shame. There is a responsibility of all donors to strongly support those courageous people who are only asking for justice, truth, and reparation and who are taking all the risks on behalf of all of us.

Emmanuel Decaux is professor of public international law at the University Paris II as well as director of the Center for Human rights and humanitarian law (CRDH). He published extensively on Human Rights International Law. Since 2002, he was member of the Sub-Commision on Human Rights and, subsequently, member of the HRC Advisory Committee. He was elected member of the Committee on enforced disappearances in 2011 and is currently serving as chairperson. Olivier de Frouville is a Professor of Public Law at the University of Paris 2 (Panthéon-Assas), ad interim Director of the Thucydide Center and Deputy Director the Center of Research on Human Rights and Humanitarian Law (CRDH). He is also a member of the Institut Universitaire de France (IUF).

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Original article: http://blog.oup.com/2013/08/enforced-disappearance-international-law-pil/