Wednesday, February 23, 2011

AU Decision Exposes SA Policy on Security Council ‘Mission Creep’

Critics of South Africa’s foreign policy were given further grist for their mill as news emerged from the recent AU Assembly (held in Addis Ababa from 30-31 January 2011) that the continent’s leaders, including those from South Africa, had agreed to transmit a request to the UN Security Council asking it to defer the International Criminal Court’s (ICC) proceedings in respect of Kenya. Not only does the decision undermine Pretoria’s claim to support the ICC, it also belies South Africa’s expressed commitment to a principled, rule-bound international order. The offer of support further weakens the integrity of South Africa`s ‘mission creep’ refrain with regard to its foreign policy and confirms the view that certain of South Africa’s questionable positions on the Security Council have been cloaked under a veil of ‘principle’.

To start with, the AU’s request to the Security Council is a legal folly. The appeal is the product of a spirited yet fractious week of diplomacy by the Kenyan government, in which several African capitals were lobbied to support a request to the Security Council to halt ICC investigations into post-election violence in Kenya under article 16 of the ICC’s Rome Statute. Article 16 grants the Security Council the power to ‘defer’ an ongoing investigation or prosecution if (crucially) the Security Council determines it is necessary for the maintenance of international peace and security under chapter VII of the UN Charter. The AU has previously called for such a halt in proceedings in respect of the ICC’s investigation into the crimes allegedly committed in Darfur by President Omar al-Bashir of Sudan.

The problem with making the same request for Kenya is that the situation in that country clearly does not meet this threshold. It would be necessary for Kenya to show that the continued involvement of the ICC is a greater threat to international peace and security than suspending the ICC’s work: a standard which is difficult to prove. The politics are in any event transparent. Kenya’s request – coming not when the ICC`s investigation started, but only when powerful political players were announced as suspects – suggests backroom maneuvering to shield these suspects or their allies from the ICC’s reach. In short, the request is legally indefensible, and the politics suspect.

So baseless is this request in law that it is hard not to conclude that it is a political salvo designed to elicit a negative response and thereby further alienate the ICC from Africa. Those who stand to benefit are the powerful: the subjects of the Kenyan investigation and al-Bashir. The losers are the victims of appalling violence in both countries. This alone ought to have been reason for Pretoria – which has stated its commitment both to the ICC and the principles of international law on more than one occasion – to distance itself from the request.

What makes matters worse is that there was a legally palatable alternative (even if the politics remained dubious). That was for Kenya to oust the ICC`s jurisdiction by claiming reliance on the court`s principle of complementarity: Kenya could have contended that it was no longer necessary for the ICC to prosecute those most responsible for the 2007-8 violence because Kenya is willing and able to do the job at home. South Africa could have stressed in the AU that it would support a Kenyan push for domestic prosecutions. Indeed, just before the AU summit the head of the ICC Assembly of States Parties went to Nairobi and asked the Kenyan authorities to approach the ICC directly rather than seek a deferral. There was also the option of approaching the ICC prosecutor to request him to suspend his investigations under article 53(4) of the Rome Statute. None of this was done – which speaks volumes about Kenya’s real willingness to prosecute its own domestically, and about Africa’s commitment to international criminal justice more generally.

South Africa’s position on Kenya has wider negative implications for South Africa’s foreign policy. In the past Pretoria has refused to vote in support of Security Council resolutions condemning Myanmar (Burma). It has defended its stance on the basis of countering the Security Council’s ‘mission creep’, and has done so through Pretoria’s narrow construction of the Security Council’s mandate as not including human rights violations that don’t amount to a threat to international peace and security. Legally, South Africa’s position is based on a strict interpretation of the Security Council’s mandate and the negative effect that such expansive interpretations of the its mandate has on other fledging institutions like the UN Human Rights Council. Further, this position is not unconnected to Pretoria’s continued concern about the unjust composition of the Security Council whose permanent membership still mirrors post-WWII, colonial power relations. Whatever the merits of this principled stance in law, the difficulty is that South Africa’s position has effectively led to the protection of human rights abusing regimes like the one in Burma.

The problem with South Africa’s ‘mission creep’ refrain is that it is, both legally and ethically, predicated on consistency. To the extent that Pretoria adopts a narrow, textual interpretation of the UN Charter and the powers it confers on the Security Council, it cannot credibly support a position which characterises the ICC investigations in Kenya as a threat to international peace and security. What has emerged from the AU summit is that South Africa is willing to blow hot and cold in its foreign policy on the Security Council. In its purported resistance to the Security Council’s mission creep, it proved itself willing to cast the human rights of Burmese victims down the river. Now, in its endorsement of Kenya’s request for a Security Council deferral of the ICC’s investigation, Pretoria seems to have forgotten its ‘principled’ opposition to mission creep. Such forgetfulness comes at a cost: the human rights of Kenya’s victims of post-election violence have been cast down the same river.

[This article appeared in the Institutute for Security Studies' ISS Today on 22 February 2011]

Tuesday, February 22, 2011

Congo provides justice without theatrics

[Nicole Fritz is director of the Southern Africa Litigation Centre. She kindly agreed to let us post the following piece which first appeared as an op-ed in the Business Day on 22 February 2011]

The world of international criminal justice has offered lots of theatrics in recent weeks. Courtenay Griffiths, lead defence counsel for Charles Taylor on trial in The Hague before the Special Court for Sierra Leone, stormed out of court, refusing to reappear. His client took the opportunity to excuse himself too. Then there was the International Criminal Court’s (ICC’s) prosecutor, Luis Moreno Ocampo, never one for understatement, intoning: "The world needs legal limits. We need a platform to live together. That is the International Criminal Court." The African Union Commission’s chairman Jean Ping, equally adept at the rhetorical flourish, opined: "Frankly speaking, we are not against the International Criminal Court. What we are against is Ocampo’s justice — the justice of a man."

The disinterested observer might conclude that with all these egos in play, and with so many elevated platforms to play on, the world of international criminal justice probably has little room for justice. But there was another development last week — far less noted — which speaks to what international criminal justice, absent the big egos, might yield. Eleven soldiers from the Democratic Republic of Congo went on trial, accused of raping more than 60 women on New Year’s Day. in the town of Fizi in South Kivu province.

The accused have not only been charged with rape and imprisonment but, given the systematic nature of the crimes, have also been charged with crimes against humanity. What’s noteworthy here is that these trials are not being heard far from the affected communities — as is the case with Taylor’s trial or any of the cases likely to be heard by the ICC. Rather, they are being heard before an innovative mobile gender court in Fizi’s neighbouring town of Baraka. Nor, as so often happens with crimes of this kind, have these cases taken years to come to trial. It has taken less than two months since the crimes were committed for the trials to commence. It isn’t merely low-level officers being prosecuted, which might suggest this type of innovative prosecution procedure is suitable for less powerful actors but that higher-level authorities still need to command the type of expensive trials reserved for Taylor or Slobodan Milosevic. Among the soldiers prosecuted is commanding officer Lt. Col Mutware Kibibi. The attack on the population of Fizi is said to be the largest single atrocity involving the government’s army.

Quite apart from the innovative mobile gender court, it is the Congolese government’s co-operation in the process — aimed at holding its own troops to account — that makes these trials so remarkable. Typically, government actors, when accused of grave human rights violations, use state machinery not to secure accountability but to avoid it. It is why international criminal justice often happens only outside the country where the crimes were committed. In this instance, in the arrest and prosecution of Kibibi, the Congo’s government is making good on its promise of a "zero tolerance policy will be enforced on the spot in Fizi".

Several factors help explain the Congolese government’s stance. Chief among them is the fact that the Congo has attracted international approbation for its reputation as the "rape capital" of the world and that it can’t look to international assistance in countering vicious attacks on its civilian population by several different militia groups when its own army engages in similar atrocities. But it would also be hard to paint the efforts of the mobile gender court as alien to the interests of the Congo’s population, as a number of African leaders have tried to do of, by contrast, the efforts of the ICC. Since its start in October 2009, the Congo’s mobile gender court has conducted about 10 trials a month and has secured 94 rape convictions. It has also trained 150 judicial police officers, 80 lawyers and 30 magistrates. As the mobile gender court is integrated in the Congo’s justice system, the skills and resources invested by outside donors not only secure convictions and accountability but point the way to a fully functioning, comprehensive domestic judicial system for the Congo.

The mobile gender court also points the way to enhanced delivery of international criminal justice, which is almost always preferably secured, if properly done, before local courts and affected local communities — very, very far from the grandstanding of Griffiths, Ocampo and Ping.

Thursday, February 17, 2011

Kenya’s ICC Deferral Request and the proposed amendment to article 16 of the Rome Statute

According to media reports the Kenyan government is redoubling its misguided efforts to persuade the UN Security Council to suspend the ICC Prosecutor’s investigation into the 2008 post-electoral violence. As we have noted before, the request is fundamentally flawed. Not only does it misinterpret both the Rome Statute and the UN Charter through its expanded construction of the Security Council’s Chapter VII authority, more fundamentally, it conflates the principle of complementarity and the realpolitik exception in article 16 that allows international peace and security to temporarily suspend the pursuit of justice. Not only does this weaken the former in principle, more practically it means that any respite Kenya receives from the Security Council (a highly unlikely prospect) will be temporary – article 16 requires the annual renewal of any deferral – whereas the proper exercise of complementarity would offer a permanent solution to Kenya’s concerns (on the assumption that it is truly willing and able to prosecute the offenders domestically).

Therefore, should Kenya genuinely wish to go it alone its only real option is to find another avenue under the Rome Statute to halt ongoing proceedings at the ICC on the basis of the proper exercise of complementarity. We have suggested article 53(4) is one such avenue. Kenya would be well-advised to pursue this option as, regardless of the legal merits thereof, its deferral request appears certain to fail politically as both the United States and the United Kingdom have publicly stated that they will veto such a request.

If Kenya continues along this ill-advised path two things appear certain: First, the relationship between the ICC and African states will continue to deteriorate, with the few voices of reason within the AU becoming increasingly isolated. Second, and by relation, the African States Parties’ proposed amendment to article 16 – that would give the UN General Assembly the authority to defer an investigation should the Security Council ‘fail to act’ on such a request – will gain momentum. The amendment proposal, which was effectively disowned by African States Parties when South Africa officially proposed it at the ASP in November 2009 and has since been consigned to the new Special Working Group on Amendments within the ICC’s Assembly of States Parties, was once again endorsed at the recent AU Heads of State Summit in late January. In this regard the AU Assembly:

“[Noted] the Decision of the Ninth ASP-ICC to hold informal consultations on the proposed amendments to the Rome Statute in the context of a Working Group before its Tenth Session scheduled in December 2011 and [called upon] all African States Parties to the Rome Statute of the ICC that have not yet done so to co-sponsor the proposal for the amendment to Article 16 of the Rome Statute and indicate such willingness to the UN Secretary General, the Depositary of the Rome Statute, with copy to the AU Commission...”

Further, the Decision:

“[Underscored] the need for African States Parties to the Rome Statute of the ICC to speak with one voice during the forthcoming negotiations at the level of the New York and The Hague Working Groups respectively and [requested] the Group of African States Parties in New York to ensure that the proposal for amendment to Article 16 of the Rome Statute is properly addressed during the forthcoming negotiations and to report to the Assembly through the Commission.”

As we have previously noted in our article "Making amend(ment)s: South Africa and the International Criminal Court from 2009 to 2010" (34 South African Yearbook of International Law 2009 1), Africa’s proposed article 16 amendment must overcome a number of legal hurdles if it is to be adopted. These are in addition to the mammoth task of securing the political support for an amendment that not only tinkers with one of the most finely balanced compromises reached at Rome in 1998 but (in its current form) also implicates the relationship between the General Assembly and the Security Council insofar as the maintenance of international peace and security is concerned. That said, these legal hurdles are not insurmountable. And, if faced with mass exodus of African states and the resultant collapse of most if not all of its current proceedings, the ICC Assembly of States Parties might be forced to make some uncomfortable political compromises that include some form of residual deferral power for the General Assembly, or perhaps even itself.

Monday, February 14, 2011

ICC Pre-Trial Chamber rebukes Prosecutor

On Friday the ICC's Pre-Trial Chamber (PTC) issued its decision on an application by Mohammed Hussein Ali - one of the so-called Ocampo Six for whom the Prosecutor has sought a summons to appear in pursuance of his investigation into Kenyan post-electoral violence. The application sought the PTC's permission to "participate fully" in the proceedings relating to the Prosecutor's request for summonses to be issued under article 58(7) of the Rome Statute.

Not surprisingly the PTC denied the application on the same basis that it did a previous "amicus curiae" request by another one of the Ocampo Six to make representations to the PTC regarding the Prosecutor's article 58(7) request, namely that under the Rome Statute article 58 proceedings are done ex parte, with the "exclusive participation of the Prosecutor".

No surprises there. What is interesting about the PTC's decision is it's rebuke of Prosecutor Ocampo for his (very) public announcement of the persons he was seeking summons for last December. In dismissing the applicant's argument that on the basis of the negative publicity he has been exposed to as a result of the Prosector's public request he should be allowed to participate in the proceedings at this stage, the Court noted:

"While it is not the Chamber's role to comment and advise the Prosecutor on his interaction with the press and media, the Chamber nevertheless is concerned if his actions have the potential to affect the administration of justice and the integrity of the present proceedings before the Chamber. In this respect, the Chamber expresses its deprecation regarding the Prosecutor's course of action in the present case, as it has unduly exposed the applicant to prejudicial publicity before a determination of the Chamber pursuant to Article 58 of the Statute has even been made."

Mr Ocampo has courted controversy in the past, not only for his prosecutorial strategy and choices, but also his handling of the media. Some criticism is probably unavoidable given his high profile position and the attendant responsibility, and Mr Ocampo has proved himself to have a thick skin. While Mr Ocampo's term of office is soon due to end soon, this criticism by the PTC of the work of the Prosecutor should give his successor some pause for thought ...

Thursday, February 10, 2011

Southern Sudan Referendum: What next?

This week the results of Southern Sudan's referendum were released and as expected they were overwhelmingly in favour of seccession. However, the soon-to-be fledgling state is not quite out the woods yet. There remains alot to be done before July when the coutry will, under the terms of the CPA, formally become an independent state.

There are a number of interested legal questions that have been thrown up by this process that remain unanswered (and unexplored), and many more will surely emerge over the coming months. For an excellent discussion of some of them see "Referendums Today: Self-determination as Constituent Power?" by Stephen Tierney, which responds to "Let his People Go: Sudan’s Lesson for Secession" by Timonty Waters, over at EJILTalk!.

Tuesday, February 8, 2011

EJILTalk! Post: take 2

EJILTalk! has kindly posted the Business Day op-ed by Max and me (see below). I look forward to the responses to the article 53(4) argument which remains under-explored in the discussions on the issue to date. We have at least one convert, but Peter Kagwanja takes our argument in a somewhat different direction than it was intended.

Aggression Article

An article I co-authored on Africa and the negotiations over the crime of aggression that took place at the ICC Review Conference in Kampala last year is out. The article - titled "Africa and the Codification of Aggression: A Phyrric Victory?" - appears in the African Legal Aid Quarterly. You can mail me for a copy, here is the abstract:

More than sixty years after it was declared ‘the supreme international crime’ by the Nuremberg Tribunal , the crime of ‘aggression’ has been adopted for inclusion in the Rome Statute of the International Criminal Court (ICC) ; with the Court able to exercise jurisdiction over it after the amendment has been ratified by at least 30 State Parties, but not before 2017. This amendment criminalising aggression, and specifically the jurisdictional regime governing it, is both complex and controversial, being the product of one of the most intractable diplomatic negotiations in the history of the ICC.

Notwithstanding recent schisms in its relationship with the Court, Africa played a key role in the final version adopted by the ICC Review Conference in Kampala , as it has throughout the Court’s development. The codification of the crime of aggression – loosely defined as the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations (UN Charter) – is a diplomatic victory for smaller states that are likely to see it as a salvo against the disregard shown for the UN Charter by powerful states. Moreover, the criminalisation of aggression, and attendant placing of such disputes within a legal (and criminal justice) forum, weakens, if not obviates, the claim made by a few powerful states that the United Nations Security Council (UNSC) has the exclusive authority to make such determinations under international law. However, such advances notwithstanding, the ultimate formulation of the crime raises the likelihood of increased dissonance between the Court and Africa, particularly in respect of the question of the role of the UNSC in international criminal justice and the impact of the criminalisation of violations of the UN Charter on Africa’s burgeoning peace and security structure.

This paper briefly discusses the history of the crime of aggression and considers how the stumbling blocks to consensus were addressed at the Review Conference in Kampala. It also considers the ultimate formulation of the crime of aggression and its jurisdictional regime and argues that on the whole the victory for Africa at Kampala may well turn out to be a Pyrrhic one.

Sunday, February 6, 2011

EJILTalk Guest Post: AU States obligations and the ICC

This week Dapo Akande was kind enough to allow Max du Plessis and I to post the following on the EJILTalk blog, as part of an ongoing discussion on the topic:

Earlier this week, Dapo had a post dealing with the obligations of contracting parties to the Genocide Convention to implement ICC arrest warrants and pointing to the UCLA Online Forum debate on this topic. In what follows we hope to contribute to the discussion around point (ii) of the topics raised by Dapo’s post and the UCLA debate: the obligations of African Union States Parties to implement ICC arrest warrants.  Our contribution is drawn from our upcoming position paper for the Institute for Security Studies’ International Crime in Africa Programme. The paper provides an analysis of the various obligations Kenya and other States Parties must meet to the ICC in respect of both al-Bashir and the Court’s ongoing investigation into the post-election violence in Kenya, and which considers the nature of the obligations on African States Parties such as Kenya in respect of the AU decision, and in particular the demand for non-cooperation in respect of al-Bashir.  This paper builds on the ISS’s previous position paper – An African expert study on the African Union concerns about article 16 of the Rome Statute of the ICC, by Dapo Akande, Max du Plessis and Charles Jalloh, previously discussed on this blog (here and here) – and similarly the Institute plans to launch the paper internationally in due course.

Firstly, decisions of the AU Assembly are potentially binding on member states. Although there is no express provision in the AU’s Constitutive Act conferring this power, it is clear from article 23 – which sets out the consequences for failing to abide by such decisions – as well as a thorough contextual reading of the Constitutive Act that the Assembly is empowered to do so. Even if the text of the AU Constitutive Act is considered insufficient or equivocal in this regard, given the considerable mandate the body has been given by its member states, those advocating for the binding nature of Assembly decisions could rely on the doctrine of implied powers to support their position. Further, as Bill  Schabas notes in his piece on the UCLA Law Forum, the AU Commission clearly views the AU’s Bashir Decision as binding on its members.

As far as the July 2010 AU Decision (Assembly/AU/Dec.296(XV) is concerned, using the Security Council as an analogue, various interpretive techniques can be employed with the view to ascertaining the “intention” of the Assembly. Firstly, the plain language (the primary indicator) of operative paragraph 5 of that decision – whereby the AU “Reiterates its Decision that AU Member States shall not cooperate with the ICC in the arrest and surrender of President El-Bashir of The Sudan” – clearly suggests it was intended to be binding and not merely exhortatory. Moreover, a consideration of the practice of the AU Assembly reveals that the word “decision” and its variations are used sparingly and deliberately. Unfortunately, due to the controversy that surrounded its adoption, and the complex three-tiered decision-making structure of the AU Assembly, the discussions leading up to the Bashir Decision are of little assistance in this regard. Nevertheless, the decision that AU states shall not cooperate clearly creates a prima facie obligation on such states not to do so.

As Bill Schabas rightly notes, the upshot of this is “with respect to Member States of the African Union that are also States Parties to the Rome Statute, there would appear to be a conflict between the binding obligations imposed by the Rome Statute and the binding obligations imposed by the Decisions of the African Union”. This ‘norm conflict’ can be resolved in one of two ways: with reference to hierarchy (such as a jus cogens norm or per article 103 of the UN Charter) or through “techniques of interpretation”.

As far as the use of hierarchy is concerned, in our view there is little to be gained from article 103 of the UN Charter in this regard. Although it might have done so, by its terms UNSCR 1593 does not bind states (other than Sudan) under Chapter VII to cooperate with the Court in respect of the Sudan situation. As for jus cogens obligations in respect of genocide, leaving aside debates over when these are engaged, their scope cannot (perhaps yet) be said to extend to the execution of an arrest warrant.

So far so good.

Where we differ respectfully with Bill is in respect of the second conflict resolution tool: techniques of interpretation. Bill dismisses Amnesty International’s attempt to argue that “the African Union intended that its Decision ordering States not to enforce the arrest warrants be consistent with the Rome Statute, and at the same time to declare the interpretation of a provision of the Rome Statute upon which the Decision of the African Union is based to be erroneous”. At this point, having dismissed AI’s attempts to read down the AU Decision, Bill concludes that the two obligations “cannot be reconciled” through interpretive means and, in the absence of “any apparent rule or formula establishing a hierarchy by which one prevails over the other”, the “conflict of legal norms requires a political solution”.

However, we believe that there is an interpretive means to avoid this “conflict of legal norms”, and that solution lies within the AU Decision itself. While the controversial paragraph in the AU Decision demanding non-cooperation has attracted much attention, one must also consider the paragraph that follows immediately after, which “[r]equests Member States to balance, where applicable, their obligations to the AU with their obligations to the ICC”. This ’balancing paragraph’ – included at the insistence of states such as South Africa whose implementing legislation obliges them, under domestic law, to cooperate with the ICC – makes a straightforward textual interpretation of the Decision as a whole difficult.  It suggests a decision that drives at a categorical imperative yet at the same time provides allowance for a measure of discretion. On their face these two commands appear irreconcilable by simultaneously commanding member states not to cooperate in the arrest of al-Bashir and requesting them to balance this edict with their obligations under the Rome Statute.  In such circumstances it becomes necessary to look beyond the text in order to give meaning to these two paragraphs.

Here there is unfortunately little guidance provided by the discussion in the AU Assembly. Indeed, at the time the Decision was adopted there was concern raised by some states that the AU Commission – responsible for drafting the voluminous decisions of the Assembly as they pass through the various stages of the decision-making process  – had on more than one occasion distorted the discussions and decision-taking during the preparatory stages in order to push its own hawkish line on the question of the Bashir Arrest Warrant.  The difficulty then is that reference to the discussions leading up to the Decision is not a reliable means of infusing plainly contradictory language with any singularity or clarity of purpose.

Arguably there is only one tool remaining by which to avoid the norm conflict.  In this regard we submit that the internal contradiction in the AU Decision occasioned by the inclusion of this ‘balancing paragraph’ should be resolved by employing the doctrine of effective construction. This doctrine takes on different forms but has been held to require that one “avoid interpretations which would leave any part of the provision to be interpreted without effect”, and that “an interpretation which would make the text ineffective to achieve the object in view is prima facie suspect”. In the past it has been used by both the ICJ and the ICTY Appeals Chamber, and Bill references it in his discussion on immunity. Although those occasions involved the interpretation of treaties, there appears to be no reason why the doctrine is not applicable in the interpretation of organisational acts.

Applying the doctrine of effective construction to the AU Decision means that to read it as peremptory would render permissive opt-out meaningless. Therefore, in terms of this doctrine the text of the Decision is best rendered exhortatory: that is, it is not an unequivocal command but rather is diluted when states (“where applicable”) are under another obligation stemming from the Rome Statute.   States parties may thus avoid the apparent conflict of norms represented in the AU Decision by an interpretive turn which takes the text of the decision seriously and attempts to render it meaning-ful.

Incidentally, the AI report considers this ‘balancing paragraph’ and concludes that it “provides AU member states with a tool to solve any possible conflict between the obligations arising from the 2009 and 2010 Decisions and the obligations towards the ICC”. The problem is that it does not suggest how this tool might work, although it’s clear that on AI’s reading this balancing exercise would inevitably “result in the obligations towards the ICC prevailing over the obligations towards the AU” in respect of all AU member states. We would avoid a reading of this paragraph and the use of balancing as a substitute for subjugating the AU Decision to the ICC.  The AU’s Decision is (textually and contextually) a reflection of internal inconsistencies around deeply-felt concerns about the Court’s work in Africa. We suggest that, although the result may be the same, the doctrine of effective construction is a better means of simultaneously recognising that these concerns animate the AU’s Decision, whilst addressing the contradictory aspects of a decision by a regional organisation comprising 53 sovereign states.