What South Africa Leaving the International Criminal Court Would Mean

By Milton Nkosi*

International Criminal CourtThe call by South Africa’s governing party to withdraw from the International Criminal Court (ICC) has implications for the rest of the continent. But it is not going to happen any time soon.

When South Africa joined the ICC in 1998 the country had just emerged from the scourge of apartheid.

South Africans were fresh victims of gross human rights violations and had hoped that the rest of the world would join the ICC.

But some of the most powerful countries did not follow.

And now the governing African National Congress (ANC) is calling for the country to leave the ICC – which would make it the first to do so.

‘Hitler of Africa’?

The chairman of the ANC’s commission on international relations, Obed Bapela, said that the ICC had “lost direction”.

Mr Bashir was able to fly out of South Africa in June despite a warrant for his arrest for war crimes

This move away from the ICC comes not long after the South African government was criticised for allowing Sudan’s President Omar al-Bashir to leave the country despite an ICC arrest warrant for alleged war crimes in Darfur. Mr Bashir denies the allegations, saying they are politically motivated.

Mr Bapela insisted South Africans were “very keen” to hear the stories of the victims of Darfur, as they had heard the victims of political crimes committed during the apartheid era at the Truth and Reconciliation Commission.

“Human rights matter to us but we want a fair system,” he said. Continue reading

South Africa Plans to Leave the International Criminal Court

South African ParliamentThe African National Congress (ANC), South Africa’s governing political party, wants the country to begin the process of withdrawing from the International Criminal Court (ICC) because it believes the ICC has lost its direction.

“The principles that led us to be members [of the ICC] remain valid and relevant […] however the ICC has lost its direction unfortunately and is no longer pursuing that principle of an instrument that is fair for everybody,” said on Sunday the party’s international relations subcommittee chairperson Obed Bapela.

There were a handful of powerful countries which refused to be ICC members, yet they still had the power to refer matters to the court, Bapela said.

He added that South Africa would continue to carry the flag of human rights and an end to genocide.

The matter is already on the agenda for the upcoming Assembly of State Parties meeting which would be attended by all ICC members in November. It will also be tabled at the African Union summit to be held in January.

This debate arose as the South African government faces criticism for ignoring a South African High Court order to arrest Sudan’s President Omar al-Bashir when he was in Johannesburg for an African Union summit last June.

The ICC had issued a warrant of arrest for Bashir, wanting him to stand trial on charges of war crimes and genocide.

The High Court ruled that government had acted unconstitutionally when it did not arrest him.

Memorandum of Understanding between the NFI and the ICMP

ICMPThe Netherlands Forensic Institute (NFI) and the International Commission on Missing Persons (ICMP) have signed a Memorandum of Understanding that will make it possible for the two organizations to collaborate more closely.

Under the agreement, the two organizations will cooperate on joint project proposals, provide mutual support in field operations and collaborate on rule-of-law programs that require forensic expertise and training.

“ICMP is a very experienced institution with an outstanding reputation,” said Kees Möhring, NFI Director of External Relations. “It is a specialist in using DNA methods for identification. DNA is also a specialty of the NFI, both for identification purposes and forensic purposes. Combining the skills and expertise of ICMP and the NFI will create innovative breakthroughs from which the international law enforcement community can benefit.”

NFI is the oldest and most broadly-oriented forensic research institute in the Netherlands. One of the world’s leading forensic agencies, it facilitates effective law enforcement and administration of justice from a scientific perspective.

ICMP recently signed a headquarters agreement with the Netherlands and is in the process of transitioning its seat to The Hague. In December 2014, ICMP became a treaty-based organization and is recognized as the only international organization exclusively dedicated to accounting for those who have gone missing as a result of armed conflict, human rights abuses, disasters, migration and crime.

The Special Jurisdiction for Peace in Colombia and the Cautious Optimism of the Prosecutor of the International Criminal Court


by Héctor Olasolo*

International Criminal CourtOn 23 September 2015, the Government of Colombia and the Revolutionary Armed Forces of Colombia – Popular Army (‘FARC-EP’), issued a joint communique, in which they made public the core aspects of their agreement on justice matters (‘the New Agreement’), including, in particular, the establishment of a Special Jurisdiction for Peace. The next day, the Prosecutor of the International Criminal Court (‘ICC’), Ms. Fatou Bensouda, made a preliminary statement thereon, in which she highlighted that “any genuine and practical initiative to end the decades-long armed conflict in Colombia, while paying homage to justice as a critical pillar of sustainable peace, is welcome by her Office”. She also stressed her hope for the New Agreement to comply with this goal, and her cautious optimism as “the agreement excludes the granting of amnesties for war crimes and crimes against humanity, and is designed, among other things, to end impunity for the most serious crimes”.

But, what are the reasons for the ICC Prosecutor’s cautious optimism, if ever since the adoption of Legislative Act 01 of 2012 on the so-called ‘Legal Framework for Peace’ she has expressed, in all her annual reports on Colombia, her concern by the ample powers granted by it to the Colombian Congress?

In my view, this can only be due to the significant difference between the role in an eventual transitional process in Colombia that the New Agreement seems to give to the investigation, prosecution and punishment of genocide, crimes against humanity and war crimes (‘ICC crimes’), and the limited scope of application of criminal justice provided for in the Legal Framework for Peace. In other words, if the Legal Framework for Peace reduced the role of criminal justice to a mere appendage of the transitional process, the New Agreement appears to restore it to its International Law status as an autonomous and necessary pillar of such process. Continue reading

ADC-ICTY Annual Conference: Judge Schomburg Confirmed as Keynote Speaker

ADC-ICTY-300x300The 2015 Annual Conference of the Association of Defence Counsel Practising before the ICTY and Representing Counsel before the MICT (ADC-ICTY)  will be opened with a keynote speech entitled No Justice Without Defence Counsel by Professor Doctor h.c. Wolfgang Schomburg.

Wolfgang Schomburg served as an international Judge at the UN-ICTY first as a presiding Judge and then in the Appeals Chambers. He is an invaluable addition to the ADC Annual Conference.

Date: 5 December 2015

Time: 09:00 to 17:30

Location: Bel Air Hotel, Johan de Wittlaan 30, 2517 JR The Hague

This one-day conference will focus on the situation of Defence Counsel at International Criminal Courts and Tribunals and will feature four distinguished panels on various topics in relation to the role and importance of the Defence.

The closing remarks will be delivered by the ADC-ICTY President, Colleen M. Rohan, and panellists will include renowned Defence Counsel, Judges and representatives from various international criminal courts and tribunals.

Panel I: The Role of Defence Counsel at International Criminal Courts and Tribunals

Panel II: The Necessity of a Defence Office from the International and National Perspective

Panel III: The Importance of a Bar Association for International Criminal Courts and Tribunals

Panel IV: The Future of Defence Counsel on the International and National Level

Confirmed speakers:

Judge Wolfgang Schomburg, Jens Dieckmann, Christopher Gosnell, Gregor Guy-Smith, Dragan Ivetić, Michael G. Karnavas, Xavier-Jean Keïta, Nina Kisić, Novak Lukić, Judge Howard Morrison, Judge Janet Nosworthy, Judge Alphons Orie, Fiana Reinhardt, Colleen Rohan, Héleyn Uñac, Slobodan Zečević

Participation Fee: 35 Euros (including coffee breaks) for the general public,

20 Euros for ADC-ICTY members, students and unpaid interns.

For further information and to register please contact the ADC-ICTY Head Office at adcicty.events@gmail.com