Complementarity and Africa: The promises and problems of international criminal justice, Max du Plessis

ESSAY

 

Complementarity and Africa:
The promises and problems of international criminal justice

 

Max du Plessis*
*Max du Plessis is a senior research associate at the Institute for Security Studies, an associate professor at the University of KwaZulu-Natal and an associate member of the KwaZulu-Natal Bar.


Published in African Security Review Vol 17 No 4

          .


Introduction


The idea of an International Criminal Court (ICC) has captured the legal imagination for well over a century. It became a reality on 18 July 1998 with the adoption of the Rome Statute of the ICC. After attracting the necessary ratifications the statute entered force on 1 July 2002. After being in existence for just over a year, by November 2003, the court, through the prosecutor, had received more than 650 complaints.


A consideration of these complaints reveals a disturbing lack of understanding about the court and the court’s functioning. Fifty of the complaints contained allegations of acts committed before 1 July 2002. This is problematic because as one commentator has noted, the court is not the means to scrutinise acts committed during the Vietnam war, or in Cambodia, or to settle scores with Napoleon. That is because the ICC’s jurisdiction is forward looking, and it does not have retrospective jurisdiction over acts committed prior to 1 July 2002. A number of communications dealt with acts which fall outside the subject matter of the court’s jurisdiction, such as environmental damage, drug trafficking, judicial corruption, tax evasion and less serious human rights violations that do not fall within the court’s remit, either.


Thirty-eight complaints alleged – no doubt correctly – that an act of aggression had taken place in the context of the war in Iraq in 2003. The problem here is that the US is not a party to the statute, and in any event, the ICC cannot exercise jurisdiction over alleged crimes of aggression until the crime is properly defined – something which the drafters of the statute expressly left until a future date, most probably some time after 2009. Two communications referred to the Israeli-Palestinian conflict. The difficulty here is that Israel is not a party to the statute, and the Palestinian authority is not yet a state and so cannot be a party. By early 2006 the prosecutor’s office recorded that it had received 1 732 communications from more than 103 countries, but that a staggering 80 per cent of those communications were found to be ‘manifestly outside [the Court’s] jurisdiction after initial review’ (ICC 2006).


The point is that a range of organisations and individuals that submitted the first complaints to the prosecutor seem to have fundamentally misunderstood the ICC; to have placed a false hope in the court as a means to provide them justice. The truth is that the court’s jurisdiction is limited temporally – it can only exercise jurisdiction on events after 1 July 2002 – and its jurisdiction is limited substantively – it can only consider the most serious crimes of international concern, being genocide, crimes against humanity and war crimes – and until a proper definition of aggression is agreed upon by state parties, it cannot consider complaints about the crime of aggression.


Furthermore, the court’s jurisdiction is limited geographically. In the case of state parties, the court can exercise jurisdiction over their nationals wherever they may be in the world. But for non-state parties – like the US – the court can only exercise jurisdiction if the guilty American commits his or her crime on the territory of a state party. The abuse at Abu Ghraib prison by US private Lynddie England and her cohorts – which undoubtedly constitute war crimes and torture – is not something that Iraq or others can refer to the court, since Iraq – on whose territory the crimes have been committed – is not a party to the statute. In a similar vein, the crimes committed in Zimbabwe cannot fall within the purview of the court so long as Zimbabwe remains a non-member of the ICC regime. However, and here is a twist, if a case is referred to the court by the Security Council – as was done in respect of the atrocities in Sudan – then the court can exercise jurisdiction even though Sudan is not a party. That is because the referral bears the imprimatur of the UN Security Council whose resolutions are binding on all member states of the UN, regardless of whether they are parties to the ICC Statute or not.

Complementarity


That brings me to the topic that is at issue in this paper: complementarity. Complementarity is perhaps the key feature of the ICC regime. It is thus vitally important to appreciate its significance, and in so doing, to understand both the promises and problems of international criminal justice as exemplified by the ICC.


The ICC is expected to act in what is described as a ‘complementary’ relationship with domestic states that are party to the Rome Statute. The preamble to the Rome Statute states that the court’s jurisdiction will be complementary to that of national jurisdiction, and article 17 of the statute embodies the complementarity principle, too. At the heart of complementarity principle is the ability to prosecute international criminals in a state’s national courts, on behalf of the international community, or to have in place mechanisms to arrest and surrender to the ICC persons that the ICC seeks to prosecute and who happen to be in that state’s jurisdiction.


The general nature of national implementation obligations assumed by states which elect to become party to the Rome Statute are wide ranging (see generally Schabas 2001; see also Brandon & Du Plessis 2005). The Rome Statutenotes that effective prosecution is that which is ensured by taking measures at the national level and by international co-operation. Because of its special nature, states party to the Rome Statuteare expected to assume a level of responsibility and capability, the realisation of which will entail taking a number of important legal and practical measures.


As I have already shown, the ICC does not exercise universal jurisdiction. The ICC’s jurisdiction is only triggered where the crime occurred on the territory of a state accepting the Court’s jurisdiction (territorial jurisdiction) or the accused is a national of such a state (active nationality principle), or the matter is referred to the Court by the UN Security Council exercising its Chapter VII powers. In terms of article 12 a state accepts jurisdiction by becoming a state party, or can do so by declaration in cases where it is a non-party state. The consequence is that many states which become party to the Rome Statute might not have previously provided for criminal jurisdiction on the active national principle: such states will normally require special legislation to create the domestic legal basis enabling them to bring a prosecution at home of a national accused of international crimes committed elsewhere.


It is thus clear that the state party assumes a significant role in the regime for the prosecution of international crimes, and certain particular features need to be present in the state’s legal and justice system in order for this complementary system of justice to function effectively.


The ICC has jurisdiction over those crimes regarded with the highest degree of concern by the international community: genocide, crimes against humanity, and war crimes. These are thoroughly defined in articles 6, 7 and 8 of the Rome Statute, with further elaboration and definition given in the ‘elements of crimes’ guidelines agreed to by states parties.


In addition to their duty to take steps to be able to surrender to the ICC persons for whom an arrest warrant is issued, states party to the Rome Statutemay take steps to prohibit, as a matter of national or domestic law, the crimes or conduct described in the statute. This is to enable them to conduct a prosecution of such crimes domestically should they elect to do so (and to remove any possibility that the crimes for which surrender is sought, cannot be found in national law). Article 70(4) meanwhile requires states to extend the operation and substance of their national criminal laws dealing with offences against the administration of justice, so as to criminalise in addition conduct that would constitute an offence against the ICC’s administration of justice.


Aside from enabling its own justice officials to prosecute international crimes before its domestic courts, a state party is furthermore obliged to cooperate with the ICC with regard to an investigation and/or prosecution which the court might be seized with. The prosecution of a matter before the ICC (and the process leading to the decision to prosecute) will normally require very considerable investigation, information gathering and interagency cooperation, and often require high levels of confidentiality and information or witness protection. Contact between the ICC (in particular the Office of the Prosecutor, OTP) and the national authorities will likely become extensive during the course of an investigation and any request for arrest and surrender or any prosecution. Indeed, in many cases there is likely to be a fairly complex and substantial process of information gathering, analysis and consideration that must be undertaken before the decision to formally investigate can even be taken. The ICC lacks many of the institutional features necessary for a comprehensive handling of a criminal matter: for ordinary policing and other functions, it will rely heavily on the assistance and cooperation of national mechanisms, procedures and agencies of states.


In order to be able to cooperate with the OTP during the investigation or prosecution period1 (or otherwise with the pre-trial chamber or the Court once a matter is properly before these, for example in relation to witnesses), a state party is obliged to have a range of powers, facilities and procedures in place, including by promulgation of laws and regulations. The legal framework for requests for arrest and surrender on the one hand, and all other forms of co-operation on the other, is mostly set out in part 9 of the Rome Statute. Article 86 describes the general duty on states to cooperate fully with the ICC in the investigation and prosecution of crimes. Article 87 sets out general provisions for requests for co-operation, giving the ICC authority (under article 87(1)(a)) to make requests of the state for co-operation. Failure to co-operate can, amongst others, lead to a referral of the state to the Security Council (article 87(7)). Article 88 is a significant provision, obliging states to ensure that the procedures and powers to enable all forms of co-operation contemplated in the statute are in place nationally. Unlike interstate legal assistance and co-operation, the Rome Statute makes it clear that by ratifying (which gives effect to the ICC), states accept that there are no grounds for refusing ICC requests for arrest and surrender.2 States are therefore obliged, under the relevant arrest and surrender processes provided in their own national laws, to follow up arrest warrants or summons issued by the ICC, and to surrender persons in due course.


While the Rome Statute envisages a duty to co-operate with the Court in relation to investigation and prosecution, it should be remembered that the principle of complementarity is premised on the expectation that domestic states that are willing and able, should be prosecuting these crimes themselves. The principle of ‘complementarity’ ensures that the ICC operates as a buttress in support of the criminal justice systems of states parties at a national level, and as part of a broader system of international criminal justice. The principle proceeds from the belief that national courts should be the first to act. It is only if a state party is ‘unwilling or unable’ to investigate and prosecute international crimes committed by its nationals or on its territory, that the ICC is seized with jurisdiction (article 17(1) of the Rome Statute).


To enforce this principle of complementarity, article 18(1) of the Rome Statute requires that the prosecutor of the ICC must notify all states parties and states with jurisdiction over a particular case – in other words non-states parties – before beginning an investigation by the ICC, and cannot begin an investigation on its own initiative without first receiving the approval of a chamber of three judges (article 15). At this stage of the proceedings, it is open to both states parties and non-states parties to insist that they will investigate allegations against their own nationals themselves, in which case the ICC would be obliged to suspend its investigation (article 18(2)). If the alleged perpetrator’s state investigates the matter and then refuses to initiate a prosecution, the ICC may only proceed if it concludes that that decision of the state not to prosecute was motivated purely by a desire to shield the individual concerned (article 17(2)(a)). The thrust of the principle of complementarity is that the system effectively creates a presumption in favour of action at the level of states.

The promise


Complementarity is therefore an essential component of the ICC’s structure and a means by which national justice systems are accorded an opportunity to prosecute international crimes domestically. Indeed, taken to its full extent, complementarity has the potential to signal the beginning of the end of the ICC. As Holmes put it: ‘Ironically … the provisions of the Rome Statute itself contemplate an institution that may never be employed.’ The ICC is one component of a regime consisting of a network of states that have undertaken to do the ICC’s work for it; to act, if you will, as domestic ICCs in respect of ICC crimes. It was written in relation to the experience at Nuremberg that, ‘[t]he purpose was not to punish all cases of criminal guilt. The exemplary punishments served the purpose of restoring the legal order; that is, of reassuring the whole community that what they had witnessed for so many years was criminal behaviour’ (Röling 1979:206).


Because of the ICC’s system of complementarity we can therefore expect national criminal justice to play an important role in doing the ICC’s work, by providing ‘exemplary punishments’ which will serve to restore the international legal order. In this respect, Anne-Marie Slaughter (2003), Dean of the Woodrow Wilson School of Public and International Affairs at Princeton, has pointed out that:

One of the most powerful arguments for the ICC is not that it will be a global instrument of justice itself – arresting and trying tyrants and torturers worldwide – but that it will be a backstop and trigger for domestic forces for justice and democracy. By posing a choice – either a nation tries its own or they will be tried in The Hague – it strengthens the hand of domestic parties seeking such trials, allowing them to wrap themselves in a nationalist mantle.

The ICC prosecutor put it as follows on taking up his post:

As a consequence of complementarity, the number of cases that reach the Court should not be a measure of its efficiency. On the contrary, the absence of trials before this Court, as a consequence of regular functioning of national institutions, would be a major success (quoted in McGoldrick et al 2004:477).

This is the promise of international criminal justice as exemplified in the ICC’s complementarity regime. One way in which we will come to regard the ICC as effective – as having achieved its promise – will be when its very existence operates to encourage domestic institutions to comply with their responsibilities under international humanitarian and human rights law to investigate and prosecute international crimes.

Some problems


Introduction


The reality is that while a ‘zero case’ scenario is a worthwhile aim, cases have found their way to the ICC in The Hague. Already the ICC prosecutor has the crimes committed in three states parties – the Democratic Republic of Congo (DRC), Uganda and Central African Republic (CAR) – in his sights, and the Security Council referred the Sudan crisis to the ICC even though Sudan is not a party to the ICC. In respect of Uganda, four arrest warrants were issued by the Court on 8 July 2005 for leaders of the Lord’s Resistance Army; with regard to Sudan, arrest warrants were issued on 27 April 2007 for Ahmad Muhammad Harun, former Minister of State for the Interior and currently Minister of State for Humanitarian Affairs in the government of Sudan, and Ali Muhammad Ali Abd-Al-Rahman (Ali Kushayb), a leader of the militia/Janjaweed. Investigations are ongoing with regard to the CAR.


It is in respect of the situation in the DRC that the Court has made the most progress. The prosecutor of the Court initiated investigations in the DRC in June 2004 after the Congolese government referred the situation in the country to the Court. Three persons are already in the custody of the ICC. On 17 March 2006, Thomas Lubanga Dyilo, a Congolese national and alleged founder and leader of the Union des patriotes Congolais (Union of Congolese Patriots), was transferred to the ICC. On 17 October 2007, the Congolese authorities surrendered and transferred Germain Katanga, a Congolese national and alleged commander of the Forces Résistance Patriotique d’Ituri (Front for Patriotic Resistance of Ituri, FRPI), to the ICC. He is currently charged as a co-perpetrator of the crimes allegedly committed during the joint Front for National Integration (FNI) and FRPI attack on the village of Bogoro in February 2003. Most recently, Mathieu Ngudjolo Chui became the third person in the custody of the ICC. He is a Congolese national and the alleged former leader of the FNI and currently a colonel in the national army of the government of the DRC. Chui was arrested on 6 February 2008 by the Congolese authorities and transferred to the ICC. Chui is alleged to have committed crimes against humanity and war crimes as set out in articles 7 and 8 of the statute, in the territory of the DRC since July 2002.


Arrest warrants without arrests: the problem of unwilling states


The small number of persons in custody hints at the difficulties that present themselves to the prosecutor and the Court when investigating and prosecuting a case against the backdrop of complementarity.


This is in the first place the result of a contradiction in that the Court will have jurisdiction only when a state party is unwilling or unable to do the job itself. In illustration, assume that the prosecutor has decided that state X is unwilling or unable to prosecute, such that the ICC might now be seized with jurisdiction in terms of the complementarity scheme. In order for the Court to be seized with jurisdiction – as with a criminal court in a domestic context – there needs to be an arrest. But unlike in a domestic context where the prosecution has a police force ready to assist in arresting accused who can then be brought to Court, the ICC prosecutor is a stateless actor, with no international police force to assist him in effecting arrests. He is at the mercy, if you will, of the state that is implicated in the international crimes he wishes to investigate. To get his hands on an accused he needs state X to be his eyes and ears on the ground and to arrest when possible. Yet state X is the very state that is unable or unwilling to assist him in the first place!


This is the hard reality that the prosecutor is currently experiencing. In the case of the Sudan referral, the Darfur Commission appointed by the UN to investigate the crimes committed in Northern Sudan found that as far as mechanisms for ensuring accountability for the atrocities committed in Sudan are concerned, the ‘Sudanese courts are unable and unwilling to prosecute and try the alleged offenders … Other mechanisms are needed to do justice’. This is no small finding. The Sudanese government (even as a non-party state) could have relied on the complementarity principle built into the ICC Statute to argue that it is willing and able to prosecute the offenders. Should it in fact be willing and able, the ICC may have to acquiesce and allow the Sudanese authorities to prosecute the offenders. It is apparently for this reason that the Commission saw fit to stress that the Sudanese courts are unable and unwilling to prosecute and try the alleged offenders, thereby clearing the way for a ‘clean’ referral of the matter by the Security Council to the ICC. However, the caustic response of the Sudanese government to the Security Council resolution referring the matter to the ICC suggests that the prosecutor will not be able to rely on Sudan’s government for co-operation in investigating and punishing persons responsible for gross human rights violations. Khartoum has called resolution 1593 a violation of its sovereignty (Agence France-Presse 2005a) and President El-Bashir reportedly swore ‘thrice in the name of Almighty Allah that [he] shall never hand any Sudanese national to a foreign court’ (Agence France-Presse 2005b). This sentiment was shared by Sudan’s UN ambassador, Elfatih Mohammed Erwa, who said: ‘Justice here is a great good used in the service of evil’ (BBC News 2005). The Sudanese government insisted it would not allow any Sudanese national to be tried before a foreign court (AU Peace and Security Council 2005, par 87; Appiah-Mensah 2005:10). Khartoum went so far as to instigate public demonstrations objecting to the referral, and the ICC was denounced, somewhat ironically, as an ‘American Court’ (Agence France-Presse 2005b and 2005c). While the Security Council referral may have been clean in a technical sense, the prosecutor has anything but a clean or easy complementarity task.


As pointed out earlier, the prosecutor has through the Court issued arrest warrants for Harun and Kushayb, but the Court’s website speaks volumes, despite the terse statement, in relation to these two individuals: ‘No hearings scheduled at this time’ (ICC 2005).


Thus although the Security Council referral is a significant step in the history of the Court, the road that lies ahead will by no be means easy. The challenge for the Court is immense. It has had the Security Council refer a matter to it (an incredibly high-profile situation which even the US – through Colin Powell – has described as ‘genocide’), yet it has no means of truly enforcing the mandate of the referral and has to rely on the Sudanese government for proper investigation and prosecution of the offences.


The Court thus faces the very difficult task of trying to enforce its decisions against a recalcitrant state.3 This task is complicated and aggravated by the fact that Sudan is not a state party to the ICC and as such owes no treaty obligations to the Court. This is an inevitable problem with the referral of situations involving non-party states to the ICC, as the referral extends the Court’s jurisdiction beyond the parameters of the Rome Treaty but does not concomitantly extend the Court’s power to enforce that jurisdiction. This problem is one that was foreseen by the drafters of the ICC Statute, but which was never satisfactorily attended to.


One thing is abundantly clear: active Security Council involvement will prove vital for the effective functioning of the ICC. As Dan Sarooshi (2004:104) points out:

[T]he Security Council could decide that compliance by all UN Member states with a particular ICC decision is a measure necessary for the maintenance of peace and security pursuant to Article 41 of the UN Charter, and, as such, bind all UN Member states under Article 25 of the Charter to comply with specific ICC decisions.

Indeed, in a report delivered to the Security Council in early December 2007, the prosecutor of the Court made it clear that without the Security Council’s assistance, the Court will not be able to prosecute the persons in respect of which it has issued warrants of arrest. He bluntly told the Council that although ‘Sudan has known the nature of the case against Ahmad Harun and Ali Kushayb for 10 months, they have done nothing. They have taken no steps to prosecute them domestically, or to arrest and transfer them to The Hague’. The answer, in his view, lies with the Security Council, and he called on the Council to send ‘a strong and unanimous message’ to Khartoum to arrest and surrender the two men accused of committing war crimes during the conflict in Darfur (UN News Centre 2007). This is obviously correct, and demonstrates the precariousness of the prosecutor’s position. It is ultimately up to the members of the UN Security Council to live up to their responsibility and ensure that the government of Sudan respects its obligations under Resolution 1593 and co-operates with the ICC, in particular with regard to the arrest and surrender of Harun and Kushayb.


Unable to be willing or willingly unable? The problem of capacity and priority


It is not only outright recalcitrance that will emasculate the ICC. As a recent study by the Institute for Security Studies (ISS) demonstrates (Du Plessis & Ford 2008), there are a myriad of issues that undermine the promise of international criminal justice through the ICC’s complementarity regime.


The creation, through widespread adoption of the Rome Statute, of a permanent ICC has been of enormous practical and symbolic significance. The ideals underlying the ICC require practical instruments and processes. The ISS study, in the form of a monograph, is concerned with whether measures at national level had a significant influence on the effectiveness of the scheme of international criminal justice. It consists of a compilation of reports by independent experts on the extent of legislative and other measures taken by five selected African states (Botswana, Ghana, Kenya, Tanzania, Uganda – all party to the Rome Statute), to incorporate the statute’s obligations into their national laws and procedures. It comprises, too, a comparative overview of the themes emerging from the various country reports. As such, it is an assessment of the capacity of these (and similarly situated) states to respond to international crimes by means of workable, acceptable and lawful processes and within the parameters set by international law, in particular international human rights law. This is in line with the Preamble to the Rome Statute that ‘effective prosecution must be ensured by taking measures at the national level and by international cooperation’. We have already seen that at the heart of the complementarity regime are the measures that must be taken by individual states in their own legal systems to ensure no safe harbour exists for the worst international criminals and that there are no barriers to smooth co-operation and assistance between states and with the ICC. States must further ensure that national procedures and mechanisms are of sufficient quality from a rule of law perspective and adequately accommodate human rights safeguards, so that principles are upheld and prosecutions are not jeopardised by deficient investigations.


The monograph tried to find answers to questions such as how relevant to Africa is the priority of implementing measures consistent with the ICC Statute which enable the effective prosecution of international crimes? What is its position relative to the other priorities of government and government departments, human rights defenders and civil society?


The answers highlight the remaining and apparently enduring problems of giving effect to complementarity within Africa. One perception seems to be that having in place national ICC response measures is not particularly relevant or urgent from an African perspective. While all five countries in the sample have ratified the Rome Statute, none have adopted measures to implement Rome Statuteobligations at a national level. The reasons for the delay in implementation were in large measure shared amongst the five states studied. Not only did the study reveal the status and peculiarities of individual countries’ responses to ratification of the Rome Statute, it also made it possible to gain comparative insights.4


The investigations revealed the following features, misconceptions, misgivings or concerns as common barriers to implementation or common reasons for delaying the process of implementation of the Rome Statute in some African countries (as will be readily appreciated, these factors and difficulties can compound one other). First, there was a genuine lack of awareness about the need for and significance of implementation at the highest level, among many officials, civil society, the legal profession and judiciary, and the wider community. This manifests either as a complete lack of awareness (so that there is no local pressure on government for implementation), or ‘awareness’ in the sense that the issue simply has not come up in official or other circles.


Second, there was a discernible capacity shortfall in some of the countries manifesting in an over-stretched and thinly-staffed justice system, and a lack of sufficient officials with expertise in drafting legislation or in international criminal co-operation. This means that concept papers and other initiatives moving the issue up to a political level are unlikely to be undertaken, or approved. Parliaments also appear to lack capacity for informed review of these issues at a committee level. As a result only a few issues can have priority. At present, if any capacity is devoted to international criminal issues it is to terrorism and international organised crime. That highlights a third, related finding, namely that these countries have entertained other priorities, so that national laws to implement the statute were simply not considered relevant enough to be accorded any or sufficient priority. This came through strongly in most of the reports. Many of the countries have had significant elections, or constitutional reform processes, which appear to have absorbed a good deal of political energy. This need not have prevented implementation, but has certainly not aided it.


A fourth difficulty is a number of political misgivings apparently held about implementation, and a sense that the local political risk of implementation (or the regional criticism that might come from needing to surrender a leading figure to an international court in the future) outweighs the risk of any international criticism for lack of implementation. This aspect could be inferred from the fact that implementation has not received political momentum (in Uganda, the reasons for political uncertainty about proceeding are more obvious, given the peace process going on there). But there is also in the reports a trace of a sentiment that having national laws in place will cause more problems and embarrassments than it will solve, or that it would be preferable that these issues be dealt with in some other way, or that international prosecutions are seen as a ‘Western preoccupation’.


There is a fifth and commonly expressed reason for delay in implementation which is political or constitutional concerns with the immunity regime of the Rome Statute (that article 27 brooks no immunity even for serving heads of state). This has typically arisen at a late stage in the drafting process, in those countries which have a draft in place. It is rather a significant barrier, particularly where there has been political violence in the country, and given the reportedly high degree of sensitivity resulting from what might be described as the ‘Charles Taylor phenomenon’ (the perception that immunities are never watertight and that prosecution may follow at some point in the future).


Sixth, there is some concern in these countries about the perceived cost of implementation measures. Some of these perceptions are based on misunderstandings, for example the mistaken belief in one country that co-operation with the ICC meant undertaking the cost of building new, high quality prison cells without which criminal suspects would be able to claim that their trial was unfair or their rights abused. Some of the concerns are perhaps more understandable, such as the cost of training prosecutors and judges. This factor is not as significant as others, and is not one of the principle reasons for delay in implementation.


A seventh and final reason is the absence of domestic pressure groups either within or outside of government in any of the five countries studied, who regularly give the issue publicity and so forward momentum. Some seminars and programmes have been organised by non-governmental groups, but not on the same scale as during the campaign for ratification. The issue lacks the backing by international partners, political convenience and perceived relevance that has given forward momentum to counterterrorism and organised crime measures. Unlike the Geneva Conventions, the statute lacks the support of a single institution such as the military.


These findings are dealt with comprehensively in the monograph. What does appear from them is that the primary barrier to implementation is that co-operation in preventing impunity for international crimes is not considered, at the higher political levels in these countries, to have sufficient importance, relevance and priority. Viewed in this way, capacity or expertise and cost are in a sense ‘secondary’ factors that can be addressed once they are prioritised, by direction from the executive or by political leadership or consensus. Possible solutions could include acquiring the services of local or international legal drafting experts, or asking the ICC itself for assistance.


Thus while real capacity constraints do hamper the justice systems of these countries, the real explanation appears to be that once the international credit has been obtained by ratification, actual implementation of the Rome Statute is simply not considered politically significant enough to be accorded priority.


The lack of appeal to the political decision makers appears to be both relative and absolute. It is relative because it simply does not feature highly, so that any post-ratification momentum has been lost. Moreover, there is no discernible constituency at home or abroad calling for action to be taken, and indeed some voices suggest it is a mainly Western preoccupation. Added to this ‘relative irrelevance’ issue are factors that, even if the issue does receive attention, would tend to positively militate against implementation. These include perceptions or concerns about constitutional immunity and misunderstandings about the reach of ICC crimes that might preclude discussing ‘international crimes’ for reasons of local politics (for example Kenya), or real concerns about the impact of implementing legislation on local peace processes (for example in Uganda).5

Conclusions and suggestions


Africa has already demonstrated a clear commitment to the ideals and objectives of the ICC: more than half of all African states (29) have ratified the Rome Statute, and many have taken proactive steps to ensure effective implementation of its provisions. These efforts must continue. The lesson we learn from the Sudan referral is that complementarity must work if the international criminal justice project in general is to succeed. Perhaps the greatest problem that faces the ICC in future cases is an unwillingness or inability on the part of states parties to properly investigate and prosecute international crimes, a problem obviously compounded where – as in the case of Sudan – the state is not party to the Court’s statute. While such scenarios will entitle the ICC to then assume jurisdiction over the case under the complementarity scheme, it is painfully clear that the Court will struggle to ensure assistance and co-operation from states that are unwilling or unable to do the job themselves.


In my view, the existence of these problems points back to the promise of complementarity. The more the promise of the ICC regime of ensuring that there is meaningful domestic prosecution of the world’s most serious crimes can be faithfully fulfilled, the more likely it will be that the ICC can avoid these problems altogether, or at least diminish their impact.


It is thus important to note that ISS has moved towards capacity building at a senior level as an increasing component of its engagement on security issues. The monograph assessment of responses to ratification of the Rome Statuteby some African states comprises one element of the ISS International Criminal Justice Project devoted to examining measures for strengthening the rule of law in Africa by developing national capacity for responding, lawfully and within the context of international law and human rights, to international crimes and criminals. This Project is one component of ISS’s recently inaugurated International Crimes in Africa Programme (ICAP).


An underlying premise of the ICAP and the International Criminal Justice Project in particular is that a key element of long-term post-conflict peace building is strengthening the rule of law and access to justice. Equally important is developing mechanisms to manage and prevent conflict, and creating accountability in government. In Africa, post-conflict peace building is threatened by the widespread lack of accountability among those responsible for the continent’s many violent conflicts that are characterised by torture, rape, murder and other atrocities. The pervasive culture of impunity threatens newly established peace processes – not only because those responsible for atrocities remain free to commit further acts, but also because impunity fuels a desire for revenge which can lead to further violence. Moreover, public confidence in attempts to establish the rule of law is undermined, as are the chances of establishing meaningful forms of accountable governance.


However, for most African countries, the national judicial systems are often too weak to cope with the burden of rendering justice for these crimes. ‘International crimes’ including war crimes, crimes against humanity and genocide, are characterised by large numbers of victims and perpetrators, and are often committed with the complicity if not the active participation of state structures or political leaders. This means that the political pressure may be too great for national justice systems to cope with. Successful domestic prosecutions are further limited by resource and skills shortages, added to which is the strain of establishing functional criminal justice systems in countries with little tradition of democracy and the rule of law.


In circumstances such as these, when the national justice system is unable or unwilling to investigate or prosecute those responsible, the international community can and should assist with these processes. The international community has already begun to do this in Africa, through the creation of the International Criminal Tribunal for Rwanda, and assisting with the creation of the hybrid Special Court for Sierra Leone. Most recently, the European Union has sent a delegation to assist Senegal in preparing the trial of Hissène Habré, the former Chadian dictator. Habré, who ruled Chad from 1982 to 1990, when he fled to Senegal, is accused of thousands of political killings, systematic torture and waves of ‘ethnic cleansing’ during his rule. In July 2006, Senegal agreed to an African Union request to prosecute Habré ‘on behalf of Africa’. The EU delegation, headed by Bruno Cathala, the registrar of the ICC, is preparing the trial in response to a request by Senegalese President Abdoulaye Wade for international assistance. The EU experts will evaluate Senegal’s needs and offer technical and financial help.6


It is significant that the AU has named Robert Dossou, Benin’s former foreign minister and justice minister, as an envoy to the trial. This is a promising development, and one that hopefully signals broader AU support for initiatives aimed at combating impunity for international crimes. Naturally, one of the most important initiatives in this regard is the creation of the ICC. One can hardly overestimate the importance of Africa to the Court: the ICC’s first ‘situations’ are all on the continent (DRC, Uganda, Sudan, CAR). Africa is thus currently a high priority for the ICC, and will remain so for the foreseeable future. It is the most represented region in the ICC’s Assembly of states parties, with 29 countries having ratified the Rome Statute, and is a continent where international justice is in the making.


Ensuring the success of the ICC is important for peace building efforts on the continent. However, the task of reversing the culture of impunity for international crimes and thereby strengthening the rule of law cannot simply be devolved to the ICC. In reality, the Court will be able to tackle a selection of only the most serious cases. Even if it did have the capacity to handle a higher volume of cases, this would be limited in Africa by the fact that the ICC is, by design, a ‘court of last resort’. The main responsibility for dealing with alleged offenders therefore still rests with domestic justice systems. Governed by the principle of complementarity, this means that the ICC can only act in support of domestic criminal justice systems. National courts should be the first to act, and only when they are ‘unwilling or unable’ to do so, can the ICC take up the matter. This implies a certain level of technical competency among domestic criminal justice officials, but a lack of technical competency is only part of the problem. A related (and oftentimes prior) issue is political support for the idea of international criminal justice and for the ICC’s complementarity scheme. In that regard it is vital that more African states ratify the Rome Statute. The ICC cannot, of its own accord, initiate investigations into crimes committed in a state, or by a national of a state that has not ratified or acceded to the statute establishing the ICC. The fact that only 29 of Africa’s 53 states have ratified means that a large portion of the continent still falls outside the ICC’s mandate. Furthermore, many of those that have ratified have not complied with the further and essential requirement of effective and comprehensive implementation of the obligations contained in the ICC Statute.


Due to a need in Africa for greater public and official awareness about the work of the ICC, and for enhanced political support for the work of the Court and for international criminal justice in general, the fulfilment of the aims and objectives of the ICC on the African continent – in particular through the complementarity regime – are dependent on the support of African states and administrations, the AU and relevant regional organisations, the legal profession, and civil society. Meeting these needs requires commitment to a collaborative relationship between these stakeholders and the ICC. It is also important to remember that responsibility for the prosecution of core international crimes in Africa (and for raising awareness of these issues) is not the responsibility of only the ICC.


Other pan-African structures, such as the African Commission on Human and Peoples’ Rights and the African Court of Justice and Human Rights, can play a meaningful role in this regard which should be encouraged. An example in this respect is the work of the African Commission on Human and Peoples’ Rights in its 2005 Resolution on ending impunity in Africa and on the domestication and implementation of the Rome Statute of the ICC, in which the Commission called on civil society organisations in Africa to work collaboratively to develop partnerships to further respect for the rule of law internationally and strengthen the Rome Statute. That these African structures and organisations should be at the forefront of awareness raising is important, particularly because of the perception in certain African states that international criminal justice and the ICC are an ‘outside’ or ‘Western’ priority and relatively less important than other political, social and developmental goals.


The leading regional organisation – the AU – should also play a more significant role in building understanding and support among its member states about the importance of practical measures aimed at ending impunity for serious international crimes. In doing so it should unambiguously state the principles and practical reasons for building capacity to respond to international crimes, including that this capacity is inherent in a developed notion of ‘security’ and is a key component of peace building, conflict prevention and stability. This will enhance the role and work of the ICC in Africa and encourage states to comply with their complementarity obligations under the Rome Statute. Ultimately, there is both scope and a need for African states, regional organisations and civil society to draw on African experience to ensure an initiative, based in and focused on African, for contributing towards peace building and stamping out impunity. After all, it should not be forgotten that it is not the UN, ICC or Western states that drafted the aims of the AU. In terms of articles 3(h), 4(m) and 4(o) of the Constitutive Act, it is African states that reiterate that the AU is committed to ensuring respect for the rule of law and human rights, and condemning and rejecting impunity.

Notes

 

  1. The extent of cooperation required of states parties is evident from the fact that the OTP has a very wide mandate to ‘extend the investigation to cover all facts’ and investigate circumstances generally ‘in order to discover the truth’ (art 54(1)(a) of the Rome Statute).

  2. See article 89, although article 97 provides for consultation where there are certain practical difficulties.

  3. The most recent (symbolic) example of this recalcitrance is the Sudanese government’s decision to appoint Musa Hilal, a leader of the Janjaweed, to a central government position. Read the full story and the human rights outcry occasioned by it, in International Herald Tribune (2008), cited in War Crimes Prosecution Watch (2008).

  4. In deciding whether the results of the study are relevant to an Africa-wide assessment of attitudes and responses to the ICC and the Rome Statute, it is worth bearing in mind that all of the countries studied can be considered, at least in their respective regions, to be relatively advanced with regard to a number of aspects relevant to this topic. Botswana is for example seen as a leading example of good governance in southern Africa and on the continent; Ghana, whose leader has the status of an elder statesman in West Africa, has come to be considered the most stable and well-governed of the major West African countries (although it has suffered recent instability); Kenya is a leading African state with a complex and evolving democracy and some strong institutions (although instability following the contested election results in late 2007 and current reports of violent demonstrations are of obvious concern); Tanzania, while poor, is stable, growing and respected for its pedigree of pan-Africanism and its regional peacemaking; Uganda recently hosted the Commonwealth summit and some of the processes it has followed towards multiparty democracy, economic growth, women’s empowerment, HIV prevention, etc, have been described as a model for other African countries. In considering the problems and possibilities of implementation in other African countries, then, it is worth remembering that the sample is of countries that could reasonably be expected to have made progress or be capable of making progress on implementation.

  5. It is worth noting that many of the problems with implementation can be seen as generic problems with treaty implementation, ones that have been encountered in many countries in terms of following up the ratification of human rights instruments, for example. It is sufficient in this regard to note first that the Rome Statute is not the only instrument with great aspirations and practical utility that countries are quite prepared to ratify, but which they have failed to implement or report on over many years, and second, that many of the reasons for lack of implementation of human rights instruments, such as political misgivings and lack of capacity, apply equally to such other instruments.

  6. Senegal has said that the investigation and trial will cost €28 million, and last week said that it would spend over €1,5 million (CFA Fr1 billion) on the trial. In addition to the EU, a number of individual countries including France and Switzerland have publicly committed to helping Senegal (see also Human Rights First (2008)).

References


Agence France-Presse 2005a. Sudan says UN Darfur move ‘violation’ of sovereignty, 3 April.


Agence France-Presse 2005b. Sudan stages ‘million-man’ march against UN war crimes trial, 5 April.


Agence Franc-Presse 2005c. Sudanese students demonstrate against UN Darfur resolution, 2 April.


Appiah-Mensah, S 2005. AU’s critical assignment in Darfur. African Security Review, 14(2):7-21.


AU (African Union) Peace and Security Council 2005. Commission on the Situation in the Darfur Region of the Sudan. Report of the chairperson. PSC/PR/2(XXVIII).


BBC News 2005. UN backs Darfur war crimes move, 1 April. Available at http://news.bbc.co.uk/2/hi/africa/4399487.stm [accessed 5 April 2005].


Brandon, B and Du Plessis, M (eds) 2005. The prosecution of international crimes: a practical guide to prosecuting ICC Crimes in Commonwealth States. Commonwealth Secretariat.


Du Plessis, M and Ford, J (eds) 2008. Unable or unwilling? Case studies on domestic implementation of the ICC Statute in selected African countries, ISS Monograph Series141, March. Pretoria: ISS.


Human Rights First 2008. EU to aid Senegal in preparing Hissène Habré’s trial, 19 January. Available at www.hrw.org/english/docs/2008/01/19/senega17778.htm [accessed 15 April 2008].


International Criminal Court (ICC) 2006. Update on communications received by the Office of the Prosecutor of the ICC, 10 February 2006. Available at http://www.icc-cpi.int/library/organs/otp/OTP_Update_on_Communications_10_February_2006.pdf [accessed 15 April 2008.


ICC 2005. Website. Available at http://www.icc-cpi.int/cases/Darfur.html [accessed 12 February 2008].


ICC 2002. Rome Statute, 1 July.


International Herald Tribune 2008. Sudan gives adviser role to militia leader, 21 January. Available at www.iht.com/articles/2008/01/21/africa/21sudan.php [accessed on 15 April 2008].


McGoldrick, D, Rowe, P and Donnelly, E (eds) 2004. The permanent ICC: legal and policy issues. Oxford: Hart Publishing.


Reuters 2005. Sudanese march against UN war crimes resolution, 5 April.


Röling, B 1979. Aspects of criminal responsibility for violations of laws of war. In A Cassesse (ed), The new humanitarian law of armed conflict. Napoli: Editoriale Scientifica


Sarooshi, D 2004. The peace and justice paradox: the ICC and the UN Security Council. In D McGoldrick, , P Rowe and E Donnelly (eds), The permanent ICC: legal and policy issues. Oxford: Hart Publishing.


Schabas, S 2001. An introduction to the ICC. Cambridge: Cambridge University Press.


Slaughter, A-M 2003.. Not in the court of first resort, The Washington Post, December 21. Available at www.princeton.edu/~slaughtr/Commentary/WPCourtResortdoc.pdf [accessed 14 April 2008].


UN News Centre 2007. Sudan has failed to cooperate with ICC, prosecutor says, 5 December. Available at www.un.org/apps/news/story.asp?NewsID=24933&Cr=sudan&Cr1= – 17k [accessed on 15 April 2008].


War Crimes Prosecution Watch, 2008, 3(12), February 4. Available at www.publicinternationallaw.org/warcrimeswatch/wcpw_current.html – 237k [accessed on 15 April 2008].