[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.
Friday, January 28, 2011
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.
Friday, April 16, 2010
Freedom of Expression: A Few Limitations are the price of Reconciliation in SA
[Co-authored with Prof. Max du Plessis. Appeared in the Business Day on 15 April 2010. A digression in terms of topic but an interesting one]
The term “hate speech” has been used with varying degrees of accuracy of late, most prominently in reference to the singing of a song by African National Congress (ANC) Youth League president Julius Malema with the refrain, “dubula ibhunu” (shoot the boers).
Less auspiciously, it was used by ANC secretary-general Gwede Mantashe to incorrectly characterise the Freedom Front’s “prosecute Malema” campaign. The former claim has some purchase and merits further consideration; the latter does not. All in all, the claims about hate speech have generated plenty of heat and little light. And sadly, the ANC and President Jacob Zuma, instead of exercising strong leadership to quell the current crisis, have burdened the courts with the task of sorting out political controversies.
Despite its misuse in popular political discourse, hate speech has a defined legal meaning. It is the advocacy of hatred based on race, ethnicity, gender or religion in a manner that constitutes incitement to cause harm. In effect, the prohibition on hate speech curtails the right to freedom of expression guaranteed in section 16 of the constitution.
In any given case, whether some utterance or action amounts to hate speech will depend on the content and context. Before the question of the singing of that struggle song is adjudicated on by the courts, there will no doubt be debate about whether it crossed the line between free speech and hate speech. There is, however, a significant contribution missing from this debate: the decision of the appeals committee of the South African Human Rights Commission in 2003 on the “kill the farmer, kill the boer” slogan. While the two phrases differ, the commission’s decision speaks directly to the phrase “kill the boer”, and the context in which the two utterances were made are broadly similar. The commission’s finding is particularly relevant in the light of tentative defences raised in the current controversy and its high court rulings. The commission’s 2003 ruling, penned by then commissioner Karthy Govender, is illuminating. It arose from a Freedom Front complaint lodged with the commission after “kill the farmer, kill the boer” was chanted at an ANC Youth League meeting and the funeral of ANC veteran Peter Mokaba. The Freedom Front requested a declaratory order that using the slogan in the circumstances amounted to hate speech. Notably, the ANC tried to distance itself from the utterances, saying the slogan “has never been, cannot and will never be a slogan of the ANC”. It also declared there was no evidence that ANC members at these events endorsed the phrase, and suggested that the ANC could not be held responsible for everything said at public events held under its auspices.
The commission made a number of findings that cast light on the current debate. It found the phrase “kill the boer” amounted to advocacy of hatred on the basis of race or ethnicity. That is significant, particularly when regard is had to the claims by those that the “boer” reference is nothing personal, but rather a reference to the apartheid system. However, the commission’s most important findings, then and now, relate to the second aspect of the hate speech inquiry: incitement to cause harm.
The Freedom Front tried to link the slogan to the high incidence of farm killings to fulfil the harm criterion. The commission, however, found that the harm need not be physical or actual harm, but could include “psychological, emotional and other harm”, such as the adverse effect of an utterance on a group’s dignity. It cautioned, however, that such harm must be “serious and significant” for the slogan to amount to hate speech. Importantly, the commission stressed that the inquiry was not about the subjective intention of the individual who chanted the words, but whether objectively the utterance was reasonably likely to cause harm. Accordingly, the commission found “the slogan, given its content, its history and the context in which it was chanted, would harm the sense of wellbeing, contribute directly to a feeling of marginalisation, and adversely affect the dignity of Afrikaners”. Furthermore, it “says to them that they are still the enemy of the majority of the people of this country” and are “less deserving of respect and dignity”. Through this broad construction of harm, the commission found that the “kill the boer” chant constituted incitement to cause harm and amounted to hate speech.
The commission’s construction of hate speech, if correct, signals difficulties for Malema and his supporters. By adopting a substantive concept of harm and, importantly, focusing not on whether the person making the statements intends to cause harm by utterances, but objectively whether such utterances are likely to cause harm, the commission pre-empted many of the defences raised in justification of the song. As the commission held, it is not necessary to link the song to farm attacks, or other physical harm to befall the Afrikaner people. It is the objective focus on the effect of the utterance on the target group’s dignity that made the decision so remarkable in 2003, and so relevant today. If that effect was, in 2003, to cause harm sufficient to register as hate speech, then today an objective assessment seems to present the same answer.
What of the argument that to ban singing of that song would amount to historical revisionism, an act of ignoring the country’s history at our peril? First, the argument is overblown. To declare that song, or part of it, to be hate speech in certain conditions does not eviscerate our history. There would be no effect on the pantheon of struggle songs; it is only one phrase in one song that, in the words of the commission, “accentuates the chasms that were fostered before 1994 and which threatened to tear this society apart”. No such argument was made when the commission declared “kill the boer” to be hate speech in 2003. Also, the welcome attempt by the ANC to distance itself from the use of the slogan, calls into question the authenticity of its current jeremiads.
One might argue that singing of struggle songs, as a celebration or signifier of history, is worthy of protection. Generally, infringing a right under our constitution has to be justified under its limitation clause. It is through this process that utilitarian arguments can be brought into the analysis, such as whether a limitation is “reasonable and justifiable in an open and democratic society”. But, legally, section 16’s construction does not allow for any such balancing act on hate speech; it is unique in this regard. A finding that an utterance is hate speech is the end of the matter; presumably, because the constitution’s drafters accepted the risk presented by hate speech in a country like ours. For some, this result may appear counter- majoritarian, or undemocratic; if the majority’s urge is to sing the song, then all others, even minorities who feel threatened by the chorus, should sit quietly by. Ruminations of this nature have already surfaced in the political debate. Similarly, some academics have concluded that, on this basis, a finding that the utterances constitute hate speech will be bad for both the judiciary and democracy as a whole. However, such a judicial outcome would quite simply be the price of a living in a special type of democracy, one in which the government and all its people are bound jointly to a constitution founded in the mature spirit of reconciliation. No juvenile revisionism or odious race baiting should be allowed to distract SA from that.
The term “hate speech” has been used with varying degrees of accuracy of late, most prominently in reference to the singing of a song by African National Congress (ANC) Youth League president Julius Malema with the refrain, “dubula ibhunu” (shoot the boers).
Less auspiciously, it was used by ANC secretary-general Gwede Mantashe to incorrectly characterise the Freedom Front’s “prosecute Malema” campaign. The former claim has some purchase and merits further consideration; the latter does not. All in all, the claims about hate speech have generated plenty of heat and little light. And sadly, the ANC and President Jacob Zuma, instead of exercising strong leadership to quell the current crisis, have burdened the courts with the task of sorting out political controversies.
Despite its misuse in popular political discourse, hate speech has a defined legal meaning. It is the advocacy of hatred based on race, ethnicity, gender or religion in a manner that constitutes incitement to cause harm. In effect, the prohibition on hate speech curtails the right to freedom of expression guaranteed in section 16 of the constitution.
In any given case, whether some utterance or action amounts to hate speech will depend on the content and context. Before the question of the singing of that struggle song is adjudicated on by the courts, there will no doubt be debate about whether it crossed the line between free speech and hate speech. There is, however, a significant contribution missing from this debate: the decision of the appeals committee of the South African Human Rights Commission in 2003 on the “kill the farmer, kill the boer” slogan. While the two phrases differ, the commission’s decision speaks directly to the phrase “kill the boer”, and the context in which the two utterances were made are broadly similar. The commission’s finding is particularly relevant in the light of tentative defences raised in the current controversy and its high court rulings. The commission’s 2003 ruling, penned by then commissioner Karthy Govender, is illuminating. It arose from a Freedom Front complaint lodged with the commission after “kill the farmer, kill the boer” was chanted at an ANC Youth League meeting and the funeral of ANC veteran Peter Mokaba. The Freedom Front requested a declaratory order that using the slogan in the circumstances amounted to hate speech. Notably, the ANC tried to distance itself from the utterances, saying the slogan “has never been, cannot and will never be a slogan of the ANC”. It also declared there was no evidence that ANC members at these events endorsed the phrase, and suggested that the ANC could not be held responsible for everything said at public events held under its auspices.
The commission made a number of findings that cast light on the current debate. It found the phrase “kill the boer” amounted to advocacy of hatred on the basis of race or ethnicity. That is significant, particularly when regard is had to the claims by those that the “boer” reference is nothing personal, but rather a reference to the apartheid system. However, the commission’s most important findings, then and now, relate to the second aspect of the hate speech inquiry: incitement to cause harm.
The Freedom Front tried to link the slogan to the high incidence of farm killings to fulfil the harm criterion. The commission, however, found that the harm need not be physical or actual harm, but could include “psychological, emotional and other harm”, such as the adverse effect of an utterance on a group’s dignity. It cautioned, however, that such harm must be “serious and significant” for the slogan to amount to hate speech. Importantly, the commission stressed that the inquiry was not about the subjective intention of the individual who chanted the words, but whether objectively the utterance was reasonably likely to cause harm. Accordingly, the commission found “the slogan, given its content, its history and the context in which it was chanted, would harm the sense of wellbeing, contribute directly to a feeling of marginalisation, and adversely affect the dignity of Afrikaners”. Furthermore, it “says to them that they are still the enemy of the majority of the people of this country” and are “less deserving of respect and dignity”. Through this broad construction of harm, the commission found that the “kill the boer” chant constituted incitement to cause harm and amounted to hate speech.
The commission’s construction of hate speech, if correct, signals difficulties for Malema and his supporters. By adopting a substantive concept of harm and, importantly, focusing not on whether the person making the statements intends to cause harm by utterances, but objectively whether such utterances are likely to cause harm, the commission pre-empted many of the defences raised in justification of the song. As the commission held, it is not necessary to link the song to farm attacks, or other physical harm to befall the Afrikaner people. It is the objective focus on the effect of the utterance on the target group’s dignity that made the decision so remarkable in 2003, and so relevant today. If that effect was, in 2003, to cause harm sufficient to register as hate speech, then today an objective assessment seems to present the same answer.
What of the argument that to ban singing of that song would amount to historical revisionism, an act of ignoring the country’s history at our peril? First, the argument is overblown. To declare that song, or part of it, to be hate speech in certain conditions does not eviscerate our history. There would be no effect on the pantheon of struggle songs; it is only one phrase in one song that, in the words of the commission, “accentuates the chasms that were fostered before 1994 and which threatened to tear this society apart”. No such argument was made when the commission declared “kill the boer” to be hate speech in 2003. Also, the welcome attempt by the ANC to distance itself from the use of the slogan, calls into question the authenticity of its current jeremiads.
One might argue that singing of struggle songs, as a celebration or signifier of history, is worthy of protection. Generally, infringing a right under our constitution has to be justified under its limitation clause. It is through this process that utilitarian arguments can be brought into the analysis, such as whether a limitation is “reasonable and justifiable in an open and democratic society”. But, legally, section 16’s construction does not allow for any such balancing act on hate speech; it is unique in this regard. A finding that an utterance is hate speech is the end of the matter; presumably, because the constitution’s drafters accepted the risk presented by hate speech in a country like ours. For some, this result may appear counter- majoritarian, or undemocratic; if the majority’s urge is to sing the song, then all others, even minorities who feel threatened by the chorus, should sit quietly by. Ruminations of this nature have already surfaced in the political debate. Similarly, some academics have concluded that, on this basis, a finding that the utterances constitute hate speech will be bad for both the judiciary and democracy as a whole. However, such a judicial outcome would quite simply be the price of a living in a special type of democracy, one in which the government and all its people are bound jointly to a constitution founded in the mature spirit of reconciliation. No juvenile revisionism or odious race baiting should be allowed to distract SA from that.
Africa Must Lead on the Development of the Crime of Aggression
[Co-authored with Anton du Plessis, Head: International Crime in Africa Programme at the Institute for Security Studies. Appeared in ISS Today, 8 March 2010]
The first ten-year Review Conference of the International Criminal Court (ICC) will take place from 31 May – 11 June 2010 in Kampala, Uganda. Most states parties will be satisfied with the progress made by the Court since the adoption of its founding treaty, the Rome Statute, back in 1998. Supporters will be pleased that 110 countries have signed up to the ICC, that it is fully operational, and that it is actively investigating cases in five countries.
There have, however, been significant challenges along the way. For Africa, one of the lesser-known challenges relates to the limited progress that has been made on defining thecrime of aggression and agreeing on the process through which the ICC gains jurisdiction over the crime. States parties are now faced with the task of coming up with a workable way forward on this issue at the Review Conference.
The drafters of the Rome Statute gave the ICC jurisdiction over crimes against humanity, genocide, and war crimes. They also intended the Court to be given jurisdiction over the crime of aggression; however, at that time, the drafters could not agree on a legal definition of the crime. So although the crime of aggression was written into the statute in 1998, the Court’s jurisdiction will remain non-operational until agreement is reached on the definition.
Due to the complexity involved in legally defining aggression, a Special Working Group on the Crime of Aggression (SWGCA) was established in 2002 to work on a definition and submit its proposals for the Review Conference. The purpose behind prosecuting crimes of aggression is to hold accountable those individuals who instigate and engage in unjustified armed conflicts between states. The legal definition involves two parts: the elements that define when a crime of aggression has been committed, and the circumstances which give the ICC jurisdiction over the crime. In short: a ‘crime of aggression’ means the planning, preparation, initiation or execution of the use of armed force when not acting in authorised self-defence. The crime must be conducted by a person in a position to direct the actions of a sovereign state`s political or military branches. And the crime must be targeted against another sovereign nation.
The failure of the representatives at the Rome Conference in 1998 to agree on the definition of the crime of aggression was the result of both definitional and jurisdictional controversies. Certainly the most contentious hurdle was the role of the UN Security Council in triggering the ICC’s jurisdiction, in other words bringing crimes of aggression before the Court. Some states wanted to uphold the inherent power of the UN Security Council to decide whether an act of aggression should be prosecuted. Others, most notably countries from the developing south, wanted a greater say for the UN General Assembly and International Court of Justice.
These debates, which relate to the uneven nature of international criminal justice, remain heated, and resonate elsewhere too. Recently much debate has centred around the power of the UN Security Council to refer cases to ICC under article 13 of the Rome Statute. The Security Council also has the power, under article 16, to defer ICC cases for a period of 12 months – and the African Union has vocally called for the ICC’s case against President al-Bashir of Sudan to be deferred. For many African countries, the skewed institutional power of the UN Security Council creates an environment in which it is more likely that action will be taken against suspects from weaker states than those from powerful states, or those protected by powerful states. For example, the perception in Africa is that by referring the Darfur situation in Sudan to the ICC but not acting in relation to, for instance, Israel’s assault on Gaza, the UN Security Council is guilty of double standards. The same considerations are obviously at play in relation to the crime of aggression and any proposals aiming to give the UN Security Council exclusive authority to trigger the ICC’s jurisdiction over the crime.
African states are accordingly looking to use the upcoming Review Conference to voice their concerns regarding the Court’s structure and operation within this uneven geo-political landscape. In that regard it is not coincidental that the most contentious aspect of the crime of aggression (the role of the UN Security Council in triggering the Court’s jurisdiction) is co-extensive with many of the issues raised by African states in the context of the arrest warrant for al-Bashir. Second, and in a related manner, the issue of aggression touches on the question of the characterisation (as legal or illegal) of a particular use of force, which could potentially have serious consequences for the continent’s nascent regional security architecture, particularly insofar as humanitarian intervention is concerned.
It has surprised few then that at their last Ministerial Meeting in November 2009, African states parties rejected the structuring of aggression in a manner that grants the UN Security Council exclusive authority to trigger prosecutions. The continuity between this position on the crime of aggression and the controversial article 16 amendment which aims to trim to exclusive power of the UN Security Council to defer ICC cases (endorsed by African States Parties at the same meeting) is self-evident. Both seek to displace (or prevent) the Security Council’s hegemony in respect of the Court’s pursuit of international justice: one by providing a residual power to defer proceedings to the General Assembly, the other by preventing further power being given to the Council in respect of initiating prosecutions. More broadly, both share a common motif that challenges the asymmetrical nature of the international criminal justice order. Given this correlation, to the extent that African states might be able to force compromise on either issue, it would be tactically advantageous to capitalise on this inter-play.
Aside from concerns about the inequality of international criminal justice, African states have reason to fear that a Security Council-dominated prosecution regime for aggression has the potential to undermine the regional security architecture developed since the AU’s inception. This architecture, which boldly asserts a degree of autonomy in regional security issues, indirectly challenges the dominion granted by the UN Charter to the Council in respect of forcible interventions.
There is accordingly much at stake. Africa should be encouraged to take a bold, yet constructive, role in shaping the policy and practice of the Court in relation to these contentious, and developing areas of international criminal justice.
The first ten-year Review Conference of the International Criminal Court (ICC) will take place from 31 May – 11 June 2010 in Kampala, Uganda. Most states parties will be satisfied with the progress made by the Court since the adoption of its founding treaty, the Rome Statute, back in 1998. Supporters will be pleased that 110 countries have signed up to the ICC, that it is fully operational, and that it is actively investigating cases in five countries.
There have, however, been significant challenges along the way. For Africa, one of the lesser-known challenges relates to the limited progress that has been made on defining thecrime of aggression and agreeing on the process through which the ICC gains jurisdiction over the crime. States parties are now faced with the task of coming up with a workable way forward on this issue at the Review Conference.
The drafters of the Rome Statute gave the ICC jurisdiction over crimes against humanity, genocide, and war crimes. They also intended the Court to be given jurisdiction over the crime of aggression; however, at that time, the drafters could not agree on a legal definition of the crime. So although the crime of aggression was written into the statute in 1998, the Court’s jurisdiction will remain non-operational until agreement is reached on the definition.
Due to the complexity involved in legally defining aggression, a Special Working Group on the Crime of Aggression (SWGCA) was established in 2002 to work on a definition and submit its proposals for the Review Conference. The purpose behind prosecuting crimes of aggression is to hold accountable those individuals who instigate and engage in unjustified armed conflicts between states. The legal definition involves two parts: the elements that define when a crime of aggression has been committed, and the circumstances which give the ICC jurisdiction over the crime. In short: a ‘crime of aggression’ means the planning, preparation, initiation or execution of the use of armed force when not acting in authorised self-defence. The crime must be conducted by a person in a position to direct the actions of a sovereign state`s political or military branches. And the crime must be targeted against another sovereign nation.
The failure of the representatives at the Rome Conference in 1998 to agree on the definition of the crime of aggression was the result of both definitional and jurisdictional controversies. Certainly the most contentious hurdle was the role of the UN Security Council in triggering the ICC’s jurisdiction, in other words bringing crimes of aggression before the Court. Some states wanted to uphold the inherent power of the UN Security Council to decide whether an act of aggression should be prosecuted. Others, most notably countries from the developing south, wanted a greater say for the UN General Assembly and International Court of Justice.
These debates, which relate to the uneven nature of international criminal justice, remain heated, and resonate elsewhere too. Recently much debate has centred around the power of the UN Security Council to refer cases to ICC under article 13 of the Rome Statute. The Security Council also has the power, under article 16, to defer ICC cases for a period of 12 months – and the African Union has vocally called for the ICC’s case against President al-Bashir of Sudan to be deferred. For many African countries, the skewed institutional power of the UN Security Council creates an environment in which it is more likely that action will be taken against suspects from weaker states than those from powerful states, or those protected by powerful states. For example, the perception in Africa is that by referring the Darfur situation in Sudan to the ICC but not acting in relation to, for instance, Israel’s assault on Gaza, the UN Security Council is guilty of double standards. The same considerations are obviously at play in relation to the crime of aggression and any proposals aiming to give the UN Security Council exclusive authority to trigger the ICC’s jurisdiction over the crime.
African states are accordingly looking to use the upcoming Review Conference to voice their concerns regarding the Court’s structure and operation within this uneven geo-political landscape. In that regard it is not coincidental that the most contentious aspect of the crime of aggression (the role of the UN Security Council in triggering the Court’s jurisdiction) is co-extensive with many of the issues raised by African states in the context of the arrest warrant for al-Bashir. Second, and in a related manner, the issue of aggression touches on the question of the characterisation (as legal or illegal) of a particular use of force, which could potentially have serious consequences for the continent’s nascent regional security architecture, particularly insofar as humanitarian intervention is concerned.
It has surprised few then that at their last Ministerial Meeting in November 2009, African states parties rejected the structuring of aggression in a manner that grants the UN Security Council exclusive authority to trigger prosecutions. The continuity between this position on the crime of aggression and the controversial article 16 amendment which aims to trim to exclusive power of the UN Security Council to defer ICC cases (endorsed by African States Parties at the same meeting) is self-evident. Both seek to displace (or prevent) the Security Council’s hegemony in respect of the Court’s pursuit of international justice: one by providing a residual power to defer proceedings to the General Assembly, the other by preventing further power being given to the Council in respect of initiating prosecutions. More broadly, both share a common motif that challenges the asymmetrical nature of the international criminal justice order. Given this correlation, to the extent that African states might be able to force compromise on either issue, it would be tactically advantageous to capitalise on this inter-play.
Aside from concerns about the inequality of international criminal justice, African states have reason to fear that a Security Council-dominated prosecution regime for aggression has the potential to undermine the regional security architecture developed since the AU’s inception. This architecture, which boldly asserts a degree of autonomy in regional security issues, indirectly challenges the dominion granted by the UN Charter to the Council in respect of forcible interventions.
There is accordingly much at stake. Africa should be encouraged to take a bold, yet constructive, role in shaping the policy and practice of the Court in relation to these contentious, and developing areas of international criminal justice.
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