South Africa’s intention to withdraw from the Rome Statute of the International Criminal Court: Time to seriously consider an African alternative?

rodger_owisoAuthor: Rodger Owiso
LLB – Nairobi, PGD Law – KSL

While the decision by South Africa to commence the formal process of withdrawing from the Rome Statute of the International Criminal Court is shocking, honest observers will admit it was not entirely unforeseen. African countries through the African Union (AU) have long voiced misgivings about the International Criminal Court (ICC) and it was just a matter of time before the usually slow-moving AU clock started ticking. The AU had earlier this year urged its members to consider withdrawing from the Rome Statute.[1] This was triggered by the refusal by the United Nations Security Council and the ICC to accede to the AU’s requests for suspension or termination of the cases against Sudan’s president Omar al-Bashir and his Kenyan counterpart Uhuru Kenyatta and his deputy William Ruto.

While South Africa’s decision should be condemned, nothing much is likely to come of such condemnation. Treaties are a product of state consent[2] and it follows that withdrawal is equally a unilateral act of the state.[3] Even if an argument could be advanced against such unilateralism, the process is still a political one which rests almost entirely with the political class, at least in imperfect democracies. South Africa’s move is likely to embolden other African countries to commence similar processes. South Africa is Africa’s biggest economy and the AU’s largest member contributor. It is also arguably one of Africa’s better-off imperfect democracies. For these reasons, it is often the case in continental affairs that other African countries hold on to their cards until South Africa plays after which they emerge from their cocoons and play theirs in more or less similar fashion. With the possible exception of ‘righteous’ Botswana and perhaps Mauritius that considers itself African only when the situation suits it, the possibility that other African countries will follow South Africa’s lead on the ICC cannot be ruled out. In light of such possibility, how then does Africa assure its citizens that the fight against impunity as is entrenched in its founding instrument[4] is still top of its agenda, if at all it ever was?

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Rethinking the North-South divide in international criminal justice: Reflections from an African viewpoint

francis_dusabeAuthor: Francis Dusabe
Legal Researcher

‘Whatever you do for me but without me, you do against me’– Mahatma Gandhi, 1869-1948

More than ever before, Africa is at both sides of the coin; it is the subject of international criminal law because African states have steadfastly stood for the creation of the International Criminal Court and an object of international criminal law because of the unfortunate participation of Africans in atrocities that ravages their continent.

Unlike what many think, Africa has a lot to offer in the development of international criminal law, be it at domestic, regional and international level. Domestically, Africa leads other continents in the nationalisation of international criminal law either through domestication of the Rome Statute or the incorporation of main principles of international criminal law as enshrined in major conventions and treaties in national law.

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The conviction of Hissène Habré by the Extraordinary African Chambers in the Senegalese Courts: Bringing justice in cases of serious human rights violations in Africa

Juan Pablo Perez-Leon-AcevedoAuthor: Juan Pablo Pérez-León-Acevedo
Vice-Chancellor Postdoctoral Fellow, Centre for Human Rights, Faculty of Law, University of Pretoria

Background

On 30 May 2016, the Extraordinary African Chambers in Senegal (EAC) found the former Chadian dictator Hissène Habré criminally responsible for crimes against humanity, war crimes and torture. The EAC condemned Hissène Habré to life in prison. The EAC indicated that the defence would have 15 days to appeal the conviction. Accordingly, the defence lawyers proceeded to appeal the conviction on 10 June 2016. During the trial that started on 20 July 2015 and ended on 11 February 2016, 96 witnesses, victims and experts participated, and 5600 transcript pages and over 56 exhibits were examined. The trial concerned crimes committed in Chad between 7 June 1982 and 1 December 1990, which corresponded to Habré’s rule. The EAC Trial Chamber convicted Habré, as a member of a joint criminal enterprise (involving, among others, directors of his political police aka the Direction de la documentation et de la sécurité (Documentation and Security Directorate (DSS)), of crimes against humanity of rape, sexual slavery, murder, summary execution, kidnapping followed by enforced disappearance, torture and inhumane acts committed against the Hadjerai and Zaghawa ethnic groups, the inhabitants of southern Chad and political opponents. As a member of a joint criminal enterprise, Habré was also convicted of torture. Additionally, the Chamber convicted Habré, under the modality of superior or command liability, of the war crimes of murder, torture, inhumane treatment and unlawful confinement committed against prisoners of war (international armed conflict), and of the war crimes of murder, torture and cruel treatment (non-international armed conflict). War crimes were examined, on the one hand, in the context of the non-international armed conflict between the Forces Armées Nationales du Tchad (National Armed Forces of Chad (FANT)) and the Gouvernment d’Union Nationale de Transition (Transitional Government of National Unity (GUNT)), and, on the other one, in the context of the international armed conflict between Libya, allied to the GUNT, and Chad supported by France and the United States. Nevertheless, the Chamber acquitted Habré of the war crime of unlawful transfer.

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The idea of an African passport and the freedom of movement of persons in the continent: Only wishful thinking?

cristiano_dorsiAuthor: Cristiano d’Orsi
Post-Doctoral Researcher and Lecturer, Centre for Human Rights, Faculty of Law, University of Pretoria (South Africa)

“Hail! United States of Africa-free!
Hail! Motherland most bright, divinely fair!
State in perfect sisterhood united,
Born of truth; mighty thou shalt ever be.”

This is the incipit of the poem Hail, United States of Africa, composed in 1924 by M.M. Garvey, a famous Pan-Africanist leader.

This poem is considered to have initiated the concept of United States of Africa (USAf), a federation, extensible to all the fifty-four sovereign states, on the African continent.

In 2002, at the launch of the African Union (AU), President T. Mbeki, its first chairman, proclaimed that: “By forming the Union, the peoples of our continent have made the unequivocal statement that Africa must unite! We as Africans have a common and a shared destiny!”[1]

After that occasion, the concept of USAf has been highlighted in a more concrete way by other African leaders, such as A.O. Konaré in 2006,[2] M. Gaddafi in 2009 –the first to mention the possibility to issue a unique passport for the entire continent-[3] and, more recently, by R. Mugabe.[4]

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Reacting to the growing attitude of African leaders in using politics as an engine to flout judicial authorities

Sheriff Kumba JobeAuthor: Sheriff Kumba Jobe
Currently pursuing a professional course (BL) at Gambia Law School

As a young person growing up in The Gambia, enjoying relatively peaceful personal development and knowing little or nothing about the Continent (i.e. Africa), I was optimistic of what the future holds for us. My optimism has somewhat changed after recently following some developments unfolding in the Continent. I became more skeptical when I listened to the African-born Chief Prosecutor of the International Criminal Court, Fatou Bensouda making exposition to the Darfur situation. She frustratingly advanced that:

“Innocent civilians continue to bear the brunt of insecurity and instability, in particular as a result of what appears to be an on-going government campaign to target them. The people alleged to be most responsible for these on-going atrocities are the same people against whom warrants of arrest have already been issued.”

These words made me more concerned that the political and legal atmosphere in Africa is becoming unsafe for human shelter. The friction between the two has become too chaotic and toxic for a peaceful and orderly coexistence. The breeze blowing to my observation is not only hostile to the citizens of the Continent but also to the legal frameworks and judicial institutions created for the implementation and protection of our rights.

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The response of the Africa Union to critical human security threats in Africa

michael_addaneyAuthor: Michael Addaney
Student (MPhil Human Rights and Democratisation in Africa), Centre for Human Rights, Faculty of Law, University of Pretoria

Africa, the second most populous continent with the fastest growing population on the globe faces complex and integrated human security threats. From a broader perspective, human security is far more than the absence of violent conflict. It encompasses respect for human rights, good governance, access to education and health care and ensuring that each individual has opportunities and choices to fulfill his or her potential. In Africa, addressing these issues requires alleviating poverty, promoting economic growth, freedom from fear and access to a healthy natural environment as well as and preventing conflict. Characteristically, Africa is associated with war, poverty, genocide, diseases and grievous abuses of human rights, prolonged armed conflicts and rising terrorist activities. Conventionally, the African Union has adopted several instruments to deal with these peace and security threats. This article focuses on increased armed conflicts and terrorist activities on the continent.

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Some reflections on the current Africa’s project on the establishment of African Court of Justice and Human Right (ACJHR)

Tefera Degu AddisAuthor: Tefera Degu Addis
LLM candidate, International Human Rights and Humanitarian Law, University of Essex School of Law, UK

It has been more than thirteen years since the ICC was established and started its operation on most serious crimes of international concern, namely genocide, crime against humanity, crimes of war and aggression. The court is established by virtue of the Rome Statute as a permanent international criminal tribunal independent from other UN bodies. To date, all cases that have been investigated by ICC are from Africa. African countries generally have cooperated in the early stages of the establishment of ICC.

Nowadays, however, it seems that the relationship between the ICC and Africa is turning into a growing trend of contention. It has been a point of discussion in the academia and in the international politics as to whether the court is indeed exclusively targeting Africa regardless of their contribution and cooperation in the creation and advancement of ICC. The AU and various leaders in Africa have expressed their dissatisfaction in different occasions that the court is “neo-colonialist policy” or “post-colonial court.” As a result, the AU in 2008 adopted a protocol on the establishment of African Court of Justice and Human Rights (ACJHR). The protocol is being circulated and so far 11 countries have signed the document. Last year at the AU Summit, the current president of Kenya urged for the immediate establishment of the court.

Notwithstanding the current uncertainty about the fate of the Draft Protocol and thereby the establishment of the ACJHR, it is worthwhile to examine some of the challenges and opportunities that the court might face and the future of international criminal justice in Africa.

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