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.

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

Out with images of war in with the hungry.... step right up!

Watching the news fascinates me... So much so that I subscribed for satellite TV primarily so I could watch the news in the mornings as I get ready for my daily toil and again at night to "catch up"... yet, I must confess that the more I watch the news the more it just seems like a badly scripted attempt to cover "world issues" while only covering a few... or at least covering the ones that will pay for that holiday in Tenerife...


As I watch the news, read the newspapers and what have you, all I see is "sexy"... not catwalk sexy or shake your laffy taffy sexy (depending on how your pendulum swings)... but "This will make a killer headline" 'sexy'. So we are inundated by news of so and so's disastrous breakup, like people don't get dumped everyday... we "oooh" and "aaah" as the details of Dominique Strauss-Kahn's alleged fetish for violent sex is narrated as if thousands of women are not raped each day... 1500 a month in the DRC alone, multiple times... but let's face it, the plight of the poor women in the eastern DRC stopped being glamorous round about the same time it became a cliche to refer to Goma as "the rape capital of the world"...



A friend earlier remarked that the media is acting as if famine is a new thing in Somalia... why do people "care" all of a sudden? I'll tell you why... after months of hearing and seeing the violence in Libya, "the world" is ready for something new, something en vogue... *drum roll please* In saunter the hungry people of east Africa onto our TV screens... Oh yes! Now, we've got "news".. I saw a clip on the news yesterday where the poor Somali child looked like she was made to look sad... Nothing quite like images of emaciated starving eastern Africans to get those TV ratings up... as I supped on my TV dinner, I wondered what I could possibly do to make that poor woman and her children better? Send a goat perhaps? Plant a tree? We ARE going green after all.. and if I plant this one tree in this one corner of the world... that little family on my screen might just disappear... into oblivion... or perhaps they'll just stay exactly where they are, suffering the same pain as the camera pans to the streets of Mzuzu... I hear the Malawians have had it! They want their neo-dictator to go... They can't take it anymore! Run along now dear sexy seekers, you need that "money shot"! The one that'll beat all the others and make it on the cover of National Geographic.. maybe even feature on Al Jazeera... I do love me some news...

When elephants fight

The thing about power - as has been said many a time - is that it corrupts... the love of power (over and above that of money) for me is the root of all evil. It is in and of itself an all consuming desire to conquer not only one's own world, but the worlds of other... power corrupts, absolute power corrupts absolutely. To date millions of people have died in fights for power.. many more will die today... and if we sit back and say "Aaah! But that is the way of the world" many more will die tomorrow and the day after and the day after that...

Today, I write with a heavy heart... once an optimist, man has shown me a side so dark my optimism has been tainted... I find myself believing more and more each day that at the core of many men is an evil so cancerous it threatens to ruin humanity... an evil so all consuming it will mark the end of us all..

I am happy to be alive, my day has not yet come.. but many did not live to see today.. they were killed.. killed by their kin, killed by their kith, killed by their kind.. not by the beasts that lurk in the savanna, but by others like them... hacked by machetes, shot down by AK47s.. Some are alive in body, but dead in spirit. They do not see the world as they did yesterday, they cannot.. stripped of their dignity, a deep hatred thrives where love used to blossom... they are victims of an inhumane world.. a world that does not hear their cries or see their tears.. a world that you and I call ourselves citizens of..

Once an optimist, my rose tinted glasses have been stained by images of mangled bodies and lifeless carcasses... Once an optimist, I see evil in the eyes of many.. I wonder if love can ever live there.. Once an optimist, I realise that my dreams for the world may not become a reality in my lifetime... Once an optimist, I try to celebrate the lives of those who die everyday, but I cannot... I did not know them.. they are faceless.. How can I celebrate their lives, when all I can do is mourn? Once an optimist, I sit here and realise that optimism is a luxury that many cannot afford...

Today I write as innocent people continue to be massacred across the globe - most in the name of politics... My heart bleeds for all the civilians who have been killed as collateral damage in unjust wars...

But as I write, the elephants continue to fight and the ground continues to suffer... as I write someone somewhere has just been gunned down... and as I write, someone somewhere doesn't care :-(

An open letter to those of whom we do not speak...

Dear Despots,



Thanks to you, I decided to stay home as the world revelled on the 31st of December 2010... Yes, a rather crap year was in its last hours (The memory of the 2010 FIFA World Cup only a blur of bad debt by then), but I couldn't celebrate... It's not that I didn't particularly want to. It just felt like I had reached my pit-stop, that I should take a breather before I embarked on what I hoped would be an amazing 2011.. Yes, the idealist in me not-so-secretly hoped that 2011 would be the year that the ever elusive world peace became a reality.. I needed my rest. No partying for me.



You might be wondering what this all has to do with you.. It's not like you care much for the plight of the ordinary person anyway... Not least one whose passion is the one thing you love most to destroy: human rights... Well, that's just it! My not-so-dear Despots.. This letter is to you..



On 31 December 2010, as many a middle-class spawn partied up a mini storm, explosions tore through Nigeria, 60 women were brutally raped by members of the military and militia in the Eastern DRC, Cote d'Ivoire teetered on the brink of collapse... As many a person partied up a mini storm on December 31st 2010, thousands across the world caught their last breath... killed, tortured, maimed... Some died physically, most died emotionally and spiritually. Their dignity stripped off them leaving them bare... As many partied up a mini storm on December 31st 2010, the world began to burn... You, the arsonists, drank your overpriced champagne and plotted your future as many lamented their present...



On 1 January 2011, the sun arose and with it a tempestuous new dawn... Ben Ali of Tunisia was toppled, Hosni Mubarak soon followed... The people had had enough... they were tired of typing out their sentiments and living at the mercy of greedy despots... they - like phoenixes risen from the ashes - got up and stayed up until their desires were met... Or were they? Tunisia and Egypt remain unstable... the rest of the region is catching fire... burning fervently and so close to the devil's cauldron... Born of violence many shall die of violence.. so the adage goes...



I have decided to stain my satellite view of Africa with red ink... it symbolises the blood that continues to be let in our people's struggle for their right to be human.. It marks the pain and suffering that no one should ever go through. The raw and gaping wounds that you have caused. It marks your legacy dear despots..



As the sun rose on 1 January 2011 I wondered: Will this decade usher in a new dawn? Will we rid ourselves of the choke-hold of our "leaders"... The sun has not set... When you're gone, dear despots... we may rest... and maybe I too will party up a mini storm on the eve of 2012... One can only dream *sigh*



Yours insincerely,



Sick & Tired

I tweet what I like... and I let people stroke my ego on facebook

A friend of mine recently started using twitter... After a few days she complained about how she has to metaphorically stand on a soapbox and hope people hear her ALL THE TIME.. By Day 3 she had 6 followers and after not tweeting for a couple of days I unfollowed her.. She asked how I could do that when we are FRIENDS... I told her that that's what I still have facebook for... so the people who think they are my friends don't think I've deserted them...

I tweet - A LOT! But that could be simply because I talk a lot too! The 140character limit helps in a way... but it only adds to the ADHD that we all try to suppress. No one creates albums of different shots of their face on twitter and if they did, I can just unfollow them until they get over their mole. I can interact with friends, foes and a few Romans while I get the news as it breaks... I use it the way I see fit.

Yes, twitter has its fair share of narcissists and it can sometimes feel like people are competing to be heard.. It has its limits, but when it comes to soothing our egos Facebook is the better choice. Facebook is the epitome of egotistical - we post flattering pictures of ourselves so our "friends" can "like" them and tell us how the sun makes our eyes pop... psssht! Then we write pseudo-cryptic posts on others' walls so that the "others" can see them and wonder what we're on about and secretly long to be in the inner circle too *yawn*.. Facebook is a lot like high school or college...

That said: I STILL post pictures on facebook *whips hair back and forth* and write on peoples' walls and post status after status so people comment... because well... we all have our id, ego and superego.. don't we?