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Advocating for International Criminal Justice in Africa Positive Reinforcement: Advocating for International Criminal Justice in Africa

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Advocating for International Criminal Justice in Africa Positive Reinforcement: Advocating for International Criminal Justice in Africa Positive Reinforcement: Advocating for International Criminal Justice in Africa Positive Reinforcement: Advocating for International Criminal Justice in Africa May 2013 Positive Reinforcement: Advocating for International Criminal Justice in Africa © 2013 Southern Africa Litigation Centre Cover Photograph: J Carrier Design: Nicework ISBN (print): 978-0-620-56589-9 ISBN (ebook): 978-0-620-56590-5 About the Southern Africa Litigation Centre The Southern Africa Litigation Centre (SALC) promotes human rights and the rule of law through litigation support and training in Southern Africa. SALC’s International Criminal Justice Programme monitors international justice and its development in Southern Africa. SALC’s objective is to ensure that Southern African states are fully aware of their legal obligations and through litigation, research and advocacy encourages Southern African states to give effect to these obligations. This Report was written by Christopher Gevers of the University of KwaZulu-Natal and Alan Wallis and Caroline James from SALC, with input and guidance from SALC’s executive director, Nicole Fritz. The Report was edited by Lorraine Kearney. SALC would like to thank Freedom House and Trust Africa for supporting this initiative. It would also like to thank those organisations that provided valuable insight which assisted in the preparation of this Report. For more information or to request a copy of this Report please contact: The Southern Africa Litigation Centre 2nd Floor, President Place Hood Avenue Rosebank Johannesburg South Africa Website: www.southernafricalitigationcentre.org Email: [email protected] Telephone: +27 11 587 5065 Foreword Judge Sanji Mmasenono Monageng The entry into force of the Rome Statute of the International Criminal Court in 2002 is likely the most significant event in the coming-of-age of international criminal justice. Many have thought this because it established the first ever permanent court tasked with adjudicating international crimes. Certainly this is an enormous development. But the greater significance of the Rome Statute may be its recognition that the primary location in which international criminal justice is to be secured is the state most directly affected. Only if that state is unwilling or unable genuinely to carry out investigations and prosecutions is the ICC authorised to intervene. It is this – called the principle of complementarity – that is the real hallmark of international criminal justice today. That complementarity is meaningfully realised requires not only that states ratify the Rome Statute, but that they implement domestic legislation, and that they appoint and apportion sufficient resources to persons and bodies, who have the requisite expertise, tasked with the specialised functions of conducting domestic investigations and prosecutions. That these steps happen, and once put in place, that they aren’t merely for show but are properly used, requires political will. Civil society’s efforts are absolutely crucial to securing that political will. This report is to be welcomed for demonstrating how civil society actors across the African continent have, through different initiatives, successfully intervened to secure domestic realisation of international criminal justice. The objective of the report is to inspire other civil society actors to more forcefully enter this field, by showing how they might induce their governments – through engagement and advocacy, and sometimes through litigation – to meet the obligations of complementarity. The report’s focus is on Africa and African civil society – not because there is any belief that the focus of international criminal justice should exclusively be Africa. Of course, it shouldn’t and can’t be. But too much of the debate on international criminal justice and Africa has been presented in negative terms. The fact is that Africa has made a substantial intellectual investment in the international criminal justice project: vocal during the Rome Statute negotiations, the Africa bloc was critical in fending off interventions that would have resulted in a less independent court. Africa also represents the largest regional bloc of states parties to the ICC. Its citizens are represented at all levels of the staff comprising the ICC. In the landscape of global governance, the ICC represents an unprecedented advance – it is a development in which Africa has had a chance to play a critical role and it has seized that chance. It would be a tragedy were Africa to pull back on it substantial investment now. Not only for the global ramifications. Decades of underdevelopment have left African states with rule of law challenges, to greater and lesser degrees. Domestication of international criminal justice can serve not only to secure accountability for the most heinous crimes, but can also spur systematic legal reform, helping strengthen domestic legal systems and shore up the credibility of local institutions. My hope is that this report helps make those gains apparent and emboldens state actors and civil society across the African continent to make international criminal justice a domestic reality. Sanji Mmasenono Monageng Judge of the International Criminal Court May 2013 Table of Contents 1. Introduction 2 Overview of the Report 2 International Criminal Law – The Basics 4 What is International Criminal Law? 4 What are International Crimes? 4 International Criminal Law – A Brief History 4 Where does International Criminal Law Come From? – Sources of International Criminal Law 6 2. International Criminal Justice – A Matter of National Importance 7 Why Punish International Crimes? 9 3. The Rome Statute and the International Criminal Court – An Introduction 12 Introduction 12 The Rome Statute of the ICC: From Paper to Practice 13 Cases Before the ICC 18 The Role of States under the Rome Statute – Cooperation and Complementarity 22 4. International Criminal Justice and Africa – The State of Play 24 International Criminal Justice in Africa – A Snapshot 24 Deconstructing the Relationship between Africa and the International Criminal Justice Project 26 African States 27 The AU 27 The UN Security Council 27 The ICC 27 Disaggregating the Issues in the Africa-ICC Relationship 29 Africa v The ICC or AU v Security Council? 30 Is the ICC Targeting Africa? 30 The Current State of Affairs 31 5. The Role of Civil Society 37 Civil Society: A Force to be Reckoned With 37 Conversations with African Civil Society – Challenges 39 Bottom-Up – Bringing International Criminal Justice Home 40 International Criminal Justice in Africa – Problems of Perception and Political Unwillingness 41 The African Network on International Criminal Justice – Strength in Numbers 43 6. Building Legal Architecture, Human Capacity and Political Will 44 ICC Implementing Legislation in Africa – An Overview 44 South Africa 47 Kenya 47 Uganda 48 Mauritius 48 Senegal 48 Burkino Faso 48 Getting More Implementing Legislation Drafted 49 Bringing the Rome Statute Home 49 The National Implementing Legislation Database 50 The Next Step: Building the Institutional Architecture, Human Capacity and Political Will 51 7. Ensuring Cooperation with the ICC 54 Introduction 54 The Cooperation Record of African States 55 The Role of Civil Society: The Bashir Example 55 Addressing Non-Compliance 56 The AU Non-Cooperation Decisions 57 Bashir Travel Map: The Bad 58 Chad 59 Kenya 2010 Visit 59 Djibouti 2011 Visit 59 Malawi 2011 Visit 59 Bashir Travel Map: The Good 60 South Africa Arrest Warrant 61 Kenya Arrest Warrant 61 Malawi, Botswana and the AU Summit 61 CASE STUDY 1: KENYA – THE BASHIR ARREST WARRANT: CoopERATION IN THE COURT ROOM 62 Background 62 Kenya Section of The International Commission of Jurists v Attorney General & Another: 62 The Judgment’s Significance and Key Findings The Rome Statute is Part of Kenyan Law 62 Civil Society may apply for a Provisional Arrest Warrant under the International Crimes Act 63 The Relevance of Immunity 64 The Relevance of the AU Decisions and Regional Stability 65 Lessons Learnt 65 8. Bringing Justice Home: Complementarity and Capacity Building – Civil Society In Action 68 CASE STUDY 2: SOUTH AFRICA – COMPLEMENTARITY IN THE COURT ROOM: THE ZIMBABWE TORTURE DOCKET 70 Background 70 SALC & Another v NDPP & Others : The Judgment’s Significance and Key Findings 72 The Judgment – Key Findings and Significance 72 The Legal Standing of Civil Society to Bring Challenges of this Nature 73 The Nature and Extent of the Obligation on the South African Authorities to Investigate and Prosecute 73 International Crimes The Threshold for Investigations 74 The Jurisdictional Remit of South Africa's Investigating and Prosecuting Authorities 74 The Relevance of Political Concerns 75 The Significance and Impact of the Decision 76 South African Government Appeals Zimbabwe Torture Case 76 Lessons Learnt 77 A Decision Relevant Beyond South Africa? 78 CASE STUDY 3: DRC – COMPLEMETARITY IN ACTION: THE MOBILE GENDER COURTS 79 Background 79 How Do they Work? 79 What Were the Project’s Goals? 80 What Jurisdiction Do they Have? 80 Have there Been Many Prosecutions? 80 Are the Courts Empowered to Apply International Law? 80 What Aspects of the DRC Legal System Enable these Courts to Prosecute International Crimes? 80 A Case that Stands Out: Fizi 80 What other Impact – Beyond Prosecutions – Has the Project Had? 81 What Makes these Courts so Ground-Breaking? 81 What are the Tangible Consequences and Successes of the Courts? 81 Can this be Replicated for other International Crimes
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