Tuesday, December 13, 2011

One African President Speaks Truth to Power on the ICC

By Max du Plessis

Monday 12 December, a cold and cloudless day
in New York, saw the start of the 10th session of the Assembly of States Parties
(ASP) to the International Criminal Court (ICC).

Here over the next few days the ASP will
select six new judges, decide on the ICC’s budget for 2012, and formalise the
consensus candidate for the next Chief Prosecutor of the ICC. About the
Prosecutor: already early in the morning the delegates are pumping hands and
slapping backs, congratulating Fatou Bensouda – the current Deputy Prosecutor of
the ICC – for being elevated to take over the wheel from her boss, Luis Moreno
Ocampo. Ocampo, who has focused his term on African prosecutions,
steps down in mid 2012 after eight years at the helm.

It is a good day for Africa when Bensouda,
an erudite and warm woman who was previously Justice Minister and Attorney
General in The Gambia, becomes the world’s most powerful prosecutor.
the fact that all the ICC’s cases are in
Africa, together with fundamental concerns about the UN Security Council’s role
in the work of the court, has resulted in criticisms that the ICC is a
neo-colonialist institution that unfairly targets the continent. Relations
between the court and some states, as well as the African Union, are now
strained. Of most concern is that several African governments, including states
parties to the Rome Statute, have publicly refused to cooperate with the court
in the arrest and surrender of suspects.

Ocampo has borne the brunt of Africa’s
dissatisfaction with the court. As a result, some Africans have high
expectations that Bensouda’s ascension will deliver a prosecutor less inclined
to keep the ICC’s focus exclusively on Africa. Reducing resistance to the court
from African governments is a complex and politically charged task, but one that
will be an immediate and continuing priority for the new prosecutor.

The immediacy of that task, let alone its
complexity, has been accentuated by developments in just the past

The most recent turn was a further African
affair for the court: involving the surrender and transfer to the ICC of former
Ivorian President Laurent Gbagbo on 29 November. Gbagbo was transferred to The
Hague by Ivorian authorities pursuant to an ICC arrest warrant issued under seal
six days earlier on 23 November 2011. His transfer to The Hague comes almost a
year to the day after Côte d’Ivoire`s disputed presidential election that
resulted in six months of violence. Gbagbo is charged with bearing
individual criminal responsibility, as indirect co-perpetrator, for crimes
against humanity allegedly committed in his own country.

Gbagbo is the first former head of state to
be transferred to the ICC. He joins a list of senior African
statesmen sought by the Court for international crimes, including arrest
warrants for Sudanese President Omar Hassan al-Bashir and Libyan leader Colonel
Muammar Gaddafi. Al-Bashir continues to evade justice, and Gaddafi met his end
injudiciously in Libya in October 2011.

Gbagbo’s destiny with The Hague occurs
alongside other notable developments in the past month. Most significantly is
the decision by a Kenyan High Court judge ordering Kenyan authorities to arrest
President al-Bashir. That order comes after Kenyan authorities
allowed al-Bashir safe passage through Kenya in violation of Kenya’s
international obligations to cooperate with the ICC in securing his arrest; an
obligation which Kenya’s Parliament has domesticated in its International Crimes
Act of 2008. The case was brought by Kenyan civil society, and the
order is directed at the Minister for Internal Security and the Attorney
General, who were the Kenyan government respondents in the

In the diplomatic equivalent of a blowback,
and proving the increasing relevance of international criminal law (and its
potential political ramifications), the Sudanese government ordered the
immediate expulsion of Kenya’s ambassador to Sudan. In addition the Sudanese
government recalled its representative in Kenya. This backlash against the
ruling included Malawi’s President, Bingu wa Mutharika, reportedly condemning
the ruling while addressing a meeting of the East African
Community. Kenya’s leading newspaper carried a response from
Kenya’s foreign minister, Moses Wetangula, to the effect that this was “a
judgment in error” that “failed to balance the delicate international
relations.” He has said Kenya will find it difficult to obey the court

The African Union (AU) also weighed in. The
AU Commission issued a statement on 5 December saying that its chairperson “is
closely monitoring the developments in the relations between the Republic of the
Sudan and the Republic of Kenya”. The AU’s statement comes on the back of
troubling decisions by the AU in which it called on its member states not to
cooperate with the ICC in arresting African leaders, including, most recently,
in respect of Colonel Gadaffi (and that despite the blood-letting he had
personally unleashed in Libya, and despite the fact that the UN Security Council
unanimously with South Africa’s positive vote referred Gadaffi’s crimes to the
ICC for investigation). In its 5 December statement, the AU
trotted out that it had “no doubt” that “the entire membership of the AU will
continue to comply scrupulously with the African common position on the respect
of the immunity of the President of the Republic of the Sudan, Mr. Omar Hassan
Al Bashir, as well as that of all the other incumbent African Heads of

Attempting to capture (in both senses of the word) a common African
position is not as easy as the AU would have it. That is made
clear by what Botswana’s President Seretse Khama Ian Khama said in his keynote
address to the ASP plenary this morning in New York. President
Khama is not blind to what he described as “the perception that the ICC unfairly
targets African countries”. But, refreshingly and honestly, he is
also not blind to the irony, as he put it, “that these crimes are perpetrated,
in most cases, by the very leaders who are supposed to protect the
people”. Khama also regretted the AU’s decision in June 2011 “not
to cooperate with the ICC over the indictments and arrest warrants issued
against some leaders”, which in his view “is a serious setback in the battle
against impunity in Africa” and which “undermines efforts to confront war crimes
and crimes against humanity which are committed by some leaders on the

It must therefore be asked: what common
African position is the AU’s Commission dreaming of? If there is a
dream worth focusing on, it might be one that President Khama set out so
forcefully in a UN building on the East River: that is, that we all, including
African leaders and the AU, “need to have the political will and the moral
courage to hold accountable, without fear or favour, anyone in authority –
including a sitting Head of State – when he or she is suspected of having
committed crimes against innocent people”.

The world now has a new chief prosecutor of
the ICC, and she is African. The world has a functioning and
permanent International Criminal Court, and its first cases are in response to
appalling African atrocities. And the world is looking on as
powerful African elites scramble to undermine the work of that
Court. The Court is not beyond reproach. It can and
must do its work faster; it can and must open cases outside of Africa to
deserving cases; and it can and must perform its outreach and publicity
better. But at the same time it’s important for the continent to
hear clearly the words of President Khama as he speaks truth to the AU’s power:
that is that the AU’s negative undermining of the ICC “places Africa on the
wrong side of history”, and “is a betrayal of the innocent and helpless victims
of such crimes”.

Max is senior research
associate on the International Crime in Africa Programme (ICAP) at the Institute
for Security Studies and associate professor at the University of
KwaZulu-Natal. Max is currently part of an ISS delegation
participating in the ICC ASP meeting in New York. ICAP is also
assisting the Botswana Government in drafting its domestic legislation to
incorporate the Rome Statute of the International Criminal Court.

Wednesday, September 28, 2011

Immunity, Cooperation and the Implementation Legislation of Kenya, Uganda and South Africa

My contribution to the African Study Group meeting (see below) focussed on the issue of immunity under the implementation legislation of Kenya, Uganda and South Africa: insofar as both cooperation with the Court and domestic prosecutions are concerned. The question of immunity and cooperation is clearly of imminent concern given the arrest warrants that have been issued for al-Bashir and Gadhaffi. Although I will be refining my paper over the next few weeks, here are my preliminary views on the issue of immunity vis-a-vis cooperation under each of the implementation acts:

South Africa’s Rome Statute Act (2002)

South Africa’s Rome Statute Act (2002) is silent on the relevance of immunity in relation to cooperation requests from the ICC. Contrary to Kenya and Uganda’s implementing legislation, the Rome Statute Act’s immunity provision focuses on the impact of immunity in domestic prosecutions and makes no mention of immunity in relation to cooperation with the ICC. 

In terms of section 8 of the ICC Act, when South Africa receives a request from the ICC for the arrest and surrender of a person for whom the ICC has issued a warrant of arrest, it must refer the request to the Director-General of Justice and Constitutional Development with the necessary documentation to satisfy a local court that there are sufficient grounds for the surrender of the person to The Hague. As we shall see when we consider Kenya and Uganda’s implementation legislation, this is the point at which the question of article 98’s application would arise, however the Rome Statute Act (2002) makes no mention of article 98. It merely directs the Director-General to forward the request (along with the necessary documentation) to a magistrate who must endorse the ICC’s warrant of arrest for execution in any part of the Republic.

It is worth noting that in practice the South African government has taken the position that immunity is not a bar to cooperation, as evidence by the belated (and begrudging) revelation that the al-Bashir arrest warrant had been endorsed by a South African magistrate, is active in the Republic and that President al-Bashir would be arrested should he be present in the Republic. At no point was mention made of article 98.

Kenya’s International Crimes Act (2008)

In contrast, Kenya’s International Crimes Act (2008) specifically addresses the relevance of immunity in relation to cooperation requests. Section 27(1) thereof – titled ‘Official capacity 
of person no bar 
to request’ – states that “[t]he existence of any immunity or special procedural rule attaching to the official capacity of any person shall not constitute a ground for (a) refusing or postponing the execution of a request for surrender or other assistance by the ICC; (b) holding that a person is ineligible for surrender, transfer, or removal to the ICC or another State under this Act; or (c) holding that a person is not obliged to provide the assistance sought in a request by the ICC”. However, section 27(1) is subject to the provision of section 115 of the Act, which addresses 'Requests involving conflict with other international obligations'. In terms of this section: “If a request by the ICC for assistance to which this Part applies concerns persons who, or information or property that, are subject to the control of another State or an international organisation under an international agreement, the Attorney-General shall inform the ICC to enable it to direct its request to the other State or international organization”. The provision goes on to state that the Minister may postpone the request for assistance in such circumstances.

These provisions of Kenya’s International Crimes Act are interesting for a number of reasons: 

First, the Act (section 115) expressly refers to article 98 of the Rome Statute and in doing so it arguably adopts an interpretation of the article 27/98 relationship that implicitly rejects the article 27 waiver argument adopted by most academics. (See Akande, ‘International Law Immunities and the International Criminal Court’, 98(3) AJIL (2004), 407-433). Section 115 is by no means perfect, it appears to conflate article 98(1) and article 98(2) by referring to requests relating to “persons who, or information or property that, are subject to the control of another State or an international organisation under an international agreement”. This is different from article 98(1) which refers to “obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State”. What is more, the reference to persons, property or information “subject to the control of another State” is novel and potentially casts the net far wider that traditional immunity ratione personae. However, these difficulties aside, section 115 clearly does not distinguish between persons coming from states parties to the Rome Statute, as the article 27 waiver argument requires. Notably, other implementing acts do make such a distinction. In terms of the United Kingdom’s International Criminal Court Act (2001), “[a]ny state or diplomatic immunity attaching to a person by reason of a connection with a state party to the ICC Statute does not prevent proceedings… [related to arrest and surrender] in relation to that person”. In contrast, where “state or diplomatic immunity attaches to a person by reason of a connection with a state other than a state party to the ICC Statute” a waiver must be obtained from the state or organization concerned.

Second, the Act charges the Court with making a request to the “third state” or organization. This will be done in terms of Rule 195 of the Court’s Rules of Procedure and Evidence, which states that “[w]hen a requested State notifies the Court that a request for surrender or assistance raises a problem of execution in respect of article 98, the requested State shall provide any information relevant to assist the Court in the application of article 98”. What happens thereafter is not clear from the wording of section 115. The most coherent reading suggests that if the request is refused by the third party and the Court decides not to proceed with the original request, then Kenya shall refused the original request for assistance. If the Court nevertheless decides to proceed with the original request regardless, the Kenya shall accede to it provided that “there is no other ground for refusing or postponing the request”. This suggests that Kenya considers itself bound by the Court’s decision in such circumstances. 

Finally, Kenya’s immunity provision makes it clear that personal immunity shall not be a bar to surrender of a person to another state as well, not merely the ICC. In this respect it might go beyond what is permissible under customary international law by allowing Kenya to extradite an official who would otherwise enjoy immunity at the request of a third country. In terms of the ICJ Arrest Warrant decision this would definitely amount to a violation of Kenya’s obligations under customary international law to the ‘sending state’.

Uganda’s ICC Act (2010)

Uganda’s ICC Act (2010) addresses the immunity of immunity in articles 25 and 26. Article 25(1), titled ‘Official capacity of person no bar to request’, states that “[t]he existence of any immunity or special procedural rule attaching to the official capacity of any person is not ground for – (a) refusing or postponing the execution of a request for surrender or other assistance made by the ICC; (b) holding that a person is ineligible for arrest or surrender to the ICC under this Act; or (c) holding that a person is not obliged to provide the assistance sought in a request by the ICC.” This is a carbon-copy of section 27 of Kenya’s Rome Statute Act (2002), with the exception of the reference to surrender to other states. 

In terms of article 25(2) of Uganda’s ICC Act (2010), this section is made subject to section 24(6) which states:
“If the [Justice] Minister is of the opinion that the circumstances set out in article 98 of the [Rome] Statute apply to a request for provisional arrest, arrest and surrender or other assistance, he or she shall consult with the ICC and request a determination as to whether article 98 applies.”
There are obvious similarities between this provision and Kenya’s correlative provision. Both address immunity ratione personae (i.e article 27(2) of the Rome Statute) in relation to cooperation requests rather than domestic prosecutions (in almost identical terms). 

Further, like Kenya, Uganda makes this provision subject to article 98 of the Rome Statute through section 24(6) but makes no distinction between requests relating to state parties to the ICC and those not party. In this respect it contradicts, or at least does not confirm, the article 27 waiver argument in the same way that Kenya’s legislation does.

How section 24(6) will operate however is not clear ex facie. The provision grants the Minister the discretion to consult with the ICC and request a determination as to whether article 98 applies. This consultative process is closer to article 97 of the Rome Statute which provides that states must “consult with the Court without delay” if they receive a request from the Court “in relation to which it identifies problems which may impede or prevent the execution of the request”. Although the article goes on to list what some of these problems might be, the list is clearly illustrative and not exhaustive. The obvious question is to whom might the Justice Minister consult? In terms of section 3 of the ICC Act – which contains definitions – reference to ‘the ICC’ includes any of the organs of the Court (i.e. the Prosecutor, the Registry, Chambers or the Presidency). The request for “a determination” aspect however is closer to the procedure under article 98. Presuming this is the procedure that the Ugandan legislators where referring to then requests for a determination under section 24(6) of the ICC Act will be directed to the Court who will then make a determination on its applicability in the circumstances. Finally, unlike Kenya, Uganda chose to exclude extradition to “other States” from this procedure.

African Study Group on International Criminal Law

Over the past few days I had the privilege of taking part in the inaugural meeting of the African Expert Study Group on International Criminal Law, established with the support of the Konrad Adenauer Stiftung foundation. The Group is inspired by a similar initiative made up of South American academics, which has been running for a number of years now. The meeting was attended by academics and practitioners from Kenya, Rwanda, DRC, Nigeria, Sierra Leone, South Africa and Zimbabwe, as well as Prof Kai Ambos who is involved in the South American Group. Each participant presented a paper under the broad theme of 'The Implementation of the Rome Statute', which will be refined and published in a book. A very big thank you to the organizers and my fellow participants for a rich and engaging few days and I look forward to future meetings of the Group.

Tuesday, August 23, 2011

Libya: Essential that ICC member states not lend support to Gaddafi evading justice

As reports roll in of rebels successfully advancing into Tripoli, a key question is the whereabouts of Libya’s Brother Leader, Colonel Muammar Gaddafi. On 27 June, the International Criminal Court (ICC) issued arrest warrants for Gaddafi, his son and de facto Prime Minister Saif al-Islam, and military intelligence chief Abdallah al-Senussi for alleged crimes against humanity, including murder and persecution of people in opposition to Gaddafi’s 42-year rule. Because the ICC does not have its own police force, whether Gaddafi will see a courtroom in The Hague depends firstly on Libyans (to the extent that they can get their hands on him). It also depends a great deal on states parties to the ICC, who are duty-bound to assist the Court in ensuring Gaddafi’s capture and surrender to the ICC for trial.

There have been alarming reports suggesting that Gaddafi may travel to Angola or Zimbabwe, apparently with the assistance of South Africa, where he could be granted political exile and evade justice – neither Angola nor Zimbabwe are parties to the Court.

Following rumours that South Africa had sent aeroplanes to Libya to assist in transferring Gaddafi out of Libya to a “safe” destination, the South African Department of International Relations and Co-operation (DIRCO) announced on Monday that it will not offer asylum to Colonel Gaddafi and/or assist in his transfer. The announcement made by DIRCO should be welcomed. Itdemonstrates the commitment expected of all states that voluntarily assumedobligations under the ICC Statute.

That commitment to the ICC specifically, and international criminal justice in general, is expected in four ways. Firstly, as member states of the ICC Statute, South Africa and the other 31 African states parties have a duty to cooperate with the ICC. This includes a negative obligation not to assist anyone who is the subject of an ICC arrest warrant to evade justice. Secondly, South Africa, is not only a state party to the ICC Statute, its Parliament has enacted legislation, which gives domestic effect to its cooperative obligations with the ICC. Obviously this means that South Africa – like all other states parties – may not formally or informally provide assistance to Gaddafi to evade trial. Thirdly, South African officials and/or nationals who make themselves complicit in Gaddafi’s evasion of justice would place themselves at risk of being responsible under both South African law and international criminal law as accessories after the fact to the crimes thatGaddafi is alleged to have committed. To allow a wanted criminal to hide in your back garden, or to assist his escape to a friendly neighbour, makes you guilty by association. Lastly, as the UN Secretary General has confirmed, the question of Gaddafi’s future is centrally in the hands of the Libyan people. To assist Gaddafi’s exile from justice would be an unacceptable form of foreign intervention that directly undermines the will of the Libyan people to deal with Gaddafi in collaboration with the ICC.

 For these reasons, if there ever was any substance to the stories about South African intentions to assist Gaddafi, DIRCO’s public denunciation of the rumours confirms a careful consideration by South Africa of its own position under law. The denunciation has averted the need for civil society organisations to approach a High Court urgently for appropriate relief compelling the South African government to keep to its obligations. And the denunciation is of enormous international significance – as the world watches, with bated breath, to learn whether a man that has butchered his own people will face or evade justice.

Max du Plessis is a Senior Research Fellow for the International Crime in Africa Programme (ISS) and Professor of Law at the University of Kwa-Zulu Natal

Ottilia Anna Maunganidze is a Researcher for the International Crime in Africa Programme (ISS)

Wednesday, July 6, 2011

The AU Qadhafi decision: some initial thoughts

This weekend past African leaders meeting in Equatorial Guinea, at the 17th Ordinary Assembly of the African Union, unanimously adopted a decision that threatens to halt the ongoing investigation of the International Criminal Court (ICC) in Libya and seriously undermine the institution’s future operation generally. In addition to re-iterating its obstructionist positions in respect of the ICC’s proceedings in Darfur and Kenya (calling on the United Nations Security Council (UNSC) to halt the Court’s work investigating mass atrocities in both countries [see below]), the AU adopted a decision “that AU Member States shall not cooperate in the execution of the arrest warrant”, and requested the UNSC to suspend the ICC process on Libya, “in the interest of justice as well as peace in the country”. It did so on the basis of “deep concerns at the manner in which the [ICC] Prosecutor is handling the situation in Libya” and after noting that “the warrant of arrest issued by the Pre-Trial Chamber concerning Colonel Qadhafi, seriously complicates the efforts aimed at finding a negotiated political solution to the crisis in Libya, which will also address, in a mutually-reinforcing way, issues relating to impunity and reconciliation”.

The AU’s decision on Qadhafi mirrors the approach taken by the regional body to the arrest warrant issued for President al-Bashir of Sudan by the ICC for international crimes. The decision is based on the supposition that Qadhafi (like al-Bashir in Sudan) is crucial to the ongoing peace process and therefore the UNSC should use its power under the ICC’s Statute to defer proceedings in the interest of international peace and security. Further, in anticipation of the UNSC’s refusal to accede to its request, as it has done in the case of al-Bashir, the AU has instructed its members not to cooperate in the execution of the arrest, notwithstanding that over half of them are legally obligated to do so as parties to the ICC Statute. Unlike its decision on al-Bashir, the AU’s Qadhafi decision is not made subject to the request that ICC states parties “balance, where applicable, their obligations to the AU with their obligations to the ICC”, included (in respect of al-Bashir, apparently at South Africa’s behest) to account for such states’ obligations under the ICC Statute.
A full exploration of the merits of the controversial supposition that quashing the arrest warrant is necessary in order to preserve the peace process in Libya will be considered in due course, suffice it to make the preliminary points for now:

Firstly, to the extent that “peace” and “justice” can be seen as competing goods, with the former in certain circumstances taking precedence over the latter (itself a controversial hypothesis), it’s not clear by any means that the situation in Libya warrants such a trade-off. By way of comparison, the situation in Sudan is much closer to fitting the bill than Libya. In Sudan al-Bashir is the leader of a ruling party at the centre of two parallel political negotiations, one in Darfur where his alleged crimes took place and another with Southern Sudan which seeks to end Africa’s longest civil war and usher in a new state of Southern Sudan this week. That is light-years from the Libyan scenario where Mr Qadhafi, a self-anointed Brother Leader is refusing to relinquish power, and acting as a stumbling block to political negotiations, in the context of an ongoing insurgency-cum-civil war. There is a marked difference between making the painful choice of providing impunity to one despot in order to facilitate a broader, durable peace, and allowing another crackpot to hold an entire nation captive not by the promise of peace but the threat of more violence. Leaving aside the effects of such a compromised compromise on the integrity of the system of international justice, in a very immediate sense it sets a bad precedent by providing a perverse incentive for incumbents to use the threat of violence as a negotiating tool. This at a time when arrogance and obstinacy are becoming part of our continent’s political culture not just in times of war but in the tenuous peace in the wake of elections (see Kenya, Cote d’Ivoire, Zimbabwe).

Secondly, even if the pursuit of peace in Libya requires the quashing of the arrest warrant for Qadhafi, African ICC States Parties (such as South Africa) are obliged to pursue means of doing so that do not place them in violation of the obligations under the Rome Statute. Article 16 of the ICC Statute is one option (though such a decision would have to be renewed annually), but unfortunately the AU decision does not stop there and adds the additional (and illegal) instruction to members states not to cooperate with the ICC in respect of the arrest warrant.

Thirdly, even the political realists who see nothing wrong with instrumentalizing international law in the pursuit of political stability and peace in Libya would surely agree this must be done with a view to ensuring maximum efficacy. By ordering non-cooperation from the outset the AU have squandered the opportunity to use the arrest warrant, and its possible suspension, in a more nuanced way as part of a conditional exit strategy for Qadhafi. As a result they are left with very little else to bargain with.

Thursday, June 23, 2011

Another stormy year for the International Criminal Court and its work in Africa

Max and I have written an article for upcoming South African Yearbook of International Law that discusses the developments in the stormy relationship between the ICC and African states in 2010. It follows on from our contribution to last year's SAYIL. The article's introduction is below, the full text is available here.
"In our contribution to these pages last year we suggested 2010 held promise of a rapprochement between the International Criminal Court (ICC or the Court) and African states. The source of our optimism was the ICC’s inaugural Review Conference, taking place in June on the shores of Lake Victoria in Kampala, Uganda. It presented an opportunity for states to “take stock” of the Court’s work and for African states raise their concerns regarding the Court’s structure and operation. There was also the small matter of the crime of aggression, the definition and jurisdictional aspects of which could not be agreed upon in Rome. On this issue we were less optimistic, suggesting that an agreement on aggression in Kampala was “improbable”.

We were wrong on both counts. To be sure, 2010 was about Kampala, but not in the way that many had hoped. Against expectations, the definition of aggression, and the jurisdictional regime governing it, was agreed on (although it will not become operational until 2017, at least). But that positive development insofar as Africa-ICC relations is concerned was soon overshadowed by a very different “Kampala moment”, that would cast a long shadow on the year to come: a second decision of the African Union (AU) urging non-cooperation in the arrest of Sudanese President al-Bashir (al-Bashir). In the result, the trajectory of the Court and Africa remains unchanged. What was novel in the year past was Kenya, previously a model ICC State Party, coming to the fore as the battleground for the ongoing “struggle for the soul of international law”.

Kenya’s inglorious “fall from grace” is the result of two self-agitating but distinct developments.

The first is the ongoing controversy over the ICC Arrest Warrant for al-Bashir and the AU’s decision that its member states shall not cooperate in the execution thereof. It is a decision that sits both legally and politically uncomfortably with Kenya’s obligations under the Rome Statute and risks threatening its relationship with the Court. The decision of Kenya to invite al-Bashir to the launch of the country’s new Constitution in August was the low water-mark of this relationship, resulting in the first ever “decision” of the Court on non-cooperation in its history, against Kenya. This is a remarkable step back for a country that remains one of only three of the 31 African ICC member states to have adopted domestic legislation to implement (and expand) its obligations under the Rome Statute.

The second, and potentially more ominous development, is the backlash in Kenya against the ICC’s investigation into the violence that took place in the aftermath of the December 2007 elections in Kenya that left over 1000 people dead, caused around 400,000 to flee their homes, and brought Kenya to the brink of civil war. The ignominy of being under investigation, and the profile of the suspects named by the ICC Prosecutor in December 2010, has drawn the fire of many (including senior, albeit partisan, government members) for the investigation domestically, concluding 2010 with the motion by Kenyan Parliamentarians on 21 December 2010 to walk Kenya out of the Rome Statute. Worse still, political acumen has turned this domestic discontent into a regional African position in opposition to the ICC’s investigation and fuelled a more general anti-ICC sentiment within Africa, further isolating those voices of support for the Court on the continent.

In this paper we will consider the legal aspects of the events of 2010 that have brought Kenya (and Africa’s) relationship with the ICC to this point. We will then go on to consider the year to come and (tentatively) offer a few thoughts on how these difficulties might be addressed"
Naturally, we would appreciate your comments and criticisms.

Monday, June 20, 2011

Justice and the Libya Crisis: the ICC's role under Security Council Resolution 1970

Max and Antoinette Louw (of the ISS) have published a ISS Briefing Paper on the role of the ICC in Libya under SCR 1970 that is worth reading. (see below the Introduction). The full paper is available on the Institute for Security Studies' website.

On the evening of Saturday 26 February 2011 the United Nations (UN) Security Council unanimously passed Resolution 1970 (2011) referring the situation in Libya to the International Criminal Court (ICC). The resolution was part of a robust set of Security Council measures directed at the Libyan regime, including a travel ban and asset freezes for Libyan leader Muammar Gaddafi and his associates, and an arms embargo. It was the first concrete action by the Security Council in respect of the events that began several weeks earlier, as increasing reports of attacks on civilians in Libya confirmed the lengths to which Gaddafi would go to cling to power. Intervention by the international community at this stage was largely welcomed across the globe and among Libyans on the receiving end of Gaddafi’s offensive. Less than three months later, and in the wake of a second Security Council resolution authorising a no-fly zone and the use of ‘all means necessary’ short of foreign occupation to protect civilians in Libya (Resolution 1973), much has changed.

The role of international military forces in ending the bloodshed is now being questioned and criticised in Africa, at the African Union (AU), and beyond. While the focus of this condemnation is on the nature and impact of military operations underway in Libya, there is a real chance that the justice leg of the Security Council’s intervention will be tarred with the same brush. For African leaders – most of whom are already reluctant to support the ICC – a rejection of international interventions in Libya more broadly can all too easily be extended to the ICC’s work in that country. Given the potential that the ICC has in this case to prevent future atrocities by acting quickly and decisively, a lack of cooperation from African states would be regrettable for the thousands of victims of crimes against humanity and war crimes in Libya.

Monday, May 9, 2011

ICC: The Proper Balance between Independence and Oversight

The UCLA Human Rights and International Criminal Law Online Forum has a new discussion topic on the question of 'the proper balance between the independence of the International Criminal Court and the oversight role of the Assembly of States Parties regarding the Court’s administration under Article 112 of the Rome Statute'.

There are excellent contributions from Professor Alvarez of NYU, Professor Cowdery of University of Sydney, Akbar Khan of the Commonwealth Secretariat and Professor van der Wilt of the University of Amsterdam. And one from ourselves.

In our comment we attempted to address the question broadly – situating it in the context of the debates over the proper role of the ASP generally – and tactfully avoided the more focussed (and difficult) question of balancing the “independence of the Court” with the ASP’s specific role under article 112. We did so for a number of reasons.

First, we argued that the debate over the Independent Operating Mechanism and the Prosecutor’s objection thereto (which inspired this discussion topic) was not about the abstract principle of “independence”, but rather a question of policy and “organisational autonomy”. In this regard we discussed the arguments raised by the Prosecutor and concluded that they were ultimately about “why the Prosecutor should be allowed to investigate his staff, rather than the principled objection of why the IOM, the ASP or any other body should not”.

Second, and in any event, we argued that in light of the nebulous and uncertain nature of the concept of “independence” (defined by the IOM thus: “Judicial and prosecutorial independence is regarded as the independent performance of judicial or prosecutorial functions”), balancing this value with the (as yet uncertain) role of the ASP could not be done in the abstract. Rather, it requires specific examples of violations (those raised hypothetically by the Prosecutor were not appropriate in our opinion).

In light of this we turned to consider the role of the ASP in the Court’s functioning, which the IOM debate revealed to be contested by (and within) the Court and states, and the possibility of states pushing for an expanded role for this body in the year to come. This, we suggested, might go beyond “administrative” functions and into the domaine reserve of the Court: judicial matters. This includes the possible use of the ASP as a “political counterpoint” to the Security Council by African states who view the Council as not only unrepresentative, but also hostile to African requests for deferrals under article 16. This, we concluded, makes the upcoming debate regarding the Court’s governance one to watch carefully.

The full version of our contribution, as well as those of our colleagues, can be found at the Forum. We would like to thank the Forum (and Professor Richard Steinberg in particular) for the opportunity to participate in this interesting and important discussion.

Thursday, May 5, 2011

Judge Nsereko Lecture: Africa and the ICC

Judge Daniel Nsereko will be coming to the UKZN Faculty of Law next week Tuesday to give a lecture on "Africa and the International Criminal Court". As most readers will know, Judge Nsereko sits in the Appeal Division of the ICC, having been appointed in 2007. We are very proud to be hosting Judge Nsereko and look forward to his remarks on the role of the Court in Africa. If anyone happens to be in this part of the world and would like to attend the lecture please email me. Technology permitting, I will record and podcast the lecture here for those who wish to partcipate in absentia (and  ex post facto).

Tuesday, April 12, 2011

Enforcing the African Court's Order on Libya

In his interesting discussion (over at International Law Observer) on the African Court on Human and Peoples' Rights' ruling that Libya “immediately refrain from any action that would result in loss of life or violation of physical integrity of persons”, Abebe A. Mulugeta raises the issue of enforcement. He suggests that although the Order is binding, it "can only be implemented through diplomatic pressure". There may however be other avenues open to the Court and states wishing to enforce it.

As we noted previously, the Court was introduced in part to address the African Commission's inability to give binding decicions. To this end Article 30 of the Court's Statute states:
"The States parties to the present Protocol undertake to comply with the judgment in any case to which they are parties within the time stipulated by the Court and to guarantee its execution."

In addition, Rule 60(5) of the Court's Interim Rules states: "The judgment of the Court shall be binding on the parties."

Notably, these provisions refer to the judgement. However, there seems to be little basis for differentiation between the binding nature of provisional measures and judgements of the Court. In this regard the Rules refer to the Court's discretion to "prescribe to the parties any interim measure which it deems necessary to adopt in the interest of the parties or of justice". (Rule 51) This language serves to confirm the peremptory nature of "interim measures".

So what then of enforcement measures. On a generous interpretation of the Court's Statute two avenues exist:

First, article 29 of the Court's Protocol states that the AU's Executive Council "shall monitor [the Court''s judgements] execution on behalf of the Assembly" of the AU. Again, if one considers "interim measures" to be as binding as judgements, then arguably the Executive Council's responsibility under article 29 would extend to such measures as well. The question then becomes how "monitor" is constructed.

Second, and perhaps more generously, one could interpret article 30 as placing an obligation on States Parties to the Court to guarantee the enforcement of the Court's decisions (including interim measures for the reasons set out above). This can be done by reading the provision disjunctively; thereby creating two obligations on States Parties: The first being a specific obligation to "comply with the judgment in any case to which they are parties within the time stipulated by the Court", the second being a general obligation on all States Parties to guarantee the execution of decisions of the Court. This is a tenuous reading of the text, but two aspects of article 30 make a plain reading of it difficult and suggest it is open to a more constructive, nuanced interpretation.

The first is its reference to "States Parties". Surely it would have been simpler to merely state that "Parties to a decision of the Court undertake to comply with the judgment" or, better still, "The Court's decisions are binding". This is the simpler formulation adopted in Rule 60(5). In addition, if the provision is read narrowly it suggests that only states that are party to a dispute are bound by the Court's decisions, while "other" parties (such as an individual complainants or the Commission) are not. This cannot be so. Rule 60(5) confirms this by referring to "parties" being bound (including an individual complainant or the Commission). In light of these complications, one could argue that the reference to States Parties in article 30 must have been made deliberately and with a purpose: to establish obligations in respect of the judgement on all States Parties to the Banjul Charter, not merely those who are party to the judgement.

The second "kink" in article 30 militating in favour of a more nuanced interpretation is its requirement that its subjects "guarantee [the Court's judgment's] execution". Given that the article already requires that states who are party to the dispute comply with the judgements of the Court, this additional requirement is puzzling. It's not clear what guaranteeing a judgements execution means, how it differs from compliance and (if it doesn't) why it was included. Here the doctrine of effective construction might be put to work, to say that in order give this phrase meaning it must be understood as referring to states other than those already under an obligation to comply with the judgement (as parties to it), this can only be all other States Parties. This would square nicely with, and give meaning to, the article's reference to States Parties to begin with.

These are not merely hypothetical ruminations. Under the terms of the Order, Libya was due to report back to the Court within 15 days on measures it had taken to give effect to it. By my count that gave it until last weekend (Saturday), about the time the African Union delegation headed by Jacob Zuma arrived in Libya to present its peace plan (I wonder if the Order was mentioned in their discussions). To date, there is no indication from the Court that Libya did so, and so the avenues open to the Court in ensuring that it does are of immediate relevance.

If Libya did not respond to the Court's ruling, and does not intend to, Rule 55 of the Court's Interim Rules might come into effect. In terms of which :
"Whenever a party does not appear before the Court, or fails to defend its case, the Court may, on the application of the other party, pass judgement in default after it has satisfied itself that the defaulting party has been duly served with the application and all other documents pertinent to the proceedings."
If that happens we will once again be in the realm of enforcement measures, but there will be little doubt as to the judgments binding nature.

Thursday, April 7, 2011

Ex Africa Semper Aliquid Novi: The African Court’s ruling on Libya

Amidst a stagnant political and institutional response to the Libya crisis from Africa it’s great to see some good news emerge in the form of the unanimous Order for Provisional Measures by the new African Court on Human and Peoples’ Rights (African Court) in respect of Libya. The Order, issued on 25 March 2011, demands that Libya “immediately refrain from any action that would result in loss of life or violation of physical integrity of persons” and report back to the Court within 15 days on “measures taken to implement this Order”. It was made proprio motu (of its own accord) by the Court in the course of its consideration of an application brought urgently against Libya by the African Commission on Human and Peoples’ Rights (the African Commission) on 16 March 2011 alleging “serious and massive violations of human rights guaranteed under the African Charter on Human and Peoples’ Rights” (the Banjul Charter). Further, the Court is now “seized” with the matter, having made a prima facie determination that it has jurisdiction to hear the case, and has asked Libya to respond to the application within 60 days.

These welcome developments at the regional level are not only significant for the immediate crisis in Libya but, perhaps more so, for the African Human Rights system generally. To understand the ruling’s full import some background is necessary.

Background to the Court

The Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (the African Court) was adopted on 10 June 1998 at the Summit of Heads of State and Government in Ouagadougou, Burkina Faso. The Court came in to operation on 25 January 2004 after the requisite 15 instruments of ratification were deposited. This Court was established to address the shortcomings of the African Commission and in recognition of the trend in other regional systems towards more robust regional enforcement mechanisms. Up until this point, the African Commission was the sole institutional guarantor of the 1986 “Banjul Charter”, designed to “promote and protect human and peoples’ rights in Africa”.

The African Court was not meant to supplant the African Commission but rather was intended to operate in tandem with it (although how this might happen was not clear) and remedy its deficiencies, particularly insofar as enforcement is concerned. However, despite its promise for many the African Court was a disappointment from the outset. The chief complaint was the limited ability of individuals and NGOs to approach the Court directly. Under article 5(3) of the Protocol individual/NGO access to the Court was made subject to article 34(6), which states:

“At the time of the ratification of this Protocol or any time thereafter, the State shall make a declaration accepting the competence of the Court to receive cases under article 5(3) of this Protocol. The Court shall not receive any petition under article 5(3) involving a State Party which has not made such a declaration.”

In response to this provision Makua Matua opined: “This limitation will render the proposed Court virtually meaningless unless it is interpreted broadly and liberally”. The Court did meet expectations in at least one crucial respect: enforcement of its decisions. According to article 30 of the African Court’s Statute: “The States parties to the present Protocol undertake to comply with the judgment in any case to which they are parties within the time stipulated by the Court and to guarantee its execution.” In addition, article 29(2) of the Protocol provides that the Council of Ministers will monitor the execution of judgments on behalf of the Assembly.

However, the African Court’s death was guaranteed almost immediately after its birth. At the African Union’s 3rd Ordinary Session of the Assembly of Heads of State and Government in July 2004, African states decided that “the African Court on Human and Peoples’ Rights and the African Union Court of Justice should be integrated into one Court”, to be named the African Court of Justice and Human Rights (the Merged Court). The arguments for the Merged Court were both financial (funding one Court was already a challenge) and organisational (African leaders were reportedly keen to avoid the overlap that exists in the European system between the European Court of Human Rights and the European Court of Justice).

As the African Court had already entered into force when the decision was taken to merge the two courts, their rationalisation required the formulation, adoption and ratification of an entirely new Statute. That instrument – the Draft Protocol on the Statute of the African Court of Justice and Human Rights – was adopted in July 2008, but has not yet been ratified by the requisite 15 states in order to enter into force. Ironically (again), Libya was the first to do so and, to date, Libya and Malawi are the only states that have ratified. (Notably, despite initial indications to the contrary, it appears that the Merged Court will also be subject to the same limited jurisdictional regime in respect of individual/NGO petitions. Article 8(3) of the Merged Protocol – the poorly drafted successor to Article 34(6) – states, inter alia, that “[a]ny Member State may…make a declaration accepting the competence of the Court to received cases under Article 30(f)” – the latter article providing for direct access to the Court for individuals or AU-accredited NGOs.)

Crucially, at least insofar as the African Court is concerned, in terms of article 7 of the Merged Court Protocol the African Court remains in operation until one year after the Merged Protocol comes into force. Further, insofar the Libya case is concerned, article 5 of the Merged Protocol states that cases pending before the African Court that have not been concluded before the entry into force of the new Protocol shall be transferred to the Merged Court. The upshot being that the African Court remains operational for the foreseeable future.

With this in mind the condemned African Court has forged ahead. Undeterred by its moribund status, the Court issued its first decision on 15 December 2009 (In the Matter of Michelot Yogogombaye v The Republic of Senegal, Application number 001/2008). In that case Mr. Yogogombaye asked the African Court to instruct Senegal to suspend its criminal proceedings against Hissene Habre on numerous grounds – some more thoughtful than others – and to order both Senegal and Chad to establish a “Truth, Justice, Reparations and Reconciliation Commission” for Chad. This Commission would be based on South Africa’s TRC and the philosophical concepts of “Ubuntu” and “resolve in an African manner the problematic case” of Mr Habre. Mr Yogogombaye did not however manage to make it past the preliminary phase of proceedings, the Court ruling that it did not have jurisdiction to hear his complaint as Senegal had not made a declaration under article 34(6). As a result, the Court was spared having to consider the more extravagant aspects of Mr Yogogombaye’s claim.

Mr. Yogogombaye’s case, failing as it did at the jurisdiction phase of proceedings, made for a rather unremarkable start to the African Court. It’s second decision – taken this year on 25 March in respect of Libya – was anything but.

From the Ridiculous to the Sublime?: The African Court’s decision on Libya

The African Court’s Libya Provisional Measure Decision is remarkable in a number of respects. The first notable feature is its origin (i.e. how the matter came before the Court). The limitations placed on direct individual access to the Court led many to believe that the Court would become a “lame duck”, as states could merely refuse to make article 34(6) declarations and prevent any individual/NGO complaints coming before the Court. In a sense, this fear was confirmed for many by the Court’s first decision in respect of Mr Yogogombaye who found himself false-started because of Senegal’s failure to allow individual complaints .

If there was any glimmer of hope it lay in the African Commission. Article 5(1)(a) of the African Court Statute gives the Commission the right to submit cases to the Court. As one of the authors – Du Plessis and Stone -- noted in an article (optimistically it seemed at the time):

“However, it must be noted that the requirement of the Article 34(6) Declaration is not fatal, due to the fact that Article 5(1)(a) of the Protocol permits the African Commission to submit cases alleging violations of “individuals” rights to the Court.”

Given the Commission’s history and composition - and its need to fight for its own relevance - it appeared unlikely that there would be much appetite to use article 5(1)(a) liberally, and certainly not in the bold manner that it has in respect of its Libya application.

Nonetheless, it seems that Pliny the Elder’s adage “Ex Africa Semper Aliquid Novi” is recurringly accurate. Following “successive complaints against Libya” received by the Commission at its 9th Extraordinary Session in Banjul, The Gambia from 23 February – 3 March 2011, the Commission concluded that there was evidence of violations of articles 1, 2, 4, 5, 9, 11, 12, 13 and 23 of the Banjul Charter. On this basis the Commission brought an application to the Court, against Libya, alleging “serious and widespread” violations of the Banjul Charter. The violations relate to, inter alia, the detention of an opposition lawyer in Benghazi; random shooting of demonstrators in Benghazi, Al Baida, Ajdabiya, Zayiwa and Dema by security forces; and “excessive use of heavy weapons and machine guns against the population, including targeted aerial bombardment”.

Not to be outdone, the African Court responded to the Commission’s application timeously and with a boldness that suggests that the Court may yet live up to its promise. On 21 March the Court’s Registry acknowledged receipt of the application and then forwarded copies thereof to Libya the following day. In terms of Rule 35(4)(a) of the African Court’s Rules, Libya has “thirty (30) days of receipt of the application, [to indicate] the names and addresses of its representatives”. In terms of Rule 37, Libya has sixty days to respond to the application, but the Court may grant an extension “if the need arises”. In addition, and remarkably on its own initiative, the African Court decided to issue an Order for Provisional Measures that states:

The Great Socialist People’s Libyan Arab Jamahiriya must immediately refrain from any action that would result in loss of life or violation of physical integrity of persons, which could be a breach of the provisions of the Charter or of any other international human rights instruments to which it is party.

The Great Socialist People’s Libyan Arab Jamahiriya must report to the Court within a period of fifteen (15) days from the date of receipt of the Order, on the measures taken to implement this Order.

The Order was made pursuent to article 27(2) of the African Court's Statute which provides that:

“In cases of extreme gravity and urgency, and when necessary to avoid irreparable harm to persons, the Court shall adopt such provisional measures as it deems necessary.”

What is more, the Court did so without eliciting the views of the parties to the matter, on the basis of the imminent risk to human life and the difficulty in scheduling an appropriate hearing involving Libya. In establishing the factual basis for the need for provisional measure, the Court relied on the information contained in the Commission’s application (permitted under Rule 29(1)). In particular the Court cited the statements of the African Union (condemning the use of excessive force), the Arab League (suspending Libya) and UN Security Council Resolution 1970 (condemning gross and systematic violations of human rights and referring Libya to the ICC for possible crimes against humanity) in support of its finding that the situation was of extreme gravity and urgency and that such measures were necessary to avoid irreparable harm to persons.

Finally, the Court held that at this stage of the proceeding it need only establish prima facie that it has jurisdiction under articles 3 and 5 of its Statute. It did so with relative ease. (Libya fortuitiously having ratified the African Court Protocol on 19 November 2003).

The most inspired action of these proceedings against Libya might yet be to come. The African Court is now seized with the matter. Although the Court was careful to note in its Decision that the “measures ordered by the Court would necessarily be provisional in nature and would not in any way prejudice findings the Court might make on its jurisdiction, the admissibility of the application and the merits of the case”, there is little reason to doubt that it will confirm its findings on jurisdiction and admissibility at the next stage of proceedings. In terms of article 6(2) of its Statute, the Court “shall rule on the admissibility of cases taking into account the provisions of article 56 of the Charter”. In order for the Commission to have been seized with the application initially it must have satisfied itself that these same requirements have been met.

Insofar as the merits of the application are concerned, the Court will probably have to narrow down the scope of the violations considerably which at the moment include potentially innumerable victims and claimants. However, in doing so the Court is not limited to violations of the Banjul Charter but can – if it chooses – consider violations of “any other relevant Human Rights instrument” ratified by Libya. The term “Human Rights instrument” is not defined in the African Court’s statute, but it could conceivably include any one of the numerous human rights treaties that Libya has ratified. As far as remedies are concerned, article 27(1) empowers the Court to “make appropriate orders to remedy the violation, including the payment of fair compensation or reparation”.

Concluding Remarks

The significance of the African Court’s Order for Provisional Measures, and the proceedings against Libya more broadly, cannot be overstated. The African Union’s response to the crisis in Libya has been paralytic, even by its own standards. The intervention of the Commission first, and then the Court, could not have been more timely and may yet save the African multilateral human rights regime from desuetude. What is more, these actions demonstrate the unfairness of using the AU’s brush of incompetence and/or political intransigence to paint other African institutions.

More broadly, the Court’s bold assertion of its own role as the guarantor of human rights in Africa augers well for its future as well as that of its successor (should the Merged Protocol ever come in to force) and goes some way in dispelling the fear held by many that this Court might become a shrinking violet in light of its seemingly imminent demise. More prosaically, the Court’s decision in Libya is a much more fitting introduction for the Court – both to Africa and the World – than its previous decision which, in many different ways, was reminiscent of some of the less noble features of African human rights institutions and litigation.

Finally, the African Court’s decision on Libya – both in form and substance – represents a bold advance into a situation whose political implications have rendered the AU’s other institutions ineffectual. One might hope that the Court’s decision will elicit a response from Libya. But even if there is nothing but the sound of guns and cannonfire, then the Court’s decision will at least have assisted in this way: by confirming that Gadaffi’s terrorisation of his people continues in the face of both Western and African opposition.

Wednesday, March 30, 2011

Collateral Damage: Libya, the AU and the ICC

Irrespective of how the ongoing Libyan crises unfolds (or unfurls) over the coming weeks and months, it seems inevitable that it will leave its mark on two nascent institutions both of which hold promise for ensuring a lasting peace in Africa: the African Union (AU) and the International Criminal Court (ICC). Unfortunately, at least insofar as the AU is concerned, Libya might well prove to be its death knell.

When the AU replaced the out-dated Organization of African Unity (OAU) in 2001, it brought with it the promise of a normative shift insofar as regional African politics are concerned from regime security to human security. In the wake of the West’s and Africa’s failure to prevent the Rwandan genocide, the continent’s politicians included within the AU’s founding document the “[t]he right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity”. Further, the AU Peace and Security Council was established in order to, inter alia, make recommendations to the Assembly regarding the employment of this “humanitarian provision” when war crimes, crimes against humanity and genocide were being perpetrated against the people of Africa. This commitment to prefacing human rights over sovereignty was mirrored in the various sub-regional arrangements which contained similar provisions. However, the failure of the AU to take any concrete measures against Colonel Gadaffi over the past two weeks, and its opposition to the measures being taken by others, will most likely kill off any remaining hope that this provision was anything more than a paper tiger.

That this provision should meet its end in Libya is not without its ironies. Three come to mind:

First, the formation of the AU as a replacement for the defunct OAU – which facilitated the shift to human security and the inclusion of the "humanitarian provision" – was only possible with significant support from Gadaffi himself, just as the continued functioning of the body is largely dependent on the financial support of Libya.

Second, in 2003 the AU adopted a Protocol to its Constitutive Act that provided, inter alia, for the addition of another ground for intervention, namely: a “serious threat to legitimate order” which would allow the AU to intervene to “to restore peace and stability to the Member State”. The inclusion of this ground of intervention was driven solely by Libya who at the time (presciently) envisaged it as a means of guarding against foreign intervention. However, the provision was ultimately phrased in such a manner that makes it the perfect fit for the current Libyan malaise. The Protocol is not yet in force – having been ratified by just under half of the AU member states – however the potential for it to be used as the basis for intervening in Libya, although not realised, remains ironic.

Third, in their fervour to take responsibility for collective security African states have gone so far as to assert that in times of humanitarian crises the AU – as a regional organisation contemplated by article 53 of the UN Charter – can intervene without the authorisation of the Security Council. This bold assertion of autonomy considerably increases the potential for humanitarian intervention by the AU and, until the seismic political shift that led to the passing of Resolution 1973, would have served as the AU’s justification for intervening in the absence of Council approval in Libya had they chosen to do so. The irony is that this autonomy, which not only provided the basis for AU intervention in Libya pre-Resolution 1973 but also strengthened the arguments of other bodies such as NATO for similar autonomy, was proclaimed by the AU in the wake of its disapproval of the UN Security Council’s sanctions imposed on Libya.

Whether the AU as an institution will be able to survive financially post-Gadaffi remains to be seen, what seems inevitable is that the body’s credibility insofar as its commitment to human security will not.

As far as the ICC is concerned, the threat posed by Gadaffi’s fall from grace is less proximate but no less serious. Despite numerous commentator’s creative (and at times morbidly enthusiastic) euphemisms calling for the Colonel’s assassination, the far more likely scenario remains some form of negotiated exit from power that involves political asylum for himself, his family and his inner circle. If that’s to be the case, the likely destination will be an African state (Zimbabwe has already offered such to Ghadaffi, South Africa has an unfortunate history of being a soft-landing spot for Africa’s disfavoured leaders). However, in terms of UN Security Council Resolution 1970 the ICC has jurisdiction over the crimes committed in Libya over the past two months. That investigation, which the Prosecutor (unwisely) has indicated will produce its first “indictments” soon, will more than likely involve request to arrest either Ghadaffi himself or those of his inner circle (including his sons) who will most-likely benefit from the “exit-package” mentioned above. This produces the distinct possibility of another African leader wanted by the ICC being on the territory of an African state, and possibly even a state party to the Rome Statute at that.

The fall-out over the ICC arrest warrant for Sudanese President al-Bashir led to the decision by the AU Assembly that its members shall not cooperate in the arrest of al-Bashir. That decision, and Bashir's subsequent visits to ICC States Parties Kenya and Chad, has brought the relationship between Africa and the Court to its lowest point in both institutions’ short history. Given the increased strain placed on this relationship by the Prosecutor’s investigations in Kenya and the AU’s unfortunate response thereto, it is not by any means clear that this relationship will survive another Bashir-type scenario in the case of Ghadaffi.

Friday, March 25, 2011

The African Union, Libya and the true costs of non-intervention

After a week of military action in Libya by the US and its allies aimed at enforcing the Security Council’s Resolution 1973 – which called for the establishment of a “no-fly zone” and authorised UN members to take “all necessary measures” to protect civilians – African states are starting to find their voice. However, the majority of these voices – including those of the Presidents of South Africa and Nigeria, both of whom voted for Resolution 1973 – has been critical of the intervention. While there are undoubtedly a number of arguments to be made against “humanitarian intervention” generally, and this intervention in particular, as a result of their own words and (in)actions African states are precluded from making most of them.  

Due to the media and political hype inevitably occasioned by such events, distinct arguments for and against intervention are generally conflated and confused. It is important to distil the arguments in order to understand and respond to them.  

The first is empirical. All arguments about humanitarian intervention revolve around the question of whether there are grounds for intervention in the first place (i.e. a humanitarian crisis).   If the empirical hurdle can be overcome arguments for or against intervention become arguments about ends or arguments about means.  

Arguments against intervention based on the ends accept the empirical basis of intervention (a humanitarian crisis) but either do not accept that saving lives is a worthwhile end, or advance some other end that outweighs intervention. Traditionally the competing end advanced against intervention has been state sovereignty: a foundational norm of the international order and the basis of the principle of non-intervention.

The rise of human rights over the past 60 years and the end of the Cold War has undercut the blunt force of sovereignty as an end. More recently, the advent of the Responsibility to Protect (R2P) doctrine has recast sovereignty, at least rhetorically, from being an absolute, intrinsic right of statehood, to being a “responsibility” to protect one’s citizens from crimes against humanity, genocides and war crimes (and the corollary, that a state not engage in such mass violence against its own people). If this responsibility is deliberately flouted, the R2P doctrine stipulates that the offending state becomes vulnerable to intervention from the international community. In the face of these developments arguments against intervention based on competing ends are rarely made openly; no civilised state would reject the protection of human life as an end worth protecting, and few would explicitly present sovereignty or regional stability or (worse still) regional solidarity as a greater end. As a result,most debates about intervention are not about ends (whether intervention is morally justified), but means.  

Arguments about means might accept the humanitarian crisis as an empirical fact and accept that the end of protecting human lives outweighs all competing ends, but would posit that military intervention is not an acceptable means of achieving that end. The argument might run that in general such interventions do not save lives, or that a particular intervention does not result in the protection of human life or that there are some other, better means available to achieve that end.  The debate becomes particularly heated where the means employed to achieve the end results in an unnacceptably high number of civilians lives being put at risk (for example, through high-altitude bombing) – precisely because the means itself begins to undermine the end.  

The type (or means) of legal response is also at issue. A significant amount of debate regarding humanitarian intervention is about: (i) what legal means are available; and (ii) whether there is any basis for arguing for legitimate intervention outside of those legal means. Generally speaking, most international lawyers and academics would accept that the only legal means for intervening militarily to prevent humanitarian catastrophes (as opposed to self-defence) is through the UN Security Council (as through SC resolution 1973 in Libya), and all other military action would violate the UN Charter’s prohibition on the use of force in article 2(4). It is the acceptance of this uncomfortable reality that led some international law experts to argue that NATO’s intervention in Kosovo in 1999 – without UN Security Council approval – was illegal but legitimate, a perilously conditional argument.  

What of the Libyan intervention?  At the outset it is important to notice how two fallacious arguments commonly employed by opponents of humanitarian intervention have been dusted off in respect of Libya. The first challenges the intervention’s legitimacy on the basis of its improper motive. Regarding Libya states have attacked the motive of the US and its allies as being about “petro-imperialism”, geo-politics and anti-Islamic sentiment – and those who would defend the intervention are required to defend the intervening countries’ motives for doing so. Zimbabwean President Robert Mugabe for example has decried the intervention as being about “oil, oil, oil”. These arguments however confuse motive with effect. Few people would argue that Libyan lives are protected because the Americans and their allies genuinely intervened to protect them.  Those lives are protected (or not) based on the effect of the intervention as a matter of fact. That allied countries may have other motives for intervening does not make this the wrong course of action per se, if it is successful in protecting human lives.  

The second argument points to the selectivity of interventions historically to challenge the legitimacy of a specific intervention, and is captured in the refrain “why now and not then”. Ugandan President Yoweri Museveni has criticized the intervention in Libya on the basis that Western Leaders “turn a blind eye to the very same conditions or even worse conditions” in “other areas where there are pro-Western regimes”. Similarly, Nigerian Foreign Minister Odein Ajumogobia reportedly criticized the action in Libya on the basis of inaction in the case of the Ivory Coast. Again, these claims miss the point. These are arguments for other interventions, not against this one.  

Bearing the above in mind, the question becomes what arguments the AU and its members can plausibly raise in respect of the UN-sanctioned intervention in Libya.  

As far as empirical arguments are concerned, there is an overwhelming acceptance from the international community that there is some form of humanitarian catastrophe in Libya. For one, all states (including South Africa, Nigeria and Gabon) that accepted the need for a no-fly zone effectively accepted first, that there is a threat to civilians emanating from Colonel Ghadaffi’s regime and second, that the threat involves the use of air power against them, making it a serious one. In the face of the facts, there have to date been few arguments challenging the empirical basis for the intervention.  

What, then, is the AU’s underlying reasoning? As noted earlier few arguments against intervention that involve competing ends are made explicitly. What is more, by its own standards the AU has little margin for denouncing intervention. Since it replaced the Organization of African Unity in 2001 the AU has tried to position itself at the forefront of the normative shift from state sovereignty to human security. Its founding charter’s “humanitarian provision” – which enshrines “[t]he right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity” – is the most progressive of its kind. The founding instruments of Africa’s numerous sub-regional groupings such as the Great Lakes Protocol, ECOWAS Protocol and SADC, contain similar provisions.    

In the end the only arguments the AU might plausibly raise against the intervention in Libya are ones relating to means. (i.e. that intervening generally, or this intervention in particular, is not an appropriate means of achieving the end of protecting human life). However, once again the AU’s own standards make arguments against intervention based on means difficult to swallow.

First, UN Security Council Resolution 1973 means that the legal arguments about intervention are not available to the AU. In the lead up to Resolution 1973 many African states were arguing that the only legal means of intervening in Libya was with Council-approval, presumably relying on the (seemingly) predictable veto of Russia and China to do their dirty work by killing the Resolution come voting time. Second, and in any event, on more than one occasion the AU has asserted that it does not require Security Council authorisation to undertake interventions under its own “humanitarian provision”. The AU’s legal advisor Ben Kioko has opined that through the inclusion of this provision “[African] leaders have shown themselves willing to push the frontiers of collective stability and security to the limit without any regard for legal niceties such as the authorization of the Security Council”. Up until the evening of 17 March when the Security Council passed Resolution 1973, many African states sought refuge in those niceties.  

Therefore, African states are forced to argue against intervention on some other basis. Absent legal niceties, in order for the intervention to be the wrong course of action the AU must show either: (a) that it does not result in the protection of human life, or (b) that there was some other means available that better protects human life. In the case of other interventions there have been strong arguments that (a) is in fact true. However, at the time the decision was taken to intervene in Libya it seems that concrete action did in fact save lives, at the very least those of the citizens of Bhengazi.  

That leaves (b), the argument that at the time the intervention was undertaken there was some other means available that better protects human life. For example, it might be argued that some form of non-coercive political solution or, failing that, an intervention force that did not consist of the US, France and the UK – three historically compromised actors in the region – would have been a more appropriate means of protecting the people of Libya. The problem is that the African Union was best placed to undertake both of those courses of action and it did not. Not even the AU’s founding instrument - crafted ironically by Colonel Gadaffi and ratified by all African states – was relied upon to intervene to prevent the attacks on civilians. In fact, numerous calls were made for regional action to be taken in respect of Libya. However, all the body could mustre was hand-wringing, politically finessed communiqués and a belated and compromised five-man mediation panel.  

One may thus rightly conclude that the AU’s humanitarian provision is nothing more than a paper commitment. However, even to those who would argue that regional stability and solidarity are comparable to or even greater ends than protecting human lives, the Union’s limp response to the crisis in Libya further undermines its credibility. African states missed the rarest of opportunities to make these ends meet: to strike a blow against perceived “petro-imperialism” and for human rights simultaneously.

Thursday, March 24, 2011

NICOLE FRITZ: On Libya, SA has done both good and well

[Editors Note: Nicole 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 23 March 2011]

NO ONE can rejoice at what is happening in Libya. The use of force by states acting under United Nations Security Council resolution — even in defence of civilian lives — still carries with it considerable risk: of costly damage to infrastructure and livelihoods and, worse, of deaths of civilians themselves. But global leadership demands agonising choices and as it is, the council may have stalled too long, waiting until the opposition was almost entirely overrun by Muammar Gaddafi’s loyalist forces before authorising "all necessary measures" to defend civilian lives.

But difficult though the situation in Libya is, it may be one of SA’s most shining moments on the international stage. SA was one of the 10 Security Council members to support the resolution authorising force. Five states abstained. And of those five, four were the founding Bric states (Brazil, Russia, India and China) — a collective in which SA makes a home. Those states abstaining did not wish to thwart the authorisation of military measures, but neither did they wish to be seen as publicly endorsing such action.

SA might well have done likewise: a further abstention would not have endangered passage of the resolution. But global leadership also demands accountability — requiring that states take responsibility for difficult choices, not that they merely hedge their bets and seek to play all sides. SA’s vote would have been particularly hard because it ordinarily finds common cause with emerging powers’ scepticism about military intervention and the enhanced role it provides established powers such as the US. But the resolution contains explicit language likely lobbied for by SA prohibiting any "foreign occupation force of any form on any part of Libyan territory", thus referencing the African Union’s (AU’s) concern for the territorial integrity of Libya and its rejection of any "foreign military intervention".

Certainly SA’s Security Council persona regarding Libya seems at odds with its positions on Myanmar and Zimbabwe when it last held S ecurity C ouncil status. In this most recent resolution on Libya and in the previous resolution, which imposed an arms embargo and asset freeze and referred the situation to the International Criminal Court, it takes the view — principled and uncontroversial — that mass killings of civilians even when confined within a single state’s borders constitute a threat to international peace and security and so warrant s ecurity c ouncil action. It voted against such findings on Zimbabwe and Myanmar.

SA would likely attempt to reconcile these positions by arguing it gives deference to neighbouring states in their assessment of whether the situation rises to the level of international threat: clearly the Arab League’s call for the enforcement of a no-fly zone indicated that the neighbourhood looked to S ecurity C ouncil intervention. Still, SA’s votes on Libya have been fundamentally the exercise of its global leadership in defence of human rights and democracy.

SA has also acted strategically, ensuring not only co-ordination of S ecurity C ouncil and AU actions in respect of Libya but critically salvaging an AU initiative, which looked likely only to demonstrate the moribund nature of the regional grouping. As the Arab League sought to show itself a responsible global actor by calling for a no-fly zone in Libya, the AU steered clear of any such pronouncements — its Peace and Security Council instead dispatching a five head-of-state committee to engage all sides in the Libya crisis. The composition of the mission — in particular the inclusion of Mali, Mauritania and Congo, which are all financially beholden to Gaddafi — suggested robust recommendations for reform were unlikely to be forthcoming and that the AU would appear to be Gaddafi’s club of cronies. In particular, President Jacob Zuma ’s inclusion meant the international fallout for SA might be severe.

Instead, last Thursday’s resolution allowed SA to turn its handicap to global advantage, deftly weaving the Security Council and AU pieces together, saving face for the AU and elevating its role — the council resolution specifically heralds the AU’s high-level committee and its aim of "facilitating dialogue to lead to the political reforms necessary to find a … sustainable solution." Overnight, the AU’s initiatives looked bold and prescient, not craven and concealing, and in managing the transformation, SA underlined its global authority to AU partners.

To use a US idiom, denoting both smarts and substance, on Libya, SA has both done good and well.

Monday, March 7, 2011

A theory of International Criminal Law?

I'm currently attending a seminar on "Thematic Investigation and Prosecution of International Sex Crimes", organized by the Forum for International Criminal and Humanitarian Law, in Cape Town. This morning's session began with an interesting presentation by Margaret deGuzman entitled "Selecting Sex Crimes for Prosecution at International Courts: the Philosophical Foundations of a Feminist Agenda", which considered whether there is a theoretical basis for prioritizing sexual offences in the prosecution of international crimes. Before proposing norm expression - expressivism - as the most plausible theoretical basis for such prioritization, Margaret discussed other theories of punishment: retribution, deterrence, restoration.

During the course of Margaret's presentation, and the responses from other discussants, the ubiquitous question of whether there is a "theory" of international criminal law emerged once again. Margaret argued that the field rests uncomfortably on "incompletely theorized agreements", the contours of which remain contested. She considered the issue from the perspective of determining what the goals and objectives of ICL are, concluding that norm expressivism best meets these goals. For some discussants however, expressivism begs the question as one still needs to select which "norms" are to be given preference within ICL. Other speakers took a functional approach to this question, suggesting that there is no need for a unifying theory for ICL as it works in practice. Further, questions of theories of punishment (and justice) ultimately return to the foundational debates of the Enlightenment.

This is one of the most interesting and unexplored aspects of ICL. I think ICL does need some unifying theory, no matter how tentative, in order to address another difficult question, namely: what is the source of international tribunals' legitimacy? This is particularly important in an African context, where the legitimacy of the emerging system of international criminal justice is under sustained attack. Without some theoretical foundation, or at the very least a set of agreed upon goals and objectives, it is difficult to coherently and consistently address some of the criticisms raised in respect of the ICC specifically and international criminal law in general.

Wednesday, March 2, 2011

Thank you...

A long overdue thank you to David Bosco of The Multilateralist and Kevin John Heller of Opiniojuris for their kind words (and much-appreciated punts) for our fledgling blog. We will try to live up to their expectations.

Tuesday, March 1, 2011

The UN Security Council refers Libya to the International Criminal Court

On Saturday evening the United Nations (UN) Security Council unanimously passed Resolution 1970 (2011), referring the 'situation' in Libya to the International Criminal Court (ICC). The resolution was part of a robust set of Security Council measures directed at the Libyan regime, including a travel ban and asset freezes for Colonel Ghaddafi and his associates, and an arms embargo. It is the first concrete action by the Council in respect of the events that began earlier this month, as increasing reports of widespread attacks on civilians in Libya confirm the lengths to which Ghadaffi will go to cling to power. It is also fitting that Ghadaffi – who has recently been central to undermining the ICC through his political influence in the African Union – should now find his regime’s crimes referred to the Court.

This is only the second time that the Security Council has used its discretion under the ICC’s Rome Statute to refer a matter to the Court for possible prosecution. The first referral, under Resolution 1593 (2005), was made in respect of the situation in Darfur which led to an arrest warrant being issued for Sudanese President al-Bashir for war crimes, crimes against humanity and genocide (he remains at large). Up until the vote on Saturday it was not clear whether China and Russia (states openly hostile to the Court) would allow it to pass. In the end they abstained from using their veto. Of equal significance is that the three African members of the Security Council – Gabon, Nigeria and South Africa – supported the referral, notwithstanding ongoing tensions between African states and the Court over the Darfur and Kenyan investigations. Notably, Resolution 1970 made explicit reference to article 16 of the Rome Statute, which allows the Security Council to defer an investigation by the Court in order to maintain international peace and security. This was included over concerns raised by some states that the referral might become an obstacle to future peace efforts.

Resolution 1970 is interesting in a number of other respects.

First, as far as the subject-matter jurisdiction is concerned the resolution’s preamble states that “the widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity”. However, the Security Council’s reference is by no means binding on the Court, and the Prosecutor will have to investigate, formulate and prove any charges relating to the ongoing violence. This includes the crucial element of the attacks’ widespread and systematic nature, the distinguishing feature of crimes against humanity. Further, the referral is not limited to crimes against humanity and individuals could potentially be charged with other crimes under the Rome Statute such as war crimes (and possible even genocide). In a statement released yesterday the Prosecutor indicated that he is considering opening a preliminary investigation focussing on crimes against humanity specifically, however there is nothing stopping him from broadening its scope should facts emerge supporting additional crimes. In order for war crimes to be alleged however, the situation in Libya must amount to a non-international armed conflict; which the Rome Statute defines as a situation of “protracted armed conflict between governmental authorities and organized armed groups or between such groups”. According to the Rome Statute, this excludes “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature”. Again, although Resolution 1970 suggests that the situation in Libya does amount to an armed conflict when it urges the Libyan authorities to respect international humanitarian law (the law that relates to war crimes), the Court will have to make its own determination in this regard.

Secondly, as far as the persons potentially falling with the Court’s jurisdiction, the resolution contains a controversial provision excluding “nationals, current or former officials or personnel” of states other than Libya from the Court’s jurisdiction in respect of “alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council”. Such persons might only be prosecuted if their home states waive their jurisdiction. This proviso, which would apply to any members of an international peacekeeping operation authorised by the Security Council, was included at the insistence of the United States, as a pre-condition to allowing the resolution to pass. It does not however, contrary to media reports, place the alleged mercenaries in Libya outside the Court’s jurisdiction – since they are obviously not acting with the authority of the Council. Further, even though the resolution refers to attacks “against civilians”, suggesting it is only the conduct of the State and its proxies that will be investigated, there is nothing stopping the Court from investigating atrocities committed by anti-government forces. In this regard the reports of migrant workers from neighbouring countries being targeted as mercenaries based on their race is disturbing and could potentially fall within the court’s jurisdiction. Thirdly, and less controversially, the referral is temporarily limited to events that have taken place since 15 February 2011.

What about the prospects going forward?

As with all the other matters currently before the Court, the target of the investigation is an African country, which critics of the ICC will be quick to point out. Like Kenya, the crimes under investigation emerge from an internal political dispute that has escalated rather than a typical armed conflict involving an armed, organised rebel group or insurgency (such as Darfur, DRC, Uganda) or another state (think Georgia or Gaza). Like Sudan, the investigation will have to take place in respect of a state that is not a party to the Rome Statute and despite the government under investigation being overtly hostile to the proceedings. For these reasons, sceptics are likely to conclude that it will result in the same difficulties that have left the Court politically isolated in its region of operation (Africa), without a conviction after 10 years of operation and with increasingly impatient benefactors.

There are however aspects of the Libyan referral that are different. For one, it is surely the earliest the Court has ever become involved in a situation: just over a week since it started. This creates the potential for the Court to act as deterrent for future atrocities, and alter the conflict dynamics in a game-changing manner. For that to happen it is vital that the ICC Prosecutor seize the initiative and move with all deliberate speed to investigate the offences. Moreover, the Libyan regime is one of the most politically isolated – both domestically and internationally – government the Court has yet been asked to investigate. This increases the prospects of states cooperating with the Court to ensure that its orders are carried out. A useful comparison here is Sudan, where the Court became involved in an established conflict, involving a government that had sufficient domestic support to ensure the Court never operated in its territory, and (to date) sufficient regional and international support to prevent its orders, most notably the al-Bashir arrest warrant, from being executed despite legal obligations on states parties to the Rome Statute – recall that Chad and Kenya, notwithstanding their membership of the ICC, allowed al-Bashir to visit their territories in defiance of the court’s arrest warrant . In Libya, the hope is that there may in due course be sufficient cooperation domestically, particularly from the ‘successor’ to the current regime should there be one, and internationally, to secure the arrest and prosecution of those most responsible for the violence.

Finally, the Libyan referral needs to be situated within the broader Africa/ICC narrative. Ghaddafi has been a key protagonist in bringing the relationship to its current low – with the AU ordering non-cooperation in respect of al-Bashir, requesting deferrals in respect of both the Darfur and Kenya investigations, and attempting to amend one of the Rome Statute’s most finely balanced political compromises (article 16). One might be tempted to think he did so presciently, in anticipation that he himself might one day be caught in the Court’s crosshairs – but that would be to ignore his insufferable arrogance that appears to blind him even now to the reality of the situation. Included in that reality is that even for the AU, supporting the Libyan leader in the same manner as they have al-Bashir might be a bridge too far. For one, many African states will be acutely aware of the potential contagion effect of the peoples’ revolution sweeping the north of the continent and the danger of being aligned with the ailing regime. The AU’s silence on the referral to the ICC speaks volumes.

More so, three African states voted in support of the deferral, including powerhouses Nigeria and South Africa, the latter having publicly committed itself to “towing the AU line” in its dealings on the Security Council (can one infer therefore that South Africa’s position mirrors the AU line?). It will now be difficult to take seriously claims that the ICC’s involvement in Libya is a further example of the Court’s unhealthy preoccupation with Africa. Moreover, one can hope that the apparent support within Africa for the Libyan referral might have the unintended but welcome effect of unmasking many of the AU’s ICC positions for what they are: political rather than principled objections.

That hope should not obscure the depressing realpolitik so often at play in these cases. Because the sovereignty and power he wielded for so long appear to be slipping away, there is no real reason for the AU to fight for Ghadaffi. While the AU has kept mum as the Security Council intervenes to demand accountability for the crimes in Libya, make no mistake: the apparent African support for the Libyan referral is because Ghadaffi is increasingly yesterday’s man.

[Note: this is an updated version of the orginal post]