African Efforts to Close the Impunity Gap

ISS Paper 241: 

Lessons for complementarity from national and regional actions

Max du Plessis, Antoinette Louw & 

Ottilia Maunganidze

The position taken by the African Union towards the ICC creates the impression that African states are resistant to international criminal justice. This paper argues that the reality is quite different. The continent provides many examples of international justice in practice. A review of selected domestic and regional efforts suggests that a richer understanding of the Rome Statute’s ‘complementarity’ scheme is developing – one involving states, regional organisations and civil society working to close the impunity gap. Such actions are giving effect to the notion that while the ICC can provide justice through a few highly publicised trials, for justice to be brought home in any meaningful way, domestic action is essential.  

The publication of this paper was made possible with the support of the Governments of the Netherlands and Norway.

Download the full paper:  http://www.issafrica.org/uploads/Paper241.pdf

Power and Prosecution - Pouvoir et Poursuite

Kai Ambos  & Ottilia Anna Maunganidze (Eds.)

Power and Prosecution - Pouvoir et Poursuite

Challenges and Opportunities for International Criminal Justice in Sub-Saharan Africa - Défis et Opportunités pour la Justice Pénale Internationale en Afrique SubSaharienne

Göttinger Studien zu den Kriminalwissenschaften - Band 24

This book contains some of the papers that were presented at the fi rst meeting of the newly formed African Expert Study Group on International Criminal Law/ Groupe des Experts Africaines en Droit Pénal International held in September 2011 in Brussels, Belgium. The group was established under the auspices of the Multinational Development Policy Dialogue (hereinafter ‘MDPD’) and the Rule of Law programme of the German Konrad-Adenauer-Stiftung (‘KAS’) in 2010 modeled on the successful sister group in Latin America. This latter group was originally founded as an expert group to monitor the implementation of the Rome Statute of the International Criminal Court (‘ICC’) in Latin America within the framework of cooperation between KAS’ regional Rule of Law Programme and the Department for Foreign and International Law of the Institute for Criminal Law and Criminal Justice of the Georg-August-Universität Göttingen in 2002. 

The newly formed African group consists of judicial experts with both academic and practical background from various parts of Sub-Saharan Africa. The importance of such a group for the African continent cannot be overestimated. Africa plays a vital role in international criminal law and justice, both as an active player at the ICC and at the regional and national level. As for the group’s composition and outreach, the aim is to broaden regional representation and further consolidate membership. In 2012, the group will meet in Nairobi, Kenya to deal with topics surrounding the ‘Potential for the domestic prosecution of international crimes in Africa.’ 

Topics for future meetings abound given the multi-faceted African legal and political practice regarding international criminal justice in general and the ICC in particular. The group should in particular monitor the recent international or transnational criminal justice developments at the regional African level as well as relevant national developments. (Excerpt from the introduction by Kai Ambos)

Published: 2012

Book launch: http://www.kas.de/bruessel/en/events/52492/

Download: http://webdoc.sub.gwdg.de/univerlag/2012/GSK24_ambos_power.pdf 

Purchase Softcover, 202 S.: 26,00 Euro
(ISBN 978-3-86395-078-1)  http://www.univerlag.uni-goettingen.de/content/list.php?q=Kai+Ambos&cat=result&details=isbn-978-3-86395-078-1

Implications of Another African Case as Mali Self-refers to the ICC

Ottilia Anna Maunganidze & Antoinette Louw,  Researcher & Senior Research Fellow,  Transnational Threats and International Crimes Division, ISS Pretoria

On 18 July 2012, Fatou Bensouda, the prosecutor of the International Criminal Court (ICC), released a press statement confirming receipt of a referral of the situation in Mali by the country’s interim Minister of Justice. In terms of the 13 July 2012 referral letter, the government of Mali alleges that gross human rights violations and war crimes have been committed in the country, especially in the northern region. The alleged crimes include the summary executions of soldiers, rape of women and young girls, killing of civilians, the recruitment of child soldiers, torture, pillaging, enforced disappearances, and the destruction of property (including government buildings, humanitarian installations, religious establishments and gravesites). The prosecutor indicated that her office would conduct preliminary investigations into the alleged international crimes in accordance with the Rome Statute of the ICC.

The referral is the first received by the new prosecutor since she took office on 15 June this year. Notably, Mali is the fifth African country that has formally requested the ICC to investigate crimes in its territory and, if formal investigations are instituted, will be the eighth situation before the ICC – all of which are in Africa. This additional African situation comes at a time when the ICC is under fire for not opening investigations in other parts of the world. Some critics even go so far as to contend that the ICC is targeting Africa. 

As the new prosecutor begins her tenure at the ICC, it is widely agreed that one of her office’s main challenges is to ensure that the court rebuilds its legitimacy, especially in Africa. To do so the ICC must open formal investigations into situations outside the continent. However, this is easier said than done, as the additional self-referral by Mali – an African country – shows. Although self-referrals do signify support for the ICC by the governments concerned, they are not without their own controversies. For the most part, self-referrals now elicit more scepticism than compliments for the ICC. This has been the case with the self-referrals made by the governments of Uganda, the Democratic Republic of Congo (DRC) and the Central African Republic (CAR), as well as the Côte d’Ivoire case, which – although not a member of the ICC’s Rome Statute – requested the ICC’s intervention after accepting the court’s jurisdiction. In all four cases, allegations are that these requests were intended to cripple government adversaries rather than end impunity for grave crimes, or that the cases represent `victor`s justice` rather than real justice for all sides to the conflict. 

Similar criticisms are likely to be levelled at the Mali referral for a number of reasons. Politically, the stakes for control over a new government are now high. The violence that grips the country followed a coup d’état staged by mutinying soldiers. The coup, which began on 21 March 2012 when soldiers seized the presidential palace, state media and other buildings, forced then president Amadou Toumani Touré into hiding and eventually led to his resignation on 8 April. Consequently, the country’s constitution was suspended. The situation in Mali prior to and after the coup has been tense. At present, an interim government – comprised mostly of technocrats – that was formed following the resignation of the president is running the country. This situation has been exacerbated by the Tuareg insurgency in the north of the country, where rebels have taken control of most of northern Mali and declared the independent nation of Azawad. The self-referral could thus be characterised as an attempt by the interim government – which is weak and in search of support and legitimacy both locally and abroad – to put down the rebellion in the north, and eliminate opposition from those who might seek to destabilise a new government.

The political context aside, the Mali referral nevertheless signals welcome and continued support for the ICC and its goals in Africa. First, Mali’s decision to refer shows that the government would like to see an end to the commission of international crimes within the country and that it believes the ICC can help in achieving this. Second (and unlike any of the other self-referrals), the Mali referral has the support of the West African region: on 9 July 2012 ECOWAS’ Contact Group on Mali (composed of Benin, Burkina Faso, Côte d’Ivoire, Liberia, Niger, Nigeria and Togo) recommended that the situation be referred to the ICC. The seven-country contact group also called for the formation of a government of national unity, having already (on 15 May) released a statement accusing the military junta of blocking the return to civilian rule and threatening to impose sanctions.

With political support from both Mali and ECOWAS in place it is now up to the ICC to proceed in a manner that mitigates the criticisms that have been levelled at the other self-referrals. A procedural and transparent approach that emphasises the requirements of the Rome Statute at every step will assist in this regard. For example, if the ICC initiates formal investigations in Mali, it will be doing so in line with article 17 of the Rome Statute that allows the court to intervene only if the government in the country concerned is unwilling or unable to take action. Noting that Mali’s current government is an interim administration, it is unlikely to have the capacity to prosecute the alleged perpetrators itself even if the political will to do so exists. Thus a referral by Mali signifies commitment by the state to end impunity and paves the way for future cooperation with the ICC in respect of investigations and possible arrests. (It is worth noting that this is an important consideration that lends support to cases coming to the ICC via self-referrals: the court lacks its own police force, which means it relies heavily on the cooperation of the states in which it works. Practically, self-referrals are understandably an attractive option for the ICC.) 

The ‘willing and able’ test referred to above forms part of the ICC Office of the Prosecutor (OTP)’s obligations under article 53 of the Rome Statute to determine whether there is a reasonable basis to proceed with an investigation into the situation in Mali. To do this, the prosecution must determine whether the ICC has jurisdiction, whether the matter is admissible, and whether proceedings would be in the interests of justice. If the OTP decides to proceed, it is imperative that investigations cover all sides to the conflict from the outset in order to offset accusations that self-referrals result in victor’s justice. These procedures, and their outcomes, need to be publicly explained by the OTP. This is neither an unreasonable requirement nor something foreign to the work of a prosecutor. At the national level prosecutions do not occur in a vacuum, with local courts similarly being vulnerable to abuse by political leaders determined to sideline their opposition. The onus is therefore on the OTP to carefully manage the selection of cases and subsequent investigations and prosecutions. Doing so will help ameliorate negative perceptions about the ICC.

Although it’s still early days, the OTP’s statement on the Mali self-referral demonstrates an awareness of the sensitivities around these types of cases. In her statement Bensouda outlines clearly the origins of the referral, and the steps, in terms of the Rome Statute, that the OTP will now take to determine whether a formal investigation can be launched. This approach is a good start and should assist the ICC in building its legitimacy despite the addition of yet another African situation to the court’s caseload.
 

Malawi's Stance on al-Bashir is in Line with its International Obligations

On Friday 8 June 2012, the cabinet of Malawi resolved not to host the next African Union (AU) Summit because the AU insisted that all Heads of State - including Sudanese President Omar Hassan al-Bashir - be invited to attend.

Al-Bashir is wanted by the International Criminal Court (ICC) on charges of war crimes, crimes against humanity and genocide allegedly committed in Darfur. The decision by Malawi's President Joyce Banda not to allow al-Bashir into her country because of Malawi's international obligations has led to widespread reaction throughout Africa.

Malawi's Vice-President Khumbo Kachali made the announcement on Friday 8 June that Malawi would not submit to pressure from the AU to invite Sudanese President Omar al-Bashir to the upcoming AU summit. Kachali stated that, 'much as Malawi has obligations to the AU, it also has other obligations (and) the Cabinet has decided not to host the summit'.

It has been widely reported that President Joyce Banda's decision not to invite al-Bashir and the pursuant decision by the Malawi cabinet are informed by the country's efforts to regain international favour. This kind of speculation could have political implications for Malawi, especially for its relationship with the AU going forward. The political issues surrounding this decision have unfortunately overshadowed the legal dimension of the issue. Of importance in this regard are the United Nations (UN) Charter, the Constitutive Act of the African Union, and the Rome Statute of the ICC. All these instruments, which are binding on Malawi, have specific provisions aimed at promoting global peace and the rule of law, and ending impunity.

First, the UN Charter enunciates as one of its principles the need to maintain international peace and security. Malawi, as a member state of the UN, is bound to its decisions. Under Article 103, the UN Charter provides that obligations under the Charter prevail over any other obligations if there is a conflict. It should be noted that the situation in Darfur was referred to the ICC pursuant to UN Security Council Resolution 1593 in 2005. The UN Security Council invoked its powers under Chapter VII of the UN Charter and provisions in the ICC Statute to oblige the Government of Sudan and 'all other parties to the conflict in Darfur' to cooperate with the ICC (which includes the arrest and surrender of suspects to the court).

Second, one of the primary objectives of the AU is to achieve peace and security in Africa. Specifically, the Constitutive Act of the AU provides a legal framework for the continental organ to fight impunity. Articles 4(h) and (o) of the Constitutive Act authorise the AU to intervene in member states to stop war crimes, genocide, crimes against humanity and ultimately to prevent impunity. However, it should be noted that this intervention is often political.

Last, but certainly not least, is the fact that Malawi's decision is in line with the country's responsibilities under the Rome Statute of the ICC. As an ICC member state, Malawi is obliged to cooperate fully with the ICC in its investigation and prosecution of war crimes, crimes against humanity and genocide, and where requested to arrest al-Bashir (and any other suspects wanted by the ICC) if he visits the country and surrender him to the court. Malawi's decision to arrest and surrender al-Bashir to the ICC should he enter its territory is not unique. Indeed, Malawi's stance is not the first, nor shall it - hopefully - be the last in Africa.

In April 2009, al-Bashir - although invited - decided not to travel to South Africa to attend President Jacob Zuma's inauguration. This decision came after South African authorities and civil society took steps to exercise the country's domestic and international criminal law obligations with regard to al-Bashir. Following similar actions by governments and African civil society organisations, other states have found diplomatic solutions to either avoid al-Bashir's visits or move the venue of important meetings to the territory of non-states parties.

Notably, al-Bashir cancelled trips to Uganda in 2009 and 2010 over fears that he would be arrested, and also did not attend Ugandan President Yoweri Museveni's inauguration in May 2011. Furthermore,
al-Bashir did not attend the ceremony of the 50th anniversary of the independence of the Central African Republic (CAR) in December 2010. Both Uganda and CAR are states parties to the ICC Statute and referred the situations in their respective countries for investigation and prosecution at the ICC. Later that December, al-Bashir cancelled his trip to Zambia (also a state party to the ICC Statute) to attend the International Conference for the Great Lakes Region following international protest. Instead, Sudanese foreign minister Ali Karti and minerals minister Abdel-Baki Al-Gailani attended the summit. Other African countries like Botswana have made it clear that al-Bashir is not welcome.

Nevertheless, since the arrest warrant was issued in 2009, al-Bashir has been able to travel to several countries that are obliged to arrest and surrender him to the ICC, including ICC member states Chad, Djibouti, Kenya, and Malawi in 2010 and 2011. It is worth noting that following his first visit to Kenya in August 2010, civil society action resulted in the Intergovernmental Authority on Development (IGAD) moving its October 2010 special summit on Sudan from Nairobi to Addis Ababa, Ethiopia to
avert a potential diplomatic quandary over al-Bashir's attendance. Further, civil society was in 2011 able to secure a warrant for his arrest from a Kenyan High Court, thereby preventing subsequent visits.

It is clear that African states are divided on the al-Bashir issue. This is despite AU decisions in 2009, 2010, 2011 and January 2012 in which the AU called on all its member states not to cooperate with the ICC in respect of al-Bashir's arrest warrants. The AU argues that, as a head of state, al-Bashir enjoys immunity and should therefore not be prosecuted while in office. The AU also contends that arresting al-Bashir would not be in the interests of peace and would undermine its ongoing efforts to negotiate a peaceful settlement between Sudan and South Sudan.

Despite the AU's decisions on al-Bashir, the facts of the Sudanese president's trips noted above show that some African states have chosen to abide by their domestic and international legal obligations rather than the AU position. These countries, some of which have vowed to arrest al-Bashir, are acting consistently with the rule of law requirements of international criminal justice. However, others abide by the AU decisions even though this means flouting the rules of the ICC.

Interestingly, some countries like Malawi have shown a shift in opinion. In October 2011, before the death of Malawi's former President Bingu wa Mutharika, al-Bashir was able to travel to that country for a regional economic summit. However, with the change in government, the stance in Malawi on international criminal justice has also significantly shifted. But is it enough?

The fact that al-Bashir has not yet been arrested and surrendered to the ICC is evidence that for international criminal justice to succeed, countries, especially ICC states parties, must do more than take principled positions. They must be ready and able to apprehend people indicted by the ICC. It is the lack of full commitment to cooperating with the ICC that led the court's outgoing chief prosecutor Luis Moreno-Ocampo to request the UN Security Council to consider calling on all UN member states and regional organisations to carry out the arrest warrants for al-Bashir and other indicted Sudanese officials. It remains to be seen whether the UN Security Council will oblige and what implications such a move will have.

Malawi should be applauded for its principled and legally correct position on al-Bashir. At the same time, the AU's determination to bring together all heads of state, especially those directly involved in continental conflicts, is understandable and in line with its chief mandate to promote peace and security. Thus moving the summit to a non-state party to the ICC is arguably the right result under the circumstances. However, it is unfortunate that once again peace and justice have been set up against each other in such a polarising manner. It will serve the interests of peace, justice and the rule of law if African leaders are proactive in finding solutions that are both diplomatic and not in breach of international law.

Ottilia Anna Maunganidze is a researcher in the Transnational Threats and International Crime Division of the ISS www.issafrica.org

Libyan NTC Must Commit to Criminal Justice to Bolster Credibility

JURIST Guest Columnist Ottilia Maunganidze, Researcher at the Institute for Security Studies, says that for the NTC to establish credibility it must put an end to unlawful detentions, make certain that any arrests are carried out by lawful police forces and ensure humane treatment of detainees...

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On January 26, 2012, Navi Pillay, the UN High Commissioner for Human Rights, made a statement before the UN Security Council on the current human rights situation in Libya. In her statement, she highlighted key issues related to the promotion, protection and enforcement of human rights. Pillay noted that the National Transitional Council (NTC) of Libya has taken some positive measures since coming into power in October 2011. However, she also highlighted that there had been reports of human rights abuses and that over 8,000 supporters loyal to the late leader of Libya, Colonel Muammar Gaddafi, were arbitrarily detained and are being held in appalling conditions. Pillay's statement to the Security Council came just weeks before human rights advocacy organization Amnesty International (AI) released a report accusing the NTC of allowing the abuse and torture of supporters of former leader Gaddafi by unofficial militia. The AI report of February 16, 2012 underscores Pillay's concerns. The report itself is a product of an AI fact-finding mission to Libya in January and February 2012. The mission visited 11 facilities in Tripoli, al-Zawiya, Gharyan, Misrata and Sirte. The facilities are all currently used as detention facilities for suspected Gaddafi loyalists.

AI's report details systematic human rights abuses by militia of people in custody. People interviewed provided details of different forms of torture and resultant grievous bodily harm. According to the report, the alleged forms of torture used by the militia include, but are not limited to, beatings using various instruments such as sticks, whips and rifle butts. Several of the people interviewed by the AI mission said they suffered other forms of torture, including electric shocks, burns and threats of rape or death. In addition to those allegedly tortured, the mission also found that 12 detainees had died in custody.
Aid agency Medecins San Frontieres (MSF) has supported the findings of this report and Pillay's statement to the Security Council. According to the MSF, forensic examinations of some of those who died in detention provide evidence that such methods are still being used. Furthermore, MSF reports that some of their staff were asked by the militia in detention in Misrata to patch up prisoners midway through torture sessions so they could be taken back for more abuse. MSF in January said that its doctors had treated 115 people since August 2011 who had torture-related wounds and of those two people had died.
If the reported human rights violations are true and the militia is responsible for them, then the militia has violated the International Covenant on Civil and Political Rights (ICCPR) of 1966 and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, two international agreements to which Libya is a party. The ICCPR provides that everyone has the right to life and further that "No one shall be subjected to arbitrary arrest or detention." In addition, both the ICCPR and the Torture Convention expressly provide that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Bearing this in mind, it is clear that the alleged perpetrators should be brought to book for the acts of torture and the reported deaths. The AI report recommends that the NTC abruptly put an end to the unlawful detentions and ensure that any arrests are carried out by lawful police forces, ensure humane treatment of detainees and investigate the reported deaths of prisoners. However, as noted by Pillay, the reason that these crimes have gone largely unpunished is because the NTC seems to lack the requisite systems to oversee activities across the country. Consequently, some regions are not governed by the NTC, but instead by the militia.

In 2011, the NTC vowed to investigate allegations of human rights abuses after AI released their September 2011 report, which alleged that both sides to the Libyan conflict were responsible for human rights violations. The NTC also currently has in detention International Criminal Court (ICC) accused Saif al-Islam and Abdullah al-Senussi, who they intend to prosecute domestically despite criticisms from the ICC and the international community. Indeed, to date, no efforts have been made to freely and fairly prosecute both sides to the conflict. Unfortunately, this state of affairs closely mirrors the lack of commitment to criminal justice on the part of the Gaddafi government throughout his 42-year rule. If the NTC is to establish itself as a legitimate government, it will need to address this fundamental issue as well as ensure that it has authority over areas currently controlled by different militia groups.

Ottilia Maunganidze is a Researcher for the International Crime in Africa Programme at the Institute for Security Studies. Her main focus is on criminal justice mechanisms to deal with international crimes and the promotion and protection of human rights. Previously, she worked as a research intern for the African Security Analysis Programme, as a junior legal advisor at the Rhodes University Legal Aid Clinic, and as a student human rights education coordinator for the Rhodes University chapter of Amnesty International.

Suggested citation: Ottilia Maunganidze, NTC Must Commit to Criminal Justice to Bolster Credibility, JURIST - Hotline, Feb. 27, 2012, http://jurist.org/hotline/2012/02/ottilia-maunganidze-ntc-detentions.php.

Rwanda`s New Genocide Cases a Milestone for Domestic Prosecutions of International Crimes

On 6 April 1994, Rwandese president Juvenal Habyarimana and Burundian president Cyprien Ntaryamira were killed in a plane crash. The two were travelling from Tanzania to Rwanda following a heads of state summit in Dar es Salaam. After the crash widespread violence erupted in Rwanda resulting in the deaths of approximately 800 000 people over the next 100 days. Although it has been alleged that the plane was shot down, to date the perpetrators have not been identified. The targets of the Rwandan genocide were predominantly from the Tutsi ethnic group, although moderate individuals from the Hutu ethnic group who were believed to be sympathetic to the then opposition Rwandese Patriotic Front (RPF) were also among the victims.

Eighteen years after the genocide, the quest for justice for the crimes committed in 1994 continues. An international criminal tribunal was set up by the United Nations Security Council (UNSC) to prosecute those who bore the greatest responsibility for the Rwandan genocide. To date, the International Criminal Tribunal for Rwanda (ICTR) has dealt with over 80 cases, securing convictions in 59 of these. The ICTR has achieved important results as far as accountability for the genocide is concerned. However, the tribunal has been criticized for taking too long, being costly to run and prosecuting a small amount of people in comparison to domestic justice processes in Rwanda. Furthermore, the ICTR has been criticized for focusing its prosecutions on Hutus.

In addition to those prosecuted by the ICTR, the Rwandan local and traditional gacaca courts have prosecuted hundreds of thousands of individuals. The combined efforts of the ICTR, the local courts and the gacaca have resulted in a unique and comprehensive approach to ensuring justice for the crimes committed during the 1994 genocide. However, despite overwhelming success, justice has largely remained one-sided and slow. In a 2011 report on the gacaca, international human rights organisation Human Rights Watch criticized the gacaca system and accused the Rwandan government of political interference in the trials. In addition, many senior officials believed to be behind the genocide remain at large and in exile in other countries. These individuals, if extradited to Rwanda, can only face trial before the High Court and not the gacaca.Since 1995, the Rwandan government has sent over 40 extradition requests to various countries.

These requests for the extradition of individuals to Rwanda to stand trial have largely been unsuccessful. However, recent events suggest that those who remain at large could face trial in Rwanda at last.

On 24 January 2012, Canada deported alleged genocide suspect Leon Mugesera back to Rwanda. Mugesera appeared before the Rwandan High Court on 2 February 2012 where he was charged for his involvement in the 1994 genocide. Mugesera, a member of the MRND – the former ruling party in Rwanda – is accused of inciting and planning the genocide. The charges against Mugesera are based on a speech he gave at an MRND party meeting in 1992, in which he called upon people from the majority Hutu ethnic group to exterminate the minority Tutsis who he likened to cockroaches.

Mugesera’s case is the second high profile case that will be dealt with by Rwandan domestic courts. His deportation came just days after the ICTR handed over referral and prosecution materials in the case of Jean Bosco Uwinkindi to the Rwandan courts. Uwinkindi is charged with the crimes of genocide, conspiracy to commit genocide and extermination as a crime against humanity for his involvement in atrocities in Kigal Rural Prefecture.

Uwinkindi’s transfer is the first handover of a case by the ICTR to the national courts of Rwanda. The Prosecutor of the ICTR, Hassan Bubacar Jallow, regards the transfer of the Uwinkindi case as a watershed moment for both the ICTR and Rwanda. Indeed, the transfer of the Uwinkindi case to Rwanda is an important step in acknowledging the ability of the Rwandan criminal justice system to deal with serious crimes.

In addition to the cases of Mugesera and Uwinkindi, in 2011 the US returned to Rwanda two genocide fugitives, Jean-Marie Vianney Mudahinyuka and Marie-Claire Mukeshimana. More recently, the European Court of Human Rights (ECHR) also approved the extradition of another genocide suspect, Sylvere Ahorugeze, who is currently resident in Sweden. The decision of the ECHR, although subject to review, is important for international criminal justice as it has a broad impact, particularly in Europe where it is believed hundreds of Rwandan genocide suspects reside.

The decision of ECHR is the first of a regional human rights court on the extradition of a genocide suspect to Rwanda. As such the judgment sets a precedent for Rwanda to seek extradition of other suspects resident abroad. This decision follows refusals by courts in Belgium, Denmark, Finland, France, Germany, Switzerland, the Netherlands and the United Kingdom to allow the extradition of genocide suspects to Rwanda. Most of these decisions were based on the fact that the courts were not satisfied that the Rwandan judiciary could guarantee a fair trial to extradited genocide suspects.

It is no surprise therefore that the Prosecutor General of Rwanda, Martin Ngoga, has applauded these recent decisions as evidence that the international community believes in the Rwandan criminal justice system. He credits the Rwandan government’s legal reforms for these positive developments. Notably, in 2007 Rwanda abolished the death penalty. Furthermore, since 2008 Rwanda has engaged in capacity building projects aimed at enhancing the performance of the judiciary and ensuring fairness and efficacy of the courts. In addition new courthouses and detention facilities were constructed.

However, despite these recent decisions and the efforts of the Rwandan government to reform the criminal justice system, concerns remain. One of the major concerns relates to whether the Rwandan courts have the requisite capacity to deal with the potential influx of high profile cases. In addition, until recently most courts – the ICTR and those in Europe – did not believe that the Rwandan courts would be able to provide free and fair trials for genocide suspects. Perceptions are changing, albeit slowly. The satisfactory performance of the Rwandan courts will be particularly important for Rwanda’s continued efforts to ensure accountability given that both the ICTR and the gacaca courts will end trials in mid-2012. As a result, the latest genocide trials in Rwanda will be watched closely as they will be the litmus test for any future extraditions or transfers to Rwanda.

ISS Today article written by Ottilia Anna Maunganidze, Researcher, Transnational Threats and International Crime Division, ISS Pretoria

ISS Africa

Cry my beloved continent...

I remember the first time I saw raw images of war crimes & crimes against humanity... what I saw then cannot be erased, what I feel today cannot be undone... it is as if finally coming face to face with the crimes I work daily to end awoke in me a deeper understanding of why peace and justice are so important. Which brings me to an issue that never ceases to irk me... the seemingly blase attitude of African heads of state to the realities that Africans are facing every day... and continued disrespect for both peace and justice. There is so much chaos in Africa, yet the heads of state will sit & discuss a bunch of theoretical propositions. Don't get me wrong, its worth talking about "economic integration", but it's an ideal we may never realise *stares at Europe*. We have bigger problems than trying to mirror European trends. We have war, impunity, bad governance and a general lack of respect for the rule of law and human rights. Yet our "leaders" are meeting in Addis Ababa, Ethiopia this week to primarily discuss economic integration. Issues of peace, security and justice are likely to be discussed on the sidelines. There is a glaring absence of sessions to discuss justice on the agenda. In fact, you can be forgiven for believing that as far as African leaders are concerned, justice is a non-issue. They will spend their week in air conditioned halls pretending like all is peachy across the continent. They will waste yet another week talking abt economic integration! Considering most African countries rely on donor funding for their budgets anyway, I dare ask: Whose "economy" are they proposing to integrate exactly? But, like I always say... People often get the presidents they deserve. We (the people of Africa) like to "sit back" & let raging megalomaniacs do what they wish THEN (& only then) do some of us "uprise". These "leaders" are our products. Most of them ride on the coattails of misplaced support. Most of them - self-imposed additional terms aside - are people who we allowed to seize power. And where we did not, somehow we still find it in ourselves to "at least" respect them. For what? For plundering our nations resources? For systematically violating human rights? For corrupt (and generally just bad) governance? If we paid as much respect to the basic values of human rights, good governance & rule of law, as we do presidents... Who we let govern us is an indictment on us. Autocracies do not "just happen". We, let's face it, give them the space to thrive. Today, someone somewhere is being tortured to death... tomorrow it could be you. Give voice to the voiceless, legs to limbless... you are not human if you do not respect human rights. You are not human if you do not respect human rights.