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]
Tuesday, March 1, 2011
Wednesday, February 23, 2011
AU Decision Exposes SA Policy on Security Council ‘Mission Creep’
Critics of South Africa’s foreign policy were given further grist for their mill as news emerged from the recent AU Assembly (held in Addis Ababa from 30-31 January 2011) that the continent’s leaders, including those from South Africa, had agreed to transmit a request to the UN Security Council asking it to defer the International Criminal Court’s (ICC) proceedings in respect of Kenya. Not only does the decision undermine Pretoria’s claim to support the ICC, it also belies South Africa’s expressed commitment to a principled, rule-bound international order. The offer of support further weakens the integrity of South Africa`s ‘mission creep’ refrain with regard to its foreign policy and confirms the view that certain of South Africa’s questionable positions on the Security Council have been cloaked under a veil of ‘principle’.
To start with, the AU’s request to the Security Council is a legal folly. The appeal is the product of a spirited yet fractious week of diplomacy by the Kenyan government, in which several African capitals were lobbied to support a request to the Security Council to halt ICC investigations into post-election violence in Kenya under article 16 of the ICC’s Rome Statute. Article 16 grants the Security Council the power to ‘defer’ an ongoing investigation or prosecution if (crucially) the Security Council determines it is necessary for the maintenance of international peace and security under chapter VII of the UN Charter. The AU has previously called for such a halt in proceedings in respect of the ICC’s investigation into the crimes allegedly committed in Darfur by President Omar al-Bashir of Sudan.
The problem with making the same request for Kenya is that the situation in that country clearly does not meet this threshold. It would be necessary for Kenya to show that the continued involvement of the ICC is a greater threat to international peace and security than suspending the ICC’s work: a standard which is difficult to prove. The politics are in any event transparent. Kenya’s request – coming not when the ICC`s investigation started, but only when powerful political players were announced as suspects – suggests backroom maneuvering to shield these suspects or their allies from the ICC’s reach. In short, the request is legally indefensible, and the politics suspect.
So baseless is this request in law that it is hard not to conclude that it is a political salvo designed to elicit a negative response and thereby further alienate the ICC from Africa. Those who stand to benefit are the powerful: the subjects of the Kenyan investigation and al-Bashir. The losers are the victims of appalling violence in both countries. This alone ought to have been reason for Pretoria – which has stated its commitment both to the ICC and the principles of international law on more than one occasion – to distance itself from the request.
What makes matters worse is that there was a legally palatable alternative (even if the politics remained dubious). That was for Kenya to oust the ICC`s jurisdiction by claiming reliance on the court`s principle of complementarity: Kenya could have contended that it was no longer necessary for the ICC to prosecute those most responsible for the 2007-8 violence because Kenya is willing and able to do the job at home. South Africa could have stressed in the AU that it would support a Kenyan push for domestic prosecutions. Indeed, just before the AU summit the head of the ICC Assembly of States Parties went to Nairobi and asked the Kenyan authorities to approach the ICC directly rather than seek a deferral. There was also the option of approaching the ICC prosecutor to request him to suspend his investigations under article 53(4) of the Rome Statute. None of this was done – which speaks volumes about Kenya’s real willingness to prosecute its own domestically, and about Africa’s commitment to international criminal justice more generally.
South Africa’s position on Kenya has wider negative implications for South Africa’s foreign policy. In the past Pretoria has refused to vote in support of Security Council resolutions condemning Myanmar (Burma). It has defended its stance on the basis of countering the Security Council’s ‘mission creep’, and has done so through Pretoria’s narrow construction of the Security Council’s mandate as not including human rights violations that don’t amount to a threat to international peace and security. Legally, South Africa’s position is based on a strict interpretation of the Security Council’s mandate and the negative effect that such expansive interpretations of the its mandate has on other fledging institutions like the UN Human Rights Council. Further, this position is not unconnected to Pretoria’s continued concern about the unjust composition of the Security Council whose permanent membership still mirrors post-WWII, colonial power relations. Whatever the merits of this principled stance in law, the difficulty is that South Africa’s position has effectively led to the protection of human rights abusing regimes like the one in Burma.
The problem with South Africa’s ‘mission creep’ refrain is that it is, both legally and ethically, predicated on consistency. To the extent that Pretoria adopts a narrow, textual interpretation of the UN Charter and the powers it confers on the Security Council, it cannot credibly support a position which characterises the ICC investigations in Kenya as a threat to international peace and security. What has emerged from the AU summit is that South Africa is willing to blow hot and cold in its foreign policy on the Security Council. In its purported resistance to the Security Council’s mission creep, it proved itself willing to cast the human rights of Burmese victims down the river. Now, in its endorsement of Kenya’s request for a Security Council deferral of the ICC’s investigation, Pretoria seems to have forgotten its ‘principled’ opposition to mission creep. Such forgetfulness comes at a cost: the human rights of Kenya’s victims of post-election violence have been cast down the same river.
[This article appeared in the Institutute for Security Studies' ISS Today on 22 February 2011]
To start with, the AU’s request to the Security Council is a legal folly. The appeal is the product of a spirited yet fractious week of diplomacy by the Kenyan government, in which several African capitals were lobbied to support a request to the Security Council to halt ICC investigations into post-election violence in Kenya under article 16 of the ICC’s Rome Statute. Article 16 grants the Security Council the power to ‘defer’ an ongoing investigation or prosecution if (crucially) the Security Council determines it is necessary for the maintenance of international peace and security under chapter VII of the UN Charter. The AU has previously called for such a halt in proceedings in respect of the ICC’s investigation into the crimes allegedly committed in Darfur by President Omar al-Bashir of Sudan.
The problem with making the same request for Kenya is that the situation in that country clearly does not meet this threshold. It would be necessary for Kenya to show that the continued involvement of the ICC is a greater threat to international peace and security than suspending the ICC’s work: a standard which is difficult to prove. The politics are in any event transparent. Kenya’s request – coming not when the ICC`s investigation started, but only when powerful political players were announced as suspects – suggests backroom maneuvering to shield these suspects or their allies from the ICC’s reach. In short, the request is legally indefensible, and the politics suspect.
So baseless is this request in law that it is hard not to conclude that it is a political salvo designed to elicit a negative response and thereby further alienate the ICC from Africa. Those who stand to benefit are the powerful: the subjects of the Kenyan investigation and al-Bashir. The losers are the victims of appalling violence in both countries. This alone ought to have been reason for Pretoria – which has stated its commitment both to the ICC and the principles of international law on more than one occasion – to distance itself from the request.
What makes matters worse is that there was a legally palatable alternative (even if the politics remained dubious). That was for Kenya to oust the ICC`s jurisdiction by claiming reliance on the court`s principle of complementarity: Kenya could have contended that it was no longer necessary for the ICC to prosecute those most responsible for the 2007-8 violence because Kenya is willing and able to do the job at home. South Africa could have stressed in the AU that it would support a Kenyan push for domestic prosecutions. Indeed, just before the AU summit the head of the ICC Assembly of States Parties went to Nairobi and asked the Kenyan authorities to approach the ICC directly rather than seek a deferral. There was also the option of approaching the ICC prosecutor to request him to suspend his investigations under article 53(4) of the Rome Statute. None of this was done – which speaks volumes about Kenya’s real willingness to prosecute its own domestically, and about Africa’s commitment to international criminal justice more generally.
South Africa’s position on Kenya has wider negative implications for South Africa’s foreign policy. In the past Pretoria has refused to vote in support of Security Council resolutions condemning Myanmar (Burma). It has defended its stance on the basis of countering the Security Council’s ‘mission creep’, and has done so through Pretoria’s narrow construction of the Security Council’s mandate as not including human rights violations that don’t amount to a threat to international peace and security. Legally, South Africa’s position is based on a strict interpretation of the Security Council’s mandate and the negative effect that such expansive interpretations of the its mandate has on other fledging institutions like the UN Human Rights Council. Further, this position is not unconnected to Pretoria’s continued concern about the unjust composition of the Security Council whose permanent membership still mirrors post-WWII, colonial power relations. Whatever the merits of this principled stance in law, the difficulty is that South Africa’s position has effectively led to the protection of human rights abusing regimes like the one in Burma.
The problem with South Africa’s ‘mission creep’ refrain is that it is, both legally and ethically, predicated on consistency. To the extent that Pretoria adopts a narrow, textual interpretation of the UN Charter and the powers it confers on the Security Council, it cannot credibly support a position which characterises the ICC investigations in Kenya as a threat to international peace and security. What has emerged from the AU summit is that South Africa is willing to blow hot and cold in its foreign policy on the Security Council. In its purported resistance to the Security Council’s mission creep, it proved itself willing to cast the human rights of Burmese victims down the river. Now, in its endorsement of Kenya’s request for a Security Council deferral of the ICC’s investigation, Pretoria seems to have forgotten its ‘principled’ opposition to mission creep. Such forgetfulness comes at a cost: the human rights of Kenya’s victims of post-election violence have been cast down the same river.
[This article appeared in the Institutute for Security Studies' ISS Today on 22 February 2011]
Tuesday, February 22, 2011
Congo provides justice without theatrics
[Nicole Fritz is director of the Southern Africa Litigation Centre. She kindly agreed to let us post the following piece which first appeared as an op-ed in the Business Day on 22 February 2011]
The world of international criminal justice has offered lots of theatrics in recent weeks. Courtenay Griffiths, lead defence counsel for Charles Taylor on trial in The Hague before the Special Court for Sierra Leone, stormed out of court, refusing to reappear. His client took the opportunity to excuse himself too. Then there was the International Criminal Court’s (ICC’s) prosecutor, Luis Moreno Ocampo, never one for understatement, intoning: "The world needs legal limits. We need a platform to live together. That is the International Criminal Court." The African Union Commission’s chairman Jean Ping, equally adept at the rhetorical flourish, opined: "Frankly speaking, we are not against the International Criminal Court. What we are against is Ocampo’s justice — the justice of a man."
The disinterested observer might conclude that with all these egos in play, and with so many elevated platforms to play on, the world of international criminal justice probably has little room for justice. But there was another development last week — far less noted — which speaks to what international criminal justice, absent the big egos, might yield. Eleven soldiers from the Democratic Republic of Congo went on trial, accused of raping more than 60 women on New Year’s Day. in the town of Fizi in South Kivu province.
The accused have not only been charged with rape and imprisonment but, given the systematic nature of the crimes, have also been charged with crimes against humanity. What’s noteworthy here is that these trials are not being heard far from the affected communities — as is the case with Taylor’s trial or any of the cases likely to be heard by the ICC. Rather, they are being heard before an innovative mobile gender court in Fizi’s neighbouring town of Baraka. Nor, as so often happens with crimes of this kind, have these cases taken years to come to trial. It has taken less than two months since the crimes were committed for the trials to commence. It isn’t merely low-level officers being prosecuted, which might suggest this type of innovative prosecution procedure is suitable for less powerful actors but that higher-level authorities still need to command the type of expensive trials reserved for Taylor or Slobodan Milosevic. Among the soldiers prosecuted is commanding officer Lt. Col Mutware Kibibi. The attack on the population of Fizi is said to be the largest single atrocity involving the government’s army.
Quite apart from the innovative mobile gender court, it is the Congolese government’s co-operation in the process — aimed at holding its own troops to account — that makes these trials so remarkable. Typically, government actors, when accused of grave human rights violations, use state machinery not to secure accountability but to avoid it. It is why international criminal justice often happens only outside the country where the crimes were committed. In this instance, in the arrest and prosecution of Kibibi, the Congo’s government is making good on its promise of a "zero tolerance policy will be enforced on the spot in Fizi".
Several factors help explain the Congolese government’s stance. Chief among them is the fact that the Congo has attracted international approbation for its reputation as the "rape capital" of the world and that it can’t look to international assistance in countering vicious attacks on its civilian population by several different militia groups when its own army engages in similar atrocities. But it would also be hard to paint the efforts of the mobile gender court as alien to the interests of the Congo’s population, as a number of African leaders have tried to do of, by contrast, the efforts of the ICC. Since its start in October 2009, the Congo’s mobile gender court has conducted about 10 trials a month and has secured 94 rape convictions. It has also trained 150 judicial police officers, 80 lawyers and 30 magistrates. As the mobile gender court is integrated in the Congo’s justice system, the skills and resources invested by outside donors not only secure convictions and accountability but point the way to a fully functioning, comprehensive domestic judicial system for the Congo.
The mobile gender court also points the way to enhanced delivery of international criminal justice, which is almost always preferably secured, if properly done, before local courts and affected local communities — very, very far from the grandstanding of Griffiths, Ocampo and Ping.
The world of international criminal justice has offered lots of theatrics in recent weeks. Courtenay Griffiths, lead defence counsel for Charles Taylor on trial in The Hague before the Special Court for Sierra Leone, stormed out of court, refusing to reappear. His client took the opportunity to excuse himself too. Then there was the International Criminal Court’s (ICC’s) prosecutor, Luis Moreno Ocampo, never one for understatement, intoning: "The world needs legal limits. We need a platform to live together. That is the International Criminal Court." The African Union Commission’s chairman Jean Ping, equally adept at the rhetorical flourish, opined: "Frankly speaking, we are not against the International Criminal Court. What we are against is Ocampo’s justice — the justice of a man."
The disinterested observer might conclude that with all these egos in play, and with so many elevated platforms to play on, the world of international criminal justice probably has little room for justice. But there was another development last week — far less noted — which speaks to what international criminal justice, absent the big egos, might yield. Eleven soldiers from the Democratic Republic of Congo went on trial, accused of raping more than 60 women on New Year’s Day. in the town of Fizi in South Kivu province.
The accused have not only been charged with rape and imprisonment but, given the systematic nature of the crimes, have also been charged with crimes against humanity. What’s noteworthy here is that these trials are not being heard far from the affected communities — as is the case with Taylor’s trial or any of the cases likely to be heard by the ICC. Rather, they are being heard before an innovative mobile gender court in Fizi’s neighbouring town of Baraka. Nor, as so often happens with crimes of this kind, have these cases taken years to come to trial. It has taken less than two months since the crimes were committed for the trials to commence. It isn’t merely low-level officers being prosecuted, which might suggest this type of innovative prosecution procedure is suitable for less powerful actors but that higher-level authorities still need to command the type of expensive trials reserved for Taylor or Slobodan Milosevic. Among the soldiers prosecuted is commanding officer Lt. Col Mutware Kibibi. The attack on the population of Fizi is said to be the largest single atrocity involving the government’s army.
Quite apart from the innovative mobile gender court, it is the Congolese government’s co-operation in the process — aimed at holding its own troops to account — that makes these trials so remarkable. Typically, government actors, when accused of grave human rights violations, use state machinery not to secure accountability but to avoid it. It is why international criminal justice often happens only outside the country where the crimes were committed. In this instance, in the arrest and prosecution of Kibibi, the Congo’s government is making good on its promise of a "zero tolerance policy will be enforced on the spot in Fizi".
Several factors help explain the Congolese government’s stance. Chief among them is the fact that the Congo has attracted international approbation for its reputation as the "rape capital" of the world and that it can’t look to international assistance in countering vicious attacks on its civilian population by several different militia groups when its own army engages in similar atrocities. But it would also be hard to paint the efforts of the mobile gender court as alien to the interests of the Congo’s population, as a number of African leaders have tried to do of, by contrast, the efforts of the ICC. Since its start in October 2009, the Congo’s mobile gender court has conducted about 10 trials a month and has secured 94 rape convictions. It has also trained 150 judicial police officers, 80 lawyers and 30 magistrates. As the mobile gender court is integrated in the Congo’s justice system, the skills and resources invested by outside donors not only secure convictions and accountability but point the way to a fully functioning, comprehensive domestic judicial system for the Congo.
The mobile gender court also points the way to enhanced delivery of international criminal justice, which is almost always preferably secured, if properly done, before local courts and affected local communities — very, very far from the grandstanding of Griffiths, Ocampo and Ping.
Thursday, February 17, 2011
Kenya’s ICC Deferral Request and the proposed amendment to article 16 of the Rome Statute
According to media reports the Kenyan government is redoubling its misguided efforts to persuade the UN Security Council to suspend the ICC Prosecutor’s investigation into the 2008 post-electoral violence. As we have noted before, the request is fundamentally flawed. Not only does it misinterpret both the Rome Statute and the UN Charter through its expanded construction of the Security Council’s Chapter VII authority, more fundamentally, it conflates the principle of complementarity and the realpolitik exception in article 16 that allows international peace and security to temporarily suspend the pursuit of justice. Not only does this weaken the former in principle, more practically it means that any respite Kenya receives from the Security Council (a highly unlikely prospect) will be temporary – article 16 requires the annual renewal of any deferral – whereas the proper exercise of complementarity would offer a permanent solution to Kenya’s concerns (on the assumption that it is truly willing and able to prosecute the offenders domestically).
Therefore, should Kenya genuinely wish to go it alone its only real option is to find another avenue under the Rome Statute to halt ongoing proceedings at the ICC on the basis of the proper exercise of complementarity. We have suggested article 53(4) is one such avenue. Kenya would be well-advised to pursue this option as, regardless of the legal merits thereof, its deferral request appears certain to fail politically as both the United States and the United Kingdom have publicly stated that they will veto such a request.
If Kenya continues along this ill-advised path two things appear certain: First, the relationship between the ICC and African states will continue to deteriorate, with the few voices of reason within the AU becoming increasingly isolated. Second, and by relation, the African States Parties’ proposed amendment to article 16 – that would give the UN General Assembly the authority to defer an investigation should the Security Council ‘fail to act’ on such a request – will gain momentum. The amendment proposal, which was effectively disowned by African States Parties when South Africa officially proposed it at the ASP in November 2009 and has since been consigned to the new Special Working Group on Amendments within the ICC’s Assembly of States Parties, was once again endorsed at the recent AU Heads of State Summit in late January. In this regard the AU Assembly:
“[Noted] the Decision of the Ninth ASP-ICC to hold informal consultations on the proposed amendments to the Rome Statute in the context of a Working Group before its Tenth Session scheduled in December 2011 and [called upon] all African States Parties to the Rome Statute of the ICC that have not yet done so to co-sponsor the proposal for the amendment to Article 16 of the Rome Statute and indicate such willingness to the UN Secretary General, the Depositary of the Rome Statute, with copy to the AU Commission...”
Further, the Decision:
“[Underscored] the need for African States Parties to the Rome Statute of the ICC to speak with one voice during the forthcoming negotiations at the level of the New York and The Hague Working Groups respectively and [requested] the Group of African States Parties in New York to ensure that the proposal for amendment to Article 16 of the Rome Statute is properly addressed during the forthcoming negotiations and to report to the Assembly through the Commission.”
As we have previously noted in our article "Making amend(ment)s: South Africa and the International Criminal Court from 2009 to 2010" (34 South African Yearbook of International Law 2009 1), Africa’s proposed article 16 amendment must overcome a number of legal hurdles if it is to be adopted. These are in addition to the mammoth task of securing the political support for an amendment that not only tinkers with one of the most finely balanced compromises reached at Rome in 1998 but (in its current form) also implicates the relationship between the General Assembly and the Security Council insofar as the maintenance of international peace and security is concerned. That said, these legal hurdles are not insurmountable. And, if faced with mass exodus of African states and the resultant collapse of most if not all of its current proceedings, the ICC Assembly of States Parties might be forced to make some uncomfortable political compromises that include some form of residual deferral power for the General Assembly, or perhaps even itself.
Therefore, should Kenya genuinely wish to go it alone its only real option is to find another avenue under the Rome Statute to halt ongoing proceedings at the ICC on the basis of the proper exercise of complementarity. We have suggested article 53(4) is one such avenue. Kenya would be well-advised to pursue this option as, regardless of the legal merits thereof, its deferral request appears certain to fail politically as both the United States and the United Kingdom have publicly stated that they will veto such a request.
If Kenya continues along this ill-advised path two things appear certain: First, the relationship between the ICC and African states will continue to deteriorate, with the few voices of reason within the AU becoming increasingly isolated. Second, and by relation, the African States Parties’ proposed amendment to article 16 – that would give the UN General Assembly the authority to defer an investigation should the Security Council ‘fail to act’ on such a request – will gain momentum. The amendment proposal, which was effectively disowned by African States Parties when South Africa officially proposed it at the ASP in November 2009 and has since been consigned to the new Special Working Group on Amendments within the ICC’s Assembly of States Parties, was once again endorsed at the recent AU Heads of State Summit in late January. In this regard the AU Assembly:
“[Noted] the Decision of the Ninth ASP-ICC to hold informal consultations on the proposed amendments to the Rome Statute in the context of a Working Group before its Tenth Session scheduled in December 2011 and [called upon] all African States Parties to the Rome Statute of the ICC that have not yet done so to co-sponsor the proposal for the amendment to Article 16 of the Rome Statute and indicate such willingness to the UN Secretary General, the Depositary of the Rome Statute, with copy to the AU Commission...”
Further, the Decision:
“[Underscored] the need for African States Parties to the Rome Statute of the ICC to speak with one voice during the forthcoming negotiations at the level of the New York and The Hague Working Groups respectively and [requested] the Group of African States Parties in New York to ensure that the proposal for amendment to Article 16 of the Rome Statute is properly addressed during the forthcoming negotiations and to report to the Assembly through the Commission.”
As we have previously noted in our article "Making amend(ment)s: South Africa and the International Criminal Court from 2009 to 2010" (34 South African Yearbook of International Law 2009 1), Africa’s proposed article 16 amendment must overcome a number of legal hurdles if it is to be adopted. These are in addition to the mammoth task of securing the political support for an amendment that not only tinkers with one of the most finely balanced compromises reached at Rome in 1998 but (in its current form) also implicates the relationship between the General Assembly and the Security Council insofar as the maintenance of international peace and security is concerned. That said, these legal hurdles are not insurmountable. And, if faced with mass exodus of African states and the resultant collapse of most if not all of its current proceedings, the ICC Assembly of States Parties might be forced to make some uncomfortable political compromises that include some form of residual deferral power for the General Assembly, or perhaps even itself.
Monday, February 14, 2011
ICC Pre-Trial Chamber rebukes Prosecutor
On Friday the ICC's Pre-Trial Chamber (PTC) issued its decision on an application by Mohammed Hussein Ali - one of the so-called Ocampo Six for whom the Prosecutor has sought a summons to appear in pursuance of his investigation into Kenyan post-electoral violence. The application sought the PTC's permission to "participate fully" in the proceedings relating to the Prosecutor's request for summonses to be issued under article 58(7) of the Rome Statute.
Not surprisingly the PTC denied the application on the same basis that it did a previous "amicus curiae" request by another one of the Ocampo Six to make representations to the PTC regarding the Prosecutor's article 58(7) request, namely that under the Rome Statute article 58 proceedings are done ex parte, with the "exclusive participation of the Prosecutor".
No surprises there. What is interesting about the PTC's decision is it's rebuke of Prosecutor Ocampo for his (very) public announcement of the persons he was seeking summons for last December. In dismissing the applicant's argument that on the basis of the negative publicity he has been exposed to as a result of the Prosector's public request he should be allowed to participate in the proceedings at this stage, the Court noted:
"While it is not the Chamber's role to comment and advise the Prosecutor on his interaction with the press and media, the Chamber nevertheless is concerned if his actions have the potential to affect the administration of justice and the integrity of the present proceedings before the Chamber. In this respect, the Chamber expresses its deprecation regarding the Prosecutor's course of action in the present case, as it has unduly exposed the applicant to prejudicial publicity before a determination of the Chamber pursuant to Article 58 of the Statute has even been made."
Mr Ocampo has courted controversy in the past, not only for his prosecutorial strategy and choices, but also his handling of the media. Some criticism is probably unavoidable given his high profile position and the attendant responsibility, and Mr Ocampo has proved himself to have a thick skin. While Mr Ocampo's term of office is soon due to end soon, this criticism by the PTC of the work of the Prosecutor should give his successor some pause for thought ...
Not surprisingly the PTC denied the application on the same basis that it did a previous "amicus curiae" request by another one of the Ocampo Six to make representations to the PTC regarding the Prosecutor's article 58(7) request, namely that under the Rome Statute article 58 proceedings are done ex parte, with the "exclusive participation of the Prosecutor".
No surprises there. What is interesting about the PTC's decision is it's rebuke of Prosecutor Ocampo for his (very) public announcement of the persons he was seeking summons for last December. In dismissing the applicant's argument that on the basis of the negative publicity he has been exposed to as a result of the Prosector's public request he should be allowed to participate in the proceedings at this stage, the Court noted:
"While it is not the Chamber's role to comment and advise the Prosecutor on his interaction with the press and media, the Chamber nevertheless is concerned if his actions have the potential to affect the administration of justice and the integrity of the present proceedings before the Chamber. In this respect, the Chamber expresses its deprecation regarding the Prosecutor's course of action in the present case, as it has unduly exposed the applicant to prejudicial publicity before a determination of the Chamber pursuant to Article 58 of the Statute has even been made."
Mr Ocampo has courted controversy in the past, not only for his prosecutorial strategy and choices, but also his handling of the media. Some criticism is probably unavoidable given his high profile position and the attendant responsibility, and Mr Ocampo has proved himself to have a thick skin. While Mr Ocampo's term of office is soon due to end soon, this criticism by the PTC of the work of the Prosecutor should give his successor some pause for thought ...
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