An article I co-authored on Africa and the negotiations over the crime of aggression that took place at the ICC Review Conference in Kampala last year is out. The article - titled "Africa and the Codification of Aggression: A Phyrric Victory?" - appears in the African Legal Aid Quarterly. You can mail me for a copy, here is the abstract:
More than sixty years after it was declared ‘the supreme international crime’ by the Nuremberg Tribunal , the crime of ‘aggression’ has been adopted for inclusion in the Rome Statute of the International Criminal Court (ICC) ; with the Court able to exercise jurisdiction over it after the amendment has been ratified by at least 30 State Parties, but not before 2017. This amendment criminalising aggression, and specifically the jurisdictional regime governing it, is both complex and controversial, being the product of one of the most intractable diplomatic negotiations in the history of the ICC.
Notwithstanding recent schisms in its relationship with the Court, Africa played a key role in the final version adopted by the ICC Review Conference in Kampala , as it has throughout the Court’s development. The codification of the crime of aggression – loosely defined as the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations (UN Charter) – is a diplomatic victory for smaller states that are likely to see it as a salvo against the disregard shown for the UN Charter by powerful states. Moreover, the criminalisation of aggression, and attendant placing of such disputes within a legal (and criminal justice) forum, weakens, if not obviates, the claim made by a few powerful states that the United Nations Security Council (UNSC) has the exclusive authority to make such determinations under international law. However, such advances notwithstanding, the ultimate formulation of the crime raises the likelihood of increased dissonance between the Court and Africa, particularly in respect of the question of the role of the UNSC in international criminal justice and the impact of the criminalisation of violations of the UN Charter on Africa’s burgeoning peace and security structure.
This paper briefly discusses the history of the crime of aggression and considers how the stumbling blocks to consensus were addressed at the Review Conference in Kampala. It also considers the ultimate formulation of the crime of aggression and its jurisdictional regime and argues that on the whole the victory for Africa at Kampala may well turn out to be a Pyrrhic one.
Tuesday, February 8, 2011
Sunday, February 6, 2011
EJILTalk Guest Post: AU States obligations and the ICC
This week Dapo Akande was kind enough to allow Max du Plessis and I to post the following on the EJILTalk blog, as part of an ongoing discussion on the topic:
Earlier this week, Dapo had a post dealing with the obligations of contracting parties to the Genocide Convention to implement ICC arrest warrants and pointing to the UCLA Online Forum debate on this topic. In what follows we hope to contribute to the discussion around point (ii) of the topics raised by Dapo’s post and the UCLA debate: the obligations of African Union States Parties to implement ICC arrest warrants. Our contribution is drawn from our upcoming position paper for the Institute for Security Studies’ International Crime in Africa Programme. The paper provides an analysis of the various obligations Kenya and other States Parties must meet to the ICC in respect of both al-Bashir and the Court’s ongoing investigation into the post-election violence in Kenya, and which considers the nature of the obligations on African States Parties such as Kenya in respect of the AU decision, and in particular the demand for non-cooperation in respect of al-Bashir. This paper builds on the ISS’s previous position paper – An African expert study on the African Union concerns about article 16 of the Rome Statute of the ICC, by Dapo Akande, Max du Plessis and Charles Jalloh, previously discussed on this blog (here and here) – and similarly the Institute plans to launch the paper internationally in due course.
Firstly, decisions of the AU Assembly are potentially binding on member states. Although there is no express provision in the AU’s Constitutive Act conferring this power, it is clear from article 23 – which sets out the consequences for failing to abide by such decisions – as well as a thorough contextual reading of the Constitutive Act that the Assembly is empowered to do so. Even if the text of the AU Constitutive Act is considered insufficient or equivocal in this regard, given the considerable mandate the body has been given by its member states, those advocating for the binding nature of Assembly decisions could rely on the doctrine of implied powers to support their position. Further, as Bill Schabas notes in his piece on the UCLA Law Forum, the AU Commission clearly views the AU’s Bashir Decision as binding on its members.
As far as the July 2010 AU Decision (Assembly/AU/Dec.296(XV) is concerned, using the Security Council as an analogue, various interpretive techniques can be employed with the view to ascertaining the “intention” of the Assembly. Firstly, the plain language (the primary indicator) of operative paragraph 5 of that decision – whereby the AU “Reiterates its Decision that AU Member States shall not cooperate with the ICC in the arrest and surrender of President El-Bashir of The Sudan” – clearly suggests it was intended to be binding and not merely exhortatory. Moreover, a consideration of the practice of the AU Assembly reveals that the word “decision” and its variations are used sparingly and deliberately. Unfortunately, due to the controversy that surrounded its adoption, and the complex three-tiered decision-making structure of the AU Assembly, the discussions leading up to the Bashir Decision are of little assistance in this regard. Nevertheless, the decision that AU states shall not cooperate clearly creates a prima facie obligation on such states not to do so.
As Bill Schabas rightly notes, the upshot of this is “with respect to Member States of the African Union that are also States Parties to the Rome Statute, there would appear to be a conflict between the binding obligations imposed by the Rome Statute and the binding obligations imposed by the Decisions of the African Union”. This ‘norm conflict’ can be resolved in one of two ways: with reference to hierarchy (such as a jus cogens norm or per article 103 of the UN Charter) or through “techniques of interpretation”.
As far as the use of hierarchy is concerned, in our view there is little to be gained from article 103 of the UN Charter in this regard. Although it might have done so, by its terms UNSCR 1593 does not bind states (other than Sudan) under Chapter VII to cooperate with the Court in respect of the Sudan situation. As for jus cogens obligations in respect of genocide, leaving aside debates over when these are engaged, their scope cannot (perhaps yet) be said to extend to the execution of an arrest warrant.
So far so good.
Where we differ respectfully with Bill is in respect of the second conflict resolution tool: techniques of interpretation. Bill dismisses Amnesty International’s attempt to argue that “the African Union intended that its Decision ordering States not to enforce the arrest warrants be consistent with the Rome Statute, and at the same time to declare the interpretation of a provision of the Rome Statute upon which the Decision of the African Union is based to be erroneous”. At this point, having dismissed AI’s attempts to read down the AU Decision, Bill concludes that the two obligations “cannot be reconciled” through interpretive means and, in the absence of “any apparent rule or formula establishing a hierarchy by which one prevails over the other”, the “conflict of legal norms requires a political solution”.
However, we believe that there is an interpretive means to avoid this “conflict of legal norms”, and that solution lies within the AU Decision itself. While the controversial paragraph in the AU Decision demanding non-cooperation has attracted much attention, one must also consider the paragraph that follows immediately after, which “[r]equests Member States to balance, where applicable, their obligations to the AU with their obligations to the ICC”. This ’balancing paragraph’ – included at the insistence of states such as South Africa whose implementing legislation obliges them, under domestic law, to cooperate with the ICC – makes a straightforward textual interpretation of the Decision as a whole difficult. It suggests a decision that drives at a categorical imperative yet at the same time provides allowance for a measure of discretion. On their face these two commands appear irreconcilable by simultaneously commanding member states not to cooperate in the arrest of al-Bashir and requesting them to balance this edict with their obligations under the Rome Statute. In such circumstances it becomes necessary to look beyond the text in order to give meaning to these two paragraphs.
Here there is unfortunately little guidance provided by the discussion in the AU Assembly. Indeed, at the time the Decision was adopted there was concern raised by some states that the AU Commission – responsible for drafting the voluminous decisions of the Assembly as they pass through the various stages of the decision-making process – had on more than one occasion distorted the discussions and decision-taking during the preparatory stages in order to push its own hawkish line on the question of the Bashir Arrest Warrant. The difficulty then is that reference to the discussions leading up to the Decision is not a reliable means of infusing plainly contradictory language with any singularity or clarity of purpose.
Arguably there is only one tool remaining by which to avoid the norm conflict. In this regard we submit that the internal contradiction in the AU Decision occasioned by the inclusion of this ‘balancing paragraph’ should be resolved by employing the doctrine of effective construction. This doctrine takes on different forms but has been held to require that one “avoid interpretations which would leave any part of the provision to be interpreted without effect”, and that “an interpretation which would make the text ineffective to achieve the object in view is prima facie suspect”. In the past it has been used by both the ICJ and the ICTY Appeals Chamber, and Bill references it in his discussion on immunity. Although those occasions involved the interpretation of treaties, there appears to be no reason why the doctrine is not applicable in the interpretation of organisational acts.
Applying the doctrine of effective construction to the AU Decision means that to read it as peremptory would render permissive opt-out meaningless. Therefore, in terms of this doctrine the text of the Decision is best rendered exhortatory: that is, it is not an unequivocal command but rather is diluted when states (“where applicable”) are under another obligation stemming from the Rome Statute. States parties may thus avoid the apparent conflict of norms represented in the AU Decision by an interpretive turn which takes the text of the decision seriously and attempts to render it meaning-ful.
Incidentally, the AI report considers this ‘balancing paragraph’ and concludes that it “provides AU member states with a tool to solve any possible conflict between the obligations arising from the 2009 and 2010 Decisions and the obligations towards the ICC”. The problem is that it does not suggest how this tool might work, although it’s clear that on AI’s reading this balancing exercise would inevitably “result in the obligations towards the ICC prevailing over the obligations towards the AU” in respect of all AU member states. We would avoid a reading of this paragraph and the use of balancing as a substitute for subjugating the AU Decision to the ICC. The AU’s Decision is (textually and contextually) a reflection of internal inconsistencies around deeply-felt concerns about the Court’s work in Africa. We suggest that, although the result may be the same, the doctrine of effective construction is a better means of simultaneously recognising that these concerns animate the AU’s Decision, whilst addressing the contradictory aspects of a decision by a regional organisation comprising 53 sovereign states.
Earlier this week, Dapo had a post dealing with the obligations of contracting parties to the Genocide Convention to implement ICC arrest warrants and pointing to the UCLA Online Forum debate on this topic. In what follows we hope to contribute to the discussion around point (ii) of the topics raised by Dapo’s post and the UCLA debate: the obligations of African Union States Parties to implement ICC arrest warrants. Our contribution is drawn from our upcoming position paper for the Institute for Security Studies’ International Crime in Africa Programme. The paper provides an analysis of the various obligations Kenya and other States Parties must meet to the ICC in respect of both al-Bashir and the Court’s ongoing investigation into the post-election violence in Kenya, and which considers the nature of the obligations on African States Parties such as Kenya in respect of the AU decision, and in particular the demand for non-cooperation in respect of al-Bashir. This paper builds on the ISS’s previous position paper – An African expert study on the African Union concerns about article 16 of the Rome Statute of the ICC, by Dapo Akande, Max du Plessis and Charles Jalloh, previously discussed on this blog (here and here) – and similarly the Institute plans to launch the paper internationally in due course.
Firstly, decisions of the AU Assembly are potentially binding on member states. Although there is no express provision in the AU’s Constitutive Act conferring this power, it is clear from article 23 – which sets out the consequences for failing to abide by such decisions – as well as a thorough contextual reading of the Constitutive Act that the Assembly is empowered to do so. Even if the text of the AU Constitutive Act is considered insufficient or equivocal in this regard, given the considerable mandate the body has been given by its member states, those advocating for the binding nature of Assembly decisions could rely on the doctrine of implied powers to support their position. Further, as Bill Schabas notes in his piece on the UCLA Law Forum, the AU Commission clearly views the AU’s Bashir Decision as binding on its members.
As far as the July 2010 AU Decision (Assembly/AU/Dec.296(XV) is concerned, using the Security Council as an analogue, various interpretive techniques can be employed with the view to ascertaining the “intention” of the Assembly. Firstly, the plain language (the primary indicator) of operative paragraph 5 of that decision – whereby the AU “Reiterates its Decision that AU Member States shall not cooperate with the ICC in the arrest and surrender of President El-Bashir of The Sudan” – clearly suggests it was intended to be binding and not merely exhortatory. Moreover, a consideration of the practice of the AU Assembly reveals that the word “decision” and its variations are used sparingly and deliberately. Unfortunately, due to the controversy that surrounded its adoption, and the complex three-tiered decision-making structure of the AU Assembly, the discussions leading up to the Bashir Decision are of little assistance in this regard. Nevertheless, the decision that AU states shall not cooperate clearly creates a prima facie obligation on such states not to do so.
As Bill Schabas rightly notes, the upshot of this is “with respect to Member States of the African Union that are also States Parties to the Rome Statute, there would appear to be a conflict between the binding obligations imposed by the Rome Statute and the binding obligations imposed by the Decisions of the African Union”. This ‘norm conflict’ can be resolved in one of two ways: with reference to hierarchy (such as a jus cogens norm or per article 103 of the UN Charter) or through “techniques of interpretation”.
As far as the use of hierarchy is concerned, in our view there is little to be gained from article 103 of the UN Charter in this regard. Although it might have done so, by its terms UNSCR 1593 does not bind states (other than Sudan) under Chapter VII to cooperate with the Court in respect of the Sudan situation. As for jus cogens obligations in respect of genocide, leaving aside debates over when these are engaged, their scope cannot (perhaps yet) be said to extend to the execution of an arrest warrant.
So far so good.
Where we differ respectfully with Bill is in respect of the second conflict resolution tool: techniques of interpretation. Bill dismisses Amnesty International’s attempt to argue that “the African Union intended that its Decision ordering States not to enforce the arrest warrants be consistent with the Rome Statute, and at the same time to declare the interpretation of a provision of the Rome Statute upon which the Decision of the African Union is based to be erroneous”. At this point, having dismissed AI’s attempts to read down the AU Decision, Bill concludes that the two obligations “cannot be reconciled” through interpretive means and, in the absence of “any apparent rule or formula establishing a hierarchy by which one prevails over the other”, the “conflict of legal norms requires a political solution”.
However, we believe that there is an interpretive means to avoid this “conflict of legal norms”, and that solution lies within the AU Decision itself. While the controversial paragraph in the AU Decision demanding non-cooperation has attracted much attention, one must also consider the paragraph that follows immediately after, which “[r]equests Member States to balance, where applicable, their obligations to the AU with their obligations to the ICC”. This ’balancing paragraph’ – included at the insistence of states such as South Africa whose implementing legislation obliges them, under domestic law, to cooperate with the ICC – makes a straightforward textual interpretation of the Decision as a whole difficult. It suggests a decision that drives at a categorical imperative yet at the same time provides allowance for a measure of discretion. On their face these two commands appear irreconcilable by simultaneously commanding member states not to cooperate in the arrest of al-Bashir and requesting them to balance this edict with their obligations under the Rome Statute. In such circumstances it becomes necessary to look beyond the text in order to give meaning to these two paragraphs.
Here there is unfortunately little guidance provided by the discussion in the AU Assembly. Indeed, at the time the Decision was adopted there was concern raised by some states that the AU Commission – responsible for drafting the voluminous decisions of the Assembly as they pass through the various stages of the decision-making process – had on more than one occasion distorted the discussions and decision-taking during the preparatory stages in order to push its own hawkish line on the question of the Bashir Arrest Warrant. The difficulty then is that reference to the discussions leading up to the Decision is not a reliable means of infusing plainly contradictory language with any singularity or clarity of purpose.
Arguably there is only one tool remaining by which to avoid the norm conflict. In this regard we submit that the internal contradiction in the AU Decision occasioned by the inclusion of this ‘balancing paragraph’ should be resolved by employing the doctrine of effective construction. This doctrine takes on different forms but has been held to require that one “avoid interpretations which would leave any part of the provision to be interpreted without effect”, and that “an interpretation which would make the text ineffective to achieve the object in view is prima facie suspect”. In the past it has been used by both the ICJ and the ICTY Appeals Chamber, and Bill references it in his discussion on immunity. Although those occasions involved the interpretation of treaties, there appears to be no reason why the doctrine is not applicable in the interpretation of organisational acts.
Applying the doctrine of effective construction to the AU Decision means that to read it as peremptory would render permissive opt-out meaningless. Therefore, in terms of this doctrine the text of the Decision is best rendered exhortatory: that is, it is not an unequivocal command but rather is diluted when states (“where applicable”) are under another obligation stemming from the Rome Statute. States parties may thus avoid the apparent conflict of norms represented in the AU Decision by an interpretive turn which takes the text of the decision seriously and attempts to render it meaning-ful.
Incidentally, the AI report considers this ‘balancing paragraph’ and concludes that it “provides AU member states with a tool to solve any possible conflict between the obligations arising from the 2009 and 2010 Decisions and the obligations towards the ICC”. The problem is that it does not suggest how this tool might work, although it’s clear that on AI’s reading this balancing exercise would inevitably “result in the obligations towards the ICC prevailing over the obligations towards the AU” in respect of all AU member states. We would avoid a reading of this paragraph and the use of balancing as a substitute for subjugating the AU Decision to the ICC. The AU’s Decision is (textually and contextually) a reflection of internal inconsistencies around deeply-felt concerns about the Court’s work in Africa. We suggest that, although the result may be the same, the doctrine of effective construction is a better means of simultaneously recognising that these concerns animate the AU’s Decision, whilst addressing the contradictory aspects of a decision by a regional organisation comprising 53 sovereign states.
Friday, January 28, 2011
Kenyan case a good test of an ICC founding principle
[Op-Ed co-authored with Max du Plessis and published in the Business Day on 28 January 2011]
Kenya has recently become the epicentre of growing tension between the International Criminal Court (ICC) and Africa. Last month, the ICC prosecutor asked the court’s pretrial chamber to issue summons for six people on the grounds that they committed crimes against humanity in the post-election violence in Kenya in 2007 and 2008 (which claimed more than 1000 lives). The chamber, currently considering the request, authorised the prosecutor’s investigation in March 2009, partly on the basis that, despite indications that it would do so, Kenya had failed to seriously investigate the violence.
Aside from this investigation, Kenya’s relationship with the ICC came into the spotlight after its decision to thumb its nose at the ICC and invite President Omar al-Bashir of Sudan, wanted by the ICC for crimes in Darfur, to the launch of its new constitution last year. The profile of the "O’Campo Six" has inflamed Kenya’s growing anti-ICC sentiment: it includes three senior government officials, one of whom is the son of Jomo Kenyatta, the "father of the nation".
The latest move by prosecutor L uis Moreno O’Campo has thus sent Kenya’s political elite into reactive overdrive. Kenya’s parliament passed a resolution on December 22 calling for Kenya’s withdrawal from the Rome Statute, which founded the ICC. That decision prompted a backlash from civil society in Kenya and beyond. Although the threat of withdrawal remains in the wings, the immediate focus has apparently shifted to using the African Union (AU) summit next week to procure an AU resolution requesting the United Nations (UN) Security Council to defer the proceedings in Kenya under article 16 of the Rome Statute. Although the strategy clearly does not enjoy the support of all parties in Kenya’s coalition government, Kenyan Vice-President Kalonzo Musyoka maintains he has a mandate "as the special envoy of the p resident of the Republic of Kenya".
Internal schisms aside, the deferral strategy has gained momentum over the past week, and reportedly has the support of key countries such as SA, Nigeria and Ethiopia. Surprisingly, the rationale given for the deferral appears to be to allow the Kenyan authorities to deal with the alleged crimes.
This deferral approach should be discouraged. First, it is bad in law. A deferral (under article 16) can be used only if the UN Security Council determines that there is a threat to international peace and security. Not even the most pessimistic assessment of the ICC’s involvement in Kenya could characterise it as such.
Second , it is unlikely to succeed within the security council. And notwithstanding reports of SA’s support for Kenya’s agenda, upon proper reflection, SA should balk at such an expansive reading of the notion of threats to international peace and security. SA’s siding with Kenya is in contrast with Pretoria’s previous attempts to curtail the security council’s "mission creep" — witness SA’s position on Zimbabwe and Burma.
The request is likely to be associated with a now established pattern on the part of African states (who have made the same request in respect of al-Bashir) to seek deferrals in cases in which political elites are implicated. The outright refusal of the security council to accede to the al-Bashir request suggests Kenya’s request faces a similar fate. The danger is that the request is a hopeless political gesture. It is difficult not to conclude that it is designed to fail and increase the divide between the ICC and Africa.
The deferral request conflates two distinct aspects of the ICC: the power given at Rome to the security council to halt proceedings for one year in order to maintain international peace and security, and the principle of complementarity which ensures that the ICC is a court of last resort that intervenes only when national jurisdictions are unwilling or unable to do so. These two processes have differing ends and means, but the request seeks to use the means of article 16 to further the end of complementarity. While it is possible that the two may align, they do not in Kenya’s case.
For supporters of the ICC’s investigation in Kenya the request has thus been rejected out of hand. There are, however, a number of reasons to consider closely Kenya’s reliance on the complementarity principle. More than being a presumption in favour of local prosecutions, the principle of complementarity is at the heart of the ICC’s system. Aside from easing the concerns of states over threats to their sovereignty, the principle serves more noble ends, such as the utility of local prosecutions, and recognises the very real limitations of an ICC with potentially universal jurisdiction.
Therefore, should Kenya genuinely wish to conduct local trials, there are a number of reasons for allowing it to do so. First, it would relieve pressure on an already overburdened ICC. Second, should Kenya be allowed to do so, it would have positive effects for the ICC beyond diluting the mounting tension in Kenya. It would demonstrate to detractors in Africa that the ICC is designed to function only when national legal systems are unwilling or unable to prosecute international crimes. Third, complementarity has never been put to any real work, even though it is designed as an integral part of the Rome System. If the principle is to become effective, it must be taken for a test drive. Kenya presents an opportunity to do so.
Fourth, there is a danger in refusing Kenya the opportunity to exercise its jurisdiction over the crimes under the principle of complementarity. Kenya has one of the best developed judiciaries in Africa. It is also one of the few African states to have domestically implemented the Rome Statute, and the resulting legislation is impressive and progressive. In fact, until recently, Kenya was a model ICC state. If Kenya does not meet the threshold for complementarity, the implication is that neither would the overwhelming majority of other African states, making the principle a dead letter in Africa. This would be a sad reflection on domestic legal systems in Africa, and would embolden those who wish to present the ICC as an imperialistic mechanism on a "civilising mission".
Procedurally speaking, Kenya’s dilatory response to the atrocities means it has already missed chances to halt proceedings on the basis of complementarity. However, complementarity is in substance an continuing assessment. To consider it formalistically — as a static determination reified in time — would allow the ICC to turn a blind eye to positive domestic developments and undermine the principle’s worth.
Presuming there is genuine political will in Kenya to go it at home, Kenya’s newfound vigour for domestic prosecutions might be accommodated by the prosecutor exercising his discretion under article 53(4) of the Rome Statute to halt his investigation on his own accord based on new facts or information. There is no direction in the statute on what new facts of information might form the basis of such a decision, but the initiation of local proceedings could qualify.
What is more, there is no limitation on when such a decision can be taken. Based on the increased push by Kenya to be allowed to deal with the matter itself, O’Campo might use this article to conditionally suspend his investigation on the understanding that Kenya pursues its own investigations and prosecutions. The prosecutor could then monitor the proceedings in Kenya and, if he is not satisfied with them, either resume his investigations or (if necessary) approach the pretrial chamber for a renewed mandate to do so. This would be a unique example of complementarity at work.
Naturally, any decision on complementarity would involve weighing difficult factors. To push ahead with the ICC’s investigation might further alienate Africa at a time when the ICC and the continent are locked in an antagonistic dance. It is also not clear that the ICC will be able to secure Kenya’s future co- operation in any ICC-related investigation. So, too, the prosecutor will have every reason to be cynical of Kenya’s newfound enthusiasm for domestic trials, just as Kenya’s victims of mass atrocities ought to be exhausted by the tired slogan of "African solutions for Africa’s problems". The drafters of the Rome Statute foresaw the risk of such political manoeuvring. They guarded against it by insisting that the complementarity principle may not be abused by a state merely wishing to shield its own from justice. If that was the true domestic motive for invoking complementarity, then the drafters made it clear that the ICC would close the impunity gap and be accorded jurisdiction.
If Kenya’s complementarity request is approved, that success would place a rightfully heavy burden on Kenya — to show the world that its courts and prosecutors are genuinely willing and able to prosecute domestically. Kenya should thus be careful what it wishes for. And if Kenya’s posturing is a political ploy to protect its powerful, then the ICC will remain in the picture — something a large majority of Kenya’s population have all along insisted is a good thing.
Kenya has recently become the epicentre of growing tension between the International Criminal Court (ICC) and Africa. Last month, the ICC prosecutor asked the court’s pretrial chamber to issue summons for six people on the grounds that they committed crimes against humanity in the post-election violence in Kenya in 2007 and 2008 (which claimed more than 1000 lives). The chamber, currently considering the request, authorised the prosecutor’s investigation in March 2009, partly on the basis that, despite indications that it would do so, Kenya had failed to seriously investigate the violence.
Aside from this investigation, Kenya’s relationship with the ICC came into the spotlight after its decision to thumb its nose at the ICC and invite President Omar al-Bashir of Sudan, wanted by the ICC for crimes in Darfur, to the launch of its new constitution last year. The profile of the "O’Campo Six" has inflamed Kenya’s growing anti-ICC sentiment: it includes three senior government officials, one of whom is the son of Jomo Kenyatta, the "father of the nation".
The latest move by prosecutor L uis Moreno O’Campo has thus sent Kenya’s political elite into reactive overdrive. Kenya’s parliament passed a resolution on December 22 calling for Kenya’s withdrawal from the Rome Statute, which founded the ICC. That decision prompted a backlash from civil society in Kenya and beyond. Although the threat of withdrawal remains in the wings, the immediate focus has apparently shifted to using the African Union (AU) summit next week to procure an AU resolution requesting the United Nations (UN) Security Council to defer the proceedings in Kenya under article 16 of the Rome Statute. Although the strategy clearly does not enjoy the support of all parties in Kenya’s coalition government, Kenyan Vice-President Kalonzo Musyoka maintains he has a mandate "as the special envoy of the p resident of the Republic of Kenya".
Internal schisms aside, the deferral strategy has gained momentum over the past week, and reportedly has the support of key countries such as SA, Nigeria and Ethiopia. Surprisingly, the rationale given for the deferral appears to be to allow the Kenyan authorities to deal with the alleged crimes.
This deferral approach should be discouraged. First, it is bad in law. A deferral (under article 16) can be used only if the UN Security Council determines that there is a threat to international peace and security. Not even the most pessimistic assessment of the ICC’s involvement in Kenya could characterise it as such.
Second , it is unlikely to succeed within the security council. And notwithstanding reports of SA’s support for Kenya’s agenda, upon proper reflection, SA should balk at such an expansive reading of the notion of threats to international peace and security. SA’s siding with Kenya is in contrast with Pretoria’s previous attempts to curtail the security council’s "mission creep" — witness SA’s position on Zimbabwe and Burma.
The request is likely to be associated with a now established pattern on the part of African states (who have made the same request in respect of al-Bashir) to seek deferrals in cases in which political elites are implicated. The outright refusal of the security council to accede to the al-Bashir request suggests Kenya’s request faces a similar fate. The danger is that the request is a hopeless political gesture. It is difficult not to conclude that it is designed to fail and increase the divide between the ICC and Africa.
The deferral request conflates two distinct aspects of the ICC: the power given at Rome to the security council to halt proceedings for one year in order to maintain international peace and security, and the principle of complementarity which ensures that the ICC is a court of last resort that intervenes only when national jurisdictions are unwilling or unable to do so. These two processes have differing ends and means, but the request seeks to use the means of article 16 to further the end of complementarity. While it is possible that the two may align, they do not in Kenya’s case.
For supporters of the ICC’s investigation in Kenya the request has thus been rejected out of hand. There are, however, a number of reasons to consider closely Kenya’s reliance on the complementarity principle. More than being a presumption in favour of local prosecutions, the principle of complementarity is at the heart of the ICC’s system. Aside from easing the concerns of states over threats to their sovereignty, the principle serves more noble ends, such as the utility of local prosecutions, and recognises the very real limitations of an ICC with potentially universal jurisdiction.
Therefore, should Kenya genuinely wish to conduct local trials, there are a number of reasons for allowing it to do so. First, it would relieve pressure on an already overburdened ICC. Second, should Kenya be allowed to do so, it would have positive effects for the ICC beyond diluting the mounting tension in Kenya. It would demonstrate to detractors in Africa that the ICC is designed to function only when national legal systems are unwilling or unable to prosecute international crimes. Third, complementarity has never been put to any real work, even though it is designed as an integral part of the Rome System. If the principle is to become effective, it must be taken for a test drive. Kenya presents an opportunity to do so.
Fourth, there is a danger in refusing Kenya the opportunity to exercise its jurisdiction over the crimes under the principle of complementarity. Kenya has one of the best developed judiciaries in Africa. It is also one of the few African states to have domestically implemented the Rome Statute, and the resulting legislation is impressive and progressive. In fact, until recently, Kenya was a model ICC state. If Kenya does not meet the threshold for complementarity, the implication is that neither would the overwhelming majority of other African states, making the principle a dead letter in Africa. This would be a sad reflection on domestic legal systems in Africa, and would embolden those who wish to present the ICC as an imperialistic mechanism on a "civilising mission".
Procedurally speaking, Kenya’s dilatory response to the atrocities means it has already missed chances to halt proceedings on the basis of complementarity. However, complementarity is in substance an continuing assessment. To consider it formalistically — as a static determination reified in time — would allow the ICC to turn a blind eye to positive domestic developments and undermine the principle’s worth.
Presuming there is genuine political will in Kenya to go it at home, Kenya’s newfound vigour for domestic prosecutions might be accommodated by the prosecutor exercising his discretion under article 53(4) of the Rome Statute to halt his investigation on his own accord based on new facts or information. There is no direction in the statute on what new facts of information might form the basis of such a decision, but the initiation of local proceedings could qualify.
What is more, there is no limitation on when such a decision can be taken. Based on the increased push by Kenya to be allowed to deal with the matter itself, O’Campo might use this article to conditionally suspend his investigation on the understanding that Kenya pursues its own investigations and prosecutions. The prosecutor could then monitor the proceedings in Kenya and, if he is not satisfied with them, either resume his investigations or (if necessary) approach the pretrial chamber for a renewed mandate to do so. This would be a unique example of complementarity at work.
Naturally, any decision on complementarity would involve weighing difficult factors. To push ahead with the ICC’s investigation might further alienate Africa at a time when the ICC and the continent are locked in an antagonistic dance. It is also not clear that the ICC will be able to secure Kenya’s future co- operation in any ICC-related investigation. So, too, the prosecutor will have every reason to be cynical of Kenya’s newfound enthusiasm for domestic trials, just as Kenya’s victims of mass atrocities ought to be exhausted by the tired slogan of "African solutions for Africa’s problems". The drafters of the Rome Statute foresaw the risk of such political manoeuvring. They guarded against it by insisting that the complementarity principle may not be abused by a state merely wishing to shield its own from justice. If that was the true domestic motive for invoking complementarity, then the drafters made it clear that the ICC would close the impunity gap and be accorded jurisdiction.
If Kenya’s complementarity request is approved, that success would place a rightfully heavy burden on Kenya — to show the world that its courts and prosecutors are genuinely willing and able to prosecute domestically. Kenya should thus be careful what it wishes for. And if Kenya’s posturing is a political ploy to protect its powerful, then the ICC will remain in the picture — something a large majority of Kenya’s population have all along insisted is a good thing.
Thursday, November 18, 2010
The Legal Aspects of the Referendum
As typically alarmist media reports continue regarding the possibility of a relapse into civil war in Sudan, not much attention has (at least in my reading) focussed on the legal aspects of the upcoming referendum and any conflict that follows. If the referendum, as many expect it will, delivers a result in favour of secession is that the end of the matter from a legal perspective? Further, if there is a resort to armed conflict between the north and south immediately after the referendum would that amount to an international armed conflict or a non-international armed conflict? Given Sudan's current treaty obligations, would that characterization have any material effect?
Monday, November 15, 2010
UN Prepared For Referendum Aftermath
It seems the UN is preparing for the worst when it comes to the upcoming referendum in Southern Sudan. Last month it voiced concerns of a return to war if the outstanding issues (vote eligibility and the North-South Border) were not settled before the January referendum.
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