South Africa's police must investigate Zimbabwe torture allegations

On 30 October 2014, the Constitutional Court of South Africa handed down its judgment in a landmark case for international criminal justice.

The appeal related to the responsibilities of the South African Police Service (SAPS) under domestic and international law to investigate acts of torture, as a crime against humanity, that were allegedly committed in Zimbabwe.

The decision, by South Africa’s highest court, reaffirms the obligations set out in the South African Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (ICC Act) regarding investigation and prosecution of international crimes.

In March 2008, the Southern African Litigation Centre (SALC) submitted a dossier to the Priority Crimes Litigation Unit of the National Prosecuting Authority (NPA) detailing allegations of torture in Zimbabwe. The NPA took no action, indicating that they could only do so if the police investigated the allegations and laid charges.

The NPA, in June 2009 – through the acting national director of public prosecutions ­­at the time – informed SALC that the police would not investigate the allegations. SALC and the Zimbabwe Exiles Forum then approached the High Court to order the police to investigate as required under the ICC Act.

The case was the first to be brought in terms of South Africa’s ICC Act

The High Court – in what has become known as the Zimbabwe torture docket matter – ordered the prosecuting and investigating authorities to investigate documented crimes against humanity, including acts of systematic torture, committed in Zimbabwe in 2007. The SAPS unsuccessfully appealed that order to the Supreme Court of Appeal, and then again to the Constitutional Court.

The case, which is the first to be brought in terms of South Africa’s ICC Act, provides substantive and practical content to South Africa’s Rome Statute obligations. The Constitutional Court found that South Africa's prosecuting and investigating authorities ignored South Africa’s international and domestic obligations in their initial refusal to investigate. The decision offers prospects of justice for those who allegedly suffered torture in Zimbabwe. It also sends out a clear message that South Africa must be guided in its foreign relations by its domestic and international law commitments.

In a unanimous judgment, the court concluded that the SAPS must investigate the complaint because under the Constitution, the ICC Act and South Africa’s international law obligations, the SAPS has a duty to investigate the crimes against humanity of torture allegedly committed in Zimbabwe. The court held that the duty to investigate international crimes arose in instances where the country in which the crimes occurred is unwilling or unable to investigate and if, on the facts and circumstances of the particular case, an investigation would be reasonable and practicable.

The decision offers prospects of justice for those who allegedly suffered torture in Zimbabwe

In this instance, the court found that there was no evidence that Zimbabwean authorities were willing or able to pursue an investigation. It also found that it would be reasonable and practicable for the SAPS to investigate the complaint given the proximity between South Africa and Zimbabwe, the likelihood that the accused will be present in South Africa at some point, and the reasonable possibility that the SAPS will be able to gather evidence that may satisfy the elements of the crime of torture.

Furthermore, the court held that while the principle of non-intervention in another state’s territory must be observed, this would not be violated by an investigation conducted exclusively within South Africa. Given the urgency of this matter, the court did not remit to the High Court, but rather issued an order requiring the SAPS to investigate the complaint.

The case sets an important precedent. It states that South Africa’s law provides for a form of universal jurisdiction in respect of international crimes. Further, it underscores the responsibilities of the police and the prosecution where such matters are brought to them. Importantly, it reaffirms South Africa’s commitment to ensuring international criminal justice and will serve as a guide for South African authorities regarding future international criminal justice investigations.

The case also teaches three important lessons.

The first is that the South African authorities would not themselves have initiated the case in accordance with their statutory and treaty obligations: it has taken the work of civil society for it to be brought to the relevant authorities. (This may have as much to do with a lack of capacity in the respective police and prosecution agencies, as with a lack of political will or priority given to international criminal justice by the executive.) The Zimbabwe torture docket matter demonstrates the willingness and ability of African civil society actors to use domestic implementing legislation to request and, if necessary, compel their governments to act in conformity with their international treaty obligations.

The case reaffirms South Africa’s commitment to ensuring international criminal justice

Second, having the necessary domestic laws in place is central to ICC complementarity efforts, domestic prosecutions and broader justice processes aimed at closing the impunity gap. It is only because of South Africa’s ICC Act that the case stood a chance of being brought to the relevant courts, and it remains the means by which the South African authorities must now pursue the investigation of Zimbabwean torturers.

The third lesson is that such cases are complex in various ways. The torture docket matter teaches that it takes time and effort to sensitise officials about the relevance of these cases before positive action is taken. Moreover, particularly where universal jurisdiction is involved in asserting a case against a foreign national for crimes committed abroad, sensitivities about foreign relations are likely to be triggered. The fact is, international criminal justice cases are invariably novel and complex, often implicate political considerations, and take time.   

What remains to be seen is whether the SAPS will indeed follow through with an investigation; whether evidence will be gathered speedily and expertly; and whether arrest warrants will be issued for and executed against alleged perpetrators. It is hoped that positive action will make up for the lost time already occasioned by the state’s varied but unsuccessful efforts to appeal the High Court’s decision.

Only such positive action will ensure that the Constitutional Court’s groundbreaking judgment is given the practical effect it deserves; and only through effective policing and prosecution will South Africa ensure that the impunity gap for crimes committed in Zimbabwe is filled. 

Max du Plessis, Advocate, ISS Consultant and Associate Professor at the University of KwaZulu-Natal and Ottilia Anna Maunganidze, Researcher, Office of the Managing Director, ISS Pretoria

This article was originally posted on the ISS website

"It's my culture"... but is it?

• Over the past few months, I have engaged in several conversations around culture, traditions and their abuse. I have also engaged on the topic of misconstruing culture and of labeling something that isn't part of a society's norms and mores as "culture" simply because of occasional practice or because it is perceived today as "backward" 
• One of the reemerging themes is that "our" culture (and by our I mean southern African culture) is inherently patriarchal and there's an underlying current of abuse. Before I venture deeper into problematising this notion, I must clarify that "southern African culture" is a misnomer. For starters, southern Africa is not a homogenous mass of sameness and I won't speak of it as such. While some practices are common amongst people who occupy similar spaces and whose geographical proximity contributes to shared experiences, such a culture, in my mind, simply does not exist. In fact, even within cordoned off spaces like the nationstate, a plethora of peoples exist and live under sometimes convergent, but often different norms and mores. The "culture" of a Karanga in Nemavuzhe, is unlike that of Zezuru in Buhera. Indeed, even within the "same" group there are differences... The Zulu in Matatiele and the Zulu in Hluhluwe are not one and the same. The reality is people like neat labels for neat boxes, so people and their cultures are clumped for convenience. 
• Whatever the real case may be, one thing remains quite clear to me, some of the shared customs are largely misunderstood and/or abused. We are told that ours is a patriarchal culture... yet when I look at the family structure within my paternal group of people (the southern karanga), I note that my late grandmother was a matriarch in every meaning of the word. I note that decisions on various issues related to *my* life can not be made without consulting the women who borne me (yes that's plural... for my mothers and her sisters) and my father's sisters (vana tete). 
• It is against this last point that I seek to explore the traditional custom of lobola/roora/paying of the bride "price." A custom that has been abused to a point where its current manifestation deviates significantly from what was initially imagined. From my understanding, lobola, in and of itself,  is not inherently problematic. The abuse of the tradition by greedy patriarchs is what makes it increasingly problematic in today's world. Only today do you hear of exorbitant "fees" and talk of "Our child has a Masters" so she is "worth" 500 head of cattle. Only today. Back in the day, lobola was intended to bring two families together in celebration. You gave to your wife's family a gift, which was agreed upon, that symbolised the coming together of her family with yours. It was not an expensive gift that was out of your family's financial means. No. Auditors did not have to be called in to indeed show that your family could not afford what was asked of you. Your future wife was not livestock at market. As a groom you did not ponder how you would use your wife once "bought." No. The beer was brewed, the cattle slaughtered, the drums heated. It was a negotiation in good faith and not an auction. If you intended to have a big wedding feast at a later date after the lobola then you contributed with cattle. The significant beast given as lobola was the childbearing cow (mombe yehu mai) because this was the, put simply, gift that would keep on giving.

• Traditionally, as I have come to learn, one must not finish paying off lobola unless he intends to part ways with his wife. One continually "pays" the lobola to the wife's family. A cow this year, a blanket next. Not big things, small gestures and tokens of appreciation throughout the marriage.
• Lobola was never intended to be part of a "culture" that abuses and subverts women. Perhaps its time we rethink how our developing societies have destroyed good practices and made them into cultural monstrosities. 
• Veering off from lobola and into other aspects of culture, I must point out that there are some highly problematic aspects that are rooted in abusive patriarchal norms in which women are products and possessions. These, some contend, are an importation and not part of what the culture of our peoples was. Is. But it is our present reality. Where a woman calls her husband "baba/daddy" and lives in near servitude "for the sake of the children" she borne. It is in the exclusion of many women from discussions. It is in the physical and emotional abuse that is wrought on women and that they must put up with because "you are a woman." In aunts telling female children that they are "broken" or "damaged goods" when they fall pregnant as if they had sex on their own... where female virginity defines the worth of a woman, but male virginity doesn't. A man who impregnates is, after all, virile. But the fertility of a woman is only relevant when she bears the man the children his virility needs... 

I am going off on a tangent now... as do thoughts when they come streaming in... so I'll stop here for now. 

City of Cape Town: "All (wo)men are equal... except of course when they aren't."

In a landmark finding, the South African Human Rights Commission (SAHRC) found that the City of Cape Town's "sanitation policy" violated the rights of informal settlers on several accounts. 

The City, having skimmed through the report has stated that it has "serious reservations" about the findings & intends to appeal, with no further comment. Am I surprised that Helen of the Cape & Pat "I see nothing wrong with bucket toilets" de Lille have not directly responded to the SAHRC's findings? No.

Am I surprised that in their original submissions, the City had the gall & nerve to suggest that for "those people" a toilet per FIVE HOUSEHOLDS is sufficient? No. It is after all the same city that put spikes and rocks in areas where homeless people seek shelter so they wouldn't be an eyesore to the touring haves. The very same city that sided with exploitative farmers when the farm workers went on strike demanding fair and equitable recompense for their toil.

I wonder what the City of Cape Town has reservations to:
1. That sanitation is a basic right?
2. Their policy being called racist & biased?
3. Doing their job?

I'm also curious as to whether the lovely people at the City use temporary and bucket toilets etc or is that reserved for "those people"?

It would seem that some of us are in 2014, but many, sadly, are in 1989 or thereabouts. #NotYetUhuru
Read the SAHRC report here: http://www.sjc.org.za/wp-content/uploads/2014/07/Investigative-Report-Western-Cape-Social-Justice-Coalition-9-July-2014.pdf

Bienvenue en Afrique du Sud. Nous sommes tous egaux, sauf les pauvres qui sont (pour la plupart) les noirs. Prenez un siege.

An African Court with criminal jurisdiction... but not for senior government officials

The Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights was adopted at the recently concluded 23rd AU Summit in Equatorial Guinea. The Protocol, in expanding the jurisdiction of the Court (now the African Court of Justice and Human and Peoples Rights), provides, inter alia, for the prosecution of international crimes, unconstitutional changes in government, terrorism and a variety of transnational crimes. A step forward. 

In terms of this Protocol African heads of state and government, and senior government officials will be immune from prosecution while in office. Two steps back. 

The issues of immunities remains a contentious one. On the one hand, there are those who believe that immunity from prosecution is necessary (at least for heads of state). On the other, there are those who are of the view that no one should be above the law, irrespective of what office they hold. The latter also equate immunity to the promotion of impunity.  

I ascribe to the latter thinking. The inclusion of broad immunity provisions (Article 46 A bis must be read with Article 46 B (2)) in the new court's protocol suggests one thing... at least in respect of criminal prosecution at regional level, all men are equal, but some more equal than others. 

The Protocol is now open for ratification. Once the requisite 15 countries have ratified the Protocol, it will enter into force. 

(I intend to reflect later, amongst other things, on the inclusion of unconstitutional changes in government as a category of crimes in the Protocol. Life allowing!)

(Not-so-) Fleeting thoughts on South Africa's new immigration regulations

When the new South African immigration regulations were presented for comment (earlier this year), I lambasted what I viewed then (and still do) as an attempt by SA to move towards immigration laws that can only be compared to those of beacons of inclusiveness like Australia (where lower-income South East Asians are treated as unwanted trash that must be 'processed' on neighbouring islands, where aborigines are marginalised within their own country, neglecting Australia's history and location and to whom Australia belonged before the queen's ships arrived) and Israel (whose policies today mirror those of SA prior to 'freedom'). The regulations were signed into law, despite concerns raised about the content and the lack of clarity in parts. It has been over a month since promulgation and my views have not changed especially in light of conversations I have had over the past few weeks with government officials from other countries.

Whatever SA's concerns about "contamination" fuelled by what I can only regard as institutionalised xenophobia (which manifests almost exclusively as afrophobia), there are several demerits to such strict regulations for a country that relies significantly on foreign trade, foreign direct investment and tourism. Two are most glaring:

1. In the longterm, the laws will affect SA's economy more than they will affect everyone else. Notwithstanding that these regulations won't necessarily lead to reduced inflows of foreigners. In fact, the stricter regulation of legal migration has been known to increase "illegal" migration (I put illegal in quotes because I have a problem with such terminology).

2. Some have heralded the provisions related to the movement of children, BUT the reality is trafficking in SA is largely INTRA-country, not inter. Furthermore, people who traffic children are unlikely to use legitimate channels to "export" if sodoing will involve greater risk.

Time will tell.

Africa: Until the lion learns to speak, tales of hunting will be weak

As I reflect on how the African story has been told - mostly by non-Africans through a largely negative lens riddled with bias - I wonder whether we would view our history and ourselves differently if our continent's stories had been told by others, by our own.

And so I thought, imagine a tale of hunting told by a lion… then by the hunted gazelle… then by the zebra that looked on… then by the trampled grass… and last by a gun-toting, thrill-seeking photojournalist. Imagine.

Our stories have been told largely through a colonial gaze - so we are viewed as a continent divided, of different people. Yes, society is variegated. Yes, we are different peoples. Yet, we are one people. United in ways not clearly enunciated in history books, but that can be seen in our culture(s), our traditions, our beliefs, our looks… Today, a Tswana from South Africa will argue (with the greatest conviction) that his are not the Motswana of Botswana. How unfortunate. You will hear Tanzanians say that theirs is *the* Swahili, that the people of Kenya and especially Uganda speak it all wrong.

Today, we forget that our present societies were carved out for us - built on DIFFERENCES, on seeking to isolate rather than unite, to "divide and conquer." So, today, we tend to focus on that which divides us, not the many that unites. We have become they.

Our stories have been told through the eyes of "explorers" who write of "discovering" Victoria Falls, as if Mosi oa Tunya did not thunder and splash millennia before David Livingstone heard it then saw it.

Our tales are told by journeying financiers who speak of "civilisation" based on the price of commodities they place value on. What we once shared, we now buy, borrow, beg or steal from our neighbours.

Our tales are told by warmongers who see our children through the barrel of an AK-47. Faces reflecting on the blades of machetes. Who view victory through conquests, not (necessarily) as peace.

Yet we know our stories, we know what lies beneath the facade of misinformation. We could tell these stories, but do we?

Know your story. Know your history. Only then can you begin to understand your present & what your future needs.

Know that the original Shona dictionary was written by a Dutchman & an Englishman. "Are you Shona or Ndebele?" I am always asked immediately after saying I am from Zimbabwe. "I am neither," I always reply. For I am a combination of many cultures, but owing to patrilineage I identify as Karanga, child of the roaring Lion (Shumba Charumbira). I am not a caricature created by some to simplify the intricacies of my people... Yet, I am one with the other peoples in what is now my country. What is my continent. I am, as from the day I was ushered into this world, until the day the earth will swallow me: African.

For those who do not know, Africa is a beautiful place filled with amazing people with intriguing and complex tales. Explore it (through literature, travel, engagement). Africa is more than a quickly hashed up article on the BBC "Africa" website.

Africa is Africa.

Love and so forth and so on

I recently discovered Lang Leav's poetry. It is so beautiful in its simplicity & I have found myself reading and rereading over and over again. 

One of my favourites is "Ebb & Flow," which made me reflect: 

I want a love that survives the tide, in its ebb & flow. A love that weathers storms. A love that turns the saddest lows into the greatest highs. Washes away tears. Ferociously. Passionately.

An out of breath, yet still breathing, type of love. A love whose end is no end at all. An all-encompassing love. A breath of fresh air. A love that requires no mention. A silent love that people see before they hear. Love, not lust.

❤️

DRC warlord's conviction a small step in the right direction

14 March 2014

On 7 March 2014, the International Criminal Court (ICC) found former Congolese militia leader Germain Katanga guilty as an accessory to one count of murder as a crime against humanity, and four counts of war crimes (murder, attacking a civilian population, destruction of property and pillaging).

The charges relate to offences committed on 24 February 2003 in an attack on the village of Bogoro, in the Ituri district of the Democratic Republic of Congo (DRC). Over 200 people died as a result of the attack.

Katanga – infamously known as Simba (meaning 'lion' in Kiswahili) – was found to have acted in the knowledge of the criminal common plan devised by the Ngiti militia to target the predominantly Hema population of Bogoro.

The court found that Katanga had been the intermediary between the weapons and ammunition suppliers and those who had committed the crimes in Bogoro. This ensured that the militia were able to secure military superiority.

It should be noted that Katanga, who was initially charged as a direct co-perpetrator, was convicted as an accessory. This finding by the ICC on a lesser mode of liability is significant in that it suggests Katanga was either not as directly involved as initially charged; or that the prosecution was unable to ascertain his guilt as a direct perpetrator.

“The ICC must explain the verdict to victims and affected communities in the DRC”

While the court's decision to convict Katanga has been heralded as a triumph of international criminal justice, the ICC acquitted Katanga of other charges relating to sexual crimes and the recruitment of child soldiers.

The prosecutor’s inability to prove Katanga's guilt speaks to the inherent challenges in investigating and prosecuting sexual crimes. These include high evidentiary requirements, legally and factually insufficient indictments, victims as witnesses and the challenge of holding an accused criminally responsible for the actions of his or her subordinates.

While finding that there had been children within the Ngiti militia and among combatants during Bogoro attack, the evidence against Katanga for his role was insufficient. This is not the first time that such a finding has been made with respect to the Bogoro attack. In December 2012, the ICC acquitted Mathieu Ngudjolo Chui, the leader of another implicated militia group (then Katanga's co-accused), of these and other charges due to a lack of evidence.

Given the verdict in the Chui case, there were concerns that Katanga might also have been acquitted on all charges. Despite the convictions, the prosecution's inability to sufficiently demonstrate Katanga’s guilt for the other crimes brings into question whether justice for those specific crimes will ever be seen.

Brigid Inder, Executive Director of Women’s Initiatives for Gender Justice, lamented the decision to acquit Katanga on charges of rape and sexual slavery as 'a devastating result for the victims/survivors of the Bogoro attack, as well as other victims of these crimes committed … in Ituri.' William Pace, the Convenor of the Coalition for the ICC, also expressed concern over the acquittals. According to Pace, it means that 'those responsible for the crimes of rape and using child soldiers, which continue to blight the region, have yet to be brought to justice.' He believes the ICC must increase its outreach to explain the verdict to victims and affected communities.

“Despite Katanga's conviction, conflict in the DRC continues, and members of his FRPI are still active”

The remaining two cases linked to the DRC conflict relate to crimes committed in the neighbouring Kivu provinces. This makes it important for the DRC to seek ways to bring to justice other perpetrators who were involved in other attacks in Ituri and elsewhere, through domestic legal channels. It is worth noting that the cases prosecuted by the ICC relate only to a small fraction of the international crimes committed in the DRC since 2002.

Speaking on behalf of the victims in the Katanga case, legal representative Fidel Nista Luvengika said many hope the judgment will contribute to peace and reconciliation. However, it remains concerning that the conflict in the region continues, and that members of Katanga's Force de Résistance Patriotique en Ituri (FRPI – the Front for Patriotic Resistance in Ituri) are still active.

The rebels are said to conduct routine attacks against the local population and frequently clash with the military, resulting in large displacements of people. It can only be hoped that Katanga’s conviction serves to deter further crimes, and more importantly, that it encourages domestic prosecutions of other perpetrators.

Whether this will happen remains to be seen. The 2012 conviction of militia leader Thomas Lubanga Dyilo brought no dramatic changes in the DRC in terms of criminal justice reforms or in reducing violence. This is despite the fact that in 2011, the Congolese government seemed to be on track to establish specialised mixed courts to prosecute international crimes. Also, in October last year, President Joseph Kabila committed to identifying and prosecuting anyone who organised armed groups.

This is particularly important because the ICC, as a court of last resort that complements national jurisdictions, cannot be expected to address impunity on its own. That the ICC has only been able to convict two people confirms this. The ICC can realistically deal with very few cases and only with those perpetrators who are considered to be the most responsible, and who are often in positions of power.

Katanga's conviction is an important success for the ICC. But it will only be regarded as one for international criminal justice if it encourages further efforts to bring justice to the DRC. Until then, victims in Ituri and elsewhere will continue to wait.

Ottilia Anna Maunganidze, Researcher, Transnational Threats and International Crime Division, ISS Pretoria

http://www.issafrica.org/iss-today/drc-warlords-conviction-a-small-step-in-the-right-direction 

Prosecuting the powerful: will justice ever be done?

28 January 2014

2013 was the year in which efforts to prosecute political leaders for their alleged involvement in international crimes seemed to reach a peak. By mid-2013, current and past presidents (and deputies) from several African countries had been indicted at international and regional level. If international criminal justice were to be measured on court rolls alone, 2013 would have been heralded as a year in which justice showed that no one is above the law. Nevertheless, little progress, if any, has been made in any of the cases. In fact, 2014 began with more delays and uncertainties around whether justice would be served in cases against the politically powerful.

The International Criminal Court (ICC) currently has seven senior politicians on its court roll.

The first, former deputy president of the Democratic Republic of the Congo and alleged president and commander-in-chief of the Mouvement de libération du Congo (Movement for the Liberation of Congo), Jean-Pierre Bemba Gombo, was indicted for war crimes and crimes against humanity committed in neighbouring Central African Republic (CAR) in 2002 and 2003.

At present, Bemba is the only suspect accused by the ICC of committing international crimes in the CAR, however there are ongoing investigations that may lead to further indictments. Bemba’s trial, which began in earnest in 2010 following his arrest in Belgium, has suffered several setbacks. These include multiple delays and allegations of tampering. In November 2013, Bemba, together with members of his defence team, was charged with offences against the administration of justice – including presenting false or forged evidence and corruptly influencing a witness to provide false testimony. This is the first such case before the ICC.

The second, Omar Hassan al-Bashir, President of Sudan, remains at large following two warrants for his arrest on charges of war crimes, crimes against humanity and genocide in Darfur. That Bashir has managed to evade justice is in large part due to the African Union (AU) July 2009 resolution not to cooperate with the ICC in arresting him.

As the first sitting head of state to be indicted by the court, Bashir has been the proverbial thorn in the side of international criminal justice. In the absence of dedicated law enforcement capacity, the ICC relies on national police to arrest suspects. This has proved difficult, if not impossible, where the AU calls on member states not to cooperate in the arrest of presidents. The AU argues that as a president, the accused enjoys immunity from prosecution, which has led to al-Bashir being shielded from prosecution.

The third, former president of Ivory Coast, Laurent Gbagbo, is on trial for his alleged role in the crimes against humanity committed following the 2010 Ivorian general elections. Arrested and surrendered to the ICC in 2011 by Ivorian police, Gbagbo is the first former head of state on trial at the ICC. His trial has, however, been riddled with delays and allegations of victors’ justice. The latter has fuelled a shift in sentiments in his country, with some people now calling for his release.

Then there are the cases against President Uhuru Kenyatta of Kenya and his Deputy, William Ruto, who are charged for their involvement in the violence that ensued following disputed elections in Kenya at the end of 2007.

The violence, which lasted two months, left over 1 100 people dead and many more injured. Kenyatta and Ruto, who were reportedly at opposite sides of the violence, formed a strategic alliance ahead of the 2013 presidential elections. This alliance is proving successful for both as they buttress their support at home on a wave of anti-ICC sentiments.

Kenyatta’s trial, which was set to commence on 5 February 2014 after several delays, will now begin at a yet-undecided date following the cancellation of the commencement of trial by the ICC. Analysts predicted that there would be several further delays to Kenyatta’s trial, amid continued criticism from Kenyan victims’ rights groups that such delays would dilute justice – if at all it would be served.

Sixth is Saif al-Islam Gaddafi, the de facto prime minister of Libya during the armed uprising of 2011. Gaddafi, who is charged both by the ICC and Libyan authorities, has been the subject of a legal battle for primacy between three institutions: the ICC, Libyan authorities and the Zintan militia who have him in custody.

His ICC defence team believes Gaddafi will not receive a fair trial in Libya and that he is likely to be executed if convicted. His Libyan trial is set to commence in February 2014. Gaddafi’s co-accused, former intelligence chief Abdullah al-Senussi was transferred to Libya for trial from Mauritania. The ICC has ruled that Libyan authorities can try al-Senussi.

Meanwhile, Senegal, working together with the AU and with the support of the Economic Community of West African States (ECOWAS) commenced the long-awaited trial of deposed Chadian leader, Hissène Habré.

Habré, who fled to Senegal after he was removed from power by a military coup, is accused of war crimes and crimes against humanity during his presidency. Significantly, Habré’s is the first trial of its kind on the African continent, where a former African head of state is being tried in another country by a court established in collaboration with the AU. Tellingly, as a former head of state, Habré is not detained in one of the lower-end public prisons; but instead at the newly renovated facilities at Cap Manuel.

It is yet to be seen whether these cases against heads of states (past and present) will amount to much.
The AU has condemned the ICC for indicting heads of state and this has made it difficult for the ICC to proceed in several cases. In its most recent decision, at an extraordinary summit of heads of state in October 2013, the AU lambasted the ICC and reiterated its stance of non-cooperation in respect of cases involving presidents. This position prompted Kofi Annan, the former Secretary-General of the United Nations, to criticise African heads of state for undermining international criminal justice and sending the wrong signal about Africa’s commitment to protect and promote human rights and reject impunity.

Annan stated further that, ‘If [African heads of state] fight the ICC, vote against the ICC, withdraw their cases, it will be a badge of shame for each and every one of them and for their countries.’
Given the challenges encountered up to now, one thing is clear: prosecuting powerful leaders is no easy task. This should not dissuade those seeking justice for international crimes; there have been important successes, such as the prosecution of former Liberian president Charles Taylor. Perhaps 2014 will be the year in which justice is finally done.

Ottilia Anna Maunganidze, Researcher, Transnational Threats and International Crime Division, ISS Pretoria

Originally published by the Institute for Security Studies: http://www.issafrica.org/iss-today/prosecuting-the-powerful-will-justice-ever-be-done