inteRnational sYMposiuM

afrIca GrouP for JusTIce and accounTabIlITy

Towards a sysTem
of InTernaTIonal
JusTIce
18 - 19 ocTober 2016
ARUSHA | TANZANIA
Towa rd s a Sy st em of Int e r n at i on al Ju st i c e
inteRnational sYMposiuM
afrIca GrouP for JusTIce and accounTabIlITy
Towards a sysTem
of InTernaTIonal
JusTIce
18 - 19 ocTober 2016
ARUSHA | TANZANIA
rationale for an
international symposium:
toWarDs a systeM of
international JUstiCe
the past two decades have witnessed
remarkable developments in international
criminal justice, including the birth of the
ad hoc tribunals for the former yugoslavia
and rwanda, the establishment of hybrid
tribunals in sierra leone and Cambodia,
the prosecution of terrorist acts in lebanon,
and the creation of the first-ever permanent
international Criminal Court (iCC) in the
Hague to conduct investigations and trials
of crimes perpetrated across the world.
the presence of international criminal
justice is stronger now than ever. today,
calls for international criminal justice
immediately follow in the wake of political
violence, irrespective of where it erupts.
institutions such as the iCC are seen as first
responders to violence and conflict around
the world. Justice is not only an expectation
of victims and survivors of mass atrocities
around the world, but also an indelible part
of the international communitys response
to international crimes and systemic human
rights abuses.
yet, as things currently stand, the question
that still remains is whether a system of
international justice truly exists. for such
a system to exist, it must be dependable,
consistent, and permanent. nevertheless,
there is a significant gap between the
supply of international criminal justice
and the demand for it, leaving millions
across the world with unmet expectations.
accountability for international crimes
war crimes, crimes against humanity,
and genocide remains piecemeal and
partial. it only happens in some places, for
some people, some of the time. for every
situation in which a degree of justice is
meted out, there are a dozen others which
are overlooked or find themselves outside
the reach of global justice. Both critics and
proponents of international criminal justice,
and the iCC in particular, can agree on
these realities. so where does the project
of international criminal justice currently
stand? What barriers stand between where
we are and the possibility of a coherent,
consistent system of international justice?
What is needed and what can be done to
construct such a system?
the Wayamo foundation decided to
convene a public symposium in arusha,
tanzania, on 18-19 october 2016 to
address these very questions.
the symposiums panels and participants
were asked to delve into key themes and
issues facing international criminal justice
today. these included the tumultuous
relationship between the iCC and africa,
the apparent rebirth of hybrid and ad
hoc tribunals, the domestic prosecution of
international crimes, and the importance of
a more holistic approach to international
and transitional justice. the goal of these
panels was to make a critical assessment of
the challenges and obstacles on the road
towards a system of international justice
which delivers on its promise to ensure that
accountability for mass atrocities is the
rule, and not the exception.
it was hoped that doing so would yield
feasible recommendations and a way
forward to the day when a system of
global justice is a reality of international
law and international politics.
Towa rd s a Sy st em of Int e r n at i on al Ju st i c e

AFRICA GROUP FOR JUSTICE

AND ACCOUNTABILITY
Towards a System of
International JusticE
DAY I
TUESDAY | 18 OCTOBER 2016

launched at The Hague in November 2015:
- Master of Ceremonies - indeed it was only four weeks short of its first
anniversary. Arusha marked the Groups second
Joseph Roberts-Mensah bi-annual meeting, with the first having been
held in Cape Town in March. In addition to its
strategic meeting and symposium, it would also
- Opening session - be hosting a 2-day capacity-building workshop
on crime scene investigation.
Welcoming remarks Why, she asked, had the symposium been
entitled Towards a System of International
Hassan Bubacar Jallow Justice? On the one hand it was necessary to
former Prosecutor at the International recognise the tremendous progress that had
Criminal Tribunal for Rwanda and been made in this direction; on the other hand,
International Residual Mechanism for however, one had to ask whether a system
Criminal Tribunals of international justice genuinely existed, and if
not, then what needed to be done to construct
such as system. What obstacles had still to be
overcome?
HBJ noted that six of the AGJAs full complement
of 12 members were present.
Aside from himself, these were Athaliah
Molokomme, Catherine Samba-Panza,
Mohamed Chande Othman, Richard Goldstone
and Femi Falana. The holding of the symposium
followed the previous days meeting, at which a
set of principles -to be known as the Kilimanjaro
Principles- had been drawn up, in line with the Bettina Ambach, Mohamed Chande Othman and Hassan Bubacar Jallow
Groups stated mission of supporting justice and
accountability. These read as follows:

Bettina Ambach
Director, Wayamo Foundation, Berlin
- Keynote address -
Hon. Mohamed Chande Othman
Chief Justice of Tanzania
----------
After welcoming all those present and explaining
that this was to be the second symposium of its
kind to be held by the Africa Group for Justice
Accountability (AGJA), Master of Ceremonies,
Joseph Roberts-Mensah, handed over to
opening-session Chairman, Hassan Bubacar
Jallow (HBJ).
HBJ briefly explained that, with the help of
its distinguished guests, the Wayamo/AGJA
symposium proposed to discuss how to
enhance and facilitate international criminal
justice. As the judicial capital of Africa and site
of so much jurisprudence, he felt that Arusha
was an extremely appropriate venue. He
then called on Wayamo Foundation Director,
Bettina Ambach (BA) to say a few words
of introduction.
BA began by thanking the Chief Justice and
his staff for all their help and co-operation.
The symposium, which would be discussing
themes around the subject of international
criminal justice, would not have been possible
without the generous support of its funders.
The AGJA had originally come together as
an independent body and been formally
The meeting had also reviewed the situation
The Kilimanjaro Principles on in Burundi. The AGJA was very concerned
International Justice and Accountability at the Parliaments decision to revoke
the Rome Statute and would be issuing a
statement to that effect.
The Africa Group for Justice and Accountability will:
HBJ now introduced the days keynote
1. Champion Justice and Accountability speaker, and remarked that, in view of
Promote efforts to ensure justice and accountability for perpetrators of the Chief Justices long experience and
international crimes. commitment, there could not have been a
better choice of speaker for the occasion.
2. Enhance Complementarity by Building Capacity
Enhance complementarity by providing expertise, promoting the Keynote address*
establishment and strengthening of effective domestic and regional
justice mechanisms. Hon. Mohamed Chande Othman
Chief Justice of Tanzania
3. Support the International Criminal Court and Universal
Ratification of the Rome Statute I wish to thank the organisers for inviting me
to honour this international symposium with
Encourage a positive and co-operative relationship between African a keynote address. Before I do so, allow
states and the International Criminal Court as well as advocate universal me to extend a word of warm and cordial
ratification of the Rome Statute. welcome to distinguished participants, to
Tanzania and to this exotic city of Arusha.
4. Promote Facilitation, Mediation and International Co- I hope the serenity of this area will energise
operation your minds and spirits for a profitable
Support international co-operation and offer independent expert advice, engagement. I wish to recognise the eminent
panellists who have kindly accepted to
facilitation and mediation to African states, the African Union, the
join this symposium and to share their vast
International Criminal Court, and the international community. experience. I understand they will also be
sharing the trade secrets of mass-crime
5. Foster Transparency and Open Dialogue criminal investigations at the capacity
Foster open, transparent dialogue on the role and impact of building workshop. I sincerely thank the Africa
international justice in Africa, provide open forums where African states,
citizens and organisations can discuss African and global perspectives on
justice and accountability.
* NOTE: Owing to a technical hitch, the public address system rendered much of the Chief Justices address barely audible. Accordingly, for
the benefit of those who had difficulty in hearing it in full, it is now reproduced from his notes
Group for Justice and Accountability and
Wayamo for organising this well-structured
and professional encounter.
Distinguished participants,
The theme of this conference is not
altogether novel. Its recurrence and tenacity
is a clear reflection of its importance and
even sensitivity for evident reasons.
Even with an unparalleled development
of international criminal justice since
Nuremberg, the international community
continues to face the challenge of how
best to legitimate international justice in
an environment where there is an ever-
growing sense that national sovereignty is
being relegated and subjected to the rigid
strictures of supra-national institutions.
And it is not just in matters of justice in the
strict legal sense. As far back as January
1980, the founder President of Tanzania,
Mwalimu Julius Nyerere, in an unusual
reaction to how the International Monetary
Fund was exercising its powers and authority
on the economies of the developing
countries, observed that the IMF was not
an international ministry of finance! To
Nyerere, the issue was not about Tanzania
being a State Party to the IMF Articles of
Agreement; it was about IMFs exercise of its
authority without due regard to Tanzanias
sovereign rights. One could even venture to
conjecture whether Brexit does not fit into
such mode of thinking and reaction!
The Founding Prime Minister of Singapore,
Lee Kuan Yew observed back in 1962
that the acid test of any legal system is
not the greatness or the grandeur of its
ideal concepts but whether, in fact, it is
able to produce order and justice. An apt
statement when one considers the state of
the system of international justice - and the
theme of the symposium: Towards a system
of international justice.
Thus, if we revert to Lee Kuan Yews
precept, we may additionally ask if
todays international justice is indeed
producing order and justice. This dictum,
if I may call it that, exposes us to one
rather subjective question, namely, what is
order? That is international criminal order.
Yet it is a fundamental inquiry which has
often emboldened the tension between
international justice and state sovereignty,
especially in Africa.
Distinguished Participants,
I think it is important for this symposium to
interrogate further this question about
order as it goes to the heart of what Nobel
Laureate, Amartya Sen, in his magisterial
book entitled, The Idea of Justice, describes
as the importance of impulses and mental

-4- -5-
Towa rd s a Sy st em of Int e r n at i on al Ju st i c e
attitudes in assessing and examining the
advancement of justice and the removal of
injustice in the world. It seems that there is
wide approval that an effective and efficient
system of international justice should also be
part of a local DNA; otherwise it turns into an
anti-body and can potentially be rejected.
What all this means, I think, is that an
understanding of justice should not escape
its being contextualised with national roots.
One may even interrogate: is it not the
question of order in the sense of state
sovereignty rights succumbing or being
subjected to controlling supra-national
instances and authority such as the ICC,
that is one of the central questions which
currently partly bedevil the relationship
between the ICC and the African Union (AU)
(in which 34 African States have ratified the
Rome Statute) and its leaders. The AU and its
leadership have asked and are looking for a
satisfactory response: why, for example, if the
ICC is legitimate, have Russia, China and the
USA yet to sign the Rome Statute?, the very
States which are members of the UN Security
Council that has referral and deferral powers
under the Rome Statute.
In the words of former President of South
Africa, Thabo Mbeki, when the African Union is
not asking for charges to be dropped against
an ICC indictee, it is puzzling to the African
Union why the Security Council did not defer
a situation of an ongoing conflict in Africa for
a year, in the quest for peace. If this window
for non-State Parties, not only to influence, but
also to have a decisive input in a court it is
to be fully appreciated, a need for deeper
reflection, understanding and consensus is
called for.
There are certain situations (Afghanistan,
Georgia, Sri Lanka, Syria, Yemen) and, in
particular, regions that ought to have been or
to be at the ICC and to have already matured
(and yet are not or have not). To add to
David Boscos observations, why is it that the
ICC has no desire to provoke Washington,
Beijing or Moscow or to act in cases in which
geopolitics are intense? The symposium
offers an appropriate platform for an informed
conversation on all these and other pertinent
issues, with the caveat that there may not be
a monolithic African stand on each and every
subject.
Distinguished Participants,
One of the major issues concerning account-
ability and justice, which I am sure will not dodge
your critical deliberations is the independence,
impartiality and integrity of national, regional
and international judicial institutions, and their
organs and members in particular, in the face
of interference with and politicisation of their
mandates and processes. Can international
justice be truly apolitical? Is the politicisation
of justice not open to a legitimacy crisis? How
can international justice be better insulated
from undue political or external pressure
in accountability for atrocity crimes? The
President of the ICC could not have said it
any better in her opinion in the Guardian (19
April 2016): States establish it, but they must
respect its judicial independence.
Another interconnected issue on international
justice which has emerged at times and
which has touched raw nerves in Africa, is
the relationship between peace, security
and justice. It invites close consideration. The
subject has assumed prominence in Africa
because conflicts do occur. It is a fact that
some are ongoing. However it is not an
African monopoly. It has also emerged in the
Mohamed Chande
Othman: In international
and criminal justice, per-
ceptions are most critical.
They affect legitimacy. The
question is not whether
the perceptions are false
but whether stakeholders
have a responsibility to
address them. No doubt
they have.
recent peace process in Colombia, which
has undergone half a century of armed
conflict. The thorny question often posed in
terms of ending hostilities, stopping atrocities,
peace-making and accountability is whether
justice should triumph over peace or peace-
making should momentarily supersede justice
or transitional justice arrangements. Posed
another way, if the two are complementary,
how can the two be mutually reinforcing?
Again, the symposium is best posed to
address this recurrent challenge, with a view
to enhancing the rule of law, combating
impunity and the establishment of durable
and sustainable peace.
Distinguished Participants,
African States are parties to dozens of
international and regional humanitarian and
human rights conventions. Their Constitutions
enshrine and guarantee human rights and
fundamental freedoms. Justice is among
the purposes of the African Union, whose
core values include the rule of law, human
and peoples rights and the fight against
impunity. Article 4 (h) of the Constitutive Act of
the African Union is progressive to the extent
that it incorporates the right of the Union to
interfere in a Member State, pursuant to the
decision of the Assembly in respect of grave
circumstances, namely, war crimes, genocide
and crimes against humanity.
It is most befitting that the symposium will
also examine regional judicial institutions, one
of which is the African Court on Human and
Peoples Rights (ACHPR), whose establishing
-6-
Protocol has been ratified by 30 of the 54
African States. Following the withdrawal of
Rwanda in 2016, it is worth observing that
currently only 7 of the 54 African States
(Benin, Burkina Faso, Cte dIvoire, Ghana,
Mali, Malawi and Tanzania) have made a
declaration under Article 34 (6) of the Protocol
granting competence to the Court to receive
applications from individuals and NGOs. This
jurisdiction, of course, is in addition to that of
States, which have automatic access to and
competence at the ACHPR.
One finds it edifying that as of 11 October,
2016, of the 119 applications to the Court, 110
(92%) we relodged by individuals, 5 by NGOs
and 3 by the African Commission on Human
and Peoples Rights (Banjul Commission). NGOs
have also sought 9 Advisory Opinions. What
is also most instructive is that while no AU
Member State has filed an application against
another State for an alleged human rights
violation, applications by individuals and NGOs
account for 97.47% of the Courts cases.
Independent corroboration of this trend is also
to be found in the European Court for Human
Rights (ECHR), where inter-State applications
are similarly lodged very seldom. I should also
think that it is for the generous price rather than
the penalty of being the host State that 80
of the 119 (67%) applications by individuals
before the Court spring from Tanzania.
One of the clear and pertinent issues that
emerges from the above is the whole question
of limited access of individuals and groups to
regional and international judicial instances,
and in particular by victims of international
humanitarian and human rights violations.
On the ACHPR, the siren calls by Prof. Makao
Mutua that it is an assault on the human rights
system to condition access of individuals and
NGOS to the Court to a State Party making
a declaration to that effect are telling; as
are those of Dan Jama that to rely on the
predator State to institute cases before the
African Court may well be a case of a poacher
turned gamekeeper. Is the time not ripe for
permitting individual and group automatic
competency before the Court, rather than
subjecting it to an optional regime? I flag this
issue purposely in the hope that it may interest
your deliberations and particularly as regards
the competence of the anticipated African
Court of Justice and Human Rights and the
architecture and substance of regional and
international justice.
Distinguished Participants,
The propensity is very high when we converse
in a symposium of a like-minded conclave
such as this distinguished one, to be self-
convincing on the virtues of international
justice and its instances, including the ICC.
Any informed student of science or legal logic
can postulate that proposition. In international
justice as in national justice, the perception
of the public, witnesses and survivors affected
by atrocity crimes is most critical. It affects
legitimacy.
The question here, as properly posed by
Sehan Aref, is not whether the perceptions
are false; the more penetrating question
is whether the ICC and other stakeholders
have a responsibility to address them. No
doubt they have. The power of the social
media is an important factor to be borne out
in perception. Justice, at whatever level, must
continuously enjoy and retain the full trust and
confidence of the African public. International
justice cannot exists or flourish without public
buy-in, engagement and participation.
A glance at the existing material on
perceptions of international justice in Africa
is that it is seen in some constituencies as
being selective, employing double standards,
insensitive to national and local needs, distant,
expensive, imposed, externally driven and
dominated. Examples of these perceptions
abound. It has been proposed by the AGJA
that some of these perceptions are the
result of misinformation, misrepresentation or
misunderstanding.
Distinguished Participants,
For the symposium these concerns and issues
arise: does international justice truly enjoy
wide public confidence and trust in Africa?
What about that of victims and survivors?
Has the best of outreach efforts been made
when, for example, a renowned African
political-liberation party avows that the ICC
is no longer useful for the purposes it was
intended? The ICC, remarked UN Deputy
Secretary-General, Lord Mark Malloch-Brown,
got itself on the wrong side of a PR (and
political) campaign in Africa. How can this
symposium be a guide, so that it arrives on
the right side of public relations in Africa? Why
has the African Fourth Estate not been very
audible, when it is more vocal and virulent on
other democratic fronts?
Mohamed Chande Othman
Distinguished Participants,
Going forward, it is important for this
symposium to reflect on the system of
international justice as it begins to extend its
role beyond what African Governments may
view as its traditional mandates.
Distinguished Participants,
Inasmuch as there have been numerous
dialogues and conversations, at different
fora, about international justice, the role of
the ICC, the position of domestic courts in
adjudicating international crimes against
humanity, issues of complementarity,
including positive [complementarity],
where support for devolution of judicial
authority for atrocity crimes is best assured
and reinforced, the establishment of ad hoc
and hybrid tribunals and transitional justice
mechanisms such as Truth, Reconciliation
and Compensation Commissions, and the
deployment of International and National
IHL and HRs Commissions of Inquiry, the
interconnected themes of the seven panels
of the symposium invite your close scrutiny.
Distinguished Participants,
It would be felonious on my part if I did
not briefly share these additional remarks,
being in Arusha, the seat of the East
African Community, with a population of
167 million inhabitants. On 17th August
2015, its newest member, the Republic
of South Sudan, formally committed itself
to the establishment of transitional justice,
accountability, reconciliation and healing
mechanisms as part of the resolution of the
recurring conflict in Southern Sudan. These
include the Hybrid Court for Southern Sudan
(HCSS) to be established by the African Union
and the Truth, Reconciliation and Healing
Commission (TRHC). Also worthy of applause
-7-
is the establishment in April 2015 of the
SCC within the national court system of the
Central African Republic, charged with the
investigation and prosecution of crimes in
the CAR since 2003. These developments
represent a rebirth of hybrid tribunals and
renewing of transitional justice. They are a
piece of good news.
As jurists and human rights activists, we must
sustain the search for a more acceptable,
holistic and legitimate system of international
justice, one that has room for cross-fertilisation
of justice. As I stated at the beginning of
my remarks, State sovereignty is gaining
momentum as a radical form of nationalism.
Brexit is one of its recent symptoms. It seems
that nation-states will increasingly seek to
reclaim and retain control over economic,
legal and judicial matters. Already, we
witness how, in a number of countries,
populist ideas about nationalism, including its
aggressive and ethno-centric kind, are in the
ascendancy: in the United States, as clearly
manifested in the character of the ongoing
presidential campaign, in Europe (France and
the Netherlands, in particular), and Africa is no
longer the exception.
The future of a more viable and effective
system of international justice must quickly
move towards striking a delicate balance
between its legitimate contribution to the rule
of law, accountability and the fight against
impunity and respect for the pursuit of greater
nation-state jurisdictional control over atrocity
crimes. For one, as highlighted in the ICC
Prosecutors own policy paper (2003), the
ICCs effectiveness and major success is to be
through the absence of trials by the ICC, as a
consequence of the effective functioning of
national systems. The Prosecutor too correctly
acknowledges that ending impunity is not the
preserve of any one institution.
States and their accountability institutions
must in the final analysis be willing and
able through effective national systems to
hold responsible all, including those with the
greatest responsibility for mass atrocities.
The words of U.S. President Barack Obama
to both the Ghanaian Parliament and
the AU Assembly of Heads of State and
Governments echo a similar message, Africa
doesnt need strongmen; it needs strong
institutions. To achieve this, law enforcement
agencies in African States require increased
public expenditure at sustained levels
by African Governments. Political will is
imperative. Partnership in capacity building is
indispensable.
The AGJA and Wayamo look forward to your
counsel and recommendations on the way
forward towards international justice, so that
one day we may witness a system of global
justice as a reality in international law and
international politics.
I WISH YOU SUCCESSFUL DELIBERATIONS!
I THANK YOU.
Towa rd s a Sy st em of Int e r n at i on al Ju st i c e
THE PANELS
PANEL I:
The promise and limitations of the
International Criminal Court: improving the
relationship be-tween Africa and the ICC
- Moderator -
Mark Kersten
Munk School of Global Affairs, University
of Toronto; Research Director, Wayamo
Foundation
- Panellists -
Jean Yves Adou
Head of Division, Knowledge Management,
Monitoring & Evaluation and Review
Support, African Peer Review Mechanism
secretariat, Johannesburg
Kirsten Ainley
Assistant Professor of International Relations
and Director of the Centre for International
Studies, London School of Economics
Richard Goldstone
Former Chief Prosecutor of the United
Nations International Criminal Tribunal for
Rwanda and the former Yugoslavia
Rod Rastan
Legal Advisor, Office of the Prosecutor,
International Criminal Court
----------
Mark Kersten (MK)
Remarking that these were difficult
times for international justice considering
Burundis initiative to withdraw from the
ICC, MK also noted that there were some
good developments, in as much as the ICC
was looking outside Africa at situations in
countries such as Syria, the Philippines and
Gaza. After quickly introducing the panel
members, MK went on to explain the rules
of the game, which were to apply for the
duration of the symposium, namely that
panellists would each have a maximum
of 5 minutes to address the designated
topic before answering questions from the
Moderator and the floor.
Richard Goldstone (RG)
Taking his cue from the title, RG stated
he would make four points, two dealing
with the promises and two dealing with
limitations of the ICC.
Promises:
Looking back in modern times, the
Nuremberg tribunals had essentially given
birth to the concept of international justice,
which had been protected under Article 6
of the Genocide Convention but had then
been reduced to deep slumber for half a
century, mainly as a result of the Cold War.
It had been resuscitated by the two ad hoc
tribunals and judicial processes mounted
in the aftermath of the conflicts in the
former Yugoslavia and Rwanda, and the
emergence of mixed or hybrid tribunals, as
in Sierra Leone. These developments had
culminated in the adoption of the Rome
Statute in 1998 and the setting-up of the
much acclaimed ICC. There was ample
evidence to show that the world today
could not do without the institution of the
ICC and its 124-strong membership of
sovereign nations.
Limitations:
On the limitations side, it had to be
acknowledged that there were obvious
and understandable objections by the
accused to facing justice, and so there
were problems in apprehending and
bringing such criminals to book, in that they
went into hiding or exile, and engaged in
what RG termed, contortions to avoid
justice, e.g., Miloevi, Karadi, etc. USAs actions.
However, the ICCs greatest limitation
was its complete and utter reliance
on governments, without whose co-
operation it was powerless. This was
both a limitation of and challenge to the
Court.
Kirsten Ainley (KA)
said that she wanted to say something
about the contemporary environment from
the perspective of international politics.
What we were seeing was, in her opinion,
the most challenging environment the
ICC had yet faced.
Great power division was more marked
than it had been for some considerable
time, e.g., the USA and Russia in particular
were finding it difficult to co-ordinate policy
in Syria. Even so, the general US-Russian
relationship had been deteriorating for
some time, as shown by the antagonism
in the US election debate. Moreover,
China was expanding its influence on
the international stage, an example of
this being its growing engagement with
UN peacekeeping missions (by supplying
more troops, police and observers to UN
operations than did the USA, UK or Russia).
These moves mattered both at a general
and more specific level. Generally, there
were many fissures in the international
system (there were some who even
claimed that the UN system of collective
security and human rights promotion was
collapsing, particularly because of failures
over Syria). As liberal international projects
suffered or stalled, there had been a
surge in claims around the importance
of sovereignty, which meant less support
-8-
for international bodies such as the ICC.
Specifically, when the permanent 5
Security Council members could not agree,
the ICC was unable to assume jurisdiction
over situations that involved countries (or
country nationals) which had not ratified
the Rome Statute. Furthermore, when
the UN Security Council had previously
referred situations to the Court (Darfur and
Libya), disagreements on the Council had
meant it was failing to give the Court the
necessary support. Indeed, the Court was
unlikely to exercise jurisdiction in a number
of instances, leading to a perception of a
two-tier system of justice.
The ongoing war on terror was making
it harder for international criminal
justice to seem to have any traction,
i.e., with actions committed by the USA,
UK, France, Russia, Syria and Saudi Arabia
often looking like egregious breaches of
international criminal and/or humanitarian
law yet possibly being within the law or
unlikely to be adjudicated in a court.
One body count had put the number of
casualties in the US-led war on terror at 1.3
million but there was almost no chance of
an international body ever examining the
its complete and utter reliance on governments,
Although the ICC was supposed to be
supported by its Assembly of State Parties,
another consequence of division in the
international system in the shape of a
lack of clear leadership meant that the
ASP had failed and was likely to continue
failing to give meaningful support to the
Court and enforce the duties of States
Parties (e.g., in the upcoming Kenya
referral). The repeated invitations to
Sudanese President al-Bashir from States
Parties was also undermining the ICCs
credibility.
All this meant that the ICC had been left
without powerful backing in the face of
an upsurge in sovereignty claims, and
some 10 years and a lot of hard work
later, was still in danger of looking
ineffective at best and like a tool of the
great powers at worst. The Court was
now facing its most challenging period.
Could it, KA asked, assert its relevance in
a world of escalating atrocity crimes, with
a UNO that seemed unable to prevent
or confront them, or support the Court
to prosecute them? Re-establishing the
Courts appeal to the broadest possible
number of African states (who had been
so powerful as advocates of a Court)
would therefore be an important move.
This, she felt, was still possible. In terms of
monitoring crises and wars, the attention
of the international community (and the
ICC) had expanded beyond the borders
of the African continent: the situations in
Syria and Yemen, the ICC investigation
in Georgia (the first outside Africa), the
statement by the ICC Prosecutor on the
Philippines the preceding week, either
demonstrated the necessity of a Court
with a global mandate or showed that the
ICC itself was ready to exercise a broader
mandate. In terms of the relationships that
the ICC could establish or re-establish with
those African States Parties most opposed
to the Court (in which civil society would
play a very important part), and in terms of
the international community being able to
heal its wounds, the next five years would
determine the trajectory of the ICC for a
very long time to come.
Jean Yves Adou (JYA)
As an economist sitting among lawyers,
JYA saw this as an opportunity to learn
about issues outside his area of expertise.
APRM and ICC:
shared objectives and vision
The African Peer Review Mechanism (APRM)
sought primarily to foster the adoption of
policies, standards and practices which led
to political stability, high economic growth,
Richard Goldstone: The ICCs greatest limitation is
without whose co-operation it is powerless.
sustainable development, and accelerated
regional and continental economic
integration, by promoting transparency,
accountability and public participation in
four areas, i.e., democracy and political
governance, economic governance and
management, corporate governance, and
socio-economic development.
In the context of democracy and political
governance, APRM assessments and
reviews focused, inter alia, on respect for
human rights, constitutional democracy
and the rule of law. The ICC, for its part,
sought to ensure that the worst perpetrators
were held accountable for their crimes;
it served as a court of last resort that
could investigate, prosecute and punish
perpetrators of genocide, crimes against
humanity and war crimes in an endeavour
to help promote peace and security. One
could therefore say that the two institutions
were pursuing shared objectives.
Moreover, alignment between the ICC
and AUs stated goals meant that African
countries had been supportive of the ICC
from the outset and were well represented
in the ICCs Assembly of State Parties.
Deterioration in AU/ICC relations
Relations between African governments
and the ICC had, however, deteriorated
as a result of differences over the ICCs
perceived approach to Africa. The AU
was concerned about the sequencing
of prosecutions undertaken by the ICC in
some fragile states, and also disagreed
with the ICC over the interpretation of
the Rome Statute as regards immunity
and sovereignty. These divergences had
impacted negatively on AU/ICC relations.
APRMs role
How could the APRM contribute towards
improving these relations? How could the
APRM complement the ICC and AU actions
for the achievement of the common goals
of promoting peace, security and stability
in Africa?
Since the APRM shared the same
objectives and vision with the ICC, it
could be used as a bridge between the
two approaches to reach the ultimate
goal of promoting peace, security and
stability in Africa. Through experience
sharing, reinforcement of best practices,
and peer pressure, common goals
could be achieved without recourse to
punishment.
The APRM had served as an early-warning
support of international criminal justice.
and conflict-prevention instrument. In
some countries, its findings had not only
warned of impending crisis (e.g., Kenya,
South Africa, Burkina Faso, Mali, etc.),
but when these crises had erupted, the
APRM findings had also provided a useful
framework for conflict resolution and
subsequent reforms.
APRM and ICC: building co-operation
The ICC might consider the expediency of
working with the APRM: close collaboration
and co-operation between the two could
help improve relations by bringing back
Africas trust.
Elise Keppler (EK)
EK chose to focus her remarks on two
competing and important dynamics that
had emerged in the ICCs relationship with
Africa in 2016, and how to respond.
On the one hand, there had been a real
intensification of the assault on the ICC
emanating from the AU, represented
by the January 2016 decision of the
African Summit deriving from Kenyas
last-minute proposal to empower the AU
Ministerial Committee on the ICC to look
at a comprehensive strategy that would
include ICC withdrawal. Although this
was not technically possible, inasmuch as
the AU had no authority to effectuate a
withdrawal, it was nonetheless a significant
development, since an AU call for
withdrawal would have a chilling effect
on the role that African States Parties
could play.
-9-
The flipside was the reaction to that
call because, for the first time in
recent memory, the July 2016 summit
had witnessed some African States
Parties joining Botswana (hitherto the
lone voice) in expressing vocal
support for the ICC, standing up and
rejecting a push for mass withdrawal.
These included Nigeria, Cte dIvoire,
Senegal and Tunisia. One could not
underestimate the potential significance
of this development in a climate where,
aside from Botswana, there had been
no vocal support for the ICC. In addition,
Burkina Faso, Cabo Verde, the Democratic
Republic of the Congo (DRC) and Senegal
had also entered reservations to the July
2016 summit AU decision on the ICC.
This presented both a challenge and
an opportunity. The challenge was the
ongoing push for consideration of a mass
withdrawal. For all states, groups and civil
society committed to advancing justice,
the key question was how this work could
be reinforced, cultivated, supported and
other States brought in, e.g., by helping to
build up a West African core of states in
EK had taken to heart the Chief Justices
words about the need to reflect on the
real problems of international justice and
the ICC, and have those conversations.
However this could only happen in an
environment where withdrawal was off the
table; and without the necessary vocal
support from some African governments
this would be very difficult indeed. More
information was needed on how those
states had been able to come to the fore
and support the ICC, and what could be
done to further strengthen that activity.
Rod Rastan (RR)
He would focus on the relationship with
Africa from the perspective of the ICC.
As regards the Courts apparent anti-Africa
focus and non-co-operation from African
states, in reality there had generally
been very good co-operation from
African countries, most recently Gabon,
on a whole range of issues, ranging from
referrals and arrests of ICC suspects to the
provision of judicial assistance in the form
of permitting access to official records and
summoning witnesses, etc. The campaign
waged at the AU level had basically
been about one case and recently, two
to three more (i.e., initially involving al-
Bashir in Sudan and then Kenyatta and
Ruto in Kenya). Apart from these instances,
there were no complaints from either
the remaining states or even from the
AU. Hence, it was only when the Court
looked at sitting government officials
that the system did not seem to work.
This might well be a matter for reflection.
Towa rd s a Sy st em of Int e r n at i on al Ju st i c e
The perception of the voice of Africa was
sometimes caricatured: Africa was not one
country, Africa was no monolith. There was
a significant range of divergence of views.
Moreover, the voices of civil society and
victims were also important. In essence,
the differences would appear to be driven
by one or two states.
Part of the reality of the discourse was
shaped by the true fact that the ICC
had indeed been primarily engaged
in Africa, so that this criticism was
correct. However, this was partly due
to history, i.e., the date when the Court
had become operational., e.g., if the
Court had started its work in the 1970s,
its focus might have been on Cambodia,
and if it had started in the 1990s, its focus
would have been on the former Yugoslavia
and then Rwanda. Apart from history,
another reason for having begun in Africa
was the requirement of complementarity,
in that the ICC stepped in where there was
an absence of national proceedings. So,
when it came to comparing the situations
in Uganda, the DRC and Colombia, the
difference was that national proceedings
were under way in the latter.
Not only were things changing in Africa
but, in the normal course of events, the
Court would inevitably be moving into
other areas, such as Georgia, Afghanistan,
Syria and Iraq. Half musingly, RR wondered
whether this might mean that, in a few
years time, the ICC would find itself facing
criticism for unduly focusing on the Middle
East or Central Asia.
Kirsten Ainley, Jean Yves Adou, Richard Goldstone, Mark Kersten, Elise Keppler and Rod Rastan
Before opening up the discussion
to the floor, Mark Kersten asked
each panellist a question.
MK: It seemed that a lot of the criticisms being
levied against the ICC were similar to those
he had personally experienced in the past.
Were these simply a rehash of old criticisms or
something new?
RG: His experience at the ICTY was in parallel
with what was currently happening with the ICC.
In his case, he had been accused of prejudice
against the Serbs. His reply at the time had been
that, if Serbia alone was being targeted, the
criticism might be justified, but if other trials were
being pursued, this would show that there was
no prejudice. In point of fact, the accusation
of bias was only a pretext, so that even the
existence of other cases would not mollify
the critics. What was really the problem,
however, was unfairness, when other
countries were being kept off the radar.
MK: If it was true that the ICC only reflected
the global balance of power, how did one re-
establish its appeal?
KA: The ICC did inevitable reflect power but
it was also able to push back, e.g., Fatima
Bensouda wanted the members of the UN
Security Council to get behind issues and
had reminded them of their responsibility. This
helped towards re-establishing the Courts
appeal. Things were going at a very different
pace in, say, Colombia and Uganda. The ICC
should be thinking about what kind of justice
was possible in conflict/post-conflict situations,
even if imperfect. It could, for example, engage
with the domestic process.
- 10 -
MK: There seemed to be two different things,
namely, perception and reality, i.e., on the one
hand, public condemnation of and opposition
to the ICC, and on the other, the perception
that RR had offered, one of co-operation
behind the scenes. If this was indeed true, why
was that cleavage so significant, and what
could be done to close the gap?
RR: He agreed with RG that often the criticisms
were just an excuse. Officials would always
come up with a case, e.g., PR firms were hired
to play the neo-colonial card. Some states
were willing to speak up; and, though
it was obviously important for African
states to show solidarity and not show
divisions, their statements were often
purely political and had no legal force,
no impact. In this regard, it was also vital
for prosecutors to talk to senior government
officials.
MK: How were important developments to be
moved into more acceptable news forms?
EK: Not only had Nigeria and Cte dIvoire
opposed the AU in the closed door sessions,
but some like Nigeria had even reinforced
and explained their stance publicly in their
local media. The fact that they had been
willing to go on record was important.
However, the issue of coverage was a
huge challenge. They were working on
giving a counterweight to the AU attacks
on the ICC but had found it very difficult to
get into the media because the impact of
the AUs allegation was immense. Individuals
and NGOs would never achieve the same
coverage as the AU could, thanks to its
expertise and level. In essence, there was a
relentless need for further information to be
put out there.
Q&A
A brief sampling of comments on some
points of interest from the floor
While the ongoing Gbagbo case was an
advancement of the complementarity
principle, in reality the Cte dIvoire had
refused to co-operate with the Court.
Further investigation would require co-
operation. Had the ICC relented in the
face of pressure?
RR: There was a new dynamism on the part
of African states to pursue these kinds of
cases (e.g., Habr). It was ICC policy not to
oppose any prosecution that was genuine.
The Court would therefore wait and see
what happened. It did indeed pose a
challenge to the Rome Statute system but
he nevertheless trusted that co-operation
would continue.
As regards the tension between Africa
and the ICC, was there any possibility
of reconciling two very different
conceptualisations about sitting heads
of state
RR: In domestic courts sitting government
officers were immune: the exception to
this was in international courts where sitting
officers were not immune. Hence, for the ICC
this was not a controversial matter. African
states were entitled to take their own
course but the ICC did not regard sitting
heads of state as being immune.
EK: This issue had also been debated at
the ASP but there was no broad-based
consensus to amend the Rome Statute.
African states, she noted, had taken a
different approach to the African courts.
KA: It was sometimes very useful not to
have heads of state protected: however,
even where they were not protected, it
was difficult to prosecute them. The African
Courts attitude ultimately meant that the
ICC was required to step in, something that
might enable the situation to move forward.
Parties expectations of the ICC: might
the ICC not be used by governments as
a tool against their opponents. Was it
not true that many African governments
were accusing the ICC of manipulation
when they themselves were attempting
to manipulate matters?
EK: This was a good point but, rather than
focusing on what states expected, it would be
better to concentrate on the victims. The AGJA
could issue a monthly column and highlight
contentious issues.
RR: While he agreed that expectations could
account for some referrals, the ICC was not
bound by a referral, e.g., Uganda. In Kenya,
the ICC had intervened and taken on both
sides. Another example was Afghanistan: here
powerful countries were involved but the ICC
had decided to go in nonetheless. The ICCs
fight was often a lonely one when it found itself
confronting government machinery. The Court
only had criminal jurisdiction. However, the more
cases the Court initiated, the more difficult it
would be for someone to say, why me?
KA: States were unlikely to refer unless it suited
them and they controlled the media, etc. The
Court should thus be aware of its political
role as a strategy to colour opinion. In Syria,
Assad might end up with some kind of role and
this would look extremely unfair, yet this was
realpolitik.
RG: All self-referrals were political!
Bias
RG: In Yugoslavia, when accused of bias by a
Serbian, he had said that being even-handed
meant dealing with comparable crimes evenly:
Serbia had committed the worst crimes,
and that was why the Serbians were being
prosecuted. Notwithstanding this, prosecutors
had to be sensitive and explain any apparent
imbalance.
- 11 -
Angela Mudukuti and Chris Gitari
Finally, Mark Kersten asked all
panellists to make one recommen-
dation to the ICC to improve its
relationship with African states, and
one recommendation to African
states to improve their relationship
with the ICC.
KA: The ICC should give as much room as
possible to regional and domestic courts.
Furthermore, the ICC should move its
operations on Africa to Africa. African states
could think about how to host trials.
JYA: The ICC should work with AU institutions
and African countries should open up to the
ICC.
RG: The ICC should be more understanding
about imbalances of concern to Africa.
The ICC should be more critical of the UN
Security Council for its lack of support.
EK: She wished to reinforce the point and
stress the need for more transparency from
the ICC. States needed to work with other
like-minded states to address and engage
on concerns, and get withdrawal off the
table.
RR: The ICC should focus on its mandate
and build up its caseload. States had to
break their silence.
Towa rd s a Sy st em of Int e r n at i on al Ju st i c e
PANEL II:
The revival of hybrid tribunals: competing
with or complementary to the International
Criminal Court
- Moderator -
Mark Kersten
Munk School of Global Affairs, University
of Toronto; Research Director, Wayamo
Foundation
- Panellists -
Philipp Ambach
Special Assistant of the President,
International Criminal Court
Brenda J. Hollis
Prosecutor, Residual Special Court for Sierra
Leone
Stephen Rapp
former Ambassador-at-Large for War Crimes
Issues, Office of Global Criminal Justice,
Department of State, United States of
America
---------
Mark Kersten (MK)
Some would say there was no real system
of international justice but rather a market
place of possible institutions for investigating
and prosecuting international crimes. In
addition, since 2014 a number of hybrid
tribunals had been proposed. How did this fit
in with a system of international justice: did it
complement or compete with the ICC?
Stephen Rapp (SR)
The challenge of a system as such was
how limited the ICC system was at the
present time in reaching situations where
there were atrocity crimes. Personally, he was
an advocate of hybrid tribunals: they were
consistent with complementarity in the ICC.
There were limitations to the Rome Statute,
in terms of events prior to 2002 and in
terms of the jurisdiction of the ICC. In Arusha,
85 of the 93 people charged had been
brought to justice in The Hague. In the former
Yugoslavia, every one of the 161 cases had
been resolved. The ICC, however, was far
more limited in terms of the volume of cases:
indeed, only four were currently pending on
appeal. It was an institution that was only
dealing with nine individuals on whom a final
judgment of conviction could be passed. Was
this, SR asked, really sufficient for a system of
international justice in the broader sense?
Complementarity under Article 17 meant
that there should be a genuine process at
the national level, and that the ICC would
only step in as a court of last resort where
there was a lack of capacity or will. Counting
the cases off, SR noted that: in Uganda,
where there was a complementary court
of sorts, there was just one upcoming case;
in the DRC, there were mobile courts and
military justice; in Guinea, there was a case
under investigation; and then there was the
Colombia situation. However, there was not
a great deal beyond that in the way of
complementarity. In essence, commitment
to complementarity at the national level
was somewhat limited.
The approach of mixed or hybrid courts
was, he submitted, a better model for
accomplishing our ends. In a conflict
situation, national courts did not function
properly, examples being the CAR and Cte
dIvoire. They had no capacity to deal with
powerful individuals and protect witnesses,
or even handle international cases, and so
this was where there was a space for special
courts and bringing in international capacity
and skills.
Then there was the issue of will, and more
Stephen Rapp: In essence, commitment to comple-
mentarity at the national level is somewhat limited. The
approach of mixed or hybrid courts is a better model for
accomplishing our ends.
to the point, the question of the will to do
precisely what? Ideally, this would be the will
to ensure a genuine, independent process. In
reality however, while there might be sufficient
-or even an abundance of- will to prosecute
those who had been overthrown, developing
the requisite will to prosecute ones own
was a far more difficult proposition. This was
where international institutions, even on a
temporary basis, could move forward, as
for example in Sierra Leone, where it would
have been difficult to meet the challenge
without international participation: indeed, it
had even been hard to get the witnesses
to come forward. Moreover, it was not
necessary for international institutions to be
present on a permanent basis, e.g., as in
the former Yugoslavia, where mixed courts
had developed the capacity and the will to
prosecute individuals on all sides.
If the need for independence and the
standards of international justice were to
be met, this would call for something like
hybrid or mixed courts.
Philipp Ambach (PA)
PA began by stressing that he would have to
speak in a private capacity, and, as lawyer,
would be looking at complementarity as
defined in the Rome Statute.
Letter of the law
The words and terms used in the Preamble,
Article 1 and, more specifically, Article 17,
- 12 -
to describe complementarity were national shopping. Justice, remarked PA, was not hybrid tribunal over another. Moreover, this reach of justice and accountability. If there
jurisdiction, state and national judicial about comfortable solutions but about was compounded by the fact that states was any competition as such, it should revolve
system. Hence, the wording of the Statute the most just solution for both victims and funding strategies were often short-sighted, around ensuring independent, impartial, fair
pointed in a certain direction, i.e., at whatever perpetrators. in that they only envisaged a period of 1-2 and effective processes, which guaranteed
state authorities were doing or not doing to years, when in reality longer-term funding was the rights of accused persons to a fair trial
follow up on their own duty to investigate and This policy argument put the ICC at the end required. This was an element of competition and the right of victims and witnesses to a fair
prosecute international crimes. of the line because of its limited capacity, that certainly did merit being addressed. hearing. One had to bear in mind that courts
How then did hybrid courts relate to this? Firstly inasmuch as it could only process a handful were judicial, not political.
it should be noted that, though they tended of cases and, at that, only the highest level of There were two incorrect assumptions at work.
to be lumped together, these were in fact of perpetrators. Brenda Hollis (BH) On the one hand, there was the implication
different types, ranging from, say, the Special From a legal stance, the wording of Article 17 began by stating her position as follows: firstly, that the ICC was somehow intended to
Court for Sierra Leone, the Extraordinary did not point in any clear direction in terms of hybrid courts could be and had been an be the global court of the international
Chambers in the Courts of Cambodia how to design the framework without having important mechanism; secondly, there community... which it was not! It was a treaty-
attached to the national legal system, to the a conflict. Perhaps clarification was therefore was indeed a system of international based court, whose jurisdiction depended
Kosovo Tribunal, seemingly the most national required. justice and, though it might sometimes on its connection to States Parties, to other
of these courts which had international staff. manifest itself in an ad hoc form, it did states that accepted ICC jurisdiction over
So, there were varying degrees of national Funding nonetheless exist; thirdly, there would not a given matter, or to a UN Security Council
elements. One had therefore to look at Turning to what he called the controversial use seem to be anything essentially wrong referral. Moreover, even where ICC did have
Article 17 to see whether there was of the term competition, some had claimed in the phenomenon of forum shopping, jurisdiction, it was not in competition with
conflict in terms of complementarity or that the ICC would diminish in importance provided that the fora in question could other courts but rather the court of last
whether a hybrid court established in if too many hybrid tribunals were created. guarantee the rights of the parties. resort.
the national system would in fact be a However, this was not truly a discussion about
national effort, Then there was the problem complementarity at all: it was rather about Similarly, she could not see that the potential As the ICC did not have jurisdiction over
of some hybrid courts which did not come universality, namely, how states could be resurgence of hybrid courts posed a problem. all crimes worldwide, even all international
within the definition of Article 17 (e.g., the convinced to join the Rome Statute system. Discussion on the issues of complementarity crimes, in that there were intentional limitations
Special Court for Sierra Leone, and even Lastly, there might also be competition in and competition was often based on on its jurisdiction, hybrids could fill the gaps
terms of funding because, when it came to erroneous interpretation, inasmuch as created by such limitations.
the ICC, states were boxed in by having
to make their respective contributions to
competition among courts was not the best
characterisation of the existence of different
When it came to UN Security Council referrals,
the current political environment meant that
ever rising budgets. Similarly, hybrid tribunals courts having jurisdiction to try the same it might become far more difficult for future
suffered from selfsame problem, i.e., that of matters or having different jurisdictions. It referrals to be made. In the absence of such
obtaining the necessary funds. States might was not -and should never be- a question of referral, there were a number of limitations:
be reluctant to fund both the ICC and hybrid rivalry, of one court trying to be superior to
tribunals -an attitude which could favour another, but rather of separate courts simply the ICC had limited territorial jurisdiction;
the Extraordinary Chambers in the Courts of one over the other, or alternatively, one trying to end impunity and further extend the
Cambodia).
Perhaps one had to look at what the founding
fathers thought when drafting Article 17 in
the late 1990s, but this would at best be
inconclusive, partly because there were fewer
hybrid courts at the time (the East Timor and
Kosovo internationalised chambers). Possibly
the founding fathers did not have hybrid
solutions in mind, or alternatively had wished
to exclude them. There was no conclusive
evidence either way.
Policy
How then was the problem to be resolved?
One solution might be found on the policy
side. Complementarity pointed in two
directions: firstly, at states that had to do
fulfil their duty to investigate and prosecute
international crimes; and secondly, at the
ICC as the court of last resort. Yet, no matter
what solution was found (be it national with
international elements, regional, or partly
internationalised), it would fit within the
general policy perspective. So, if such a
solution worked, the ICC would step back
provided that there were assurances:
that the minimum requirements -legal
standards, transparency and fair trial- were
respected;
that there was no possibility of circumventing
the Rome Statute, e.g., immunity for heads of
state; and, Stephen Rapp, Brenda Hollis, Mark Kersten and Philipp Ambach
that there was no leeway for forum
- 13 -
Towa rd s a Sy st em of Int e r n at i on al Ju st i c e
similarly, it had limited personal jurisdiction;
there were limitations on the forms of
individual criminal responsibility falling within its
purview, e.g., in this connection, she noted that
the nationality of the victims of the crimes was
not a basis for ICC jurisdiction;
the Court had very limited temporal
jurisdiction (as from 1 July 2002); and lastly,
the subject matter of its jurisdiction was
likewise limited (international core crimes, such
as crimes against humanity, war crimes and
genocide).
Accordingly, there were and would be
situations in which the ICC could not
act, and hybrids might fill these gaps to
ensure a fair, independent and impartial
judicial process .An example of this was
Syria, where, for a range of reasons, BH saw
it as being unlikely that the ICC would ever
become involved. Then again, the ICC was
necessarily restricted in terms of the
number of cases it could handle, the type
or level of offender it could or should
target (essentially the major perpetrators),
and the forms of liability it could address.
In all such instances, hybrid courts could step in.
To sum up, therefore, the creation of
hybrid, or other international or even
regional courts, should be seen, not
as competition, but rather simply
as separate courts in the international
constellation of criminal justice.
Before opening up the discussion
to the floor, Mark Kersten asked
each panellist a question.
MK: Why were hybrid tribunals making a
come-back now when both hybrid and ad
hoc tribunals had been dismissed not so long
ago?
BH: Many factors were involved. There were
lots of criticisms but Sierra Leone had helped
to serve as an example of how hybrid courts
should act. There was a realisation that the
ICCs reach was limited, and so hybrid courts
had come to be seen as an alternative. This
was not a negative reflection on the ICC but
rather a realisation that it was not the global
court and other ways had to be found to
bring accountability and justice to victims in
situations that the ICC could not reach.
MK: The Chief Prosecutor of the ICC had made
positive comments about hybrid tribunals. Was
this re-emergence of hybrid tribunals due to
the failure and limitations of the ICC, in the light
of which the international community was now
ready to explore other options?
PA: There were two main points. Firstly, the
major problem of the ICC had been and
continued to be universality: where this was
present there was no problem because then
Ephrem Rugiririza, Joseph Roberts-Mensah and audience
the matter of the Courts jurisdictional reach
was determined by statute rather than how
many countries were a party to it. At present,
hybrid tribunals were created in situations that
lay beyond the ICCs reach. Accordingly, such
initiatives should be applauded. Secondly,
in cases where the ICC had jurisdiction, the
Statute indicated that it was not intended to
be the dominant power. It was possible that a
hybrid/national system would cover mid-level
perpetrators. The Special Court for the CAR
was a good example of somewhere where
this was working in practice, i.e., in the form of
a two-tiered, co-operative system.
MK: Hybrid tribunals had been criticised for
the level of political interference received
from those that funded them. Why should we
believe that these hybrid tribunals would be
any different in this respect?
SR: On the question of whether there might
be a danger of donors turning off the tap
in an attempt to control decision-making
by prosecutors, he had not really seen that
happen, e.g., Japan, the largest donor, had not
stepped back in the case of Cambodia, nor
had the United Kingdom in the case of Sierra
Leone when the respective courts were intent
on courses of action that were unpopular with
their sponsors. On the other hand, it had to
be said that raising funds was a real problem,
as in the CAR where finding voluntary funding
posed a difficult challenge for the court
officials. Some donors were only prepared
to support specific types of prosecutions. In
Kosovo, fortunately there was a European
Union budget: in the CAR, the peacekeeping
mandate required peacekeepers to co-
operate, which had enabled the UN to make
a budget appropriation to cover the first few
years of operation. Unless ways of raising funds
were found, it would be hard to have strong
justice. Similarly, at a national level, fees for
international personnel would be lower and
- 14 -
would thus possibly prove less tempting when
it came to attracting the requisite staff.
Q&A
A brief sampling of comments on some
points of interest from the floor
Was there an overly strict interpretation
of the ICCs mandate? Why, for example,
in a Nigerian case of crimes against
humanity could the courts reach not
be made to extend to money that had
been clearly earmarked for arms and
munitions?
PA: He wondered whether prosecutors
strategy might be too tight, and then
answered his own question by conceding
that this might indeed be so! On the other
hand, while it was true that the conduct of
economic actors could sometimes be caught
under the caption of aiding and abetting,
prosecutors were nonetheless required
to look into how such activities could
contribute to a provable international
crime. He agreed however, that this could
be viewed as a somewhat strict interpretation
of the mandate.
BH: The ICC had very specific jurisdiction; it
could not create crimes.
Should there be a set of principles for
hybrid courts? Would this be useful, and
if so, what kind of principles would be voluntary funding was not a good scheme justice lay at the local level. It was extremely
required? for hybrid tribunals, due to the perception difficult to ensure justice and accountability in
SR: Standards were important when it came of undue influence and the fact that such post-conflict situations, characterised initially
to the composition of hybrids courts. It would funding was intrinsically uncertain. by weak and subsequently by destroyed
be very useful to have international standards judicial systems. International hands-on
in situations such as South Sudan and Iraq, to Were hybrid tribunals being romanticised? experience and assistance were invaluable
avoid any perception of victors justice. The Were we going in circles? and could add to capacity. On the whole
AGJA should take this up. Surely the intention was that the prosecution question of independence, he agreed with
of international crimes should the contention that more often than not
Did the key lie in the proximity of hybrid be local? there was a circle of goodness, but it was
tribunals to the weak and needed support.
scene of the Bringing in international
crime and the Brenda Hollis: Where the ICC has jurisdiction, it is participation strengthened
importance local ability, and even
to victims of not competing with other courts but is the court of though such participation
seeing the last resort. There are intentional limitations on its might be temporary, it
perpetrators nonetheless left domestic
being tried?
jurisdiction and hybrids can fill the gaps. structures bolstered and
PA: Proximity, improved. One did not get
while obviously desirable, was not always PA: No, we were not going in circles! The this from a court that was sitting in The Hague.
possible, whether for financial or security simultaneous presence in the CAR of a special Herein lay the benefit of mixed institutions,
reasons. court alongside the ICC was altogether novel. even in difficult situations such as Sierra Leone
and Cambodia. In Colombia, provisions had
BH: Where possible, proximity to the BH: There was no romanticisation involved: been made for international involvement
scene of the crime was good, both in the former Yugoslavia, Rwanda and Sierra because that was what the people wanted
for investigation purposes and for the Leone, these types of courts had only been in order to ensure greater independence and
witnesses themselvesprovided that it was brought into existence when the national resist political pressure.
safe and did not undermine the stability courts had proved unwilling or unable to hold
of the country, e.g., in the case of Liberia independent, fair and impartial trials.
and Sierra Leone, people had been brought SR: On the subject of romanticisation of hybrid
to The Hague to witness proceedings. In courts, he took up the point raised from the floor
addition, lots of lessons had been learnt, e.g., to the effect that the future of international
Howard Varney (HV) to international criminal justice. The
PANEL Remarking that he foresaw the days International Criminal Tribunal for Rwanda
III: discussion as being lively and topical, HV (ICTR) had resulted in 61 convictions for
A holistic approach to justice: began by giving a broad overview of some the staggering cost of nearly US $2 billion.
The limitations of international criminal of the concepts involved. Criminal justice, In contrast, the Gacaca courts in Rwanda
justice as a response to mass atrocities and both domestic and international, was had dealt with just under 2 million cases
the role of transitional justice traditionally seen as the primary or only real at an estimated cost of around US $40
means of securing justice or accountability million, though serious questions had been
for serious human rights violations. Yet it raised as to whether due process had
- Moderator - often fell short of expectations, with very been respected. Both courts had been
few cases being pursued before the criticised for pursuing only one side of the
Patryk l. labuda criminal courts and few convictions being conflict. Despite being viewed as more
Geneva Academy of International obtained. Sometimes criminal justice faced efficient, the Special Court for Sierra Leone
Humanitarian Law and Human Rights insurmountable obstacles. had nonetheless cost hundreds of millions.
He wished to address the following three
questions: Domestic criminal justice
- Panellists - At the domestic level enormous challenges
(i) What were the main limitations of remained. They largely related to a lack of
Sarah Kasande Kihika criminal justice? political will and capacity. While Uganda
Program Associate, International Centre for had set up an International Crimes Division
Transitional Justice (ICTJ) Kampala, Uganda (ii) What constituted a holistic approach in the High Court, the only major case on
to accountability? its books -Thomas Kwoyelo- had been
Allan Ngari marred by delays over questions of amnesty,
Researcher, Transnational Threats and (iii) How could the different pursuits of jurisdiction and funding. In Kenya, local efforts
International Crime, Institute for Security accountability complement each other in at pursuing justice for the post-election
Studies (ISS), Pretoria attaining the end goal? violence had ground to a halt with nobody
in authority being held to account.
Howard Varney Limitations of international The criminal justice system in the DRC
Senior Consultant, International Centre criminal justice struggled with a lack of funding and skills,
for Transitional Justice, Advocate of Criminal justice was neither cheap nor e.g., the Minova trial of 39 soldiers of
Johannesburg Bar quick, nor did it have an extensive reach the Congolese army had resulted in the
---------- in most contexts, particularly in relation conviction of only two low-level soldiers,
- 15 -
Towa rd s a Sy st em of Int e r n at i on al Ju st i c e
despite funding and significant international
support.
His own country, South Africa, was another
sorry saga with an equally poor record of
prosecuting past human rights atrocities.
Less than a handful of cases had been
taken forward. Indeed they had been
forced to litigate to compel the prosecutors
to act. The previous year, the Chief
Prosecutor had only agreed to prosecute
in a 34-year-old case of abduction, torture
and murder after a substantive application
had been filed in the High Court. There
had been gross political interference, with
midnight meetings at which prosecutors
had been instructed to drop cases.
Nevertheless, domestic prosecutions
could have considerable impact, as
had been seen in Latin America, where
Argentina had tried over 600 individuals,
and Guatemala was currently holding
significant trials involving war crimes, crimes
against humanity and genocide. Even so,
there was a massive impunity gap.
Accountability
The concept included but was not
confined to criminal justice. Measures
of accountability could also be secured
through other processes. Essentially a
degree of accountability was delivered
when perpetrators were held to account
in some official format, and where some
measures and steps were taken to show
that it was not business as usual. Other
forms of accountability included:
truth-seeking mechanisms, including
commissions of inquiries, truth commissions
and other forms of non-judicial fact seeking,
such as naming and shaming, giving
victims a voice to share their experiences
and suffering, and recommending reform
measures, as well as prosecutions;
community justice and reconciliation
processes;
institutional reforms and vetting. Despite
being an administrative rather than a
criminal sanction, barring and removal
from public office could have a measure
of punitive impact, as in El Salvador,
where vetting had been used as part of
negotiated political solutions;
reparations, whether tangible and/or in
the form of an apology;
civil litigation, such as claims for damages,
restraining orders to prevent abuse, or
actions to compel the authorities to take
action; and,
judicial inquests or coroner inquiries
could make findings in relation to
unnatural deaths, in cases where criminal
prosecutions were not possible.
Summing up, HV felt that there was place
for locating criminal justice within
an integrated or holistic approach to
accountability. Depending on the local
factors, a parallel or sequenced approach
might be called for.
Sarah Kasande Kihika (SKK)
Limited impact of criminal justice in Africa
Africa had witnessed mass atrocities in the
past decades, e.g., in Rwanda, Burundi,
Uganda, Kenya and the DRC, among
others. While there had been a degree of
response, criminal justice in itself suffered
from limitations and was incapable of
addressing the complex challenges
involved and of tackling the historical and
political factors underlying such situations.
In many cases, perpetrators had not been
held accountable for their actions. A
message had to be sent out to signal
that impunity would not be tolerated.
Turning to some examples of different
accountability mechanisms, SKK made the
following points:
In the case of Sierra Leone, experience
had shown that some victims were
dissatisfied with the trials because
these had not helped them meet their
immediate socio-economic needs
(housing, food, jobs, etc.). They were more
interested in receiving reparations for the
harm suffered.
The ICC had made efforts to give
victims a more prominent role through
extensive victim outreach programmes
and processes for participation. Yet, not
enough had been done: victims were
still assigned a passive role as survivors
rather than as rightholders, there was
limited consultation and outreach was
inadequate. .
International justice had often
contributed more to norms and the growth
of international law than to bringing justice
to victims. A place like the Congo was in
a perpetual cycle of conflict, so what was
needed was implementation of measures
to put an end to the historical factors
responsible.
In Uganda, there were practical
limitations in the shape of the countrys
selective approach and failure to tackle
structures of impunity, e.g., prosecuting
rebel combatants and yet turning a
blind eye to crimes committed by state
troops. Indeed, there had been instances
wherethe ICC itself had been used to
serve the political goals of the regime.
Victims therefore continued to demand
justice.
It was difficult to pursue account-
- 16 -
ability in contexts where the alleged
perpetrators continued to wield
political power, e.g., Kenya, Sudan
and even Uganda. Efforts to hold Bashir,
Kenyatta and Ruto accountable had
triggered a continent-wide campaign to
entrench immunities for heads of state.
Meanwhile the statute of limitations was
ticking away!
The lack of effective enforcement
mechanisms meant that the ICC had
to rely on state co-operation, though the
truth was that states largely co-operated
only when it was in their interest, e.g., when
rebels or former leaders were before the
ICC.
Not only were international criminal trials
remote and inaccessible, but victims were
often not familiar with or even interested
in legalistic command structures. They
wanted to see the actual perpetrators held
accountable. They wanted reparations
that would ameliorate their suffering and
restore their dignity.
Allan Ngari (AN)
Stating that he intended to build on the
foundations laid by his fellow panellists, AN
began by noting that criminal prosecution
was not the sole avenue for achieving
accountability. It was one of the most
developed pillars of transitional justice,
and contributed to social reconciliation in
cases of gross violations of human rights. In
practice, only a small percentage of those
who bore responsibility for such violations
would ever be investigated, let alone
prosecuted. Among the main reasons for
this were:
the high number of suspected
perpetrators;
the relative scarcity of financial and
human resources, capacity and political
will; and
the fact that in many cases, some
measure of control remained in the hands
of the perpetrators.
Limitations
Perhaps the most glaring limitation of the
international criminal justice system was
that only a handful of individuals, at most,
in any given situation would be prosecuted.
Even where successful prosecutions did
occur, was a verdict and a sanction
sufficient?, e.g., had the ICTR contributed
to improving the lot of survivors in Rwanda?
The absence of prosecutions in Liberia and
post-apartheid South Africa had cast a
shadow over the serious efforts made by
the Truth and Reconciliation Commission
(TRC), leading, in this latter case, to
Archbishop Desmond Tutus remark about
unfinished business.
Victims at the centre
The victims themselves should be at
the centre of a properly constituted
accountability mechanism. Otherwise,
these processes were not meaningful.
Consultations had indicated that other forms
of accountability also provided some form
of satisfaction to victims. Acknowledgment,
reparations and institutional reform were
other complementary mechanisms for
achieving transitional justice. A coherent and
effective transitional justice programme
would therefore include truth and justice
mechanisms, reparations and structural
reform. Moreover, there had to be real
consultation with affected groups and links
with other transitional mechanisms. Such Howard Varney, Patryk Labuda, Sarah Kasande Kihika and Allan Ngari
a strategy had to be designed as part of
an overall, ongoing process, i.e., a single
mechanism would not suffice.
Reparations
The current challenge with reparations
programmes lay in implementation.
This included states political unwillingness
to implement existing obligations using
questionable economic arguments. There
was nothing wrong with a post-conflict/post-
authoritarian states pursuing development
but development projects were not Don Deya Rod Rastan
reparations. Furthermore, failing to tie support
for development programmes to reparations
would amount to a missed opportunity.
Lastly, reparations did not necessarily have
to be monetary: they could take the form Before opening up the discussion PL: SKK had said that victims had a passive
of an apology, as in the case of Namibia to the floor, Patryk Labuda asked role. How could one integrate victims in a
where Germany had formally apologised for each panellist a question. way that contributed to the process without
the killing of Herero people. slowing it down?
Other challenges included the exclusion SKK: The question of whether or not to take
of entire categories of victims on the basis PL: How did one effectively integrate these an integrated approach depended on the
of political considerations, leading to the processes in practice? In terms of a shift context. It was important to recognise that
perception of biased reparation favouring from transitional to criminal justice, there no single mechanism could address the
only one side; and the gender insensitivity of were limited resources, so how was this to be problem. Political analysis would inform the
a majority of reparation programmes, which achieved realistically? process. She agreed with HV that it was easier
resulted in too few victims of gender-related HV: There was no particular formula for to include victims in a non-judicial process:
violations receiving any redress. effective integration: there was only a range nevertheless, it was also necessary to keep
of issues of which one had to be keenly aware. victims informed of judicial proceedings.
GUARANTEES OF NON-RECURRENCE OF He agreed that criminal justice took the lions Although most of us came from systems to
CONFLICT share of attention, e.g., in Sierra Leone, there which victim participation was alien, this was
The 2015 Report of the UN Special had been a budget mismatch as between gradually being included, both domestically
Rapporteur on the promotion of truth, the Truth Commission and the Special Court, and at the ICC. Similarly, victim participation
justice, reparation and guarantees of non- with the Truth Commission being viewed as would be given a more prominent role in the
recurrence, conceptualised guarantees of the poor relation. However, there had been International Crimes Division.
non-recurrence to include: an attitudinal shift. Interestingly, some, such
as Judge Robertson, had seen the Truth PL: Victim participation: how was one to
(i) justice and security sector reform: Commission as possibly interfering with justice. distinguish between real victims and the
the importance of an independent and broader population because in some sense
effective judiciary in securing rights could not The starting point was to strategise rather everyone was a victim? How was one to
be overstated. than adopt an ad hoc approach. One avoid inflating the budget?
had to ask how one was going to operate,
(ii) changes in security legislation; namely, in parallel or not, i.e., by taking a AN: Consultation with stakeholders and
sequenced or staggered approach. So involving what local people wanted, even
(iii) constitutional reform; and timing, capacity, finance and resources had if unconventional, should be integrated. The
to be borne in mind. In a conflict situation mechanism used should not be in competition
(iv) legal empowerment and the creation marked by fragility, such as that of South but should instead be mutually reinforcing and
of an enabling environment in order for civil Sudan, one had to ask whether sequencing complementary. Victims got a raw deal, e.g.,
society to discharge its crucial role. was required. Victims should be actively a number of years had passed since a verdict
rather than passively involved; and it was had been handed down in the Lubanga case
The core function of guarantees of non- easier to involve them in a non-judicial and yet reparations were still pending. A host
recurrence was preventive in nature. process. of things remained to be done.
- 17 -
Towa rd s a Sy st em of Int e r n at i on al Ju st i c e
Q&A
A brief sampling of comments on some
points of interest from the floor
The ICC had been trying to find the
best modality for victim participation in
proceedings, i.e., internal or external.
What technical advice would the
panellists give from where they were
looking at it?
AN: When it came to victim participation,
the ICC website was wonderful but it was
not clear where victims who were willing
to participate should direct themselves. For
people who for the most part came from
rural areas and had low literacy levels,
the application process was extremely
complicated and needed simplifying.
Many of the functions were currently
performed by CSOs. The ICC had a major
role to play in outreach, and if that meant
negotiating with the ASP to increase the
Courts outreach budget allocation, so
be it! Furthermore, this spilled over into
reparations because, if victims expectation
were properly managed, they would then
know what they would be likely to receive.
SKK: Sufficient resources should be
assigned to victim participation, e.g.,
currently, victims without collective
representation were not receiving support.
How was it possible, she asked, that the
Court should seek in this way to dictate
who their representatives should or should
not be?
HV: Not only did he endorse SKKs input,
but he was excited to hear that about the
developments in Ugandas ICD regarding
victim participation. In common law
countries, a victims role was basically
limited to being a witness. Indeed, in South
Africa, the victims role was essentially
limited to that of writing letters because
they were unable to address the court.
Uganda now had its ICD but how
could political will be ensured?
AN: Political will was very difficult to build.
Nonetheless, policy makers could be
sensitised by activists keeping at it.
SKK: She saw this as complicated but felt
that, in the case of political will, sustained
advocacy was needed in order to build
critical mass.
HV: Capacity and resources were
formidable challenges but political will
was the most difficult of them all. It was
ultimately a question of mobilising public
opinion to convert it into a political force.
Currently, there was an ongoing human-
rights documentation exercise in Uganda:
the ensuing reports might possibly provide
ammunition for arguing for more coherent
interventions.
On the subject of amnesty clauses (the
questioner being specifically concerned
with Zimbabwe), what practical rewards
could be expected?
HV: An amnesty process boiled down to
practical rewards versus accountability.
The conditional amnesty granted in South
Africa had been seen as justifiable in the
early 1990s. Transition was not what it
had been painted: there had been an
incredibly violent period of 4 years that
had led to a limited compromise which
the security forces could buy into. However
the country had paid a price for this. It had
resulted in a sense of entitlement to lenient
treatment, which meant that in some way
accountability had been defeated. South
Africa had let victims down, in that there had
been no methodical pursuit of those cases in
which amnesty had not been granted. HV
saw amnesty as a last resort. The situation
in Sierra Leone had been similar.
Sarah Kasande Kihika: Not only are international
criminal trials remote and inaccessible, but victims
are often not familiar with or interested in legalistic
command structures. They want to see perpetrators
held accountable and reparations that will ameliorate
their suffering and restore their dignity.
Femi Falana, Patryk Labuda, Thomas Probert and Chris Maina Peter
- 18 -
PANEL IV:
The state of human rights in Africa:
what can international commissions of
inquiry, national human rights organisations,
ombudsmen and public protectors do to
address serious human rights violations?
- Moderator -
Patryk I. Labuda
Geneva Academy of International
Humanitarian Law and Human Rights
- Panellists -
Chris Maina Peter
Professor of law at the University of Dar es
Salaam
Femi Falana
Human rights activist, lawyer and AGJA
member
Thomas Probert
Senior Researcher - Unlawful Killings Unit,
Centre for Human Rights (University of
Pretoria) Research Associate - Centre of
Governance and Human Rights (University
of Cambridge)
----------
Femi Falana (FF) Chris Maina Peter (CMP) conclusion that, at a continental level,
The human rights regime in Africa had The state of human rights in Africa was states had to be pushed to walk the
improved to some extent since the 1970s chaotic. Chaotic, because in Africa there talk, and at a national level, they
and 80s when the likes of Idi Amin had was a tendency to wanting to be perceived had to be pushed to establish and
been in power. Victims were now able to call as protecting human rights, following rules, fund institutions, and implement their
leaders to account. In West Africa, apart from etc., but in practice states did just the decisions.
The Gambias disregard for the Economic opposite.
Community of West African States (ECOWAS) He wished to look at 2 levels, i.e., continental Thomas Probert (TP)
Court of Justice, human rights violations could and national There were two fundamental conceptions of
be challenged at a supranational level. the right to life: prospective and retrospective.
Investigations by human rights organisations (i) Continental level Prospective meant preventative, in the
and international bodies had attempted African governments were very quick sense of protection and respect, while
to expose human rights violations, and to establish institutions, draft and sign retrospective referred to accountability.
victims had been enlightened to challenge documents, and set up instruments, but This related to the fundamental principle
governments. International bodies had with no real intention of implementation. As that there needed to be consequences
been able to share information with national an example, CMP mentioned the fraught for violations of human rights norms. The
human rights commissions and NGOs. In a relationship between Africa and the ICC. failure of the state to pursue and enforce
few instances, governments had been able This had led the continent to rush to accountability for violations of the right
to take advantage of the recommendations prepare the Malabo Protocol, which was to life in a transparent manner was in
and reports of international human rights supposed to amend another protocol, the itself a violation of that right.
commissions. National human rights Merger Protocol, that had been intended
commissions and ombudsmen had been to join two existing courts -the Arusha-based In the case of unlawful killings, the States
established by law: experience had African Court on Human and Peoples Rights obligation was to investigate and, where
shown, however, that the conclusions/ and the African Court of Justice - to form necessary, prosecute. At the international
recommendations level, such death
of such national investigations had
human rights com- Femi Falana: The human rights regime in Africa has been guided by a
missions had not
been taken very
improved to some extent since the 1970s and 80s. Victims document drafted
in the late 1980s
seriously by the have been enlightened to challenge governments. But if and known as the
governments that there is no justice at home, it is only natural that people Minnesota Protocol.
had put them in The old version
place. Similarly, the will look abroad. of the Minnesota
reports of the African Protocol had
Commission on Human and Peoples Rights one, namely, the African Court of Justice carved out significant space for commissions
had generally been ignored by governments. and Human Rights. However, the Merger of inquiry as a means of investigating
In the case of the African Court on Human Protocol, which was the basis of Malabo extrajudicial executions. However, as national
and Peoples Rights, FF noted that, currently, and dated from 2008 was not yet in commissions of inquiry all too often acted as
only 7 African states had made a declaration force!: indeed, as of April 2016 it had smokescreens, TP and his colleagues had
to allow individuals and NGOs to access the 30 signatures and only 5 ratifications. decided to undertake a parallel investigation
Court. In practice therefore, only citizens of The Malabo Protocol itself had 9 signatures into commissions of inquiry in Africa.
those countries enjoyed access, meaning and not one single ratification. And yet
in turn that access was denied to the vast there was this push to leave the ICC. To go At best, commissions of inquiry had a
majority of victims of human rights violations where?, he asked. To Malabo?, which was broader capability than did courts when
across Africa (despite an attempt to itself dependent on another protocol that it came to fact-finding. Criminal courts could
challenge the provision in question, i.e., Article was not yet in force! Was this then a serious convict only on proof beyond reasonable
34 (6) of the Protocol). proposition? doubt, and only consider evidence relevant to
When it came to protecting human rights, the alleged perpetrator: commissions, on the
The ECOWAS Court was unique in that there one could not have institutions that were other hand, could investigate and document
was no need to exhaust domestic remedies. hanging, as an alternative to the ICC. Even truth revealed about the perpetration of human
The protocol establishing the Court had been in the case of the Arusha court, there were rights violations. Unlike courts, commissions of
amended in 2005 to expand the mandate only 8 declarations out of a possible total of inquiry could determine underlying causes,
of the Court, which had assisted citizens of 54 to allow access by individuals and NGOs. motives and perspectives of perpetrators or the
West Africa to challenge their governments in If governments were genuinely serious about role of institutions, and their findings could play
the courts. It appeared to be the only regional human rights, one would have expected a valuable role when it came to policy decision-
court on the continent able to uphold human more than half of the signatory states to making.
rights. In municipal courts, the enforcement of have made the necessary declaration. Even so, criteria of effectiveness were
human rights remained restricted to political required. These included:
and civil rights. (ii) National level
Once again, because countries wished to be Independence/impartiality. Investigators had
Moreover, the ECOWAS Court had forced perceived as protecting human rights, they to be impartial and act at all times without
the Nigerian government to comply with set up human rights and good governance bias, analysing all evidence objectively. They
the Articles of African Charter on health, commissions. However, what actually had to consider and pursue exculpatory and
education, control of resources,and the right happened in practice was that these same inculpatory evidence.
to a safe environment (oil pollution). In the governments provided the running costs
latter instance, while the objection raised (salaries, etc.) but no funding for programmes. Uncompromised independence. Funding
by the oil drilling companies was allowed Furthermore, when recommendations could be used as a weapon, e.g., a financing
(inasmuch as they were not signatories to the were proposed, his experience was that state could easily bring pressure to bear to
protocol setting up the Court), the Nigerian governments did not put these into practice. prevent a commission from undertaking certain
government itself was held liable. Accordingly, CMPs had arrived at the investigative activities
- 19 -
Towa rd s a Sy st em of Int e r n at i on al Ju st i c e
Chris Maina Peter and audience
Investigatory powers. These were needed
to compel witness and perpetrators alike to
collaborate.
Transparency. Aside from the needs of
confidentiality for the protection of victims or
witnesses, a commissions investigation should
be as transparent as possible, i.e., open to public
scrutiny. This promoted the rule of law and
public accountability, and enabled external
monitoring of the efficacy of investigations.
Participation of victims and witnesses.
There were tacit conclusions to be drawn
from all this. Firstly, to the extent to which a
commission of inquiry yielded unexpected
outcomes, an accountability process would
be that much more credible. Secondly, one of
the most tangible indicators of a commissions
success as an accountability mechanism was
a published report,which could be used in
subsequent proceedings (a report might go
unpublished because it had never been drawn
up or because the government in question had
decided against making it public).
Under these circumstances, commissions of
inquiry could be effective mechanisms
within an accountability process, but
responsibility for enforcing accountability
ultimately rested with the state, which
was external to the commission. One
could therefore not blame a commission
for a governments failure to implement its
recommendations. Hence, while a commission
of inquiry could help achieve accountability, it
could not achieve accountability on its own.
In this sense, a commission of inquiry could be
said to have a role to play within a system of
justice.
TP explained that these tacit assumptions were
going to form the basis of a policy brief of what
a well-constituted commission of inquiry might
look like. As to the possibility of having a series
Femi Falana
of principles, TP said that one of the aims was
to come up with a set of guidelines, and in that
way the policy brief would hopefully serve as a
reference point for future investigations.
Before opening up the discussion
to the floor, Patryk Labuda asked
each panellist a question.
PL: As regards the challenges faced by
human rights organisations generally, could
FF bring this back to the situation in Nigeria.
What was the impact in the broader
sense of the ICC in Nigeria?: was it
contributing to deterrence in general?
FF: The necessary instruments for
enforcement of human rights were in
place in Nigeria but governments had to
be compelled to fulfil their commitments.
In 2009, they had sat down with the
Chief Justice, who was empowered by
the Constitution to lay down rules for the
enforcement of human rights. Insofar as
enforcement of these rights was concerned,
this had led to the anachronistic doctrine
of locus standi, and issues such as leave of
court and limitation periods all being done
away with. As a result, Nigerian human rights
victims did not have to rush to the African
or ECOWAS courts to seek redress but could
now use the local courts. An example of
this was that damages awarded by human
rights commissions could be registered in
court and were enforceable in the same
way as any other judgement.
The ICC had had a very positive impact on
Nigeria. Fear of the ICC among the political
class had led to wisdom, e.g., elections instances, commissions conducted cross-
worked, inasmuch as the loser would hand
over power for fear of meeting the same
fate as Laurent Gbagbo. Moreover, Nigeria
had played a role in arresting the movement
led by Kenya at the AU to withdraw from the
ICC.
- 20 -
be an international criminal case, e.g., as Q&A FF: When it came to rigour, one could not
in Kenya, where witnesses had suddenly make a case for irresponsible African leaders
found themselves becoming part of an who had contempt for the rule of law. If one
international criminal case. Qualitatively did not want the ICC to process African
these were different types of investigations. leaders, one had to ask what had been
While a national commission of inquiry done in Africa. It was only natural that if there
could be helpful, it could not necessarily be was no justice at home, people would look
subsumed into the subsequent process. abroad.
Secondly, there was the issue of forensic
evidence and how national commissions of TP: In international justice conversations one
inquiry should use it. As national commissions tended to talk about complementarity. In
of inquiry tended to be set up first, this meant A brief sampling of comments on some connection with what he had said about the
that, when seizing physical evidence (e.g.,via points of interest from the floor states ongoing duty to investigate human
exhumations), they had to do so in such a rights violations, he wondered to what extent
way that it did not invalidate the evidence. Don Deya from the floor: international justice advocates could helpfully
While seizing physical or bodily evidence While agreeing in essence with FF and pursue both of our causes simultaneously
was sometimes imperative, e.g., to prevent it CMPs analysis, he suggested that more by paying more attention to that ongoing
from disappearing, there were other times rigour was nonetheless required. He duty, since the state action that would have
when it could prove unwise, e.g., as in the said that here had been an ascendency impact on ending impunity and the pursuit
Hissne Habr case, where the exhumations of demagogic politicians and asked of justice was less the conduct of diplomats
were poorly handled. In situations of this what could be done to combat this? within the ASP and more about having the
nature, a better-advised course would be He challenged CMPs analysis of the necessary domestic structure for rigorous
to have the task performed by some other evolution of African Courts: if more investigation of such violations.
specialised, better-resourced organisation context were injected into his analysis,
with more time. Accordingly, the rule of one would then see why the courts had The Commission had never taken a
PL: In connection with access to the thumb was, If you are going to do it, do been generated. CMPs analysis lacked case to court: why?
African Court on Human and Peoples it well. Lastly there was the question of rigour and nuance.
Rights, Rwanda had already withdrawn whether criminal investigations should be CMP: The Act establishing the Commission
its declaration. On the aspect of human sequenced or proceed in parallel. The real CMP: He stood by his assertion, saying If allowed the Commission to go to court, and
rights enforcement in Africa, could CMP danger here was that of pre-empting or you want to establish an institution, make in fact it had done so but the government
perhaps speculate, by commenting on the skewing the impartiality of a commissions it work! There was a lack of seriousness in had not enforced the decision.
way forward? Would there be any major work. taking things to their logical conclusion, e.g., if
challenges? the first Protocol had not been enforced in 8
years, why then make a new Protocol?
CMP: Rwandas withdrawal of its declaration
was of no importance. African rulers did
not like courts. Indeed, when drafting the
Charter there had been a move to have a
commission rather than a court. In Tanzania,
for many years it had been impossible
to sue the government: one first had to
obtain the governments permission to do
so! This had subsequently been held to be
unconstitutional.
PL: The ICC had been criticised for using
evidence supplied by human rights
organisations, since the standards were not
the same as those demanded of a criminal
investigation. How often did a commission
of inquirys findings translate into full-blown
prosecutions?
TP: In terms of thresholds of evidence, there
were two broad areas. Firstly, there was
the issue of victim and witness testimony
given to those conducting human rights
investigations, and given and received by
national commissions of inquiry, and the way
in which this might make the investigations
or inquiries more sensitive to victims
needs at the time but might subsequently
compromise the testimony given. In some
examinations, and in others they issued a
synthesis of information received. In this
connection, there was also the important
issue surrounding consent of witnesses to
participate in a national commission of
inquiry at a time when there might also Macharia Gaitho and audience
- 21 -
Towa rd s a Sy st em of Int e r n at i on al Ju st i c e
AFRICA GROUP FOR JUSTICE
AND ACCOUNTABILITY
Towards a System of
International JusticE
DAY 2
WEDNESDAY | 19 OCTOBER 2016
- Master of Ceremonies -
Joseph Roberts-Mensah
PANEL V:
Domestic justice, universal jurisdiction: the
role of domestic courts in prosecuting
international crimes, and the merits and
flaws of universal jurisdiction
- Moderator -
Mark Kersten
Munk School of Global Affairs, University
of Toronto; Research Director, Wayamo
Foundation
- Panellists -
Angela Mudukuti
International Criminal Justice Lawyer,
Southern Africa Litigation Centre (SALC)
Manuel Vergara
Head of Legal Advisory Section, Baltasar
Garzn International Foundation (FIBGAR)
Charles kaamuli
Head of Prosecution at the International
Crimes Division, Uganda
Chris Gitari
Head of Office Kenya, International Centre
for Transitional Justice
----------
Chris Gitari (CG)
In a brief historical overview, CG explained
that in the wake of the post-election
violence that had swept Kenya in 2007,
an international commission of inquiry
[Commission of Inquiry on Post Election
Violence (CIPEV), better known as the
Waki Commission] had been set up to
investigate the events. Following pressures
caused by the ensuing ICC process and
the so-called impunity gap, there had been
a move to create an International Crimes
Division (subsequently, the International and
Organised Crimes Division/IOCD) of the High
Court. Though initiated, this process had
been hijacked.
A subsequent assessment of existing evidence
and status update had shown that, of the total
number of cases identified, a huge amount
had not been prosecuted and/or had not
been properly investigated. In essence
there had been shoddy investigation and
prosecution.
The approach taken to setting up the
proposed IOCD was that it would prosecute
cases under the countrys International Crimes
Act (ICA), which had domesticated the Rome
Statute and codified the core international
crimes as crimes prosecutable in Kenya.
However, the question was whether conduct
in 2007 could be prosecuted under the
Rome Statute, in view of the fact that the ICA
was not applicable to acts committed before
1 January 2009 and that any attempt to
apply the countrys Constitution retroactively
would be unviable.
Somewhat ruefully noting that concern
seemed to concentrate on the crimes and
not necessarily on the victims, CG turned to
the possibility of invoking universal jurisdiction
in order to address serious crimes under
domestic law. The principles of territoriality
and equality of states had reinforced the
emergence of subsidiary universal jurisdiction,
and so pure universal jurisdiction would have
to be tinkered with in order to be useful. He
saw the ability to exercise universal jurisdiction
as vital. Moreover, where difficulties arose
with universal jurisdiction, complementarity
could well offer a solution, i.e., by bringing in
the ICC.
Angela Mudukuti (AMU)
While firm believers in the work of the ICC,
hybrid tribunals and courts, she and her
colleagues at the Southern Africa Litigation
Centre (SALC) believed that in many instances
justice was best served domestically. This was
a very important topic in the light of current
events.
The SALC had made use of South Africas
progressive legislative framework, which
also included the Implementation of the
- 22 -
Rome Statute Act, to seek justice for victims
of crimes against humanity. In terms of the
Implementation Act, universal jurisdiction for
international crimes existed, and that avenue
had given rise to what had become known as
the Zimbabwe Torture Case.
In 2007/2008, Zimbabwe had been in the
throes of civil unrest and politically motivated
violence. Torture committed as a crime
against humanity (electrocution, severe
beating, etc.) had been perpetrated against
subjects arrested on the basis of their political
affiliations. The SALC had compiled a dossier
of evidence, including affidavits from victims
and witnesses, and presented it to the South
African National Prosecuting Authority.
Given the presence of the victims and the
fact that the suspected perpetrators were
known to come to South Africa (SA), the SA
authorities had a duty to investigate under the
Implementation Act, and specifically under
the provision governing universal jurisdiction.
Nonetheless they declined. The SALC took this
refusal on judicial review, and the High Court,
Supreme Court of Appeal and Constitutional
Court all ruled that such a duty did exist, with
the result that, after eight years, investigations
were finally initiated.
Zimbabwe was a good example of what AMU
termed a justice void, i.e., it was not a party
to the Rome Statute, and the prospects of
domestic justice and/or a UN Security Council
referral were unlikely. Thankfully, a progressive
SA judiciary had been prepared to rule against
the government.
AMU concluded by making some practical
recommendations:
legislative framework this had to be
improved, made internationally compatible
and brought in line with agreed and accepted
human rights standards. The Rome Statute had
to be domesticated or penal codes amended
to allow for the prosecution of genocide, war
crimes and crimes against humanity;
capacity building prosecutors, judges
and lawyers required training in international
criminal law and international humanitarian
law and human rights law;
Charles Kaamuli, Manuel Vergara, Mark Kersten, Angela Mudukuti and Chris Gitari
strong advocacy this included sharing
lessons learnt;
engagement dialogue and discussions with
all stakeholders were essential. Litigation was
the last resort; and,
civil society space needed to be protected
it was rapidly shrinking in many countries.
Charles Kaamuli (CK)
The Ugandan International Crimes Division
(ICD), while facing challenges, was
nevertheless up and running. To give the
audience an idea of its background, CK
explained that the ICD had come into being
following the failed 2008 Juba peace talks
with the insurgents. One of the conditions
of those talks had been to create a system
whereby rebels would be tried locally. While
the ICD itself had been set up within the High
Court, the task of war crimes investigation
had been assigned to the police. Thomas
Kwoyelo had been arrested in 2009 in the
DRC and there had been strong evidence
to show that, though not indicted by ICC, he
had been involved in war crimes. However,
there were legal challenges, since most of the
alleged atrocities had predated the Rome
Statute, and so the Geneva Convention
had to be used instead. Ultimately, Kwoyelo
had been charged with a range of crimes,
including common penal code violations, and
indicted on a total of 72 counts.
The ICDs jurisdiction extended beyond war
crimes and, among other things, covered
genocide, crimes against humanity, terrorism,
piracy, and any other international crimes
envisaged in the countrys statute book. In
the case of Uganda, ICD activity had, for the
greater part, centred on terrorism, e.g., the Al
Shabaab bombing had been investigated
and 8 of the suspects had been convicted
of terrorism. The Division was also active in the
investigation and prosecution of prostitution
and human trafficking, both of which were a
big problem in Uganda and in East Africa as
a whole.
CK disagreed with the contention that Africa
was not doing enough. Uganda was intent on
investigating war crimes. Turning specifically
to the complementarity issue, he observed
that Uganda was not only co-operating,
but did in fact have a good, two-way
working relationship with the ICC.
Whereas the ICC had gone for top-range
commanders (e.g., Dominic Ongwen),
the Ugandan ICD was targeting their
mid-range counterparts, such as Thomas
- 23 -
Kwoyelo, and was thus filling the gap.
Moreover, unlike the ICC, which was far
away in The Hague, the ICD was bringing
justice to the ground. As an example of
this, he cited the fact that local people from
Gulu in Northern Uganda, where most of the
atrocities had been committed, were being
invited to take part and become involved.
As to Stephen Rapps criticism about the
Kwoyelo trial being unduly delayed, CK
explained that this had been instigated, not by
the prosecution, but by Kwoyelo himself, who
had first had recourse to the Constitutional
Court, which had initially found that he was
entitled to amnesty. Subsequently, when the
Supreme Court had ruled that his trial was
indeed constitutional, he had then appealed
to the African Court on Peoples and Human
Rights. Obviously his trial could not proceed
until he had exhausted all available remedies.
Lastly, CK informed his audience that the
ICD Bill was pending and, if passed, would
introduce the ICC standards and cover
operations, funding and administration. As
things stood, however, some of the ICDs
current challenges still included finance, the
recent assassination of a colleague, and the
whole area of witness protection.
Towa rd s a Sy st em of Int e r n at i on al Ju st i c e
Manuel Vergara (MV)
Both the ICC and universal jurisdiction were the
subject of commonly repeated presumptions.
Rather than accepting them at face value,
these should be reviewed by reference to
practice, case law, and comparative law
and doctrine, with special attention to Africa,
where the AU had issued several declarations
concerning universal jurisdiction. Some of these
presumptions saw universal jurisdiction as
being an instrument of the strong against the
weak, an instrument of a neo-colonial nature,
or an instrument with political purposes; others
underscored the abusive/selective use of
universal jurisdiction or saw it as having no future,
being useless or simply representing an attack
against sovereignty.
MV then proceeded to examine some of these
presumptions in the light of cases. Citing the
Guantnamo, Iraq war, Tibet genocide and
Falun Dafa cases, he showed how countries such
as Spain, Belgium and Argentina had taken on
the likes of the USA and China. Was it, he asked,
then really true that universal jurisdiction was an
instrument of the strong against the weak?
While the claim that universal jurisdiction was a
neo-colonial instrument used to control former
colonies might have some truth in a series of
cases where Spain had challenged Chile
(Pinochet), Argentina (Scilingo) and Morocco
(Sahara), or Belgium had challenged the DRC
(Yerodia), this could not be said of the Franco
case, where the former colony, Argentina, had
challenged its ex-colonial master Spain, or
another series of cases in which both parties
had been former colonies, e.g., Stroessner
(Argentina vs. Paraguay), Mavi Marmara (Spain
vs. Israel) and Hissne Habr (Senegal vs.
Chad). Indeed, this so-called boomerang
(role-reversal) effect was in his opinion
one of the greatest things about universal
jurisdiction
The assertion that universal jurisdiction was
a political tool whose use was abusive and
selective was only true in the sense that any
instrument could be corrupted. Even so, there
were safeguards against abuse, in the form of
the role of victims, presumption of innocence,
rights of the accused and compliance with
international standards.
While MV was willing to concede that no
government was really happy to open
universal jurisdiction cases because these
were controversial, he nevertheless rejected
the contention that there was no future for
universal jurisdiction. Despite the legislative
constraints introduced in Belgium (2003) and
Spain (2014), universal jurisdiction was a
tool at the service of victims world-wide.
The proliferation of cases showed that the
future of universal jurisdiction lay in Africa and
Latin America (South Africa, Senegal, Argentina,
Chile, etc.). Moreover there had been new
efforts to develop universal jurisdiction to fight
impunity, as evinced by the Madrid-Buenos
Aires Principles of Universal Jurisdiction (2015).
Before opening up the discussion
to the floor, Mark Kersten asked
each panellist a question.
MK: Was there international justice
fatigue in Kenya? Was there any hope
for international justice in Kenya, and if so,
where might one look for that source of
hope?
CG: Kenya had created a toxic
environment locally and interfered with
witnesses. The country now wanted to move
on. The government had sought to use the
International and Organised Crimes Division
(IOCD) to bring cases home. As a result, way in which they viewed the ICC as being
civil society had withdrawn its support from
the nascent IOCD. Civil society was looking
to compile strong documentation on crimes
and their impact on victims, and on networks
and how they operated. There had been a
steep learning curve domestically.
MK: By way of an update on the al-Bashir
affair, what was the likelihood of criminal
charges being brought against government
actors. Could domestic action push South
Africa to withdraw from the ICC?
Angela Mudukuti: While I firmly believe in the work
of the ICC, hybrid tribunals and courts, I believe that
in many instances justice is best served domestically.
AMU: In the al-Bashir case, the South African
government had failed to comply with its
obligations to arrest him and had been taken
to court. This had ruled that, by letting al-
Bashir go, the government was in contempt
of the court order. The state had ultimately
taken the case on appeal to the countrys
Constitutional Court, after losing in the
other courts. To bring a criminal contempt
action, one would have to rely on the
national prosecuting authority: alternatively,
the option of bringing a civil contempt suit
would have to wait for the Constitutional
Courts judgement. As to whether South
Africa would withdraw from the ICC, a Bill
had been tabled in Parliament, though
that too was in abeyance, pending the
Constitutional Courts ruling. AMU pointed
out that Al-Bashir had been warned off 2
or 3 time previously, and so there was really
no doubt about South Africas obligation.
She felt that the time had come to engage
in advocacy.
MK: On the subject of prosecutorial
discretion and consistency in prosecuting
international crimes, the Ugandan ICD was
prosecuting Thomas Kwoyelo, another
alleged offender, Okello, had been kept
in military custody and protected from
prosecution, while the Dominic Ongwen
case had been sent to the ICC despite
President Musevenis criticism of the Court.
Was Uganda forum shopping? How could
- 24 -
one understand Ugandas position when
there was so little consistency?
CK: Denying that Ugandan justice had
been selective, CK insisted that Kwoyelo
had been indicted because it was a big
case involving 7 attacks, 113 witnesses and
over 150 exhibits.
MK: There needed to be some degree of
political space for universal jurisdiction to
work. Furthermore, looking at the political
element, the presumptions that MV had
listed were essentially the same as those of
the ICC. So, why would African states view
universal jurisdiction any differently to the
involved in cross-border operations,
anything more than an imposition on them?
MV: Addressing the political element, MV
recounted how Belgium had changed its
universal justice law following pressure from
Israel and the USA. Pressure from these
same countries had subsequently led to
amendments to Spanish legislation, and
in 2104, after similar pressure from China,
Spain had introduced a 5-page provision
that rendered implementation almost
impossible. Thus, Spain had given in to the
sort of economic pressure which he would
describe as corruption or bribery but
which, at an international level, was called
diplomacy. A topic that had not been covered the
Q&A
A brief sampling of comments on some
points of interest from the floor
Criticisms of the Ugandan ICD, from
the floor
These included the fact that: capacity
building was often defeated by rotation
of staff; the process was marked by
selective prosecution; victims in field were
not convinced by the ICD, and in addition,
believed in traditional mechanisms.
Rules of Procedure
CK: One needed to think critically about
procedures that were indigenous to the
local system. One needed to indigenise
the process, otherwise one would end up
having very complicated, very expensive
procedures that defeated the very purpose
for which they had been introduced. When
it came to domesticating international
criminal justice, this should be localised
as far as possible. Furthermore, adopting
Rules of Procedure often implied amending
a whole series of laws: indeed, this had
been the case with the IOCD. One should
be careful before assuming that an ICC
procedure was superior to a local one.
Where there were combatants
what challenges were being faced?
CK: In the case of Ugandans operating
in the Congolese forests, there were
competing extradition requests with the
Congo. They were hoping to work with
victims in both the DRC and Uganda.
Advocacy: What was the relationship
between AMUs organisation and
Zimbabwe?
AMU: The Zimbabwe Torture Case was
about South Africas obligations, and as a
result, advocacy was currently centred on
South Africa. Zimbabwe would follow.
Head-of-State immunity and the al-
Bashir case (insofar as one of the
arguments put forward by the South
African government was that he had
been invited by the AU and not by South
Africa).
to be heard.
Adewale E. Iyanda from the floor:
previous day was immunity in the case of
states that were not States Parties to the
Rome Statute: the AU felt that al-Bashir had
not been on South African territory and, as
a result, the South African courts were not
entitled to exercise jurisdiction.
CK: Trying to prosecute those who held
power, as had happened in Kenya, was a
dead end. In Africa there were challenges
of false positives and false negatives, i.e.,
a tendency to be strong on rhetoric alone.
A false negative existed where a state
announced that it would not join the Rome
Statute or be part of the international justice
system but nonetheless tried to prosecute
international criminal cases domestically to
the best of its ability. The false positive, on
the other hand, was where the AU and
many African countries stood, which
consisted of professing allegiance to
international criminal justice and yet
doing absolutely nothing domestically,
i.e., passing a raft of model laws, as in
Kenya, but doing nothing concrete in
real terms.
AMU: There had been no AU-related
obligation to host a summit, e.g., Malawi
had refused. In addition, a host nation
hosted on its own terms. South Africa had
always been aware of its duties. Moreover, have been misinterpreted, and expressing
there had been domestic arrest warrant for his respect for the AU: he was confident
al-Bashir. that the fight against impunity was in Latin
America and in Africa, and knew that the AU
Rod Rastan from the floor: had expressed its commitment in a number
where there was a UN Security Council of ways. Indeed, the AU Model Law on
referral the Court deemed the Rome Statute Universal Jurisdiction had been a
very good step. An important aspect of
universal jurisdiction was raising awareness,
Don Deya: e.g., one of the most controversial cases
It is not an easy time to in Spain involving a so-called exercise
of universal jurisdiction had been that of
be optimistic in Africa. the DRC and, specifically, Rwanda, with
Strong institutions are the whole venture being caricatured as
the idea of one crazy Spanish judge.
needed to counter strong However this accusation had been wholly
men at regional a national, inaccurate, as there had been nine Spanish
sub-regional, continental victims; and universal jurisdiction had
been instrumentalised precisely because
and international level. there was no general provision for passive
jurisdiction under Spanish law. There had
been no attempt to revise the genocide.
(including Article 27) to be applicable. Neither was it true that the judge sought to
When the ICC had jurisdiction, the ignore presidential immunity: the indictment
whole package went in. had set out in detail why it could not be
issued against the person of President
Diversity of opinion Paul Kagame. A universal jurisdiction case
Adewale E. Iyanda from the floor: required the commission of an international
it was important to have diversity at events crime, full impunity, use of universal
of this nature. jurisdiction as a last resort, and support from
At this Bettina Ambach interjected from the victim, who needed to travel abroad to
the floor to make clear that Wayamo- choose the most feasible jurisdiction, where
AGJA had made every attempt to ensure domestic legislation made provision for
diversity and explained that in the case of universal jurisdiction. Without the exercise of
the Cape Town symposium, invitations had pure universal jurisdiction, the corner-stone
been extended to all sides. She felt very case involving Pinochet would never have
strongly that it was essential for all voices taken place.
Universal jurisdiction
Adewale E. Iyanda from
the floor:
A common understanding
of universal jurisdiction was
essential and the AU had thus
adopted a model law on the
matter. The same issue was
before the UN.
Stephen Rapp from the
floor:
Universal jurisdiction was
applied when the perpetrator
was present in person on the
territory of the state seeking
to exercise such jurisdiction
and was quite popular. Passive
jurisdiction also applied in
cases where nationals were
killed on another states
territory. As opposed to pure
universal jurisdiction, such extra-
territorial cases were becoming
increasingly important.
MV: He wished to begin by
clarifying any remarks about
the AU (as regards universal
jurisdiction having no future,
being useless, etc.) which might Athaliah Molokomme
Towa rd s a Sy st em of Int e r n at i on al Ju st i c e
PANEL VI:
African accountability for international
crimes: the SCC in the Central African
Republic, the Extraordinary African
Chambers within the Senegalese courts,
and the African Court on Human and
Peoples Rights and its proposed expansion
to include international crimes
- Moderator -
Patryk I. Labuda
Geneva Academy of International
Humanitarian Law and Human Rights
- Panellists -
Catherine Samba-Panza
Former Transitional President of the Central
African Republic and AGJA member
Adewale E. Iyanda
Office of the Legal Counsel, African Union
Commission
Don Deya
CEO, Pan African Lawyers Union, Arusha
Selemani Kinyuyu
Advocate of the Tanzania High Court, and
Chief Adviser to the Pan African Lawyers
Union on Research and Advocacy on
Governance and Human Rights
Catherine Samba-Panza (CSP)*
African responsibility for international crimes:
the Special Criminal Court in the Central
African Republic
----------
Selemani Kinyunyu, Catherine Samba-Panza, Patryk Labuda, Don Deya and Adewale E. Iyanda
* NOTE: Since Madame Samba-Panza read her address in full, accompanied by an informal translation by Patryk Labuda, what follows is an
abridged version in English. Kindly see the Appendix for the complete, original, French-language version of her address]
CSP dealt with the Special Criminal Court
under 4 heads, i.e., context, main features,
main stages of implementation, and
challenges and problems lying ahead.
CONTEXT
Since the beginning of 2013, the Central
African Republic (CAR) had been in a
profound crisis characterised by widespread
violence that had claimed over 3,000
lives, including hundreds of victims of
sexual crimes. The biggest challenge was
to investigate and try those responsible
for these abuses, which constituted grave
violations of human rights and international
humanitarian law. The impunity that had
plagued the country for many decades
had enabled the commission of numerous
crimes. Justice for serious crimes was an
imperative for a truly sustainable peace in
the CAR, and the holding of fair and just
trials was not only an obligation to victims
who had suffered atrocious crimes, but
would also send a strong signal that serious
crimes would no longer be tolerated.
However, the CARs judicial system had itself
suffered from the consequences of this
conflict and had limited means, in terms of
staff and material resources, to investigate
complex crimes involving armed groups
that were still active. Accordingly, a special
tribunal had been created to combat
impunity and restore the rule of law.
The 2015 Act which had set up the Special
Criminal Court (SCC) was one of the
signal achievements of the transition. The
transitional authorities wished to make the
SCC a key tool in the fight against impunity,
something that showed the CARs strong
commitment and willingness to bring the
perpetrators of serious crimes to justice.
- 26 -
MAIN FEATURES OF THE SPECIAL CRIMINAL
COURT
The SCC was a hybrid court, composed of
12 CAR and 11 international judges. Under
Article 3 of the Act, the SCC would investigate
the most serious crimes and prosecute
perpetrators of war crimes and crimes against
humanity committed on CAR territory since
2003.
The SCC was unique in the world, in that
it was integrated into the CAR judiciary
and the applicable law was CAR law. By
combining referral to the ICC with the creation
of a specific and strengthened national
mechanism, the CAR was paving the way for
the fight against impunity. It was also the first
time that a hybrid court had been established
in a situation where the ICC was active.
MAIN STAGES OF IMPLEMENTATION
The implementation of the SCC was
proceeding on an incremental basis. The
first stage would support the immediate
operationalisation of the judicial police and
prosecutors, so that investigations could start as
soon as possible. This initial three-phase stage,
planned to last three years, would consist of:
support for investigations, prosecution and
training; assistance and protection of witnesses
and victims; legal assistance; and public
awareness-raising.
The second stage, which would focus on
support for trials, would see the setting up of
the assize and appeal chambers. This would
take a further two years. The SCCs existence
was thus for a term of five years, to be
renewed if necessary.
The international community had played a
significant role in the process of establishing
the SCC, both through its technical support for
the process of drafting and promulgating the
law and through the mobilisation of technical
and financial partners to ensure political,
technical and financial support for the courts
operationalisation and proper functioning.
To date, these were some of the preparatory
activities that had been carried out:
identification and refurbishment of the SCCs
proposed premises;
staff recruitment and selection;
adoption of terms of reference and profiles
of national and international candidates to
serve in the court;
adoption of the draft budget for Phase 1,
covering the first 14 months. Five million of a
total of USD7 million had been mobilised, with
the remainder yet to come.
However, priority actions need to be taken to
make the SCC operational in its first phase:
there was the matter of the recruitment of the
International Special Prosecutor. It was hoped
that this, plus the appointment of a deputy
Special Prosecutor (a CAR national), could be
achieved in a short space of time.
CHALLENGES AND PERSPECTIVES
The AGJAs mission to Bangui in September had
been marked by a number of meetings and a
conference to discuss the challenges that still
lay ahead in order for the court to become a
reality. Indeed, during the various meetings and
discussions with the relevant actors, there had
been a real enthusiasm for the court and the
feeling that SCC should be operationalised as
soon as possible.
It also became apparent that SCCs
operationalisation process faced several practical,
technical, legal and operational challenges. These
included the following:
the need to deliver justice to the greatest
number of victims while taking into account the
operational realities and real financial limitations.
Hence, the importance of mapping victims needs
to avoid raising false expectations;
effective outreach to sensitise and manage the
expectations of the affected populations;
a prosecution strategy with objective and
transparent criteria, so that the public knew why
certain crimes were or were not being prosecuted;
a clear strategy to support victims, reliable
funding to address both collective and individual
reparations;
practical security needs for ensuring the
protection of victims and witnesses alike, as well
as that of other judicial actors, such as judges,
prosecutors and judicial police officers;
the urgent need for more information and
communication activities with stakeholders and
national actors, to ensure national ownership of
the court;
Catherine Samba-Panza
the question of the legacy of the court was
important, in order to strengthen the national
judicial system in the long term;
the lack of sufficient, qualified staff, with the
concomitant danger of leaving the national
caseload unattended. Capacity building was
thus required to draw on the experience of other
international tribunals;
the challenges posed by the existence in the
CAR of several jurisdictions, i.e., the ICC, SCC and
ordinary courts, and the ensuing need for co-
ordination;
the question of the rights of the accused and the
defence, notably the problem of special defence
counsels and legal aid;
other issues included the problem of co-
ordination between the SCC and the ordinary
courts, which would be asked to play an important
role in bringing an end to impunity and so had to
be supported; and lastly,
the relationship between criminal justice and
transitional justice, social justice (reconciliation)
and amnesty had also been a concern.
In summary, it emerged that the SCC project was
being gradually implemented but that a number
of people had not been aware of the progress
made in the establishment of the court. More
needed to be done in this regard to reassure the
public. The SCC was in need of support at the
national and international levels, and the AGJA
could play a part in this.
Don Deya (DD)
African accountability for international crimes:
possibilities within the current African human rights
system
- 27 -
Richard Goldstone
By way of introduction, DD remarked that, it
was not an easy time to be optimistic in
Africa. A lot of work had only yielded mixed
results: strong institutions were needed
to counter strong men, at a national, sub-
regional, continental and international level.
Division of labour was thus needed.
Echoing Angela Mudukutis reflections, DD
said that the quality of laws, institutions,
mechanisms or results achieved would be
directly proportional to the quantity and
quality of African citizen engagement and
work invested. In the context of the so-called
shrinking CSO space, to what extent would
African citizens and CSOs fully occupy the
space that existed, and -more importantly-
create new spaces and opportunities?
The African Human Rights System could
contribute to:
good entry points for African citizens to
influence and make demands on how
conflicts (and other mass atrocities) were
being prevented, mediated, resolved and
accounted for;
state responsibility for mass atrocity crimes, at
least to expose those most responsible and, in
some instances, trigger actual accountability
-criminal and civil- for individuals and institutions;
and
the broader spectrum of transitional justice
measures, such as truth-seeking, reparations,
etc.
The Libyan case
DD now turned to a practical example
in the shape of Libya. Libyan CSOs, with
their international partners had filed 2
communications at the African Commission
Towa rd s a Sy st em of Int e r n at i on al Ju st i c e
on Human & Peoples Rights, in Banjul (The
Gambia). The Commission then referred
the matter to the African Court on Human
& Peoples Rights in Arusha. In a ground-
breaking decision, the Court had ordered
the Libyan Government to stop killing and
torturing its citizens forthwith, and to report
back to the Court. Nobody had expected the
Gaddafi Government to take any heed, yet it
appointed an Ethiopian law firm to represent
it, denied the charge, and pleaded that it
had been legitimately putting down an illegal
insurrection
Two remarkable things had happened:
(i) Libya had submitted to the jurisdiction of
a young international court, thus setting a
precedent; and,
(ii) this had been achieved, while the conflict
was still ongoing.
Despite the passing of the UN Security Council
Resolution and the end of the Gaddafi regime,
the Pan African Lawyers Union entered an
Amicus Curiae brief and argued the principle
of continuity of state responsibility despite a
change of regime.
The lesson learnt was how the continuum
of CSOs, the Commission and Court could
potentially work together in a very fluid and
dynamic conflict/mass human rights violation
situation, using fact-finding missions, public
hearings (e.g., as during the suspension of the
Burundi talks) and treaty-reporting, in a way
whereby citizens could engage with states
and the AU.
Two of DDs recommendations included
pushing for adoption and implementation
of the draft African Union Transitional Justice
Policy Framework, and the possible use of the
doctrine of recognition as a means of what
was tantamount to removing governments or
heads of state.
Selemani Kinyuyu (SK)
A Continental African Criminal Justice System
Genesis
SK began by a giving a quick historical
review of the events leading up to the current
situation. The genesis of a continental African
criminal justice system emerged in 1981
during the conceptualisation of the African
Charter. Then, in 1989, Trinidad and Tobago
requested the UN General Assembly to create
a court to deal with drug trafficking and other
transnational criminal activities. In 1998, during
the drafting of the Ougadougou Protocol
establishing the current African Court, the idea
of vesting the African Court with a criminal
jurisdiction was revisited without success.
In early 2006, the AU appointed a committee
to examine the question of Hissne Habr. One
of its recommendations was the establishment
of a single continental court that would be
Hassan Bubacar Jallow
vested with criminal jurisdiction. Unfortunately,
this recommendation had been submitted at
the same time that the AU was considering
merging the African Court of Justice and
Human Rights and the African Court on Human
and Peoples Rights, and was not followed.
In 2007, the AU adopted Article 25(5) of the
African Charter on Democracy Election and
Governance, and in early 2009, it decided
to examine the implications of extending
the jurisdiction of the African Court to try
international crimes.
Tri-jurisdictional Court
Finally, in mid-2014 the International Crimes
Protocol was adopted: to date there had
been 9 signatures but no ratifications. The
Protocol had created a tri-jurisdictional court
with 3 chambers. There was a General Affairs
Section, Human and Peoples Rights Section
and an International Criminal Law Section,
with a pre-trial chamber, trial chamber and
appeals chamber.
Jurisdiction
The court had jurisdiction over international and
transnational crimes, as well as other crimes
- 28 -
of serious concern to African states, including
unconstitutional change of government, piracy,
terrorism, mercenarism, corruption, money
laundering, people and drug trafficking, and
illicit exploitation of natural resources.
Cases could be brought by States Parties, the
Assembly, the Parliament and other organs
of the Union authorised by the Assembly, the
Peace and Security Council, the Office of the
Prosecutor; and African individuals or African
NGOs with observer status before the AU.
Complementarity
The Protocol provided for complementary,and
the possibility of seeking the co-operation or
assistance of regional or international courts,
non-States Parties or co-operating partners of
the AU.
What did this mean?
(i) There were different, evolving perceptions
about the scope of international criminal
justice. For a long time within Africa, there
had been a strong understanding of the
relationship between enabling crimes such provided for an African Hybrid Court, to
as terrorism and financial crimes, and core
crimes. According to the Policy Paper on Case
Selection and Prioritisation recently issued
by the Office of the Prosecutor (OTP) of the
ICC, the OTP would seek to co-operate with
states as regards conduct amounting to
serious violations of national law, such as the
illegal exploitation of natural resources, arms
trafficking, human trafficking, terrorism, financial
crimes, land grabbing or the destruction of the
environment.
(ii) An African court with criminal jurisdiction
opened up new avenues for protection and
redress for victims of human rights abuses. For
the first time, victims and NGOs could trigger
the opening of a case. Working hand-in-hand
with the human rights section, the Prosecutor
could thus receive evidence and information
which could then be used in the criminal
section.
(iii) The Criminal Section would have
complementary jurisdiction with the ICC and
other regional courts. Despite political tensions,
this opened up interesting possibilities for co-
operation at the judicial level.
In all, the inclusion of criminal jurisdiction could
be viewed as a new dimension, marking a
shift from state to individual accountability in
the case of commission of grave human rights
breaches.
Adewale E.Iyanda (AEI)
The Hybrid Court for South Sudan
Background
South Sudan, the worlds newest nation
attained independence on 9 July 2011.
What started as a political feud within the
governing SPLM party in July 2011, had led to
a split, which in 2013 escalated into an almost
3-year, ethnic-based civil war, with devastating
humanitarian consequences, in the form of
thousands of civilians killed, nearly 1.6 million
internally displaced persons,1million refugees,
and basic infrastructures destroyed.
AU intervention
The AU had been criticised for not responding
but just two weeks after the conflict erupted,
the AU Peace and Security Council met to
call for the establishment of a Commission
of Inquiry on South Sudan to investigate the
human rights violations and other abuses
committed during the armed conflict and
make recommendations on the best ways and
means to ensure accountability, reconciliation
and healing among all the countrys
communities. After a series of interviews and
visits to camps, alleged crime scenes, etc., the
Commission found that there were reasonable
grounds to believe that certain crimes (murder,
rape and sexual violence, torture, etc.) though
not genocide, had been committed.
In line with the Commissions recommendations,
the 2015 Agreement on the Resolution of
the Conflict in the Republic of South Sudan
the country, an element of uncertainty had
investigate and prosecute individuals bearing
the responsibility for violations of international
law and/or applicable South Sudanese law,
committed from 15 December 2013 through
the end of the transitional period
Conceptual framework
Noting that some matters were still highly
sensitive, AEI said that he would restrict himself
to what was in the public domain. The Court
was to be established by the AU Commission
(AUC), which had to look at the type of
instrument required and how to domesticate
it under South Sudanese law, and provide
guidelines on, inter alia, the Courts location,
infrastructure, composition and funding
mechanism, enforcement mechanism and
jurisprudence. The seat of the Court was to be
decided by the Chairperson of the AUC.
Civil society would be pleased to know
that immunity would not bar the Court from
exercising its jurisdiction and official capacity
would not exempt anyone from criminal
responsibility.
Catherine Samba Panza:
Justice for serious crimes
is an imperative for a
truly sustainable peace in
the CAR. Holding fair and
just trials is an obligation
to victims of atrocious
crimes and will send a
strong signal that serious
crimes will no longer be
tolerated.
Lastly, the Hybrid Court was to leave a lasting
legacy, by ending the culture of impunity,
promoting the rule of law, implementing
judicial reforms and building institutional judicial
capacity.
Jurisdiction
The Court was to be independent from and
enjoy primacy over the national courts. It was
to have jurisdiction over genocide, crimes
against humanity, war crimes and serious
crimes under international law and relevant
laws of the Republic of South Sudan, including
sexual- and gender-based violence.
Composition
Judges were to be from African States but
predominantly non-South Sudanese and
would be selected and appointed by the
Chairperson of the AUC. The Prosecutor and
defence counsel had to be African other than
South Sudanese (though defendants had the
right to select their own defence counsel).
In view of subsequent political events, with one
of the main stakeholders no longer being in
DD: The AUC had in fact acted on Burundi.
been introduced into the situation.
- 29 -
Q&A
A brief sampling of comments on some
points of interest from the floor
AEI had said that proposed hybrid court in
the Sudan would not countenance immunity:
did this indicate a move by the AU to revisit
the Malabo Protocol?
AEI: In view of the fact that certain texts
had been adopted by heads of state and
been the subject of intense negotiation, it
was felt that the provision for immunity and
the calls on the ICC to respect this could not
be ignored, and that not to have included
it in the Malabo Protocol would have been
hypocritical. However, it was an issue around
which there was ongoing debate and there
was a possibility of the Malabo Protocol being
revisited somewhere down the line.
What were the lessons to be learnt from the
ICC to ensure a strong African Court?
DD: There was no equivalence with the Rome
Statute in terms of drafting. The key point was
the extraordinary summit called by Kenyatta
in 2013, which had left no option but to obey.
Politics did cast a long shadow over the law.
One should therefore not treat the Malabo
Protocol any differently to the way in which
one treated the Rome Statute. They would
prosecute whom they could, and make such
amendments as they could, when they could.
One had to acknowledge the duplicity and
double standards that were at work in the
international system: this would serve to help
dialogue.
The hybrid court was to be wholly staffed by
Africans: would it not be desirable to benefit
from the experience/knowledge of people
from other continents?
AEI: The fact that under the Agreement,
defendants had the right to choose their
own defence counsel might allow for the
participation of non-Africans.
FEMI FALANA FROM THE FLOOR:
With reference to the situation in Burundi, he
had sent a petition to the AUC and made
an application to the African Court but had
received no response from either: what would
the panels advice be?
Furthermore, it was pointless to apply to the
Court if Burundi had not made the necessary
Towa rd s a Sy st em of Int e r n at i on al Ju st i c e
declaration.
Both initiatives (i.e., Sudan and the CAR)
were important but had been under debate
for a long time: what could CSOs and human
rights groups do to support them?
AEI: There was civil society space in the
AU, e.g., the AU had entered into a number
of Memoranda of Understanding with
CSO groups. In addition, CSOs could raise
awareness in South Sudan, with a view to
making the government accountable and
ensuring that procedures were in line with the
law.
Was the current CAR government as
enthusiastic as CSP about the Special Criminal
Court?
CSP: While it was true that the transitional
government had laid the foundations for
the Court, it was nevertheless the current
administration that was taking the project
forward, e.g., by adopting terms of reference
for hiring judges. The SCC remained a priority
of the current government, and indeed
the President had expressly mentioned
this at the UNO. CSOs could help when it
came to taking ownership of the project,
by raising awareness, undertaking training
and engaging in outreach at home, and
participating in international actions for
financial and technical support abroad.
Ka Yan Leung
PANEL VII:
Towards a system of global justice: current
obstacles to consolidating a system of
international justice and the way forward
- Moderator -
Athaliah Molokomme
Attorney General of Botswana and AGJA
member
- Panellists -
Hassan Bubacar Jallow
Former Prosecutor, International Criminal
Tribunal for Rwanda and International
Residual Mechanism for Criminal Tribunals,
and AGJA member
Catherine Samba-Panza
Former Transitional President of the Central
African Republic and AGJA member
Hon. Mohamed Chande Othman
Chief Justice of Tanzania
----------
Athaliah Molokomme (AM)
The focus of the panel was to bring
together the proceedings of the previous
two days and determine whether a system
of justice was taking shape, what the
challenges and obstacles to consolidation
might be, where the way forward lay, and in
essence, what the overall picture was.
- 30 -
Hassan Bubacar Jallow (HBJ)
It had been just over 2 decades since
the creation of a modern system of
international justice, with the creation
of the ICTY, ICTR and other tribunals. This
short space of time had been a very
productive period in terms of the quantity
and quality of people brought to account
for international crimes at international
tribunals, i.e., a total of over 300 high-level
personalities whom it would otherwise have
been almost impossible to try. In addition,
there had been advances of other kinds,
including the generation of extensive
jurisprudence on international crimes, such
as genocide, and the development of best
practices for investigation, prosecution and
management. This had had a good impact
on communities and made international
justice an acceptable part of international
relations.
Though many challenges still remained, he
would mention just 4 areas:
(i) the need to consolidate and secure
the advances made to date in formulating
best practices;
(ii) ensuring universality in terms of
membership of Rome Statute and dealing
with perceptions of bias;
(iii) giving effect to complementarity; and,
(iv) the global political environment.
Need to secure and consolidate
advances in national systems
There was very little reflection of these
advances at a municipal level, inasmuch
as the jurisprudence of international justice
had not trickled down and found its way
onto national statute books, e.g., the
definition of rape had been changed only
in Costa Rica. Yet, this was something that
made the prosecution of sex and gender-
based violence much easier to accomplish.
A Best Practices Manual on the Investigation
and Prosecution of International Crimes
had been developed for use by national
authorities. Similarly, other areas had also
been touched upon. Nevertheless, a lot
more had to be done. Not only did these
manuals need to be used for capacity
building at both an international and
national level, much also remained to be
done in the way of identifying, compiling
and disseminating these recommended
practices. There were important lessons to
be learnt in how to establish, run, maintain
and manage international tribunals. A
way had to be found to help national
jurisdictions incorporate the jurisprudence
developed by international tribunals into
their legal systems.
Universality
There should be universal membership of
Catherine Samba-Panza, Mohamed Chande Othman, Athaliah Molokomme and Hassan Bubacar Jallow
the Rome Statute. Very important, powerful
states with influence that shaped the
law still remained outside the Statute. A
concerted international effort, a concerted
campaign, was thus needed to persuade
such states to join the Rome Statute
system. Sadly, there was also the issue of
perceptions, e.g., as to the biased nature
of international justice. Such perceptions
(whether right or wrong) mattered and
were not to be dismissed: one had to look
at them, otherwise the process, and the
Africa/ICC relationship in particular, would
be undermined.
Complementarity
There had been a shift in principles in the
administration of international criminal
justice, away from primacy to co-operation
with national systems. The ICC was based on
complementarity, which meant that primary
responsibility rested at the national level;
rightly too, since national jurisdictions could
handle a greater number of cases, with only
the most important and difficult being left
to the ICC. The future depended on how
effective complementarity became:
without effective complementarity there
was no way to ensure accountability at
either the national or the international
level. Only so much could be done at the
international level. Complementarity did not
come ready-made: so what was actually
being done to ensure that complementarity
was really effective? A concerted,
organised, international effort was
required to ensure that states had the
necessary means, laws, capacity and
institutions to perform this role. Nothing
was happening at present, and so one
should not assume that each state was
able to do its part. Sometimes states -even
in Europe- were not unwilling but, for one
reason or another, were simply incapable
of prosecuting cases of genocide. This
translated as a lack of accountability and
the ensuing frustration felt by victims.
One had to be more elastic in ones
thinking, e.g., there was a need for regional
courts that were willing to take on criminal
jurisdiction. Such regional courts could
become an important potential link in the
chain of complementarity.
Political environment
There had been a more conducive
environment at the time of the ICCs
creation. Now, however, there was a lack of
unanimity in the UN Security Council. There
were many proposals for hybrid courts but
these proposals just seemed to remain in
the pipeline. In a nutshell, the environment
now was less supportive. One needed to
work on improving that environment, on
referring situations, such as Syria, to the ICC;
so many people had died, yet it seemed to
be impossible to ensure accountability.
Though much had been done and
achieved, more could be done to secure
past gains, give effect to the principle
of complementarity, shape the global
environment to be more sympathetic,
and clear misperceptions.
Athaliah molokomme (AM)
Hassan Jallow had succinctly and
comprehensively touched on the
challenges (noting here that she preferred
the term challenges to obstacles, since
the latter inevitably transmitted the idea of
insurmountability). If any challenges had not
been touched on or there were suggestions
to be made, she invited the public, including
the AU and CSOs, to put these forward.
- 31 -
Q&A
A brief sampling of comments on some
points of interest from the floor
International justice.
The Tanzanian Constitution did
not support the implementation of
international law. Countries like India had
gone far enough to enable Parliament to
amend the constitution. If this were not
done, politicians would find a way of
dodging international justice.
CSP: International justice had started taking
root only a few years ago in the form of
the ICC. Its judgement against Jean-Pierre
Bemba had reassured the population that
something was being done. She was fully
aware that the international justice system
could not deal with all crimes but was limited
to the big fish. Likewise, she was aware
that national courts were not equipped and
had too many cases, which was why an
international mechanism had been chosen,
even though it, in turn, had its own limitations.
The best practices of other tribunals had
been noted.
MOC: It seemed that there was consensus
on the fact that international justice was
multi-layered and multi-structured. He
Towa rd s a Sy st em of Int e r n at i on al Ju st i c e

agreed that there should be deference to and while these requests had been noted, interesting to ascertain what governments
national institutions. There was a need for finance was of course always the problem. were thinking. Similarly, he would give some
increased realisation at a national level This was why it was so important to thought to the recommendation to use the
that addressing international crimes was collaborate with other groups that had the Southern African Chief Justices Forum. Until
an area of specialisation. Countries were same objectives. now it had focused on national justice, and so
building capacity to address drug trafficking there was certainly scope for an international
and other international crimes. There was AM: The AGJA took advantage of its dimension.
a great deal of debate in Tanzania as to biannual meetings, such as that which had
whether such specialisation should be in the been held on the preceding Monday, to SUMMING UP
form a court or a special division. engage in its other activities. Some members AM: By way of summing up, AM said it had
Domestication was another issue. There would be meeting again in The Hague, been a very enriching two days during which
was a need for enlightenment when it where an ASP side event was to be held. The a lot had been learnt and shared. Noting that
came to addressing international law and Group was drawing up a long-term strategic Hassan Jallows presentation had been very
constitutional matters. Regional justice had plan. In addition, it had a comprehensive list positive and optimistic, she confirmed that a
great potential, with lessons to be learnt of experts on whom it could call. lot had indeed been done in the past two
from regional economic courts which had decades but she was nonetheless grateful
already tackled a number of issues, such as Some recommendations from the floor to hear that note of optimism. Reviewing the
sovereignty. Rather than being just another capacity- four areas he had identified and the points
Until now there had been no success story building organisation, the AGJA occupied raised by participants, she highlighted what
in terms of complementarity, so that current a unique place. High-level dialogue she saw as some of the most salient aspects:
situations such as the CAR were test cases. was important and it was essential to
consider how this should be conducted and Firstly, the need for the domestication,
AU, civil society and the AGJA structured. consolidation and alignment of laws
Adewale E. Iyanda from the floor: and the establishment of tribunals at a
This event had shown how imperative Dissemination of international criminal national level.
dialogue between civil society and justice: There were very few universities
government structures was. It was offering post-graduate courses. This was an Secondly, while capacity building was a
recognition that the international justice area to be looked at. somewhat broad concept, she acknowledged
system, albeit imperfect, did provide a the sentiments expressed from the floor, in
mechanism. Dialogue such as this made The AGJA should consider using the the sense that the AGJA should engage
it possible for recommendations to be Southern African Chief Justices Forum as more in outreach work, taking advantage Elise Keppler Bettina Ambach
heard and acted upon. Domestication and a platform. of and leveraging its expertise and
implementation of legal frameworks was networks to work with lobby advocates
one of the continents biggest challenges. The Group had a potential that many NGOs and raise awareness, using NGOs and
Civil society could CSOs to package
help through ad- the information.
vocacy. Indeed, the Adewale E. Iyanda: This event has shown how Continuous work Burundi Statement
AU had a platform was necessary, even
for that, where AU
imperative dialogue between civil society and where there were no
The Africa Group for Justice and Accountability is deeply concerned by and calls for further
representatives sat government structures is. The international crises: prevention,
at the highest level. justice system, albeit imperfect, does provide a she said, is better
engagement on Burundi decision to withdraw from ICC.
CSOs should be than cure.
using this possibility. mechanism. Dialogue such as this makes it possible The Africa Group for Justice and Accountability (AGJA) expresses its profound disappointment and concern at
Wayamo should for recommendations to be heard and acted upon. Thirdly, aside from
the government of Burundis decision to withdraw from the International Criminal Court (ICC).
hold an event in criminal jus-tice
Addis Ababa. and trials as a
did not have, and should therefore engage means of res-ponding to human rights The Africa Group views the move as a potential obstacle to achieving accountability for crimes committed in
HBJ: He thanked the AU for the proposal with decision-makers at a neuralgic violations, attention should also focus on Burundi. This decision deprives the victims of human rights violations in the country of a recourse to justice.
and was sure that the AGJA would level. other areas where there were gaps, such
welcome it. as reparations.
Justice systems were a little mysterious to The Africa Group strongly urges President Pierre Nkurunziza to use his good offices, and along with his
The AGJAs role: what was the AGJA victims and needed demystifying. Outreach in Fourthly, non-African States Parties had government, reconfirm Burundis commitment to the human rights of the people of Burundi and to the Rome
going to do that was impactful and the kind of traumatic situation epitomised by an important role to play, not only in
Statute.
would make a real difference? Kenya could make use of NGOs and CSOs to complementarity but also in lobbying.
package the information. Refraining from intervening was no less
HBJ: As regards roles, the idea was that than an abdication of responsibility: We also call upon the government to reconsider its decision to withdraw from the ICC. The Group also
the AGJA would be engaged in capacity The main aim of capacity building was they should not stand back. Similarly,
encourages other Member States of the ICC to work with the Burundi government to retain its membership in
building while its individual members entered complementarity, i.e., to enable local outreach work should also be done
into dialogue with the political leadership of personnel to address international crimes at a by them to ensure that the UN Security this very important mechanism for fighting impunity and defending human rights.
states. Not only was the Group ready and national level. This gathered resource people Council was much more responsive and
willing to do this, but hopefully it would be who would not normally sit together and responsible institution when it came to The people of Africa and the African Union embrace the principle of accountability for international crimes, as
doing so in the near future. served to build up networks. Ignorance of acting as a gatekeeper.
what others were doing had to be overcome. exemplified by the recent trial, conviction and punishment in Senegal of Hissne Habr for crimes committed in
CSP: The AGJA had been in existence for New initiatives could be born in this way, as Lastly, there was a need to identify those Chad. The AGJA therefore urges the government of Burundi to support this noble ideal.
less than a year. First its aims had to be had been seen by the invitation extended to areas where the AGJA had a comparative
made known, especially in the Francophone the AGJA by the AU. advantage.
In line with its Kilimanjaro Principles, the Africa Group offers its expertise in facilitation and mediation to Burundi,
region. In addition a needs assessment had Thanking the public for their ideas and
to be carried out. In the CAR, a great deal MOC: He was grateful for the suggestions, AM now brought the symposium the ICC, and other relevant actors to ensure that justice for the victims of crimes in Burundi is not sacrificed.
of expectation had been placed on the recommendation to engage in outreach at to a close by asking Master of Ceremonies,
Group. Judicial and civil society had asked the highest level. The Group would just have Joseph Roberts-Mensah, to read out the
the AGJA to undertake capacity building, to look for the right platform. It would be Burundi Statement on behalf of the AGJA.

- 32 - - 33 -
Towa rd s a Sy st em of Int e r n at i on al Ju st i c e
APPENDIX TO PANEL VI
Original, unabridged, French-language
version of Madame Catherine Samba-
Panzas address
La responsabilit africaine pour les crimes
internationaux:
LA COUR PENALE SPECIALE EN
REPUBLIQUE CENTRAFRICAINE
CONTEXTE
La Rpublique centrafricaine est plonge
dans une crise profonde depuis le dbut de
lanne 2013, caractrise par des violences
grande chelle et de crimes graves contre
les civils ayant fait plus de 3 000 victimes,
notamment des centaines de victimes de
crimes sexuels.
Le plus gros dfi est celui de rechercher et de
juger les responsables de ces exactions qui
constituent des graves violations des droits
humains et du droit international humanitaire.
Limpunit qui svit dans le pays depuis
plusieurs dcennies a permis et incit la
commission de nombreux crimes. Faire justice
pour les crimes graves est un impratif pour
une paix vritablement durable en RCA. Ainsi,
des procs justes et quitables ne seraient
pas seulement une obligation envers les
victimes qui ont souffert de crimes atroces,
mais enverraient aussi un signal fort indiquant
que les crimes graves ne seront plus tolrs.
Or le systme judiciaire centrafricain souffre
des consquences de plusieurs annes de
conflits et ne dispose que de moyens limits,
en termes de personnel et de ressources
matrielles pour enquter sur des crimes
complexes impliquant des groupes arms
encore actifs.
Pour lutter contre limpunit de ces exactions
commises et restaurer lEtat de droit, un
Tribunal Spcial a t cr. des victimes, assistance judiciaire, et la
Adopte par le Conseil National de
Transition fin avril 2015, la loi organique n
15.003 portant cration, organisation et
fonctionnement de la Cour Pnale Spciale
a t promulgue le 03 juin 2015.
La cration de la Cour Pnale Spciale est un
des acquis de la Transition. Les autorits de la
transition ont en effet voulu faire de la Cour
Pnale Spciale un outil cl de la lutte contre
limpunit. Cette initiative, qui a tmoign de
notre engagement fort traduire en justice
les auteurs des crimes graves commis
lencontre des populations, a t salue par
lensemble des organisations et institutions
de protection et de promotion des droits
humains.
PRINCIPALES CARACTERISTIQUES DE LA
COUR PENALE SPECIALE
La Cour Pnale Spciale (CPS) est une
juridiction hybride: elle est compose
de 12 magistrats centrafricains et 11
internationaux. Aux termes de larticle 3 de
la loi, la Cour pnale spciale sera charge
denquter sur les crimes les plus graves
et de poursuivre les auteurs de crimes
de guerre et de crimes contre lhumanit
commis sur le territoire de la Centrafrique
depuis 2003.
La CPS est unique au monde; elle est
intgre dans lordre judiciaire centrafricain
et le droit applicable est le droit centrafricain.
En combinant le renvoi la Cour pnale
internationale (CPI) et la cration dun
mcanisme national spcifique et renforc,
la RCA ouvre la voie en matire de lutte
contre limpunit. En effet, la loi sur la Cour
pnale spciale prvoit sa coopration
avec la Cour pnale internationale (CPI),
qui a ouvert une seconde enqute en
Rpublique centrafricaine en septembre
2014. Ce sera la premire fois galement
quune cour hybride est tablie dans une
situation o la CPI est active.
Catherine Samba Panza: Il est en effet apparu au
cours des diverses rencontres avec les acteurs de la
Justice un enthousiasme palpable pour la CPS et le
sentiment que a CPS doit tre oprationnalise au
plus vite possible.
PROCESSUS DE LOPERATIONNALISATION
DE LA CPS
La mise en place de la CPS seffectue selon
une approche progressive. La premire
phase appuiera loprationnalisation
immdiate de la police judiciaire, des
cabinets dinstruction et du Parquet afin
que les enqutes puissent dmarrer ds
que possible. Cette premire phase
en trois tapes prvue pour durer trois
ans consistera en: appui aux enqutes,
ouverture des poursuites et linstruction,
assistance et protection des tmoins et
sensibilisation de la population.
La seconde phase qui sera axe sur
lappui aux procs permettra linstallation
des chambres dassises et de la chambre
dappel. Elle est prvue pour durer deux
ans. La dure dexistence de la Cour
Pnale Spciale est donc de cinq ans,
renouvelable en cas de besoin.
La communaut internationale a jou un
rle considrable dans le processus de
cration de la CPS, tant par son appui
technique au processus dlaboration et de
promulgation de la loi que par la mobilisation
des partenaires techniques et financiers
autour de lappui politique, technique et
financier ncessaire loprationnalisation
et au bon fonctionnement de la CPS.
A ce jour, les activits prparatoires
suivantes ont t ralises grce lappui
des partenaires internationaux:
Identification des locaux destins
recevoir les services de la Cour Pnale
Spciale et des structures qui lui sont
rattachs;
Cration du comit de slection des
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candidats nationaux aux fonctions de oprationnalise au plus vite possible. le problme de la scurit dautres acteurs attendu. Car la grande majorit des crimes
membres la Cour par arrt du Ministre Il est galement apparu que le processus de la justice (en dehors des victimes), commis en RCA tant de la comptence
de la Justice. doprationnalisation de la CPS est savoir des juges, des procureurs et des des juridictions de droit commun qui
Examen et adoption des termes de confront plusieurs difficults pratiques, au officiers de la police judiciaire; travaillent dans un environnement difficile,
rfrences et des profils des postes et des niveau technique, juridique et oprationnel. le besoin pressant de mener davantage il est important de renforcer leurs capacits.
candidats nationaux et internationaux aux Il sagit notamment des principaux dfis dactions dinformation et de communication La problmatique de la relation entre la
diffrentes fonctions la Cour. suivants: sur la CPS auprs des parties prenantes et justice pnale et la justice transitionnelle
Validation du document de Projet dappui le besoin de rendre justice au plus grand des acteurs nationaux afin dassurer une / justice sociale / amnistie a galement
la CPS. nombre de victimes tout en tenant compte appropriation nationale de la Cour; fait lobjet de proccupations, tout en
Examen et ladoption du projet du budget des ralits oprationnelles et des limitations la question de lhritage de la cour pour comprenant que ces mcanismes sont
de la phase 1 du fonctionnement de la CPS financires relles de ce tribunal hybride; que le systme judiciaire national soit complmentaires et non pas contradictoires.
couvrant les 14 premiers mois et qui slve do limportance dune cartographie des renforc long terme; En rsum, il est apparu que le projet de la
USD 7.074.217. Un montant de USD victimes pour viter de fausses attentes; le manqu de personnel qualifi et CPS se met en place progressivement mais
5.203.935 a t mobilis. Il comprend une les dfis dune sensibilisation efficace suffisant do la possibilit denvisager que plusieurs personnes ont t tonnes
bonne partie de fonds programmatiques auprs des populations affectes et la lappui et recrutement des magistrats et de ne pas tre au courant des avances
de la MINUSCA et les contributions des gestion des attentes des populations des greffiers trangers dans le cadre dune dans la mise en place de la Cour.
Pays-Bas, de la France, des Etats-Unis, du affectes pour permettre aux populations assistance technique; Il faut faire plus pour communiquer aux
Programme des Volontaires des Nations de savoir ce que peut et ne peut pas faire les dfis que pose lexistence sur le territoire gens les progrs dans loprationnalisation
Unies et du PNUD. Il reste mobiliser USD ce genre de tribunaux; centrafricain de plusieurs juridictions : la CPI, de la CPS afin de rassurer leurs attentes.
1.870.281. Un financement supplmentaire la problmatique de la stratgie des la CPS et les juridictions ordinaires; La CPS a vritablement besoin de soutien
des Etats-Unis a t envisag. LUnion poursuites avec des critres objectifs et La question des droits des accuss et de la au niveau national et international.
transparents pour que le public sache dfense, notamment le problme du corps Le Groupe Africain pour la Justice et
pourquoi certains crimes sont ou ne sont spcial davocats qui vont reprsenter les la Fin de lImpunit peut apporter sa
pas poursuivis; prvenus devant la CPS et la loi sur laide modeste contribution par des actions de
la ncessit dune stratgie claire et juridictionnelle qui nexistent pas; plaidoyer efficaces, par la mobilisation des
des procdures ralistes pour appuyer la problmatique de lappui financier et partenaires techniques et financiers autour
les victimes, un financement fiable pour technique de la CPS, de lappui politique, technique, juridique et
prendre en compte des rparations aussi Dautres questions se sont concentres sur financier ncessaire loprationnalisation
bien collectives quindividuelles; les aspects substantiels et procduraux du et au bon fonctionnement de la CPS.
les besoins pratiques scuritaires des cadre juridique de la CPS. Je vous remercie pour votre aimable
diffrentes parties prenantes de la CPS, Il en a t ainsi du problme de la attention.
Africaine, la Sude et le Nigeria pourraient savoir la protection des victimes et des coordination entre la CPS et les juridictions
galement contribuer. tmoins; ordinaires dont lappui est fortement
Des actions prioritaires restent cependant
raliser pour rendre oprationnelle dans
sa premire phase la Cour Pnale spciale.
Il y a le recrutement du Procureur Spcial
International. A ce propos le Ministre
de la Justice a mis le vu que ce
recrutement se fasse le plutt possible,
de prfrence, avant la tenue de la table
ronde de Bruxelles, autrement dit, au mois
doctobre au plus tard. Il semble que ce
recrutement sera bientt ou est presque
valid. Paralllement, le recrutement de son
adjoint qui est un national devra aussi se
faire dans les tous prochains jours.
Un chronogramme prcis des actions
mener dans la phase une est dj tabli.
DEFIS ET PERSPECTIVES
La mission du Groupe Africain pour la
Justice et la Fin de lImpunit Bangui en
Rpublique centrafricaine (RCA) au mois
de septembre dernier et la confrence
organise par la mission cette occasion le
22 septembre 2016 sur le thme : Pourquoi
la Cour pnale spciale? Contexte, dfis et
perspectives a t loccasion de rflchir
sur loprationnalisation de la Cour pnale
spciale et de relever les dfis qui restent
relever pour que cette Cour puisse devenir
une ralit, prte enquter et juger les
atrocits qui continuent dtre commises
dans le pays.
Il est en effet apparu au cours des diverses
rencontres avec les acteurs de la Justice
et des dbats lors de la confrence
un enthousiasme palpable pour la CPS
et le sentiment que la CPS doit tre Stephen Rapp and Adewale E. Iyanda
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 CONTACT
bettina aMbach
Director, Wayamo foundation
rietzestr. 21, 10409 Berlin, germany
tel. +49 30 921 455 45
info@wayamo.com www.wayamo.com
info@theafricagroup.org www.theafricagroup.org