ICC: The Proper Balance between Independence and Oversight

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



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



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



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



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



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



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

Judge Nsereko Lecture: Africa and the ICC

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

Enforcing the African Court's Order on Libya

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

As we noted previously, the Court was introduced in part to address the African Commission's inability to give binding decicions. To this end Article 30 of the Court's Statute states:

"The States parties to the present Protocol undertake to comply with the judgment in any case to which they are parties within the time stipulated by the Court and to guarantee its execution."

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

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

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

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

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

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

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

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

If Libya did not respond to the Court's ruling, and does not intend to, Rule 55 of the Court's Interim Rules might come into effect. In terms of which :

"Whenever a party does not appear before the Court, or fails to defend its case, the Court may, on the application of the other party, pass judgement in default after it has satisfied itself that the defaulting party has been duly served with the application and all other documents pertinent to the proceedings."

If that happens we will once again be in the realm of enforcement measures, but there will be little doubt as to the judgments binding nature.

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

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

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

Background to the Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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

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

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

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

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

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

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

Concluding Remarks

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

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

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

Collateral Damage: Libya, the AU and the ICC

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



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



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

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

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

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



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







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



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