Like Botswana, more countries should take steps to tackle the crime of aggression

08 May 2013

On Monday 15 April, Botswana became the first African country to sign and ratify amendments to the Rome Statute of the International Criminal Court (ICC) that could pave way for the prosecution of the crime of aggression. In his speech ahead of the signing of the ratification document, the President of Botswana, Seretse Khama Ian Khama, reiterated the country’s commitment to international criminal justice in general and the ICC specifically in fighting impunity globally. He said that international criminal justice should not be impaired by the status of the accused and that domestic and international prosecutions are the best mechanism to respond to international crimes.

This is a welcome development and evidence of the impact of the Global Institute for the Prevention of the Crime of Aggression and the Principality of Liechtenstein’s international ratification campaign, which promotes the ratification and implementation of the Kampala amendments on the crime of aggression. The crime covers the planning, preparation, initiation or execution of an act of aggression by a person in a leadership position. This act of aggression must also constitute a manifest violation of the Charter of the United Nations (UN). Acts of aggression are any use of armed force by one state against another without the justification of self-defence or authorisation by the UN Security Council.

For African countries, the importance of allowing the ICC and its member states to prosecute the crime of aggression cannot be overstated. Indeed, Africa has historically been a victim of aggression (in various forms). In 1998 in Rome, when the Statute of the ICC was adopted, and in 2010 at the Review Conference of the Rome Statute of the ICC in Kampala, African states parties actively sought the inclusion and definition of the crime of aggression. However, ratifying these amendments is significant not only to Africa but to all countries – several of whom have suffered as a result of the aggression of other states.

It should be noted that in order for the ICC to begin exercising jurisdiction over the crime of aggression (at the earliest in 2017, as agreed upon by states parties to the Rome Statute in Kampala in 2010), 30 countries must ratify the amendments by 31 December 2015. Botswana, Estonia, Liechtenstein, Luxembourg, Trinidad and Tobago, and Samoa have led the way by being the first six countries to ratify. However, 24 others will need to ratify before the deadline. While the end of 2015 might seem a far-away date, the reality is many states parties to the Rome Statute must be urged to ratify the amendments urgently. Countries like Belgium, Germany, Ghana, Lesotho, Senegal and South Africa have already begun the ratification process – albeit at different levels. It is hoped that these and several other countries actively working on the ratification will do so swiftly. There are three reasons why countries should ratify the amendments:

• Ratification would serve as a first step to promoting international peace and the rule of law.  The express prohibition of the illegal use of force contained in the definition of the crime of aggression and the threat of criminal sanction could prevent future illegal uses of force. Also, states that ratify would effectively protect themselves against aggression by another state and would publicly pledge not to commit aggression. This would be in line with the promises made at Nuremberg that never again would those who commit the crime of aggression do so with impunity following the conviction of senior German officials for waging aggressive war during the Second World War.
• The criminalisation of the crime of aggression serves to protect human rights. By their very nature, acts of aggression result in gross human rights violations and the violation of international humanitarian law. Those who often end up counting the cost of aggression are the most vulnerable of society, particularly women and children.
• Ratification reflects continued support for the ICC and international criminal justice. While the 122 countries that have ratified the Rome Statute have already shown their commitment, ratifying the amendments would serve to bolster this commitment.

Nevertheless, the inclusion and definition of the crime of aggression in the Rome Statute is not without its challenges and detractors. Indeed, at the time that the Rome Statute was being considered, the issue of whether or not to include the crime of aggression was the subject of immense debate. Countries like the United Kingdom and the United States, who prosecuted aggression at Nuremberg, were ironically the ones who argued against its inclusion. Their concerns related to legal constraints on their ability to mount military or humanitarian interventions. Further, it was (and has been) argued that the crime of aggression is an issue of a political rather than a legal nature and should thus remain the remit of the UN Security Council, not a judicial body such as the ICC.

A large contingent of states (from Africa, the Arab world, Europe and those that are non-aligned) supported its inclusion in the Rome Statute. The resultant statute incorporated the crime of aggression, but did not define the crime and put off the ICC’s exercise of jurisdiction over this crime until such a time as a definition was agreed. This definition was agreed upon in 2010 and can be seen as a compromise between the two divergent views on the crime. However, the ability of the ICC to exercise such jurisdiction was postponed until at least 2017.

The adoption of a definition on the crime of aggression and the inclusion of additional war crimes in the Rome Statute was a giant leap for international criminal justice. It was a further affirmation by states of their commitment to international justice, peace and security. The crime of aggression, unlike the other offences under the Rome Statute, specifically targets national leaders who are in a position to effectively exercise control over or direct the political or military action of a state. The prosecution of this offence by the ICC will ensure accountability for the most serious illegal uses of force against other states. The journey, however, has been arduous and could remain so if states do not follow through on their affirmation by ratifying. Indeed, states should be seen to actively commit to international criminal justice rather than merely making declarations. Without action, these declarations may be viewed as nothing more than empty promises.

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

A warlord faces justice at the ICC after six years on the run

 27 March 2013

 

On Tuesday 26 March, Bosco Ntaganda, a former rebel leader accused by the International Criminal Court (ICC) of committing war crimes and crimes against humanity in the Democratic Republic of Congo (DRC), appeared for the first time before the court. The appearance came a week after Ntaganda handed himself over to United States (US) embassy officials in Kigali, Rwanda and requested immediate transfer to the ICC. Through the cooperation of US and Rwandese authorities, Ntaganda was sent to the ICC on 22 March. While the reasons for his surrender are unclear, what is apparent is that Ntaganda has chosen to face justice at the ICC instead of continuing life as a fugitive.

The significance of this, for the ICC and international criminal justice in general, cannot be underestimated for a number of reasons. First, Ntaganda – after almost seven years on the run – is the first person for whom the ICC issued an arrest warrant who has voluntarily surrendered himself to the court. Eleven others for whom arrest warrants have been issued for situations in the DRC, Côte d’Ivoire, Libya, Sudan and Uganda remain at large.

Second, the ICC received ready cooperation from the US and Rwanda. Both countries have not ratified the Rome Statute of the ICC and thus have no direct obligations to the court. Despite this, their decisions to cooperate with the court and swiftly transfer Ntaganda to The Hague are indicative of support for international criminal justice.

Third, Ntaganda’s surrender comes at a time when the DRC is embroiled in ongoing conflict in the eastern provinces of the country. Ntaganda is said to have been integral in stoking the conflict in various ways from mid-1990 to date. However, it should be borne in mind that the crimes for which Ntaganda is presently charged relate to his activities in the eastern DRC region of Ituri (north of the war-torn Kivu provinces that border Rwanda) between 1 September 2002 and the end of September 2003.

For his alleged involvement in the Ituri conflict, Ntaganda – a Rwandan-born Congolese citizen – is charged with seven counts of war crimes, including the enlistment and conscription of children under the age of 15, the use of children under the age of 15 to participate actively in hostilities, murder, attacks against the civilian population, rape and sexual slavery, and pillaging; and three counts of the crimes against humanity of murder, rape and sexual slavery, and persecution. During the time these offences were supposedly committed, Ntaganda was allegedly serving as the Deputy Chief of the General Staff of the Patriotic Forces for the Liberation of Congo (Forces Patriotiques pour la Libération du Congo, or FPLC), the military arm of the Union of Congolese Patriots (Union des Patriotes Congolais, or UPC), a rebel movement in the eastern DRC. In this capacity, it is believed that Ntaganda reported directly to Thomas Lubanga Dyilo. Lubanga Dyilo, currently in detention, made news in 2012 when he was the first person convicted by the ICC for the enlistment and use of children to actively participate in hostilities.

In addition to his involvement with the FPLC, Ntaganda – nicknamed ‘The Terminator’ – has over the years fought for several rebel groups. In the early 1990s, Ntaganda fought with the Rwandan Patriotic Army and from 2006 he was linked to the National Congress for the Defence of the People (Congrès National pour la Défense du Peuple, or CNDP) led by Laurent Nkunda. Ntaganda is also one of the key figures allegedly behind the November 2008 Kiwanja massacre in which approximately 150 people were summarily executed in under two days.

Despite all this, Ntaganda was integrated into the Congolese army following the attempt at demilitarisation and reintegration of rebels from the CNDP, and the Congolese government made no effort to arrest and transfer him to the ICC. At the time of his surrender, Ntaganda had defected from the army and had been linked to another rebel movement, the M23, from early 2012. It is believed that the splitting of the M23 in February 2013 following infighting prompted Ntaganda to flee from the DRC to Rwanda.

Despite several promises (and having previously cooperated with the ICC), the Congolese government did not arrest Ntaganda. Interestingly, the DRC itself has over the years issued arrest warrants for Ntaganda for allegedly committing, among other offences, torture, murder, illegal detention and arbitrary arrest. These warrants of arrest and those issued by the ICC were not executed, which further frustrated those who wanted to bring Ntaganda to justice.

The failure by the Congolese government to arrest Ntaganda and transfer him to the ICC – as it had done with Lubanga Dyilo – highlighted one of the major challenges facing the court: that it does not have its own police force and so relies on support and cooperation from Rome Statute states parties to make arrests. Ntaganda’s decision to surrender himself to the court is significant because it shows that the ICC can secure indictees for trial if they voluntarily surrender, even to non-state parties that are not bound by the ICC’s statute.

There are three ways in which an ICC accused can come before the court. First, when a summons to appear is issued, the accused can voluntarily present him or herself to the ICC. Second, when an arrest warrant is issued, the authorities in a particular state can apprehend and surrender the accused to the ICC. Third, when an accused for whom an arrest warrant has been issued hands him or herself over to the court. Given that when arrest warrants are issued this is done precisely because it is doubtful that a suspect will voluntarily appear, the third option – which Ntaganda recently took – tends to be the least likely. More so for ICC cases, which tend to focus on people in positions of power because of the prosecutorial strategy of going after those most responsible for international crimes.

Ntaganda`s appearance in the dock at the ICC on 26 March sends a strong message to perpetrators of international crimes that they too may face justice one day – whether they are delivered to court after arrest or because circumstances push them to voluntarily surrender. While this is only the beginning of the proceedings against Ntaganda, it is a highlight at a time when the ICC continues to struggle with securing the arrest of individuals like Ugandan Joseph Kony of the Lord’s Resistance Army and President Omar Hassan al-Bashir of Sudan.


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

Original posting: http://www.issafrica.org/iss_today.php?ID=1615 

Uganda Coalition on the International Criminal Court (UCICC) Annual Publication

Uganda Coalition on the International Criminal Court (UCICC)  

The Forum Magazine 2012


"This issue contains analyses of both critical and pro ICC nature. It is inclusive of different opinions, perceptions and misconceptions surrounding the work of the ICC, since the time of establishment.

This issue is most important for views on the work and impact of the ICC and outstanding considerations are:

(1) What have been the roles of the ICC as a world court since the time of establishment?

(2) The impact of the ICC since establishment.

(3) The common challenges faced by the ICC since the time of establishment.

(4) The different perceptions and misconceptions about the ICC as being another form of neo-colonialism.

(5) The future prospects of the ICC as a world court for future fair delivery of justice and the elimination of impunity.

The forum endeavours to uncover all minds of the researchers, academia and Civil Society Organizations. It is an opportunity for expression of thoughts geared towards the creation of a platform that is essentially beneficial to both the national and International community."

Download the PDF: http://www.ucicc.org/attachments/article/22/The%20Forum%20Magazine%20Issue%20No.%203,%202012%20%20Final%20Copy.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.
 

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.

Why International Criminal Court's work is so significant for Africa: Cote d'Ivoire investigation

*A little late posting this... but better late than never I suppose*

A last refuge for justice


October 12 2011 at 07:53am


At the end of September, the judges of the International Criminal Court’s (ICC) Pre-Trial Chamber III authorised the court’s prosecutor to launch formal investigations in Ivory Coast. The investigations will focus on the violence that occurred in Ivory Coast from November 28, 2010, following the release of the results of the second round of elections in which the opposition movement, led by Alassane Ouattara, was declared victorious.


The post-election violence in Ivory Coast lasted more than five months. During this period, reports of widespread murder, rape and forced disappearances abounded. As a result of the protracted violence, 3 000 people died and about one million more were internally displaced.

While relative stability has returned to the west African country, according to the UN Mission in Ivory Coast, more than 30 000 people remain internally displaced. As per ICC procedure in matters such as these, the authorisation by the court’s judges followed a request on June 23, 2011 from the ICC prosecutor, Luis Moreno-Ocampo, to begin the investigations. Ocampo’s request stemmed from an invitation by the Ivorian government to investigate crimes committed in the country.


The judges’ decision is a welcome development in ensuring that justice is served for crimes committed in Ivory Coast. However, the decision comes at a time when the African Union’s relationship with the ICC remains sour. Since 2009, when the ICC issued an arrest warrant for Sudanese President Omar Hassan al-Bashir, the AU has called on African states not to co-operate with the ICC.


Ironically, several African countries, notably Botswana, Burkina Faso, Nigeria, Sierra Leone and South Africa, have consistently voiced their support for the ICC and remain committed to co-operating with it.


Furthermore, several African states – Ivory Coast included – have shown continued support for the ICC by calling on the court to investigate and prosecute crimes committed in their countries.


The first situations before the ICC came about after states that are signatories to the ICC’s Rome Statute asked the court to investigate crimes committed in their respective countries. These states are Uganda, the Democratic Republic of the Congo and the Central African Republic.


The ICC can also claim jurisdiction over a matter in a state party if the prosecutor, of his own accord, requests authorisation from the ICC’s pre-trial chamber judges to initiate investigations. To date, the prosecutor has only exercised this proprio motu power once, in the case of Kenya’s post-election violence.

The UN Security Council may refer situations to the ICC in countries that are not state parties to the Rome Statute. The security council has exercised this power in respect of two situations before the court: those of Sudan’s western province, Darfur, and Libya.


With the recent authorisation of investigations in Ivory Coast, four of the seven cases before the ICC are the result of choices made by African states themselves. This is a clear sign of acceptance by Africans of the importance of the ICC in assisting them in meeting their obligations to end impunity and promote international criminal justice.


While Ivory Coast has not ratified the Rome Statute, it has formally accepted the jurisdiction of the ICC. The first declaration accepting the ICC’s jurisdiction was made in April 2003 by then-president Laurent Gbagbo.

In December 2010 and again in May 2011, incumbent Alassane Ouattara made similar declarations and invited the ICC prosecutor to investigate crimes committed since November 2010.

The peculiar situation in which Ivory Coast has accepted the ICC’s jurisdiction, without taking the broader step of ratifying the Rome Statute, creates an interesting precedent for the authorities of the Occupied Palestinian Territories. The Palestinian authorities are bidding for statehood and in January 2009, made a similar declaration granting the ICC jurisdiction over the crimes allegedly committed by Israel during Operation Cast Lead in Gaza. If the occupied Palestinian territories are granted statehood, the Palestinian authorities may also wish to refer the situation in their territories to the ICC. However, pending the outcome of the Palestinians’ bid for statehood, to date all the cases before the ICC are from African countries.


This African focus has led to some criticism of the ICC as targeting Africa. This criticism, however, ignores important considerations.


Firstly, 32 African countries have voluntarily ratified the Rome Statute and Ivory Coast has voluntarily accepted the ICC’s jurisdiction.

Secondly, the criticism fails to acknowledge the fact that the majority of the situations before the ICC areas are a result of self-referral by the government of the country concerned.

Furthermore, the criticism overlooks that the ICC serves as a court of last resort, which only intervenes when a state is either unwilling or unable to prosecute alleged perpetrators of international crimes.

Lastly, the criticism does not acknowledge the pervasive culture of impunity and weak criminal justice systems in Africa – factors that have contributed significantly to the continued commission of international crimes on the continent.

The ICC exists to fill the impunity gap and to ensure justice for persons responsible for the most serious crimes of international concern. The ICC is furthermore complementary to national criminal jurisdictions. The preamble of the Rome Statute stresses that the first commitment by states is to themselves “end impunity for the perpetrators of these crimes and thus contribute to the prevention of such crimes”.


Ivory Coast’s recent invitation to the ICC, alongside the ratification of the Rome Statute by 32 African states, are examples of African countries fulfilling their obligations to promote international criminal justice and end impunity.


The fact that at present, all the situations before the ICC are from African countries indicates not only that unacceptable levels of violence bedevil our continent, but it also presents an opportunity for Africa to be at the centre of developments in international criminal justice.


Even as certain African leaders criticise the ICC’s involvement on the continent, for Ivorian victims of mass atrocities, that involvement sends out a symbolically important message that their suffering has not been forgotten and that those responsible may meet justice, through the work of a faraway court in The Hague.


Ottilia Anna Maunganidze is a researcher in the International Crime in Africa Programme at the Institute for Security Studies.


http://www.iol.co.za/dailynews/news/a-last-refuge-for-justice-1.1155343

I will remain a soldier...

First thing's first... these are the ramblings of an angry pan-Africanist... yes... I am a pan-Africanist and I won't even attempt to justify my position.. So, if I may, allow me to clear my throat of 23 years of repressed bile...

Now, while I do declare my firm stance as a Pan-African, I can't help but lament the constant invocation of this "idea" by many an African leader as a means through which to escape responsibility or to rally the support of their "brothers"... This note serves as an overdue love-letter to the many African leaders who have manipulated the notion of pan-Africanism to this end... I write my "letter" weeks ahead of a scheduled conference in which African leaders are expected to "unite" against what they consider to be a western backed conspiracy by the International Criminal Court against Africa..

" Dear Omar al-Bashir, Robert Mugabe, Hissene Habre, Thabo Mbeki, Mwai Kibaki, Abdoulaye Wade, Col Muammar Gaddafi, the late (but not quite gone) Lansana Conte, Idriss Deby, Mahmoud Tandja, Joseph Kabila... and your fellow despots who continue to kill the continent with your corrupt dictatorial governance... silencing dissent with the muzzle of an AK-47 and thinking up Western conspiracies against the "African brotherhood" to allow you to suck the life out of our beautiful continent.... I can only say this to you:

"Let not the dreams of our forefathers be clouded by your neopatrimonial desires to cling to power... leave not the African continent bleeding and crying for mercy. Have you not shamed your children enough by your kleptocratic governance? Must we continue to suffer as you bloat your bellies with the innocent cadavers of many who have died because of your misrule and greed? As you pillage our continent's resources and wash your hands with the blood of Africa's children, for just one second I dare you to stop and think of the legacy you leave with us your children, your grandchildren... because of you there are so few of us who still desperately cling to delusions of a united Africa... united not in strife... but united in a vision for a better tomorrow where Africa takes its position at the head of the table... lifts itself from the ashes and establishes itself as an equal... *sigh*

It is true that our greatest enemy is ourselves... As we strive to extricate ourselves from the vicious cycle in which you have placed us... we find ourselves blaming the disarray of the continent not on our failure to stand up and fight but on you... This is what you have made us... We are only as strong as our weakest point... you have brought us to our knees...
Have you no shame? Have you no heart? We cry, but you do not hear us... Ours shall not be a violent revolt... for the pen IS mightier than the sword... as I stare into the metaphorical barrel of the gun before me I have this to say to you: I will not give up... I WILL remain a soldier until this war is won "

Those rose-tinted glasses: Shall I watch my Zimbabwe whither?

I love my country... I'm sure my previous rant about my Zim pride shows that enough. However, I find myself feeling terribly helpless when news from home reaches me or when I am deeply disturbed by images of poverty and strife. And yet, here I am self-professed humanitarian and human rights activists deciding that I'd rather another year here in South Africa than face the vagaries of home. I wish there was something I could do, but all my parents have taught me is the "flight" before "fight".... How you ask?
When ESAP hit my beautiful country... our family moved to Switzerland, we stayed there until - it only makes sense to me now - the drought years seemed over.. And then in 2000, there was a Constitutional Referndum and white commercial farmers were dispossessed of their land... my family moved to France. I am not using my own parents cowardice as a veil from which to hide behind, but I am suggesting that they have inculcated in me a chicken run mentality. For can I really love Zimbabwe if subconsciously I am planning to emigrate back to my adoptive country of Switzerland upon completion of my post-graduate studies? Or am I one of those arm-chair commentators who pretend to grieve but would rather someone else sort out the problem? Am I not part of THAT generation of people that the world claims will make a change? Or have I been made to run away from that too?

I feel like a feral child where Zimbabwe is concerned, I look at it through rose tinted glasses and as it whithers I somehow see it grow. I constantly tell people what a beautiful country it is and yet I fail to understand how such a country can be filled with such complacent borderline despondent people.. Almost as if all the masochists were born to live in Zimbabwe. For how can all the action we do be signing online petitions that clearly go nowhere?

I have a nephew, poor sod was born in 2001 and thus doesn't really know the vibrant Zimbabwe of yesteryear.... who upon his first visit to what I consider the dirtiest, ugliest city in South Africa (Johannesburg), called me and said: "Aunty OT, their lights don't go off all the time here!"... It was then, that I realised I couldn't just run away from my country without some sort of a fight. I can't just sit back and watch the next generation be engulfed in the rot that is the economic and political situation of my homeland. Zimbabwe remains a beautiful country, slowly being made to decay by people whose only concern is themself.

I still feel helpless, but I shan't be for much longer... my tunnel has light at its end and I have started to run towards it, for crawling will get me there too late and bruise my knees and my ego... I am running, running back to the Zimbabwe my parents made me return to for those brief two years in 1998.