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.

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.