Time-Limitation Clause Against Private Litigants of the East African Court of Justice: A Call For A Purposive Interpretation of Article 30(2) of the East African Community Treaty

by Dr. Ally Possi*

Introduction

East African Court of JusticeThis post exposes a major obstacle facing one of the African regional economic community judiciaries: the East African Court of Justice (EACJ, or the Court). The EACJ is the judicial organ embedded to settle disputes in connection with the East African Community (EAC) integration activities. Comparatively, the EACJ is a replica of other regional economic community courts, currently in existence, such as the Court of Justice of the European Union.

Private litigants play a key role in modelling states’ behaviour to realise their integration ambitions. One of the operational principles of the EAC is the ‘people-centered’ co-operation form of integration (art 7(1)(a) of the EAC Treaty). Therefore, it was not an oversight to permit individuals to account Member States before the EACJ, whenever there is an infringement of the EAC Treaty. However, article 30(2) of the Treaty restricts private litigants to lodge their complaints: within two months of the enactment, publication, directive, decision or action complained of, or in the absence thereof, of the day in which it came to the knowledge of the complainant, as the case may be.

Following a significant level of silence on the stringent rule, this post is vitally important considering the nature of the subject it tackles. Judges have been narrowly and strictly interpreting article 30(2) of the EAC Treaty, preventing private litigants to lodge their complaints to the EACJ with ease. Eventually, individuals are being denied access to justice. This post, therefore, argues that EACJ judges need to broadly and purposely interpret article 30(2) of the EAC Treaty. The grounds used to deny to extend the two months’ time window are contrary to the spirit of the EAC Treaty. Thus, this post provides some legal evidence for EACJ judges to stretch the rigorous time limitation clause. Continue reading

ICC Al-Bashir case: South Africa Failed to Comply but is not Referred to ASP/UNSC

Sudanese President Omar al-Bashir during the 25th AU Summit in South Africa ©KIM LUDBROOK / EPA

Sudanese President Omar al-Bashir during the 25th AU Summit in South Africa ©KIM LUDBROOK / EPA

On Thursday 6 July 2017, Pre-Trial Chamber II of the International Criminal Court (ICC) found that South Africa failed to comply with its obligations under the Rome Statute in the Omar Al-Bashir case. The former President of Sudan had visited South Africa on 13 June 2015 to attend the 25th Assembly of the African Union.  The South African government then took no steps to arrest Omar Al Bashir, claiming he benefited from immunity as a head of State. In March 2016, the Supreme Court of Appeal of South Africa had ruled the government had shown unlawful conduct “in failing to take steps to arrest and detain, for surrender to the International Criminal Court, the President of Sudan, Omar Hassan Ahmad Al Bashir.”

The ICC found that South Africa failed to comply with its obligations by not arresting and surrendering Omar Al-Bashir to the Court while he was on South African territory between 13 and 15 June 2015. The Court considered that immunities did not apply as Sudan was in an analogous situation to those of States Parties to the Statute as a result of the UNSC’s resolution, under Chapter VII of the UN Charter, triggering the Court’s jurisdiction in the situation in Darfur and imposing on Sudan the obligation to cooperate fully with the Court.

However, the Chamber considered that it is not warranted to refer South Africa’s non-compliance to the Assembly of States Parties (ASP) or the Security Council of the United Nations (UNSC). This decision was motivated on the facts that South Africa was the first State Party to seek from the Court a final legal determination on the extent of its obligations to execute a request for arrest and surrender of Omar Al-Bashir and that South Africa’s domestic courts have already found South Africa to be in breach of its obligations under its domestic legal framework.

For the full decision, click here.

ICC Prosecutor Calls for Immediate Arrest of Saif Al-Islam Gaddafi

Saif al IslamThe Prosecutor of the International Criminal Court (ICC) yesterday called on the Libyan authorities and all other states who are in a position to do so, to immediately arrest and surrender Mr. Saif Al-Islam Gaddafi, the son of former Libyan leader Muammar Gaddafi, to the ICC.

She noted that she was aware of the latest media reports alleging that on 9 June 2017, Mr. Gaddafi was released from the custody of the Abu-Bakr al-Siddiq Brigade of the eastern Libyan town of Zintan, where he had been held since November 2011. The Prosecutor stated that her office is currently verifying these reports and is taking all necessary steps to determine Mr Gaddafi’s whereabouts.

The Prosecutor, Ms. Fatou Bensouda, stressed that the arrest warrant issued by the ICC against Mr Gaddafi on 27 June 2011 for the crimes against humanity of murder and persecution, allegedly committed in Libya during the uprising that ousted his father in 2011, remains valid.

According to Ms. Bensouda, the purported amnesty law, under which Mr. Gaddafi has said to been freed, does not relieve Libya of its obligation to immediately arrest and surrender Mr. Gaddafi to the ICC.

In the same statement, the Prosecutor called for the immediate arrest and surrender of Mr Al-Tuhamy Mohamed Khaled, who is also the subject of an ICC arrest warrant in the Libya situation, made public on 24 April 2017.

Mr. Al-Tuhamy is Muammar Gaddafi’s former security chief and is alleged to be responsible for the crimes against humanity of imprisonment, torture, other inhumane acts, and persecution, as well as for the war crimes of torture, cruel treatment and outrages upon personal dignity, committed in Libya in 2011.

Media outlets report that the release of Saif Al-Islam Gaddafi could fuel further instability in the country, which has been under the rule of three different governments since Muammar Gaddafi’s fall in 2011. The UN-backed Tripoli government condemned the release.

In July 2015, Saif al-Islam Gaddafi was sentenced to death in absentia by a court in Tripoli in a mass trial of former Gaddafi government officials. The verdict had drawn condemnation abroad, with Human Rights Watch saying the trial was riddled with legal flaws and carried out amid widespread lawlessness undermining the credibility of the judiciary.

Gaddafi’s Son Saif al Islam Released from Prison in Libya

Saif Al-Islam GaddafiSaif al-Islam Gaddafi, the son of fomer Libyan leader Muammar Gaddafi, has been released. He had been in custody since November 2011 in the town of Zintan, in Libya.

The Abu Bakr al-Sadiq Brigade, a militia of former rebels that controls Zintan, where Gaddafi was detained since November 2011, said he was freed under an amnesty law promulgated by the parliament based in the eastern city of Tobruk.

The north African country has rival administrations, with the authorities in the east not recognising the UN-backed government of national accord (GNA) based in the capital.

Gaddafi’s lawyer also said he had been released but would not say which city Saif al-Islam had travelled to for security reasons.

The commander of the Abu Bakr al-Sadiq Brigade was set to release a video statement explaining the details of the release.

Saif al-Islam Gaddafi was captured in 2011 as he was fleeing to neighbouring Niger after opposition fighters seized Tripoli.

He was sentenced to death in absentia by a court in Tripoli in July 2015 in a mass trial of former Gaddafi government officials. The verdict had drawn condemnation abroad, with Human Rights Watch saying the trial was riddled with legal flaws and carried out amid widespread lawlessness undermining the credibility of the judiciary.

Saif al-Islam is also wanted by the International Criminal Court in The Hague, which issued an arrest warrant in 2011 on preliminary charges of crimes against humanity, murder and persecution for being part of the inner circle of his father’s regime.

The International Criminal Court at 15: Battling the Acceptance Challenges

By Francis Dusabe*

International Criminal Court New PremisesIn its 15 years of existence, the International Criminal Court is undergoing an acceptance crisis especially on the African Continent. Political narratives have significantly shaken the Court’s legitimacy and has led to the questioning of its relevance in today’s world.

This paper examines Acceptance challenges faced by the court as of 2017 and explores prospects for change to enhance its social impact.

Introduction

On 17th July 2017, the international Criminal Court will clock 15 years of existence with only 26 cases across 10 situations. To reach where it is, it underwent a series of political condemnations, many of which were based on its operational and political flaws that pushed various State parties to consider quitting.

Whereas its existence symbolizes the global consensus that crimes of concerns to humanity as whole should not go unpunished, the court suffers from strategic flaws which, once unaddressed, will eventually become a turndown to the morale behind the whole project of International Criminal Justice.

This paper looks into the challenges faced by the court as of 2017 and explores prospects for change to ensure that the ICC, once a beacon of hope for Victims of international crimes, remain in existence with tangible social impact. More specifically, it explores the drives behind state acceptance of international criminal justice and the impact of Narratives on the Court’s perception. This paper ends with proposals on how to improve its image as a Court not only for Rome statute State Parties, but as an important arm for maintenance of world peace and security.

State Acceptance of international justice

State’s acceptance of International justice may be looked at on various aspects and may be investigated through various dimensions and factors namely the people concerned, how justice is defined in local context and the Victims’ expectation of what International Criminal Justice can bring. Continue reading

Inaction in the International Community: The Plight of Myanmar’s Rohingya

By Vani Sathisan*

Rohingya protestersIn February, the Office of the United Nations High Commissioner for Human Rights (OHCHR) issued a report condemning the widespread human rights violations against the Rohingya population, a minority Muslim community, in Myanmar. The report states that a “calculated policy of terror” indicates the “very likely commission of crimes against humanity,” a view echoed by the UN’s Special Rapporteur for Human Rights in Myanmar, Yanghee Lee. Following the 34th Session of the Human Rights Council in Geneva in March, The UN Human Rights Council approved a resolution to “dispatch urgently” an international fact-finding mission to investigate alleged human rights violations by military and security forces against the Rohingya community. The Myanmar government, however, has rejected the UN probe for “inflaming” existent tensions, stating instead that the allegations are an “internal matter.”

Since deadly violence erupted in Myanmar’s Rakhine State in 2012, an estimated 140,000 people, mainly Rohingya and small groups of Rakhine Buddhists, have been internally displaced. Persecution by Rakhine Buddhists and the national government, which is controlled by the Bamar majority ethnic group, have forced even more Rohingya to flee Myanmar for neighboring countries, like Bangladesh. Myanmar’s lack of genuine commitment to the rule of law and to protecting the rights of the Rohingya further entrench exclusion, discrimination and marginalization, and violate a number of international human rights laws and norms. Continue reading

African Americans and Police: To Repair Broken Trust There Must Be a Reckoning First

by David Tolbert*

Milwaukee protestersI have spent my career working in societies across the globe as they confronted legacies of unspeakable human rights abuses. I witnessed the struggle for justice in the former Yugoslavia, Palestine, the Middle East, eastern Europe, Cambodia, Lebanon and a host of other countries where ICTJ works. I have learned lessons from them all. But while my work has taken me far and wide, my roots remain in my native Carolinas. It was there that I started life in the de jure and de facto segregated South –apartheid by another name – and there I first developed the sense of justice that has guided my work since.

I return to the Carolinas this week to take part in a conversation that confronts the legacy of that troubled past. It will be held at the University of South Carolina in Columbia, where the confederate flag flew on the statehouse grounds until 2015 and was only removed in the wake of the massacre at Emanuel African Methodist Episcopal Church in Charleston. While I have taken part in similar conferences across the globe – often in places that are boiling with injustice – this trip resonates at the most personal of levels.

When Republicans were the party of Lincoln and not of Trump, my South Carolina family were Republican activists who opposed slavery, resisted secession, and fought for the rights of African Americans. For this they suffered assaults and abuses, although unlike their African American allies they had a choice on how to live their lives. In 1898, their attempts to help African-Americans vote led to white supremacists murdering over a dozen African Americans and shooting and severely wounding several of my ancestors in what is known in the history books as the “Phoenix Riot.” Thereafter, the Tolberts were repeatedly burned out of their homes, eventually leading them to build a house made entirely of stone with iron furniture, known as the “Rock House”, located outside Greenwood, South Carolina. Continue reading

Habré’s Life Sentence Upheld on Appeal

Hissène Habré, the former president of Chad, during his trial by the Extraordinary African Chambers in Dakar, Senegal, in 2015 ©Seyllou/Agence France-Presse — Getty Images

Hissène Habré, the former president of Chad, during his trial by the Extraordinary African Chambers in Dakar, Senegal, in 2015 ©Seyllou/Agence France-Presse — Getty Images

Today, the Appeals Court of the Extraordinary African Chambers upheld the life sentence for Chad’s former President Hissène Habré. Chad’s former President had been convicted of crimes against humanity, torture and war crimes, and sentenced to life in prison on May 30, 2016.

Habré was found guilty of rape, sexual slavery, torture and summary execution during his rule from 1982 to 1990. According to a 1992 Chadian Truth Commission, Habré’s government was responsible for conducting 40,000 political murders and systematically torturing more than 20,000.

Habré is the first African former head of state to be convicted in Africa, and the first former head of any state to be convicted of crimes against humanity by the courts of another country. It is also the first time that a former head of state has been convicted of personally raping someone. It is furthermore the first prosecution in Africa under universal jurisdiction.

The Extraordinary African Chambers, based in Dakar, Senegal, were created by the African Union and Senegal following a complaint filed by Hissène Habré to the Court of the Economic Community of West African States on the principle of non-retroactivity of the Senegalese new criminal provisions adopted in 2007-2008. The Chambers, especially dedicated to the trial of Hissène Habré, are composed of African judges and apply international criminal law, following Senegalese criminal procedure.

2017 International Criminal Court Summer School

Date: 19 – 23 June 2017

Location: Irish Centre for Human Rights, National University of Ireland, University Rd, Galway, Ireland.

Default_conf_TopstripThe annual International Criminal Court Summer School at the Irish Centre for Human Rights is the premier summer school specialising on the International Criminal Court. The summer school allows participants the opportunity to attend a series of intensive lectures over five days. The lectures are given by leading academics on the subject as well as by legal professionals working at the International Criminal Court. The interactive and stimulating course is particularly suited to postgraduate students, legal professionals, scholars, and NGO workers. Participants are provided with a detailed working knowledge of the establishment of the Court, its structures and operations, and the applicable law. Lectures also speak to related issues in international criminal law, including: genocide, war crimes, crimes against humanity, the crime of aggression, jurisdiction, fair trial rights, and the rules of procedure and evidence.

This year’s ICC Summer School will include a topical special session on Corporate Crimes and the International Criminal Court.

To register and for more information regarding the 2017 ICC Summer School, please visit the website, download the 2017 Poster or send an email.

Event: Northumbria University Summer Academy

The Northumbria University organizes an inaugural summer academy on “Contemporary Challenges to International Criminal Justice”.

Date: 12th – 16th June 2017

Venue: Northumbria University, Newcastle, UK

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This novel summer academy provides an opportunity for participants to acquire in-depth knowledge on the most pressing issues facing the international criminal justice system from the leading scholars and practitioners in the field. Speakers will share their expertise and experience on a varied range of topics to encourage and inspire postgraduate research in law and criminology.  Continue reading