The Future of International Criminal Justice is Domestic

by Max du Plessis*

INTRODUCTION

International Criminal Court

The International Criminal Court

Complementarity is certainly posited as a driving feature of the ICC regime. The ICC is expected to act in what is described as a ‘complementary’ relationship with domestic states that are party to the Rome Statute. The Preamble to the Rome Statute says that the ICC’s jurisdiction will be complementary to that of national jurisdictions, and article 17 of the Statute embodies the complementarity principle. At the heart of this principle is the ability to prosecute international criminals in one’s national courts, on behalf of the international community, or to have in place mechanisms to arrest and surrender to the ICC persons that the court seeks to prosecute and who happen to be in one’s jurisdiction.

Linked to the principle of complementarity is the practice of universal jurisdiction.  The ICC does not exercise universal jurisdiction.  But states do, and it is here that the real potential lies for states to act as impunity gap fillers – acting where the ICC is unable or unwilling to do so.

Various developments in Africa suggest a broader understanding of complementarity that is unfolding in practice and which is worthy of further exploration. This broader understanding in certain respects falls within the notion of ‘positive complementarity’, or perhaps better phrased, ‘proactive complementarity’ – a term meaning that the ICC and states should actively encourage genuine national proceedings where possible, and that national and international networks should be relied upon as part of a system of international cooperation. Continue reading

Event: “Gbagbo, Katanga and Three Theories of Crimes Against Humanity”

Asser InstituteDate: Wednesday 17 September 2014, 7pm.

Venue: T.M.C. Asser Instituut, R.J. Schimmelpennincklaan 20-22, The Hague, Netherlands.

Speaker: Darryl Robinson, Associate Professor, Faculty of Law, Queen’s University, Canada.

SCL Lectures are public and free of charge. Registration is not necessary, seats are available on a first-come-first-served basis.

For more information, click here.

Raising the Bar at the ICC

International Criminal Court

The International Criminal Court

In a recent op-ed, Tiina Intelman, President of the Assembly of States Parties of the International Criminal Court (ICC), wrote about the upcoming elections of new ICC judges.

After explaining that the States will go through a complex voting process to choose the most qualified candidates, Intelman highlights the recent establishment of an Advisory Committee designed to assist the States in selecting the best candidates possible and thus raising even more the level of competence of the ICC judges. The Committee will be meeting at the beginning of December in New York in order to interview the candidates and produce a report which will be at the States’ disposal.

The elections are scheduled for the thirteenth session of the Assembly of State Parties, to be held in New York from 8-17 December 2014. The judges will be elected for a period of 9 years.

Kenyan President’s Trial Adjourned Indefinitely

Uhuru Kenyatta ICC

Uhuru Kenyatta at the ICC

Today, the Prosecutor of the International Criminal Court (ICC) requested that the trial against Kenyan President Uhuru Kenyatta be adjourned indefinitely.

ICC Chief Prosecutor Fatou Bensouda said she still did not have enough evidence to proceed with the trial, which was due to resume on 7 October.

She argued that the case should be delayed until the Kenyan Government complies in full with outstanding ICC cooperation requests.

“Under the circumstances, it would be inappropriate for the Prosecution to withdraw the charges against Mr Kenyatta before the Government of Kenya complies with the Revised Request. […] “In the five months since the Prosecution submitted its 8 April 2014 Revised Request, the Government of Kenya has produced a total of 73 pages of documentation. Some are not responsive to the Revised Request; even the responsive material is a fraction of the information sought”, she says.

Kenyatta is charged as an “indirect co-perpetrator” for crimes including murder, rape and persecution allegedly committed by others during violence that left more than 1,000 people dead after his country’s 2007 elections. He denies the allegations.

Kenyatta’s lawyers have repeatedly said the whole case should be dropped because of a lack of evidence.

A Wrong Turn for Human Rights

by David Tolbert*

A Palestinian woman reacts upon seeing her destroyed house in Beit Hanoun town

Gaza, August 2014

The world has plunged into a period of brutality, with impunity for the perpetrators of violence. Syria is suffering untold civilian casualties as a divided United Nations Security Council sits on the sidelines. Gaza was pummeled to dust yet again with the world watching on. Iraq is in flames, with no end in sight. Atrocities are mounting in South Sudan and the Central African Republic, which are also being swept by an epidemic of sexual violence. Even Europe is not immune: a civilian aircraft was shot down over a conflict zone in eastern Ukraine, and officials were prevented from investigating.

Twenty-five years after the fall of the Berlin Wall, and more than a decade after the establishment of the International Criminal Court (ICC), shockingly little is being done to stop these abuses, and the prospects of the victims ever getting justice, let alone bringing the perpetrators to account, seem ever more remote.

For many years, the world seemed to be progressing toward greater recognition of human rights and demands for justice. As democracies emerged in Latin America and Central and Eastern Europe in the 1980s and 1990s, these issues assumed increasing importance. Although wars, conflicts, and atrocities continued, the global powers tried, and occasionally managed – albeit chaotically and usually late – to stop the killing. 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

Amnesty International: ICC is the Key to Break Injustice in Gaza

International Criminal Court

The International Criminal Court

Following Israel’s offensive in Gaza, Amnesty International is urging the UN Security Council, the Palestinian Authority and Israel to do everything within their power to enable the International Criminal Court (ICC) to bring to justice those responsible for committing war crimes and crimes against humanity in the current and past Israeli-Palestinian conflicts.

“An International Criminal Court investigation is crucial to end the pervasive culture of impunity. All sides must push for the Court to investigate such crimes in order to halt the vicious cycle of violations and injustice once and for all”, says Amnesty.

Amnesty asks the Security Council to take immediate steps to refer the situation in Israel and the Occupied Palestinian Territories to the Prosecutor of the ICC. For Amnesty, “the UN Security Council must not stand by yet again and bear witness to mounting atrocities. It must seize this moment to act decisively for justice.”

Amnesty International is also calling on both the Palestinian and Israeli authorities to support a Security Council referral, and take other measures that would allow the ICC to step in and ensure their co-operation with the Court. Continue reading

Legal Scholars’ Joint Declaration on Israel’s Gaza Offensive

Gaza July 2014

Gaza, July 2014

Last week, more than 100 international legal experts and human rights defenders from around the world, among them former UN independent experts and leading law professors, issued a joint declaration denouncing the grave violations and “disrespect of the most basic principles of the laws of armed conflict and of the fundamental rights of the entire Palestinian population” during the ongoing Israeli offensive on the Gaza Strip, and calling for the international community, including the UN, Arab League, EU and the US, to establish clear mechanisms for accountability for international law violations. “Accountability cannot again be sidelined and stigmatized to serve  political  interests, our  interests must  be  the  protection of  civilians and  peace”, says Professor John Dugard, former UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967.

“Once again it is the unarmed civilian population, the ‘protected persons’ under International humanitarian law (IHL), which is in the eye of the storm, victimized in the name of a falsely construed right to self-defence, invoked after an escalation of violence provoked in the face of the entire international community,” says the Joint Declaration.

The declaration denounces the flouting of basic tenets of IHL, including the principle of distinction by which only combatants and military objectives can be targeted, and the principle of proportionality. Indiscriminate attacks against civilians, regardless of the identity of the perpetrators, are not only illegal under international law but also morally intolerable. Continue reading

ICC Appeals Chamber Confirms Al-Senussi Case Is Inadmissible

Senussi1

Abdullah Al-Senussi (c) Libya Herald

Yesterday, the Appeals Chamber of the International Criminal Court (ICC) confirmed that the case against Abdullah Al-Senussi is inadmissible.

On 11 October 2013, Pre-Trial Chamber I had declared the case against Mr Al-Senussi inadmissible on the grounds that the Libyan authorities were currently investigating Mr Al-Senussi and that they were willing and able genuinely to carry out domestic proceedings.

In rejecting the defence appeal, the Appeals Chamber held that there were no errors in the findings of the Pre-Trial Chamber that Libya is not unwilling or unable to genuinely prosecute Mr Al-Senussi, or in the exercise of its discretion in the conduct of the proceedings and in the evaluation of the evidence. Judges Usacka and Song appended respective separate opinions agreeing with the conclusion of the majority but formulating their own reasoning on the correct interpretation of the ‘same person, same conduct’ test, which must be satisfied to conclude that a given domestic authority is investigating or prosecuting the same case as that before the ICC.

Mr Al-Senussi held the rank of colonel in the Libyan Armed Forces and served as Muammar Gaddafi’s chief of intelligence before the fall of the regime during the Libyan uprising in 2011. The Prosecution had charged Mr Al-Senussi with murder and persecution as crimes against humanity for his involvement in utilising the State security forces to target the civilian population in an attempt to quell the revolution.

Mr Al-Senussi was charged alongside Muammar Gaddafi (since deceased) and Saif al-Islam Gaddafi. The latter also challenged the admissibility of his case before the ICC but the Appeals Chamber held on that occasion that the case was admissible.

Increasing the Efficiency of the Criminal Process at the International Criminal Court, While Preserving Individual Rights

by Shehzad Charania and John Doyle*

International Criminal Court

The International Criminal Court

In operation for more than a decade, the International Criminal Court is often the subject of criticism for its lengthy trials and inefficient procedures.  The Court has completed three trials in that time, all of which have taken more than six years from the point of arrest to conviction or acquittal.  International criminal justice does, of course, throw up numerous complex challenges not found in domestic proceedings.  But 12 years of practice at the Court have confirmed that unnecessary delays occur in a number of areas, which have the potential to interfere with the rights of the accused, and, more broadly, the perception of the trial process among victims and affected communities, and the public at large.  Finally, delays have financial, logistical as well as other legal implications.

Last week, Sweden, the United Kingdom and Japan convened an all-day seminar, in conjunction with the Hague Institute for Global Justice.  The seminar, entitled “Increasing the Efficiency of the Criminal Process, while Preserving Individual Rights”, and moderated by Professor Håkan Friman, provided a unique opportunity for interaction, and discussion of radical ideas, between representatives of the Court, including over a third of the Court’s Judges, and senior members of the Office of the Prosecutor, the ad hoc tribunals, ICC States Parties, members of the Bar, NGOs and academia. Continue reading