Unable or unwilling? Case studies on domestic implementation of the ICC Statute in selected African countries
This monograph is intended to contribute to enhanced understanding of the reasons why some African states have been slow in meeting their domesticatio
By adopting the Rome Statute and creating a permanent International Criminal Court (ICC), the ideal of ending impunity – so that the most seriouscrimes of concern to the international community should not go unpunished – has taken institutional form. The ideals underlying the ICC require practical instrumentalities and processes not just on the part of the Court, but by allStates in their own jurisdictions. The inability or unwillingness to bring future perpetrators of international crimes to justice would represent a failing of both the international system and of respective national legal systems. This monograph is concerned with the significance of national level measures and country–ICC co-operation to the effectiveness of the scheme of international criminal justice: it is not enough for states to show by ratification they are willing to co-operate or implement measures, if they do not take the steps toensure that they are able to prosecute
At the heart of the international criminal justice system are the measures that must be taken by individual states in their own legal systems to prosecute international criminals in their national courts (on behalf of the international community as a whole), 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 the state’s jurisdiction. These national procedures and mechanisms need to be clear, prescribed, comply with international human rights law, and be of sufficient quality that in dealing with the worst criminals, international justice is not brought into disrepute.
This monograph is intended to contribute to enhanced understanding of the reasons why some African states have been slow in meeting their domestication obligations under the Rome Statute. In the international arena, African countries were generally very supportive of the creation of the ICC, and promptly ratified the Rome Statute. More than half of all African states have ratified. This study reveals, however, that none of the five countries selected for study (Botswana, Ghana, Kenya, Tanzania and Uganda) has implemented measures: all five are at this time unable to respond fully and on a clear, prescribed lawful basis to an ICC investigation or request for arrest and surrender, nor able to themselves prosecute the most serious international crimes.
The country studies are in-depth analyses of the status of implementation. Drawing on the country studies, some common barriers to implementation, misgivings or concerns are described. These include a lack of awareness among key groups of officials, civil society, the legal profession and judiciary; a capacity shortfall for these over-stretched and thinly-staffed justice systems; the lack of any domestic pressure to implement ICC laws; the existence or perception of other priorities for government; the distraction of significant elections or reform processes; added to these are some political misgivings, including on immunity issues – the view that the local political risk of implementation outweighs the risk of any international criticism for lack of implementation.
While real capacity constraints do hamper the justice systems of these countries, the primary barrier to implementation in the countries studied appears to be that co-operation on impunity for international crimes is not seen as having sufficient importance, relevance and priority. However, a failure by all five countries sampled to put in place national level measures to implement Rome Statute obligations means that in the near future a ratified African state (perhaps bordering a conflict area) may be incapable of dealing satisfactorily with the foreseeable possibility of an internationally-wanted person being in its jurisdiction.
The study draws on the comparative overview to make six recommendations, mainly identifying and encouraging those institutions and organisations best placed to raise awareness of the need for national level implementation. A state’s ability to maintain the rule of law and to respond to international crimes within the parameters of international law and human rights is likely to reflect an otherwise strong national criminal justice system. Moreover, action to increase ICC responsiveness is likely to have the added benefit of strengthening generic national capacity on crime and justice issues.
The study notes that many of the problems with implementation can be understood as generic problems with treaty implementation (on any subject) in many developing countries. Moreover, some countries appear able to engage in international legal co-operation without having specific laws in place. The study uses these two points to detail, in a more positive voice, what it identifies as entry points for progress on implementation: features of these countries or dimensions of this issue that suggest that implementation may be achievable in the near future.
Reinforcing an overall concern of the ISS project, the most forceful of these forward looking points is the persuasiveness of the argument revealing the link between impunity and insecurity, how lack of action breeds further violence and resentment. The argument that whatever any one state’s view of ‘international justice’, having in place the technical legal ability to deal lawfully with international criminals or respond to the ICC represents a vital component of any state’s primary priorities: a sense of its own security, and a confidence that it will not fail its peers in the international community when intolerable crimes have been committed and the stakes and expectations are high.
About the authors
Barney Afako is an Ugandan lawyer and expert on transitional justice, has practiced law and worked on conflict resolution in Uganda, Zimbabwe and the United Kingdom. He has supported conflict resolution, access to justice and human rights interventions in Eastern and Southern Africa. Mr Afako has been a consultant on peace talks for civil society organisations, the Ugandan Amnesty Commission and the government. He is a keen follower of the work of the interventions of the International Criminal Court in Africa, and is currently one of the Legal Advisors to the Ugandan Peace Negotiations in Juba that are seeking to end the conflict between the Government of Uganda and the Lords Resistance Army. Mr Afako is also a part time Immigration Judge in the United Kingdom.
Max du Plessis is an associate professor in the Faculty of Law, University of KwaZulu-Natal, Durban, South Africa. He is also a senior research associate at the Institute for Security Studies’ International Crime in Africa Programme. He graduated with an LL.M from Cambridge University (1999) and is currently lead consultant on the ISS project ‘Strengthening the rule of law in Africa by developing domestic capacity for responding to international crimes within the context of human rights and international law.’ Max has written widely on issues of international criminal justice.
Jolyon Ford is a member of the Centre for International Governance and Justice at the Australian National University (ANU) and an associate lecturer in the ANU College of Law. He is an affiliate of the Sydney Centre for International Law (University of Sydney), of which he was a founding member. He previously worked at the Commonwealth Secretariat, London, and is a graduate of the University of KwaZulu-Natal and of the University of Cambridge.
Godfrey Musila is a doctoral research fellow at the South African Institute for Advanced Constitutional, Public Human Rights and International Law (SAIFAC). He lectures international law part-time at Wits School of Law and is reading towards a Phd in International Criminal Law at the same university. His main research areas include general international law, international criminal law, human rights, humanitarian law as well as transitional justice issues. He has recently been involved in research on issues of security and AU institutions.
Lee Stone graduated with an LL.B (Free State) and an LL.M (Pretoria) and is an Attorney of the High Court of South Africa. After completing her articles at the Legal Resources Centre, Durban, Lee joined the Faculty of Law, University of KwaZulu-Natal, where she now lectures human rights. Lee was formerly Legal Intern at the African Commission on Human and Peoples’ Rights from September 2003 to July 2005. During 2007 Lee was a consultant on the ISS project ‘Strengthening the rule of law in Africa by developing domestic capacity for responding to international crimes within the context of human rights and international law.’
