Friday, October 11, 2013

ICC and Africa: Mail & Guardian gets it wrong (and why it matters)

This week's Mail & Guardian contains two contributions related to the ongoing spat between the International Criminal Court (ICC) and African states, in anticipation of this weekend's Extraordinary African Union Summit on the issue. The two offerings on the ICC-Africa issue are contained in its Editorial (no less) - titled 'SA must stand up to ICC's detractors' (p. 34) - and an article by one Mmanaledi Mataboge - titled 'Heat is on SA over world court' (p. 12). In general, I have great respect for the MG print edition as well as its online platform (although their proclivity for headline puns annoys me a little). However, its Editorial contains fundamental and inexcusable factual errors which, beyond mere sloppy journalism, do little to contribute to the public debate on this important issue.  

The errors in the Editorial include the following:

  • The Editorial suggests that 'it does look as though the court is unfairly targeting the continent ... [as] almost all the cases before it now are African'. Correction: all the current cases are from Africa.

  • It goes on to state: 

'Last week in Cape Town, the former United Nations secretary general Kofi Annan reminded us that, of the six African cases the ICC is prosecuting, five were referred to it by the nations involved, so they obviously support the ICC process and find it valuable in dealing with human-rights abuses in their countries. The exception, however, is the troublesome one: Kenya.'   

This might pass for reporting if in fact that is what Mr Annan said. I wasn't there but, if it is what he said, then he was wrong and the MG is wrong for repeating it. There are currently eight situations before the Court, all involving African countries (Côte d’Ivoire, Uganda, the Democratic Republic of Congo, Sudan, the Central African Republic, Kenya, Libya and Mali). Within these situations, there are 27 cases at various stages of proceedings, all of which involve Africans. It is correct to say that Kenya didn't refer itself to the Court, the Prosecutor at the time - Mr Ocampo - decided to pursue that case on his own accord. However, while Cote d'Ivoire voluntarily submitted itself to the ICC's jurisdiction (twice), at the time it was not a state party, the investigation was  ultimately 'triggered' by the Prosecutor (much like Kenya). The other two cases that don't fit into Mr Annan's (reported) list - Sudan and Libya - were referred to the Court by the Security Council. Their omission is significant as the power of the Security Council to refer states to the ICC (even non-state parties like Sudan and Libya) has increasingly drawn the ire of African states.      

  • The Editorial goes on to state (with some measure of high-handedness):

'The ICC's African opponents need to be reminded that the Rome Statute is there to end impunity when it comes to the kinds of horrors perpetrated by, say, the Liberian warlord Charles Taylor, or the Lord's Resistance Army – to mention two African cases the ICC has handled.'  

Correction: Charles Taylor was tried by the Special Court for Sierra Leone, not the ICC. [In the MG's 'defence', it is not the only paper to make such elisions: a week or so ago the Business Day (another respected South African news outlet) also stated that the ICC had convicted Taylor (the article has since been 'corrected', bizarrely it now credits 'the Special Court for Sierra Leone's sub-office in The Hague' for the conviction).]

Thankfully, the Mataboge article (titled 'Heat is on SA over world court') is more factually accurate, although I would point out that the term 'the world court' is generally used to refer to the International Court of Justice (also based in The Hague, but established to address disputes between states, not try individuals); the two courts are commonly confused. 

The problem with the Editorial's errors is that they are symptomatic of a general tendency within the media, and amongst 'analysts', to elide, conflate and oversimplify the issues raised by the current debate. This tendency is supported (if not encouraged) by parties on both sides of the debate who stand to benefit from it (i.e. states hostile to the ICC, as well as civil society). 

The conflation of the ICC (which is trying Mr. Kenyatta, and trying to try Mr. al-Bashir) with the Special Court for Sierra Leone (which recently convicted ex-Liberian President Charles Taylor) is a prime example of this. The ICC is a treaty-based body established by the Rome Statute, which has been signed by 122 states - including 34 from Africa. It is permanent body, with jurisdiction over all states parties and in exceptional circumstances over non-states parties as well. The Special Court for Sierra Leone is a so-called 'ad hoc' mechanisms established by way of a special agreement between Sierra Leone and the UN. It only has jurisdiction over crimes committed in that country since 1996. The two institutions are both institutionally and operationally very different, conflating them in the case of Mr. Taylor incorrectly fuels claims of an anti-African bias, while at the same time giving the ICC credit for a conviction it didn't secure (and securing convictions has been a real problem for the court).

When it comes to cases that the ICC is actually pursuing, the conflation (or misrepresentation) of how different situations have come before the Court is similarly problematic. For example, those that have come before the court by way of the Security Council (Libya and Sudan) raise a very different set of issues to the others. They implicate an ongoing debate about the legitimacy of the Security Council - and the undue power its current structure gives to the US, UK, France, China and Russia which African states have consistently (and correctly in my opinion) objected to - and its contamination of the ICC's mission to dispense universal 'international criminal justice'. Those concerns are very different from the issues raised in the Kenya matter, for example, which (at best) relate to the prerogative of a state to decide how best to address atrocities committed within its borders, and how that relates to its  (voluntarily assumed) obligations to the ICC. They also differ from valid concerns about how the Prosecutor has used - and in the case of Gaza 'not used' - the power under the Rome Statute to initiate investigations on her/his own accord. 

Finally, its worth pointing out that when it comes to African state concerns about international criminal justice, they are not limited to the ICC. In fact, the current debate within the AU was triggered by concerns about the abuse of the principle of universal  jurisdiction by European states in respect of 'African personalities' (often along former colonial lines).

The conflation of all of these issue works in favour of protagonist on both sides of the current debate: Some opponents of the ICC are looking to capitalise on concerns about the Security Council and neo-colonial judicial intervention to scupper ongoing trials (such as those in Kenya) that have little or nothing to do with these issues. Similarly, many activists and civil society groups in favour of the ICC present the international criminal justice project as a homogenous, apolitical, universal crusade for justice (for victims), without acknowledging the darker sides of the project's past (such as the failure to address crimes committed during decolonization) or the continued uneven application of its mission in the present. To argue against aspects of the ICC current make-up (such as the Security Council's role), then, is to oppose 'justice' for victims of unspeakable crimes. 

The real loser in all this is informed public debate on an issue with very high-stakes, regardless of which side one falls on. While it is perhaps asking too much for a single Editorial to capture the full complexity of the issue, at the very least it should get those aspects of it that it chooses to address right. 

Wednesday, October 9, 2013

Africa must help strengthen the ICC for its own sake

by Max du Plessis & Sivu Maqungo

THIS week, the African Union (AU) will debate accountability for heads of state accused of genocide, war crimes and crimes against humanity. But instead of discussing how to bring such individuals to justice, it seems the AU’s debate will consider how to ensure some of the accused escape accountability, or at least avoid trial before the International Criminal Court (ICC).

The ICC is the world’s first permanent international criminal court. Since its inception in 2002, its cases have focused on African atrocities, of which there are an abundance. This African focus is not, however, entirely of the court’s own making.

There are three ways in which cases can come before the ICC, two of which are not in the control of the court. States can ask the ICC prosecutor to investigate a case, the prosecutor can initiate an investigation in a state that is a member of the ICC’s Rome Statute, or the United Nations (UN) Security Council can refer a case for investigation.

Despite the fact that most African cases before the ICC were referred by African states themselves, the court’s apparent focus on Africa has drawn the ire of African leaders and the AU. It has also raised legitimate concerns about the ICC’s commitment to seeking justice beyond Africa.

The AU’s relationship with the ICC first turned sour when, in 2008, the ICC prosecutor announced the court’s intention to seek an indictment of President Omar al-Bashir of Sudan for alleged genocide in Darfur. The relationship has hit rock bottom with the ICC’s recent efforts to hold Kenyan leaders responsible for crimes committed during Kenya’s postelection violence in 2007-08. That violence resulted in the killing of more than 1,100 people and the mass displacement of Kenyan citizens. In response, Kenya established a commission of inquiry to investigate and identify those responsible. Among others, then finance minister Uhuru Kenyatta and education minister William Ruto were implicated in the crimes.

The commission recommended that a local tribunal be established to deal with the charges against those who may bear responsibility. The Kenyan parliament failed to act on this recommendation, knowing that this would open the door for an ICC investigation. Kenya is a member of the ICC’s Rome Statute, the provisions of which allow the ICC to investigate crimes in a member state only when that state is unable or unwilling to do so itself. So, to be clear, Kenya itself paved the way for the ICC to carry out the prosecutions through its unwillingness to do the job at home.

Kenyatta and Ruto have since become president and deputy president of Kenya respectively. They find themselves facing a criminal prosecution at the ICC whilst shouldering the responsibility for running an important African country.

With their ascension to their country’s leadership comes a dilemma for Kenya and the ICC, compounded by the Westgate terrorist attack in Nairobi last month, allowing Ruto (who was first to appear at the ICC) to return home during this time of crisis. With these developments, the ICC’s Kenya trial has in effect been put on ice.

And so we head towards the AU meeting in Addis Ababa at the end of this week. The meeting, scheduled during an extraordinary AU summit on the ICC, will include debate about African ICC states withdrawing from the Rome Statute. It follows efforts earlier this year by the AU at its May summit, at the initiative of Kenya and Uganda, to call for a referral of the ICC’s cases to a national mechanism in Kenya. That call was made despite the ICC’s judges rejecting the same request by the Kenyan government in 2011 due to a lack of genuine national investigations and prosecutions.

It is ironic and wrong, then, that the debate should be pressured by Kenya when Kenya — and its supporters in the AU — appears to be intent on avoiding accountability for Kenyatta and Ruto. Their lack of appetite for ensuring justice in Kenya is matched only by their hunger to ensure that the ICC’s Kenya trial is undermined.

This is a trend that does Africa no honour. African leaders gathering in Addis Ababa should recall that public displays of justice are necessary to secure peace and to deter the commission of terror attacks such as those at the Westgate mall, or the masterminding of serious violence during elections.

Already Africans have failed themselves in southern Africa by collapsing the Southern African Development Community (Sadc) Tribunal. The tribunal was shut down in August last year after a ruling handed down five years earlier on illegal land seizures that went against the Zimbabwean government. Zimbabwe refused to comply with the tribunal’s decision. After a protracted legal battle, the Zimbabwean government lobbied fellow Sadc leaders to close the region’s only interstate mechanism for the protection of human rights and the rule of law.

The message to victims, investors and the world is that the continent’s leaders are allergic to institutions of accountability. That message is amplified if African leaders suggest withdrawing from the ICC. It was in establishing the AU that Africa decided that it would take action to protect people from atrocities. That commitment must not now be reversed. It may be expedient today to weaken the one institution that can deliver justice in Kenya or Darfur. But that expediency will come at a cost, not only to the dream of an Africa at peace with itself, but to stability and civility, which are the hallmarks of the rule of law.

It is worrying that South Africa’s government has not distanced itself from the AU’s efforts. On the contrary, President Jacob Zuma was reported last month to have urged the ICC prosecutor to compromise with Kenyan leaders and spare them the obligation of sitting through their trials. While Zuma has not declared South Africa’s official position, his remarks on the margins of the UN General Assembly were interpreted as being sympathetic to the Kenyatta-Ruto cause.

Zuma’s remarks are concerning because, up to now, South Africa has played a vital role in supporting the work of the ICC. South Africa led regional efforts to draft the Rome Statute, was the first African country to pass domestic legislation in line with Rome Statute provisions, has tasked specialised investigation and prosecution units with working on grave crimes, and has gone further than other African states by issuing an arrest warrant for al-Bashir should he enter the country. South Africa’s leadership in strengthening the ICC is needed now more than ever.

What the AU and South Africa must highlight is that the strongest disinfectant is sunlight. By trying those responsible, the world exposes the truth of the atrocities and deters future crimes — and helps to bring justice for the victims. Undermining the ICC’s trials ensures a failure of accountability.

While powerful African elites may relish the notion of an accountability-free zone, such a notion would do further violence to the victims of the Westgate attack, the victims of the postelection violence and the victims of crimes against humanity and genocide in Darfur, Sudan and other African states.

These victims, all African, deserve justice. That will happen only by strengthening institutions of justice nationally and internationally. The ICC is central to this vision and must be strengthened to deliver justice everywhere. It should not be weakened by African withdrawals, which risk ensuring that it is unable to deliver justice anywhere.

• Maqungo and du Plessis are senior research associates at the Institute for Security Studies.

Tuesday, July 23, 2013

New Report: Africa and the International Criminal Court

Chatham House has released a report on 'Africa and the International Criminal Court', written by Max du Plessis, Tiyanjana Maluwa and Annie O’Reilly. The Report, available here, tackles the deteriorating relationship between African states and the International Criminal Court head-on, addressing key questions such as:

  • whether the ICC is guilty of selective prosecution of cases originating in Africa; 

  • why the AU is so critical of the ICC and how its attitude has evolved over the years; 

  • how is the ICC constrained by the customary international law doctrine of head-of-state immunity; 

  • the extent to which the prosecution of Kenya’s president and deputy president pose a real challenge to the ICC’s authority; 

  • the problem of witness protection before the ICC; 

  • the principle of complementarity in the African context; 

  • the AU’s attempt to establish a regional court to try international crimes; and   

  • the road ahead and whether it is likely that the AU will ever permit the ICC to open a liaison office in Addis Ababa.

This is no simple task, however few academics are better-placed to undertake it. 


Friday, June 28, 2013

Bid to get President Obama arrested fails (twice)

As President Obama jets into South Africa for his much-anticipated
visit he can rest easy in the knowledge that he will not be arrested and
prosecuted for international crimes in terms of the ‘Obama Docket’ (in case he
was worried). The reason being that its authors – the Muslim Lawyers
Association (MLA) – failed this week to convince a court to overrule last
week’s decision by South African authorities not to open an investigation into
the Obama Docket, which was submitted to them by the MLA on 5 June 2013.

In terms of that application, heard by the North Gauteng High
Court on Tuesday and Wednesday of this week, the MLA requested that the court, inter alia:

  •  Declare that the decision taken last week by the National
    Commissioner of Police not to accede to the MLA request to open an
    investigation under South Africa's ICC Act and customary international law, and
    if needs be arrest President Obama, unlawful and unconstitutional.

  • In light of the above, direct the relevant police apparatus to
    undertake “the necessary expeditious and comprehensive investigation of the
    crimes alleged in the Obama docket, with the assistance of the National
    Director Of Public Prosecutions and the specialised international crimes unit.

  • Order the National Director of Public Prosecution, once the investigation
    is completed, to take a decision whether or not to institute a prosecution.

  • Declare that any “immunity from investigation and prosecution
    under the ICC act and treaty is set aside”.

  • In the alternative, direct the relevant authorities after the completion
    of the investigation to make a decision “whether or not to refer the …Obama
    docket to the Prosecutor of the International Criminal Court to exercise
    jurisdiction in accordance with Article 13 and 14 of the Rome Statute of the
    International Criminal Court”.

The reason that the court dismissed the MLA application has little
to do with the substance of the Obama Docket. Rather, it was the MLA’s failure
to convince the court of the urgency of the matter that led to its demise.
However, the arguments raised by the MLA in its filings, and the responses
thereto by the government, make for very interesting reading. I will discuss
these arguments in detail in a follow-up post.

Suffice it to say for now that Air Force One is clear to land.

Thursday, June 27, 2013

New Directions in Law Faculty Signatures

Dear Phillip:

Please find enclosed a reprint of my latest article, "Special Pasta Recipes: Law, Culture, and Subordination: Is There A Way Out of Here." 34 Oklahoma State City Law School Just a Few Yards South of the McDonand's Law, Policy and Cooking Review, 345 (2013). I though you might be interested  in it because I cited an article that cited yours.

Best Wishes. Hope to see you at the annual meeting.


Chadworths Osbourn
Professor of Law and Associate Director of Foreign Program, Associate Director of Family Law Institute, Designated Decanal Ass Kisser, Soon to Be (STB) Associate Director of Muffins
Ben and Jerry's Law School
University of Western New Hampshire
Freemont, New Hampshire
For my ssnr downloads see:
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Led Pledge of Allegiance in Fifth Grade Ms. Stoney's Class
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White House Appointments: Pending

Tuesday, June 11, 2013

South Africa asked to arrest and try President Obama for international crimes

by Tour

On Friday a group of South African lawyers lodged a complaint with the country's National Prosecuting Authority (NPA) calling for President Obama's arrest for war crimes, crimes against humanity and genocide when he visits South Africa this month. More specifically, the group - the Muslim Lawyers Association - submitted a docket to South African authorities requesting that President Obama be "investigated, charged, arrested and tried in a South African Court for War Crimes, Crimes against Humanity and Genocide". According to the group's Press Release:

"The complaint, dubbed the “Obama Docket” encourages South Africa to take seriously its domestic and international obligations and to act against International War Criminals lest they consider South Africa a safe haven and travel here freely with impunity.

In terms of the ICC Act, diplomatic immunity is not a defence and a Head of State is not immune from prosecution for the aforementioned crimes. The Complaint asks for Obama’s arrest when he enters South Africa or the securing of his attendance at a trial by other lawful means.

In the alternative, the complaint requires South Africa as a State Party to the Rome Statute, to refer the case to the Prosecutor of the International Criminal Court at the Hague to exercise Jurisdiction in terms of the Rome Statute.

The Obama administration’s Drone programme which has resulted in massive losses of innocent lives in Pakistan, Yemen and Afghanistan. The programme is responsible for extra-judicial killings both innocent civilians as well as US citizens abroad. The drone strike policy has continued unabated with total disregard for territorial sovereignty and this is cited as the primary reason that Obama should be investigated and tried for War Crimes, crimes against humanity and genocide.

The large number of well documented civilian deaths are said to constitute international crimes and the complaint refers to numerous International Reports which have documented evidence on the USA drone policies. Other crimes cited include extra judicial renditions and torture.

Having not had sight of the "Obama Docket" its difficult to speculate about its chances of success. Nevertheless, a few preliminary points are worth making:

First, this is not the first time that civil society organisations have submitted "dockets" to the NPA with a view to triggering investigations into international crimes under South Africa's ICC implementing legislation (the ICC Act) - although its certainly the most high profile. To date, dockets have been submitted in respect of alleged war crimes and crimes against humanity in Gaza, Zimbabwe and Madagascar. While the first was not successful, the latter two were (to varying degrees). The NPA initially refused the request to open an investigation into the Zimbabwe Docket, but the litigants (the Southern Africa Litigation Centre and the Zimbabwe Exiles Forum) managed to get the refusal declared unlawful by the High Court, which ordered that it be reconsidered (the decision has been taken on appeal). The Madagascar case was more straightforward, the NPA agreed to open an investigation following the submission of the docket without much difficulty. The difference between the NPA's handling of the two cases can be partially explained by the presence of the suspect in the Madagascan case in South Africa (former President Marc Ravalomanana), whereas the Zimbabwe docket requested an investigation in respect of suspects whose presence in South Africa was 'anticipated'. The main contention on appeal in the latter case is whether the presence of an accused is a legal requirement in order for an investigation to be opened under South Africa's ICC Act. (See discussion here). The short point is that this recent request is not as "left field" as international observers might think; these requests have been acceded to in the past.

The second, related point worth making is that the reason that these requests have been successful in the past is that the evidentiary threshold for triggering an investigation under the ICC Act is quite low: "reasonable basis to believe". This was one of the upshots of the Zimbabwe Docket litigation, where the High Court found that the same standard applies for domestic investigations as for the initiation of an investigation by the ICC Prosecutor under the Rome Statute (see article 53(1)(a)). This threshold was later applied in respect of the Madagascar docket and was instrumental in its success. Again, while we don't know what evidence the "Obama Docket" contains, its worth noting that the threshold it needs to meet in order to trigger an investigation is fairly low. 

What is more, its worth noting that the High Court in the Zimbabwe Docket case found that 

"[W]hen an investigation under the ICC Act is requested, and a reasonable basis exists for doing an investigation, political considerations or diplomatic initiatives, are not relevant at that stage having regard to the purpose of the ICC Act."

This brings us to the third point which concerns the question of President Obama's immunity as a serving Head of State. The MLA Press Release blithely notes: "In terms of the ICC Act, diplomatic immunity is not a defence and a Head of State is not immune from prosecution for the aforementioned crimes". The provision being referred to here is section 4(2)(a) of the ICC Act which states:

“[Notwithstanding] any other law to the contrary, including customary and conventional international law, the fact that a person […] is or was a head of State or government, a member of a government or parliament, an elected representative or a government official […] is neither – (i) a defence to a crime; nor (ii) a ground for any possible reduction of sentence once a person has been convicted of a crime”.

Most commentators have interpreted this provision as removing diplomatic immunity in respect of prosecutions under the ICC Act. The High Court in the Zimbabwe Docket litigation accepted this interpretation, noting: “the ICC Act itself denies explicitly diplomatic immunity to government officials accused of committing ICC Act crimes”. This, if correct, would place South Africa’s ICC Act in conflict with the ICJ’s Arrest Warrant decision.

However, as I’ve argued elsewhere, section 4(2)(a) is clearly modeled on article 27(1) of the Rome Statute – which deals with the irrelevance of official capacity as a defence or as a ground for the reduction of sentence – and not article 27(2), which deals with personal immunity. Therefore, while 4(2)(a) of the ICC Act may effectively remove functional immunity, it does not address personal immunity which remains in place under the ICC Act, and in compliance with customary international law. 

As far as the substance of the docket is concerned, the Press Release is too general to usefully discuss the merits thereof. However, the reference to the "drone strike policy" as being the "primary reason that Obama should be investigated and tried for War Crimes, crimes against humanity and genocide" is interesting. The use of drone per se is not illegal (quite the contrary perhaps - see Frederic Megret's interesting essay on this subject). That said, serious concerns have been raised about the use of "signature strikes" - more specifically the use of certain "signatures" that may well violate IHL - which constitute the overwhelming number of drone strikes by the US. On this point see Kevin Jon Heller's excellent, new essay. Rather fortuitously, Kevin is in South Africa at the moment and will be talking about the legality of signature strikes at an event in Johannesburg on Thursday. Perhaps the NPA should be encouraged to attend. 

We will have to wait for more information on the docket to become public, but at this point it is clear that the Obama team should take it seriously given the low threshold it needs to meet in order to trigger an investigation under the ICC Act and the past success of similar initiatives. However, even if it is enough to trigger an investigation President Obama should, on a correct interpretation of the ICC Act, still be afforded immunity from arrest as a Head of State.

Wednesday, May 1, 2013

The wheels of international criminal justice grind slowly for Hissène Habré

by Max du Plessis

Hissène Habré was the president of Chad from 1982 until he
was deposed in 1990. He has been living in exile in Senegal since 1990. He was
indicted there in 2000 and is under house arrest under the close watch of elite
Senegalese armed forces. During more than two decades of exile, Habré has seen
numerous parties seeking justice for his alleged crimes against humanity,
torture and war crimes in Chad while in office, with recourse sought in a
multitude of regional, national and international tribunals. Senegal has to
date, however, not tried or extradited Habré to face the charges against him.

Matters culminated in a decision of the International Court
of Justice (ICJ) in The Hague. In its 20 July 2012 decision, Questions relating
to the Obligation to Prosecute or Extradite (Belgium v. Senegal), the
ICJ ruled on Belgium’s application to end a long dispute with Senegal over
Senegal’s duties in respect of Habré and the crimes he is accused of
committing. Belgium’s application against Senegal highlights many pressing
issues around the interpretation and application of the international law and
policy relating to human rights abuses, the fight against impunity and the
enforcement of international criminal norms. It also highlights questions more
generally about commitment to the international legal order, and compliance
with decisions of the ICJ.

Believing that Senegal was flouting its legal obligations,
Belgium approached the ICJ in February 2009 to order that Habré be either tried
or extradited by Senegal. The central feature of the case was the question
under international law concerning Senegal’s ‘obligation to prosecute or
extradite Habré, the former President of Chad (1982–1990), for the commission
of serious international crimes, including crimes of torture and crimes against
humanity’. The ICJ ordered that Senegal must, without further delay, submit the
Habré case to its competent authorities for the purpose of prosecution, if it
does not extradite him.

In response to this judgment, Senegal and the African Union
(AU) have agreed on a way to prosecute Habré. This has now led to the creation
of the Chambres Africaines Extraordinaires – a completely unique domestic
court in Senegal created with specific jurisdiction over international crimes
committed in Chad between 7 June 1982 and 1 December 1990 (the period during
which Habré is alleged to have committed his crimes). Early indications are
that the country plans to bring Habré before this court officially in

This is a promising, albeit late, start. It heralds an
important moment in the struggle to hold human rights abusers accountable under
international criminal law. It is also a significant indicator of Africa’s
commitment to the international legal regime, and of Senegal’s commitment to
the rule of law as embodied in the ICJ’s judgment. All too often a simplistic
and cynical view is peddled (particularly by Western states) about Africa’s
commitment to international norms. While there is much about the Habré saga to
raise questions over Senegal’s fealty to the obligations imposed by
international law, sight should not be lost of the fact that it submitted to
the jurisdiction of the ICJ for the peaceful resolution of a controversial
question of interest to the entire world community. And now, on the back of the
ICJ’s decision, the Senegalese government, under the watchful eye of the AU, is
taking concrete steps to implement the court’s order. 

Compare this case with the record of the United States (US)
before the ICJ. The US had previously accepted the court’s compulsory
jurisdiction (upon its creation in 1946). But in 1986, following the ICJ’s
judgment in Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), the US withdrew its acceptance because
the judgment called on the US to ‘cease and to refrain’ from the ‘unlawful use
of force’ against the government of Nicaragua. The ICJ ruled (with only the
American judge dissenting) that the US was ‘in breach of its obligation under the
Treaty of Friendship with Nicaragua not to use force against Nicaragua’ and
ordered the US to pay war reparations.

More recently, in 2005, the US withdrew from the Optional
Protocol to the Vienna Convention on Consular Relations Concerning the
Compulsory Settlement of Disputes. The Optional Protocol provides for
jurisdiction in the ICJ when any state party to the Vienna Convention on
Consular Relations seeks to sue another state party for violating it. The US
had just lost two cases in the ICJ arising out of situations in which US police
had failed to observe consular access for arrested foreign nationals. The
withdrawal was a response to those decisions.

Or consider Israel’s conduct before the ICJ, recalling the
decision by the United Nations General Assembly of 8 December 2003 at its Tenth
Emergency Special Session to submit the question of the legality of Israel’s
wall or barrier in the Occupied Palestinian Territory for an advisory opinion.
While Israel did not participate in the oral hearings in the ICJ, it chose to
submit written submissions. And, taking into account that the General Assembly
had granted Palestine a special status as observer and that it had co-sponsored
the draft resolution requesting the advisory opinion, Palestine was permitted
to submit a written statement on the question – and to present oral submissions
before the court. The court heard from a number of states and two international
organisations during oral hearings in February 2004. It delivered its advisory
opinion on 9 July 2004, finding that Israel was in breach of international law
in its construction of the separation wall. Israel has scorned the ICJ’s
decision, and the wall continues to be built to this day.

Of course Senegal’s efforts to comply with the ICJ’s
decision have just begun, and they will be closely scrutinised. For now, this
saga teaches at least two lessons. The first is that tenacity pays off in the
fight against impunity, and that eventually, with its wheels grinding slowly,
international criminal justice can be done through states acting in concert
with one another to bring tyrants to book. The second is that Africa remains
(for better or worse) a testing ground for so many of the important
developments in international law more generally, and international criminal
law in particular. And, promisingly for the rule of law on the continent, at
the very least Senegal has demonstrated that it will abide by decisions of the
ICJ, even when the court rules against it.

Thursday, March 7, 2013

The Venns of Faculty Governance

I see that Professor Campos is finished with his effort to expose the Law School Scam.  I read his blog once or twice but felt like I knew and agreed with most of what he was saying so I did not keep up.  Judging by some of his enemies, how wrong could he be?

Frankly, I am pretty much out of gas on my far more modest Classbias blog too. It has always had a goal that was a bit different than that of Professor Campos. Its goal was to reveal the persistent and destructive effects of institutions run by elites for their own ends.

Here is one more effort to explain the problem.  The people I know can be placed along a continuum. At one end are the "demanders." These are the folks who feel entitled to virtually everything and "demand" that their desires be met. Slipping along the continuum we come to the "askers." What ever they can think of, they ask for. At the far end are the people who do not demand or ask. If you know anything about relative deprivation, you know that to demand or ask you have to be in a context in which things are perceived as possible for people like you. For example, I remember a few years ago when two new faculty hires were told they would be given a certain sum for moving expenses. The reaction of one way, "What? They will actually pay for me to move. What a great surprise." The reaction of the other was "I cannot possible move for such a small amount." The important thing to note is that there is no correlation between need, merit, productivity, student welfare or institutional success and a person's position on that continuum.

In addition, administrators say yes to these requests and demands for a host of reasons other than student or institutional welfare. For example, an administrator may say yes just to avoid the harassment or to make sure he or she is not accused of 'insensitivity" to one political group or another. Or, the administrator may be concerned that the asker/demander is capable influencing others to believe he or she has been unreasonable.

Here is my best try at using Venn diagrams to illustrate the problem. The larger two circles are things people ask for or demand and reasons administrators say yes. The smaller circles within each one show things asked for or demanded that are consistent with student or institutional welfare and the times administrators say yes for reasons related to student or institutional welfare. That tiny overlap in the middle shows how much these interest coincide. A much larger area indicates when requests and demands that have nothing to do with student or institutional welfare get a yes answer.

Cross-posted at Classbias

The International Criminal Court Summer School 2013

Irish Centre for Human Rights at the School of Law at the National University
of Ireland, Galway has announced the details of the International Criminal
Court summer school 2013. The
lectures are given by leading academics on the subject and by legal
professionals working at the International Criminal Court. The summer school is
attended by legal professionals, academics, postgraduate students and NGOs.
Participants are provided with a detailed working knowledge of the
establishment of the Court, its structures and operations, and the applicable
law. Participants are also given the opportunity to network with the speakers
throughout the week. Lectures also speak to related issues in international
criminal law, including: genocide, war crimes, crimes against humanity, the
crime of aggression, universal jurisdiction, immunities, and the role of

year’s list of speakers is:

  • Professor
    William Schabas- Irish Centre for Human Rights, School of Law, NUI Galway and
    School of Law, Middlesex University

  •  Mr. Fabrizio Guariglia- Head of Appeals
    Division of the Office of the Prosecutor at the International Criminal Court

  •  Dr. Mohamed M. El Zeidy- Legal Officer for
    Pre-Trial Chamber II at the International Criminal Court

  •  Dr. Rod Rastan- Legal Adviser at the Office of
    the Prosecutor at the International Criminal Court

  •  Professor Siobhan Mullally- Professor of Law,
    University College Cork

  •  Professor Ray Murphy- Irish Centre for Human
    Rights, School of Law, NUI Galway

  •  Dr. Noelle Higgins- Irish Centre for Human
    Rights, School of Law, NUI Galway

  •  Dr. Nadia Bernaz- Senior Lecturer, School of
    Law, Middlesex University

  •  Dr. Annyssa Ballal- Graduate Institute Geneva

  •  Mr. John McManus- Counsel /Avocat, Crimes
    Against Humanity and War Crimes Section Canadian Department of Justice

  • Professor
    Megan A. Fairlie- Professor of Law, Florida International University

  • Dr. Mohamed Elewa Badar- Senior Lecturer, School of
    Law, Brunel University

more information and to register please visit the Centre's website at
or email

Monday, February 11, 2013

Syria and the illusion of universal international criminal justice

by Max du Plessis

With estimates of the death toll in Syria climbing to over
60 000 as of January 2013, it is worth questioning the deadlock in the United
Nations Security Council (UNSC) that has lasted nearly two years now, with
Russian and Chinese threats of a veto preventing the international community
from intervening in the Syrian conflict.

Russia and China have also helped to avoid a referral of the
grave crimes committed in Syria to the International Criminal Court (ICC). The
UNSC is empowered to refer situations of gross international crimes to the ICC,
and has done so in respect of two African situations: crimes committed in Libya
during Muammar Gaddafi’s final days, and the crimes committed by President Omar
Al-Bashir’s regime in Sudan. But so far Syria has escaped the ICC’s attention
because of the impasse in the UNSC. Syria is not a signatory to the ICC’s Rome
Statute, which means that short of a referral by the UNSC, the ICC cannot get
jurisdiction over the crimes committed there.

Not only is this a tragedy for the Syrian victims of war
crimes and crimes against humanity, it is also a telling example of the
illusion of universal international criminal justice; and the reality of
politics frustrating the justice ideals of the ICC.

It has become fashionable to criticise the ICC for its
exclusive focus on African cases. Developing nations, particularly from the
South, now repeatedly and rightly complain about the skewed power relations
reflected in the UNSC. Those power relations – and the imbalance of power
within the Council – have come sharply into focus in the case of the ICC and
the UNSC’s influence over it. After a decade of the ICC’s work, the UNSC has
found the common purpose to refer two African situations to the ICC (Sudan and
Libya) – but has repeatedly failed to do so in respect of equally deserving
situations in relation to crimes committed in Palestine, and most recently in
respect of the crimes unfolding before our eyes in Syria. Ten years on, we can
reflect soberly on the reality that all the cases opened by the ICC are in

It is no longer enough to explain that this situation has
arisen because the African cases before the ICC deserve its attention; of
course they do. But while crimes in Syria, or Palestine, remain beyond the
ICC’s reach, it becomes impossible to claim that the international criminal
justice project is truly universal in its justice aspirations, or free from the
vicissitudes of international politics. Ultimately, it is a question that any
first-year law student is taught to identify: one of fairness and equality. As
long as the UNSC and the ICC ensure that the court busies itself exclusively
with African situations, and avoid dealing with the crimes in Syria or
Palestine, the principle of equality before the law becomes little more than a

There is another reason why the ICC perception problem can
no longer be ignored. Aside from the justice principles of equality and
fairness, this exclusive focus on Africa affords powerful elites on the
continent a means to draw deserving attention away from African crimes and the
plight of African victims by insisting that the spotlight be kept trained on
the skewed nature of international criminal justice. It also gives them a stick
with which to beat the ICC and the international criminal justice project. It
is no coincidence that the African Union’s resistance to the ICC reached its
shrillest levels the moment the ICC, through the UNSC’s referral of the Sudan
situation to the court, decided to focus on the crimes allegedly committed by a
sitting head of state in the form of President Al-Bashir. As the net fell on
him, it became clear to others similarly situated on the continent that his
fate might be shared by other elites.

Against this background the news last month of a letter sent
to the UNSC by Switzerland calling for a referral of the situation in Syria to
the ICC should be applauded. The letter, sent on 14 January, was signed by 57
states. African signatories included Botswana, Libya, Seychelles and Côte
d’Ivoire. South Africa was noticeably absent from the list. But perhaps more
important is the fact that the states on the list reflect a global
cross-section of countries, including such diverse partners as Japan and Costa
Rica, the Republic of Korea, Australia, Samoa and Andorra, and every member of
the European Union save for Sweden.

Such efforts demonstrate the potential for a win-win
situation: for the ICC to do justice as it should to the African victims of the
cases that are rightly before it and to do justice to the victims of grave
crimes outside of Africa who equally deserve the court’s and the international
community’s attention. It remains to be seen whether the members of the UNSC
will embrace this challenge to pursue a common goal of justice for Syrians
suffering under a brutal regime. If they do not, it will be further sad
confirmation that an international criminal justice system that cares equally
for all of the world’s people is still a utopian dream. 

Max du Plessis, Senior Research Associate, Transnational
Threats and International Crime Division, ISS Pretoria