An African Advantage: ICC's New Head of Jurisdiction, Complementarity and Cooperation
The recent appointment of Lesotho national Phakiso Mochochoko as head of the ICC Justice, Complementarity & Cooperation Division will help the fight against impunity in Africa, writes Ottilia Maunganidze and Antoinette Louw
Published on 09 February 2011 in
ISS Today
By
Ottilia Anna Maunganidze, Consultant & Antoinette Louw, Senior Research Fellow, International Crime in Africa Programme, ISS Pretoria Office
On 1 February 2011, Phakiso Mochochoko - a Lesotho national - took up the position of head of the International Criminal Court’s Jurisdiction, Complementarity and Cooperation Division (JCCD) in the Office of the Prosecutor (OTP). Mochochoko’s appointment is an achievement for Africa’s efforts to combat impunity, but more importantly, it is an opportunity to improve Africa’s ailing relations with the ICC and the ability of African governments to work with rather than against the court.
The JCCD is a core component of the ICC consisting of lawyers, analysts and experts on international cooperation. The division advises the ICC prosecutor on the admissibility of individual cases and also works with governments and international organisations to ensure their cooperation throughout the investigation process, and during and after trials.
The new head of the JCCD is no newcomer to the field of international criminal justice. Mochochoko played an important role in establishing the ICC in its early days and prior to his appointment worked in the ICC’s registry as a senior legal advisor. He joins several other Africans in high office at the ICC including his OTP colleague, Deputy Prosecutor Fatou Bensouda from the Gambia. Appointments like his are a clear riposte to accusations of the ICC acting as a neo-imperialistic tool that targets Africa. If anything, staffing the ICC with qualified international lawyers from Africa will further serve to cement the ICC’s work that is aimed at benefitting victims of gross human rights violations. African victims thus far have been the sole recipients of this work, not least because they need it the most.
Apart from the African staff in the OTP, currently five of the ICC’s 18 judges are African. Two of these, Judges Daniel David Ntanda Nsereko and Joyce Aluoch, come from the ICC situation countries of Uganda and Kenya respectively. Notably, the first vice-president of the ICC, Judge Fatoumata Dembele Diarra, is an African hailing from Mali. In addition, of the 288 registered defense counsel, 78 are African. Africans therefore form an integral part of the ICC’s staff.
While the ICC’s staff profile is an indication that African countries are committed to the work of the court, there has been a sharp rise in negative attitudes towards the ICC in recent times. This trend began with the announcement by the OTP in 2008 that an arrest warrant would be sought for Sudanese president Omar al-Bashir in connection with genocide, war crimes and crimes against humanity committed in Darfur. After the warrant was issued by the ICC judges in March 2009 tensions increased. Complaints about the ICC include that the court is a Western-controlled institution that is targeting Africa, that the indictment against Bashir will derail the delicate African-driven efforts to stabilise Sudan, and that the UN Security Council has snubbed the African Union’s repeated requests for a deferral of the Bashir matter to allow peace processes to take their course in that country.
Recent developments in the ICC’s fifth situation country - Kenya - show that many of these concerns remain unaddressed for African states. In December 2010, the OTP announced that summons to appear would be sought for six Kenyans in connection with the 2007-8 post-election violence in that country. Among the six are high ranking officials in the Kenyan government. The announcement was followed by swift and effective action by members of the Kenyan government to lobby African states to support its call - at the January 2011 AU summit - for the cases against the six, like that of Bashir, to be deferred by the Security Council.
The rise in negative attitudes towards the ICC should not be ignored. The AU has been consistent in its views regarding the arrest warrants against Bashir, calling on its member states not to cooperate with the ICC in effecting his arrest. In addition, the Kenyan government decision to lobby for a deferral of ICC cases against its nationals came amidst suggestions that Kenya’s ultimate goal is to withdraw from the Rome Statute, and to persuade other African countries to do the same.
These developments are deeply disconcerting. Several of the concerns raised by African governments and civil society about the work of the ICC are valid. But there is a growing sense that the AU’s response to the Bashir case and now also the Kenyan cases, suggests an inclination to delay justice and shield perpetrators rather than find workable ways to prosecute those responsible for the gravest crimes known to man. As the ICC loses favour among Africa’s leadership, domestic and regional justice mechanisms are increasingly being punted ahead of international ones like the ICC. In principle there is nothing wrong with an approach that favours domestic action. National trials are the preferred option for dealing with the majority of perpetrators, but it is unlikely that those responsible for planning and directing mass crimes ‘ usually leaders in positions of substantial power ‘ will be tried domestically. The Rome Statute system was designed with this in mind: as a court of last resort, the ICC is intended to focus on the handful of powerful planners of grave crimes while national courts try those who carried out the orders.
In the interests of the victims of atrocities in Darfur and Kenya therefore, Africa’s leaders should, as a starting point, acknowledge the advantages and disadvantages of both national and international justice mechanisms. Working concurrently, national and international courts can bring to justice a wider spectrum of offenders than either could do alone. The OTP’s division on jurisdiction, complementarity and cooperation is central to making this approach possible and successful. With Mochochoko at the helm, African governments should seize the opportunity of working with this division. Justice, cooperation and complementarity are the cornerstones of international criminal justice and it is through strengthening these that victims of gross human rights violations can see their perpetrators being brought to book.
