The Legal Aspects of the Referendum

As typically alarmist media reports continue regarding the possibility of a relapse into civil war in Sudan, not much attention has (at least in my reading) focussed on the legal aspects of the upcoming referendum and any conflict that follows. If the referendum, as many expect it will, delivers a result in favour of secession is that the end of the matter from a legal perspective? Further, if there is a resort to armed conflict between the north and south immediately after the referendum would that amount to an international armed conflict or a non-international armed conflict? Given Sudan's current treaty obligations, would that characterization have any material effect?

UN Prepared For Referendum Aftermath

It seems the UN is preparing for the worst when it comes to the upcoming referendum in Southern Sudan. Last month it voiced concerns of a return to war if the outstanding issues (vote eligibility and the North-South Border) were not settled before the January referendum.

Freedom of Expression: A Few Limitations are the price of Reconciliation in SA

[Co-authored with Prof. Max du Plessis. Appeared in the Business Day on 15 April 2010. A digression in terms of topic but an interesting one]



The term “hate speech” has been used with varying degrees of accuracy of late, most prominently in reference to the singing of a song by African National Congress (ANC) Youth League president Julius Malema with the refrain, “dubula ibhunu” (shoot the boers).



Less auspiciously, it was used by ANC secretary-general Gwede Mantashe to incorrectly characterise the Freedom Front’s “prosecute Malema” campaign. The former claim has some purchase and merits further consideration; the latter does not. All in all, the claims about hate speech have generated plenty of heat and little light. And sadly, the ANC and President Jacob Zuma, instead of exercising strong leadership to quell the current crisis, have burdened the courts with the task of sorting out political controversies.



Despite its misuse in popular political discourse, hate speech has a defined legal meaning. It is the advocacy of hatred based on race, ethnicity, gender or religion in a manner that constitutes incitement to cause harm. In effect, the prohibition on hate speech curtails the right to freedom of expression guaranteed in section 16 of the constitution.

In any given case, whether some utterance or action amounts to hate speech will depend on the content and context. Before the question of the singing of that struggle song is adjudicated on by the courts, there will no doubt be debate about whether it crossed the line between free speech and hate speech. There is, however, a significant contribution missing from this debate: the decision of the appeals committee of the South African Human Rights Commission in 2003 on the “kill the farmer, kill the boer” slogan. While the two phrases differ, the commission’s decision speaks directly to the phrase “kill the boer”, and the context in which the two utterances were made are broadly similar. The commission’s finding is particularly relevant in the light of tentative defences raised in the current controversy and its high court rulings. The commission’s 2003 ruling, penned by then commissioner Karthy Govender, is illuminating. It arose from a Freedom Front complaint lodged with the commission after “kill the farmer, kill the boer” was chanted at an ANC Youth League meeting and the funeral of ANC veteran Peter Mokaba. The Freedom Front requested a declaratory order that using the slogan in the circumstances amounted to hate speech. Notably, the ANC tried to distance itself from the utterances, saying the slogan “has never been, cannot and will never be a slogan of the ANC”. It also declared there was no evidence that ANC members at these events endorsed the phrase, and suggested that the ANC could not be held responsible for everything said at public events held under its auspices.



The commission made a number of findings that cast light on the current debate. It found the phrase “kill the boer” amounted to advocacy of hatred on the basis of race or ethnicity. That is significant, particularly when regard is had to the claims by those that the “boer” reference is nothing personal, but rather a reference to the apartheid system. However, the commission’s most important findings, then and now, relate to the second aspect of the hate speech inquiry: incitement to cause harm.



The Freedom Front tried to link the slogan to the high incidence of farm killings to fulfil the harm criterion. The commission, however, found that the harm need not be physical or actual harm, but could include “psychological, emotional and other harm”, such as the adverse effect of an utterance on a group’s dignity. It cautioned, however, that such harm must be “serious and significant” for the slogan to amount to hate speech. Importantly, the commission stressed that the inquiry was not about the subjective intention of the individual who chanted the words, but whether objectively the utterance was reasonably likely to cause harm. Accordingly, the commission found “the slogan, given its content, its history and the context in which it was chanted, would harm the sense of wellbeing, contribute directly to a feeling of marginalisation, and adversely affect the dignity of Afrikaners”. Furthermore, it “says to them that they are still the enemy of the majority of the people of this country” and are “less deserving of respect and dignity”. Through this broad construction of harm, the commission found that the “kill the boer” chant constituted incitement to cause harm and amounted to hate speech.



The commission’s construction of hate speech, if correct, signals difficulties for Malema and his supporters. By adopting a substantive concept of harm and, importantly, focusing not on whether the person making the statements intends to cause harm by utterances, but objectively whether such utterances are likely to cause harm, the commission pre-empted many of the defences raised in justification of the song. As the commission held, it is not necessary to link the song to farm attacks, or other physical harm to befall the Afrikaner people. It is the objective focus on the effect of the utterance on the target group’s dignity that made the decision so remarkable in 2003, and so relevant today. If that effect was, in 2003, to cause harm sufficient to register as hate speech, then today an objective assessment seems to present the same answer.



What of the argument that to ban singing of that song would amount to historical revisionism, an act of ignoring the country’s history at our peril? First, the argument is overblown. To declare that song, or part of it, to be hate speech in certain conditions does not eviscerate our history. There would be no effect on the pantheon of struggle songs; it is only one phrase in one song that, in the words of the commission, “accentuates the chasms that were fostered before 1994 and which threatened to tear this society apart”. No such argument was made when the commission declared “kill the boer” to be hate speech in 2003. Also, the welcome attempt by the ANC to distance itself from the use of the slogan, calls into question the authenticity of its current jeremiads.



One might argue that singing of struggle songs, as a celebration or signifier of history, is worthy of protection. Generally, infringing a right under our constitution has to be justified under its limitation clause. It is through this process that utilitarian arguments can be brought into the analysis, such as whether a limitation is “reasonable and justifiable in an open and democratic society”. But, legally, section 16’s construction does not allow for any such balancing act on hate speech; it is unique in this regard. A finding that an utterance is hate speech is the end of the matter; presumably, because the constitution’s drafters accepted the risk presented by hate speech in a country like ours. For some, this result may appear counter- majoritarian, or undemocratic; if the majority’s urge is to sing the song, then all others, even minorities who feel threatened by the chorus, should sit quietly by. Ruminations of this nature have already surfaced in the political debate. Similarly, some academics have concluded that, on this basis, a finding that the utterances constitute hate speech will be bad for both the judiciary and democracy as a whole. However, such a judicial outcome would quite simply be the price of a living in a special type of democracy, one in which the government and all its people are bound jointly to a constitution founded in the mature spirit of reconciliation. No juvenile revisionism or odious race baiting should be allowed to distract SA from that.

Africa Must Lead on the Development of the Crime of Aggression

[Co-authored with Anton du Plessis, Head: International Crime in Africa Programme at the Institute for Security Studies. Appeared in ISS Today, 8 March 2010]



The first ten-year Review Conference of the International Criminal Court (ICC) will take place from 31 May – 11 June 2010 in Kampala, Uganda. Most states parties will be satisfied with the progress made by the Court since the adoption of its founding treaty, the Rome Statute, back in 1998. Supporters will be pleased that 110 countries have signed up to the ICC, that it is fully operational, and that it is actively investigating cases in five countries.



There have, however, been significant challenges along the way. For Africa, one of the lesser-known challenges relates to the limited progress that has been made on defining thecrime of aggression and agreeing on the process through which the ICC gains jurisdiction over the crime. States parties are now faced with the task of coming up with a workable way forward on this issue at the Review Conference.



The drafters of the Rome Statute gave the ICC jurisdiction over crimes against humanity, genocide, and war crimes. They also intended the Court to be given jurisdiction over the crime of aggression; however, at that time, the drafters could not agree on a legal definition of the crime. So although the crime of aggression was written into the statute in 1998, the Court’s jurisdiction will remain non-operational until agreement is reached on the definition.



Due to the complexity involved in legally defining aggression, a Special Working Group on the Crime of Aggression (SWGCA) was established in 2002 to work on a definition and submit its proposals for the Review Conference. The purpose behind prosecuting crimes of aggression is to hold accountable those individuals who instigate and engage in unjustified armed conflicts between states. The legal definition involves two parts: the elements that define when a crime of aggression has been committed, and the circumstances which give the ICC jurisdiction over the crime. In short: a ‘crime of aggression’ means the planning, preparation, initiation or execution of the use of armed force when not acting in authorised self-defence. The crime must be conducted by a person in a position to direct the actions of a sovereign state`s political or military branches. And the crime must be targeted against another sovereign nation.



The failure of the representatives at the Rome Conference in 1998 to agree on the definition of the crime of aggression was the result of both definitional and jurisdictional controversies. Certainly the most contentious hurdle was the role of the UN Security Council in triggering the ICC’s jurisdiction, in other words bringing crimes of aggression before the Court. Some states wanted to uphold the inherent power of the UN Security Council to decide whether an act of aggression should be prosecuted. Others, most notably countries from the developing south, wanted a greater say for the UN General Assembly and International Court of Justice.



These debates, which relate to the uneven nature of international criminal justice, remain heated, and resonate elsewhere too. Recently much debate has centred around the power of the UN Security Council to refer cases to ICC under article 13 of the Rome Statute. The Security Council also has the power, under article 16, to defer ICC cases for a period of 12 months – and the African Union has vocally called for the ICC’s case against President al-Bashir of Sudan to be deferred. For many African countries, the skewed institutional power of the UN Security Council creates an environment in which it is more likely that action will be taken against suspects from weaker states than those from powerful states, or those protected by powerful states. For example, the perception in Africa is that by referring the Darfur situation in Sudan to the ICC but not acting in relation to, for instance, Israel’s assault on Gaza, the UN Security Council is guilty of double standards. The same considerations are obviously at play in relation to the crime of aggression and any proposals aiming to give the UN Security Council exclusive authority to trigger the ICC’s jurisdiction over the crime.



African states are accordingly looking to use the upcoming Review Conference to voice their concerns regarding the Court’s structure and operation within this uneven geo-political landscape. In that regard it is not coincidental that the most contentious aspect of the crime of aggression (the role of the UN Security Council in triggering the Court’s jurisdiction) is co-extensive with many of the issues raised by African states in the context of the arrest warrant for al-Bashir. Second, and in a related manner, the issue of aggression touches on the question of the characterisation (as legal or illegal) of a particular use of force, which could potentially have serious consequences for the continent’s nascent regional security architecture, particularly insofar as humanitarian intervention is concerned.



It has surprised few then that at their last Ministerial Meeting in November 2009, African states parties rejected the structuring of aggression in a manner that grants the UN Security Council exclusive authority to trigger prosecutions. The continuity between this position on the crime of aggression and the controversial article 16 amendment which aims to trim to exclusive power of the UN Security Council to defer ICC cases (endorsed by African States Parties at the same meeting) is self-evident. Both seek to displace (or prevent) the Security Council’s hegemony in respect of the Court’s pursuit of international justice: one by providing a residual power to defer proceedings to the General Assembly, the other by preventing further power being given to the Council in respect of initiating prosecutions. More broadly, both share a common motif that challenges the asymmetrical nature of the international criminal justice order. Given this correlation, to the extent that African states might be able to force compromise on either issue, it would be tactically advantageous to capitalise on this inter-play.



Aside from concerns about the inequality of international criminal justice, African states have reason to fear that a Security Council-dominated prosecution regime for aggression has the potential to undermine the regional security architecture developed since the AU’s inception. This architecture, which boldly asserts a degree of autonomy in regional security issues, indirectly challenges the dominion granted by the UN Charter to the Council in respect of forcible interventions.



There is accordingly much at stake. Africa should be encouraged to take a bold, yet constructive, role in shaping the policy and practice of the Court in relation to these contentious, and developing areas of international criminal justice.

SA’s bold proposal shows up the flaws in the Rome compromise

[Published in the Business Day, 29 December 2009]

AT LAST month’s eighth session of the International Criminal Court’s Assembly of States Parties, SA made a bold and controversial proposal: that the provision allowing for the United Nations (UN) Security Council to defer proceedings before the court (article 16) be amended to allow for the UN General Assembly to do so in the event that the council fails to act.

Although the proposal was greeted with hostility by most states, and has received very little media coverage, the issue remains on the agenda for the next session in March, the all-important precursor to the court’s first review conference in Kampala in mid-2010.

The court’s disciples’ immediate and predictable response to the proposal will be that SA has again sacrificed the ideals of international justice on the altar of political expediency. Such jeremiads, while appealing, are misplaced, or at least require contextualisation.

The proposed amendment to article 16 comes at the end of the most tumultuous year in relations between the International Criminal Court and Africa since the court’s inception in 1998, the flash point being the arrest warrant issued for Sudanese President Omar al-Bashir on charges of crimes against humanity and war crimes committed in the Darfur conflict.

From the outset, the African Union (AU) has voiced concern about the warrant and in July adopted the Sirte Declaration, enjoining African states not to co-operate in arresting al-Bashir. SA’s amendment, a joint position of African states parties, is the upshot of their spirited, yet ultimately failed, attempts to cajole the Security Council into exercising its power of deferral to halt proceedings against al-Bashir for a year.

The populist claim made by some African leaders, that the court is targeting Africa, is based on a misunderstanding of its functioning and ignorance of the facts. Although the unpleasant reality is that all the situations being pursued by the court are in Africa, of those four situations all but Sudan were self-referrals.

There is a tepid argument to be made for the invocation of article 16 in the case of al-Bashir to allow for the Thabo Mbeki-led mediation to take its course. That argument, however, is made elsewhere. SA’s heretic article 16 proposal can be more usefully considered in light of foundational issues it raises regarding the nature and structure of international criminal justice.

Al-Bashir aside, the argument inadvertently and clumsily made by SA’s proposal is that the current set-up of the International Criminal Court is flawed, and repeats the hierarchical and unjust structure of the international system. At the centre of the current regime of the court are the UN Security Council’s referral and deferral powers: article 16 is the “negative” component of the council’s relationship with the court, the “positive” one being article 13, which allows the council to proactively refer a matter to the court. These provisions are the product of hard-fought compromises made during the drafting that failed to satisfy either the “realists”, who wanted a Security Council-controlled court, or the “legalists”, who optimistically demanded an apolitical theatre of cosmopolitan reckoning.

The result entrenches the Great Powers exception granted to permanent Security Council members by giving the council the sole discretion to refer and defer matters to the court. Article 16’s realpolitik exceptionalism rests uncomfortably among the International Criminal Court Statute’s provisions guaranteeing justice and fairness. Nevertheless, in 1998 many viewed this Faustian bargain as necessary to enable the court to come into being and secure the support of (certain) Great Powers. This compromise may no longer tenable.

SA’s amendment aims to grant a residual power to the General Assembly to defer a matter before the court if the council “fails to act” within six months. The primary difficulty is one of authority, as article 16 relies on the Security Council’s mandate as the guardian of international peace and security. The amendment tries to overcome this problem by relying on the divisive Uniting for Peace resolution, adopted by the UN General Assembly in 1950 to break a deadlock over the Korean War. This purports to establish a secondary responsibility in the assembly for the maintenance of international peace and security in the event of Security Council inaction.

In the final analysis, this is probably the amendment’s death knell, as even sympathetic countries are unlikely to support employing the defunct Uniting for Peace resolution in this legally questionable manner. Nevertheless, there are arguments worth considering for the amendment’s motif — challenging the Security Council’s hegemony.

First, the claim that it amounts to a politicisation of the court rests on the assumption that the court transcends politics, and that politics has no place in it. But the court was politicised at its inception, most obviously by the inclusion of the Security Council’s role.

More generally, international criminal justice rests unpredictably between the political and the legal, and is not the pure expression of either. Truth be told, such principled objections are not about the politicisation of the court per se, they oppose a particular type of politics. Most western countries are more comfortable with the current arrangement — which effectively gives the five permanent members of the council joint custodianship over international justice — than the thought of surrendering its responsibility to the international community at large.

The justifications for the exceptionalism of the council’s make-up are coherent (if unsettling). Granting such power may be a necessary compromise to prevent outrages upon global peace and security, but are the same considerations as compelling when it comes to fulfilling the promise of impartial, international justice? The extent to which the ethereal notion of “maintaining international peace and security” informs the politically charged Security Council’s decision- making process is questionable. But, even if it does, the imperatives of “peace and security” and the court’s pursuit of those most responsible for serious international crimes are not self-evidently coextensive.

The amendment’s offence is to challenge the political superstructure that bends the court’s promise of impartial international justice in the name of humanity to the will of the Great Powers. It challenges the compromise made at Rome, not the ideals of the court. That compromise gives non- states parties such as the US, China and Russia, hostile to the court, the power to direct and constrain its pursuit of justice and perpetuates the exceptionalism of the world order. Arguments in favour of the court’s perpetuation of the current arrangement must stand and fall on their own merit.

Now is an appropriate time to reconsider the council’s role, on the eve of the review conference where states parties will assess the court’s functioning during its first eight years. This is especially true given that states are contemplating surrendering further authority to the Security Council to trigger the prosecution of the “crimes of all crimes”, the waging of aggressive wars. Undoubtedly, there are flaws in SA’s proposal. There are compelling pragmatic arguments for keeping the vote bazaar that is the General Assembly out of the court’s proceedings. The principled argument, however, is less persuasive. While idealists may continue to rail against the politicisation of the sacrosanct court, and lament the idea of its further contamination through involvement of the General Assembly, they should do so only with equal vigour to the way they bemoan its subservience to the Security Council.