Promoting Accountability under International Law for Gross Human Rights Violations in Africa Promoting Accountability under International Law for Gross Human Rights Violations in Africa Essays in Honour of Prosecutor Hassan Bubacar Jallow Edited by Charles Chernor Jalloh Alhagi B. M. Marong LEIDEN | BOSTON Library of Congress Cataloging-in-Publication Data Promoting accountability under international law for gross human rights violations in Africa : essays in honour of prosecutor Hassan Bubacar Jallow / edited by Charles Chernor Jalloh, Alhagi B. M. Marong. pages cm Includes bibliographical references and index. ISBN 978-90-04-27174-6 (hardback : alk. paper) — ISBN 978-90-04-27175-3 (e-book) 1. International crimes—Africa, Sub-Saharan 2. International criminal courts—Africa, Sub-Saharan 3. Prosecution (International law)—Africa, Sub-Saharan 4. Jallow, Hassan B. 5. Judges—Africa, Sub-Saharan—Biography. I. Jalloh, Charles, editor. II. Marong, Alhagi B. M., editor. III. Jallow, Hassan B., honouree. KQC982.I57.P755 2015 341.4’80967—dc23 2015020181 This publication has been typeset in the multilingual ‘Brill’ typeface. With over 5,100 characters covering Latin, ipa, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. isbn 978-90-04-27174-6 (hardback) isbn 978-90-04-27175-3 (e-book) Copyright 2015 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper. Contents Foreword by Sir Dawda Kairaba Jawara ix Foreword by Judge Navi Pillay xii Preface and Acknowledgments xix Hassan Bubacar Jallow: A Biographical Summary xxvIi Abbreviations xxviIi Notes on Contributors xxxI part 1 Hassan Bubacar Jallow – The Man 1 Hassan Bubacar Jallow: The Man on a Journey for Justice 3 Cherno S. Jallow, QC 2 Hassan Bubacar Jallow: The Man behind the Action 7 Murtaza Jaffer 3 Justice Hassan Bubacar Jallow’s Contribution to the Development of Law in The Gambia: The Supreme Court Years 14 Ousman A. S. Jammeh 4 Towards Reviving Legal Professionalism and the Need for Ethical Leadership 35 Aboubacar Abdullah Senghore Part 2 The Role of the International Prosecutor 5 The Role of the International Prosecutor as a Custodian of Global Morality 47 Bankole Thompson 6 Selecting Cases at the International Criminal Tribunal for Rwanda 58 William A. Schabas vi contents 7 The Experience of the Office of the Prosecutor of the International Criminal Tribunal for Rwanda Concerning Arrest Strategies and Lessons Learnt for the Office of the Prosecutor of the International Criminal Court 71 Phakiso Mochochoko Part 3 Institutional Dimensions of International Criminal Justice 8 The ICC’s Twelfth Anniversary Crisis: Growing Pains or Institutional Deficiency? 93 M. Cherif Bassiouni 9 Protection of Populations against Atrocity Crimes: The Role of Regional Organizations 103 Adama Dieng 10 The Contribution of the ICTR to the Rule of Law 118 Leila Nadya Sadat 11 The Legacy of International and Hybrid Courts – Are Human Rights More Respected? A Tribute to Justice Hassan B. Jallow 130 David Tolbert and Laura A. Smith Part 4 Substance and Process in International Criminal Justice 12 An Unbreakable Thread? The Presumption of Innocence in International Law 157 Karim A. A. Khan QC and Dato’ Shyamala Alagendra 13 Cumulative Charges under International Criminal Law Issues and Perspectives 201 Bongani C. Majola contents vii 14 Permissibility of Convictions for Genocide and Conspiracy to Commit Genocide in Respect of the Same Events 222 Roman Boed 15 The Taylor Case Aiding and Abetting, “Specific Direction” and the Possibility of Negligence Liability for Remote Offenders 237 Frédéric Mégret and Siena Anstis 16 The Law and Politics of the Charles Taylor Case 270 Charles Chernor Jalloh Part 5 Gender-Based Crimes under International Criminal Law 17 The Sexual and Gender-Based Crimes Policy Paper of the Office of the Prosecutor of the International Criminal Court 327 Fatou Bensouda 18 Challenging Impunity for Crimes of Sexual Violence The Efforts of Prosecutor Jallow to Set the Record Straight 355 Linda Bianchi 19 Justice Hassan Bubacar Jallow and Gender Justice in International Criminal Prosecutions 375 George William Mugwanya Part 6 Concurrent Jurisdiction between National and International Courts 20 Transfer of Cases under the Jurisprudence of the ICTR and Lessons Learnt for the ICC 409 Alhagi B. M. Marong and Charles Chernor Jalloh viii contents 21 Justice Hassan Bubacar Jallow’s Contribution to International Criminal Justice An OTP Perspective 440 Alex Obote-Odora 22 Monitoring and the Referral of Criminal Cases between Jurisdictions An ICTR Contribution to Best Practice 478 Joanna Harrington Part 7 International Law, Human Rights and Governance 23 Justice for the United Nations: A Quiet Revolution? 501 Geoffrey Robertson 24 Borrowing International Human Rights Law Some Examples from the Doctrine of the Margin of Appreciation in the African Charter on Human and Peoples’ Rights 517 Rachel Murray 25 From Coup Reaction to Coup Prevention 533 Christopher Waters 26 International Criminal Law and Refugee Law: Lessons Learned 548 Joseph Rikhof 27 African Languages in International Criminal Justice The International Criminal Tribunal for Rwanda and Beyond 578 Leigh Swigart Index 613 Foreword Alhaji Sir Dawda Kairaba Jawara Former President of the Republic of The Gambia I am greatly honoured to write this Foreword to the Collection of Essays dedi- cated to Justice Alhaji Hassan Bubacar Jallow, currently Chief Prosecutor of the United Nations International Criminal Tribunal for Rwanda and the Mechanism for the International Criminal Tribunals. I take this opportunity to congratu- late the editors of the volume for their initiative. Hassan’s long-standing dedi- cation to domestic and international public service deserves nothing less. I have known Hassan for many years. In 1983, in my capacity as President of the Republic of The Gambia, I had the honour of appointing him as Acting Solicitor-General and Legal Secretary of The Gambia, a position in which he was substantively confirmed the following year. It was the first in many impor- tant appointments to follow over the next ten years, both in the Government of the Republic of The Gambia and the ruling People’s Progressive Party (PPP). On Monday 9th July 1984 I again had the honour to invite Hassan to assume the post of Attorney-General and Minister of Justice for The Gambia. At barely 33 years old, I knew he was young compared to the rest of his cabinet colleagues. However, I also knew he was eminently qualified and ready to assume that function, having distinguished himself over the seven-year period for which he had served at the Ministry of Justice in the capacities of State Counsel, Senior State Counsel, Principal State Counsel, Registrar General and Solicitor-General & Legal Secretary. I was certain that the Government needed an infusion of both young talent and fresh ideas to manage our program of economic recovery and societal progress under a private-sector led model of economic governance. The government also needed a firm and steady hand at Justice to continue to guarantee fairness and accountability in dealing with the aftermath of the tragic events of July 1981. Over the next ten years, ending in 1994 – for I had the privilege of renewing Hassan’s appointment as Attorney General and Minister of Justice in 1987 and again in 1992 – Hassan served his country and indeed the African continent and the international community with great distinction. On several occasions during this period, I also had the privilege to designate him to oversee the government whilst I was out of the country. That was an indication of my confidence in his ability and commit- ment. The majority of the chapters in this volume reflect on his contributions at the international level. Let me, however, also dwell on the many important legal and institutional reforms that he spearheaded in his native country, x foreword The Gambia. These strengthened our credentials as a Government which operated on the basis of respect for the rule of law, human rights and good governance. Hassan’s work, in line with the policies of my government on the drafting of the African Charter on Human and Peoples’ Rights, the establishment of the African Centre for Democracy and Human Rights studies in Banjul as well as other initiatives within the Commonwealth, contributed immensely to mak- ing The Gambia the hub for human rights advocacy, research and policy devel- opment in Africa. His support for my initiative to abolish the death penalty in The Gambia was immensely valuable in seeing its abolition in 1993. I now look back over the ten-year period from 1984 to 1994 as perhaps the period during which The Gambia took some of its most important steps towards solidifying the legal foundations for sound macro-economic