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Comment on the Africa Question: “Is the International Criminal Court targeting Africa inappropriately?”

A Positive Impact Derived from ICC Investigations in African Countries: Catalyzing the Development in Domestic Legal Systems

Introduction

The International Criminal Court (ICC) has received much criticism about the Office of the Prosecutor’s (OTP) focus on African countries as, since the ICC’s establishment in 2002, all of the cases currently before the Court are against Africans and for crimes committed in Africa.1

Many African countries have not been able to appropriately deal with the atrocities, partly because they lack well-developed legal systems that would help guide the prosecution for grave human rights violations. For example, the Central African Republic’s (CAR) Court of Appeal, the highest judicial body in the country, recognized the inability of domestic courts to effectively investigate and prosecute war criminals,2 and the Democratic Republic of the Congo’s (DRC) government acknowledged that its legal system was not capable to properly deal with the criminal responsibility relating to the Bogoro massacre.3 ICC’s investigations and the principle of complementarity, however, have pushed these countries to develop their domestic legal systems in order to prosecute those responsible for atrocities.

Hence, regardless of criticism about the Court’s Africa bias, this comment proposes that there is at least one good result deriving from the ICC’s concentration on situations in Africa because, through the implementation and practice of complementarity, the ICC appears to have catalyzed the development of domestic legal systems in these countries to address mass atrocities. Part I briefly discusses how many African countries have not been able to prosecute those who are responsible for human rights abuses. Part II explains the principle of complementarity and its potential catalytic effect. Finally, Part III examines these catalytic effects in countries under ICC investigation.

I. Historically, Many African Countries have been Unable to Prosecute those Responsible for Human Rights Abuses

Many African countries lack the capacity to engage in prosecution of those responsible for grave human rights violations on their own.4 Therefore, impunity in these countries has largely prevailed. As the ICC’s senior legal adviser (an African) has stated: “No other continent has paid more dearly than Africa for the absence of legitimate institutions of law and accountability, resulting in a culture of impunity.”5

Some countries have explicitly acknowledged their inability to prosecute human rights abuses. For example, the Court of Appeal in CAR recognized the domestic courts’ inability to effectively investigate and prosecute war criminals.6 Furthermore, the DRC’s government acknowledged its inability to investigate and prosecute charges related to the Bogoro massacre.7 For others, a brief look at the history demonstrates the inability. For example, Kenya has suffered cycles of election violence, especially in the 1990’s when large-scale violence regularly accompanied its general elections.8 However, Kenya has not succeeded in brining those held accountable to justice.9

The inability to prosecute perpetrators accused of committing grave human rights violations stems at least partly from lack of resources and expertise. There are numerous factors that have played a role, like limited access to relevant human rights documents, including the difficulties to interpret these documents, lack of adequate case reporting, both domestically and internationally, attitudes of judicial officers and their lack of exposure to international human rights law, and lack of access to justice due to high cost of litigation and political pressures, among others.10

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II. The Principle and Effect of Complementarity: ICC Investigation Can Act as a Catalyst

The ICC’s investigation can have a significant effect in domestic legal system, because of its capability to act as a catalyst for legislative change and the building of capacity in domestic courts.11 The OTP has also recognized the ICC’s potential to act as a catalyst, stating in its Prosecutorial Strategy objectives of 2009-2012 that the preliminary examination phase “offers a first opportunity for the Office to act as a catalyst for national proceedings.”12

One of the strong forces behind this catalytic effect is the principle of complementarity. Based on the , national courts have a primary right to investigate and prosecute cases of mass atrocities, as both the Preamble and Article 1 state that the ICC’s jurisdiction “shall be complementary to national criminal jurisdictions.”13 The ICC has jurisdiction only if the state with original jurisdiction is “unwilling or unable genuinely to carry out the investigation or prosecution.”14 The previous Chief Prosecutor, Luis Moreno-Ocampo, also recognized the importance of complementarity and its potential positive effect on domestic prosecutions and noted that “an absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success.”15

Therefore, national courts are meant to maintain their jurisdiction, absent particularly defined circumstances articulated in Article 17 of the Rome Statute, as when national courts do not fulfill their obligation of trying those accountable. Thus, the principle of complementarity should encourage national governments to undertake prosecution for human rights violations so as to challenge admissibility or even preempt investigations against their nationals by the ICC.16

In evaluating whether the ICC investigation has made a difference for domestic justice mechanisms in such regard, it will be helpful to look at the steps that the countries have taken to develop their justice mechanisms so as to deal with mass atrocities. Some of the most important factors to consider would be making steps to establish a neutral domestic system by which to try international crimes as defined in the Rome Statute, and to enact domestic legislation to implement the Rome Statute of the ICC into domestic law.17

III. Examples of Catalytic Effects in Countries Under ICC Investigation

A. Libya, Kenya, Sudan

The investigations in both Sudan and Libya were opened as a result of a UN Security Council referral and Kenya’s investigation was opened under the prosecutor’s proprio motu powers. As such, all of the three countries have had a strong desire to avoid the ICC’s jurisdiction and challenge the admissibility of the cases to the Court. Therefore each of them have taken steps to advance their domestic legal systems in order to try to prosecute those responsible.

Libya is dedicated to domestically prosecute those accountable for atrocities committed during the Gaddafi era. UN Human Rights Council acknowledged in a Report of the International Commission of Inquiry on Libya that Libya has conveyed a commitment to human rights and has taken “positive steps to establish mechanisms for accountability” and is “gradually restoring the judiciary by reopening courts and recalling judges.”18 For example, the Report noted that there has been a proper development in the administration of criminal proceedings “against 41 Gaddafi loyalists accused of crimes during the conflict” and commended Libya for the steps taken in the legal protection of human rights by establishing the National Council for Civil Liberties and Human Rights which “has authority to receive complaints on violations of human rights and to file cases in court.”19

Moreover, Libya has made considerable effort in challenging the admissibility of the case of Saif al-Islam Gaddafi and Abdullah al-Senussi, and its admissibility challenge pursuant to Article 19 of the Rome Statute is currently before the pre-trial chamber.20 Based on its submissions to the Court, Libya has taken considerable steps to ensure an adequate domestic trial for the accused. For example, it highlighted the independence of the Libyan judiciary and noted that this independence and impartiality was emphasized in the Libyan Constitutional Declaration of 2011.21 Furthermore, Libya stressed that its fair trial guarantees are similar to those stated in the Rome Statute and noted that its Constitutional Declaration of 2011 has a specific provision upholding human rights and freedoms, as well as a segment that is entirely dedicated to Judicial Guarantees.22 So, Libya has made substantial efforts to develop its domestic legal system in hopes to try the cases currently under consideration in the ICC.

In Kenya, the cycle of unprosecuted election violence has supported the culture of impunity.23 Only after the 2007 election violence steps were made to break the cycle of impunity, mainly because of the existence of the ICC and its investigative powers.24 For example, the government appointed a Commission of Inquiry into Post Electoral Violence (Waki Commission), which recommended the creation of a special tribunal with international features to try those most responsible for the violence.25 Furthermore, in order to enforce the creation of the tribunal, the Commission generated a sealed envelope with the list of leading suspects and accompanying evidence to be handed to the ICC in case the government failed to create the tribunal.26 In 2008, Kenya’s Parliament also implemented the International Crimes Act to incorporate the Rome Statute into domestic law.27

In addition, soon after the Waki Commission report became available, the government took steps to implement the report’s recommendation. In order to set up a special tribunal, efforts were made to pass a bill in Parliament. Parliament voted on the bill on three separate occasions without success. However, the government promised to prosecute those responsible in national courts, rather than a special tribunal. Likewise, Kenya’s 2010 Constitution has a potential to offer support for such prosecution. For example, the new Constitution contained provisions for judicial reform and the vetting of judges and in 2012 these provisions were passed in Parliament.28 Therefore, despite some setbacks, Kenya has made efforts to develop its legal system to domestically prosecute those responsible.

Sudan has also made steps for domestic prosecution. One day after the ICC prosecutor announced an opening of investigation into the events in Darfur, the Sudanese government established the Special Criminal Court on the Events in Darfur (SCCED) in order to show the government’s willingness and capacity to prosecute people domestically.29 In addition, Sudan established two additional chambers for the SCCED and formed special investigative committees to administer the undertakings of SCCED.30 Also, a new special prosecutor for Darfur and senior legal advisors in each of the Darfur states were appointed to investigate crimes that occurred since 2003, and the new prosecutor has apparently completed an investigation of charges against Ali Kushayb, one of the individuals subject to an arrest warrant at the ICC.31 However, the government’s genuineness is suspect as there has been ineffectiveness in prosecuting and convicting those responsible.32 Interestingly, the court in Sudan used the Rome Statute as the operative law for the first time in its proceedings, regardless of the fact that Sudan has not ratified the Statute.33 Furthermore, efforts were made to reform Sudan’s criminal code, and the government passed amendments to the code in 2008 to incorporate international crimes such as war crimes and crimes against humanity to its criminal code.34 So, the use of the Rome Statute in Sudan’s domestic proceedings, as well as its legal reform, is a positive step towards proper trials for grave human rights violations.

B. Uganda, DRC, CAR

Uganda, DRC, and CAR referred the situation in their respective countries to the ICC. However, regardless of the self-referrals, these countries have also taken steps to develop their domestic legal systems in order to prosecute those accountable. One of the reasons for these developments in domestic measures is a preparation to potentially challenge complementarity, as well as to avoid future ICC investigations.35

Uganda, as a result of the ICC’s involvement, started to implement a mechanism for domestic prosecution of the international crimes enumerated in the Rome Statute.36 The interest in national prosecutions grew during the Juba peace talks as an alternative to the ICC prosecution. As a result, in July 2008, Uganda set up its own War Crimes Division (WCD) in order to assert jurisdiction over Rome Statute crimes as well as to build national capacity.37 Furthermore, in 2010, Uganda adopted the International Criminal Court Act, thereby incorporating the Rome Statute into Ugandan law. So, currently the WCD declares that it is set up “[t]o try genocide, crimes against humanity and war crimes, as well as terrorism, human trafficking, piracy, and any other international crime defined in Uganda’s 2010 International Criminal Court Act, 1964 Geneva Conventions Act, Penal Code Act, or any other criminal law.”38 Therefore, other than the constraints placed on the Court by the Ugandan Amnesty Act of 2000, Ugandan domestic legal system has now jurisdiction over grave human rights violations as laid out in the Rome Statue.39 Hence, Uganda has made substantial steps to enhance its capacity to domestically try those responsible for mass atrocities.

Furthermore, after DRC referred the situation in its country to the ICC for investigation, the DRC military courts launched their own prosecutions for war crimes and crimes against humanity. Significant judicial reform efforts were also undertaken because key Congolese government figures made efforts to assert primacy over the ICC.40 As a result, domestic military courts convicted a number of people. For example, in 2006 forty-eight soldiers were convicted for crimes against humanity in the Equateur Province.41 Moreover, in February 2012 perpetrators were promptly brought to justice in South Kivu military court, where nine officers were sentenced to imprisonment for crimes against humanity committed during an attack on Fizi town in January 1st.42 In all these cases, Congolese military courts used Rome Statute as the operative law and basis for convictions.43 In contrast, prior to the Rome Statute, the domestic law in DRC offered only very limited bases for international crimes prosecution.44

In addition, DRC has made efforts to implement the Rome Statute, and the Implementation Bill was introduced to the Parliament in 2008.45 The Rome Statute was not implemented at that time but a new bill was introduced at the National Assembly in September 2012, in order to “bring the DRC into conformity with the Rome Statute and allow more efficient and coherent domestic prosecutions of international crimes.”46 Therefore, the ICC’s investigation has had catalytic effect in the DRC, since it is unlikely that such development in the domestic legal system would have happened without the investigation.47

In addition, the ICC investigation in CAR appears to have been a factor for CAR authorities to commit to holding those responsible for crimes to account and to raise awareness of crimes.48 While no domestic prosecutions have taken place as of yet, the CAR legislators are determined to make a difference in their domestic legal system. For example, a revision was made to the Penal Code and Procedural Penal Code in September 2009, containing provisions on genocide, crimes against humanity, war crimes, and general principles of international criminal law.49 Furthermore, the government has made plans to implement several projects to strengthen the judicial system and facilitate the access to justice.50 Therefore, CAR’s domestic legal system’s ability to deal with cases involving human rights violations has improved.

Conclusion

Based on the examples above, in countries where ICC has proceeded with the investigation, efforts have been made to improve domestic justice mechanisms for serious international crimes.51 First, countries have attempted to hold perpetrators accountable in order to keep their cases in national courts.52 Furthermore, steps have been made to implement the Rome Statute in order to make it applicable within the domestic legal system.

This analysis makes clear that the ICC can meaningfully influence domestic governments. Indeed, without the involvement of the Court in these countries, it is improbable that the domestic courts would have originated proceedings or that there would even have a basis for human rights violation prosecutions in these countries’ domestic law. Therefore, regardless of some critics, there is at least one good result deriving from ICC’s concentration on situations in Africa, as it has helped to push forward the development of domestic legal systems in these countries.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    For example, critics note that the OTP’s failure to open an investigation into crimes allegedly committed in other territories or by nationals of other States has weakened support for the ICC in African countries and given the impression that the ICC is partisan. ↩

  2. 2.

    International Criminal Court Opens Probe into Central African Republic, UN News Centre (May 22, 2007), available online. ↩

  3. 3.

    Marieke Wierda, Stocktaking: Complementarity, ICTJ Briefing (May 2010), available online. ↩

  4. 4.

    See Anna Triponel & Stephen Pearson, African States and the ICC: A Silent Revolution in International Criminal Law, 12 J.L. & Soc. Challenges 65 (2010); Exclusive Interview: Tom Ginsburg, ICC Observers Project in Debating International Justice in Africa 201 (2010). ↩

  5. 5.

    Max du Plessis, The International Criminal Court and its work in Africa: Confronting the Myths, Institute for Security Studies, Paper 173, 2 November 5, 2008, available online. Archived. ↩

  6. 6.

    International Criminal Court Opens Probe, supra note 2. ↩

  7. 7.

    See Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, ¶ 89 (Sept. 25, 2009), available online. ↩

  8. 8.

    Stephen Brown & Chandra Lekha Sriram, The Big Fish Won’t Fry Themselves: Criminal Accountability for Post-Election Violence in Kenya, 111 African Aff. 244, 247 (2012). ↩

  9. 9.

    See id. ↩

  10. 10.

    Magnus Killander & Horace Adjolohoun, International Law and Domestic Human Rights Litigation in Africa: An Introduction, in International Law and Domestic Human Rights Litigation in Africa 18 (Magnus Killander ed., 2010). ↩

  11. 11.

    Janine Natalya Clark, Peace, Justice and the International Criminal Court, 9 J. Int’l Crim. Just. 521, 538 (2011). ↩

  12. 12.

    ICC OTP, Prosecutorial Strategy 2009-2012, ¶ 38 (February 1, 2010), available online. Archived. ↩

  13. 13.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9, at Preamble, Art. 1. ↩

  14. 14.

    Id. at art. 17(1). ↩

  15. 15.

    ICC OTP, Paper on some policy issues before the Office of the Prosecutor (September 2003), available online. Archived. ↩

  16. 16.

    See Jenia Iontcheva Turner, Transnational Networks and International Criminal Justice, 105 Mich. L. Rev. 985, 1004 (2007). ↩

  17. 17.

    See generally, Katharine A. Marshall, Prevention and Complementarity in the International Criminal Court: A Positive Approach, 17 Hum. Rts. Br. 21 (2010), available online. ↩

  18. 18.

    UNHRC, Report of the International Commission of Inquiry on Libya, UN Doc. A/HRC/19/68, 2, Mar. 2, 2012. ↩

  19. 19.

    Id. at 20. ↩

  20. 20.

    Application on behalf of the Government of Libya pursuant to Article 19 of the ICC Statute, ICC-01/11-01/11, May 2012, available online. ↩

  21. 21.

    Id. at ¶ 53. But see Libya: Establishing the Rule of Law, Middle East and North Africa Programme: Libya Working Group Meeting Summary (May 2012) (stating that to try Saif Al Islam under the current system might be damaging for the Libyan judiciary). ↩

  22. 22.

    Application on behalf of the Government of Libya, supra note 20, at ¶ 56. ↩

  23. 23.

    Christine Bjork & Juanita Goebertus, Complementarity in Action: The Role of Civil Society and the ICC in Rule of Law Strengthening in Kenya, 14 Yale Hum. Rts. & Dev. L.J. 205 (2011). ↩

  24. 24.

    See Selling Justice Short: Why Accountability Matters for Peace, Human Rights Watch Report 105 (2009). ↩

  25. 25.

    Id. ↩

  26. 26.

    Brown & Sriram, supra note 8. ↩

  27. 27.

    The 2009 Annual Report on Kenya, Amnesty International (2009), available online. ↩

  28. 28.

    Brown & Sriram, supra note 8; The 2012 Annual Report on Kenya, Amnesty International (2012), available online. ↩

  29. 29.

    Selling Justice Short, supra note 24, at 102. ↩

  30. 30.

    Benson Olugbuo, Positive Complementarity and the Fight Against Impunity in Africa, in Prosecuting International Crimes in Africa 263 (Chacha Murungu & Japhet Biegon eds., 2011). ↩

  31. 31.

    Rhetoric vs. Reality: The Situation in Darfur, Human Rights Watch Report (Dec. 2008), available online. ↩

  32. 32.

    Selling Justice Short, supra note 24, at 103; Wierda, supra note 3. ↩

  33. 33.

    Selling Justice Short, supra note 24, at 103. ↩

  34. 34.

    Id. ↩

  35. 35.

    See, e.g., Michael Otim & Marieke Wierda, Uganda: Impact of the Rome Statute and the International Criminal Court, ICTJ Briefing, 4 (June 2010). ↩

  36. 36.

    Marshall, supra note 17, at 25. ↩

  37. 37.

    Otim & Wierda, supra note 35, at 3. ↩

  38. 38.

    The International Crimes Division Mandate, Uganda Coalition on the International Criminal Court (March 13th, 2012), available online. ↩

  39. 39.

    Id. ↩

  40. 40.

    William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 Harv. Int’l L.J., 54, 106 (2008). ↩

  41. 41.

    Id. ↩

  42. 42.

    The 2012 Annual Report on the Democratic Republic of the Congo, Amnesty International (2012), available online. ↩

  43. 43.

    Id. ↩

  44. 44.

    See Federico Borello, A First Few Steps: The Long Road to a Just Peace in the Democratic Republic of the Congo, ICTJ, 20 (2004), available online. ↩

  45. 45.

    Wierda, supra note 3, at 3. ↩

  46. 46.

    Round-Table on the Sensitization and Mobilization of MPs for Domestic Prosecutions and Access to Justice for Victims in the DRC, Kinshasa, Parliamentarians for Global Action (Nov. 1st, 2012), available online. ↩

  47. 47.

    See Burke-White, supra note 41. ↩

  48. 48.

    Sara Darehshori & Elizabeth Evenson, Peace, Justice and the International Criminal Court, in Debating International Justice in Africa 35 (2010). ↩

  49. 49.

    Central African Republic, Parliamentarians for Global Action, available online, (last visited Mar. 6th, 2013). ↩

  50. 50.

    Parliamentary Consultations on the Rule of Law and Justice in the Central African Republic, Parliamentarians for Global Action (Oct. 2011), available online. ↩

  51. 51.

    Selling Justice Short, supra note 24. ↩

  52. 52.

    Id. ↩

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