African Study Group on International Criminal Law

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

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

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



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



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



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



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





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



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

The AU Qadhafi decision: some initial thoughts

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

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

A full exploration of the merits of the controversial supposition that quashing the arrest warrant is necessary in order to preserve the peace process in Libya will be considered in due course, suffice it to make the preliminary points for now:

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

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

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

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

Max and I have written an article for upcoming South African Yearbook of International Law that discusses the developments in the stormy relationship between the ICC and African states in 2010. It follows on from our contribution to last year's SAYIL. The article's introduction is below, the full text is available here.

"In our contribution to these pages last year we suggested 2010 held promise of a rapprochement between the International Criminal Court (ICC or the Court) and African states. The source of our optimism was the ICC’s inaugural Review Conference, taking place in June on the shores of Lake Victoria in Kampala, Uganda. It presented an opportunity for states to “take stock” of the Court’s work and for African states raise their concerns regarding the Court’s structure and operation. There was also the small matter of the crime of aggression, the definition and jurisdictional aspects of which could not be agreed upon in Rome. On this issue we were less optimistic, suggesting that an agreement on aggression in Kampala was “improbable”.

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

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

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

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

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

Naturally, we would appreciate your comments and criticisms.

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

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

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

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