The International Criminal Court and the African Continent: Prosecution of International Crimes in National Courts
The Rome Statute of the International Criminal Court (hereinafter Rome Statute) was negotiated in the spirit of attaining international peace and security by eradicating impunity through an international court that would investigate and prosecute international crimes, complement national courts, and build domestic capacity and understanding. In doing so it was important to take into account justice for the victim, the offender, and the community, locally and internationally. It was also critical that international criminal procedure learn from and adapt national criminal procedure and adopt some of the highly relevant motives of domestic criminal law. The importance of these lessons is nowhere more obvious than in the relationship that exists between the International Criminal Court (ICC) and Africa. Yet despite more than ten years of international court practice, the role of the ICC has not been clarified. Moreover, legal and geo-political issues have made the court’s role more complex and contentious, especially in its relationship with African state parties and the African Union (AU).1
All but one of the cases and situations currently before the ICC are from the African continent. This fact, inter alia, has elicited a critical response from the African continent, resulting in the significant push towards establishing a regional or several regional judicial mechanisms that would exercise universal jurisdiction and prosecute international crimes in Africa. But implementing the principles and practice of international criminal law in regional legal mechanisms presents both ideological and practical difficulties. Mr. Christopher Gevers, a lecturer at the University of KwaZulu-Natal, South Africa, noted in his presentation at the tenth East African Magistrates and Judges Association Conference in Kigali, Rwanda:
First, let me begin by saying that to the extent that these regional mechanisms are being empowered with criminal competence in order to displace the role of the ICC in respect of cases currently before the Court they are, with respect, a fool’s errand. Such mechanisms will not satisfy the Court’s complementarity requirements, nor relieve states of their international obligations to cooperate with the Court in respect of these cases. To the extent that these initiatives are designed to regiona-lise international criminal justice in respect of future cases, there are both principled and pragmatic reasons to proceed with caution. From a pragmatic perspective, the cost implications alone of this endeavor are problematic. What is more, from a legal perspective there are challenges in respect of regionalising international criminal law generally, as well as expanding the jurisdiction of the African Court of Justice and Human Rights in particular. These problems have led Max du Plessis to conclude, in respect of the African Court that “it is inconceivable that the draft Protocol, with the various problems identified … could be meaningfully implemented.” (Gevers 2012)
This mandate—to eradicate impunity—is ambitious. The prosecution of international crimes was envisaged to occur first and foremost in national courts, but with the assistance of international tribunals and the ICC when states were unable or unwilling to prosecute. This concept of complementarity presents as a conundrum for the ICC. Professor Michael Newton notes that even without a definition of complementarity in the Rome Statute, according to Article 1 the ICC was to complement, and be in addition to, the prosecution of international crimes by national courts (Newton 2010). The African proposal to move towards regional mechanisms raises significant legal difficulties, especially in regards to the principles of jurisdiction and complementarity.2 The relationship of international criminal law and regional international criminal mechanisms will require thoughtful and careful consideration by scholars and the international community. According to Max du Plessis, the question is not if Africa moves towards regional mechanisms to address crimes against humanity, genocide, and war crimes, but rather, when (du Plessis 2010: 84, emphasis added). The presence of justice and post-conflict judicial mechanisms within the jurisdiction of where the atrocities were committed is a positive aspect that both addresses the needs of the victims and builds public confidence in the justice system. Yet, if the impetus is geo-political, then this could lead to a situation where the delicate role carved out for the ICC ceases to exist.
The Waki Commission was instrumental in taking the initial steps towards the investigation of the 2007–2008 post-election violence in Kenya, and acknowledged the importance of the eradication of impunity by providing the names of the alleged perpetrators to then ICC Prosecutor, Luis O’Campo.3 The importance of the eradication of impunity is also noted in instruments adopted under the aegis of the OAU/AU, which set out the shared values of the Union and underlined Africa’s commitment to combatting impunity, namely Article 4(h) of the Constitutive Act of the AU relating to the right of the Union to intervene in a Member State in respect of grave circumstances, such as war crimes, genocide, and crimes against humanity.
To date, the ICC is involved in seven African cases: Kenya, Uganda, Sudan, the Central African Republic (CAR), Libya, Cote d’Ivoire,4 and the Democratic Republic of Congo (DRC). Of these, Sudan and Libya are not states party to the Rome Statute.5 Given the universal acknowledgement, both within the international community and Africa, that impunity must be eradicated, it would seem to be a relatively simple matter to agree upon the strategies and policies needed to accomplish this. Unfortunately, political and other factors significantly impact this universal agreement. The growing criticism levelled at the ICC from Africa suggests that the ICC case selection process is not motivated by a specific desire to eradicate impunity, but rather political persuasions.
In this chapter, I will consider the role of the ICC in Africa, focusing on the complex and unsettled relationship between the ICC and Africa, which includes allegations of bias and the ICC’s targeting of Africa. The relationship needs to be examined against the legacy of colonialism, the antagonism that some African states have towards Western imperialism, and bias against the continent. I will look at the domestic implementation of the Rome Statute in Africa, referencing specifically two highlighted situations, namely the arrest warrant issued by the ICC against President Omar Al Bashir, and the long standing proceedings involving President Hissène Habré. The chapter concludes with a discussion on victim participation and its importance to the domestic prosecution of international crimes, and as a consequence the regional judicial options being explored by the AU as either alternative to, or complementary with, the ICC.
As an international community we should accept that the prosecution of international crimes in national courts in post-conflict countries will be procedurally less than optimal, while at the same time responding more positively to the transitional principles of providing justice in a place which has nexus with victims and perpetrators alike. It is a feature of the administration of justice in lesser resourced countries that justice requires a wider lens, or at the very least a different lens.
Domestic Legislation Implementing Rome Statute
For decades the African continent has experienced devastating conflicts that have resulted in innumerable deaths, the commission of the most heinous of crimes, and in some conflicts such as the Rwandan genocide, as close to as many perpetrators as victims.6 The conditions in a post-conflict country following such devastation mean that in order to be able to address impunity and impose justice, collaborative and sustainable support from the international community is essential. But at the same time, this collaboration must not detract from the ownership for justice that the country must experience in order to repair the harm.
As provided under Article 1 of the UN Charter, the international community and the United Nations have pledged to maintain peace and security.7 When the Rome Statute was being negotiated it was well supported by African states, who were in fact the first to take up ratification. However, in recent times the relationship between the AU and African state parties, and the ICC, has changed. The relationship is complex with both tensions and positive reinforcement. Judge (as she was then) Navanethem Pillay stated that:
From the standpoint of the rule of law and justice, the ICC is one of the greatest achievements of the twentieth century. It is a court that deserves to be taken seriously by African states. On paper this appears to be the case. Currently, 30 African states have ratified the Rome Statute. But the real challenge is converting this expression of high-level political commitment into awareness and practical implementation on the ground. It is only through increased awareness, enhanced capacity and broad-based political support from practitioners and policy-makers that Africa will be able to gain a reputation for being a continent seriously committed to ending impunity and non-adherence to the rule of law. (Pillay 2008: viii–ix)
Okindalu argues that African states have a very poor compliance record, stating that,
[t]he reasons for this poor record are, on closer examination, much more complicated than a straightforward absence of will on their part to take these norms seriously, although this is clearly a factor. It is conceivable that far from being involved in deliberately subverting the relevant instruments, many of the states genuinely lack the skills, personnel and resources required to comply with the complex web of obligations and norms undertaken by them through these treaties. (Okindalu 2003: 24)
But more importantly he makes the observation that most African states are post-colonial and existence under an imperialist regime meant a negation of human rights. Therefore, as a legacy of the colonial regime, institutions that protect and advocate for human rights have not had the opportunity to develop and flourish. The new independent Africa needs to establish these institutions, which will be a gradual process. This approach is a positive commencement point that provides for the engagement of the ICC and the greater international community, addressing the relevant institutions and capacity building that can be undertaken cooperatively. It is also a framework against which the implementation of the Rome Statute should be assessed. Although a complex topic, the success, and impact of the Rome Statute in the fight against impunity must be determined. It is beyond the scope of this chapter, but in his Solemn Undertaking of the Chief Prosecutor on 16 June 2003, Luis Moreno O’Campo stated: “As a consequence of complementarity, the number of cases that reach the Court should not be a measure of its efficiency … The absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success” (ICC 2009: 3).
The way in which national jurisdictions contribute to the mandate and success of the Rome Statute therefore is critical. The Statute requires states parties to legislate for the investigation and prosecution of international crimes as defined in its Articles 6, 7, and 8.8 Domestic implementation by African state parties has resulted in problems. Firstly, the definition of the offences—namely crimes against humanity, war crimes, and genocide—is of concern with some states creating offences that comply with the ICC definitions, and others merely adopting or incorporating the articles in the legislation.9 Secondly, there are also issues of compliance with ICC orders and the failure of national legislation to make clear the responsibility to surrender to the ICC any persons for whom an arrest warrant has been issued. Finally, also within the definitional arena, there is the issue of diplomatic immunity and the various interpretations of diplomatic immunity. The last thorn has greater international application as it has caused dissension between the ICC and European states parties, as well as between the ICC and African states parties. It may well be that the difficulties with implementation and compliance within, and by, the African states parties, have their roots in the failure of each state party to appreciate the importance of compliance in eradicating impunity. The application of Article 27 of the Rome Statute, which provides for the irrelevance of official capacity, has been controversial. Article 27 prohibits exempting any official of a government from the jurisdiction of the ICC, despite any immunity that might apply under other national or international convention. Compliance with court requests for arrest is provided for by Article 89(1), and then Article 98 sets forth the exceptions to the rule of surrender. It is critical to appreciate that Article 98 does not allow for non-compliance, nor does it operate as a denial of the Court’s mandate, namely to eradicate impunity. The provision states that requests for surrender will not operate inconsistently to a state’s obligations under international law, such as diplomatic immunity. This clause was not intended to protect perpetrators from prosecution, and did not envisage that states parties would negotiate agreements that would offer protection from prosecution to high ranking perpetrators. In many states parties, there is legislation in place that provides persons holding public office with immunity from prosecution.10 The national legislation provides for the immunity of Heads of States, and other officials. Such practices must be reconciled with this provision.
Section 4 of the South African Implementation of the Rome Statute of the International Criminal Court Act of 2002 (hereinafter SA ICC Act) provides for the jurisdiction of domestic courts over international crimes. Particularly of note, apart from universal jurisdiction, is that it stipulates that a Head of State will not be immune from investigation and prosecution for the commission of international crimes specified by the Rome Statute. The legislation provides for territorial and nationality jurisdiction, but also addresses the issue of retrospectivity. Article 11 of the Rome Statute provides for jurisdiction ratione temporis so that the Court has jurisdiction only for crimes committed after the Rome Statute came into force.11 The Statute’s Articles 11(1) and (2) further provide that when a state becomes a party to the Statute, the Court may exercise its jurisdiction only with respect to crimes committed after the Rome Statute came into force in the state party.12 In South Africa, section 25(3)(1) of the Constitution provides that no one shall be prosecuted for an act or omission that was not an offence under “either national or international law at the time it was committed or omitted.” This can be interpreted to mean that international law would encompass customary international law and therefore be invoked for the prosecution of international crimes that occurred before the entry into force of the Rome Statute (Strydom 2002: 356).
Five African states parties have enacted specific domestic legislation to give effect to the Rome Statute.13 Three other states parties have existing legislation that provides for the prosecution of international crimes within their criminal code, or have enacted legislation that provides for the prosecution of crimes as defined by the Geneva Conventions.14
Only two states parties of the six African situations15 before the ICC have passed legislation designed to implement the Rome Statute. Kenya, Mauritius, Senegal, and South Africa have incorporated provisions in their domestic laws, which are intended to give effect to principles of complementarity and cooperation.16 Burundi, Niger, Mali, and the Republic of Congo have legislation that provides for complementarity (Amnesty International 2010).
The Institute of Security Studies (ISS) reviewed the level of domestic implementation of the Rome Statute in five African states parties, namely, Botswana, Ghana, Kenya, Uganda, and Tanzania. The report concludes, as a general comment across the African continent, that the rate of implementation was very low amongst the thirty-three states parties. However, it focused its final comments on the five countries reviewed and noted in the report that the reasons for the low rate of implementation were distinct in each jurisdiction with as much diversity as there was commonality (du Plessis and Ford 2008). This is not surprising given the diversity inherent in each of the jurisdictions. Of primary concern, however, and consistent across the five countries reviewed, is the lack of knowledge and awareness of the significance of implementation amongst civil society, officials, the legal profession, and the judiciary. The importance and relevance of implementation was not understood as a mechanism for combatting impunity (du Plessis and Ford 2008: 115). It is not only the lack of awareness that impacts on clear and consistent implementation, but also a lack of capacity and resources affecting considerably the delivery of justice in almost all African states parties. These failings manifest in a lack of suitably qualified professional staff and technological and forensic support, which occasions the states parties to prioritise, so that regional issues such as terrorism, piracy, and transnational crimes receive the limited resources available.
The necessity for clear and consistent implementation is not well-understood by the African states parties. There are regional mechanisms in Africa that allow for the exchange of information and provide for cooperation, for example the East African Court of Justice, as well as judicial forums. Despite attempts by the ISS, through training and workshops, the importance of implementation is not filtering to politicians and legal bodies, and remains a significant barrier to implementation and the appreciation of how implementation would assist in ending impunity and provide better and more efficient justice. The gravamen of this issue is twofold, firstly often the higher political levels do not prioritise the prosecution of international crimes over and above other issues, and secondly, in some jurisdictions, the political will is not present. Though some of the countries reviewed by the ISS demonstrate that cooperation with the ICC can be possible through other legislative and diplomatic processes, the mechanisms are not easily accessible or sufficiently swift (du Plessis and Ford 2008: 121).
Given that the ICC was established to seek accountability for atrocities and crimes against humanity, in an ideal world all states would be party to the Rome Statute. Unfortunately, this is not true in reality. If compliance and implementation remain significant stumbling blocks to the purpose of the ICC, it is pertinent and highly relevant that the international community and the ICC should look at improving ways in which national courts can come into the breach. Elena Bayliss makes a critical point about the importance of national courts being visible and in the front line of ending impunity. She takes the discussion to the original debate; that if as an international community, our goal is to build local judicial and justice systems, then supporting the national prosecution of atrocities provides a realistic opportunity for achieving that goal (2009: 25).
One of the dangers inherent in the failure of states’ parties to implement national legislation is the so-called “impunity gap.” The ICC was established to prosecute the superior or command offenders, and not the middle and lower order perpetrators. As Abi-Saab (2003: 599) states, the principle of complementarity gives priority to the domestic courts. It is important to support, national courts in the prosecution of the middle and lower order offenders. Apart from being the initial foundation for the formation of the ICC, it is clear that principles of transitional justice positively reinforce the prosecution of such crimes within the national jurisdiction, thereby responding to the community entitlement to efficient, effective, and local remedy and justice. The practical result of prosecutions in national courts is the gradual raising of awareness, knowledge, and capacity, which in turn satisfies the goal of ending impunity. The long-term effects will be to strengthen the rule of law and accountability.17
In November 2011, under the guidance of the Attorney-General, Nigeria established a working group to report on the implementation of the Rome Statute. The statement released by the Attorney-General, Mohammed Bello Adoke, stressed the importance of implementing domestic legislation to demonstrate to the international community Nigeria’s willingness and capability to investigate and prosecute breaches of human rights. Moreover, this would “enable Nigeria to examine and prosecute her own ICC cases where necessary, instead of allowing the ICC to do so, adding that the non-implementation of the statute is giving the wrong signal to the ICC that Nigeria is not capable of handling her human rights infraction cases” (Federal Ministry of Justice 2011).18 This viewpoint will be discussed in the next section, but the impetus is double-edged, and though it signals the imperative of addressing human rights infractions, the primary rationale given is one that fosters sovereignty rather than an aura of international cooperation.
Universal Jurisdiction and Diplomatic Immunity: Mr. Habré
The case of Mr. Hissène Habré illustrates not only the difficulties of prosecuting international crimes in the absence of cooperation, but also the obstacles encountered when prosecuting international crimes in national courts in Africa.19 Habré` was president of Chad from 1982 to 1990. In 1990, he was deposed by Idriss De`by Itno, and fled to Senegal where he continues to reside. During his presidency, it is alleged that Habré committed crimes against humanity, and was responsible for political killings, torture, “disappearances,” and arbitrary detention. In 2000, victims of the atrocities in Chad commenced criminal proceedings against Habré in Senegal and Belgium. The Senegalese courts dismissed proceedings to prosecute Habré, declaring they were not competent in the case. Belgium has requested the extradition of Habré on three occasions. Senegal has refused the first three requests and the fourth is pending. Belgium commenced proceedings in the International Court of Justice (ICJ) in 2009, alleging that Senegal is in breach of its obligations under the Convention Against Torture, and its obligations to prosecute those accused of crimes against humanity (see ICJ 2009). The Court completed its public hearings in March 2012 (ICJ 2012a).
The positions of Heads of State, ministers, special envoys, diplomats, and other diplomatic officials are often accorded protection from prosecution pursuant to various international and national instruments.20 Exceptions to the principle exist, namely, these officials enjoy no immunity within their own jurisdiction, the state can waive the immunity, immunity can end when the person ceases to hold office, and proceedings can be instituted in international courts.21 On 18 November 2010, Habré instituted proceedings in the Economic Community of West African States (ECOWAS) Community Court of Justice seeking a declaration that Senegal had committed violations of his human rights by, inter alia, the enactment of retrospective legislation contrary to Articles 7.2 of the African Charter on Human and Peoples’ Rights and 11.2 of International Covenant on Civil and Political Rights. These proceedings were consequential to a mandate given by the AU to Senegal to judge Habré “on behalf of Africa by a competent court with guarantees of a fair trial.”22
On 18 November 2010, in Hissène Habré v. Republic of Senegal, the ECOWAS Community Court of Justice ruled that an ad hoc international court must try Habré. The Court specifically noted “[T]he mandate received by [Senegal] from the African Union confers upon it a mission of conceiving and suggesting all proper modalities to prosecute and judge strictly within the scope of an ad hoc special procedure of an international character as is practiced in international law by all civilized nations” (HRW 2010: 18).
The conclusion of the Court was that international customary law requires international courts to prosecute international crimes, unless states have provided for this prosecution in national legislation, and such legislation existed at the time the offences were committed. This conclusion does not sit comfortably with a large body of precedent that has decided otherwise, as well as the Preamble to the Rome Statute which states “recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes” (United Nations 1998: 3). Furthermore, the reasoning of the Court is such that it fuses two issues: whether Senegal has the jurisdiction under international law to prosecute Habré for crimes against humanity,23 and if so, whether the prosecution would then contravene the principle against retrospectivity of criminal prosecutions.24
The AU Assembly held extensive debate on the way in which the decision of the ECOWAS Court was to be implemented (AU 2011, 2012a). While the AU Assembly was considering its position, on 17 January 2012 Belgium filed with the Senegalese authorities a fourth request for Habré’s extradition.25 On a program broadcasted on 7 June 2012, West Africa Democracy Radio (WADR) stated that Macky Sall’s government in Senegal gave an assurance that Habré would be prosecuted in Senegal for alleged international crimes committed while he was President of Chad (WADR 2012).
The International Court of Justice delivered its decision in July 2012 (ICJ 2012b). It is clear, however, that the decision did not resolve the international legal position of Habré. The Court found that it had jurisdiction to hear and determine the application by Belgium. It also found that Senegal had breached its obligations under Article 6 (para. 2) and Article 7 (para.1) of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by failing to undertake an immediate preliminary inquiry into the facts surrounding the alleged crimes. It further required Senegal, without delay, to take positive action to submit Habré to competent authorities for prosecution.
Before the commencement of proceedings by Belgium in the ICJ, Senegal had approached the AU to assist. The AU advised Senegal that they should either try Habré, or extradite him to a country that was willing to prosecute him.26 The salient legal issues in the numerous national and international proceedings involving Habré are retrospective prosecution of international crimes, the operation of universal and extra-territorial jurisdiction, and immunity of foreign Heads of State. The prosecution of Habré for crimes against humanity and torture, which was the basis for Belgium’s submission to the ICJ, brings to the fore all the critical principles that are foundational to the successful operation of the ICC. Conversely, it also demonstrates how the failure of cooperation and complementarity principles results in the inability to prosecute successfully.
Following the decision of the ICJ, Senegal agreed to an AU plan to establish a special court to prosecute the former President in the Senegalese justice system, with African judges appointed by the AU presiding over his trial.27 The agreement called for “Extraordinary African Chambers” to be created inside the existing Senegalese court structure. The Chambers’ mandate was to prosecute the person or persons most responsible for atrocity crimes committed in Chad between 1982 and 1990. It will handle investigations, trials, and appeals, and will consist of Senegalese and judges from other African countries. The Senegalese National Assembly on 17 December 2012 passed legislation establishing the special Chambers to prosecute Habré. The reason for the establishment of ad hoc Chambers with an international character or jurisdiction was perceived necessary because of the ECOWAS decision which said that in order to avoid the principle of retropsectivity the Chamber should have the power to prosecute international crimes that were recognised as crimes at the time that the offences were committed. Irrespective of the scholarship that casts down on this view, Senegal decided to enact legislation which provided the Chambers with jurisdiction to prosecute and determine crimes against humanity, war crimes, genocide, and torture.28 The Extraordinary African Chamber in Senegal was inaugurated on 8 February 2013, with investigations anticipated to take fifteen months with a trial commencing in 2014. It remains to be seen at the time of writing how Senegal will discharge its international responsibility. The financial support and resources for the Chambers has been devised with assistance from other AU member states and the AU (see HRW 2013). Importantly, the legislation does provide for the participation of victims.
The role victims play in national and international proceedings does vary and is the subject of enquiry later in this chapter. Often the motivation must be considered. In Kenya, for example, the redress offered to victims of the 2007 post-election violence has been vexed. Kenya established an International Crimes Division within the High Court in light of recent moves by Attorney-General Tobiko to prosecute the perpetrators of crimes during the post-election violence. This has drawn some international criticism as it is seen as a strategy by Kenya to bring the ICC prosecutions back into Kenyan courts. Comments by Chief Justice Willy Mutunga have dispelled this criticism after he met with the Prosecutor of the ICC, Fatou Bensouda. In these comments he assured the international community that the domestic prosecution of perpetrators of the 2007 post-election violence would focus on the numerous other offences committed and not detract from the ICC proceedings, but as envisaged would complement the ICC. Ideally domestic and international courts would collaborate and complement international courts. It remains to be seen whether the decision by Kenya to adopt this course is a geo-political decision or one that seeks to provide access to justice for Kenyan victims (see Maliti 2012).29
Eradicating Impunity and Conflicts
There is considerable scholarship focused on the causes of conflict, including conflict in Africa. It may be that the “responsibility to protect” (R2P) doctrine will play a role in the long-term goals of not only identifying the causes of conflict, but also how to, as a result of identification, prevent conflict. The development of early warning systems across civil, business, and public service society, nationally and internationally, will undoubtedly foster greater cooperation and collaboration and give weight to all three pillars of the doctrine. Historically, African states have been beset with internal civil conflicts, particularly tribal conflicts and incidents of post-election violence.30 Wippman draws a parallel between the last decade of the twentieth century, and the Nuremberg and Tokyo trials of the 1940s, with the high level of enthusiasm for international criminal prosecutions (Wippman 1999). The last decade of the twentieth century saw the promise of an end to impunity with international tribunals, truth and reconciliation commissions, and the agreement to establish an international criminal tribunal.31 The R2P Doctrine propels the discussion more towards identification and prevention, rather than transitional justice concepts of reconciliation and mediation.
The steps towards eradication of impunity have been difficult. Africa has been vocal in its criticism of the ICC, its selection of cases, and the perceived focus on Africa. Scholars and African-based institutes have chronicled the view of the African Union and African states parties’ criticism of the ICC, saying the ICC is a tool for Western world oppression and bias (du Plessis 2008: 2; Hirsch 2012; Tenthani 2012). Though there are concerns that the deteriorating relationship will impact on the operation and efficacy of the ICC, as du Plessis points out none of the thirty-four States parties have withdrawn from the Rome Statute and over half of the African cases before the ICC have been self-referrals, the most recent being Mali (du Plessis 2012: 2).32 In addition, efforts are continuing in Africa to implement domestic legislation, and more recently there has been a desire from States parties, such as Rwanda, to prosecute perpetrators of crimes against humanity, genocide, and war crimes within national courts (du Plessis 2012: 2).