How Africa Can Fix the International Criminal Court

By John Dugard*

ICCThe ruling African National Congress’s demand that the South African government should pull out of the International Criminal Court is defeatist, naïve and reactionary. African states have largely themselves to blame for the fact that the continent has been singled out by the court, and rather than withdraw they should use their political muscle to ensure that prosecutions are brought against non-African leaders too.

Africa occupies a key position in the International Criminal Court (ICC). It is the largest regional group with 34 member states; the present prosecutor of the court is an African woman – Fatou Bensouda of The Gambia – and four of the 18 judges on the court are from Africa, including the vice-president, Joyce Aluoch of Kenya. Africa is not therefore a marginal player in the ICC.

Despite this the ICC is more criticised in Africa than any other continent. In large measure this criticism comes from the leaders of non-member states, such as Zimbabwean President Robert Mugabe and Sudanese President Omar al-Bashir, who are themselves accused of committing international crimes.

But the leaders of member states, whose judges serve or have served on the court, have given support to the criticism and condemnation of the court. Perhaps the three most vocal leaders of this group are Kenyan President Uhuru Kenyatta, Ugandan President Yoweri Museveni and South African President Jacob Zuma. Continue reading

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

A Hybrid Court to Try South Sudan Crimes?

South Sudan warSpeaking in Nairobi on Monday during a visit to Kenya, US Secretary of State John Kerry said South Sudan was at “grave risk” as he announced US backing for a “hybrid court” to hold warring parties to account.

Kerry said he supported the creation of “a credible, impartial and effective justice mechanism, such as a hybrid court, in order to hold perpetrators of violence to account.”

A hybrid court would combine international and domestic law.

More than 50,000 people died since the beginning of the war in December 2013, which spread from the capital Juba to the rest of the country, forcing more than a million from their homes.

Kerry said the promise of independence in 2011 was “at grave risk of being squandered”.

Stalled peace talks hosted in Addis Ababa have failed to end the fighting, which Kerry blamed on President Salva Kiir and rebel leader Riek Machar.

“Unfortunately, South Sudan’s leaders, both those in office and those contesting, have not yet chosen to make the compromises needed for peace,” Kerry said.

Human rights activists say that decades of impunity for past crimes have contributed to the current round of civil war and justice must be sought if an end to the cycles of violence is to be found.

In December advocacy group Human Rights Watch proposed the setting up of a “hybrid court” involving both international and domestic judges, as in the case of the Special Court for Sierra Leone.

On Monday Kerry endorsed the idea of a hybrid court and pledged $5 million (4.5 million euros) to kickstart the process.

The International Criminal Court at a Crossroads

by Samuel Linehan

International Criminal Court

The International Criminal Court

The challenges for the International Criminal Court posed by state non-cooperation and potential new situations were considered at a panel discussion hosted by Chatham House and Doughty Street Chambers on 11 March 2015.

The panellists were Shehzad Charania, Legal Adviser and Head, International Law Team, British Embassy, The Hague; Liz Evenson, Senior Counsel, Human Rights Watch; and Dr Rod Rastan, Legal Adviser, Office of the Prosecutor, International Criminal Court. The chair was Elizabeth Wilmshurst. The Chatham House Rule was not applied.

State non-cooperation

General observations

Liz Evenson noted that there are different modes and levels of cooperation with the ICC. Some obstacles can be overcome; for example remote investigation may be possible where there is no access to a territory. However, as reflected in the new OTP investigative policy, in situ investigations are preferable. Other obstacles cannot be overcome, such as refusal to execute an arrest warrant. The Kenya situation demonstrated the effect of non-cooperation on the outcome of proceedings.

Rod Rastan emphasised that cooperation is fundamental to a court which lacks the investigative and enforcement apparatus of a developed jurisdiction. The issue was not resolved by the Rome Statute, as the only remedy for non-cooperation is a reference to the UN Security Council or the Assembly of States Parties. This requires a collective response from the international community. Cooperation worked at the ICTY, as initial hesitation was overcome with the assistance of NATO and the EU.

Shehzad Charania considered what the international community can do in the face of non-cooperation. In the Darfur Situation, the matter was referred to the Security Council by the Pre-Trial Chamber. The signs there are not good, despite the UK’s support for the ICC. The same is true of the Libya Situation. An indication of the current climate is the fact that at present the Security Council cannot even agree to acknowledge a letter from the President of the ICC. The low point was the failure to refer the situation in Syria. However there are some signs of progress. The ICC has a central position in various policy debates, for example on the protection of women and journalists in conflict. The Security Council has never entered into discussion of concrete measures in response to non-cooperation; the obvious response would be sanctions. The Assembly of States Parties has agreed to avoid all non-essential contact with indictees. Continue reading

Event: The Inaugural LEAP Conference 2014

Court HammerDate: 19-20 November 2014

Venue: Law School of Tanzania, Dar es Salaam, Tanzania.

The LEAP conference will be a unique platform for expert presentations, targeting leadership in governmental and key stakeholder sectors.

It will provide platforms for expert and delegate led break out sessions on pivotal areas of interest to the continent.

The overarching discussion at the conference will focus on the effective Rule of Law in Africa in general and in relation to the following areas:

  • The extractive industries boom on the newly emergent African continent – resource curse of blessing?
  • Land Rights in the age of the African energy and agricultural surge
  • Bribery and corruption – an enemy to integrity, country profile and long term economic growth?

iLawyer Wayne Jordash QC will be one of the speakers.

For the conference booklet, click here.

If you wish to register, click here.

Legal Expertise Access Platform (LEAP) is a Not For Profit international initiative, based in Africa, that aims to transform the continent’s access to and hosting of cutting edge socio/legal thinking and practice. LEAP endeavours to become the foremost provider of innovative and multipurpose platforms to increase access to and implementation of top-level legal excellence across the continent in support of the rule of law.

A (New) New Regional International Criminal Court For Africa?

by Max du Plessis

Advocate of the High Court, Durban and Sandton; Associate Tenant, Doughty Street Chambers, London; Associate Professor, University of KwaZulu-Natal


Nicole Fritz

Executive Director, Southern Africa Litigation Centre


Malabo Summit 2014

African Heads of State at the Malabo Summit last June

On June 2014, African Heads of State and Governments meeting in Malabo, Equatorial Guinea, adopted a Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the ACJHPR Amendment). The ACJHPR Amendment revises the (not yet in force) Protocol on the Statute of the African Court of Justice and Human Rights (ACJHR Protocol) – which was adopted in 2008 to merge the African Court on Human and Peoples’ Rights with the proposed African Court of Justice. The aim of the 2014 ACJHPR Amendment is to grant the resultant Court ‘International Criminal Law’ jurisdiction, adding to the ‘Human Rights’ jurisdiction it presently exercises and the ‘General International Law’ jurisdiction it is expected to exercise when the 2008 ACJHR Protocol comes into effect (whenever that may be). To make matters worse (or better), the ACJHPR Amendment also introduces a change in nomenclature: the new amended, revised African Court will be called the ‘African Court of Justice and Human and Peoples Rights’ (the ACJHPR) (article 8, ACJHPR Amendment).

To give effect to its aims, the 2014 ACJHPR Amendment contains a number of revisions to both the 2008 ACJHR Protocol and the Statute of the Court attached thereto. However, if matters were not already confusing and time-warped, the 2014 ACJHPR Amendment is itself a revised version of an earlier draft, approved by African Ministers of Justice and Attorney General and recommended to the AU Assembly in May 2012 (the ‘2012 Draft Amendment’). The 2012 Draft Amendment was the subject of considerable criticism, including a Comment in this journal by the author (du Plessis, ‘A new regional International Criminal Court for Africa?’, 2 SACJ (2012) 286). In short, general concerns were raised regarding the rushed drafting process and the lack of consultation, and specific concerns were raised as to difficulties surrounding jurisdiction, the definition of crimes, immunities, institutional design and the practicality of administration and enforcement of an expanded jurisdiction, amongst others. Continue reading

The Day AU Leaders Justified the Existence of the ICC!

by Arnold Tsunga and Wayne Jordash QC

African leaders

African Union Summit, July 2014

There is a general notion that the law is like a spider’s web. It only catches the weak.

The decision adopted by the AU heads in Malabo, Equatorial Guinea, to grant immunity from prosecution for serious human rights violations to heads of state and senior government officials at the African Court of Justice and Human and Peoples Rights only serves to reinforce this perception.

Heads who faced justice

Few African heads of state have been tried for serious human rights violations of their own people. Those that come to mind are Charles Taylor (Liberia) and Hosni Mubarak (Egypt). Charles Taylor was tried by a hybrid tribunal set up under the auspices of the UN in Sierra Leone (sitting in The Hague, a city that has become the seat of international justice). After being overthrown in a revolution, Mubarak was tried by domestic courts in what some view as flawed victor’s justice. The AU was not involved in either of these proceedings.

Others await or are going through trial. These are Laurent Gbagbo (Cote D’Ivoire), Omar Hassan Ahmad Al-Bashir (Sudan), Uhuru Kenyatta and his deputy, William Ruto (Kenya) at the ICC, and Hissène Habré (Chad) at an AU sponsored tribunal in Senegal. The Hissène Habré case has been awaiting trial since shortly after the millennium. Legitimate concerns have been raised about the willingness of the AU leaders to see Hissène Habré face justice and the completion of the trial. Omar Hassan Ahmad Al-Bashir has been largely protected by the AU heads that have refused to cooperate with the ICC to effect his warrant of arrest. Continue reading

Launch of an Online Forum on the Extraordinary African Chambers

Chambres Africaines ExtraordinairesAn interactive forum on the Extraordinary African Chambers (CAE) has been launched online.

This forum was chosen to bring information on the proceedings following the agreement between the African Union and Senegal to prosecute “those primarily responsible for international crimes committed in Chad between 1982 and 1990” to the attention of people in Senegal, Chad, Africa and throughout the world.

Since the beginning of 2014, an outreach campaign has made it easier for people in Chad and Senegal to access information through meetings, public debates and information workshops taking place in the capital and in the provinces. These events involve the general public, CAE members, administrative and judicial authorities of Chad and Senegal, lawyers, victims, researchers, the media and civil society. The campaign also aims to encourage debate around the contribution of the CAE in the framework of international criminal justice. Continue reading

African Union Votes in Favour of Immunity for Senior Officials

African leaders

African Leaders at the African Union Summit last week

At a summit of the African Union held last Friday in Equatorial Guinea, African leaders present voted in favour of an amendment that would grant them and “senior officials” immunity from prosecution for war crimes, crimes against humanity, and genocide before the African Court of Justice and Human Rights.

The text of the amendment, which was passed was as follows:

“No charges shall be commenced or continued before the Court against any serving African Union Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.”

It is unclear who will be entitled to immunity as a “senior state official.” Amnesty International have called the move

“a step backwards in the fight against impunity and a betrayal of the victims who suffered serious human rights abuses.”

Ahead of the meeting on Friday, 42 African and international civil society rights groups objected to the proposed amendment noting in an open letter that the resulting impunity violates international and domestic laws as well as the constitution of the African Union.

The vote was part of a larger discussion on the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights. The African Court of Justice and Human Rights is the result of the decision of the African Union to amalgamate the African Court of Human and Peoples’ Rights and the Court of Justice of the African Union.