Commemorating the 20Th Anniversary of the Rome Statute of the International Criminal Court
AFRICA LEGAL AID QUARTERLY Special Edition 2018 ISSN: 1384-282x
Commemorating the 20th Anniversary of the Rome Statute of the International Criminal Court
Broadening the Fight Against Impunity The Malabo Protocol and Complementarity of International 20 Years of the Rome Statute Criminal Justice: Challenges and of the ICC Prospects
Strengthening Comple- Bringing Soft Power to a Life’s mentarity as a Cornerstone Work: The Professional of the Rome Statute Trajectory of Judge Sanji System Mmasenono Monageng
The Boko Haram Situation A Candid and Inspiring Interview with Judge Howard Morrison Translating the ICC’s Victims’ Rights Provisions into Domestic Context
Peer Reviewed
Africa Legal Aid
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Africa Legal Aid (AFLA) is an influential pan-African entity devoted to promoting human rights and international criminal justice. Celebrated for its convening power and its 'flagship' publications, AFLA provides leadership and support to key institutions and organisations working for the respect and recognition of human rights and international justice.
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FIRST PUBLISHED IN 1996
EDITOR EVELYN A. ANKUMAH
Special Edition 2018 ISSN: 1384 – 282x
Letters can be sent to: The Editor Africa Legal Aid Quarterly Laan van Meerdervoort 70 2517 AN Den Haag The Netherlands E-mail: [email protected] Tel: +31 (0) 703 452 842 www.africalegalaid.com
The views expressed in the AFLA Quarterly are those of the contributors, and not necessarily endorsed by Africa Legal Aid, or individual members of its board, the editor, individual members of the Peer Review Panel, or any organizations they are affiliated with.
Contributions in the AFLA Quarterly are original previously unpublished work.
©All Rights Reserved
Peer Review Panel
Professor Leila Sadat, Professor of Law, Washington University School of Law, Director of the Whitney R. Harris World Law Institute; and Special Adviser on Crimes against Humanity to the ICC Prosecutor. Judge Elizabeth Ibanda-Nahamya, Mechanism for International Criminal Tribunals (MICT). Professor Nsongurua Udombana, Professor of International Law, Babcock University, Ogun State, Nigeria. Stephen Lamony, Senior Advocate, Amnesty International- United Nations Office, New York. Angela Mudukuti, International Criminal Lawyer Manuel Ventura, Director, Peace and Justice Initiative, The Hague; Associate Legal Officer, Appeals Chamber, Special Tribunal for Lebanon; Adjunct Fellow, University of Western Sydney. Professor A.P. van der Mei, Department of Public Law, Maastricht University, the Netherlands.
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TABLE OF CONTENTS
EDITORIAL: Broadening the Fight Against Impunity 1 Evelyn A. Ankumah
20 Years of the Rome Statute of the International Criminal Court 3 Judge Geoffrey Andrew Henderson
Strengthening Complementarity as a Cornerstone of the Rome Statute System 8 Judge Kimberly Prost
The Boko Haram Situation 15 Segun Jegede
Victims’ Rights: Translating the ICC’s Victims’ Rights Provisions Into Domestic 23 Context Dr. Carla Ferstman
The Malabo Protocol and Complementarity of International Criminal Justice: 30 Challenges and Prospects Dr. Robert Eno
Bringing Soft Power to a Life’s Work: The Professional Trajectory of Judge Sanji 39 Mmasenono Monageng Dr. Leigh Swigart
A Candid and Inspiring Interview with Judge Howard Morrison 60 Evelyn A. Ankumah
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EDITORIAL
BROADENING THE FIGHT AGAINST IMPUNITY Evelyn A. Ankumah
matters of concern. Yet, what to do? We have to be realistic, and modest in our expectations of what can actually be achieved in the next twenty years. We can, and we should, continue, to stress the significance of international criminal justice. We must promote the ICC as a particularly important tool for deterring commission of international crimes, and delivering justice for victims. But let’s get real, not all stakeholders are likely to have an open mind. We live in a heavily politicized world. Economic interests, power politics, nationalism, and populism rule the world. In today’s Internet and social media era, it seems easier to trigger the selfish day-to-day Evelyn A. Ankumah underbelly feelings of people, than to persuade them of the structural need to Dear reader, challenge the powerful, and to show solidarity with the less powerful. Commemorations are occasions not necessarily to celebrate, but more Let me be clear. I am not giving up hope. I importantly an opportunity to look ahead am not suggesting that nothing can be done. and reflect on what can be improved, and There are ways that we can broaden and how. On the occasion of the 20th anniversary strengthen the ICC. My point here would be of the Rome Statute of the ICC, how can the to enhance the image of the Court as a body goal to end impunity be broadened? I will that objectively stands for the a-political rule limit myself to two points. of law. Whether we like it or not, the Court, too often is seen as a political actor. We may Let me start with the number of states argue that such critique is not right or fair, parties. While the current number, 123, is as but the perception does exist. The Court may such not bad, it is clear that there is room for seek to objectively work on criminal justice, improvement. The world’s most powerful but its legitimacy ultimately depends on and populous states have not joined. Nor whether people believe so. The future have various states where the rule of law is success of the Court depends on such disrespected or under serious threat. In subjective perceptions of its work. recent years, we have even witnessed a negative tendency of states parties wishing In my modest view, there is only one way to to withdraw from the Statute. These are positively influence these subjective perceptions; and that is by objectively, and coherently, and consistently, applying the Executive Director of Africa Legal Aid (AFLA).
- 1 - Africa Legal Aid legal standards enshrined in the Rome perhaps some other crimes. We need the Statute. As significant as the rights and ICC, but pursuing success of the ICC is not a interests of victims are, criminal justice is goal in itself. also very much about the rights and interests of the accused. In other words, both The ultimate goal is criminal justice, and as convictions and acquittals may serve justice we all know, the ICC does not have well. For all purposes of clarity, I am not monopoly on criminal justice. In fact, the expressing concrete views here about the ICC is a default court that only has a role to outcome of the Bemba judgment. I am just play when local courts are unwilling or neutrally observing that the debate between unable to do the job. While the Statute only the majority and the minority of the judges refers to the ICC's jurisdiction in relation to in the Bemba Appeal judgement must national courts exercising territorial or continue. I believe that continuing this nationality jurisdiction, I would submit that debate, will in the long run, help us achieve the goal and spirit of the Statute also demand consensus on how best to balance the rights respect for the exercise of complementarity of all involved. If the Court is seen as giving by sub-regional or regional courts, as well as too much weight to either the interests of the universal jurisdiction by national courts. victims or rather to those of the accused, it Proper legal standards must of course be will not be seen as a place where the adhered to, but the Rome Statute provides objective rule of law is applied. It might not for a decentralized system that rests on the be an attractive body to join. notion of justice being done at home, or as close as possible to home. We need a strong My second point is that it is not necessarily ICC that can fill the gaps in criminal law the ICC but the fight against impunity that systems, but it is not the only Court able and should be broadened. I do believe and fully willing to do so. Hence, the aim should not support a strengthening of the ICC, be it in only be to enhance national cooperation with terms of increasing the number of states the ICC’s work, but the ICC is well advised parties, intensifying its cooperation with to also offer its expertise and resources to member states or the extension of its other courts seeking that same objective of jurisdiction with the crime of aggression or international criminal justice.
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20 YEARS OF THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT Judge Geoffrey Andrew Henderson
in Room 600, where the Nuremberg Trial had taken place.
This trial was indeed historic and continues to be a permanent reminder that, as famously declared then, “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”
During the five decades that followed, Judge Geoffrey Andrew Henderson* however, there was no similar endeavour. Instead, important norms and principles were adopted in the areas of human rights th In commemorating the 20 anniversary of and humanitarian law, including the Rome Statute, which was adopted on provisions intended to expand the basis to 17 July 1998, it is important to investigate and prosecute beyond the acknowledge the idea that certain offences confines of territorial jurisdiction. cannot go unpunished. The 20th Amongst them, this year the international anniversary of the Rome Statute is an community will not only mark the 20th extremely important event to mark. What anniversary of the Rome Statute but also was until then a distant dream became a the 70th anniversary of the Convention on reality on that day. the Prevention and Punishment of the Crime of Genocide of 1948, with which The idea that certain offences cannot go the Statute is inextricably linked. unpunished was certainly not new and several initiatives were undertaken in the However, prosecutions continued to be past to bring perpetrators to justice. In the rare at the national level and non-existent aftermath of the Second World War, the at the international level. While the International Military Tribunals of normative development was extraordinary, Nuremberg and Tokyo laid the foundations impunity flourished as there was no of international criminal justice and served effective enforcement of international law. as a powerful precedent for the Progress was frustrated with the establishment of the International Criminal breakdown of the collective will, Court. In 2015, the judges of the ICC characterized by the Cold War. signalled their recognition and respect for this precedent by holding their first retreat It would be more than four decades later aimed at revising the criminal proceedings that the long-dormant cause of international justice would be furthered with the establishment of the United * Judge at the International Criminal Court (ICC).
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Nations ad hoc tribunals in 1993 and 1994, the start of a long friendship which ended to try the perpetrators of the atrocities in Woetzel’s death in 1991. During this committed in the former Yugoslavia and in period, they partnered in the long haul Rwanda respectively. In 1993 the conflict towards the creation of the ICC. Many in the former Yugoslavia erupted and war years later and as Prime Minister of now crimes, crimes against humanity and independent Trinidad and Tobago, genocide in the form of ethnic cleansing Robinson at the 44th session of the UN commanded the attention of the General Assembly that took place in 1989, international community. In the following requested that the International Law year, the Rwandan genocide (also under Commission resume work on an the guise of ethnic cleansing) and other international criminal court. This crimes against humanity were committed. ultimately triggered the Rome Statute But before the creation of these two UN ad process. In 1994, the General Assembly hoc tribunals took place, another important agreed to create an ad hoc committee for step was taken and the role of Trinidad and the establishment of an international Tobago and its former Prime Minister criminal court and Robinson is universally Arthur Robinson, who had pressed for the recognized for his unrelenting advocacy inclusion of the creation of a permanent and political work at the international level court in the global agenda, deserves to reactivate, what had become by 1989, a recognition. dormant idea for the establishment of a permanent international criminal court. It is an important bit of history and a message that I like to pass on to university If you permit me, going back to the ad hoc students and other audiences whenever I tribunals created to try those alleged to be have the opportunity to do so. In my the perpetrators of the atrocities committed respectful view it is a strong reminder of in the former Yugoslavia and Rwanda, the how each one of us can in our own way, fact that both ad hoc tribunals were created with the strength of our convictions, by the Security Council under Chapter VII positively influence global events. of the Charter reflected an understanding that certain crimes not only offend The long road to the Rome Statute and the mankind but are a threat to peace and creation of the International Criminal security. In addition, as clearly spelled out Court as a permanent court can in part, in the constituting resolutions, both also be traced back to the early 50s when tribunals were set up on the belief that they two young bright men crossed paths at could “contribute to the restoration and Oxford University. In 1953, a young man maintenance of peace”. by the name of Arthur Napoleon Raymond Robinson from the tiny fishing village of The same underlying objectives would Castara in the then British colony of guide the negotiations of the Rome Statute. Trinidad and Tobago was admitted to read This time, it was not only the Security for the Bachelor’s Degree in Politics, Council but the international community Philosophy and Economics. He as a whole that endorsed the premise that immediately joined the Oxford Union grave crimes threaten the peace, security where he met and established rapport and and well-being of the world and that friendship with another student Robert justice is necessary for their prevention. Woetzel. Woetzel who was Jewish and This belief is explicitly reflected in the who as a child together with his parents preamble of the Rome Statute. fled Germany just before the outbreak of WWII, was then writing his PhD thesis on While the ad hoc tribunals were crucial the subject of the Nuremburg trials. It was precedents, the creation of a general and
- 4 - Africa Legal Aid permanent court was a different and far manner. This principle of more ambitious project. By virtue of being Complementarity was the theme of a general and permanent, the court would stakeholders’ conference graciously not be circumscribed to pre-defined organised by Africa Legal Aid in situations but would be able to intervene cooperation with the Office of the potentially in any future situation of Attorney General and Minister of Justice international crimes, within the parameters of The Gambia in April 2018. of the founding treaty. Where to investigate and who to prosecute would be A careful historical review of the fundamental questions to be answered by negotiations at Rome must acknowledge the Court itself, not by any group of the strong and active participation of countries. African States in the drafting and adoption of the Rome Statute. This is helpful given Was the international community ready some of the current challenges facing the for such a project? Court. At the Rome Conference, African states actively participated in the debates This was an open question at the time of and did so with high level participants as the start of the negotiations. The term their delegations were led by Attorney “international community” encompasses a Generals, Ministers of Justice and broad group of actors with different Ministers of Foreign Affairs. Among the positions, which may evolve depending on 31 Vice Presidents of the diplomatic many factors, including the commitment conference, eight were from the African and will of others to lead in the promotion continent, namely Algeria, Burkina Faso, of a particular cause. Egypt, Gabon, Kenya, Malawi, Nigeria and Sudan, while the drafting committee This is what happened when a group of was chaired by Egypt. like-minded states in partnership with a coalition of non-governmental The process was complex and doubts organisations decided to steer the persisted as to whether it would be negotiating process towards the possible to adopt the treaty until hours establishment of an international criminal before the conclusion of the conference. court. The process was fundamentally Not surprisingly, when 120 states voted in democratic as it was opened to all states of favour of the creation of the Court, those all continents, as well as the participation present said that emotions ran high. The of a large number of non-governmental global community had, no doubt, made a organisations. There was an explicit and huge, historic leap forward in the road deliberate effort to reflect the diversity of towards a rules-based international order. regions, legal systems and traditions. This It was a legal revolution, according to was important. some. The international community had demonstrated that it was indeed ready for a Through intensive discussions over more permanent international criminal court. than three years, support for the creation of While the final decision to create the Court the Court was gradually broadened, was taken by a vote, the overwhelming including acceptance for certain particular majority of the Rome Statute provisions features that were considered to be were achieved by consensus as it was essential for a strong Court. Early on in indeed recognized that the Court could the process there was agreement that the only be effective if based on broad Court would be a Court of 'last resort', agreements and shared values. intended to address situations only when national systems failed to act in a genuine
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And yet, shortly after the Rome encouraging trend that is also fully Conference doubts re-emerged. To become consistent with the complementary a reality, the treaty required a very high character of the Court. The fight against number of ratifications, at least sixty. In impunity requires a mutually reinforcing other words, the achievements attained global justice system, in which domestic, multilaterally required the individual regional, international and hybrid commitment and confirmation of states. institutions coexist and strengthen each other. Were states ready for that? However, also by virtue of its permanent Again, this was an open question that was and general character, it is clear that the positively and swiftly answered less than Court has a central and unique role to play four years later. Support for the new as back-up mechanism to prevent institution had not diminished, nor had the impunity. This was a central rationale for enthusiasm of states and civil society that the creation of the Court, which continues led a vigorous campaign for ratification. to be relevant today. Small and medium sized countries in particular continued to champion the The achievements in international criminal process. Again, history will show the justice in the past decades are truly significant role that Africa played. African impressive. There is much to celebrate. States were among the earliest to ratify the And yet, we enter the 20th anniversary of Rome Statute. Currently of the 123 States the creation of the Court with – again – Parties, 33 are from this continent making some concerns. Africa the largest group in the Assembly of States Parties, the oversight and We feel that our world is less benign today legislative body of the Court. than it was in the 90s where idealism was at its peak. As populism, bigotry and On 1st July 2002, the Rome Statute entered xenophobia are on the rise, there is a into force and the Court was set up. The danger of a serious push back with the first judges and the first Prosecutor took potential of undermining international office. Uganda and the Democratic criminal justice and more broadly… a Republic of the Congo were the first states rules-based order. to deposit their trust in the new institution and triggered with their referrals, the first At times, we cannot but wonder whether in investigations. Other investigations would this prevailing environment, the Court follow, initiated upon referrals by other could be created today. Thankfully the states and the Security Council or, ex Court has been created. It is not perfect but officio, by the Prosecutor with the it has matured, it is delivering and it is authorization of pre-trial judges. To date, improving. The real question is whether this has resulted in 11 investigations, 25 the international community is ready to cases, 8 convictions, 2 acquittals, sustain this Court in the next 20 years. reparation orders, three ongoing trials and some 14.000 victims participating in the Again, an open question to be answered by proceedings. states, organisations and civil society, and most specifically by the 123 States that are Beyond the ICC courtrooms themselves, already parties to the Rome Statute. They the treaty has influenced justice solutions must be at the forefront. This ICC nationally and internationally, notably in community is not yet universal but it does the form of domestic legislation passed in contain a significant majority of the numerous states. This is indeed an world’s states, from all regions. It is for
- 6 - Africa Legal Aid them to confirm in the first place whether rather contributes to a sustainable peace they have the will and the commitment to and whether there is the will and the preserve the achievements of the last courage to continue building a system fit decades. for the challenges of the 21st century.
Most importantly, it is for them to confirm In sum, the 20th anniversary offers a whether they are ready to lead the efforts golden opportunity to discuss whether the not only to maintain but also to strengthen ICC community is ready to sustain in the the Court. Indeed, in order to be effective, next 20 years a strong and effective Court legitimate and credible, the ICC system capable of prosecuting the gravest crimes must be strengthened. Participation in the for the protection of all victims. treaty must grow for the Court to be able to address all situations equally and thus contribute to a consistent pattern of accountability.
Cooperation with the Court in situations that are addressed must be enhanced. While the efforts to increase the efficiency of the Court from within must continue, initiatives to foster its effectiveness from the outside are also imperative.
We have come again to a point where it is necessary to engage in renewed debate on the objective and purposes of international criminal justice and the role of the International Criminal Court in the quest for accountability.
The 20th anniversary offers a unique occasion to have this debate and to confirm whether the premises on which the creation of the Court was based remain valid, that is to say whether there is still a belief that justice does not undermine but
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STRENGHTENING COMPLEMENTARITY AS A CORNERSTONE OF THE ROME STATUTUE SYSTEM Judge Kimberly Prost
Review Conference held in Kampala, Uganda4 leading to the triggering of the ICC jurisdiction over that crime in December 2017, which amendment took force on 17 July 2018 - the anniversary date of the Rome Statute.
A Time to Recognize the Court
At this juncture in the life of the Court it is critically important to take time – as is being done - to recognize the Rome Statute for the important accomplishment that it is Judge Kimberly Prost* and for the role it has played, and will continue to play, in bringing an end to Introduction impunity on a global level. It should not be forgotten that to reach agreement in Rome The occasion of the 20th anniversary of the was an extraordinary accomplishment. Rome Statute allows for reflection on Further, to go from the idea and an achievements and challenges including in agreement to a functioning permanent the relationship between the International institution is a remarkable achievement. Criminal Court (ICC) and Africa. It is essential to begin those reflections by But it is - at the same time – a fragile one. recalling the important role that African States and Africans played in the adoption These are troubled times for international of the ICC Statute. That influence has criminal justice and like other institutions, continued throughout the life of the Court the ICC faces many challenges from to date with Africans making key within and without. The task for the contributions as staff members and in international community, going forward principal roles such as President of the from this anniversary, must be to draw Assembly of States Parties,1 President of from the ICC’s accomplishments to date in the Court2 and, of course, Prosecutor Fatou order to work to preserve and strengthen Bensouda whose nine-year term will have the Rome Statute system – for victims, for spanned a critical phase for the Court.3 justice, and for an end to impunity.
Also notable is the fact that the historic There are many issues which will need to amendments to the Rome Statute on the be addressed in that context but none more crime of aggression were ‘born’ at the important than the subject of this article - Complementarity. * Judge at the International Criminal Court (ICC). 1H.E. Sidiki Kaba President of the Assembly of States Parties (2015-2018). 2 H.E. Chile Eboe-Osuji, President of the Court (present). 4 Review Conference of the Rome Statute, 3 From June 2012. Kampala, Uganda 31 May -11 June 2010.
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Reinvigorating the Rome Statute but also the Rome Statute system as a System whole.
Even after two decades, it bears repeating These efforts must begin by ensuring that that what was created in Rome, almost 20 the intent of the Rome Statute and the years ago, was not a ‘standalone’ Court. complementarity system is fully Rather, it was a system designed to understood. motivate and challenge States to take up their responsibility to investigate and The first principle should be well known - prosecute the most serious crimes known primary responsibility for investigation to humans, grave crimes which threaten and prosecution of these crimes rests with the peace, security and well-being of the States. The ICC has jurisdiction only when world. no State is willing and able to genuinely investigate or prosecute.5 In terms of the The Court faces many challenges. Perhaps responsibility of States there is general the most significant challenge agreement it is always preferable – operationally is with effective State particularly for victims - that these horrific cooperation. By example, the Court has crimes, any crimes for that matter, are many outstanding arrest warrants which prosecuted in the territory of the State significantly impair its ability to fulfil the where they occurred. But sadly for a mandate of the Rome Statute. Moving into myriad of reasons – ongoing conflict, the 21st year of the Rome Statute capacity, unwillingness, – that is often not considerable efforts are needed to improve possible or not possible at least for a the situation regarding cooperation and in period of time. particular the execution of arrest warrants. Internally, all organs of the Court need to For that reason, the Rome Statute always focus on improving efficiency. While all contemplated not just territorial State these issues merit attention, perhaps the prosecutions but rather the use of all forms most significant failing in these first 20 of jurisdiction recognized by international years has been in not paying sufficient law. There was an expectation that all attention or giving adequate focus, to this States would have at least some extended cornerstone of the Rome Statute system – jurisdiction for these crimes and would be complementarity. prepared to use it. The Preamble of the Rome Statute reflects this concept as The ICC is a busy court but even with follows: more resources it can investigate and prosecute only a few cases simultaneously. Affirming that the most serious It is a constant challenge for the Prosecutor crimes of concern to the to prioritize her work within those international community as a constraints. whole must not go unpunished and that their effective prosecution But despite this reality, the expectation has must be ensured by taking developed that somehow the single justice measures at the national level and solution to mass atrocities, which by enhancing international tragically abound in our world today, is the cooperation. Court alone. If there is one priority in these next few years it must be to change that Moreover, Articles 17 and 18 of the Rome perception and bring more attention to the Statute, which are at the core of the issue of how to build up not just the Court,
5 Article 17, Rome Statute.
- 9 - Africa Legal Aid complementarity principle, are framed to to further explore ways to enhance recognize the use of extraterritorial capacity and specifically requested the jurisdiction in that they acknowledge the Secretariat of the ASP to facilitate the fact that more than the territorial state may exchange of information for that purpose. have jurisdiction in any particular instance. Some initial efforts were undertaken to implement the resolution. At the 10th ASP On this subject, the Rome Statute does not session, the Secretariat submitted a List of make specific reference to role of regional Actors working in the field of courts in terms of complementarity. complementarity7 in furtherance of the However, in so far as these clearly involve mandate given to it and it continued to States in a region combining their provide reports on facilitation efforts for a jurisdiction, they fall well within the few sessions. There were also some efforts principles and concept of the Rome Statute by States Parties to coordinate assistance system. It would be an equally welcome mandates in terms of capacity building. development for regional courts to take up However, the initiative seemed to have lost the responsibility to investigate and impetus without any concrete results in prosecute these crimes as a reflection of terms of actual capacity enhancement. the concept of complementarity. Better capacity is needed at all levels. Capacity is the Key Every State, whether a party to the Rome It follows that if the ICC is to function as a Statute or not, needs to have laws which complementary Court, national and entrench the core crimes within domestic regional courts must have the capacity to law. Further there needs to be provisions conduct these investigations and as necessary allowing for the prosecution prosecutions and to do so, on the basis of of these core crimes with appropriate all recognized forms of jurisdiction. extended jurisdiction. In terms of legal capacity the aim must be for every State It is evident that to date, little attention has across all the regions of the world to have been paid and few efforts have been a legal structure criminalizing the crimes directed towards capacity building for this and allowing for prosecution on a purpose. This is despite the fact that the territorial or extra-territorial basis. need for, and importance of, capacity building was well recognized by the Also, to effectively implement in terms of Assembly of States Parties (ASP) at the extra territorial cases, States must have not Kampala Review Conference. In its just the criminal law but the ability to resolution on complementarity6 the gather and provide evidence abroad. Each Review Conference acknowledged the State should also have the full capacity to need for proper implementation of the seek the arrest and surrender of suspects in Rome Statute in domestic law, for the other jurisdictions and to be in a position enhancement of international cooperation to extradite suspects when sought by and the importance of States assisting each another State. For this there must be a other to strengthen domestic capacity. solid legal base for international cooperation to make and respond to To that end the Conference encouraged the requests for mutual assistance and Court, Sates Parties and other stakeholders extradition.
6 Review Conference of the Rome Statute, 7 https://asp.icc- Kampala Uganda, 31 May – 11 June 2010, cpi.int/en_menus/asp/complementarity/List-of- RC/Res.1. Actors/Pages/default.aspx.
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On this point, a group of States - Responsibility to Build Capacity Argentina, Belgium, Mongolia, Netherlands, Senegal and Slovenia – are The related, perhaps more difficult, advancing an important initiative aimed at question is - who is responsible for this the negotiation and adoption of a multi- capacity building? This fundamental lateral convention on international question simply does not get sufficient cooperation in relation to the core crimes.8 consideration. Some criticize the ICC on Sixty States are now supporting the this issue. The ICC can, and does, play a initiative9 A Preparatory Conference was limited role - especially the OTP - through held in Doorn, Netherlands, 16-19 October engagement with States. But it is first and of 2017 and work on a draft text is now in foremost a court, with a significant progress with a view to a diplomatic mandate and very limited resources. And conference for the negotiation of the States Parties have made it clear that this is convention itself. This is an important not the function the ICC should undertake. initiative to fill the international That is an understandable and sensible cooperation structure “gap” which position. currently exists. While there are important multilateral instruments dealing with Rather, it is for the international cooperation for drug crimes, transnational community writ large – States individually organized crimes, corruption and and collectively, the United Nations, other terrorism, to date there is no treaty which Inter-Governmental Organizations, Non- addresses cooperation in a comprehensive Governmental Organizations, academics – way in relation to these, the gravest there needs to be a wide net cast to crimes. It will significantly enhance the advance capacity building. There is now capacity of States to cooperate particularly much expertise available and much of that in relation to States which do not have the is available within Africa. Effective ways ability to negotiate bilateral instruments need to be found to channel and use it. for that purpose. In this regard there is an important And finally there must be attention paid to question that arises with respect to the human resource capacity. Without efforts of the UN itself. There is an office knowledgeable and trained police, within the UN structure – the United prosecutors and judges, there will be no Nations Office on Drugs and Crime. While real capacity in States to conduct these it carries out good work that is relevant to investigations and prosecutions effectively. capacity building in this context – for There may be different approaches taken example on international cooperation – it to achieve capacity in this regard including has no program dedicated to building the establishment of special chambers or capacity for the gravest crimes known to divisions or the delivery of general humanity. Why is that the case? With the training. Whatever method is employed, closing of the two Security Council created the key is to have legal system actors who Tribunals – the ICTY and the ICTR – it is are capable of properly implementing the imperative that the UN redirects its laws in this area. contribution in the field of international criminal justice to building state capacity to address these crimes. A program related to international criminal justice within the 8 See joint statement to the Assembly of States UNODC would be a critical step towards Parties - https://asp.icc- that goal. cpi.int/iccdocs/asp_docs/ASP12/GenDeba/ICC- ASP12-GenDeba-Netherlands-Joint-ENG.pdf. 9 As of 05/17/2018.
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The Willingness Issue to the crime of aggression.11 Sadly that means that the ICC has no jurisdiction It is clear, however, that capacity alone with respect to crimes committed in will not achieve the goals of the Rome several of the States where conflicts rage Statute system in terms of and horrors are played out on a daily basis. complementarity. It is also about will. States must be willing to adopt the This means the Court cannot investigate or necessary laws, and to implement them. prosecute and equally the pressure which They must be willing to carry out not only the Rome Statute can bring to bear on a national prosecutions for territorial State Party to investigate and prosecute – offences but extraterritorial cases. And because of the principal of they must be committed to regional efforts complementarity - is also not present. to allow for such prosecutions to take Clearly the work of the Court and the fact place elsewhere or in a regional court. But that it will step in if no action is taken can all too often that will is lacking - for have an important impact in driving political reasons, because of other national prosecutions; the realization of priorities or as a result of capacity complementarity as envisaged by the challenges. Whatever the underlying drafters. For these reasons the quest for reasons, efforts must be made to universality for the Rome Statute must reinvigorate the willingness of States to remain a central goal – no matter how conduct these investigations and unrealistic it may seem today. prosecutions. States should be infused with the spirit of Rome, where the participants Change the Conversation fought hard to ensure and secure the principle of complementarity in order to In the interim, it is imperative to change safeguard the right of States to exercise the conversation about the ICC and the their jurisdiction to address these crimes. Rome Statute. A State may be an ardent Now the time has come for that principle critic or opponent of the ICC but no State to be fulfilled by States taking up their can credibly be a critic or opponent of responsibilities justice. A State has the sovereign right to decide whether to become a party to the Universal Jurisdiction Rome Statute and to remain as a party. But a State also has the responsibility to ensure On a related point, one of the fundamental that the most horrific crime known to challenges that the ICC faces is a lack of humankind is not perpetrated on its soil, universal jurisdiction. Because it is a treaty by its nationals, and must ensure justice based Court, States decide whether to join for victims when such crimes occur. That the Rome Statute or not. Today 123 States is the aim of the Rome Statute system but have made that choice. While it is a it is also a shared goal for all civilized significant number, it means that the Court nations. can only have jurisdiction in cases where the crimes are alleged to have been Therefore the question must be posed to committed on the territory of one of those those who oppose or criticize the ICC and States Parties or by a national of a State even to those who are silent. What is the Party unless the matter is referred to the alternative to the ICC for international Court by the Security Council.10 There is criminal justice? What answer is proposed even more limited jurisdiction with respect for the victims who call for justice for the worst atrocities known to humanity?
10 Article 12(2) and 13 Rome Statute. 11 Article 15 bis Rome Statute.
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Any legitimate answer leads back to evidence of alleged crimes perpetrated exactly the same point – having universal during that conflict for use in domestic capacity and willingness by States to investigations and prosecutions and investigate and prosecute these crimes, ultimately perhaps one day in an which would make the ICC a happily international context. Recently agreement redundant, complementary Court. So the was reached by a group of States whose next question must be – if that is the nationals were victims of the downing of solution what is being done to achieve that Malaysia Airlines flight 17 over the solution? Ukraine to support a domestic prosecution in the Netherlands in relation to the Encouraging Signs incident.16 And there is important work relevant to accountability being conducted This is a daunting task and the world is far within the mandate of other international away from achieving this goal. But despite organizations such as the Organization for the difficult challenges there are signs of the Prohibition of Chemical Weapons, the progress, and particular examples of Human Rights Council and the Office of progress in Africa. This is progress which the High Commissioner for Human Rights. must be continued and enhanced. All of these should be seen as positive steps towards building a network for While not a case of complementarity accountability and reflecting the spirit of strictly speaking - because the crimes pre- the Rome Statute in terms of date the Court - the Habré trial stands as a complementarity. stellar example of what can be done – with political will and support - to achieve Conclusion justice through extraterritorial jurisdiction. In conclusion, one of the successes of the A special Court has been established to try ICC and the Rome Statute system – which cases in the Central African Republic12 and does not receive sufficient attention - is there is a proposal for a hybrid court for that it has led in ensuring that South Sudan.13 There are also examples of accountability has become a part of the special Chambers established to address international landscape. Accountability is international crimes such as in Uganda.14 no longer seen as a consideration or And a number of States have war possibility – it has become an expectation. crimes/crimes against humanity sections At times it may be an expectation that is tasked with extraterritorial prosecutions of difficult to live up to but nonetheless it is a international crimes. As well, there are reality. interesting and innovative accountability initiatives. On the 20th anniversary of the Rome The International, Impartial and Statute, the remarkable progress made Independent Mechanism for Syria towards accountability with the 15established by the UN General Assembly establishment of the ICC and its system is mandated to gather and preserve must be remembered – an idea which arose from Nuremberg and before.
12 See www.fidh.org/en/region/Africa/central- Moving forward into the 21st year of the african-republic/what-is-the-special-criminal-court. 13 See www.hrw.org/news/2017/12/14/south-sudan- Rome Statute system it is a joint stop-delays-hybrid-court. 14 See www.hrw.org/report/2012/01/15/justice- serious-crimes-national-courts/ugandas- 16 www.government.nl/latest/news/2017/09/20/jit- international-crimes-division. countries-confirm-their-support-for-dutch- 15 See https://iiim.un.org/#. prosecution-of-mh17-suspects.
- 13 - Africa Legal Aid responsibility – those working in the Court or outside, within States Parties or non- States Parties, within intergovernmental and non-governmental organizations - to enhance that expectation for justice and redress for victims. Moreover, it is a duty to construct laws and build capacity so as to establish a new world wide web – this one for justice - that will help to attain the ultimate goal of finally bringing an end to impunity for the most serious of crimes in our world today.
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THE BOKO HARAM SITUATION Segun Jegede
the doctrine of state sovereignty which affirms the full right and power of a nation state to govern itself without any interference from outside sources or 2 bodies.
However, two world wars and the unimaginable human rights tragedies that
took place in the former Yugoslavia and Rwanda changed all that and propelled the international community to find a way to address the growing impunity in several parts of the world.
The ICC Rome Statute came into force on July 1, 2002, upon 60 ratifications and was ratified by Nigeria on 27th September 2001 along with many other countries, thus creating a new system to deal with the Segun Jegede* world’s most egregious crimes: war crimes, crimes against humanity, and 3 Perhaps, more than any other period in genocide. The goal of the Rome Statute is world history, the last two decades have to end impunity for the most serious seen a significant impetus in the effort to crimes of concern to the international create an enduring global mechanism to community as a whole and contribute to 4 bring to justice those who bear the greatest their prevention. responsibility for the world’s most dreadful crimes.1 With the foregoing as an introduction, it is the modest endeavour of this paper to Despite several delays and setbacks, the briefly review the Boko Haram Situation international community’s vision of in Nigeria and the ICC’s valiant attempt to establishing a widely accepted global ensure that the perpetrators of the heinous criminal justice system was finally realised with the adoption of the Rome Statute of 2 See Declaration of Principles of International the International Criminal Court on 17 Law Concerning Friendly Nations and Cooperation among states in accordance with the July 1998. Before then, international United Nations Charter: Resolution Adopted by the obligations had always been outdone by General Assembly on 24th October 1970. 3 Mohammed Ladan - An Overview of the Rome * Founder, Legal Watch and Human Rights Statute of the International Criminal Court: Initiative; Special Prosecutor for the Government Jurisdiction and Complementarity Principle and of Nigeria. Issues in Domestic Implementation in Nigeria. Afe 1 Segun Jegede, Africa’s Distrust of the Babalola University: Journal of Sustainable International Criminal Court; Published in The Development Law and Policy Vol. 1 Iss. 1 (2013) Guardian Newspaper, Nigeria, 4- 7 April 2016. pp. 37-53. https://guardian.ng/opinion/africas-distrust-of- 4 The Role of the International Criminal Court in international-criminal-court-part-3. Last accessed Ending Impunity and Establishing the Rule of Law 18 October 2018. :UN Chronicle, Vol. XLIX No4 2012.
- 15 - Africa Legal Aid crimes committed by the group are brought civilian areas, such as places of worship, to book. Also, the paper will examine markets or bus stations, often by suicide pertinent issues that may undermine State bombers. parties’ determination to end impunity for the most serious crimes of concern to the From January 2013 to March 2015, 356 international community. reported incidents of killings can be attributed to Boko Haram in 9 states of The Boko Haram Situation Nigeria as well as occasionally in Cameroon and Niger which led to the The radical Islamist group, Boko Haram is killing of over 8,000 civilians. The group believed to have been formed in the town also abducted defenceless civilians. In of Maiduguri in northeast Nigeria, where 2014 alone at least 1,123 persons were the local residents nicknamed its members abducted, of which 536 were female “Boko Haram,” a combination of the victims. From May 2013 to April 2015 Hausa word “boko,” which literally means alone, the abduction of more than 2,000 “Western education” and the Arabic word women and girls was documented. “haram” which figuratively means “sin” and literally means “forbidden.”5 The most notorious case is arguably the abduction of 276 girls from the Founded around 2001 or 2002, the group Government Girls Secondary School in claims to be opposed not only to Western Chibok, Borno State on 14 April 2014. civilization and education, but also to the Most of the persons abducted by Boko secularization of the Nigerian state. There Haram were unmarried women and girls, is a fair consensus that, until 2009, the many of whom were reportedly forced into group conducted its operations more or marriage with Boko Haram fighters. less peacefully and that its radicalization Forced marriages reportedly entail followed a government clampdown in repeated rapes or violence and death 2009, in which some 800 of its members threats in cases of refusal. The case of the were killed. The group’s leader, “Chibok girls” has attracted global Mohammed Yusuf, was also killed after attention and condemnation. that attack while in police custody. It is the brutal campaign mounted by Boko Under a radical Islamic agenda, these Haram and the equally virulent response militants have perpetrated violence across from the Nigerian Security Forces which northern Nigeria since about 2009, aiming has occasioned the proprio motu to rid the country of any “Western intervention of the ICC Prosecutor in a influence”, particularly western education. determined effort to rein in the unbridled The group’s modus operandi varied impunity which has characterized the according to the intended objective of the conflict. respective attacks. Some attacks were carried out by just two or three gunmen on The Preliminary Examination a motorcycle, others by hundreds of fighters supported by tanks and anti- Following a spate of ferocious attacks and aircraft weapons mounted on trucks. Other bombings by Boko Haram in North Boko Haram attacks included bombings of Eastern Nigeria from 2002 onwards, a preliminary examination was initiated by 5 Jideofor Adibe, Explaining the Emergence of the Office of the Prosecutor (OTP) on the Boko Haram, Tuesday May 6 2014 at basis of information communicated by https://www.brookings.edu/blog/africa-in- individuals, groups and non-governmental focus/2014/05/06/explaining-the-emergence-of- organisations. During the course of its boko-haram/. Last accessed 18 October 2018.
- 16 - Africa Legal Aid preliminary examination, the OTP supporters, followed by large-scale analysed information relating to a wide abuses, including summary and disparate series of allegations against executions and torture. BOKO HARAM and has recently Attacks against civilians. In the determined that there is a reasonable basis town of Baga, Borno State, up to to believe that crimes against humanity, 228 persons were alleged to have namely, acts of murder and persecution been killed following a security have been committed by members of the operation on 17 April 2013. Boko Haram sect in Nigeria and has identified eight potential cases involving In time, the preliminary examination has the commission of crimes against progressed to phase 3 ‘admissibility’, and humanity and war crimes under articles 7 the OTP is currently assessing whether the and 8 of the Statute. Six of the potential Nigerian authorities are conducting cases were for conduct by Boko Haram, genuine proceedings in relation to the and two for conduct by the Nigerian situation in order to resolve jurisdictional Security Forces. and admissibility issues.
The cases against Boko Haram consist of: Though Nigeria is yet to domesticate the Rome Statute, in a most dramatic fashion, The policy of Boko Haram to positive complementarity has achieved intentionally launch attacks against unexpected results by spurring the civilians perceived as Government of Nigeria to commence the “disbelievers”. prosecution of members of the Boko Abductions and imprisonment of Haram group held in detention for their civilians, leading to alleged roles in the spate of attacks, bombings and murders, cruel treatments and kidnappings carried out in North Eastern outrages upon personal dignity. Nigeria. Some members of the Nigerian Attacks on buildings dedicated to security forces involved in the abuses education, teachers and students. identified have similarly been put on trial. Boko Haram’s policy of Recently, to demonstrate Nigeria’s ability recruitment and use of children and willingness to address the violations under the age of 15 years to identified by the ICC, the Minister of participate in hostilities. Justice in a press briefing on the status of Attacks against women and girls: cases currently being prosecuted by consisting of abductions, rapes, government revealed that the first phase of sexual slavery and other forms of 301 cases of Boko Haram suspects has sexual violence, forced marriages, now been concluded with 205 the use of women for operational convictions and 96 acquittals. tasks and murders. The intentional targeting of In the absence of any implementing buildings dedicated to religion, legislation of the Rome Statute, the crimes including churches and mosques allegedly committed by Boko Haram that could fall under the ICC’s jurisdiction are Concerning the Nigerian Security being prosecuted under the 2011 and 2013 Forces, the first potential case relates to: Terrorism Acts by the Attorney-General of the Federation. The alleged mass arrests of boys and young men suspected of being Criticism of the Trials Boko Haram members or
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Though, the trials have been hailed in certain quarters as demonstrative of the Inadequate and Problematic Legal Nigerian government’s determination to Framework work with the ICC towards achieving the goal of the Rome Statute to end impunity Under Article 17 of the Rome Statute, the for the most serious crimes of concern to test of a state’s willingness and ability to the international community,6 strident investigate and prosecute international disapproval has, nonetheless, trailed the crimes is hinged upon the genuineness of conditions under which the trials were the process, and is further determined by held.7 Some have decried what they the independence and impartiality of the describe as the secret nature of trials and domestic proceedings. Consequently, one others, such as Amnesty International, of the assumptions associated with have asserted that the mass trials provide complementarity is that there will be insufficient guarantees for fair trial and credible institutions at the domestic consequently risk failing to realize justice. criminal justice systems to carry out These criticisms may prove to be only a tip genuine investigation and prosecution of of the iceberg as the ICC and state parties international crimes. to the Rome Statute continue to find a mutually beneficial means of realizing the To all intents and purposes, however, an Court’s mandate. assessment of most African States parties' judiciaries indicates that they are While positive complementarity principle unprepared to implement the as a strategy for encouraging national complementarity regime at the domestic governments to undertake their own level.8 This is because the prosecutions of international crimes looks complementarity regime of the Rome good on paper, a review of most African Statute is over-inclusive - as it assumes to countries institutions and judicial systems do much more than it can in practical indicates that they are not prepared to terms. conduct complementarity-based prosecution of international crimes. Some As a way forward, the ability of African of the challenges faced by African state parties to carry out genuine countries in this regard, include the proceedings must at a minimum begin following: with the adoption of implementing legislation. Though, even after the Rome Statute’s crimes have been incorporated 6 See report in The Punch, September 2 2018: Trial of Boko Haram suspects, good progress for into domestic law, adjudicating on the Nigeria’s justice sector – Amnesty International. basis of it may still prove to be a https://www.google.com.ng/search?q=Trial+of+Bo challenge, depending on its status vis-à-vis ko+Haram+suspects%2C+good+progress+for+Nig other laws. For example, in dualist states eria. Last accessed 18 October 2018. such as Nigeria and several African 7 See This Day: Four Judges Begin Secret Trial of Boko Haram Members, October 10, countries, international instruments or 2017. https://www.thisdaylive.com/index.php/2017 treaties do not have the force of law except /10/10/four-judges-begin-secret-trials-of-boko- haram-members. Last accessed 18 October 2018. See also Human Rights Watch Report of September 17 2018- Nigeria: Flawed Trials of 8 Ovo Catherine Imoedemhe- Complementarity Boko Haram Suspects - Ensure Due Process, Regime of the International Criminal Court – Victim Participation. Domestic Prosecutions in Africa Under the https://www.hrw.org/news/2018/09/17/nigeria- Complementarity Regime of the Rome Statute: A flawed-trials-boko-haram-suspects. Last accessed Practical Approach. Springer International 18 October 2018. Publishing AG 2017.
- 18 - Africa Legal Aid after they have been given such force by as the ordinary domestic crime of murder the legislature. under Nigerian criminal legislation, either Up till now, international crimes have not in their definition or elements. Also, the been incorporated into Nigerian law. In crime of persecution is not recognised in order to meet ICC’s admissibility Nigeria. Consequently, there are no such threshold, Nigeria and many African State crimes as ‘crimes against humanity’ in parties will need to specifically proscribe Nigeria. international crimes, defined as such, in order to carry out genuine domestic Non-retroactivity of criminal law prosecutions of international crimes. The trial of Hissène Habré in Senegal by Differences between International and the “Extraordinary African Chambers”, a Domestic Crimes hybrid court, illustrates the jurisdictional and procedural nightmare that domestic At the moment, no crime in Nigeria prosecution of international crimes might approximates the crimes against humanity, entail. In a judgment which preceded his murder and persecution, which have been trial, the Court of Justice of the Economic allegedly committed by members of Boko Community of West African States held Haram. Both the high threshold set for the that Senegal cannot use its domestic courts act and the mental element required for to try Hissène Habré for allegedly proof of international crimes such as committing, from 1982 to 1990, torture genocide and crimes against humanity and crimes against humanity in Chad. remove them from the realm of ordinary According to the Court, the legislative crimes. A review of the crimes of genocide changes adopted in 2007 by Senegal, and crimes against humanity illustrates incorporating international crimes into its that prosecuting them as the ordinary Penal Code and providing for domestic crimes of murder, rape and theft extraterritorial jurisdiction of Senegalese does not meet the objectives of the Rome courts over international crimes, would Statute. violate the principle of non-retroactivity of criminal law if applied to prosecute crimes Two components of the crime of genocide allegedly committed by Habré almost 20 are readily apparent from the definition years before. Therefore, an ad hoc tribunal provided in the Rome statute and Genocide should be tasked to try Habré on the basis Convention. The first is the specific intent of general principles of law common to the (the mens rea or mental element) to community of nations. Whatever may be destroy in whole or in part a national, the outcome of the debate as regards ethnical, racial or religious group. The whether the trial was conducted in the mental element of the crime is important in right forum there is no gainsaying the fact determining whether or not an act that this single accused trial must have cost constitutes genocide. Senegal a fortune in its endeavour to address the oddity of non-retroactivity Likewise, for an act to constitute a crime before putting Habré on trial. against humanity, the specific element requiring that such acts be committed in Immunity and Death Penalty the context of a widespread or systematic attack must be present. It is important to Conflicting domestic laws can potentially note that criminal legislation in Nigeria inhibit national implementation of the does not include any of the international Rome Statute. Contrary to the Rome crimes categorised as such. The crime Statute, Nigerian laws allow the death against humanity of murder is not the same penalty and immunity of the President and
- 19 - Africa Legal Aid certain other persons in official While concerted action is being taken in government positions. Legal many countries to address the problem, incompatibilities such as this affect states’ corruption remains a complex institutional readiness to implement phenomenon in Nigeria and many African complementarity. It is therefore expedient countries.10 Part of the institutional for Nigeria and other state parties with preparedness to implement conflicting provisions to undertake complementarity involves minimising or extensive review of its laws including the completely eradicating corruption from the constitution and provisions relating to judicial system. This is critical because immunity and the death penalty to bring due process is achieved through a criminal them in line with the provisions of the justice system, with offenders processed Rome Statute. This amendment could be from the time of arrest until they are minor, and may simply consist of the finally acquitted or released from prison addition of a provision making an after serving a prescribed sentence exception to the principle of immunity for the Head of State or other officials, should Intimidation and Manipulation of they commit one of the crimes listed under Judges the statute The complementarity threshold of The Procedure for Appointing Judges unwillingness, set out in Article 17(2)(c), and Professional Legal Skills concerns the independence and impartiality of national proceedings. This The unavailability of judges and article envisages a situation in which a prosecutors trained in the field of state is ostensibly endeavouring to international criminal law or related field prosecute an alleged perpetrator but the may constitute a major drawback to the proceedings are being manipulated to implementation of complementarity. It is ensure that the accused is not found guilty. desirable that in addition to the This implies that even where a state is able professional legal skills required of a and willing to prosecute and has actually judge, national judges who will adjudicate commenced trial, machinations in the international crimes should possess process could lead to a finding of additional essential quality of prior unwillingness for which the ICC will training and experience in international intervene. criminal law. This is important because judges who have the requisite experience However, the guarantees offered by the will be more effective when hearing Constitution of most states seem hundreds of cases resulting from mass inadequate as the political arm of the oriented crimes. government still occasionally manages to exercise influence, and at times openly Tackling Corruption harass it, thereby making it doubtful if indeed most African countries really A careful review of Transparency International’s ‘World Global Report on https://www.transparency.org/research/gcr/gcr_judi Corruption’ in 2007 illustrates that cial_systems/0. Last accessed 18 October 2018. 10 corruption is undermining justice in many Abdulmalik A (2012) Nigeria is 35th most corrupt in the world, says Transparency parts of the world and that hardly any International 2012 Report. Premium Times, 5 9 country is exempt from the scourge. December 2012. http://www.premiumtimesng.com/news/109853- nigeria-is-35th-most-corrupt-in-the-world-says- 9 See the Global World Report on Corruption transparency-international-2012-report.htm. Last published by Transparency International at accessed 18 October 2018.
- 20 - Africa Legal Aid possess a constitutional system that including Nigeria, require extensive ensures the insulation and independence of reform of their prisons to bring them in the judiciary from negative manipulations conformity with international standards. by politicians. On the positive side, however, a few African countries, such as Witness Protection Program Kenya and South Africa have remained steadfast and unbending in asserting the An effective witness program is required independence of the third arm of the realm to support the trials of persons indicted for in those countries. the international crimes to be tried domestically by State parties. A witness Complementarity as a Double Edged protection program seeks to encourage a Sword person who has witnessed or has knowledge of the commission of a crime National courts face some challenges to testify before a court, or before an because legislation, institutional capacity investigating authority, by protecting him and due process may be lacking and trials from reprisals and from economic may be fraught with irregularities and dislocation. Protecting witnesses from the biases. For example, the Specialised dangerous criminals they implicate does Courts in which Sudan purports to not come cheap. For example, the ICTY prosecute those responsible for the and ICTR expended millions of dollars to atrocities in Darfur routinely sentenced keep their witness programs going, and unrepresented suspects to death after secret was in large measure, responsible for the trials involving confessions obtained successful trials conducted by the two through torture. Complementarity may tribunals. It is doubtful whether African thus become a ‘double-edged’ sword. On state parties have the financial capacity to the one hand, it may reflect the willingness run an effective program required for of states to take the lead in bringing the successful trials of international crimes. perpetrators of international crimes to justice, while on the other hand, it may Conclusion expose perpetrators to national judicial systems that are far less likely than the Most African judiciaries seem unprepared ICC to provide them with due process, to implement the complementarity regime increasing the probability of malicious at the domestic level. This is because the prosecutions and wrongful convictions. complementarity regime of the Rome Statute is over-inclusive. One of the Role of the Prison Service in the Criminal assumptions associated with Justice System complementarity is that there will be credible judicial systems and institutions at Complementarity and cooperation are two the domestic level to carry out genuine pillars upon which the Rome Statute is investigation and prosecution of founded. Thus, the ICC depends on states, international crimes. However, for all not only to arrest and surrender suspects practical purposes, it is evident that the that it seeks to prosecute, but also for institutions that should partner with the states to take up convicted persons to serve ICC are either non-existent or grossly prison sentences in their domestic prisons. inadequate. This is important because there are no international prisons to which individuals Admittedly, for positive complementarity convicted of international crimes by the to work, it is not enough to rely on the ICC ICC could be sent to serve their prison to inspire national jurisdictions to terms. Nearly all African countries undertake investigations and prosecutions.
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Although such encouragement is complementarity by which both the ICC significant, positive complementarity may and states are actively engaged in on-going not yield desired results if there is no processes at the domestic level is strong national framework in place necessary for the implementation of enabling states to exercise criminal complementarity. jurisdiction. Consequently, a more systematic approach towards empowering national legal orders is imperative. It is strongly suggested that proactive
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VICTIMS’ RIGHTS: TRANSLATING THE ICC’S VICTIMS’ RIGHTS PROVISIONS INTO DOMESTIC CONTEXTS Dr. Carla Ferstman
respect to the domestic application of victims’ rights: in particular, the complementarity regime – in so far as it engages victims’ rights – and the regime for State cooperation with the Court set out in Part 9 of the Statute. With respect to the latter, this article considers State cooperation to ensure victim and witness protection; cooperation in respect of the identification of assets for the purposes of reparations as well as cooperation in the enforcement of reparations awards and the assistance projects of the ICC Trust Fund for Victims. Secondly, this article analyses
Dr. Carla Ferstman* other requirements which go beyond what the Statute requires directly of States but are implicit in the spirit of recognising that Introduction the ICC is part of a wider system of international justice in which ICC States The Rome Statute of the International Parties take centre stage. Here, the article Criminal Court (ICC) (Statute) looks at the limits of the ICC’s mandate incorporates an array of provisions on and how ICC States Parties can victims’ rights. In particular, the Statute complement it. sets out a framework for victim participation in ICC criminal proceedings The above-mentioned formal requirements and enables victims to apply for and the additional implicit requirements reparations for harm caused as a result of which flow from the Statute are not the crimes committed by those convicted distinct; there is quite a lot of overlap and by the Court. The Court also recognises synergy between these different aspects. the importance of protecting victims and Furthermore, putting in place domestic others from reprisals and incorporates measures to comply with the particularities provisions to respect victims’ dignity and of the ICC Statute will have an added and privacy. wider benefit for national prosecutions.
This article considers the extent to which Formal requirements under the Statute these provisions have found their way into domestic legislation implementing the a) The Complementarity Regime of Statute. In this respect, firstly, it reviews the ICC the formal requirements of the Statute with Article 17 of the ICC Statute makes clear *Senior Lecturer, School of Law, University of that a case is only admissible before the Essex; Former Legal Director of Redress. ICC if, among other criteria, a competent
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State is unwilling or unable genuinely to inability of judicial and carry out an investigation or prosecution. governmental authorities to At first glance, it would not be obvious ascertain control and provide whether, and if so, how, this provision adequate witness protection. relates specifically to victims’ rights. But, if the competent local authorities are … unable to proceed or progress with domestic investigations or prosecutions Libya has presented no evidence because there are no local procedures in about specific protection place to effectively protect victims and programmes that may exist under witnesses (and consequently victims and domestic law. It is unclear, for witnesses are reluctant to engage with instance, whether the domestic law local investigations or prosecutions), this provides for the immunity of might be a factor which would militate in statements made by witnesses at favour of the ICC exercising jurisdiction. trial. In addition, it is unclear whether witnesses for the suspect This was the view taken by the Pre-Trial may effectively benefit from such Chamber of the ICC in the case concerning programmes. As such, the Libyan Saif Gaddafi concerning international Government has failed to crimes allegedly committed in Libya. substantiate its assertions that it While recognising that the role of the envisages the implementation of Chamber is to assess whether the Libyan protective measures for witnesses authorities are capable of investigating or who agree to testify in the case prosecuting Mr Gaddafi in accordance against Mr Gaddafi. Therefore, and with the substantive and procedural law in light of the circumstances, the applicable in Libya,1 (as opposed to Chamber is not persuaded by the applicable law before the ICC), and taking assertion that the Libyan note of the extensive ‘efforts deployed by authorities currently have the Libya under extremely difficult capacity to ensure protective circumstances to improve security measures.3 conditions, rebuild institutions and restore the rule of law’,2 the Pre-Trial Chamber It is clear that in many countries, victims concluded that multiple challenges and witnesses, and those that assist them, remained. Consequently, it determined that are regularly targeted by persons in the national system was not yet ‘available’ positions of political, military or economic within the terms of the Statute. One of the power, by their neighbours and even by factors taken into account by the Pre-Trial their own families. The more sensitive the Chamber in reaching this conclusion was case, the higher the protection risks can be. the lack of effective measures to protect In cases which have come before the ICC, victims and witnesses: other ad hoc or internationalised criminal tribunals as well as domestic investigations The Chamber is also concerned and prosecutions, some witnesses have about the lack of capacity to obtain been threatened with reprisals, while the necessary testimony due to the others have been forced to flee their homes. Some have even suffered physical violence, including murder. 1 Prosecutor v. Gaddafi and Al-Senussi (Situation in Libya), Decision on the admissibility of the case against Saif Al-Islam Gaddafi, ICC Pre-Trial Chamber I, ICC-01/11-01/11-344-Red, 31 May 2013, para 200. 2 Ibid, para 204. 3 Ibid, paras 209, 211.
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In order to address these types of lacunae proceedings that affect the interests of at the domestic level, States can put in victims’.6 place domestic laws and procedures to strengthen victim and witness protection, Many States have already introduced in accordance with Article 68(1) of the progressively specific protective measures Statute. for witnesses and victims. These include steps to minimise the general risks that This would also be consistent with the might be faced by them (introducing good requirements set out in the UN Convention practices during investigations and in the against Transnational Organized Crime courtroom regarding witness safety and (2000). Indeed, Articles 24-25 of that confidentiality), an institutional capacity to Convention obliges States Parties to take respond to particular risks when they arise appropriate measures to provide effective (such as special protection measures, protection to witnesses and, as appropriate, relocation) and legal measures to address to their relatives and other persons close to instances of reprisals (such as introducing them from potential retaliation or and prosecuting offences of witness intimidation for giving testimony intimidation).7 concerning offences covered by the Convention and to afford assistance and Victim and witness protection has been a protection to victims of crime.4 Further, particular challenge in Africa8 which more the Declaration of Basic Principles of and more States are beginning to address. Justice for Victims of Crime and Abuse of South Africa has had a victim protection Power, provides that ‘[t]he responsiveness programme in place since 1996,9 and in of judicial and administrative processes to 2014 Kenya introduced the Victim the needs of victims should be facilitated Protection Act (which has been by ... Taking measures to ... ensure their subsequently amended).10 Other States safety, as well as that of their families and such as Ethiopia have protection schemes witnesses on their behalf, from in place,11 as do Cabo Verde, Rwanda, intimidation and retaliation.’5 Similarly, the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for 6 UN General Assembly Resolution 60/147, Victims of Gross Violations of adopted on 16 December 2005, Principle 12(b). International Human Rights Law and 7 See generally, UN Office on Drugs and Crime, Serious Violations of International ‘Good practices for the protection of witnesses in Humanitarian Law (2005), recognises that criminal proceedings involving organized crime’, in order to ‘secure the right to access 2008, available at: http://www.unodc.org/documents/organized- justice and fair and impartial proceedings’ crime/Witness-protection-manual-Feb08.pdf. States should, among other things, ‘ensure 8 See, e.g., Chris Mahony, ‘The justice sector [victims’] safety from intimidation and afterthought: Witness protection in Africa’, ISS, retaliation, as well as that of their families 2010; Jemima Njeri Kariri and Uyo Salifu, and witnesses, before, during and after ‘Witness protection Facilitating justice for complex crimes’ ISS Policy Brief 88, August 2016; judicial, administrative, or other REDRESS, ‘Testifying to genocide: Victim and witness protection in Rwanda’, October 2012. 9 Mahony, ibid, p. 95. 10 Act No. 17 of 2014, L.N. 43 of 2015. 11 See, Wekgari Dulume, ‘Ethiopian Witness Protection System: Comparative Analysis with 4 UN Convention against Transnational Organized UNHCHR and Good Practices of Witness Crime (adopted 15 November 2000, entered into Protection Report’, (2017) 6(1) Oromia Law force 29 September 2003), Arts 24, 25. Journal 125, available at 5 Adopted by UN General Assembly Resolution https://www.ajol.info/index.php/olj/article/downloa 40/34 of 29 November 1985, para 6(d). d/158563/148183.
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Mozambique and Morocco.12 Uganda has shall comply with requests by the Court to had draft legislation pending for some provide assistance in ‘[t]he protection of time. In some countries, like the victims and witnesses and the preservation Democratic Republic of the Congo, there of evidence’ in relation to investigations is protection legislation which focuses on and/or prosecutions. In this respect, the particular crimes like sexual and gender ICC may make specific requests to States based violence. What is crucial is that Parties which concern particular witness protection mechanisms operate individuals who require protection. This with sufficient autonomy, independence might involve States Parties in which the and flexibility, so that they can address the Prosecutor has ongoing investigations or protection needs of all victims of active prosecutions. It might also involve witnesses, regardless of whether the other States where victims or witnesses alleged crimes were perpetrated by State or reside or when the Court is seeking State non-State actors. It is also important for assistance in temporarily or permanently States to match specific protection relocating individuals with safety legislation with an adequate operational concerns. The ICC has developed capacity to afford protection and to clearly framework agreements on witness stipulate how protection cases are to be relocation, but so far, very few States have identified, who has the power and the agreed to relocate witnesses, whether on a obligation to afford protection and under temporary or permanent basis. The Court what circumstances, and what to do in has emphasized the crucial importance of cases of a conflict of interest. Similarly, it States Parties’ cooperation in this area, as is important for States to incorporate into evidenced through the signature of their criminal legislation, if they have not relocation agreements or ad hoc done so already, offences against the arrangements. However, in 2015, the administration of justice such as witness Bureau of the ICC Assembly of States tampering and intimidation as well as the Parties pointed out that ‘the current solicitation of bribes. number of agreements was not sufficient and … the Court [has] approached States b) The Cooperation Regime of the Parties in all regions to enhance the ICC insofar as it relates to Victims capacity. Broad regional capacity would and Witnesses also allow for finding solutions that, while fulfilling the strict safety requirements, As is well known, ICC States Parties are would minimize the humanitarian costs of obliged to cooperate with and enforce the geographical distance and the change of Court’s requests and orders. This is set out linguistic and cultural environment when in Part IX of the Statute. In this respect, relocating witnesses and their families.’13 much attention has been focused on the role of States Parties in enforcing the Second, the ICC Statute requires States Court’s arrest warrants. However, Part IX Parties to assist the Court with the search also includes cooperation provisions that for, and seizure of, assets. In particular, are relevant to victims and witnesses in Article 93(1)(k) of the Statute specifies particular: that States Parties shall comply with requests by the Court to assist with ‘[t]he First, the Statute requires States Parties to identification, tracing and freezing or assist the Court with the protection of victims and witnesses. In particular, 13 ICC Assembly of States Parties, Resolution, Article 93(1)(j) specifies that States Parties ‘Report of the Bureau on cooperation’ Addendum II, Annex V: Summary of the Botswana seminar on fostering cooperation (29-30 October 2015), ICC- 12 Referred to in Njeri Kariri and Salifu (n 8). ASP/14/26/Add.2, 17 November 2015, para 9.
- 26 - Africa Legal Aid seizure of proceeds, property and assets with a handful of cases. The real job of and instrumentalities of crimes for the tackling impunity rests with States through purpose of eventual forfeiture, without domestic investigations and prosecutions, prejudice to the rights of bona fide third and the implementation of a system of parties’. Some (though not a sufficient justice that reflects the rights and interests number of) States Parties have put in place of all those affected by the judicial mechanisms to comply with these types of process. financial orders emanating from the Court – both in terms of their domestic When it comes to victims’ rights, the first legislation but also at the operational level, key factor has already been canvassed identifying individuals who can serve as earlier in this paper, namely, victim and focal points so that precious time is not witness protection. Victims will only come wasted before cooperation can start. This forward if they feel like the justice system is important, given that asset seizure will work fairly for all sides, including for processes must be quick if they are to be them. Many countries, including many in effective. The ICC Assembly of States Africa, are putting in place witness Parties has underscored the importance of, protection legislation. Some of these are and called on all States Parties to put in based on an organised crime framework. place and further improve, ‘effective But it is perhaps important to note that procedures and mechanisms that enable international crimes – like crimes against States Parties and other States to cooperate humanity, genocide and war crimes – with the Court in relation to the might lend to a different type of protection identification, tracing and freezing or problem involving State actors. Therefore, seizure of proceeds, property and assets as protection legislation, and the framework expeditiously as possible.’14 that accompanies it, should adequately reflect the realities of the crimes at issue Other implicit requirements which flow and the individuals who will ultimately from the Statute need protection (and from whom).
The implicit requirements which flow Next, there is the important consideration from the Statute are premised on the spirit of victim participation. The ICC Statute of recognising that the ICC is part of a envisions a system of victim participation wider system of international justice in in which individuals who have suffered which States Parties take centre stage. It is harm as a result of the crimes before the States Parties who have, and will continue Court have the ability to participate in the to have, the most important role to play to legal proceedings to the extent that their ensure that there is no impunity for crimes rights are directly affected.15 This can be a of international concern. This is because complex process, particularly when many the ICC has a limited jurisdictional victims are involved. Nonetheless, when mandate, and its investigations and done well it can be an important means by prosecutions will necessarily be narrow which victims experience justice and are and will never manage – on their own – to empowered by the justice process. In bring justice to all victims of the worst recognition of the challenges inherent to crimes. Even in those ‘situation countries’ victim participation when the number of in which the ICC is actively engaged, the victims is large, both domestic and ICC will only be in a position to proceed international jurisdictions have developed procedures to streamline and make more 14 ICC Assembly of States Parties, Resolution on effective the victim participation process, cooperation, ICC-ASP/13/Res.3, Adopted at the 12th plenary meeting, on 17 December 2014, by consensus, para 23. 15 Article 68(3) of the ICC Statute.
- 27 - Africa Legal Aid including the use of common legal engaged in criminal proceedings as civil representatives and the use of status parties in the States (usually of the civil conferences to deal with procedural law tradition) that allow for such matters. procedures. Indeed, it is often the civil parties that are the most instrumental in One might instinctively assume that the pushing cases forward and seeing that victim participation framework set out in justice is done. One does not need to look the Statute is a product of the laws in place beyond the Democratic Republic of the in those countries that follow a Napoleonic Congo (in pressing forward military code or civil law legal tradition. Indeed, tribunal cases in Eastern DRC) and Chad while the Statute contains features derived (in advocating for justice for the victims of from the civil law tradition, there are also the regime of Hissene Habré) to see the aspects which come from, and are well important role that victims have played in recognised in, common law legal systems. securing justice for crimes of international This includes, for example, the ability for concern. victims to present victim impact statements at the close of a criminal trial Finally, there is reparations to victims. and the possibility for victims to challenge Inevitably, the process of reparations the decision of the police or prosecutor not before the ICC will be limited. This is to proceed with an investigation or because only a few instances of prosecution. Also, victim participation victimization will get to the Court, which derives from the recognition under human is in turn due to the fact that ICC rights law of the obligation to keep victims prosecutions will only ever represent a informed about the criminal complaints fraction of the total criminality committed they file with the competent authorities, in a particular location. In addition, as has the ability for victims to contest a decision already been seen with respect to the cases not to investigate or prosecute, and the that have come before the ICC, not all notion that victims have a right to access criminal prosecutions will result in justice and a right to know the truth. In convictions. This may be because of the addition, there is some recognition that for unavailability of sufficient evidence to crimes of international concern like crimes prove the guilt of particular individuals, against humanity, war crimes and/or but it does not necessarily say anything genocide, there is a distinct need to ensure about the credibility or suffering of the that victims feel part of the justice process. victims. Additionally, the ICC only In this regard, there are some States in considers individual criminal which special measures for victim responsibility, and thus the potential participation have been put in place in responsibility of States or non-State proceedings that involve crimes of entities (such as corporations or armed international concern. A good example of opposition groups) falls outside of the this is the International Crimes Division of jurisdiction of the Court. This can differ the Ugandan High Court, which has from domestic criminal cases which have adopted special procedures concerning addressed reparations at the closure of the victim participation.16 Additionally, there case (as is typical in civil law systems). In is the extensive experience of victims such cases there has been a tendency to recognise the individual perpetrator and the State as jointly and severally liable or, 16 See REDRESS, ‘Ugandan International Crimes Division (ICD) Rules 2016 Analysis on Victim alternatively, liability has been Participation Framework’, August 2016, apportioned between the individual https://redress.org/wp- perpetrator and the State. Nevertheless, content/uploads/2017/12/1608REDRESS_ICD- even in such contexts, States have been Rules-Analysis.pdf
- 28 - Africa Legal Aid slow to implement in favour of the ensure that they have the means and victims, reparations awards that have mechanisms available to trace, seize and concerned them. freeze financial assets, and to engage bilaterally with other States where assets Naturally, national reparations processes might be located. It is important for States do not normally focus exclusively, or to ensure that there is a sufficient budget mainly, on the outcome of criminal for reparations, both for putting in place proceedings. A decision to embark on a the necessary structures to implement a reparations programme tends to stem from reparations programme, as well as to fund local political considerations, domestic the reparations measures directly. In this advocacy and, at times, the role of local, respect, a range of models have been used regional or international processes – to raise funds such as special taxes, including the recommendations of UN soliciting contributions from companies treaty bodies and in the case of Africa, who benefitted from the crimes and/or a African regional and sub-regional human percentage of the annual budget. Finally, rights mechanisms. This combination of there is a need for the process to be factors tends to result in a wider process transparent. This will be important for the which can take into account more credibility and acceptance of the holistically the rights and needs of victims reparations programme. and the range of possible actors that may bear some responsibility for the harms Conclusions caused. This is important, as it captures the different dimensions of the crime and the In summary, when considering the different actors who might have been complementarity regime under the Statute, involved. it is important not to forget the important connection between the requirements of When considering to put in place the Statute and victims’ rights – both those reparations programmes at the domestic rights that are reflected directly in the level, States should take into account the Statute and those rights that reflect States’ following principles, relevant in particular wider obligations under human rights law for reparations involving large numbers of and derive more implicitly from the victims. First, States should consult purpose the Statute is intended to achieve victims as to what they want and need (i.e. – creating an international system of their priorities). This is important as it will justice. International justice is not and help empower and engage victims, which cannot only be about alleged perpetrators, is one of the underlying goals of any judges and prosecutors. It is important to reparations programme. Also, particularly reflect upon and to engage with victims of when the quantum and quality of the crimes and the wider communities who reparations will never fully repair the harm have been affected, and to ensure that their done to victims, victim engagement serves rights are respected in the proceedings a particularly important role and is likely both in The Hague or back home. to have a positive impact in how victims perceive the reparations they ultimately receive. Second, there is a variety of forms of reparations, including restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. In most situations, a combination of these measures will be required to best address the harm suffered. States should further
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THE MALABO PROTOCOL AND COMPLEMENTARITY OF iNTERNATIONAL CRIMINAL JUSTICE: CHALLENGES AND PROSPECTS Dr. Robert Eno
Protocol on the Establishment of the African Monetary Fund; the African Union Convention on Cyber Security and Personal Data Protection and the Protocol to the Constitutive Act of the African Union relating to the Pan- African Parliament.
So, there were actually 3 Protocols adopted in Malabo in June 2014. It may Dr Robert Eno* thus be misleading to refer to the Protocol on Amendments to the Protocol Introduction on the Statute of the African Court of Justice and Human Rights alone as the What is now commonly referred to as Malabo Protocol. It may aptly be the Malabo Protocol is actually the referred to as the Malabo International Protocol on Amendments to the Protocol Crimes Protocol or simply, the on the Statute of the African Court of International Crimes Protocol. Justice and Human Rights, which extends the jurisdiction of the yet-to-be Be that as it may, for the purpose of this established African Court of Justice and article, I will refer to it as the Malabo Human Rights (ACJHR) to crimes under Protocol. international law and transnational crimes. This Protocol was adopted in But why the Protocol… Malabo, Equatorial Guinea, in June 2014, alongside several other legal A lot has been said and written on why instruments of the African Union, the African Union decided to establish a including: the African Charter on the regional Court with criminal jurisdiction, Values and Principles of less than two decades after the Decentralisation, Local Governance and establishment of the ICC.1 Local Development; the African Union Convention on Cross-Border Cooperation (Niamey Convention); the 1 The Rome Statute of the International Criminal Court (often referred to as the International Criminal Court Statute or the Rome Statute) is the treaty that established the International Criminal Court (ICC). It was adopted at a *Registrar, African Court on Human and diplomatic conference in Rome on 17 July 1998 Peoples' Rights. and it entered into force on 1 July 2002.
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Many analysts link the genesis of the diplomatic immunity, including Heads African Court with a criminal of State, an affront to the sovereignty of jurisdiction to the concerns that the AU its Members. had with the manner in which the West was applying the principle of universal While Africa’s concern over the jurisdiction.2 application of the principle of universal jurisdiction could be seen as the trigger The first mention of vesting the African for the establishment of an African Court on Human and Peoples’ Rights Criminal Court, the AU’s apprehension with an international criminal over the operations of the ICC itself jurisdiction was at the AU Assembly’s accelerated the process. Thus, following February 2009 decision which was in the ICC indictment of the Sudanese response to the “abuse of the principle of President, at an Extraordinary Session of Universal Jurisdiction.” The Assembly the AU Assembly, the latter decided “to requested the AU Commission: fast-track the process of expanding the mandate of the African Court on Human “…[i]n consultation with the African and Peoples’ Rights to try international Commission on Human and Peoples’ crimes, such as genocide, crimes against Rights, and the African Court on Human humanity and war crimes”.5 and Peoples’ Rights, to examine the implications of the Court being It should be stressed here that the empowered to try international crimes original decision of the African Union such as genocide, crimes against referred only to ‘international crimes humanity and war crimes and report such as genocide, crimes against thereon to the Assembly in 2010.”3 humanity and war crimes’, crimes, This decision stemmed from an earlier which are also mentioned in the July 2008 decision where the Assembly Constitutive Act of the African Union. issued a series of decisions against what However, in the elaboration of the it termed the “…abuse and misuse of Malabo Protocol, its scope was indictments against African leaders expanded to include not only crimes through the universality jurisdiction under the Statute of the International principle.”4 Criminal Court (Rome Statute) and the The AU considered the targeting of Constitutive Act of the African Union, senior government officials who enjoyed but an additional 10 more crimes.
2 See for example Ademola Abass, Historical and Political Background to the Malabo Why expand the crimes under Protocol, (2013) European Journal of International Law 24:933–946. Malabo… 3 See Assembly/AU/Dec. 213(XII) para 9. 4 Decision on the Report of the Commission on the Abuse of the Principle of Universal Jurisdiction Doc. Assembly/AU/14 (XI), Sharm 5 See Ext/Assembly/AU/Dec.1(Oct.2013) para El-Sheikh 30 June – 1 July 2008, 5(iii). 10 (iv).
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In addition to the international crimes This expansion in my view dispels the under the Rome Statute, the Malabo concerns of those who argue that the Protocol has codified and developed Malabo Protocol was solely to frustrate other international crimes. These are the the ICC. Ademola Abbas, for instance, crimes of unconstitutional change of argues that government, terrorism, mercenarism, corruption, money laundering, “…the prospect of the African regional trafficking in persons, trafficking in court adjudicating on international drugs, trafficking in hazardous wastes, crimes portends some troubling times for and illicit exploitation of natural re- the International Criminal Court, but sources.6 more so for international criminal justice in Africa. On the one hand, the A close look at the additional crimes International Criminal Court will suffer reveal that while the AU may have been a major dent to its vital referral responding to the perceived abuse of the mechanism… The impact of this double principle of universal jurisdiction and loss is significant if one recalls that of all concerns over the operations of the ICC, the situations currently pending before the Malabo Protocol turned out to be an the International Criminal Court, three instrument that seeks to provide a were self-referred… and one involved regional response in the fight against the voluntary (ad hoc) acceptance of ICC impunity and enhance international jurisdiction…”.7 criminal justice from an afro-centric perspective. The additional crimes may Fred Aja Agwu for his part argues that be regarded as ‘regional crimes’ which “The decision by the African Union to affect Africa, and have had major socio- imbue the African Court on Human economic and political consequences on Rights with criminal jurisdiction smacks the continent. of confrontation with the international community because some of their A need was thus expressed for a court member states are parties to the Rome that can prosecute crimes that are Statute that created the International particularly prevalent in Africa, but are Criminal Court (ICC). The effort is an of apparently little prosecutorial interest unnecessary duplication that can only at to much of the rest of the world. The best give soft landing or shield Malabo Protocol makes provision for tyrannical African leaders from such a Court and gives it jurisdiction to hear and deal with these regional crimes.
6 See Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and 7 See Ademola note 2 supra. See also Gerhard Human Rights (the Malabo Protocol) (2014), Werle, Moritz Vormbaum (2016), the African Article 28A for all the 14 international crimes. Criminal Court – a commentary on the Malabo Protocol, International Criminal Justice Series, Vol. 10.
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international accountability for their Member State of the Union …’ These well-known impunity...”.8 crimes are, with the exception of ‘threat to legitimate order’ the same crimes over These and many others holding this view which the ICC has jurisdiction. Article may be correct, but it must not be 4(o) of the Act also calls for, among forgotten that Africa’s quest for other things, the ‘rejection of impunity’. international criminal justice did not start with the AU’s discontent with the While these articles in the Constitutive application of the principle of universal Act may not impose a strict legal jurisdiction and the operations of the obligation to establish a court, they ICC. The quest for an African court with demonstrate an acceptance by the AU criminal jurisdiction could be traced that it has an obligation to prevent and much further back. punish international crimes.
Records show that as far back as the Perhaps the most concrete expression of 1970s, during the drafting of the African the AU’S intention to prosecute Charter on Human and Peoples’ Rights, international crimes is manifested in the the possibility of including a court with African Charter on Democracy, international criminal jurisdiction was Elections and Governance adopted in raised. 9 January 2007. Due to its prevalence on the continent, ‘Unconstitutional Change More recently, a distinct legal basis for of Government’ is codified in this prosecuting international crimes in instrument as an international crime. Africa could be found in the Constitutive Article 25(5) provides that perpetrators Act of the African Union. Article 4(h) of ‘of unconstitutional change of the Act provides for ‘the right of the government may ... be tried before the Union to intervene in a Member State competent court of the Union’. pursuant to a decision of the Assembly in respect of grave circumstances, From the foregoing, it can be argued namely: war crimes, genocide and with some degree of certainty that crimes against humanity as well as a despite there being no court emerging serious threat to legitimate order to from these initiatives, it nonetheless restore peace and stability to the pointed to the fact that sooner rather than later, Africa was going to establish a criminal Court to deal with these 8 See Fred Aaja Agwu, the African Court of continental challenges. Justice and Human Rights: the future of international criminal justice in Africa, African I therefore concur with Ademola Abass Review, Vol. 6 2014, Issue 1. when he avers that “the proscription of 9 See Report by the Kenyans for Peace with … international crimes by the AU Truth and Justice entitled Seeking Justice or [Constitutive] Act necessarily implies Shielding Suspects? An analysis of the Malabo the obligation to take measures to Protocol on the African Court, Nov. 2016. redress violations. It cannot be the case
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that with its Constitutive Act the AU impunity and enhancement of legislates on crimes it does not intend its international criminal justice. own court to prosecute. …”.10 The principle of complementarity is the The argument that the prosecution of cornerstone of the Rome Statute. crimes on the continent was never Although the Rome Statute does not seriously considered until the indictment define complementarity, a joint reading by the ICC of President al-Bashir in of para 10 of the preamble and Article 1 2009 is therefore not tenable. of the Statute paints a clear picture that the ICC is “intended to supplement the Criticisms and challenges domestic punishment of international violations rather than supplant domestic The Malabo Protocol has been met with enforcements of international norms. a lot of criticisms and support from The complementarity principle is various quarters/sectors of society for intended to preserve the ICC’s power various reasons, depending on where over irresponsible States that refuse to you stand. However, the one aspect on prosecute those who commit heinous which all seem to agree is the immunity international crimes”.12 clause, which shields sitting heads of state and other senior government The situation is graphically illustrated by officials from prosecution. 11 Evelyn Ankumah13 when she says that “the ICC was never created as a court It is also certain that such a Court will that would sit in the driver’s seat of the face many challenges, not least, the car that is expected to drive to the resources to run the Court, the political destination of criminal accountability. will, etc. Quite clearly, the basic assumption underlying the Rome Statute is that the The above shortcomings ICC, rather, sits in the back seat. It will, notwithstanding, is there anything or should, only jump to the front seat wrong with having an African when the driver – meaning a national Criminal Court alongside the ICC? In criminal court or system – loses other words, can Malabo complement direction or simply refuses to drive in Rome and vice versa?
My immediate response to this question is, there is nothing wrong with establishing an African Criminal Court, and yes, Malabo can complement Rome 12 Mohamed M. El Zeidy, The Principle of and vice versa, and both can work Complementarity in the International Criminal together to contribute in the fight against Court’s Statute. See also Laura Clarke, Complementarity as Politics, Journal of International and Comparative Law, Vol. 2, 10 Ademola supra. 2016. 11 Malabo Protocol Article 46A bis. 13 Executive Director, African Legal Aid.
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the direction of the desired place called: It is interesting to note that while the “criminal justice”.14 Malabo Protocol encourages complementarity between the African Under Article 1 of the Rome Statute, the Criminal Court and national and sub- ICC is complementary only to domestic regional courts, it is silent about courts. The Statute never contemplated, complementarity with the ICC, even nor does it contain any provision which though the Malabo Protocol came after envisages complementarity with regional the Rome Statue. How then can the two courts. work together to complement each other and enhance international criminal It is therefore not surprising that the justice? African Union’s decision to establish a regional Court with criminal jurisdiction, It is important to indicate that criminal similar or comparable to the mandate of justice, just like the protection of human the ICC, has attracted international rights, is the primary responsibility of attention and concern. The African States (through national institutions). Union is the first regional organisation to The principle of complementarity is initiate the project of international therefore not unique to the ICC or criminal justice from a regional international criminal justice. It perspective. transcends many aspects of relations between and among States. The Malabo Protocol adopts the complementarity principle of the Rome The UN Charter recognises and Statute vis-à-vis domestic criminal encourages complementarity through the jurisdictions, but has expanded the establishment of regional bodies to deal principle to include regional with issues at the regional level before arrangements. Article 46(H) of the they spill over. Article 33 of the Charter Protocol states that “(1) the jurisdiction expressly recognise the principle of of the Court shall be complementary to regional settlement of disputes that of National Courts and to the Courts threatening international peace. The of Regional Economic Communities, same principle is expressly reiterated in where specifically provided for by the Article 44 of the International Covenant Communities”.15 on Civil and Political Rights (ICCPR) and can properly be extended to international criminal justice.
The international human rights regime is also founded on the principle of 14 Evelyn Ankumah, Complementarity Beyond the ICC: The AU’s Malabo Protocol, AFLA, complementarity, exemplified by the December 2015. doctrine of exhaustion of local remedies, 15 The Protocol does not however indicate when which places primary responsibility for Courts of RECs may be called upon to intervene protecting human rights on the State and to operationalize this complementarity. international tribunals as a last resort.
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So the decision of the African Union to most likely to have such confidence if establish a Court with criminal the machinery has been set up by a jurisdiction has firm foundation in group of like-minded countries which international law and practice. may likely be partners in a regional organisation. The jurisdiction of the African Criminal Court is not limited to only the crimes in Moreover, a State will be willing to give the Rome Statute (war crimes, crimes more powers to a regional organisation against humanity, genocide and with restricted membership, where the aggression). In addition to these other members are its friends or its international crimes, Malabo adds more neighbours, or are of similar socio- international crimes which may not be of economic and political development, concern to the international community than a worldwide organ in which it and but threaten the sovereignty of African its associates play a relatively small role. states and the very survival of the Matiangai Sirleaf16 argues that “due to African continent. It is therefore normal the existence of geographic, historical for the leadership of the continent to and cultural bonds among States, react to these challenges. decisions of regional bodies may meet Besides, there are many advantages that with less resistance than global bodies. may stem from having a complementary Because the court is linked to the regional criminal justice system. regional political bodies of the AU, this may facilitate stricter oversight.” Experience has shown that despite the universal desire to fight impunity, the At a practical level, it is obviously easier primary responsibility to fight crimes and more convenient for a case to be rests heavily on the political will of each heard within the region than somewhere State. It is at times difficult to negotiate else. It would be more convenient, and binding obligations and set up probably less expensive for all international machinery with States of concerned if a case were to be tried in diverse cultures, development and the region rather than say, in New York political leanings. Agreement on such or Geneva or The Hague. Also, regional matters is easier to achieve between arrangements would allow trials to be governments within the same carried out, in or closer to the places geographical region, sharing a common where atrocities or the crimes were history and cultural tradition. committed. This proximity has clear added advantages for investigations by Given the diversity of the modern state the prosecution, which should have system, it is natural that regional systems easier access to evidence and witnesses. would be more readily accepted than More significantly, it offers victims and universal arrangements. A State cannot citizens a greater sense of “ownership” be forced to submit itself to a system of international control, and will do so only 16 Assistant law professor at the University of if it has confidence in the system. It is Pittsburgh.
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of the trial and would probably facilitate Conclusions greater interest, participation, and reconciliation. The Malabo Protocol, just like many other international instruments, So the establishment of an African including the Rome Statute, is not Criminal Court does not seek to diminish perfect, and there is a lot of room for the role of the ICC, but rather to enhance improving it. But just like the ICC, the the fight against impunity and African Criminal Court is here with us, international criminal justice. The two or will be in a few years’ time, so rather Courts, and in fact other similar Courts, than fight it, we should seek to support it can work together. A number of and see how to make it work. possibilities have been put forward to enhance the working relationship and The intention of the African States to complementarity between the ICC and create a court with criminal jurisdiction regional Courts, such as the African is noble, and given the required support, Criminal Court. This ranges from such a court has the potential to provide complementarity based on division of a strong African option to achieving labour to passive or positive justice for the victims of international complementarity. and other serious crimes on the continent. Some analysts have argued that since neither Rome nor Malabo make The Malabo Protocol, however, has a reference to each other, States may be number of weaknesses. The most serious able to choose freely which Court to of these is the immunity clause, which refer a situation, if they consider grants immunity from prosecution to themselves unable to exercise sitting heads of state and other senior jurisdiction. Others have argued that officials. Given that the type of crimes to since the Malabo Protocol contains be prosecuted by the Court include those ‘regional crimes’, the African Court can that tend to be committed by powerful focus its attention to those crimes and individuals in and out of government, cede jurisdiction to the ICC for those the granting of immunity to them would crimes under the Rome Statute. Yet, seem to undermine the raison d’être of others have proposed a hierarchical the Court. This has cast a dark shadow arrangement where the ICC could serve on this noble initiative even before it as an appellate Court for regional courts. kicks off. However, the establishment of a regional criminal Court is work in The relationship between the two courts progress, an initiative which should not can also be bolstered by working be thrown away with the bathwater. together through the exchange of Improvements are possible. evidence, sharing information obtained in the context of investigations, etc. The absence of any mention of Cooperation may contribute to a better collaboration with the ICC is also understanding of their relationship. telling, and efforts must be made to
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provide a framework for cooperation impunity on the continent that between the African Criminal Court and complements rather than undermines regional and international courts, notably global efforts. the ICC, in order to provide for a holistic and universal approach to fighting
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BRINGING SOFT POWER TO A LIFE'S WORK The Professional Trajectory of Judge Sanji Mmasenono Monageng Dr. Leigh Swigart
Monageng sits as if on a stage, the back lighting provided by the multiple windows of her corner location creating a kind of aura around her face and figure. Outside, the dunes of Scheveningen are solid and intractable, a reassuringly unchanging backdrop to the sleek permanent premises of the International Criminal Court (ICC). Inside the Court, by contrast, there is an ever-shifting swirl of visitors in the building’s public spaces, and one hears the constant hum of low-pitched Judge Sanji Monageng* conversation from the many staffers moving along the corridors of the ‘I came into the ICC with the basic separate areas housing the principal knowledge of being a judge. I had tried organs of the Court: Judicial Chambers, thousands of cases and so, to that extent, I the Office of the Prosecutor, and the considered myself competent to sit as a Registry. These areas are linked by the judge in the ICC. Of course, having worked central Courtroom Tower, the place domestically as a judicial officer, I know where the often lengthy preparatory that complementarity is crucial. I appreciate that justice is better served when the activities of these distinct organs finally recipients see and literally feel it.’1 converge in the form of public trials. These “dramatic performances” show Introduction the world’s spectators – whether they attend in person in The Hague or follow In a tastefully furnished and orderly via electronic media – that the office, Judge Sanji Mmasenono perpetrators of grave crimes will be held accountable and that victims can “have their day in court.”
It is in these courtrooms that Sanji *Former Judge of the Appeals Division at the Monageng has performed the most high- International Criminal Court (ICC). profile work of her long career, work 1 Interview conducted by the author with Judge that would almost certainly have seemed Sanji Mmasonono Monageng in person on June impossible from the perspective of a 23, 2016 in The Hague, Netherlands, on file with the author. Cited in subsequent endnotes as young girl growing up in rural "Author interview 2016." Botswana. Or even from that of a recent
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law graduate in the capital city, Gaborone. But then again, the ICC did not yet exist during those years, and it was a distant dream even for those familiar with the attempts made over the 20th century to create a permanent court that would address the worst crimes known to humanity – war crimes, crimes against humanity, genocide, and the crime of aggression.2
Upon first meeting Monageng, one is struck by her welcoming smile, Judge Sanji Monageng and Dr. Leigh Swigart* pleasantly round features, soft voice, and lilting English, inflected with the tones of her native Setswana. Yet behind the This chapter will explore various aspects lenses of her spectacles, she watches of her journey. It starts with Monageng’s carefully with eyes that can be steely, upbringing, education and early never hesitating to voice her opinion professional activities in Botswana, even when it is at odds with those moves on to her regional work with both around her. Monageng appears to the African Commission on Human and embody a kind of “soft power,” a Peoples’ Rights and in the judiciaries of capacity to achieve her goals through two other African countries, and perseverance, strategic planning and culminates with her judicial service on gentle demonstration of her skills. This the International Criminal Court. This personal attribute has allowed her to account shows that there are constants in make the long, challenging, and at times her professional trajectory, all of them unpredictable journey from village girl related to her soft power: the ability to to international judge. spot an opportunity and act upon it; the willingness to take risks and assert herself; and her consummate adaptability to different social, cultural, and work settings. In her judicial career, in particular, Monageng has managed with aplomb to negotiate “the dilemma of difference” (Minow 1987:12), demonstrating forcefully “how women
2 The first three categories of crime are enumerated and defined in Part II, Articles 5-8 of the Rome Statute. The definition of the crime of aggression was adopted through amending the *Director of Programs in International Justice Rome Statute at the first Review Conference of and Society, International Center for Ethics, the Statute in Kampala, Uganda, in 2010. The Justice, and Public Life Brandeis University. Amendments entered into force on 17 July 2018.
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can be both equal to and different from a teacher was also very men” (Kenney 2010: 433). helpful because she gave me extra lessons after school and she followed my progress Early Years and Education intimately by talking to teachers and actually Sanji Mmasenono Gochani was born in attending some of my classes 1950 in Serowe, a village in Botswana’s when she was free. Central District. She grew up mostly in Moreover, she was a rural villages, following her mother as disciplinarian, and therefore she was posted to teach in various I had to apply myself fully to primary schools across the countryside. my schoolwork. Fortunately, Monageng notes that this was a common I was on the brighter side profession for educated women of her and most times avoided the mother’s generation, and, indeed, many corporal punishment allowed of the Judge’s aunts were teachers as during those days.4 well. Monageng attributes the success of her mother, who later also trained as a Unlike many of her peers, Monageng nurse, to her being a very strong woman. had the opportunity to continue on to Her mother also benefitted from an secondary school. Entrance was based acquaintance with Lady Ruth Khama – on a competitive exam, and enrolment the British wife of Sir Seretse Khama, meant leaving home at the age of 13 to Botswana’s first post-Independence live in a distant boarding school. She president who was also from Serowe – a remembers: controversial figure daring to marry across the race line who devoted herself It was an exciting time. to women’s issues in her adopted Students came from all over country.3 the country and beyond the borders of Botswana. I had Of her primary education, Monageng grown up predominantly in recalls: villages and rural areas, and the exposure to other tribes My mother was a primary and also to foreigners was school teacher, and therefore awesome. This was a mixed attending school was a gender college, but male given. The fact that she was students were more than females. The education system, the policies, 3 Read more about the life of Ruth Khama in her May 29, 2002 obituary in The Guardian: socialization, etc. always 5 https://www.theguardian.com/news/2002/may/29 favoured boys. /guardianobituaries. The circumstances of her marriage with Seretse Khama also became more widely known through a 2016 feature film 4 Author interview 2016. entitled "A United Kingdom." 5 Author interview 2016.
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At the end of her secondary education, Choosing the Law Monageng’s life took an unexpected detour. When her father fell ill, she took Despite the many years that had elapsed on the responsibility of supporting the since leaving secondary school, family and consequently entered the Monageng’s success in the banking field working world. Although she initially gave her the confidence to enroll at the thought this would be for just a few University of Botswana in Gaborone in years, she instead spent ten years 1982. She opted to study law, inspired, working in a bank in Gaborone, the in her words, by her personal experience capital of Botswana. During this period, with the legal system: she also married a man with the surname of Monageng and had three children. What sold [the study of law] The subsequent dissolution of her was when I parted with my marriage became another turning point then husband, the injustice in her life; in addition to the personal where I had to get out of that disruption it caused, her divorce house, with my clothes, the demonstrated how Botswana laws children's clothes, blankets, disadvantaged women on matters of and nothing else … So that's family and inheritance. This is perhaps when I decided, it's time for not surprising, given Botswana’s me to act, it's time for me to continuing gender inequality across do a subject that will many spheres of society, including all properly assist other women three branches of government (Bauer in a similar situation.7 and Ellett 2016). Her experience also occurred more than a decade before the This five-year course of study entailed groundbreaking 1992 case in the spending two years in Edinburgh, Botswana High Court and later Court of Scotland, through a cooperative Appeal, Attorney General of Botswana v arrangement between the Universities of Unity Dow.6 This case shed light on the Edinburgh and Botswana. Monageng gender-based discrimination found in found the experience of living abroad customary law and held that "the exciting: “The whole thing was new to Constitution of Botswana must be us… This was a huge city. Even the type interpreted to include sex as a ground of of lecturing was different; the style of discrimination" (Masengu, 2015: 4). writing our assignments was different.”8 Monageng's direct encounter with This change of academic setting discriminatory laws was to inform her notwithstanding, most of the lecturers at later work in both legal and civil society the University of Botswana at the time spheres. of Monageng’s studies were also foreign nationals. One of the founders of the University of Botswana’s law program,
6 Attorney General v Unity Dow (1992) BLR 7 Author interview 2016. 119. 8 Author interview 2016.
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and coordinator of the Edinburgh Department of Justice to become a program for students from Botswana and Magistrate. The Judiciary of Botswana Swaziland, was Alexander McCall comprises several levels: Magistrates Smith, who is perhaps best known as the Courts, which include small claims author of the popular detective novel courts; High Courts; and the Court of series set in Botswana, “The Number Appeal. According to the Botswana One Ladies Detective Agency.”9 African Administration of Justice website, nationals were also represented among "[t]he Magistrates Court performs a very the foreign lecturers in Gaborone; one of pivotal role in the Judiciary Monageng’s professors was Judge of Botswana. They try the bulk of the Daniel David Ntanda Nsereko of offences committed in this country Uganda, who served as an ICC judge and attend to the bulk of common from 2007 to 2011 and is currently on disputes between ordinary citizens of the Appeals Chamber of the Special Botswana."11 The area of law that Tribunal for Lebanon. Despite the fact Monageng found most exciting during that many young women at the her studies was criminal law, and this University of Botswana in that era were interest stood her in good stead when she pushed into “soft courses”10 – by this she became a Magistrate. She explains: meant the historically feminine fields of teaching and nursing – Monageng felt Magistrates do everything that the university was generally except capital punishment supportive of women students and offenses like murder. They treated them as equal to their male also do not try attempted counterparts. Nonetheless, by her final murder, manslaughter, or year of law studies, she was the only sedition cases. But then they woman remaining in a class of ten do all other criminal cases students. from rape to common assault. And then, of course, Domestic Judicial and Legal they still do civil cases, Experience although they have a mandatory ceiling in Monageng’s goal upon graduation was monetary value. And to become a judicial officer, unlike most Magistrates are the ones who of her peers who headed into private do maintenance cases for practice. Along with one other student, children born out of wedlock she was recruited by the Botswana and women and children who have separated from their spouses, until their 9 Anyone familiar with the series will know that the main character is a Botswana woman coming cases are finalized by the out of a bad marriage who establishes herself as High Courts. All the a private detective although her gender and background are against her. One can’t help but think of the parallels with Monageng’s life. 11 See www.justice.gov.bw/about%20us/about- 10 Author interview 2016. magistrate-courts.
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maintenance cases… from Botswana in the 1990’s, and the need to divorce or even cohabitant administer prophylaxis to victims within people.12 72 hours of sexual contact with a possible carrier. She noted of that time: At this time, in the late 1980’s, Monageng was the only woman We worked very, very hard Magistrate in Botswana and only the in Botswana to change… third woman to have ever held this first of all, the mindset of the position.13 Gender balance in the lower police themselves that kept ranks of the judiciary has changed some of the women away radically since then – in 2010, 56% of from reporting their [rape] Magistrates were women (Bauer and cases. We worked until the Ellett 2016). She describes the work of police agreed that when a Magistrate as “killing”14: it entailed woman comes to report rape, hearing multiple cases a day, researching she will be attended to by a the relevant legal issues, and then female police officer, and writing an often lengthy judgment for there was a dedicated room each case. She was sometimes purposely away from everybody else.16 assigned cases involving women’s and family issues, as were the female Monageng’s account of her magistracy Magistrates appointed after her, because years supports what some scholars have of their reputations for being found in their research on the impact of “compassionate” and “asking respectful gender on judging at the domestic level: questions” of the women appearing in that while women may not necessarily court.15 render decisions in a particular way because of their gender, their presence in Monageng found hearing cases that courts is nonetheless important on many touched on the welfare of women and fronts. As O’Connor and Yanus have children, and enforcing laws that written of the U.S. context: protected them, the most rewarding aspect of her work. The treatment of …although there is no victims of rape, in particular – by police persuasive evidence for a officers, by medical professionals, and in ‘woman’s judicial voice,’ the the courtroom – evolved during that representation of diverse time, spurred on in part by the rapidly women judges on our increasing rate of HIV infection in nation’s courts has powerful implications for public policy favorable to women. 12 Author interview 2016. 13 The first two women, Ms Daphne Briscoe and Moreover, and perhaps more Ms Mphathini Motsemme, had subsequently importantly, we argue that gone into private practice (personal having multiple women communication with Sanji Monageng). 14 Author interview 2016. 15 Author interview 2016. 16 Author interview 2016.
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judges on a court may be the bookkeeping, a skill she brought important for socialization with her from the banking sphere. and collegiality (O’Connor Indeed, she was associated so closely and Yanus 2010: 441). with this new endeavor that the public, very pleased to have a watchdog for the The Botswana experience also echoes law profession, often referred to the Law what Mack and Anleu found in their Society simply as “Monageng’s office.” study of the lower Australian courts, “Today the Law Society is synonymous where “women may sometimes perform with my name,” she has stated their judicial role in subtly different publicly.19 She recalls of that time: ways than their male colleagues” (2012: 730). While all Australian judicial I was the chief spokesperson officers consider impartiality, integrity of the Society, its liaison and fairness the highest values of their officer with the government profession, “women magistrates of Botswana and national generally place a higher value on a range and international of interactive qualities, particularly in organizations, and the chief relation to the qualities of accounting and communication and being a good administrative officer. I was listener, in sharp contrast to male responsible for spearheading judges” (2012: 746). the society’s professional development program, the Monageng had served as Magistrate for human rights unit, discipline, ten years, and heard thousands of cases, and generally was in charge when another opportunity presented of the day-to-day running of itself. With the passage in 1996 of the the Society. I quickly Legal Practitioners Act,17 Botswana introduced the Society to established a law society (i.e., bar organizations like the association) to oversee and regulate the Commonwealth Magistrates’ training and practice of lawyers. The and Judges’ Association, the website of the Law Society of Botswana Commonwealth Lawyers states that it “discharges a dual role”: to Association and the regulate its members while also International Bar representing the professional welfare of Association, and we became its members.18 As the first Chief members.”20 Executive Officer of the Law Society, Monageng did everything for the Her time at the Law Society took organization in its early years, including advantage of Monageng’s many skills
17 Legal Practitioner’s Act of Botswana, 1996. 19 See video interview with Monageng by the See International Association of Women's Judges: https://www.jstor.org/stable/745675?seq=1#page https://iawj-womenjudges.org/hon-sanji- _scan_tab_contents. mmasenono-monageng/. 18 http://www.lawsociety.org.bw/. 20 Author interview 2016.
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and allowed her to take them to a new also served as the Deputy Chief level. But it also served as critical Litigation Officer for the United Nations preparation for her move into Observer Mission to South Africa, a international legal work. As she mechanism established “to observe and describes it, “the exposure to both new report on the transition from apartheid in ideas and skills, as well as to diverse South Africa to a non-racial democratic professional organizations, catapulted society.”23 Through such activities, she me into the international scene; hence, I became involved with projects believe, my ability to become promoting not only women’s rights but competitive for high-powered also freedom of expression, education, positions."21 social justice, and HIV/AIDS.
In 2003, Monageng was contacted by the Beyond Botswana: The African Botswana government, which wished to Commission for Human and Peoples’ nominate her for a position with the Rights and other African Judiciaries African Commission on Human and Peoples’ Rights (hereafter the Monageng’s first forays into human Commission). The Commission consists rights occurred shortly before and during of eleven members who are elected by her Law Society years. Although she had the African Union (AU) Assembly from not been exposed to human rights during among human rights experts nominated her law studies, she later became by AU State Parties. The Commissioners involved with Ditshwanelo – also known serve six-year renewable terms on a part- as the Botswana Centre for Human time basis. The aim of the Commission Rights – an organization established in is to protect human and peoples' rights; Botswana in 1993 which describes itself promote human and peoples' rights; and like this: “DITSHWANELO is an interpret the African Charter on Human advocacy organisation with a key role in and Peoples' Rights.24 Although the the promotion and protection of human Commission was inaugurated in 1987, rights in Botswana society. The Centre this continent-wide body was not seeks to affirm human dignity and particularly well known at the time of equality irrespective of gender, ethnicity, Monageng’s nomination. In her words, religion, sexual orientation, social status the response she gave to the government or political convictions.”22 Her evolving was: “‘Give me a day or two, I'll come interest in the field of human rights back to you.’ And I quickly did my eventually led to work and advisory research, and yeah, I found that it was positions with various regional bodies, quite interesting."25 After a short and including the Open Society Institute of relatively painless “campaign,” she was South Africa (OSISA) and Southern African Litigation Centre. In 1994, she 23 See https://search.archives.un.org/united- nations-observer-mission-in-south-africa- unomsa. 21 Author interview 2016. 24 See http://www.achpr.org/. 22 See http://www.ditshwanelo.org.bw/. 25 Author interview 2016.
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voted in as a Commission member at the instance the Endorois African Union summit in Maputo, indigenous peoples’ case, of Mozambique in July 2003. which I was the Rapporteur.26 Monageng served as a Commission member from 2003 to 2009. She chaired Indeed, Monageng considers her work the Follow-up Committee on torture and on the Endorois case, formally titled other inhumane and degrading treatment Centre for Minority Rights Development from 2003 to 2007 (now known simply (Kenya) and Minority Rights Group as the Committee on Torture), and acted International on behalf of Endorois as chairperson of the entire Commission Welfare Council v Kenya (ACHPR during the final two years of her 2009), to be the highlight of her mandate. She is proud of what she Commission experience. She described accomplished during her leadership: the case this way when she presented it to participants of the 2012 session of the First, when I took over the Brandeis Institute for International Chairmanship of the Judges: Commission, I fought for and convinced the African The Endorois are an Union to increase the budget indigenous population in of the Commission from Kenya that was evicted from about 750,000 US Dollars its ancestral lands around per annum to 6 million US Lake Bogoria in the 1970’s dollars, and this meant that by the state to make room for the Commission was able to a game lodge and other undertake more promotion touristic infrastructure. In and other missions during return, individual members the intersessions. This also of the group were offered meant that the number of minimal compensation and staff increased significantly, relocated to lands that could and therefore that the not support their livestock Commission was able to (lacking water, vegetation, discharge its mandate better. and salt licks), that did not The Commission was also have the plants used for their able to respond to situations traditional medicines, and of serious human rights that separated the Endorois violations on time, if it was from sites of religious and called upon to do so. The cultural significance backlog of cases was also (Brandeis Institute for being pushed and the International Judges, 2012: Commission was able to 33-34). complete very important communications, for 26 Author interview 2016.
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vetting process was selected by, the In its judgment, the African Commission Commonwealth Secretariat in London to found violations of the rights to freedom serve on the benches of the High Court of religion, property, health, culture, of the Republic of Gambia (2006-07) religion and natural resources under the and the High Court of the Kingdom of African Charter on Human and Peoples’ Swaziland (2008-09). According to Rights. It also found a violation of the Bauer and Ellett, “It is noteworthy that right to development, the first time that Monageng did not sit at the High Court an international body had made such a in Botswana. There is no record of determination (Williams 2010). The Monageng herself suggesting she was Commission recommended that deliberately overlooked for the High sweeping restitutions be made to the Court bench, but others have suggested dispossessed Endorois population. This that this is the case” (2016: 42). When groundbreaking decision was asked if she would have liked a meticulously based on international and comparable position in the judiciary of regional human rights standards and Botswana, Monageng replied, “as a jurisprudence, particularly that of the servant of that community, I would Inter-American Court and Commission have."28 She added of her experience in of Human Rights (Williams, 2010; BIIJ, Gambia and Swaziland: 2012). Given the non-binding nature of ACHPR rulings, however, there is “I was a judge and, in my always the question of whether a state mind, I was gaining deemed to be in violation of its human experience. And one day I'd rights obligations will comply with the go back home, and they Commission’s recommendations. Kenya wouldn't have any reason to has, in fact, been slow to implement the say ‘no’ to me."29 restitutions so carefully laid out in the Significantly, it was human Endorois decision, despite the efforts of rights activist and lawyer civil society groups such as ESCR-Net.27 Unity Dow, the same person involved in the During the later years of her service on groundbreaking case about the African Commission, Monageng left gender discrimination under the Law Society and returned to judicial customary law in 1992,30 work, this time at the highest levels. This who was appointed as was not, however, in her native Botswana's first female Botswana. She instead applied to, and judge of the High Court in after an extensive and competitive 1998.31
27 See “Implementing the ACHPR’s ruling on the Endorois case”, posted October 2, 2014, at the 28 Author interview 2016. website of ESCR (Economic, Social and Cultural 29 Author interview 2016. Rights)-Net. Available at https://www.escr- 30 Ibid. note 6. net.org/news/2014/implementing-achprs-ruling- 31 See the website of African Success: People endorois-case. Changing the Face of Africa, at
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question that, not surprisingly, has also It is both telling and ironic that been raised in relation to the work of the Monageng reached these lofty levels of International Criminal Court, given its judicial service outside of her own global jurisdiction and current focus on country. Telling because Botswana non-Western situations (Swigart, 2015 & continues to have very low female 2016.) representation in its High Court – only 6% as of 2010, compared to 25% in The International Criminal Court Swaziland and 65% in Lesotho (Bauer and Ellett 2016). It was thus perhaps an a) Election to the Court easier task for her to join the highest As it turns out, Monageng’s most high- courts of nations other than her own.32 profile, and arguably her most important, Ironic because Botswana has had a judicial work was not to be performed particularly hard time “indigenizing” its on a domestic bench, in her home own judiciary since independence from country or anywhere else, but instead on Britain (Bauer and Ellet 2016),33 and that of an international body, the ICC. Monageng’s service in Gambia and The idea of an ICC judgeship was first Swaziland ultimately contributed to the planted, she recounts, through a expatriate presence in those countries’ conversation she had with South African courts. Judge Navanethem Pillay at the 2004 session of the Brandeis Institute for Furthermore, this expertise-sharing International Judges.34 Pillay, who was arrangement among African countries at that time herself an ICC judge and had begs the question of how important it is previously served as both judge and that “a judge… possess knowledge of president of the International Criminal the culture and language of the people Tribunal for Rwanda, encouraged upon whom he renders justice” Monageng to think about the 2009 ICC (Lekgowe and Motswagole 2011, cited judicial elections and to begin talking to in Bauer and Ellett 2016). This is a her government. http://www.africansuccess.org/visuFiche.php?id Monageng approached the Botswana =733&lang=en. government in 2008, while serving on 32 The Commonwealth Magistrates and Judges the High Court of Swaziland, asking that Association has its own “Gender Section,” which expresses concern not only about bias against they nominate her as an ICC candidate. women in the justice systems of its 52 member This request was quickly met with an states, but also about the numbers of women who enthusiastic response from government. serve there as magistrates and judges. See http://www.cmja.org/gendersection.html. 33 According to the official website of the 34 Monageng first attended the Brandeis Institute Botswana Administration of Justice, "Up until for International Judges while still serving on the 1992, Judges of the High Court were expatriate African Commission on Human and Peoples’ Judges who were appointed on short contracts of Rights. While awaiting the inauguration of the 2-3 years. However this has since changed, and African Court on Human and Peoples’ Rights, today, out of the 16 permanent judges, only one the BIIJ included commissioners among its is expatriate." participants.
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Monageng explains the reaction thus: “I deep appreciation of the rights of both was popular for some reason, and by that accused persons and victims, and of the time I had a good record, being a need to balance those rights with the Commissioner and an employee of the responsibilities of fact-finding and Commonwealth Secretariat, both adjudication. Such appreciation has continental and international. When I got made her, in her words, “a better the judgeship through the judge.”36 Her long experience on Commonwealth Secretariat, there was domestic courts was also a critical part really a celebration in Botswana. So of her profile, of course: when I came in with the request for the ICC, there was virtually no problem."35 I came into the ICC with the basic knowledge of being a The ICC describes the qualifications of judge. I had tried thousands its judges thus: The judges are chosen of cases and so, to that from among persons of high moral extent, I considered myself character, impartiality and integrity who competent to sit as a judge in possess the qualifications required in the ICC. Of course, having their respective States for appointment to worked domestically as a the highest judicial offices. They have judicial officer, I know that either established competence in complementarity is crucial. I criminal law and procedure, and the appreciate that justice is necessary relevant experience, whether better served when the as a judge, prosecutor, advocate or in recipients see and literally other similar capacity, in criminal feel it.37 proceedings: or have established competence in relevant areas of Monageng’s professional qualifications international law such as international were clearly recognized. Not only was humanitarian law and the law of human her candidacy endorsed by the African rights, and extensive experience in a Union (ICC, “Note verbale”: n.d.), but professional legal capacity which is of she was also elected after only the fourth relevance to the judicial work of the round of voting by members of the Court. All are fluent in at least one of the Assembly of States Parties. (There were working languages of the Court, English eleven African candidates in 2009, out and French (ICC, “Judges of the Court”: of nineteen candidates total. Two n.d.). African judges were ultimately elected over nine rounds of voting.38) The Monageng was nominated as an expert in international humanitarian law and 36 Author interview 2016. human rights, the so-called “List B.” She 37 Author interview 2016. considers that her experience with the 38 See African Commission has afforded her a https://web.archive.org/web/20120919210937/htt p://www.icc- cpi.int/Menus/ASP/Elections/Judges/2009/Result 35 Author interview 2016. s/Final+Results.htm. The outcome of the various
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assistance of the Botswana government nominating or voting for judges, a higher was an important part of Monageng’s percentage of women sat on the bench in successful “ICC campaign”: they mid 2015. Examples include the prepared and printed a beautiful International Criminal Court (ICC), the brochure about her qualifications that European Court of Human Rights was circulated to the ambassadors of (ECHR), the African Court on Human States Parties, supported her travel to and Peoples’ Rights, and the ad litem The Hague and New York, and benches of the International Criminal accompanied her to meetings with States Tribunals for Rwanda and the Former Parties representatives.39 Such Yugoslavia (ICTR and ICTY, government support is critical for the respectively). Thirty-two percent of the eventual election of a judicial candidate judges on these courts were women in for the ICC (as well as other mid 2015. Where a “fair representation” international courts), as has been noted of the sexes was not aspired to or by various scholars (Terris et al, 2007; required, women made up only 15 Mackenzie et al, 2010). percent of the bench (Grossman 2016: 82). It is also clear that Monageng’s gender, like that of other women judges at the Furthermore, Grossman notes that when ICC, worked to her advantage during the courts practice an institutionalized 2009 election. Unlike most international screening of judicial candidates after courts and tribunals, the ICC has explicit nomination, to ensure that they meet the statutory language calling for “fair stated qualifications, it results in an representation of female and male increased gender balance on the bench judges” (Rome Statue, Art. 36 8. a) (iii)). (Grossman 2016). Civil society groups It also specifies that “States Parties shall may also monitor the nomination and also take into account the need to election of candidates for international include judges with legal expertise on judgeships. For example, the Coalition specific issues, including, but not limited for the International Criminal Court to, violence against women or children” (CICC), a group of 2500 civil society (Rome Statute, Art. 36 8. b)). Scholar organizations across 150 countries, Nienke Grossman has documented the invites ICC candidates to articulate their significant impact of such statutory qualifications by answering a long and language on the election of women to complex questionnaire, parts of which the benches of international courts and query their stance and experience on tribunals: gender-related issues.40 This outreach to For courts where states were required by candidates contributes to CICC’s stated statute to take sex into account when aim of “[a]dvancing the nomination and election of the most qualified officials rounds is no longer available on the ICC site but has been captured on Wikipedia: 40 Monageng’s completed questionnaire is 17 https://en.wikipedia.org/wiki/International_Crimi pages long, and her entire CICC submission with nal_Court_judges_election,_January_2009. supporting documents (sample judicial decisions, 39 Author interview 2016. etc.) comprises 87 pages. On file with author.
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within the system and ensuring the most independent and transparent elections Women judges can be seen as process.”41 contributing to their benches, courts, and the greater society in a number of As of January 2017, one-third of ICC positive ways, some of which have been judges were women, a real noted above – for example, bringing accomplishment for an international increased sensitivity to the plight of court. Even more impressive, 47% of women and children, communicating ICC judges elected between 2002 and effectively with parties before the court, 2015 were women (Grossman 2016), and bringing out positive changes in and it even hit the high mark of 57% public policy. Such contributions may female representation on the bench after well apply not only to their work on the 2013 judicial elections (Chappell domestic but also international courts. 2016). This contrasts sharply with some The latter carry, however, an additional other international judicial institutions. burden – that of needing to justify their The International Court of Justice (ICJ), own authority in the absence of an for example, has no language pertaining overarching framework of support and to the gender of those standing for legitimization that domestic courts take judicial election; it has had only four for granted (von Bogdandy and Venzke women judges out of the more than 100 2012; Grossman 2012). As Grossman who have served over its 70-year observes, international courts interpret history, three of whom are currently and shape international law, which in serving. As for the African Court on turn impacts people around the globe. Human and Peoples’ Rights (ACtHPR), “This authority requires justification, its protocol calls for “adequate gender and democratic values such as representation” on the bench (Protocol representation provide a meaningful Establishing the African Court on justification. Both women and men are Human and Peoples’ Rights, Art. 12 2.), the beneficiaries of the work of a vague goal that some feel is far from international courts and should be being achieved – of the 26 judges who involved in judicial decision-making for have served over the Court's ten-year these institutions to possess justified history, only eight have been women. authority” (2015: 9). The ICC thus However, as of this writing in September benefits not only from the service of 2017, five members of the eleven- competent and experienced women member ACtHPR bench are women, judges, but their presence also four of them having been elected in the undergirds its very status as a court past 15 months. The Court is thus designed to serve the global community. moving close to the ICC bench in terms of gender balance42. b) Work at the Court Monageng joined the ICC in 2009 when it had been in operation for seven years. 41 See http://www.coalitionfortheicc.org/. The institution had by then moved However, the number of women judges at the beyond some of the more difficult ICC since March 2018 is 6 out of 18 judges.
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periods of its “infancy,” when Libya by Saif Al-Islam Gaddafi and two procedures were still being worked out other suspects.46 and established, and its initial cases prepared. The judges had also had the Monageng’s involvement with one of opportunity to work toward the Darfur cases, The Prosecutor v. “tightening… the judicial culture” – Abdallah Banda Abakaer Nourain,47 through reconciling their diverse furthermore brought into focus for her nationalities, professional backgrounds, the difficulties associated with ensuring legal traditions and worldviews – “in the rights of accused persons when they order to form a united approach to speak a so-called “language of lesser justice” (Terris et al, 2007:65). This was diffusion.” Banda spoke only his native fortunate, as the Court was seeing a Zaghawa, a Sudanese language with rapid expansion of its workload around fewer than half a million speakers, no this time, which resulted in increased written tradition, and for which no activity by the Pre-trial, Trial, and trained interpreters were available Appeals Chambers. (Swigart 2015)48. The obligation to read charges to and conduct proceedings When Monageng joined Pre-Trial against an accused in a language that the Chamber I upon her arrival in The accused both understands and speaks Hague, she immediately became (ICC Rome Statute, Article 67(1)(a) & involved in a number of cases (f)) – which Monageng approvingly concerning both highly publicized world observed that the Court takes very events and high-profile figures. These seriously (Swigart 2015) – led to long included: violence in the Darfur region delays in the opening of the Banda trial of Sudan, which resulted in charges of (War Crimes Research Office 2015; war crimes and crimes against humanity Smith van-Lin 2016). By the time that against multiple suspects, among them the necessary interpretation services for Sudanese President Al-Bashir (who was the trial were in place, the accused did later additionally charged with the crime not respond to requests to appear in The of genocide);43 alleged war crimes and Hague. The Banda trial will only start if crimes against humanity committed in and when the accused appears the context of armed conflict in the voluntarily or is arrested. As the Court is Democratic Republic of Congo (DRC),44 bound to face similar linguistic giving rise to six separate cases, one of challenges with other accused persons, them The Prosecutor v. Thomas Lubanga Dyilo,45 the ICC’s inaugural 46 See https://www.icc-cpi.int/libya. trial centering around the recruitment 47 See https://www.icc-cpi.int/darfur/banda. 48 and use of child soldiers; and crimes See Smith van-Lin, L. “When We Don’t Speak the Same Language: the Challenges of against humanity allegedly committed in Multilingual Justice at the ICC.” In The International Criminal Court and Africa: One 43 See https://www.icc-cpi.int/darfur. Decade On, Evelyn A. Ankumah (ed.). 44 See https://www.icc-cpi.int/drc. Cambridge, Antwerp, Portland: Intersentia, 45 The Prosecutor v. Thomas Lubanga Dyilo, 2016. ICC-01/04-01/06.
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the Banda experience will certainly a clear line of reasoning in prove instructive. the Prosecution's case. … One of the most appealing aspects of The case against Mr Callixte ICC work for Monageng has been the Mbarushimana is not a collegiality and mutual respect conventional one, but what characterizing the collective work of the Majority sees as judges. She proclaims herself proud of "insufficient evidence" I see “being part of a group of international as "triable issues" deserving men and women with diverse of the more rigorous fact experiences who are adjudicating the finding that only a Trial worst crimes known to mankind."49 This Chamber can provide (ICC- does not mean, however, that there has 01/04-01/10: (f) Conclusion never been a difference of opinion 134). among colleagues. For example, Monageng found herself dissenting from When Monageng left Pre-Trial Chamber her two Chamber fellows in the I in 2012 to join the Appeals Chamber, confirmation of charges proceeding she sat on other DRC-related cases of against Callixte Mbarushimana, a DRC note. In The Prosecutor v. Mathieu national whom the Prosecution sought to Ngudjolo Chui, which Monageng charge with five counts of crimes against presided, the Appeals Chamber humanity (murder, inhumane acts, rape, confirmed Trial Chamber II’s acquittal torture and persecution) and eight counts of the defendant, who had been accused of war crimes (attacking civilians, of leading an attack on the Ituri District murder, mutilation, cruel treatment, rape, village of Bogoro during which some torture, destruction of property and 200 people, including women and pillaging).50 As the presiding judge on children, were murdered and raped. This this case, Monageng was intimate with was the first acquittal to be handed down its details. In her dissent, she writes: by the ICC, and its confirmation upon appeal demonstrated that an accused at The Majority concludes that the ICC would not be convicted when there are not substantial there was reasonable doubt that he had grounds to believe that the command responsibility over those Suspect contributed to the committing the crimes in question.51 crimes committed by (Ngudjolo himself did not deny that the agreeing to conduct an crimes had taken place.) Also notable international media among Monageng’s Appeals work was campaign in support of them. the judgment in the Lubanga case, which However, when viewing the touched upon a subject close to her totality of the evidence, I see heart, the rights of children (in particular, those of child soldiers).
49 Author interview 2016. 50 See https://www.icc- 51 See www.ijmonitor.org/2012/12/ngudjolo- cpi.int/pages/item.aspx?name=PR798. acquitted-by-icc/.
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judge, and that balance can be quite c) An African judge in an “anti- daunting.52 African” institution? Monageng, along with many other As Monageng has pointed out elsewhere, Africans serving on the ICC bench or African state resistance to the ICC was across diverse units and offices of the perhaps unexpected in the early days of Court, have faced a particular challenge the institution, given that "it is African in recent years – that of working for an states which participated in the drafting institution that is characterized by some of the Rome Statute and to this day critics as biased toward their continent. constitute the largest regional block Whether one sees this allegation as well amongst states which have voluntarily founded, given the ICC’s prosecutorial signed up to the Rome Statute" choices during its first decade, or (Monageng and Heinze, 2016:67). alternatively considers it an expedient strategy adopted by certain African As to the proposal that a criminal leaders to undermine the Court, the jurisdiction be added to the existing resulting distress created for ICC staff African Court on Human and Peoples’ remains much the same. Monageng has Rights,53 thereby providing an African spoken movingly of this dilemma, which alternative for the prosecution of “ICC was particularly acute when she served crimes,” Monageng believes that it as First Vice President of the Court from would be viable provided the institution 2012 to 2015. is “fully empowered to discharge its mandate."54 She also finds encouraging The relationship between my mother the recent prosecution of former Chadian continent Africa and the ICC has been at dictator Hissène Habré by the a very low point during the past few Extraordinary African Chambers (EAC) years, especially in that it became worse established within the courts of Senegal. during the years when I was the First “I was part of the men and women in Vice President of the ICC. I do Africa who fought hard through the understand [African states’] criticisms and frustrations. But a lot of people don't 52 Author interview 2016. Since the time of this realize just how affected we [African interview, tensions between the ICC and Africa nationals] are. We are part of this have escalated even further, with three countries – Burundi, Gambia and South Africa – having institution and the problems come from declared their intention to withdraw from the our continent. You just wish you could Rome Statute in late 2016. As of this writing in go to bed, wake up and find this September 2017, however, only Burundi has relationship normalized. And of course, continued down this path. 53 for those who have an opportunity to The plan for a merged African Court of Justice and Human and Rights was adopted by the talk to [African] governments, we do African Union Assembly of Heads of State and know that this relationship can improve. Government in June 2014. The so-called But it has been very, very difficult for “Malabo Protocol” is available at us. Because first and foremost you are a https://www.amnesty.org/en/documents/afr01/30 63/2016/en. 54 Author interview 2016.
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African Commission for Senegal to Despite extensive study and scholarship ultimately agree to take this case, so I on the effect of gender on judging, no am very pleased that our efforts bore definitive assessment of its role seems fruit."55 possible. Many female judges declare that their “gender perspective” is an This first prosecution of an African head important part of how they approach of state in an African country should be their work. Among these are eminent taken as a good omen. Indeed, it has women who have served on the benches been argued that the EAC and other of international courts and tribunals, “exceptional judicial configurations, such as Navanethem Pillay (Terris et al, practices and innovations found in 2007), Elizabeth Odio Benito (Chappell, Africa should be recognized Durbach and Odio Benito, 2014), internationally for what they are: Patricia Wald (Wald, 2011), and Cecilia expressions of a significant consensus on Medina Quiroga (Terris et al, 2007). the part of legal practitioners, jurists, and Monageng agrees with this view in activists – if not always the powers that general, having experienced in Botswana be – about the need to protect that “male judicial officers at times fundamental human rights and challenge trivialized [women’s] issues."56 At the impunity on the African continent” same time, the responsibilities of (Swigart 2017:13). African judges at the impartiality and distance remain ICC are perhaps the only members of the paramount: “What happens inside the bench who have the necessary dual courtroom has to be done within the viewpoint – as Africans and also confines of the law, although practitioners of international law – to sensitivities to a traumatized woman will evaluate the source and weight of always be there” (quoted in Dawuni, critiques emanating from their home 2016: 21-22). In response to the direct countries. question of whether men and women judge differently, Monageng was non- committal: “Although it is not always so, Looking back, looking ahead I have had impressions in the past that this could be the case."57 What lessons does Sanji Monageng take from her varied life experiences as she It is interesting that the objective view of approaches the end of her nine-year term some scholars of international criminal at the ICC? What does she conclude law may be at odds with the subjective about the impact of gender on judging experience of women international and what it takes for a woman to become judges. For example, Chappell has an international judge? And what lies observed, “While the presence of women ahead for her after her term at the ICC on the bench sends an important signal ends in March 2018? about women’s capacity to adjudicate on
56 Author interview 2016. 55 Author interview 2016. 57 Author interview 2016.
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matters of international significance, it benches. Hearkening back to does not guarantee more sensitive Grossman’s statement cited above, judging on sexual and gender-based international courts, whatever their violence issues, and so it has proven to subject matter jurisdiction, need both be the case at the ICC” (2016). Indeed, women and men involved in decision- Chappell believes the ICC is far from making to justify their authority (2016). achieving its gender mandate, so In this way, among others, Monageng carefully orchestrated during the design has contributed personally to of the Rome Statute: strengthening the legitimacy of the ICC.
As the early years of the ICC has shown, As for younger women who may wish to overturning the deeply embedded gender follow in her footsteps, Monageng legacies of international law is no easy recommends that they “prepare task. Even with the best rules in the themselves, obtain the necessary world, the actors responsible for qualifications, grab opportunities, ask for implementing these rules – prosecutors, support, identify mentors and generally judges, lawyers – sometimes work to become marketable."58 She rightly resist change or more benignly, too observes that opportunities in the field of easily forget ‘the new’ and remember international criminal justice are ‘the old’. To realize its potential, and evaporating with the closure of various maintain its legitimacy in the eyes of its ad hoc tribunals. “It is therefore crucial core gender justice constituency, the ICC that women are ready to bolt at all must now redouble its efforts through times."59 She also points out that gender-sensitive investigations, the patience may be necessary; indeed, her collation of convincing evidence, path to the ICC took a long time and targeted charges, bold judging, and careful planning: “For five years, I was adequate financing (2016). waiting quietly and preparing myself for my government to nominate me. If you It should not be forgotten, however, that are looking for a job, demonstrate to women do not only sit on international your government that you are ready. If it courts whose jurisdictions cover gender- is a competition, compete. Write good based crimes and other crimes that judgments that cannot be overturned on disproportionately affect women, nor appeal and this makes you a strong should they. Inter-state dispute candidate” (quoted in Dawuni, 2016). resolution courts such as the ICJ and International Tribunal for the Law of the Monageng’s penchant for planning Sea, courts of regional integration such ahead has been exhibited once again as as the European Court of Justice and the she prepares for her post-ICC life. She Court of Justice of the Economic enrolled for a course in International Community of West African States, the Commercial Arbitration, seeing this as a World Trade Organization Appellate Body and others should all seek the fair 58 representation of women on their Author interview 2016. 59 Author interview 2016.
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field where she could continue to use her children, and other vulnerable legal knowledge and judicial skills. On populations has often been met with top of her heavy workload at the Court, state resistance. she studied the principles of arbitration and prepared for a series of three This author has argued elsewhere that examinations, which she sat in international criminal justice needs just Rotterdam. When interviewed for this such individuals to judge complex cases chapter, Monageng had just learned that involving accused persons, witnesses she successfully obtained her Diploma and victims who represent a diverse and is now a Fellow of the Chartered range of nationalities, ethnicities, and Institute of Arbitrators, London, United language groups, and whose worldviews Kingdom. When she leaves The Hague, have been shaped by these realities: she will come full circle and return home “These important actors should possess and once again serve her native country: the intellectual flexibility to imagine “There is need for alternative dispute what it means to see the world in resolution in Botswana, so this is what I different ways and to express that world will hopefully focus on.”60 through different languages. This flexibility is cultivated through being Conclusion pushed outside of one’s native linguistic and cultural frame, experiencing the What do the life experiences of a judge resultant disorientation, and reimagining like Sanji Mmasenono Monageng have what one assumed to be the norm as to teach us? Why is it important to tell instead one possibility among many” her story? Like some other African (Swigart, 2016: 216). An African women serving on the benches of woman judge in an international court, international and regional courts, through both her sociocultural Monageng has faced a formidable set of positioning and personal experiences, challenges to arrive where she has: as a may possess the widest range of rural girl whose chances to achieve perspectives possible among her advanced education were statistically colleagues, and her judging may be all slim; as a woman who had to insert the better for it. herself strategically into positions historically held by men; as a judge from It is also a difficult task, however, to the Global South upon whom it was operate in a profession that oftentimes incumbent to adapt to an institution of seeks a single unassailable truth when the Global North, applying law that one sees the world through multiple some might argue is a European artifact perspectives. This is where Monageng’s and working in a language that is a soft power enters once again, allowing colonial legacy; and finally, as a human her to listen carefully, read the situation, rights expert hailing from a continent and negotiate differences of opinion. The where activism on behalf of women, result is that she has made significant contributions throughout her legal and judicial career, and will long be 60 Author interview 2016.
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remembered as an important figure in the International Criminal Court during its early formative years.
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A CANDID AND INSPIRING INTERVIEW WITH JUDGE HOWARD MORRISON
Judge Howard Morrison speaks with Evelyn Ankumah on human rights and justice issues, starting from how his work as a high school teacher in Northern Ghana, at age 18, impacted his worldview. He also answers a question about the decision to acquit Jean Pierre Bemba.
’When courts acquit people they do so because the court is of the view that there is not sufficient material admissible evidence to sustain a conviction beyond a reasonable doubt. It is up to the prosecutor to obtain and present that evidence. A court cannot be measured either by the number, or percentage, of convictions or acquittals. It will be measured by its fairness’.
Judge Howard Morrison
Judge Howard Morrison*
HM: Teaching as a volunteer at Bawku Judge Howard Morrison: I start by Secondary School was probably more of making it plain that the answers to all the an education for me than it was for my questions are purely my personal students. I was fresh out of school at 18 observations. They are not, and are not and still had a good knowledge of my intended to be, any reflection of ICC subjects and the exam system. I had lived policy nor the views of any other person. in the UK, Egypt and Germany as a child
following my father in his work, but this Evelyn Ankumah: You travelled to Ghana was my first time in sub-Saharan and taught high school in Bawku, in the Africa. The most valuable lessons for me, Upper East Region of Northern Ghana, at apart from living on less than $2 a day, only 18 years of age. What was that like, came from observing the symbiosis that and how has this experience shaped your ordinary African people had with each worldview? other, their deep-rooted cultures and their relationship with the surrounding flora and
fauna. I was instantly struck by the sheer hard work of rural agricultural life when you saw women tilling in the fields with babies wrapped to their backs. My pupils were hardworking and saw education as a *Judge at the Appeals Chamber of the International vital key to their future; that made teaching Criminal Court (ICC).
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more demanding but also more rewarding. humane exercise of power and the That year had a real impact upon my views recognition of their accountability for their of those in the world in less secure acts or omissions in office. positions and how we need to work together. EA: You've held multiple roles in the international criminal justice system: EA: You have had a successful career in you've worked on the side of the international criminal law, practicing at prosecution, worked as defence lawyer, one time on the Midland and Oxford and as a judge. What key lessons have you Circuit, including in courts-martial and for learnt from each of these roles? the Crown Prosecution Service, later as a defence counsel at the International HM: I see the role of all three, prosecutors, Criminal Tribunal for the Former defenders and judges having common aims Yugoslavia (ICTY) and the International and, ultimately, a common purpose. By Criminal Tribunal For Rwanda (ICTR), having experience of all three roles at and now as a judge at the International senior levels it becomes easier to see that Criminal Court (ICC). How has this common purpose which is to provide due journey shaped your philosophy on process trials according to the international international criminal law at this critical standards of fairness. All participants have time? a role to play but none must lose sight of the crucial aim of the process being as fair HM: My fairly broad experience of as human wit can achieve. If everyone international criminal and humanitarian approaches their task with professional law as a practitioner, trial and appeal judge fairness and strict regard for the fair trial and part-time academic has been a provisions then trials are as fair as they can privilege. It has not been the easiest of be. journeys but it has come to make me better understand the vital contribution of EA: International criminal law is growing international criminal and humanitarian in substance and influence since the law to the broader scope of human rights Nuremberg trials in 1945. How do you and the essential role of the rule of law and compare the achievements of Nuremberg, good governance. The lessons of history all Tokyo, the later ad hoc Tribunals, and the point in one direction: without the rule of permanent International Criminal Court? law domestically and internationally we will inevitably see the continuance of HM: Nuremberg and Tokyo were an conflicts, dictatorships and the repression essential start in the bid to hold individuals of minority groups for whatever reason or accountable for egregious crimes. The excuse. The bedrock of good governance trials had their detractors and there were and fair societies is the rule of law in all its inevitable complaints of 'victor's justice,' aspects: criminal, civil, commercial, but the reality in 1945 was that both the family, employment and every other facet German and Japanese high command and of due legal process. Concentrating, as I military had serious cases to answer. The do, on international criminal and ad hocs were set up to deal with relatively humanitarian law, the core of what might geographically contained [although be termed my philosophy is that of the atrocious] crimes in the Balkans and crucial individual responsibility for leaders Rwanda. My own view is that both the born of the selfless exercise of duty, the Yugoslav and Rwanda tribunals were
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successful and paved the way for the ICC. trying perpetrators of heinous crimes. Much credit for that must go the late Judge What are some of the challenges the Court Antonio Cassese and the late Professor is facing that may not be apparent? Cherif Bassiouni, both of whom I was privileged to have as friends for many HM: The main challenges that the Court years. It is not easy to make accurate has, but not necessarily in this order, are comparison between the ad hocs and the budgetary and resource sufficiency, ICC and many make inaccurate ones. The cooperation by States, not least members ICC has a worldwide mandate, no of the ASP but also non-state parties who independent police or investigators beyond nevertheless support the international rule its own resources, no direct access to of law. Active cooperation at all levels is Chapter 7 powers and an ASP (Assembly the key to the success of the ICC, as it is of States Parties to the International with most treaty-based entities. There is Criminal Court) which does not mirror all also the challenge that the relative instancy members of the UNGA (United Nations of modern information gives rise to. If the General Assembly). Unlike the ad hocs it information is true and accurate that is had no group of likely suspects when it usually beneficial. If not, it can be very was created and has to deal with a plethora problematic if in some way it of cultures, languages and situations all permeates issues that come to be matters of within the framework of relying evidence. Fake news is nothing new in the entirely upon mature state cooperation with world; it used to be called propaganda. a limited budget. It would be best to look What is new is the speed and volume of at each case at the ICC almost as a separate information and the ability of some to ad hoc trial, as that in practice is what it is. distort it to their own advantage.
EA: You once spoke at Chatham House EA: The ICC has been criticised as being a and mentioned that the ICC is not a ‘PhD court that was set up to prosecute African factory’ but a ‘senior criminal court.’ What leaders. How do you respond to such did you mean by this? criticisms as a judge of the Court?
HM: By that I meant that the Court was HM: It is plain, in my view, to anyone created as a criminal court to try who attended the preparatory sessions of individuals for egregious core crimes the Rome Statute that the suggestion that it according to international due process was set up to single out any defined group safeguards. Although it applies human is nonsense, and it would have been rights principles it is not a human rights immediately obvious if that had been the institute and although there is much erudite intent or even a remote suggestion. I research it is not an academic institution would not participate in any discriminatory either. It has a duty to fairly investigate process and nobody I know at the ICC and, if proper to do so, try cases according would do so either. The Court was set up to plain and applicable due process to remove impunity for serious criminal provisions with a fair and balanced offences and to try any suspects from any appellate safeguard for all parties. continent fairly upon the evidence. It must not be forgotten that the Rome Statute EA: 2018 marks the 20th anniversary of the gives primacy to national jurisdictions and Rome Statute. The Court has made great that the ICC is, in effect, a default court strides towards achieving its objective of to take jurisdiction only where and when
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no other fair and proper adjudication is available or intended within the HM: All criminal lawyers and judges hear complementarity provisions. shocking evidence, sometimes over many years. It is in the nature of international EA: You were one of three judges who cases that the evidence is sometimes more voted to acquit Jean Pierre Bemba. How shocking and widespread than in domestic would you respond to those who say that courts. As a judge you have to be able to the acquittal of Jean Pierre Bemba hear and adjudicate upon such matters highlights the shortcomings of without letting bias or emotion cloud international criminal law as a means to reasoning or judgement. It is something fighting impunity? you accumulate through years of practice. I have been involved in the law for some 50 HM: When courts acquit people they do so years and as a full and part-time judge for because the court is of the view that there almost 30. It is, frankly, not easy and is not is not sufficient material admissible a job for everyone; but if you cannot do it evidence to sustain a conviction beyond a you are at risk of damaging both yourself reasonable doubt. It is up to the prosecutor and the process. to obtain and present that evidence. A court cannot be measured either by the EA: Final question. Which poses a bigger number, or percentage, of convictions or threat to the International Criminal Court acquittals. It will be measured by its at this time, the position of the current fairness. American administration or the position of the African Union? EA: The principle of complementarity is said to be the cornerstone of the Rome HM: I would not single out any one Statute. Dominic Ongwen is currently administration or group or make loose being tried at the ICC for international comparisons. There is an obvious facet of crimes committed in Northern Uganda, human nature which reacts against any whilst Thomas Kwoyelo is being tried at suggestion that your, or your the International Crimes Division of the friend's, individual acts or omissions make High Court of Uganda (ICD) for you or them culpable or even a proper case international crimes committed in Northern for investigation; but that is common to Uganda. How do we reconcile the both domestic and international cases. The 'concurrent jurisdictional' difference world is obviously going through a period between the two trials? What does this where sovereignty and constitutionalism jurisdictional difference mean for the have come more to the fore than at times future of complementarity? when internationalism was at its peak. The history of the world shows that that cycle HM: This issue may come before me on is far from unique and is almost appeal. It is not proper for me to address it generational. The ICC cannot escape here. Realpolitik, but politics of any description stop at the Court door. EA: At a presentation held at Keele University, you spoke of regularly hearing tales of 'horror and terror' in this field of work. How do you cope with hearing such stories on a regular basis?
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Africa Legal Aid
The International Criminal Court and Africa: One Decade On, Evelyn A. Ankumah (ed.) Intersentia 2016, Cambridge, Antwerp, Portland. September 2016 | ISBN 9781780684178 | xxxviii + 676 pages
More than ten years ago the International Criminal Court (ICC) was established as a universal court meant to achieve criminal justice worldwide. That goal still stands, but so far the Court has dedicated most of its time and resources to African conflicts in which international crimes have been committed.
While the ICC can be said to contribute to criminal justice in Africa, it cannot be denied that the relationship between the Court and the continent has been troublesome. The ICC has been accused of targeting Africa, and many African states do not seem willing to cooperate with the Court. Debates on Africa and international criminal justice are increasingly politicised.
The authors of this volume all recognise the current problems and criticism. Yet they do not side with populist pessimists who, after just over a decade of ICC experiences, conclude that the Court and international criminal justice are doomed to fail. Rather, the contributors may be regarded as cautious optimists who believe there is a future for international criminal justice, including the ICC. The contributors use their unique specific knowledge, expertise and experiences as the basis for reflections on the current problems and possible paths for improvement, both when it comes to the ICC as such, and its specific relationship with Africa.
To purchase the book, please visit Intersentia’s website: http://intersentia.be