Power and Prosecution

Front matter

Gôttingen Studies in Criminal Law and Justice

Kai Ambos, Ottilia A. Maunganidze (Eds.)

African Expert Study Group on International Criminal Law Groupe des Experts Africaines en Droit Pénal International

Table of contents

Introduction (english version)

Introduction (version française)

South Africa’s Implementation of the Rome Statute (La Mise en ceuvre du Statut de Rome en Afrique du Sud)

I

This book contains some of the papers that were presented at the first meeting of the newly formed ‘African Expert Study Group on International Criminal Law’ held in September 2011 in Brussels, Belgium.! The group was established under the auspices of the Multinational Development Policy Dialogue (hereinafter MDPD”) and the Rule of Law programme of the German Konrad-Adenauer-Stiftung (KAS) in 2010? modeled on the successful sister group in Latin America. This latter group was originally founded as an expert group to monitor the implementation of the Rome Statute of the International Criminal Court (ICC) in Latin America within the framework of cooperation between KAS’ regional Rule of Law Programme and the Department for Foreign and International Law of the Institute for Criminal Law and Criminal Justice of the Georg-August-Universitat Göttingen in 2002. In 2006, the Latin American group was renamed ‘Latin-American Study Group on International Criminal Law’, given its expanded focus. The Latin American group presently has 21 members from 13 Latin-American States (Argentina, Bolivia, Brazil, Chile, Costa Rica, Ecuador, El Salvador, Colombia, Mexico, Paraguay, Peru, Uruguay and Venezuela). It also has members from Germany, Spain, Italy as well as a representative of the ICC. The members of the group, who have regular con-

For the conferences programme, see <http://www.kas.de/wf/doc/kas_4739-1442-2- 30.pdf?111005160402> accessed 11 June 2012.

2 See generally on the KAS <www.kas.de> accessed 9 July 2012, and on the Rule of Law programme see <http://africaiclwordpress.com/> accessed 12 July 2012.

3 Rome Statute of the International Criminal Court, 2187 UNTS 90, 17 July 1998, entered into force 1 July 2002 (Rome Statute).

4 See <http://www.kas.de/rspla-mex/de/pages/10893/> or <www.department-ambos.uni-goettingen.de/index.php/en/Forschung/lateinamerikanische-studiengruppe-zum-internationalenstrafrecht.html> accessed 14 July 2012.

tact with each other and hold a meeting once a year, are all renowned academics and practitioners in their home countries and particularly active in field of international criminal law.

The newly formed African group consists of judicial experts with both academic and practical background from various parts of Sub-Saharan Africa. The importance of such a group for the African continent cannot be overestimated. Africa plays a vital role in international criminal law and justice, both as an active player at the ICC and at the regional and national level. Notably, Africa has a high number of non-international armed conflicts and, consequently, criminal investigations and prosecutions. In fact, all situations and cases currently under formal investigation before the ICC come from Africa (emerging from situations in the Central African Republic [CAR], the Democratic Republic of Congo [DRC], Ivory Coast, Kenya, Libya, the Darfur region of Sudan and Uganda).> While the ICC enjoys broad support from the African continent (out of 121 States Parties to the Rome Statute, 33 are African®), its focus on Africa and in particular the prosecution of a sitting head of state, Omar Hassan al-Bashir of Sudan, has sparked controversy.’ Indeed, the African Union issued several decisions calling upon their member states not to cooperate with the ICC regarding the arrest and surrender of al-Bashir.’ While the criticism against the ICC is to a certain extent understandable, one must not overlook that there are several reasons why the Court so far predominantly focuses on Africa. These reasons have been explained elsewhere.“ Here it suffices to state that three of the countries concerned (CAR, DRC and Uganda) have ‘self-referred’ situations in their respective countries to the ICC. Further, Ivory Coast — a non-member state — has accepted the jurisdiction of the ICC under Article 12(3) of the Rome Statute. Lastly, the use of the proprio motu power of the Prosecutor according to Article 15 in the situation in Kenya was negotiated beforehand. Nevertheless, it is clear that the ICC’s universal reach makes it necessary

5 See <www.icc-cpi.int/Menus/ICC/Situations+and+Cases/> accessed 8 July 2012. Of course, preliminary investigations currently also refer to non-African countries, i.e., Afghanistan, Honduras, Korea, Nigeria, Colombia, Georgia and Guinea, see ICC OTP, ‘Weekly Briefing’, Issue 119 (24 April — 1 May 2012) p. 2 <http://www.icc-cpi.int/NR/rdonlyres/C9C3544A-6558-461A-8FA3- D38F2C5FA4A5/284506/OTPWeeklyBriefing24A prill May2012.pdf> accessed 11 June 2012.

6 See <www.icc-cpi.int/Menus/ASP/statest+parties/> accessed 8 July 2012.

See for an analysis Kai Ambos, Expanding the Focus of the “African Criminal Court”, in Yvonne McDermott, Niamh Hayes and William A Schabas (eds), Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2012), forthcoming, available at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2017537> accessed 14 June 2012.

8 African Union Assembly, Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC), (3 July 2009) Assembly/AU/Dec.245 (XIID Rev. 1 Doc. Assembly/AU/13(XIID), p. 2. See also African Union Press Release, On the decisions of Pre-Trial Chamber I of the International Criminal Court (ICC) Pursuant to Article 87(7) of the Rome Statute on the Alleged Failure by the Republic of Chad and the Republic of Malawi to Comply with the Cooperation Requests issued by the Court with respect to the Arrest and Surrender of President Omar Hassan Al Bashir of the Republic of the Sudan’ (9 January 2012) Press Release No 002/2012.

9 See Ambos (n 7).

that, in the near future, it should also open investigations into situations outside of Africa.

II

The first meeting of African experts in Brussels, referred to above, had as an overall theme ‘Power and Prosecution: Challenges and Opportunities for International Criminal Justice in Sub-Saharan Africa’. The theme was discussed from various perspectives and with different focus. Thus, the reader will find essays in the form of country studies on particular African national legislative developments regarding the incorporation of the Rome Statute into domestic law (e.g.: South Africa, Rwanda, Kenya, DRC), and also, unconnected to the developments of specific African countries, assessments of various subjects relevant for the development of international criminal justice in Africa, such as the African Union’s influences in domestic implementation of the Rome Statute and the prosecution of sexual and gender based crimes in African contexts. Given the bi-lingual composition of the group, the book contains English and one French paper. All papers contain an abstract in both English and French.

III

Max du Plessis’ (Institute for Security Studies & University of KwaZulu-Natal, South Africa) article entitled ‘South Africa’s Implementation of the Rome Statute’ presents an assessment of South Africa’s legislation domesticating the Rome Statute. South Africa’s Implementation of the Rome Statute of the ICC Act was promulgated in August 2002. Du Plessis explains and analyses the key provisions of the Act. Among other issues, he looks at immunities and examines the South African provisions. He argues that the Act enables South Africa to comply with its obligations deriving from the Rome Statute and forms an appropriate provisional basis to respond to the global demands of criminal justice for international crimes. However, he notes, that the legislation’s success depends on the national political will to apply the newly created legal framework in South Africa.

Gerhard Kemp (Stellenbosch University, South Africa), in his contribution entitled ‘Implementing the amendments to the Rome Statute with respect to the crime of aggression at national level: A South African perspective’, discusses the implementation of the crime of aggression in South Africa. Kemp analyses the implications of the adoption of the crime of aggression at the ICC’s 2010 Review Conference in Kampala! for South Africa’s domestic law. The South African ICC Act considers aggression as an international crime, and provides for the application

10 Hereto, cf. Kai Ambos, “The Crime of Aggression after Kampala’ German Yearbook of International Law 53 (2010) 463-509.

of international law. Against this backdrop, the author explores the significance and interpretative value of the Kampala decision, especially for South African law. He argues in favor of the prosecution of aggression at the domestic level.

Christian Garuka Nsabimana (Advocate, Rwanda) offers an account on Rwanda and the ICC with his paper ‘Rwanda and the ICC: a need for the ratification of the Rome Statute’. He points out that Rwanda, in spite of being among the few African countries with experiences in the prosecution of international crimes and having a number of nationals being prosecuted by an international criminal tribunal, has not ratified the Rome Statute. He demonstrates relevant developments in Rwanda and presents arguments for and against ratification. While arguing for a need to ratify the Rome Statute, he analyses political and legal implications.

Lievin Ngombe (Association ‘Culture for Freedom and Justice’, Democratic Republic of Congo), in his paper entitled ‘L’impact de la peine de mort dans le processus de l’adoption de la loi de mise en œuvre du statut de Rome en République Démocratique du Congo’ (‘The impact of the death penalty in the process of adopting the implementation law of the Rome Statute in the Democratic Republic of Congo”), addresses developments regarding the implementation of the Rome Statute in the DRC, especially pointing to the country’s adherence to the death penalty. The DRC ratified the Rome Statute and referred a situation to the ICC. However, the Rome Statute has not yet been implemented into domestic law. The paper assesses the DRC’s debate on the death penalty and its implications for the implementation of the Rome Statute into domestic law. The author identifies certain contradictions in this regard between the DRC’s laws and international criminal law.

Christopher Nsabimana Gevers (University of KwaZulu-Natal, South Africa) offers with his paper ‘Immunity and the Implementation Legislation in South Africa, Kenya and Uganda’ a comparative study on the contentious issue of immunities. By way of introduction, he discusses the various forms of immunity, their history, recognition under customary international law and related developments. This is followed by an assessment of the Rome Statute’s provisions on immunity, especially Articles 27 and 98. For the author, both provisions must be read separately: While Article 27 (2) only guarantees the exclusion of the immunity defence under the Court’s jurisdiction, Article 98 (1) refers to ‘requests for surrender or assistance’ i.e. more broadly relates to the cooperation regime. In the comparative part, the paper addresses immunities for international crimes under Kenyan, Ugandan and South African laws, scrutinizing in particular two questions: first, how far immunities may justify non-cooperation with the ICC in respect of, for example, potential extraditions (a matter of considerable practical importance given the much debated arrest warrants against Sudanese president al-Bashir); and second, how immunities are applicable to domestic prosecutions under the respective national provisions. The author focuses on the legal uncertainties, especially regarding customary international and domestic law, and the applicability of (customary) international law in the African context. In conclusion, the extent of legal uncertainty on the international and national level is bewailed, and the African state patties to the Rome Statute are called upon to clarify their position as to immunity.

Evelyne Owiye Asaala (African Nazarene University, Kenya) in her article ‘The International Criminal Court Factor on Transitional Justice in Kenya’ analyses the impact of the ICC on processes surrounding transitional justice in Kenya in the aftermath of the post-election violence of 2007/08. A Kenyan agenda to deal with the violence developed by the ‘Kenya National Dialogue and Reconciliation Committee’ (NDR) includes constitutional reforms, the establishment of a truth commission, and prosecutions. With the ‘International Crimes Act’, Kenya incorporated the Rome Statute into its national law in 2008. The contribution analyses the impact of the ICC’s investigation on the Kenyan situation and on the national implementation legislation, while at the same time taking into account the principle of complementarity. The Kenyan government’s approach regarding complementarity is criticized and the ICC is identified as ‘central’ in discourses on transitional justice in Kenya. The author sees a far-reaching impact of the ICC’s involvement in Kenya on the social, legal and political level, and argues that perceptions towards justice changed through the ICC’s investigations.

Bonita Meyersfeld (University of the Witwatersrand School of Law Centre for Applied Legal Studies, South Africa) in her account on ‘Implementing the Rome Statute in Africa: Potential and problems of the prosecution of gender crimes in Africa in accordance with the Rome Statute’ explores possibilities and challenges of prosecuting sexual and gender crimes in Africa in accordance with the ICC Statute.!! Coming along with the increasing attention of sexual and gender based violence (SGBV) in situations where crimes of an international dimension occur, her contribution gives a historical overview of gender specific war crimes prosecutions, identifies types of harms which women experience during conflict and addresses deficiencies in post-conflict prosecutions. As for the latter, she covers some of the conceptual problems, probable investigative activities and organizational structures within the respective prosecutorial bodies (for instance witness’ support and protection, and outreach dissemination of relevant proceedings). Endorsing an enhanced prosecution of international sexual crimes, the potential of such development is envisioned. It is argued, that the prosecution of gender related sexual crimes offers possibilities of redress to the often-female victims by holding the perpetrator accountable. She argues further that such prosecutions may lead to future deterrence, in a way that makes the prosecution of SGBV crimes significant not only with regard to individual cases but also to the general prospective safety of women in transitional societies.

11 On the substantive and procedural law as well as the practice of sex crimes and their prosecution see recently Morten Bersmo (ed), Thematic Prosecution on International Sex Crimes (Torkel Opsahl Academic EPublisher 2012); and Morten Bergsmo, Alf Butenschon Skre, Elisabeth J. Wood (eds), Understanding and Proving International Sex Crimes (Torkel Opsahl Academic EPublisher 2012) (both available at <http://www.fichl.org/publication-series/> accessed 9 July 2012).

Last but not least, Hendrik Johannes Lubbe (University of the North West, South Africa), writes about ‘The African Union’s decisions on the indictments of Al- Bashir and Gaddafi and their implications for the implementation of the Rome Statute by African States’. He offers a critical examination of the African Union’s decisions on the ICC. He addresses the content of the decisions and some of the background motivations (such as the UN Security Council’s inactivity following an African Union request pursuant to article 16 Rome Statute to defer the Darfur situation and personal immunities of serving heads of states). In this respect, Articles 27(2) and 98(1) of the Rome Statute are evaluated while arguing that they should be read together in a supplementary way. The author sees a conflict between the African Union’s decisions and the Rome Statute and customary international law. He raises concerns with regard to the fact that some African states have already adhered to the decision, while unlawfully disregarding their obligations deriving from the Rome Statute. Further, he sees the risk that African states may follow the African Union’s decision and refrain from ratifying and/or implementing the Rome Statute.

IV

As for the group’s composition and outreach, the aim is to broaden regional representation and further consolidate membership.

In 2012, the group will meet in Nairobi, Kenya to deal with topics surrounding the ‘Potential for the domestic prosecution of international crimes in Africa’. Topics for future meetings abound given the multi-faceted African legal and political practice regarding international criminal justice in general and the ICC in particular. The group should in particular monitor the recent international or transnational criminal justice developments at the regional African level. As to national developments, it is for example worthwhile mentioning that in Uganda amnesty requests on the basis of the blanket amnesty law of 2000 are since 23 May 2012 no longer granted.!? After the civil war between the Government of Uganda and the Lord's Resistance Army, this blanket amnesty served as an obstacle to national prosecutions for international crimes, although in 2008 in Uganda an International Crimes Division was established in the High Court in order to commence such

12 Ugandan Minister of Internal Affairs, Statutory Instrument No. 34 of 2012 (23 May 2012), and Ugandan Minister of Internal Affairs, Statutory Instrument No. 35 of 2012 (23 May 2012) (both on file with the author). See also, Justice Law and Order Sector (JLOS), “The Statue of Amnesty in Uganda (Part 2)’ (11 June 2012) <http://www.jlos.go.ug/page.php?p=curnews&id=89> accessed 5 July 2012.

13 JLOS ‘The Amnesty Law (2000) Issues Paper — Review by the Transitional Justice Working Group’ (April 2012) <www.jlos.go.ug/uploads/JLOS-Amnesty%20Issues%20Paper%20%5Bpublic%20report%5D.pdf> accessed 9 July 2012.

trials.!“ Given the end of the application of the amnesty, domestic trials have become mote feasible.

At the regional level, there has been a renewed attempt to establish supranational African criminal jurisdiction, which should be monitored closely. On the one hand, the East African Legislative Assembly intends to extend the jurisdiction of the East African Court of Justice (EACJ)'5 to the prosecution of international crimes;!6 on the other hand, the African Union wants to equip the African Court of Justice and Human Rights with jurisdiction over, amongst others, the crimes of genocide, war crimes and crimes against humanity."

While such a move towards regional criminal justice is, in principle, to be welcomed, the concrete circumstances and motives of certain African states give rise to certain concern. Clearly, the national and regional criminal justice systems need to be strengthened since states where these crimes occur should primarily deal with them. This also corresponds to the idea of positive complementarity promoted by the ICC States Parties and the ICC Prosecutor.!®

14 Judiciary of the Republic of Uganda, “The establishment of the International Crimes Division of the High Court <http://www.judicature.go.ug/index.php?option=com_contenté&task=view&id=117&Itemid=154> accessed 5 July 2012.

15 For the EAC]’s website, see <http://www.cacj.org/> accessed 11 June 2012. The EAC] is a treaty based judicial institution, see Treaty for the Establishment of the East African Community (1999), as last amended on 20 August 2007, arts 28 ff.

16 East African Community, East African Legislative Assembly, Resolution of the Assembly seeking the EAC Council of Ministers to implore the International Criminal Court to transfer the case of the accused four Kenyans facing trial in respect of the aftermath of the 2007 Kenya general elections to the East African Court of Justice and to reinforce the treaty provisions’ (26 April 2012), <http://www.eala.org/oldsite041111/key-documents/doc_details/80-resolution-urging-the-eacpartner-states-to-halt-the-signing-of-the-eu-eac-epas.html> accessed 11 June 2012.

17 African Union, Meeting of Government Experts and Ministers of Justice/Attorneys General, Press Release No 037/2012' (14 May 2012) <www.au.int/en/dp/legal/content/meetinggovernment-experts-and-ministers-justiceattoreys-general> accessed 14 June 2012. See irin news, Analysis: How close is an Africa criminal court” (13 June 2012) Johannesburg <www.irinnews.ot/Report/95633/Analysis-How-close-is-a-African-criminal-coutt> accessed 14 June 2012 (‘Plans for an African criminal court moved into an advanced stage with a final draft protocol drawn up in the Ethiopian capital Addis Ababa on 15 May. It is widely expected to be adopted at an AU summit meeting of heads of state in July’). For an scholarly account, see Chacha Bhoke Murungu, “Towards a Criminal Chamber in the African Court of Justice and Human Rights’ (2011) 2 Journal of International Criminal Justice 1067.

18 In the words of the ICC-OTP, positive complementarity is referred to as a ‘proactive policy of cooperation aimed at promoting national proceedings’, see ICC/OTP, ‘Prosecutorial Strategy 2009 — 2012’ (1 February 2010), p. 5. See for a detailed account William W. Burke-White, ‘Implementing a Policy of Positive Complementarity in the Rome System of Justice’ (2008) 19 Criminal Law Forum (CLF) 59 ff; William W. Burke-White, Reframing positive complementarity’, in Carsten- Stahn/Mohamed M. El Zeidy (eds), The International Criminal Court and Complementarity — From Theory to Practice, Volume I, pp. 342 ff; Carsten Stahn, ‘Complementarity: A Tale of Two Notions’ (2008) 19 CLF 87, 100 ff.; Morten Bergsmo/Olympia Bekou/Annika Jones, New Technologies in Criminal Justice for Core International Crimes: The ICC Legal Tools Project’ (2010) 10 Human Rights Law Review 715, 723 ff.

Such moves must be seen critically, however, if they serve to impede or delay truly independent justice and are motivated by investigations of concrete events and prosecutions of concrete people. This is apparently the case as regards the idea of an East African Court of Justice, which was motivated by the ICC investigation into the post-election violence in Kenya and the arrest warrants against four Kenyan suspects.!? Thus, the East African Legislative Assembly made the following statement:

this House resolves [... ] (that) the Council of Ministers immediately embarks on the process of requesting the transfer of the proceedings for the accused four suspects in respect of the 2007 general elections from the International Criminal Court and instituting them in the East African Court of Justice on the basis that the acts complained of are contraventions of the Treaty.20

Clearly, such a motivation rather shows certain unwillingness by the states concerned to deliver justice than a serious interest in bringing the responsible perpetrators to justice. In fact, it is not too far-fetched to suspect that trials before such a regional court would be ‘undertaken [...] for the purpose of shielding’ the responsible persons from criminal responsibility and justice.?!