University of Amsterdam, Faculty of Law
Master’s Thesis in International and European Law: Public International Law
THE RELATIONSHIP BETWEEN THE PROPOSED AFRICAN COURT OF JUSTICE AND HUMAN AND PEOPLES’ RIGHTS AND THE INTERNATIONAL CRIMINAL COURT: QUESTIONS OF JURISDICTION AND COMPLEMENTARITY
Thesis
By
Timothy Nabaasa Kanyogonya Student No. 10839917 (2014-2015)
Supervisor:
Prof. Harmen van der Wilt
16 June 2015
Dedication
I dedicate this thesis to the memory of my beloved parents Kesi and Constance Kanyogonya for bringing me up with love and affection and ensuring that I obtained quality foundational education that imbued me with the passion for exploring greater heights. I therefore hope that this study sufficiently honors them.
Acknowledgments
This is to acknowledge all those who made this Master’s degree program possible in the Kingdom of the Netherlands’ Ministry of Defense; and the Republic of Uganda’s Ministry of Defense/Uganda Peoples’ Defense Forces for offering me the opportunity to obtain a Legum Magister from a University of repute, in the land of the famous jurist, Huig de Groot (Grotius). I mention with gratitude the support and encouragement received from my Army superiors, Maj Gen David Muhoozi and Brig Charles Bakahumura. I further thank Prof. Charles C. Jalloh of Florida International University College of Law for availing me free access to his scholarly papers, and the University of Amsterdam faculty, for their stimulating new insights in Public International Law. In this regard, Prof. Harmen van der Wilt deserves special recognition for teaching me two courses in International Criminal Law/Tribunals and for supervising this thesis.
List of Abbreviations
AfCJHPR African Court of Justice and Human and People’s Rights
ASP Assembly of States Parties
AU African Union
CAR Central African Republic
CICC Coalition for the International Criminal Court
DRC Democratic Republic of Congo
EAC Extraordinary African Chambers in Senegalese Judicial System ICC International Criminal Court
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former Yugoslavia
ICJ International Court of Justice
ILC International Law Commission
IMT International Military Tribunal at Nuremberg
IMTFE International Military Tribunal for the Far East
LRA Lord’s Resistance Army
OTP Office of the Prosecutor
PCIJ Permanent Court of International Justice
RS Rome Statute of the International Criminal Court
REC Regional Economic Communities
SCSL Special Court for Sierra Leone
SAfCJHPR Statute of the African Court of Justice and Human and Peoples’ Rights
UN United Nations
UNGA United Nations General Assembly
UNSC United Nations Security Council
UNSG United Nations Secretary General
UNTS United Nations Treaty Series
VCLT Vienna Convention on the Law of Treaties
Table of Contents Title Page……… 1 Dedication………...2 Acknowledgments………...3 List of Abbreviations………...4 Table of Contents……….5
Chapter One: Research Design 1.1 Background to the Problem………...6
1.2 Arrangement of Chapters...………9
Chapter Two: Literature Review 2.1 Africa-ICC Relationship………9
2.2 Universal Jurisdiction………..11
2.3 The Habre Case………...……….14
2.4 ICC Prosecution Strategy……….16
2.5 Merged African Court’s Jurisdiction………...18
2.6 Positive Complementarity with the ICC………..20
2.7 Official Capacity and Immunities………23
Chapter Three: The Courts 3.1. Prosecutions by the African Court or ICC: Merits and Demerits………...25
3.2. Challenges to Admissibility………31
3.3. Referrals and Cooperation Agreements………...………...32
Chapter Four: Conclusions and Recommendations 4.1.Conclusions………..35 4.2.Recommendations………37 Bibliography……….39
Chapter One
Introduction
1.1 Background to the Problem
The Rome Statute of the International Criminal Court (ICC)1 established a landmark institution that became the first permanent international criminal court after many previous failed attempts.2 The Court became operational in 2002,3 issued its first warrants of arrest in 20054 and its first trial commenced in 2009.5 One of the great expectations was that the ICC would contribute to ending impunity while inspiring, encouraging or even pressuring domestic justice systems to do the same under the principle of complementarity.6 The ICC presently has 123 States Parties and the African States constitute the biggest bloc with 34 members who also played a noticeable role at the Rome Conference where the Statute was drafted and adopted.7
In 2008, the African Union (AU) adopted the Sharm el-Sheikh Protocol8 that merged the African Court on Human and Peoples’ Rights (ACHPR) with the Court of Justice of the African Union (CJAU) to form a single court, the African Court of Justice and Human Rights (ACJHR); it was later renamed in 2014 by adding the word ‘Peoples’ (hereafter cited as AfCJHPR or African Court). The two former courts had different roles; the ACHPR was established to consider state-level human rights issues under its Protocol9 while the CJAU addressed disputes relating to general questions of international law, the validity of AU treaties and subsidiary legal instruments, and directives of AU organs.10 Amid the increasing tensions between the ICC and the AU caused by the perceived targeting of African leaders by the ICC, the African Court’s jurisdiction was expanded in 2014 by the
1 Rome Statute of the International Criminal Court 1998 (RS), adopted on 17 July 1998
2 Schabas, An Introduction to the International Criminal Court, 2009, p. 8-9 (Schabas) The UNGA tasked the ILC to prepare
the ‘Nuremberg Principles’, a task it completed in 1950, and the ‘Code of Crimes Against the Peace and Security of Mankind’ for prosecution of war crimes whose final draft was adopted by the ILC in 1996. Other subsequent UNGA Committees meanwhile worked on the draft statute of the ICC but the Cold War affected progress of this work. See Schabas p. 1-21 for a broader account of the creation of the Court.
3 See, art. 126 RS. The treaty entered into force on 1 July 2002 after the 60th instrument of ratification. 4 Prosecutor v Joseph Kony et al, Case No. ICC-02/04-01/05.
5 Prosecutor v Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06. The Lubanga trial commenced on 26 January 2009.
6 Nouwen, Complementarity in the Line of Fire, 2013, p. 8 (Nouwen)
7 Schabas, see note 2, p. 18. Many African States were in the group of 60 ‘like-minded’ caucus that was committed to key
propositions in the Statute including an inherent jurisdiction of the court over the ‘core crimes’ of genocide, war crimes, crimes against humanity (and perhaps, aggression).
8 Protocol on the Statute of the African Court of Justice and Human Rights, adopted on 1 July 2008 (Sharm el-Sheikh
Protocol)
9 art. 2, Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human
and Peoples’ Rights, adopted 10 June 1998, entered into force 25 January 2004.
10 art. 19(1), Protocol of the Court of Justice of the African Union, adopted 11 July 2003, entered into force 11 February
Malabo Protocol11 to include an international criminal law section.12 The African Court’s ratione materiae jurisdiction covers all the Rome Statute (RS) offences of Genocide, Crimes against Humanity, War Crimes and Aggression13 and adds the regional or transnational crimes of Unconstitutional Change of Government, Piracy, Terrorism, Mercenarism, Corruption, Money Laundering, Trafficking in Persons, Trafficking in Drugs, Trafficking in Hazardous Wastes and Illicit Exploitation of Natural Resources.14 The above offenses are defined in extenso in the Statute.15 The expanded jurisdiction of the African Court overturns the longstanding bifurcation of state and individual accountability mechanisms for human rights abuses16 into a single court, though some experts fear that this may be an overstretch of responsibilities.17 This study considers the matter further in Chapter Two.18
It has been convincingly argued by some statesmen, scholars and publicists that in post conflict African States with weak domestic institutions, it is imprudent to pursue justice before peace and prosecute top political leaders before a World Court that is geographically detached from their polity and that such prosecutions have the potential to jeopardize or even unravel peace processes because of ill timing.19 The debate particularly came alive following the decision by the ICC to issue an arrest warrant against Sudan’s President Omar Al-Bashir.20
The Kenyan Cases against President Uhuru Muigai Kenyatta and his deputy, William Samoei Ruto, appear apposite from this point of view because Kenyans, despite the ICC indictments of 2011, went ahead to elect the two indicted leaders in the 2012 general elections.21 Some scholars further argue that all the current ICC situations and cases are from Africa22 despite the fact that egregious mass atrocity crimes are being committed elsewhere in the world. In this regard, the highly publicized atrocities in the Israeli-Palestinian, Iraq and Syrian armed conflicts stand out as sore thumbs, although that is hardly a legal defense for not charging African perpetrators of heinous crimes.
11 Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, adopted on 27
June 2014 (Malabo Protocol) This Protocol added the word ‘Peoples’ to the Court.
12 See art. 16 (2), Statute of the African Court of Justice and Human and People’s Rights, for the international law chamber
(SAfCJHPR)
13 art. 5 RS. The Review Conference of the RS, held in Kampala in June 2010, adopted a definition of aggression under art.
5(2) RS, but the ICC will only have jurisdiction over the crime subject to a decision made after 1 January 2017 by the ASP under a resolution made at the Kampala Conference.
14 art. 28A (1), SAfCHPR
15 Ibid, see arts. 28B, 28C, 28D, 28E, 28F, 28G, 28G, 28H, 28I, 28I Bis, 28J, 28K, 28L, 28L Bis, 28M and 28N of the SAfCJHPR 16 Rau, Jurisprudential Innovation or Accountability Avoidance, 2012, p. 685 [online]
17 Ibid, p. 679
18 See section 2.5 infra, under merged court’s jurisdiction
19 Jalloh, Reflections on the Indictment of Sitting Heads of State and Government and Its Consequences for Peace and Stability
and Reconciliation in Africa, 2014, p. 48 (online] (Jalloh)
20 Prosecutor v Omar Hassan Ahmad Al-Bashir, Case No. ICC-02/05-01/09
21 Prosecutor v Uhuru Muigai Kenyatta et al, Case No. ICC-01/09-02/11 and Prosecutor v William Samoei Ruto et al, Case
No. ICC-01/09/11. The Kenyan leaders were indicted for events that culminated into the 2007/8 Post Elections Violence.
On the other side of the coin are the supporters of the ICC and proponents of justice at any cost, coupled with the concept of ‘non-recognition of official capacity’ while prosecuting international crimes. This school of thought could potentially oppose provisions in the Malabo Protocol that provide for personal immunity for a range of African leaders but leaves the question of their prosecution open, after their tenures of office expire.23 The AU proposal, seen in light of recent comments from some African Presidents about the ICC, represents a serious threat of African States withdrawing from the Rome Statute en masse, raising the question of whether the ICC would still remain relevant as a global court if this were to occur.24
This study traces the origins of the AU tensions with international criminal justice that seem to have been triggered by indictments of African heads of state and the concept of universal jurisdiction as practiced in some European states.25 It then unpacks the current focus on Africa by the ICC, a court some have labeled ‘an ideological construct’.26 It seeks to critically examine the implications of the concurrence of jurisdiction of the African Court and the ICC over a range of core international crimes. It seeks to answer the question on whether the investigation and/or prosecution of cases by the African Court would render them inadmissible to the ICC on the basis of complementarity, and what kind of arrangements are required to resolve possible conflicts between the courts.
The study is based on the hypothesis that it is possible for the African Court and the ICC to exist in tandem, instead of as competitors for jurisdiction, under the complementarity provisions of their Statutes with national courts. It is however submitted that, except for obligations under the UN Charter,27 there appears to be no hierarchy under international law between international organizations, including tribunals or courts.
The study concludes by arguing, in an attempt to answer the research questions, that territorial self-referrals from national authorities to the African Court or the ICC, coupled with the positive complementarity principle could avert possible clashes over shared jurisdiction since they share a common objective of closing the impunity gap, while recognizing that the two courts are separate and equal legal entities under international law.
23 See, art. 46A bis, SAfCJHPR. The immunities are for sitting Heads of State and 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.
24 The Star Newspaper, New AU Chairman Robert Mugabe says Africa must pull out of the ICC, Uhuru [Kenyatta] pledges a
million dollars for African Court, 31 January 2015 [online]
25 See, for example, the Habre and Yerodia ICJ Cases and the Belgian international arrest warrants controversy. 26 Hoile, Justice Denied, 2014, p. 16 [online] (Hoile)
1.2 Arrangement of Chapters
Chapter One is the introduction to the study with the background indicating how and why the
African Court came into existence, its concurrent jurisdiction with the ICC and origins of the tensions of the AU with the ICC. It also sets out the research questions and methodology of the study. Chapter Two is the Literature Review where the souring of relations between the AU and international criminal justice are linked to the controversial concept of universal jurisdiction and the narrow selection of cases by the OTP - ICC. Complementarity and the problematic issue of official capacity and immunities are also examined. Chapter Three briefly analyses the merits and demerits of trials in both the proposed African Court and the ICC, and the possible division of labor between the national, regional and international criminal courts by way of referrals and complementarity. Chapter Four concludes the study with a summary of the pertinent findings and makes some modest proposals that national authorities or other entities eligible under the Statute could refer cases that they are unable or unwilling to prosecute to the African Court.28 It is submitted that such cases would end up with the ICC if both the domestic and African Courts remain inactive on the same case, as envisaged by article 17 of the Rome Statute,29 including cases not prosecuted because of the immunities provided by the Malabo Protocol, where appropriate.30 The study employs both descriptive and normative approaches as theoretical frameworks. Source materials include legislation, textbooks, jurisprudence and articles by legal scholars, journals and online research.
Chapter Two
2.1. Africa - ICC Relationship
The relationship between Africa and the ICC had bright beginnings with a common goal of ending impunity for international crimes, thus the reason for the 34 current members of the Rome Statute on the continent. In February 1998 representatives of 25 African states met in Dakar, Senegal where the ‘Dakar Declaration for the Establishment of the International Court’ was adopted. 31 It was noted in the said declaration that national legal systems have generally failed to hold perpetrators accountable for gross violations of international law.32 The vast
28 See arts. 29 and 30 of the Sharm el-Sheikh Protocol on the various entities eligible to refer cases to the African Court 29 This provision of the RS, together with art. 1 thereof, is the basis of the principle of complementarity
30 art. 46A bis SAfCHPR , see note 23
31 Cole, Africa’s Relationship with the International Criminal Court, 2014, p. 673 [online] (Cole) 32 Ibid, p. 674
majority of African states later voted in favor of adopting the Rome Statute.33 A significant factor to the souring of relations were the Al-Bashir, and later Kenyatta, indictments of sitting Heads of State and the non-response by the UNSC on the AU request for deferral of the case for twelve months pursuant to articles 16 and 98 of the Rome Statute.34 As relations soured, Jean Ping, the former AU President argued that, ‘we are not against the ICC, but there are two systems of measurement…[T] he ICC seems to exist solely for judging Africans’.35 Prominent among the many critics of the ICC is Rwandan President, Paul Kagame who describes it as a fraudulent institution created for poor African states as a form of imperialism aimed at control.36 Ugandan President, Yoweri Museveni also condemned the ICC for the Uhuru Kenyatta trial in the following terms:
The problems that occurred in Kenya in 2007 and that happen in other African countries are, first and foremost, ideological. ICC to handle them as just legal matters is the height of shallowness. My view is that, at the next summit, African countries should review their membership of the ICC treaty.37
President Robert Mugabe of Zimbabwe, as current AU Chairman, has suggested the same agenda item of en masse withdrawal from the ICC at the next AU summit scheduled for June 2015 in South Africa.38 In July 2010, the Kampala AU Summit adopted a ‘decision’ or resolution reaffirming its earlier decision of 2009 made in Sirte, Libya, not to cooperate with the ICC in the arrest of President Al-Bashir.39 It further rejected ‘for now’ the opening of the ICC liaison office in the Ethiopian capital, Addis Ababa and criticized the conduct of the ICC Prosecutor on the basis that he had been making egregiously unacceptable, rude and condescending statements in the Bashir and other ICC cases.40 Therefore by mid 2010, there was no longer any love lost between the parties.
Africa’s relationship with the ICC demonstrates the problem with international law enforcement. The major players in the Security Council have not even signed the Rome Statute but have referred cases to the ICC against two sitting African heads of State, yet the US clearly prefers ad
33 Ibid, forty-seven African States attended the Rome Conference of Plenipotentiaries that adopted the RS in July 1998.
Senegal was the first country to ratify the RS on 2 February 1999.
34 See, Assembly/AU/Dec. 245 (XII) Rev.1 for the decision by the AU not to cooperate with the arrest and surrender of
Al-Bashir, pursuant to art. 98 of the RS
35 Cole, see note 31, p. 679 36 Ibid, p. 684
37 New Vision Newspaper, 10 October 2014, p. 14 [online] 38 The Star Newspaper, see note 24
39 See, Assembly/AU/Dec. 296 (XV), Kampala, July 27, 2010 para. 5 40 Ibid, paras. 8 and 9
hoc tribunals as seen in official comments on the locus for trial of Saif Al-Islam Gaddafi.41 Some in the international community in favor of ICC indictments trivialized the AU and regional mediation efforts to resolve the Kenyan conflict following the 2007/8 post-elections violence; the protagonists, Kibaki and Odinga formed a coalition Government and such efforts probably saved many lives.42 In the Cote d’Ivoire situation where then President Laurent Gbagbo declined AU peace overtures that resulted in unnecessary loss of lives in post elections violence, the AU’s reaction was different; consequently Gbagbo’s indictment by the ICC did not lead to any fallout with the AU.43 Indeed, the AU decided to support the French action in Cote d’Ivoire that led to the arrest and subsequent transfer of Gbagbo to The Hague for trial.44
Therefore, in assessing African conflict situations, the AU appears to be better suited for decisive but measured actions vis-à-vis other international actors. The causes of the ICC-Africa rift as discussed above appear to be legal-political in nature, but this study focuses on the legal implications of the two courts working in tandem for a common purpose as established by their respective mandates. The deeper political dimensions of the debate on how the weak and strong are treated on the world scene are beyond the scope of the present study.
2.2 Universal Jurisdiction
The concept of universal jurisdiction is still highly controversial and often misunderstood by both legal practitioners and politicians, according to the available literature on the subject in academia. States exercise jurisdiction in criminal law under five bases: territory, protection of vital national interests, nationality of offender (active personality), nationality of victim (passive personality), and universality.45 The Permanent Court of International Justice, in the SS Lotus Case, indicated a presumption favoring jurisdiction forum delicti commisi, the place where the crime was committed. The Court held that jurisdiction was only territorial, unless a permissive rule to the contrary existed, derived from international custom or from a convention.46 The Rome Statute also reflects hierarchical supremacy of the territoriality and active nationality principle in international criminal law, in article 12 thereof.47 However, article 12 was the result of a compromise between advocates of universal jurisdiction and the far more limited
41 Cole, see note 31, p. 697
42 See, Ext/Assembly/AU/Dec.1 (Oct 2013) for details, Decision on Africa’s Relationship with the ICC, para. 7. 43 ISS Seminar Report, The International Criminal Court: Justice Slowly but Surely? (ISS) 2012, p. 1 [online] 44 ibid.
45 Schabas, see note 2, p. 58.
46 The Case of the SS Lotus (France v Turkey) 1927 PCIJ Ser. A, No 10, para. 45. The First Lotus Principle provides that
jurisdiction is territorial.
jurisdictional powers for the ICC.48 The ICC Statute does not, by any means, preclude states from exercising universal jurisdiction.49
Since July 2008, the Assembly of Heads of State and Governments (the AU Assembly), the supreme organ that determines policy for member states, has adopted three decisions or resolutions regarding the concept of universal jurisdiction.50 They acknowledged its relevance in closing the impunity gap under international law but also noted that European judges were using it to settle political scores, thus the pushback from the AU.51 Indeed, one of the main factors that led to calls for the establishment of a Criminal Chamber within the proposed African Court was the definition and scope of the universality concept with the so called ‘long arm statutes’ and the subsequent indictment of African state officials either by domestic European courts, especially France, the UK, Spain and Belgium, or by the ICC.52 To date, there are raging debates about the legal meaning of the concept.
However it is widely accepted that customary international law allows for universal jurisdiction over the core crimes.53 Core crimes, or international crimes proper, are the Rome Statute crimes under article 5 thereof, plus international terrorism and torture (as distinct from torture as one of the categories of war crimes or crimes against humanity).54 Nevertheless, outside academia, state practice on universal jurisdiction is far too scant to vindicate the tendency of liberal scholars to continuously expand the list of crimes subject to the universality principle.55
The broad, absolute, pure or true form of universal jurisdiction, favored by Germany and Spain until recently, appears to be that a State can prosecute any person based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction.56 In some cases, even where public prosecutors disagreed on the validity of cases under investigation, some Belgian and Spanish magistrates reveled in the fame that resulted from their often controversial work of indicting high profile politicians57 in absentia and moreover for non-core crimes. It is further known that prospective witnesses in the African cases have been relocated to Europe, as part of universal jurisdiction investigations, and those
48 Ibid.
49 ibid, p. 1048-1049
50 Jalloh, Universal Jurisdiction, Universal Prescription? 2010, p. 2 [online] (Jalloh II) 51 Ibid.
52 Murungu, Towards a Criminal Chamber in the African Court of Justice and Human Rights, 2011, p. 2 [online] (Murungu) 53 Wilt, see note 47, p. 1049
54 Cassese’s International Criminal Law, 2013, p. 21 (Cassese) 55 Jalloh II, see note 50, p. 11
56 Ibid, p. 7 - 8 57 Ibid, p. 17
seeking better economic options could have been part of the problem.58 The perceived abuse of this jurisdiction, particularly over African officials caused the AU to hold high-level meetings with the EU in 200859 to try and resolve the matter and in 2009 to lobby for the inclusion of the item, ‘Abuse of the principle of universal jurisdiction’ on the agenda of the United Nations General Assembly (UNGA) and the request was accepted.60
Previously, France had indicted Libyan leader Muamar Qaddafi for torture and terrorist acts but its Court of Cassation acquitted him in the case of SOS Attentats et Beatrice Castelnau d’Esnault c. Gadafy 61
; the former President of Mauritania, Maaouya Ould Sid’Ahmed Taya was also indicted by France in 2005.62 In early 2009, a Paris court issued indictments alleging corruption, a non-core crime, against five serving African presidents, to wit: Denis Sassou Nguesso of Congo; Teodoro Obiang Nguema of Equatorial Guinea; Omar Bongo of Gabon; Blaise Compaore of Burkina Faso and Eduardo Dos Santos of Angola.63
A Magistrates Court in London saved Robert Mugabe of Zimbabwe in 2004 by rejecting a private application for his arrest in England by relying on the rules of customary international law on immunity of serving heads of state.64 In 2008 a Spanish Judge issued international arrest warrants for 40 senior Rwandan state officials for crimes allegedly committed in 1994.65 Against this background of arrest warrants issued against several African leaders despite not being for alleged core crimes, it is not surprising that the new AU mantra of ‘African solutions for African problems’ has taken root.
The movement for ‘ pure universal jurisdiction’ has further slowed down since the conspicuous silence on its legitimacy in the Arrest Warrant case and now appears to be a moving train without its locomotive.66 After this case, the Brussels Court of Appeal held that such cases
58 ibid, p. 18
59 The AU-EU Expert Report on the Principle of Universal Jurisdiction, 16 April 2009, See Council of European Union
8672/1/09 REV 1 ANNEX. The two organizations appointed six independent legal experts in January 2009 to provide a description of the legal notion of the universality principle, namely: Professors Antonio Cassese, Pierre Klein, Chris Maina and Dr. Roger O’Keefe, Dr. Mohammed Bedjaoui and Dr. Chaloka Beyani from different countries but they served in their personal capacities under their terms of reference.
60 Yee, Universal Jurisdiction: Concept, Logic and Reality, 2011, p. 504 [online] See A/63/237 (3 February 2009) and annex
(African Union Memo). The matter became agenda item no. 84 of the 64th Session of the Legal - 6th Committee of the UN. 61 Murungu, see note 52, p. 3
62 Ibid. 63 Ibid, p. 4 64 Ibid. 65 Ibid, p. 5
66 Yee, see note 60, p. 503-504. The rather cautious ICJ Judgment in the Arrest Warrant case, after the DRC Foreign Affairs
Minister Mr. Yerodia, was indicted by Belgium, the author argues, is the probable cause of the calming of international relations thereafter. Both Belgium and Spain abandoned pure universal jurisdiction by narrowing down their statutes.
would be decided only if the alleged perpetrators could be found on Belgian territory and its law on international crimes was amended to require a connection with Belgium for trial to proceed.67
2.3 The Habre Case and the Establishment of the Criminal Chamber
The Habre case is particularly interesting as regards universal jurisdiction and the subsequent creation of the alternative African Court.68 Mr. Hissene Habre has been living in Senegal since fleeing from Chad where he was President from 1982-1990. A Belgian Court accused him of serious human rights abuses in Chad in his former official capacity and issued several extradition requests to Senegal that were all ignored. When Habre was indicted by Belgium, Senegal sought advice from the AU because of the complexity of its constitutional and jurisdictional limitations on how to handle his trial or extradition. The AU then requested its Commission in Decision Assembly/AU/Dec.297 (XV) to engage Senegal on the modalities for trial. It invoked its authority under the Constitutive Act in articles 3(h) and 4(o) thereof in Decision Assembly/AU/Dec.127 (VII), and mandated Senegal to try Habre before a competent domestic court, acting in the interests of Africa.69
The AU had established a Committee of Eminent African Jurists in 2006 and received its report in July 2006; the central purpose of their task was to avoid Habre’s trial in Belgium.70 The jurists’ benchmarks from the AU included adherence to the principles of total rejection of impunity and how to deal with similar issues in future; they concluded that the two existing African Courts at the time lacked jurisdiction for international crimes.71 For the future, the jurists recommended the need for an African Court with international criminal jurisdiction.72 They further recommended that the merger of the two existing courts should lead to a single court having jurisdiction for international crimes.73 They noted that there was room under the Rome Statute for such a development and that it would not be a duplication of the work of the ICC74 but further noted the need for it to operate as an independent institution free from all forms of pressure, to guarantee its impartiality.75
67 Murungu, see note 52, p. 6. Thereafter art. 17 of the old law was amended and replaced by the Belgian Law of 23 April
2003 to make it ‘user- friendly’ by the combination of progressive features with a procedural instrument.
68 Murungu, p. 8 69 Ibid.
70 Ibid.
71 Ibid, p. 10, The two courts are the CJAU and the ACHPR 72 Ibid, p. 11
73 Ibid, See also, Report of the Committee of Eminent African Jurists on the Case of Hissene Habre, para 35 74 Murungu, p. 11
The African Court itself observed other procedural legal shortcomings76 leading to the necessity of an AU agreement with Senegal that established the Extraordinary African Chambers within the Senegalese judicial system. This was after the ICJ ruled in favor of Belgium that Senegal either tries Habre or extradites him, in Case Concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal).77
The Extraordinary Court’s Statute vests it with jurisdiction to try the crime of genocide, crimes against humanity, war crimes and torture in articles 4 (a) to (d) thereof.78 Hissene Habre’s trial will be the first in the world where the courts of one country prosecute the former ruler of another country for alleged human rights crimes, and the first universal jurisdiction case to proceed to trial in Africa, scheduled to commence in mid 2015.79 It is important for lessons to be learned in this trial process, with the potential to try former African leaders who commit serious offences while in power, as the case indicates a relentless pursuit for justice over many years.
A legal scholar posits that Western courts have demonstrated that they are capable of accomplishing trials against foreigners who commit heinous crimes on distant shores via universal jurisdiction and have thus made a contribution to the development of international criminal law.80 He submits that this confirms the notion that the creation of international criminal law is a dialectical process that implies the cross-fertilization between international and national courts.81 Further, that African indignation may have been triggered by isolated events in which Western judges have overstepped their powers under the universality principle and also displayed a remarkable lack of sensitivity about the consequences of their actions.82 He suggests that it can serve as a subsidiary default mechanism and contribute to a watertight system of international criminal law enforcement.83 He succinctly observes that finding the best place for prosecution requires a sixth sense for political sensitivities.84
76 The ACHPR in its first ever ruling, held that it lacked jurisdiction to determine whether Senegal had violated its
obligations by adopting legislation to try Habre, in Michelot Yogogombaye v Senegal, App. No.001/2008, Judgment of 15 December 2009. Senegal had not recognized the Court’s jurisdiction to receive individual complaints against it, as required by art. 34(6) of the Protocol establishing the Court
77 The Economist Magazine, 14 February 2015 [online] The Habre case has bounced around legal technicalities for the
past 15 years until the AU and Senegal set up Extraordinary African Chambers within the Senegalese judicial system in 2012, to facilitate the trial. The temporal jurisdiction of the Court is from 7 June 1982 to 01 December 1990 under art.1 of that agreement.
78 art. 10(3) of the Statute provides for individual criminal responsibility and irrelevance of official capacity of an accused
whether as Head of State or Government, or as a responsible government official.
79 HRW, The Case of Hissene Habre before the Extraordinary African Chambers in Senegal, April 27, 2015 [online] Le Monde,
the French newspaper has called the case ‘ a turning point for justice in Africa’. Habre was indicted with five other officials from his administration but they are not before court for various reasons, leaving only him arraigned for trial; the Court’s budget for the trial, funded mainly from Western donor contributions, stands at over US $10 million.
80 Wilt, see note 47, p. 1063 81 ibid.
82 Ibid, p. 1043 83 Ibid, p. 1051 84 Ibid, p. 1066
2.4 ICC Prosecution Strategy
Various politicians, jurists and scholars have criticized the ICC prosecution strategy over the years, for its perceived narrow selectivity of cases, politically inspired decisions and alleged prosecutorial incompetence leading to delayed or collapsed trials.85 The appointment of a Gambian, Ms. Fatou Bensouda as the second ICC Prosecutor replacing the Argentine, Louis Moreno Ocampo, was seen by observers as a move to appease the African member states of the ICC not to view the Court as advancing an anti-African agenda. However, the ICC’s selection of cases has hitherto drawn criticism even from its keenest supporters, for perceived bias or applying justice selectively, including Human Rights Watch (HRW).86 HRW stated that:
Concerns that impunity is not being tackled consistently around the world have a factual basis. Officials from or supported by powerful states have been able to avoid international prosecutions. Victims…in Afghanistan, Burma, Chechnya, Gaza, Iraq, and Sri Lanka, for example, have lacked access to justice.87
The Rome Statute provides that individuals or organizations may submit information on crimes within its jurisdiction, referred to as ‘communications’88 or complaints to the Prosecutor under articles 15, 53 and 54 thereof. The Office of The Prosecutor (OTP) filters them by excluding those manifestly outside its jurisdiction and most are dismissed; those remaining go to the second phase of ‘situations under analysis’.89 Phase three is an assessment of admissibility and complementarity and phase four concerns whether the investigation would serve the interests of justice, despite the gravity of the crimes and the interest of the victims. This provision, under article 53 (1) (c) of the Statute, ensures prosecutorial discretion without the need for any explanation.90 Following the indictment of President Bashir in 2009, the first for a sitting head of state, the AU wanted to propose an amendment to the text of the Rome Statute so as to provide direction to the Prosecutor
85 See, for instance, High Profile Collapse of ICC Case, 5 December 2014 [online] The Uhuru Kenyatta charges, brought
against the first sitting head of state by the ICC, were dropped in December 2014 for lack of evidence, leading some to question the wisdom and credibility of the Court. Some legal experts accused the prosecution of using the so-called ‘missing documents’ and disappearance of witnesses as excuses to disguise the multiple failures of its investigations into the Kenya Post Elections Violence (PEV) cases. The Kenyan Deputy President, William Ruto remains on trial arising out of the PEV cases.
86 Hoile, see note 26, at p. 28 87 Ibid, p. 29
88 ICC-OTP Policy Paper on Preliminary Examinations, para. 73 [online]
89 ISS Report, The International Criminal Court: Justice Slowly but Surely? 2012, p. 1
90 Ibid, this gap of almost unbridled prosecutorial power, dubbed ‘no mans land’ in art. 53 RS has given rise to criticism by
on how he or she should choose his or her cases.91 The Kenya Cases led to the AU decision setting up a Contact Group led by the Chairperson of the AU Executive Council to engage the UNSC, in particular the P5 with a view to discussing all concerns of the AU and its relationship with the ICC; including deferral of the Kenyan and Sudan cases in order to get their feedback before the trials began on 12 November, 2013.92 They further called for amendments to the Rome Statute.93
In 2002-2003 the OTP received 472 requests for war crimes investigations and by October 2007 they had reached 2,889 communications alleging crimes in at least 139 countries.94 By September 2010 they had topped over 8,874 complaints.95 Nevertheless, the ICC began investigations in just 8 countries, all of them in Africa: Uganda, the DRC, CAR, Sudan, Kenya, Ivory Coast, Libya and Mali; and has opened cases against 32 people, all of them Africans.96 Despite these criticisms of biased selectivity, one should note that a number of the so-called ‘self-referrals’ were made by four African countries outsourcing their responsibility to investigate and prosecute to the ICC under article 14 of the Rome Statute, namely Uganda, DRC, CAR and Mali97 and two were United Nations Security Council (UNSC) referrals for Libya and Sudan. However there are suspicions that the then Chief Prosecutor actively solicited for at least two self-referrals.98 Ocampo justified them in the following terms:
[T] he court and a territorial State incapacitated by mass crimes may agree that a consensual division of labor is the most logical and effective approach. Groups bitterly divided by conflict may oppose prosecutions at each other’s hands and yet agree to a prosecution by a Court perceived as neutral and impartial.99
ICC Judge Adrian Fulford commenting on reasons for the much delayed first trial, noted that there were no internal precedents for the Court to follow and its ‘juridical modus
91 See, Assembly/AU/Dec. 245 (XIII) Rev.1 (July 2009), see para. 8 on proposal for amendments to RS arts. 13, 16, and a
comparative analysis of arts. 27 and 98 to the Review Conference of the RS. Para. 11 expressed concern over the Prosecutor’s conduct and decided to prepare guidelines and a code of conduct for exercise of his discretionary powers under art. 15 RS.
92 See: Ext/Assembly/AU/Dec. 1(Oct. 2013) in para 10 (iii). 93 Ibid, para 10 (vi)
94 Hoile, see note 26, p. 28 95 Ibid.
96 Ibid.
97 Nouwen, see note 6, p. 346 98 Hoile, see note 26, p. 219 99 Ibid.
vivendi’ was being constructed from scratch.100 He noted that in England and Wales there were efforts being made to abolish the pre-trial phase in the Magistrates Court with the Crown Court instead considering preliminary issues to expedite prosecutions and reduce possible duplication as may be occurring in the ICC pre-trial processes.101
The Court had also considered an ‘in situ’ hearing in the DRC for the prosecution’s opening speeches and to permit the victims and witnesses to make limited speeches that would benefit from being heard at home rather than in Northern Europe.102 Eventually, the DRC hearing was abandoned, probably because of the logistical and security concerns that the Judge had expressed fears over.103 It is unfortunate that the African Court has not picked Judge Fulford’s reflections and largely replicated the ICC multi-Chambers approach that may similarly cause protracted trials.
It is submitted that in the interests of justice being seen to be done, by building trust that the international criminal justice system is fair, the OTP-ICC could broaden its selection of cases because perceptions of a biased prosecution strategy against a particular region serve no one’s interest in the long run. Member States are free to withdraw their membership from the Rome Statute if ‘unfairly targeted’ and indeed some leaders from Africa have already indicated as much.
2.5 Merged African Court’s Jurisdiction
The merged African Court combines the African Court on Human and Peoples’ Rights with the African Court of Justice to form the African Court of Justice and Human and Peoples’ Rights (AfCJHPR).104 The term ‘jurisdiction’ broadly refers to the ‘official power to make legal decisions’105 and ‘the area over which the legal authority of a court or other institution extends.’106 The concept of jurisdiction is integral to the sovereignty of States and fundamental to the functioning of the international legal system.107 The Malabo Protocol vested the AfCJHPR with international criminal jurisdiction to try fourteen international
100 Judge Fulford, Reflections from the Bench; speech delivered to ‘Friends of the ICC’ in the Netherlands, 20 February
2007. He was the Presiding Judge of Trial Chamber 1, at p. 2[online]
101 Judge Fulford, see note 100, p. 3 102 Ibid, p. 3 - 4
103 Ibid, p. 4
104 Malabo Protocol, see note 11. For the previous courts Protocols, see notes 8 and 10 105 Oxford Paperback Dictionary and Thesaurus, p. 509
106 Ibid.
107 Report of the Commission on the Use of the Principle of Universal Jurisdiction by some non-African States as recommended
crimes as discussed in Chapter One.108 The Assembly may also extend the jurisdiction of the Court to incorporate additional crimes in order to reflect developments in international law.109
The AU Constitutive Act under article 4(h) provides for the right of the AU to intervene in a member State in respect of grave circumstances, namely the commission of crimes against humanity, war crimes and genocide.110 This inherent right and subsequent Assembly decisions are arguably the legal basis for establishing the criminal chamber.111 In its decision Assembly/AU/Dec. 292 (XV) of July 2010 the AU Assembly requested the AU Commission to finalize the study on the implications of extending the African Court’s jurisdiction to cover international crimes and the Commission engaged consultants to draft a Protocol for this new Chamber.112 The said Protocol was adopted in Malabo, Equatorial Guinea on 27 June 2014 and has so far received four signatures but no ratifications as yet.113
The four ‘core’ crimes whose jurisdiction is shared with the ICC are central to this study in determining how the courts will manage the shared jurisdiction without clashing. Under article 46H of SAfCJHPR, the merged African court’s jurisdiction is complementary to national courts and courts of Regional Economic Communities (REC) where the communities provide for it, and should be crimes of sufficient gravity to justify action by the Court.114 It is however silent on any relationship with the ICC but under article 46L (3) provides for being entitled ‘to seek for cooperation or assistance of regional or international courts, non-States Parties or cooperating partners of the African Union and may conclude agreements for that purpose.’
The Court’s statute confers jurisdiction over individual criminal responsibility115 and corporate criminal liability for legal persons, except States,116 the latter category being unique, as the ICC has no jurisdiction over corporate bodies.117 Even before this expanded jurisdiction, some experts were anxious that the African Court would suffer from an
108 See SAfCJHPR, art. 28A 109 Ibid, art 28A (2)
110 Constitutive Act of the African Union, adopted11 July 2000, entered into force 26 May 2001. 111 Murungu, see note 52, p. 19
112 Ibid, Consultants, led by Donald Deya, submitted the Draft Protocol and the Commission organized two workshops in
South Africa in August and November 2010 to validate the study findings.
113 The current signatories to the Protocol, all appended in January and February 2015, are Benin, Guinea Bissau, Kenya
and Mauritania.
114 Ibid, These regional courts include ECOWAS for the West African communities and the East African Court of Justice. 115 SAfCJHPR, art. 46B
116 Ibid, art. 46C
overextension of responsibilities.118 It previously combined both State-level human rights violations and treaty interpretation law and now adds an individual-level criminal accountability mechanism for human rights violations on a continental scale, the first such conflated jurisdiction in the world.119
The dual prong system of State and individual accountability is arguably indispensable to comprehensively address grave human rights violations.120 For instance commission of a war crime could produce responsibility at both individual and State level and thus a combined trial would arguably achieve better results.121 The African Court could therefore simultaneously pursue individuals and companies allegedly involved in fuelling conflict, for instance in the so-called ‘conflict minerals’ cases in Africa and deter their presence there. This author argues that the article 46L provision in the SAfCJHPR is one of the avenues available for formalizing substantive agreements that could be made between the ICC and the African Court for shared crimes, if resort to amending both their Court’s statutes is to be avoided. The shared jurisdiction crimes are examined in the next section on positive complementarity.
2.6 Positive Complementarity with the ICC
This study posits that one of the solutions of resolving the potential conflict between the proposed African Court and the ICC, because they share jurisdiction on four international crimes, is through the concept of positive complementarity. Legally, complementarity is a technical admissibility rule under article 17 of the Rome Statute, in determining when the ICC may proceed with the investigation or prosecution of a case within its jurisdiction.122 By using its literal, rather than legal meaning, namely to describe an international court and domestic courts ‘complementing’ each other, various writers, diplomats, activists and legal practitioners, including the OTP itself, have advocated a division of labor according to which the ICC deals with the cases involving those bearing the greatest responsibility (the ‘big fish’) while domestic courts handle the less serious cases (the ‘small fry’).123 This interpretation has arguably discouraged domestic courts from tackling the high profile cases, if they were capable of handling them in the first place, leaving them for the ICC to
118 Rau, see note 16, p. 679 119 Ibid, p. 670
120 Ibid, p. 685
121 Rau, see note16, p. 686 122 Nouwen, see note 6, p. 11 123 Ibid, p. 12
handle.124 In the African Court’s statute, inadmissibility, under article 46H (2) (a) to (d) is formulated in almost identical terms of article 17(1) (a) to (d) of the Rome Statute and provides for complementarity with national and regional economic community courts where appropriate.125
Though the SAfCJHPR is silent on its relationship with the ICC, the OTP-ICC could formulate a policy to refrain from acting once the African Court genuinely investigates a matter from Africa since there would be no ‘ reasonable basis to proceed’ under article 53 (1) of the RS.126 By analogy, the OTP of either the ICC or African Court could rely on the domestic law doctrine of lis pendens and declare a case inadmissible because it is pending before the other tribunal, to avoid conflicts; a few authors accept the existence of this principle in international law.127 To contribute to this system of division of labor, the ICC Prosecutor promulgated a policy of ‘positive complementarity’ which he referred to as the second dimension of complementarity, the first being complementarity as an admissibility rule. 128 According to this policy, rather than competing with national systems for jurisdiction, the OTP will encourage national proceedings wherever possible.129 Positive complementarity, as opposed to ‘negative’ or ‘classical’ complementarity (admissibility rule) is thus a program of action.130 The policy includes the ICC providing States with information from public sources, evidence gathered by the Court, advice, training and technical support.131 This is a symbiotic relationship that this author supports and partly answers the current questions under study on how the African Court will relate with the ICC.
Given the above discussion, does the African Criminal Chamber have a legal basis under the Rome Statute as regards complementarity? Under articles 1 and 17 thereof, the Statute provides for complementarity with national courts, not regional courts, but a progressive interpretation of positive complementarity might, for the purpose of closing all impunity gaps, infer that even regional courts could have jurisdiction over the same crimes within the ICC jurisdiction.132 International penal tribunals under article VI of the Genocide Convention can try the crime of genocide and this could include the proposed AU Court.133
124 Ibid.
125 art. 46H(1)SAfCHPR 126 Rau, see note 16, p. 691
127 See Oellers-Frahm, Multiplication of International Courts and Tribunals , 2012, p. 77. The authors cited include D.P.
O’Connell, International Law, Vol. 1, 1965, 13
128 Nouwen, see note 6, p. 20 129 Ibid.
130 Ibid. 131 Ibid, p. 97
132 Murungu, see note 52, p. 18 133 Ibid, p. 19
Treaty and customary international law allows States to punish international crimes: thus it is proper that courts be established, whether domestically, regionally or at international level, for this purpose.134 A trend was set of establishing such courts in Africa, including the Rwandan and Sierra Leone tribunals.135 It would arguably be advantageous for Africa to establish a court which is close to the African people and which might have access to the victims and areas where crimes were committed.136 Indeed, the Special Court for Sierra Leone (SCSL) was the first international criminal tribunal to be established where the crimes were committed, with national and international judges sitting alongside each other, pursuant to an agreement with the UN and Sierra Leone, instead of a top-down UNSC Resolution, as was the case for the ICTR and ICTY137, and this model appears progressive.
Complementarity generally requires that the authority of an appropriate court, for criminal prosecution under international law, vests only after legal or directly implied determinations that a State with closest connection to the defendant will not prosecute for that crime. It may not desire to prosecute for political reasons or lack of competent institutions or constitutive procedures, or a combination of pertinent scenarios. Further, the African Court has been vested with jurisdiction over some crimes specifically relevant to Africa that are outside the jurisdiction of the ICC, like Unconstitutional Change of Government (including military coups), Terrorism, Human and Drug Trafficking and Illicit Exploitation of Natural Resources. The Court also has jurisdiction over the Crime of Aggression and could make a head start, as the ICC will not have such jurisdiction until after January 2017 if member states pass the Kampala amendment.138
It should also be noted that not all African States are parties to the Rome Statute. Although the establishment of an international criminal chamber is practically feasible and possibly a milestone for Africa, it will require political will from African states to make it more effective.139 This author notes that it also requires a mindset of leadership that rejects impunity at all levels, beyond the black letter laws in the statutes and active civil society organizations to promote awareness of rights and remedies in the several international human rights instruments.
134 Ibid, p. 23 135 Ibid. 136 Ibid.
137 Schocken, The Special Court for Sierra Leone, 2002, p. 437 [online]. The ICTY and ICTR are UN subsidiary organs while
the SCSL is treaty based though it was called for by UNSC Res. 1315. Two judges were appointed by the UNSG while Sierra-Leone appointed one, under art. 12(1)(a) of its Statute
138 See arts. 121 (3), 8 bis and 15 bis RS 139 Murungu, see note 52, p. 20
In summary, using a liberal construction or broad interpretation of positive complementarity, it is possible to argue that once the African Court genuinely investigates and/or prosecutes crimes committed in Africa, this would render them inadmissible to the ICC under article 17 of the Rome Statute, though the provision relates to national courts. If this proposition is acceptable, the next question would be: which court is more suitable to try the African ‘big fish’ or ‘small fry’ and this shall be considered by way of recommendations in Chapter Four.
2.7 Official Capacity and Immunities
The Rome Statute provides for uniform application of its provisions without any distinction based on official capacity.140 In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt from criminal responsibility under the Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.141 It further provides that immunities or special procedures or rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.142 These rules, which were initially formulated as article 7 of the Nuremberg IMT Charter, were subsequently endorsed by the UNGA in 1946 in Resolution 95(1) and by the International Law Commission as Principle III in 1950.143
In June 2014, the AU Assembly adopted the Protocol of the African Court after inserting the immunity clause as article 46A bis.144 It provides that:
No charges shall be commenced or continued before the Court against any serving AU Heads 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 in office.
The AU Legal Counsel justified the clause as a ‘compromise’, to allow government officials to fully attend to their responsibilities while in office, which could also be seen as a warning to leaders who abuse their power to commit serious crimes as they could be tried after
140 art. 27(1) RS 141 Ibid. 142 art. 27(2) RS
143 Jalloh, see note 19, p. 46
leaving office.145 The AU further argues that the Rome Statute cannot override the immunity of state officials whose countries are not its members and intends to seek an advisory opinion from the International Court of Justice on the immunities of State officials within the rubric of international law pursuant to Decision Assembly/AU/Dec. 419(XIX) in paragraph 3. It is also unclear in the Malabo Protocol who precisely benefits from personal immunity while in office because it refers to ‘AU heads of state or government’, which presumably refers to people occupying such offices in a State that is a party to the AU Constitutive Act. However, the circumstances in which someone might be ‘acting or entitled to act’ in the capacity of head of state are unclear. The phrase ‘or other senior state officials based on their functions’ gives little to no guidance about which functions are likely to result in immunity being granted.146
In the Arrest Warrant case the ICJ held that ‘diplomatic and consular agents, [and] certain holders of high ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs enjoy immunities from jurisdiction in other States, both civil and criminal’ relating to conduct carried out on behalf of a State, but not the state officials for their own benefit. Therefore, when abroad on state duties they enjoy full immunity from arrest but the home state of the accused may itself prosecute the official or waive immunity for him to be tried abroad.147 In the context of the African Court, the wording of article 46A bis suggests that the immunity conferred is absolute though temporary. As the ICJ held in Arrest Warrant;
Immunity from jurisdiction enjoyed by the incumbent Ministers for Foreign Affairs does not mean that they enjoy impunity in respect of any crimes they might have committed, irrespective of their gravity. Immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts. While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law.148
Accordingly, the cloak of immunity enjoyed by state officials is removed the moment they leave office and the African Court could pursue them thereafter.149 The immunity clause
145 Ibid. The idea of suspension of trials of serving officials also resonates with Ext/Assembly/AU/Dec.1 of October 2013
para. 10(ii) where the AU called for suspension of the Kenyan cases ‘until they complete their terms of office’
146 du Plessis, see note 144, p. 8
147 Arrest Warrant case (DRC v Belgium) 2002, ICJ Reps. 3, para. 51 148 Ibid, para. 60
found in article 46A bis has attracted considerable criticism from various quarters because it is retrograde in combating impunity and is also unclear on whom it covers.150 However the AU contends that under customary international law and article 98 RS, certain leaders are entitled to immunity.151 One way to avoid this confusion and legal uncertainty is for the AU to eschew the immunity clause in favor of continued commitment to rejecting impunity under the AU Constitutive Act and other regional instruments that conflict with this clause.152
Chapter Three
3.1 Prosecutions by the African Court or ICC: Merits and Demerits
The African Court’s jurisdiction over the fourteen crimes ratione materiae was partly discussed in section 2.5. This section highlights issues of concurrence of jurisdiction with the ICC when the four core crimes occur in Africa, including for member states of both court’s statutes and non-member states of the ICC or the Protocol, in terms of their legal obligations. It attempts to answer the question as to what happens under different possible scenarios including when the immunity clause in the SAfCJHPR clashes with the Rome Statute provisions and how the ICC has recently interpreted its article 98 immunities.
After fifteen States ratify the Malabo Protocol and the Court’s Statute, it shall come into force and become binding on them and progressively to other member States as they accede to it.153 Under article 46E of the statute, the Court’s temporal jurisdiction is in respect to crimes committed after its entry into force. The African Court may, based on a member state’s territorial, active or passive nationality or protection of their vital interests, exercise its jurisdiction on a case, if one or more of those conditions apply; these are the traditional criminal jurisdictional bases.154 For it to act however, the AU Assembly, the Peace and Security Council (PSC) of the AU or a State Party has to refer a situation to the Prosecutor, or the Prosecutor initiates a propio motu investigation.155 Complementarity with national courts and courts of regional economic communities where applicable, is provided under
150 ibid, p. 3 151 Ibid. p. 10
152 Ibid, p. 11, See for instance art. 12 of the International Conference on the Great Lakes Region (ICGLR) 2006 Protocol
for the Prevention and Punishment of the Crime of Genocide, War Crimes and Crimes against Humanity and all forms of Discrimination where immunities are denied to African Heads of State.
153 Malabo Protocol, see note 11, art. 11 (1) and (2) 154 SAfCJHPR, art. 46E (2) bis
article 46H. These requirements, including the admissibility clause under 46H (2), largely mirror those provided under the Rome Statute in article 17.156
The question remains if any African State can risk controversy by arresting a sitting Head of another State, even if there were clear indications that core crimes were committed under his or her watch.157 The Malabo Protocol answers this question in the negative, by introducing the immunity clause in article 46A bis, which applies ‘during their tenure in office’. Yet articles 86-93 of the Rome Statute impose obligations on its member states to cooperate with the ICC in the investigation and prosecution of persons responsible for international crimes, including the arrest and surrender of suspects to the ICC.158
This situation could pose a possible dilemma for the 34 African States Parties to both the AU and the AfCJHPR when it becomes operational, as to their AU and Rome Statute obligations. Thus the possible reason for the calls for the en masse withdrawal of African States from the Rome Statute to avoid such a scenario, though the Rome Statute and customary international law, within certain limits, recognize diplomatic immunity for a category of persons.
The African Court may therefore not have it plain sailing while trying to prosecute and punish international crimes, due to the likely involvement of senior state officials and military commanders in such crimes.159 Some cases are politically sensitive, and peace and security matters in Africa usually lie in the hands of one person, the Head of State.160 When a Head of State is implicated in international crimes of concern to the African Court, like happened in President Omar Al- Bashir’s case with the ICC, claims of a fragile peace and security in the country [Sudan] are likely to emerge to prevent his indictment; indeed this concern was the AU’s reason for non-cooperation in his arrest161 a claim that may well have substance if one studies the background to the Sudan conflict in Darfur, which is beyond the scope of the present study.162 It should be noted that Sudan is not a party to the Rome Statute but a member state of the AU, thus it presents an interesting case that is pertinent to
156 See art. 17 on issues of admissibility including the unwilling/unable test that is pertinent for both courts to seize a case 157 Murungu, see note 52, p. 20
158 See, art. 87 (7) RS, where a member state’s non-cooperation with the Court may lead the ICC to refer such a matter to
the ASP of the RS or UNSC as appropriate; under art. 89 RS in respect of the surrender of persons to the Court and art. 92 thereof, provisional arrests for urgent cases. However, to execute requests under art. 93 RS, procedures of national law apply.
159 Murungu, see note 52, p. 20 160 Ibid.
161 Ibid. See also the Peace and Security Council of the AU concerns in its Communiqué of the 175th meeting, 5 March 2009
and Decision Assembly/AU/Dec.221 (XII)
this study because Sudan’s situation was referred to the ICC by the UNSC acting under article 13(b) of the Rome Statute.
Requests for surrender by the ICC, which require a State to act inconsistently with its obligations with respect to diplomatic immunity of either a person or property of a third State, can only be entertained if the Court first obtains the cooperation of that third State for waiver of immunity under article 98 of the Rome Statute, unless the UNSC refers the case, under recent ICC jurisprudence. The scenario of a member state surrendering an indicted African President to the ICC who is visiting that State would appear remote in view of this provision, in conjunction with the jurisprudence of the ICJ in the Arrest Warrant’s case discussed earlier. Such a scenario was recently played out in South Africa from 14-15 June 2015 when a South African (SA) Court made a provisional order restraining President Bashir from leaving SA pending its decision to surrender him to the ICC, while he was attending an AU Summit in Johannesburg. According to media reports, Bashir flew out of SA as the High Court continued to hear the case where it eventually decided that he should have been arrested, indicating the problem of enforcement of judicial decisions in sensitive cases of diplomatic immunity.163
Since the UNSC referred the Sudan situation to the ICC acting under Chapter VII of the UN Charter, this scenario overrides the immunity clause in article 98 as the ICC has held in Decision on the Cooperation of the DRC regarding Omar Al Bashir’s Arrest and Surrender where the said resolution for cooperation ‘was meant to eliminate any impediment to the proceedings before the Court, including the lifting of immunities…’164 In that case, President Bashir attended a regional meeting in the DRC and flew out without being apprehended, thus prompting this ICC decision. The DRC argued that it was bound by AU obligations not to surrender a serving AU Head of State during their tenure in office, but the ICC held that the problem was the AU maintaining such a position,165 a potential flash point with the African Court. Therefore, the language of UNSC Resolutions under Chapter VII must be considered when immunities of indicted persons are in issue. For member states of the Rome Statute, given the above rulings by the ICC and the SA Court, there appears little option in the duty to surrender indicted persons to the ICC except for policy reasons advanced by the AU that are vulnerable to challenge in domestic and international courts.
163 Aljazeera, Sudan’s Bashir flies out of South Africa, 15 June 2015 [online]
164 See Case No. ICC-02/05-01/09 of 9 April 2014, paras. 14-29. The Court referred to UNSC Res.1593 (2005) that
referred the Bashir case to the ICC, and the ICC request to all State Parties to execute Bashir’s arrest and surrender. The DRC relied on art. 98(1) among other reasons for non-cooperation and Court cited art. 97 RS; they ruled that the DRC would have informed the Court to decide on the matter itself under art. 119 RS and guide on what the DRC should do.
165 Ibid, ICC Judgment, para. 30. This protection for a category of African leaders is also contained in art. 46A bis SAfCJHPR
