November: A Busy Month for International Criminal Justice in Africa
Critics of international criminal justice say it is too slow, expensive and hobbled by politics. However, in November 2011 the pace and effectiveness of international criminal justice increased.
Published on 06 December 2011 in
ISS Today
By
Ottilia Anna Maunganidze, Researcher, International Crime in Africa Programme, ISS Pretoria Office
Critics of international criminal justice say it is too slow, expensive and hobbled by politics. However, in November 2011 the pace and effectiveness of international criminal justice increased. Important developments in the International Criminal Court (ICC) situations in Côte d’Ivoire, Darfur (Sudan) and Libya are cases in point.
These are positive developments, not only for the ICC, but also for international criminal justice in general. They are also timely as states parties to the Rome Statute prepare for the Tenth Session of the Assembly of States Parties (ASP) that starts on Monday 12 December 2011. This ASP session is particularly important because state parties will elect the incoming prosecutor of the ICC. On 1 December, the current ICC Deputy Prosecutor Fatou Bensouda, a Gambian national, emerged as the consensus candidate. This is an obvious victory for Africa that has been calling for an African prosecutor for a long time.
The most recent development was the surrender and transfer to the ICC of former Ivorian President Laurent Gbagbo on 29 November. Gbagbo was transferred to The Hague by Ivorian authorities pursuant to an ICC arrest warrant issued under seal on 23 November 2011. The arrest and surrender comes almost a year to the day after Côte d’Ivoire`s disputed presidential election that resulted in six months of violence.
Gbagbo is charged with bearing individual criminal responsibility, as indirect co-perpetrator, for crimes against humanity allegedly committed in the territory of Côte d’Ivoire between 16 December 2010 and 12 April 2011. Gbagbo’s arrest is groundbreaking for the ICC as he is the first former head of state to be transferred to the Court, which previously issued arrest warrants for Sudanese President Omar Hassan al-Bashir and Libyan leader Colonel Muammar Gaddafi. However, al-Bashir remains at large and Gaddafi was killed in Libya in October 2011. Supporters of international criminal justice hope that his arrest will set a precedent for the arrest and transfer to the ICC of powerful sitting or former heads of state charged with committing international crimes.
Gbagbo’s arrest and surrender comes against the backdrop of other notable developments in the month of November. The first of these is the decision by a Kenyan High Court judge ordering the arrest of al-Bashir. Al-Bashir is wanted by the ICC on allegations of crimes against humanity, war crimes and genocide in the western Sudan region of Darfur. The order is directed at the Minister for Internal Security and the Attorney General, who were the Respondents in the application.
The judge made the decision following an application by the Kenyan Section of the International Commission of Jurists (ICJ-Kenya). In his decision, the judge further ordered that if the responsible authorities fail to enforce the arrest warrant, ICJ Kenya or any other individual might compel the responsible authorities to do so.
The decision has been welcomed by African and international civil society organisations as an advancement in international criminal justice. However, the issuance of the arrest warrant is not without diplomatic difficulties. Following the announcement of the decision, the Sudanese government ordered the immediate expulsion of Kenya’s ambassador to Sudan. In addition the Sudanese government recalled its representative in Kenya.
It should be noted that, despite these challenges, the decision by the Kenyan High Court should be applauded. Similar to the Kenyan decision, in 2009 a South African magistrate’s court issued an arrest warrant for al-Bashir who was scheduled to attend President Jacob Zuma’s inauguration. These national responses are important, given that the ICC relies on the cooperation and support of its member states to be effective.
Developments in Libya are also noteworthy. First, the arrests of ICC accused Saif al-Islam and Abdullah al-Senussi by Libyan authorities on 19 and 20 November respectively were significant. Both al-Islam, the son the slain former Libyan leader Colonel Muammar Gaddafi and al-Senussi, the former Libyan intelligence chief, are senior officials wanted for committing crimes against humanity in Libya since 15 February 2011. The two are currently in the custody of Libyan authorities. The second noteworthy development in the Libyan situation is the decision by the Libyan authorities to prosecute the accused domestically. Discussions are currently underway between the Libyan authorities and the ICC on whether the two accused can be prosecuted in Libya in line with the Rome Statute principle that the ICC is a court of last resort.
These developments demonstrate that the pace and effectiveness of international criminal justice are improving. Key to this improvement is that states are taking ownership of international criminal justice in a variety of ways. First, in Libya, the two accused are not only considered to be responsible for crimes committed, but are also very powerful. Moreover, Libyan authorities have expressed their intention to prosecute the accused domestically: an approach to justice that is considered effective by many. Second, a Kenyan High Court recently issued an arrest warrant for al-Bashir in compliance with the country’s obligations under the Rome Statute and its domestic international crimes legislation. Finally, the most recent development saw cooperation of Côte d’Ivoire in the arrest and surrender of their head of state to the ICC.
These recent developments serve to compound critics of the ICC in Africa. The enthusiasm to cooperate with the ICC in the arrest, surrender and prosecution of suspects is driven from the bottom up by Africans themselves.
