Contemporary International Criminal Law Issues: Contributions in Pursuit of Accountability for Africa and the World 9462655545, 9789462655546

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Contemporary International Criminal Law Issues Contributions in Pursuit of Accountability for Africa and the World Foreword by Judge Althea Alexis-Windsor

Takeh B. K. Sendze Adesola Adeboyejo Howard Morrison Sophia Ugwu Editors

Contemporary International Criminal Law Issues

Takeh B. K. Sendze · Adesola Adeboyejo · Howard Morrison · Sophia Ugwu Editors

Contemporary International Criminal Law Issues Contributions in Pursuit of Accountability for Africa and the World

Editors Takeh B. K. Sendze Arusha, Tanzania Howard Morrison Doughty Street Chambers London, UK

Adesola Adeboyejo Centre for African Justice, Peace and Human Rights The Hague, The Netherlands Sophia Ugwu Centre for African Justice, Peace and Human Rights The Hague, The Netherlands

ISBN 978-94-6265-554-6 ISBN 978-94-6265-555-3 (eBook) https://doi.org/10.1007/978-94-6265-555-3 Published by t.m.c. asser press, The Hague, The Netherlands www.asserpress.nl Produced and distributed for t.m.c. asser press by Springer-Verlag Berlin Heidelberg © T.M.C. ASSER PRESS and the authors 2023 No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. This t.m.c. asser press imprint is published by the registered company Springer-Verlag GmbH, DE part of Springer Nature. The registered company address is: Heidelberger Platz 3, 14197 Berlin, Germany

Foreword

Diversity is the panacea for academic inertia. The political and legal climate that existed in 1789 when Jeremy Bentham coined the term international law is much different from the political and legal climate of today’s world. International law, whether further disaggregated into public international law or private international law, has found large-scale acceptance. However, that is not to say that it is perfectly settled. There is still debate about subjects such as whether there should be a hierarchy of founding jurisdiction. Is territorial jurisdiction superior to jurisdiction founded in active personality? Is passive personality an accepted principle or does universal jurisdiction stand above them all? What is the difference between the practical prosecution of genocide and extermination as a crime against humanity? When should they be charged? These questions exist and demand an answer which is best discussed before atrocities happen. This then is the reason that I started this foreword by saying that diversity is the panacea for academic inertia. It is important to provide a space for voices to be heard, spoken, written and read. This seminal book puts together interesting, well-researched and sometimes disparate chapters from authors from varying backgrounds. It reflects the work of practitioners, prosecutors, professors, activists and lawyers. It is composed of people who have worked in and still work in the milieu of international criminal law and whose opinions should be listened to. In delving into issues deeply and from different points of view, the authors expose the readers to opinions on such topics as the intricacies of the use of universal jurisdiction, the normative standards of genocide, the processes of the International Criminal Court and the legacy of the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia. It may be that there are opinions expressed here that a reader may not agree with, that is acceptable. The important thing is to keep the discourse alive. It is to continue to light a beacon; to raise awareness about international criminal law and how its breaches continue to affect the course of humanity. The Hague, The Netherlands June 2022

Judge Althea Alexis-Windsor

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Preface

The Board and Management of the Centre for African Justice, Peace and Human Rights (CAJPHR) would like to thank all the members of our esteemed organization, in particular the members of the Capacity Building Team, for accomplishing this book project. The Capacity Building Team at CAJPHR was established with the mandate of producing and disseminating knowledge in International Criminal Law (ICL) through diverse means including research and book publication. The CAJPHR book project is thus intended to serve as a capacity-building tool to educate and empower ICL researchers, practitioners and other stakeholders involved in preventing mass atrocity crimes and bringing justice to victims of such crimes. The idea of publishing a book titled ‘Contemporary Issues in ICL’ was endorsed at one of CAJPHR’s general meetings a few years ago, when CAJPHR members decided to commence working on this ICL book project as a way of urgently contributing to some ongoing pertinent academic debates on ICL. At this meeting, the team agreed to limit the focus of the proposed book to various aspects of ongoing academic and policy-related discourses pertaining to ICL in Africa. However, following consultations and research conducted at the planning stage of the book project, the team decided to broaden the focus of the book to include debates on various aspects of ICL in Africa and around the world, in order to ensure a wider platform for scholarly reflection and knowledge sharing. To achieve this, CAJPHR consulted and collaborated with researchers who have gained experiential knowledge of ICL from an academic and practitioner’s perspective to produce the present book titled ‘Contemporary International Criminal Law Issues—The Pursuit of Accountability for Africa and the World’. As the chapters in this book depict, readers will be immersed in International Criminal Law through contributions dealing with various aspects of ICL both in theory and in practice. At this stage, words cannot describe how much I value the opportunity to have worked closely with my colleagues in the Capacity Building Team, including Rishi Taneja, Marvin Lindjer, Marianne Allam, Ines Nunes, Eden Shosanya, Gabriela Pedroso, Crystal Lam, Catia Trevisani, Alba Montes Reguero, Ingrid-Ioana Murariu, Witness Gerald Airo, Maela Anna Ruiz Le Moing and Suliyat Omotolani Olapade. vii

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Their administrative, technical and research support, together with their commitment to the mandate of our organisation, contributed to bringing this project to a smooth conclusion despite the challenges caused by the COVID-19 pandemic which struck right in the middle of the project. Gratitude is also extended to the chapters’ authors who invested so much in researching, drafting and revising the chapters, despite the many other demands of their personal and professional lives. We look forward to engaging them further in round table discussions on their specific topics. Additional appreciation goes to all the editors and the author of the foreword for their outstanding assistance at the different stages of the production of this book. Their wealth of experience and commitment brought the book to its successful completion. Finally, we must express our appreciation to everyone on our publishing team who believed in us and worked extensively to bring out the beauty of our work. We relied on their guidance, and they were ever-patient and supportive throughout the entire process, bringing us right to this moment of sharing with the world ‘Contemporary International Criminal Law Issues—The Pursuit of Accountability for Africa and the World’. The Hague, The Netherlands June 2022

Sophia Ugwu Founder of the Centre for African Justice, Peace and Human Rights

Contents

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Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sophia Ugwu and Carolyn Edgerton

Part I 2

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International Criminal Law: Looking Through the African Lens

Bring Justice to Our Girls? The ICC Inquiry into Boko Haram in Nigeria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Arthur Traldi

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Is an African Regional Court a Viable Alternative to the International Criminal Court? A Neutral View . . . . . . . . . . . . . Editimfon J. Ikpat

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The Legitimacy of the International Criminal Tribunal for Rwanda (ICTR) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Claire M. H. Boost

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The Law of Genocide and Atrocities Committed Against the Herero and Nama Peoples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 Dermot Groome

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Horizontal and Vertical International Co-operation in Criminal Matters: An African Regional and Sub-regional Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177 Gerhard Kemp

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The Scope and Application of Universal Jurisdiction: A Synopsis of African States’ Positions and Proposals During Plenary Sessions in the Sixth Committee of the United Nations General Assembly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213 James Nyawo

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Part II

International Criminal Law Beyond the African Region

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Breaking Binaries and Honing-in on Harms: Inclusive Approaches Towards Sexual and Gender-Based Crimes . . . . . . . . . . . 265 Priya Gopalan

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Sexual and Gender-Based Violence: What Legacy for the New ICC Prosecutor? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305 Natacha Bracq

10 The Marginalization of Slavery in International Criminal Justice: Untapping Its Potential in the Fight Against Modern Slavery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 349 Vanessa Hernández Soto 11 The Evolution and Practice of Guilty Pleas in International Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 385 Charles A. Adeogun-Phillips

Editors and Contributors

About the Editors Takeh B. K. Sendze is a Cameroonian lawyer who received an LL.B. Honours degree from the University of Buea, Cameroon, in 1999 and an LL.M. in International Law from the University of Hull, UK, in 2002. He is an advocate of the New York State (USA) and Cameroon Bar Associations. He is currently a Legal Officer with the Office of the Prosecutor at the United Nations International Residual Mechanism for Criminal Tribunals, with almost two decades worth of professional experience in the fields of International Law, International Humanitarian Law, International Criminal Law/prosecution and International Human Rights. He is an experienced public speaker, trainer, mentor, guest lecturer and community leader. Adesola Adeboyejo graduated with an LL.B. from the University of Ibadan and was called to the Nigerian Bar in 1989. She has worked in the field of international law, international humanitarian law, international prosecution, and investigations for over two decades, most recently at the International Criminal Court, where she worked first at the Registry and later at the Office of the Prosecutor. Prior to joining the Court, she worked on several cases as a Trial Attorney in the Office of the Prosecutor at the International Criminal Tribunal for Rwanda (ICTR) from 2001 to 2007, and as a Legal Adviser in the Investigations Division from 1999 to 2001. She has served as the Legal Secretary to African Concern, an international NGO (1998), and ran her own law firm out of Lagos, Nigeria (1995 -1998). She lectures regularly and has been both a panel 21 presenter and trainer at the annual ICC Seminar and Training for Counsel. She is currently a Secretary at the Centre for African Justice, Peace and Human Rights. Howard Morrison (Sir Howard Morrison) KCMG CBE KC graduated with an LL.B. from London University and practised as a barrister and Queens Counsel of Grays Inn, of which he is a Master of the Bench, from 1977 until being appointed as a Circuit Judge in 2004. He defended in war crimes and crimes against humanity

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cases including genocide from 1997 to 2004 at the UN Tribunals for the Former Yugoslavia and Rwanda. From 2009 to 2021, he served as a judge of the Special Tribunal for Lebanon, the International Criminal Tribunal for the Former Yugoslavia (where sat as a trial judge in the case of Radovan Karadzic) and the International Criminal Court where he served two terms as President of the Appeals Division. He is a Senior Fellow of the Lauterpacht Centre for International Law of Cambridge University, a Visiting Professor of Northumbria University, a Hon Professor at both Leicester and Warwick Universities and a Fellow of McLaughlin College at York University in Toronto. He was appointed a Hon. LL.D. by Leicester University. He lectures worldwide in International Criminal and Humanitarian Law. He has authored numerous legal judgments and articles. Sophia Ugwu is the Founder and Board Chairperson of a Non-Profit Organization based in the Netherlands, known as and called the Centre for African Justice, Peace and Human Rights. She is a lawyer called to practise at the Supreme Court of Nigeria, and she obtained her LL.M. from Erasmus University Rotterdam. Sophia has gained over 13 years of dynamic and varied legal experience working in diverse capacities at international and domestic jurisdictions. She has interned and worked at different institutions including the International Criminal Court, the Residual Special Court for Sierra Leone and the International Criminal Tribunal for the Former Yugoslavia. Following her interest in the development of international criminal justice and the pursuit of accountability for atrocity crimes in Africa, Sophia founded CAJPHR, creating an intellectual platform for extensive scholarly research and dialogue on atrocity crimes and international criminal justice-related matters.

Contributors Charles A. Adeogun-Phillips International Criminal Court Bar Association, The Hague, The Netherlands Claire M. H. Boost NIOD, Amsterdam, The Netherlands Natacha Bracq International Nuremberg Principles Academy Nürnberg, Nuremberg, Germany Carolyn Edgerton Guernica 37 Chambers, London, United Kingdom Priya Gopalan International Criminal Lawyer, Geneva, Switzerland Dermot Groome Penn State Dickinson Law, Carlisle, PA, United States Vanessa Hernández Soto International Criminal Court, The Hague, The Netherlands Editimfon J. Ikpat Public International Law and Policy Group (PILPG) Netherland Office, Amsterdam, The Netherlands

Editors and Contributors

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Gerhard Kemp University of Derby, Derby, United Kingdom James Nyawo School of Humanities and Social Sciences, Strathmore University, Nairobi, Kenya Arthur Traldi Brandeis Center for Human Rights Under Law, Washington, DC, United States; Lexpat Global Services, Washington, DC, United States; American University Center on Technology, Law, and Security, Washington, DC, United States

Chapter 1

Introduction Sophia Ugwu and Carolyn Edgerton

Contents 1.1 Background and Context of the Book . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Overview of the Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract In order to make this collection as widely accessible as possible, the Centre for African Justice, Peace and Human Rights founder and lead, Sophia Ugwu, teamed up with senior international criminal law practitioner Carolyn Edgerton to create the roadmap to the edited volume, which is the present chapter. Written in clear, simple language, this roadmap offers prospective readers different paths through the volume, highlighting specific themes, areas of research and analysis. To a certain extent, the roadmap also reflects the authors’ personal takeaways from their review and consideration of the different chapters gathered in this publication, and the issues raised. Overall, however, this book is about the future of international criminal law and justice; a future that is rooted in national jurisdictions, informed by internationally recognised human rights, and the historical, cultural, social, and political contexts in which the violations took place. It is these that together will shape transitions to peace.

1.1 Background and Context of the Book The Stichting Centre for African Justice, Peace and Human Rights (CAJPHR) is a volunteer-based, non-profit organization of young lawyers who work together to promote justice, peace and human rights in Africa through education and training; research and publications; building local capacities; and empowerment. CAJPHR is S. Ugwu (B) Centre for African Justice, Peace and Human Rights, The Hague, The Netherlands e-mail: [email protected] C. Edgerton Guernica 37 Chambers, London, United Kingdom e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 T. B. K. Sendze et al. (eds.), Contemporary International Criminal Law Issues, https://doi.org/10.1007/978-94-6265-555-3_1

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deeply committed to a vision of “ridhika” Africa. Ridhika is a Swahili word that means “to be content”. Ridhika Africa will be a peaceful Africa, whose nations and peoples will flourish in justice systems grounded in respect for human rights. As part of CAJPHR’s contribution to education, research and capacity-building, we publish articles and books as resources for law students and legal practitioners, academics, human rights activists and experts, and non-governmental and civil society organisations in Africa to build their knowledge and understanding of aspects of international criminal law. These materials are prepared with a view to enabling national jurisdictions to adapt and eventually incorporate international standards into their domestic systems and practices. We consider this a small step towards making justice for international crimes accessible to all Africans. This book, entitled Contemporary International Criminal Law Issues—Contributions in Pursuit of Accountability for Africa and the World is not just a book about international justice for Africa, but will be of interest to practitioners more generally. The contributors to this book, from academics to researchers and international criminal lawyers, hail from a range of backgrounds. Over the years they have each made specialised contributions to international criminal law. The book falls into two parts. Part I—International Criminal Law: Looking Through the African Lens, is a collection of critical analyses of some of the issues and challenges in international criminal law and procedure as it develops across the African continent. Part II—International Criminal Law beyond the African Region looks at more cross-cutting issues in international criminal law which have broader domestic and international implications.

1.2 Overview of the Contents Part I—International Criminal Law: Looking Through the African Lens The choice to dedicate part of this book to Africa was predicated in part upon the fact that the culture of impunity for serious violations of human rights, including those which might constitute international crimes, remains strong across many parts of the continent. Meaningful justice and accountability for these violations is inaccessible to many thousands of direct and indirect victims of these crimes. The ICC, meanwhile, has jurisdictional and institutional limitations to its ability to be able to effectively respond to the reality of many of these violations. In addition, its legitimacy in Africa remains hampered by, among other things, the colonial origins of international criminal law and perceptions of bias on the part of the organization against African leaders. There is, therefore, an obvious need for focused, continued discussion about pathways for justice and accountability in the region. For these reasons and more, the collection of essays that make up Part I of this book are centred around the future of international justice in Africa. As Dr. Denis Mukwege stated: “This human tragedy

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will continue if those responsible are not prosecuted. Only the fight against impunity can break the spiral of violence.”1 National and regional accountability for international crimes may be an effective tool to break the cycle of violence. In that regard, Arthur Traldi’s chapter in Part I of this collection, Chap. 2, “Bring Justice to Our Girls? The ICC Inquiry into Boko Haram in Nigeria”, discusses the importance of positive complementarity in the context of the Nigerian situation. Alongside this, looking at the Malabo Protocol, Editimfon J. Ikpat explores the possibility of a regional court for international crimes as an effective, African-based accountability option in Chap. 3, under the title “Is an African Regional Court a Viable Alternative to the International Criminal Court? A Neutral View”. With normative consistency in cooperating states areas such as human rights, due process and state interpretations of their international treaty obligations, Gerald Kemp in Chap. 6 (“Horizontal and Vertical International Co-operation in Criminal Matters: An African Regional and Sub-regional Perspective”) discusses how mutual legal assistance may serve as a tool to effectively combat international and transnational crime in Africa. Claire M.H. Boost’s research for Chap. 4 on “The Legitimacy of the International Criminal Tribunal for Rwanda (ICTR)” draws on the lessons learned from the different legitimacy challenges faced by the ICTR to highlight how critically important gaining and maintaining organizational legitimacy will be to the success of any African national or regional international accountability mechanism dealing with international crimes. Dermot Groome’s contribution, Chap. 5, “The Law of Genocide and Atrocities Committed Against the Herero and Nama Peoples”, is a comprehensive survey of the law of genocide, placed in the context of the Herero and Nama genocides (what is now present-day Namibia and Botswana). This will be important reading for practitioners who wish to fully understand all elements of this ‘crime of crimes’, and to gain an insight into how legal elements of crimes are applied to the facts in classifying the crimes, and assessing cases for prosecution. Part I closes with James Nyawo, who in Chap. 7 (“The Scope and Application of Universal Jurisdiction: A Synopsis of African States’ Positions and Proposals during Plenary Sessions in the Sixth Committee of the United Nations General Assembly”) discusses the tension around the scope and application of the concept of universal jurisdiction from a post-colonial, African perspective. Chapter 2 Arthur Traldi in Chap. 2 looks into the ICC preliminary examination process, and its implementation in the Nigeria situation, particularly in light of the court’s admissibility requirements of gravity and complementarity. The Nigeria examination took approximately ten years until it was concluded, identifying seven potential cases against Boko Haram involving allegations of crimes against humanity and war crimes against tens of thousands of victims and massive numbers of potential defendants. 1

Dr. Denis Mukwege Foundation (undated) https://www.mukwegefoundation.org/the-problem/ rape-as-a-weapon-of-war/the-law/, accessed 18 August 2022.

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At that time, the Office of the ICC Prosecutor noted that there were “several national cases against Boko Haram members”, but that none had created a complementarity issue. As of October 2022, an investigation has not yet been opened. Traldi notes that the extended length of time extended time over which the preliminary examination took place might result in numerous practical challenges to any eventual ICC investigation. In addition, the Court as yet has no experience and is ill-equipped to prosecute the large numbers of defendants—even, as Traldi points out, the number required to have carried out the 2014 abduction of 276 schoolgirls in Chibok. Positive complementarity will therefore be essential to ensure justice is delivered for Boko Haram’s violations, even if only a small number of higher level accused persons are tried before the ICC. At the same time, if the ICC does open an investigation, several of the challenges facing Nigerian authorities in conducting their own proceedings (security, lack of infrastructure and capacity among them), will not necessarily be “fixed” by the ICC’s exercise of jurisdiction. Ultimately therefore, how the OTP handles the Nigeria situation will, as Traldi says, be a test of their preliminary examinations policy. It also raises the question of whether the OTP should revisit their approach to complementarity, so that a strict interpretation of the court’s obligations under Article 93(10) of the Rome Statute does not, ultimately, defeat the fight against impunity. Chapter 3 Chapter 3 brings the Malabo Protocol to the heart of the book, with Editimfon J. Ikpat’s work on the prospects of regional justice for international crimes in Africa through the proposed African Regional Court and what the relationship of that court might be with both domestic courts, and the ICC. While the Malabo Protocol effectively opens the possibility for an amendment to the Rome Statute to include complimentary jurisdiction for regional entities, Ikpat notes that in addition to the core international crimes, the Protocol includes other international crimes and transnational crimes of serious concern to the African community (such as unconstitutional change of government, and illicit exploitation of natural resources). The issue arises as to whether the proposed court, with its already expansive mandate, will have the actual, physical capacity and resources to deal with the potentially vast number of criminal cases this expanded criminal jurisdiction might embrace. While Ikpat concedes that this might not present a perfect picture, international criminal law has faced many challenges on its path to global justice. As she states: “There are much more crimes than the ICC can handle, and much more than all state parties to the Rome Statute can handle.” The time for a regional court may be upon us. Chapter 4 Claire M.H. Boost makes the point in Chap. 4 that it is important for accountability mechanisms for international crimes to be accepted as legitimate by their stakeholders if they are to reach their full potential. The legitimacy of the International Criminal Tribunal for Rwanda (ICTR), however, was challenged from its outset. Boost examines measures implemented by the ICTR in an effort to repair its legitimacy following the acquittal of Jean-Bosco Barayagwiza (by the Appellate

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Chamber) for procedural irregularities, and the decision by former ICTR chief prosecutor Carla Del Ponte to investigate alleged violations on the part of RPF soldiers. The public backlash on both occasions was immediate, and the response from the Rwandese government was harsh. Both times, the government stopped all ICTR-related cooperation, effectively paralysing the organisation’s operations. Some weeks after the Barayagwiza acquittal, the Appellate Chamber suspended its decision; after the second incident, Del Ponte was removed from her post as ICTR prosecutor by the UN Security Council. The impression was that both actions were taken in response to pressure from critical ICTR stakeholders. While the relationship between the ICTR and the Rwandan government was crucial for the ICTR’s operation, Boost aptly illustrates how these two challenges “demonstrate the sensitivity of the Tribunal’s work, the challenges it faced in balancing its legitimacy and operational needs, while also demonstrating how legitimacy is perceived differently through the eyes of its diverse set of stakeholders”. Chapter 5 From Rwanda in East Africa, Dermot Groome in Chap. 5 takes readers to Southern Africa, to learn about what many consider the first genocides of the 20th century: the attempted extermination of the Herero and Nama peoples by German colonial forces between 1904 and 1908. These have come to be known as the ‘forgotten genocides’. In May 2021, the German government recognized its crimes against the Herero and Nama constituted genocide within the meaning of the 1948 Genocide Convention. Against this backdrop, Groome’s chapter is a comprehensive survey of the law of genocide as it has developed since 1948 through to the Appeal Judgment against Ratko Mladi´c in June 2021, just a few days after Germany’s historic declaration. Groome analyses the account of the atrocities against the Herero and Nama peoples against the developed framework of the law on genocide. Groome’s explanations of the legal elements of the crime—the mens rea of genocide (and its special requirements) as well as the actus reus and the different modes of participation are clearly presented and easily accessible—useful reading for anyone interested in international criminal law or the study of genocide. They also serve as an important reminder of the need for context-based investigations in dealing with international crimes. Chapter 6 In Chap. 6, Gerhard Kemp writes about the potential for mutual legal assistance in criminal matters to serve as a means to combat international and transnational crimes in Africa, and a modality for Pan-Africanism. Written from a South African perspective, and focusing on the Southern African Development Community Protocol on Mutual Legal Assistance in Criminal Matters (which the author explains is a regional framework for mutual legal assistance, incorporated into South African domestic law), Kemp explores some of the key state obligations assumed by those who have ratified the Protocol. His extensive analysis identifies what he describes as “significant incongruities” between state laws and practice, impacting on effective cooperation, citing (among others): areas such as human rights and due process (particularly in

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matters of extradition); transfer of prisoners, and state interpretations of their international treaty obligations (in particular, state failures to arrest and surrender El-Bashir to the ICC pursuant to the court’s arrest warrants). While mutual legal assistance may facilitate cooperation between African states in dealing with investigations and prosecutions of international crimes, Kemp states that it will first require “consistency on human rights, normative clarity, and pragmatism not of the cynical kind”. Chapter 7 Part I closes with James Nyawo’s chapter on universal jurisdiction from a postcolonial, African perspective (Chap. 7). He begins with a useful overview of the principles for exercising criminal jurisdiction under international law, followed by a detailed analysis of the development of the modern concept of universal jurisdiction, and an outline of the different forms of universal jurisdiction. While acknowledging the importance of universal jurisdiction in the fight against impunity for core international crimes, individual African states disagree over, among other things, its scope and application. By way of illustration, Nyawo refers, for example, to the 2002 Cairo—Arusha Principles, which proposed the inclusion of “major adverse economic, social or cultural consequences such as acts of plunder and gross misappropriation of public resources, human trafficking and serious environmental crimes”, a proposal which he observes is completely in line with the role that multinational corporations continue to play in “disparaging” Africa. Other African nations have pointed to the idea that universal jurisdiction should comply with principles of sovereign equality of states and immunity of government and high level state officials. Altogether, says Nyawo, this points to a need for some kind of legal instrument or guidelines to address these issues. After all, he states, “The issues raised by African States cannot be wished away.” Part II—International Criminal Law beyond the African Region The chapters in Part II of this book deal with aspects of international criminal justice which have an impact far beyond the African continent. Gender, for example, cuts across all aspects of our work, in all contexts. With this in mind, Priya Gopalan’s chapter, Chap. 8, “Breaking Binaries and Honing-in on Harms: Inclusive Approaches Towards Sexual and Gender-Based Crimes”, will be valuable for practitioners engaged in interviewing and documentation, particularly with survivors of sexual and gender-based crimes in any context. Among other things, it reminds us of the importance of moving away from rigid, binary ideas about gender so that we can come to a more survivor-centred approach—not only in our communications with survivors, but in our case-related decisions. Drawing in part on lessons learned from the experiences of dealing with sexual violence cases at the ad hoc tribunals, in her chapter entitled: “Sexual and Gender-based Violence: What Legacy for the New ICC Prosecutor?”, Natacha Bracq in Chap. 9 offers recommendations for the effective implementation of the ICC OTP’s gender justice strategy, to avoid some of the challenges and barriers which arose in earlier proceedings, and continue to affect positive, consistent outcomes at the ICC today.

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In its many different forms, modern day slavery affects a vast cross-section of the world’s population. Slavery crimes predominantly affect women, children, minorities and socially marginalized groups; however, slavery is not criminalized in many countries of the world. In this context, Vanessa Hernández Soto in Chap. 10 looks at the roots of modern-day slavery; explores the ways in which the international criminal justice system has contributed to the jurisprudence around slavery crimes; and presents recommendations on how international criminal law could be used to hold perpetrators to account in the fight against impunity for slavery crimes. With few exceptions, international criminal trials have proved costly, timeconsuming and invariably complex. Against this background and in the final chapter of this collection, Chap. 11, ICTR veteran Charles A. Adeogun-Phillips offers a comprehensive, case-by-case overview and commentary on the evolution and practice of guilty pleas in international criminal law in “The Evolution and Practice of Guilty Pleas in International Criminal Law”. Chapter 8 In the first section of Chap. 8, Priya Gopalan expands our ideas around the scope and meaning of ‘gender’ by exploring how gender norms and stereotypes cause gaps in justice and accountability for conflict-related violence, and provides examples from numerous contexts. The stereotype of the weak woman victim, for example, against the strong, self-confident male protector who can never be a victim, is a gender binary which Gopalan says is reflected in the invisibility of sexual violence against men and boys in conflict around the world. Others, such as LGBTQI+ individuals, who live outside established gender roles, are particularly vulnerable, and that vulnerability can increase in conflict. They too face many barriers to reporting violations, “diminishing the prospects for accountability and justice”. Additionally, any survivor may have numerous, intersecting vulnerabilities. It is important for documenters to therefore recall that these intersections will affect how anyone experiences violence. Understanding these vulnerabilities will help practitioners develop the most appropriate responses for those individuals they are dealing with. In line with this, in the following section of her chapter, Gopalan advocates intersectional and interdisciplinary approaches to survivors. This kind of individualized, survivorcentred approach will enable a fuller understanding of the harm suffered. It will help build better cases, improve access to justice for survivors, and result in jurisprudence that is inclusive, and rooted in their lived experiences. Chapter 9 In Chap. 9, Natacha Bracq looks back at both the challenges and landmark developments in the investigation, prosecution and adjudication of sexual and gender-based crimes as international crimes as a way of framing the scope of the task ahead for ICC Prosecutor Karim Khan in effectively dealing with these violations. Her analysis surveys some of the hurdles faced at the ad hoc tribunals in their efforts to bring conflict-related sexual violence cases to justice, and highlights how, despite the reforms instituted by the ICC Office of the Prosecutor since 2012 and a growing body of jurisprudence on critical issues around sexual and gender-based violence,

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these same shortcomings continue to be repeated at the ICC. The result is that ICC cases involving sexual and gender-based crimes remain vulnerable to ultimately being dismissed at the pre-trial or trial stages. For example, Bracq observes that SGBC charges are still subject to conservative judging, a practice identified and criticized at the ad hocs, and manifested by what Bracq characterizes as a lack of “judicial receptiveness”: a higher degree of scrutiny than other charges and a reluctance to find remote perpetrators individually responsible. Bracq’s recommendations for the effective implementation of the ICC’s gender justice strategy are practical, and extremely well placed. They include integrating sexual violence crimes into investigation strategies from the outset of any case, and involving SGBV experts at every stage of the criminal justice procedure, until “positive and consistent outcomes are shown, and sustainable expertise has been developed internally”. As she says: “Continuous advocacy, capacity building, training, and gender mainstreaming within the court will hopefully continue bearing fruit.” Chapter 10 In Chap. 10, Vanessa Hernández Soto explores the potentials for international criminal justice to play a greater role in efforts to effectively combat modern slavery. Noting that the jurisprudence of the ad hocs and the ICC may have clarified the elements of the crime of slavery as such (impacting on international human rights law and potentially, domestic criminal law), Hernández Soto points out that international prosecutions of slavery-related crimes remain only “marginal and sporadic”, whereas modern slavery has global prevalence. Asking whether international criminal law is “fit for purpose” to respond to the complexities, transnational nature and sheer magnitude of modern slavery crimes, Hernández Soto offers a number of approaches which she suggests could, together, improve accountability. Among them: targeted international prosecutions for slavery crimes, and national universal jurisdiction prosecutions of slavery crimes to ‘fill in’ accountability gaps where the ICC is unable to act, and where states are unwilling or unable to take action to combat contemporary forms of slavery. Hernández Soto also proposes an innovation: the establishment of an international mechanism specifically designed to combat modern slavery in its different forms. Like other authors who have contributed to this collection, Hernández Soto recognises the importance of building national capacities for dealing effectively with international and transnational crimes, and makes the point that this mechanism should have a mandate for building capacities of national stakeholders, and serve as a vehicle for increased co-operation, knowledge and expertise sharing with its members. Chapter 11 This collection concludes with the detailed work of Charles A. Adeogun-Phillips on the evolution and practice of guilty pleas in international criminal law in Chap. 11. Beginning by setting out the legal framework for guilty pleas at the ICTY and ICTR, his review and examination of cases resolved by pleas at the two ad hocs is divided into two phases, marked by the implementation of the completion strategy at each institution. Adeogun-Phillips then moves on to cases resolved by guilty pleas at the

1 Introduction

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Kosovo and East-Timor hybrid courts, and finally examines the guilty plea in the ICC Al Mahdi case. His review of the 2020 ICC OTP Guidelines for Agreements Regarding Admissions of Guilt, which set out a number of factors for the OTP to consider in dealing with guilty pleas, will be useful for practitioners, as he highlights some notable differences with the practice at the ICTY and ICTR—an approach to guilty pleas that is more victim-centred. Notably, and among others, the Guidelines “encourage” the OTP to prioritize admissions of guilt which are more valuable to victims, and those that are accompanied by an expression of remorse.

Sophia Ugwu is the Founder and Board Chairperson of Centre for African Justice, Peace and Human Rights, a Non-Profit Organization based in the Netherlands. She is a lawyer called to practice at the Supreme Court of Nigeria. She obtained her LLM from Erasmus University Rotterdam. Sophia has over 13 years of dynamic and varied legal experience working in diverse capacities in international and domestic jurisdictions. She has interned and worked at different institutions including the International Criminal Court, the Residual Special Court for Sierra Leone and the International Criminal Tribunal for the Former Yugoslavia. Following her interest in the development of international criminal justice and the pursuit of accountability for atrocity crimes in Africa, Sophia founded CAJPHR, creating an intellectual platform for extensive scholarly research and dialogue on atrocity crimes and international criminal justice-related matters. Carolyn Edgerton is an Associate with Guernica 37 International Justice Chambers. She has three decades of experience in domestic and international criminal investigations and prosecutions, the greatest part within the service of the United Nations as a Legal Officer and Trial Attorney at the International Criminal Tribunal for the former Yugoslavia. Driven by a commitment to justice and building the rule of law through education, training and mentorship, Carolyn now focuses on sharing her knowledge and expertise on international criminal, humanitarian and human rights law and best practices with national and local criminal justice and human rights actors in different countries, to strengthen their responses to violence.

Part I

International Criminal Law: Looking Through the African Lens

Chapter 2

Bring Justice to Our Girls? The ICC Inquiry into Boko Haram in Nigeria Arthur Traldi

Contents 2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Boko Haram . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 The ICC Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.1 Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.2 Implementation in the Nigeria Situation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.3 Completion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4 Alleged International Crimes by Boko Haram . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.1 Case I: Attacks on Civilians . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.2 Case II: Abduction and Detention of Civilians . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.3 Case III: Attacks on Schools, Teachers, and Students . . . . . . . . . . . . . . . . . . . . . . 2.4.4 Case IV: Recruitment and Use of Child Soldiers . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.5 Case V: Gender-Based Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.6 Case VI: Attacks on Buildings Dedicated to Religion . . . . . . . . . . . . . . . . . . . . . . 2.4.7 Case VII: Attacks on Humanitarian Workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.8 Case VIII: Attacks Directed at Christians . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5 Next Steps and Lessons for Future Situations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.1 Immediate Next Steps . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.2 Implications for the Preliminary Examination Process . . . . . . . . . . . . . . . . . . . . . 2.5.3 Africa—ICC Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

14 15 17 17 18 21 22 24 25 27 28 29 31 31 32 34 34 35 46 48 48

Abstract Since the kidnapping of almost 300 schoolgirls in Chibok, Nigeria, made famous by the #BringBackOurGirls campaign, crimes by Boko Haram in Nigeria have received significant global attention. However, international justice has been slow to react. This chapter conducts a detailed analysis of the aspects of the International Criminal Court’s preliminary examination into the situation in Nigeria which relate to Boko Haram, analysing the potential cases identified by the Office of the Prosecutor (“OTP”) in light of the Court’s admissibility requirements (gravity and A. Traldi (B) Brandeis Center for Human Rights Under Law, Washington, DC, United States e-mail: [email protected] Lexpat Global Services, Washington, DC, United States American University Center on Technology, Law, and Security, Washington, DC, United States © T.M.C. ASSER PRESS and the authors 2023 T. B. K. Sendze et al. (eds.), Contemporary International Criminal Law Issues, https://doi.org/10.1007/978-94-6265-555-3_2

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complementarity). It proposes that OTP consider evidence of a persecutory campaign against Nigerian Christians within a single case in order to focus investigations and concludes that the Court’s next steps in the Nigeria situation will have lasting significance for its approach to complementarity and gravity and its relationship with the African Union. Keywords Nigeria · Boko Haram · Terrorism · International Criminal Court · Preliminary Examination · Investigation · Persecution · Crimes against Humanity · War Crimes

2.1 Introduction #Bringbackourgirls. One of the most popular hashtags of 2014 called for returning or rescuing the hundreds of young Nigerian schoolgirls kidnapped from Chibok, Nigeria, by Boko Haram operatives in April 2014.1 A global Twitter campaign reached the White House: then-First Lady Michelle Obama, along with two million other Twitter users, posted about it.2 Seven years later, 112 of the kidnapped schoolgirls remain missing.3 A variety of rescue efforts have failed to bring them home.4 None have been returned since 2018.5 This chapter analyses an admittedly less urgent, though still meaningful, omission: the lack of any international prosecutions6 of Boko Haram members for this kidnapping or other alleged crimes7 within the International Criminal Court’s (“ICC’s”)

1

Rubin (2014) http://www.teenvogue.com/story/bring-back-our-girls-nigeria. Accessed 23 June 2021. 2 Parkinson and Hinshaw (2021) http://www.vanityfair.com/news/2021/02/how-michelle-obamajoined-a-global-campaign-to-bring-back-our-girls. Accessed 23 June 2021. 3 Obiezu (2021) https://www.voanews.com/africa/more-100-chibok-girls-still-missing-sevenyears-later. Accessed 25 June 2021. 4 E.g. Parkinson and Hinshaw (2021) www.theatlantic.com/international/archive/2021/04/americanigeria-bring-back-our-girls/618480/. Accessed 24 June 2021. 5 82 girls were released on 6 May 2017. United Nations Security Council 2020, S/2020/652; by the end of 2018, 112 of 276 remained missing. United States Department of State, Bureau of Counterterrorism 2019; by the end of 2019, 112 still remained missing. United States Department of State, Bureau of Counterterrorism 2020. 6 Some defendants have pled guilty, and at least two have been sentenced, in domestic proceedings in Nigeria. See below, Sect 2.5.2.2. 7 In many instances, Boko Haram publicly took responsibility for an alleged crime or all available indications are that crimes were perpetrated by Boko Haram members. However, in the absence of findings at trial, and due to the very limited weight of conclusions drawn at ICC’s preliminary examination stage, for legal purposes the reported violations are treated herein as allegations.

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jurisdiction.8 Section 2.1 of this chapter briefly outlines publicly available information about Boko Haram and its command structure. Section 2.2 explains the ICC’s process as of November 2021. Section 2.3 briefly explains the alleged crimes. While the ICC process is ongoing, Sect. 2.4 identifies anticipated next steps as of this writing, as well as specific areas in which the process thus far may be instructive for future situations within the Court’s jurisdiction.

2.2 Boko Haram Boko Haram is a Nigerian armed group “known officially as Jama’atu Ahlis Sunna Lidda’awati wal-Jihad, Arabic for ‘group committed to promoting the Prophet’s teachings and jihad’.”9 The name Boko Haram can be roughly translated to mean “Western education is forbidden”.10 According to the ICC’s Office of the Prosecutor (“OTP”), it was founded in 2002 “as a predominantly radical religious movement by Mohammed Yusuf in Maiduguri, Borno State and the group’s declared objective was to replace the Nigerian state with a Shariah-based Islamic system.”11 As of 2018, U.S. sources estimated Boko Haram’s ranks included 4,000-6,000 “hard-core militants”, while others estimated a larger force.12 ICC OTP concluded that as of 2013, Boko Haram was “under a responsible command, namely the leadership exerted by Abubakar Shekau.”13 Boko Haram has subsequently faced factional divides and Shekau at times aligned himself with other groups such as Da’esh and Al Qaeda in the Islamic Maghreb (AQIM).14 During the 8

The preliminary examination into the situation in Nigeria has also focused on allegations against Nigerian government forces. Other anti-government terrorist groups have been present and participated in hostilities in Nigeria as well. Allegations against those groups are outside the primary focus of this chapter. Similarly, other mechanisms to facilitate investigation or prosecution have been established in some situations—such as the Kosovo Specialist Chambers, the Special Tribunal for Lebanon, the Extraordinary African Chambers, the UN Independent Investigative Mechanism for Myanmar, the United Nations Investigative Team to promoted Accountability for Crimes Committed by Da’esh/ISIL, and the International, Impartial, and Independent Mechanism for Syria. However, no such ad hoc mechanisms have been established in situations where the ICC already has jurisdiction over all relevant crimes, so this chapter does not consider potential international mechanisms to investigate or prosecute allegations against Boko Haram and its members other than the ICC. 9 International Criminal Court, Office of the Prosecutor 2013c citing Stewart 2011. 10 E.g. Gaffey (2017) www.newsweek.com/chibok-girls-boko-haram-583584. Accessed 24 June 2021. 11 International Criminal Court, Office of the Prosecutor 2013c, para 30 citing Pham 2012, No 20 5. See also Felter 2018. 12 Felter 2018. 13 International Criminal Court, Office of the Prosecutor 2013c, para 84 citing Human Rights Watch 2012, 76. See also Blanchard 2016, p. 3 (“Boko Haram is reportedly led by a shura council, under the direction of Abubakar Shekau”); Kielsgard and Orina 2020. 14 E.g. Campbell 2018; United Nations Security Council 2020, S/2020/652, para 16; Blanchard 2016, p. 4, p. 7.

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drafting of this chapter, Shekau was reported to have died,15 though similar reports had surfaced before.16 In 2015, Shekau reportedly pledged allegiance to Da’esh and changed Boko Haram’s name to Islamic State West Africa Province (“ISWAP”).17 The next year he split with the group, after which Boko Haram/Jama’atu Ahlis Sunna Lidda’Awati Wal-Jihad and ISWAP constituted separate factions. Reports reflect a third faction known as Bakura, which was reportedly allied with Shekau.18 Other sources refer to a splinter group known as Jama’atu Ansarul Muslimina Fi Biladis Sudan (Supporters for the aid of Muslims in Black Africa), or “Ansaru”,19 which broke with Shekau in the early 2010s20 but was reportedly purged in 2013.21 Many sources refer to all these groups as Boko Haram,22 complicating the task of identifying those perpetrators for whose acts Boko Haram’s leadership may be held legally responsible. The U.S. State Department designated Boko Haram as a Foreign Terrorist Organization (“FTO”) on 14 November 2013.23 In announcing the designation, the State Department observed: Boko Haram is a Nigeria-based militant group with links to al-Qa’ida in the Islamic Maghreb (AQIM) that is responsible for thousands of deaths in northeast and central Nigeria over the last several years including targeted killings of civilians… Boko Haram has been conducting an ongoing and brutal campaign against Nigerian military, government, and civilian targets. Among its most lethal attacks, Boko Haram carried out indiscriminate attacks in Benisheikh, Nigeria in September 2013 that killed more than 160 innocent civilians, including women and children. Boko Haram has also conducted attacks against international targets, including a suicide bombing of the United Nations building in Abuja on August 26, 2011, that killed 21 people and injured dozens more, many of them aid workers supporting development projects across Nigeria.24

The State Department’s designation came three months after the International Criminal Court’s Office of the Prosecutor concluded there was reason to believe Boko Haram had been responsible for international crimes. OTP determined:

15

E.g. Abdullahi and Adebajo (2021) https://humangle.ng/boko-haram-strongman-shekau-deadas-iswap-fighters-capture-sambisa-forest/. Accessed 25 June 2021. 16 E.g. Shekau (2021) https://www.bbc.com/news/world-africa-57207296. Accessed 25 June 2021. 17 Around the same time, Nigerian government forces captured Boko Haram’s “capitol”, Gwoza. Kurtzer 2020, p. 3. Before 2015, Shekau had sought links with Al-Qaeda. Kielsgard and Orina 2020, p. 178. 18 United Nations Security Council 2020, S/2020/652, para 16; International Crisis Group 2020. 19 E.g. International Criminal Court, Office of the Prosecutor 2018, para 218; Kielsgard and Orina 2020, p. 177. 20 E.g. Campbell 2014b, p. 9; Blanchard 2016, pp. 4, 7; Kielsgard and Orina 2020, p. 178. All three sources note Ansaru objected to Boko Haram’s killing Muslims in Nigeria, while Blanchard also notes reports that Ansaru’s leaders and Shekau differed on interpretations of Islamic law. 21 Blanchard 2016, p. 4. 22 United States Department of State 2020. 23 United States Department of State, Bureau of Counterterrorism 2021. 24 United States Department of State, Office of the Spokesperson 2013.

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… there is a reasonable basis to believe that, since July 2009, Boko Haram has committed the following acts constituting crimes against humanity: (i) murder under article 7(1)(a) [of the Rome Statute]; and (ii) persecution under article 7(1)(h) of the Statute. In particular, the information available provides a reasonable basis to believe that, since July 2009, Boko Haram has launched a widespread and systematic attack that has resulted in the killing of more than 1,200 Christian and Muslim civilians in different locations throughout Nigeria… The attacks have been committed pursuant to the policy defined at the leadership level of Boko Haram, which aims at imposing an exclusively Islamic system of government in northern Nigeria at the expense of Christians specifically. Opponents of this goal have been targeted as well…25 [C]ivilians were the primary object of the attacks and they were not a randomly selected group of individuals. Reportedly, Boko Haram members, often riding motorcycles and carrying Kalashnikov rifles under their robes, killed numerous Christian worshipers, and assassinated local politicians, community leaders, and Islamic clerics opposed to the group. The group has also claimed responsibility for bombing churches, banks, and beer parlours in northern Nigeria, as well as the UN building and the police headquarters in Abuja. Since the beginning of 2012, suspected Boko Haram members have also attacked at least 12 schools in and around Maiduguri (Borno State).26

Several similar international statements have been issued since 2013.27

2.3 The ICC Process 2.3.1 Framework An ICC investigation or preliminary examination covers a “situation” in which crimes have allegedly been committed,28 not a single discrete offense. While the Rome Statute does not define the term, a “situation” is perhaps best understood as “a temporally and territorially defined space within which one or more crimes within the jurisdiction of the court may have been committed”.29 A preliminary examination is the initial stage of ICC review. During this stage, the OTP has limited investigative authority, proceeding essentially on the basis of information provided to it by others. It may request information from sources it deems

25

International Criminal Court, Office of the Prosecutor 2013c, para 15. International Criminal Court, Office of the Prosecutor 2013c, para 79 (citations omitted). 27 E.g. United Nations Security Council 2015, S/PRST/2015/12; United Nations Office of the High Commissioner for Human Rights 2015, A/HRC/30/67; United Nations Security Council 2017, S/RES/2349; United States Department of State 2020; United Nations Human Rights Council 2021, A/HRC/46/NGO/99. 28 E.g. United Nations Treaty Collection, Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002). https://treaties.un.org/Pages/ViewDetails.aspx?src= TREATY&mtdsg_no=XVIII-10&chapter=18&clang=_en (Rome Statute) Articles 13(a), 13(b), 14(1), 14(2), 15(5), 15(6). 29 Ford 2017, fn 158 (citations omitted). 26

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reliable and may receive testimony but only at the seat of the Court in the Hague—not in the field where crimes were committed and most evidence is located.30 OTP has established a four-phase process for preliminary examinations: (i)

Phase One, assessing communications received pursuant to Article 15 to analyse and verify the seriousness of information and filter out situations manifestly outside the jurisdiction of the Court or already under investigation;31 (ii) Phase Two, analysing whether the Rome Statute’s preconditions to jurisdiction are satisfied and whether there is a reasonable basis to believe that alleged crimes would fall within the subject-matter jurisdiction of the Court, concluding with an Article 5 Report on the Court’s subject-matter jurisdiction;32 (iii) Phase Three, analysing the admissibility of potential cases in light of complementarity and gravity pursuant to Article 17 of the Rome Statute, while continuing to collect information on subject-matter jurisdiction;33 and (iv) Phase Four, regarding whether the “interests of justice” support the initiation of an investigation and culminating in the issuance of an Article 53(1) Report. Based on that Report, the Prosecutor determines whether to initiate an investigation.34 The framework effectuates what OTP considers Article 53’s “legal framework for a preliminary examination”.35 While the process has been criticized by the ICC’s Independent Expert Review (“IER”),36 as of this writing it remains ICC standard. To justify moving from preliminary examination to a full investigation at the end of the process, the OTP must find a “reasonable basis” to believe crimes within the jurisdiction of the Court have been committed.37

2.3.2 Implementation in the Nigeria Situation Nigeria signed the Rome Statute on 1 June 2000 and deposited its instrument of ratification on 27 September 2001.38 The ICC thus has jurisdiction over Nigerian nationals who commit Rome Statute crimes and over Rome Statute crimes committed

30

International Criminal Court, Office of the Prosecutor 2013a. Ibid., para 78. 32 Ibid., paras 80–81. 33 Ibid., para 82. 34 Ibid., para 83. 35 Ibid., para 5. See also International Criminal Court, Office of the Prosecutor 2020a, para 3. 36 International Criminal Court 2020. 37 International Criminal Court, Office of the Prosecutor 2013a, para 5; See International Criminal Court, Office of the Prosecutor 2020a, para 3. 38 Rome Statute. 31

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on Nigerian territory since the Statute came into effect on 1 July 200239 —around the same time Boko Haram was established.40 The OTP publicly announced a preliminary examination into the Situation in Nigeria on 18 November 2010.41 The OTP opened the preliminary examination proprio motu, exercising its authority under Article 15 of the Rome Statute.42 Phase One and Phase Two of the Nigeria situation, combined, took almost three years. In 2013, the OTP issued its Article 5 Report.43 It concluded that there was a reasonable basis to believe Boko Haram had engaged in a widespread and systematic attack against a civilian population, fulfilling the chapeau requirements for crimes against humanity, and that Boko Haram members had committed the crimes against humanity of murder and persecution.44 The OTP concluded, however, that it had not established that hostilities between Boko Haram and the Nigerian government rose to the level of an armed conflict, so the threshold requirements to investigate potential war crimes had not been satisfied.45 Phases Three and Four took more than seven years, making Nigeria one of the “lengthiest [preliminary] examinations” at the ICC.46 The Nigeria situation also prompted a high number of Article 15 communications to the OTP—169, as of the 2018 Preliminary Examination Report.47 The OTP updated its Phase Two determinations at several points during these later phases. Initially, just months after the Article 5 Report had declined to find a noninternational armed conflict in Nigeria, the OTP concluded that Boko Haram was sufficiently organized and violence between it and government forces was sufficiently intense to constitute a non-international armed conflict.48 It consequently determined it would consider whether conduct in the situation might give rise to allegations of war crimes under Articles 8(2)(c) and 8(2)(e) of the Rome Statute.49 Beginning in its 2015 Report, the OTP concluded it had reason to believe Boko Haram members

39

See International Criminal Court, Office of the Prosecutor 2020a, para 252. Ibid., p. 2. 41 International Criminal Court, Office of the Prosecutor 2010 cited in American Bar Association International Criminal Court Project 2020. 42 Rome Statute art 15(1). 43 International Criminal Court, Office of the Prosecutor 2013c. 44 Ibid. 45 International Criminal Court, Office of the Prosecutor 2013c, para 113 (citation omitted). Allegations of crimes against humanity and/or war crimes are essential to give the ICC jurisdiction over alleged Boko Haram crimes because terrorism is not included in the Rome Statute. E.g. Kenny 2017. 46 International Criminal Court 2020, para 714. 47 International Criminal Court, Office of the Prosecutor 2018, para 214. 2018 was the last PE report in which OTP publicly reported the number of Article 15 communications received in each open situation. 48 International Criminal Court, Office of the Prosecutor 2013b, paras 214–219. 49 Ibid., para 219. 40

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had committed war crimes identified in the ICC Statute, as well as crimes against humanity.50 OTP also noted new allegations in its annual reports and in other statements. On top of the 1200 civilians it found reason to believe had been killed by Boko Haram in the 2013 Article 5 Report, it has noted the killings of thousands more civilians over the next eight years51 as well as other alleged crimes, including the kidnapping of the Chibok women.52 During the preliminary examination, Nigeria remained a strong supporter of the ICC even while the African Union (AU) expressed concerns about the work of the Court. As a rotating Security Council member, Nigeria voted in favour of the UNSC resolution referring Libya to the ICC.53 After Burundi, Gambia, and South Africa stated plans to withdraw, Nigeria affirmed its “continuous commitment to support and cooperate with the Court”54 and later opposed an AU resolution calling for member states to consider withdrawal from the Rome Statute.55 Instead, Nigerian officials reaffirmed Nigeria’s commitment to support the ICC in general and to cooperate with the OTP’s preliminary examination in particular.56 At the urging of Nigerian ICC President Judge Chile Eboe-Osuji,57 in 2018, Nigerian President Buhari praised

50

International Criminal Court, Office of the Prosecutor 2015, paras 195–214. OTP subsequently identified war crimes of murder; cruel treatment; outrages on personal dignity; intentionally directing attacks against the civilian population; intentionally directing attacks against building dedicated to education and to places of worship and similar institutions; pillage; rape, sexual slavery, and sexual violence; and the conscription and use of child soldiers. International Criminal Court, Office of the Prosecutor 2018, para 222. In 2019, OTP also identified war crimes of attacks on humanitarian workers. International Criminal Court, Office of the Prosecutor 2019b, para 183. 51 See International Criminal Court, Office of the Prosecutor 2013b, para 212 (noting allegations of up to 211 more civilians killed in Boko Haram attacks); International Criminal Court, Office of the Prosecutor 2014, para 177 (noting allegations of more than 2000 civilians killed in Boko Haram attacks in the first six months of 2014); International Criminal Court, Office of the Prosecutor 2015, para 198 (“According to the Office’s analysis, from January 2013 to March 2015, 356 reported incidents of killings can be attributed to Boko Haram… which led to the killing of over 8,000 civilians…”); International Criminal Court, Office of the Prosecutor 2017, para 211 (noting allegations of 381 civilians killed by Boko Haram between April 2017 and September 2017 in Cameroon and Nigeria); International Criminal Court, Office of the Prosecutor 2018, paras 228–229 (noting allegations that approximately 60 more civilians had been killed). 52 International Criminal Court, Office of the Prosecutor 2014, para 177; International Criminal Court, Office of the Prosecutor 2015, para 206; International Criminal Court 2014. 53 See Ssenyonjo 2018 (citation omitted). 54 Lansky 2016. 55 E.g. Premium Times (2017) www.premiumtimesng.com/news/headlines/222331-nigeria-ple dges-remain-icc-2.html. Accessed 25 June 2021; Keppler 2017; Kersten 2017. 56 E.g. International Criminal Court 2013 (then-President Jonathan); International Criminal Court, Office of the Prosecutor 2017, para 223 (Attorney-General Malami); International Criminal Court 2018a (“senior authorities”); International Criminal Court 2019 (Vice-President Osinbajo). 57 E.g. Charania 2021. President Eboe-Osuji served as an ICC judge for much of the preliminary examination and remained President in December 2020 when OTP concluded its preliminary examination. E.g. International Criminal Court 2021b.

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the Court and called for universal accession to the Rome Statute.58 In the context of the preliminary examination, Nigeria provided materials to OTP59 and government officials met with OTP representatives.60 Nigeria did not, however, implement an ICC request to arrest indicted Sudanese President Omar al-Bashir when he travelled to Abuja.61

2.3.3 Completion On 11 December 2020, the OTP announced it had completed the preliminary examination in Nigeria and concluded that the criteria for opening an investigation into the situation there had been satisfied.62 In explaining her conclusions about the Court’s subject-matter jurisdiction, then-Prosecutor Fatou Bensouda focused heavily on allegations against Boko Haram: [M]y Office has concluded that there is a reasonable basis to believe that members of Boko Haram and its splinter groups have committed the following acts constituting crimes against humanity and war crimes: murder; rape, sexual slavery, including forced pregnancy and forced marriage; enslavement; torture; cruel treatment; outrages upon personal dignity; taking of hostages; intentionally directing attacks against the civilian population or against individual civilians not taking direct part in hostilities; intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance; intentionally directing attacks against buildings dedicated to education and to places of worship and similar institutions; conscripting and enlisting children under the age of fifteen years into armed groups and using them to participate actively in hostilities; persecution on gender and religious grounds; and other inhumane acts.63

Addressing Phase Three, the Prosecutor concluded that the allegations were sufficiently grave to warrant investigation and were not inadmissible on grounds of complementarity. She explained: The duration of the preliminary examination, open since 2010, was due to the priority given by my Office in supporting the Nigerian authorities in investigating and prosecuting these crimes domestically… [including] some efforts… to hold members of Boko Haram to account… However, our assessment is that none of these proceedings relate, even indirectly, to the forms of conduct or categories of persons that would likely form the focus of my investigations. And while this does not foreclose the possibility for the authorities to conduct relevant and 58

International Criminal Court 2018b paras 5, 12, 15, 18. OTP was in “regular contact” with the Office of the Attorney-General of the Federation and Minister of Justice. E.g. International Criminal Court, Office of the Prosecutor 2019b, para 190; International Criminal Court, Office of the Prosecutor 2015, para 220. 60 International Criminal Court, Office of the Prosecutor 2017, paras 223–226; Office of the VicePresident of the Federal Republic of Nigeria 2019; International Criminal Court 2019. 61 See ICC, Prosecutor v. al-Bashir, Decision, 15 July 2013, ICC-02/05-01/09 PTC II. See also Olugbo 2016. Al-Bashir travelled broadly while serving as President and other states also did not arrest him. See Newton 2018. 62 International Criminal Court 2020c. 63 Ibid. 59

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However, Prosecutor Bensouda announced that due to resource constraints and the challenges of the COVID-19 pandemic, she would not submit a request to open an investigation but would leave the matter to her successor65 —a position for which the Assembly of States Parties subsequently selected British barrister Karim Khan.66 OTP has not yet published an Article 53(1) Report on the situation. As of November 2021, Khan—who headed the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD) until he was formally invested as ICC Prosecutor on 16 June 202167 —has not taken a position on when OTP will request to open an investigation in Nigeria. As such, Nigeria is in a novel fifth stage of its preliminary examination: limbo.68

2.4 Alleged International Crimes by Boko Haram The OTP has identified seven potential cases involving allegations against Boko Haram members.69 The OTP uses “cases” in this context to refer to seven broad but interrelated patterns of criminal conduct: Attacks against civilians and killings of civilians;70 Abductions of thousands of civilians and detention of civilians in camps and in towns under Boko Haram control;71 (iii) Attacks on buildings dedicated to education, teachers, and students;72 (iv) Recruitment and use of child soldiers;73 (v) Attacks on women and girls;74 (i) (ii)

64

Ibid. When the OTP opens a preliminary examination proprio motu, it must submit a request for the authorization of an investigation to a Pre-Trial Chamber. Rome Statute art 15(3). 66 International Criminal Court 2021a. 67 E.g. Corder (2021) https://www.sandiegouniontribune.com/news/nation-world/story/2021-0616/british-lawyer-karim-khan-sworn-in-as-iccs-chief-prosecutor. Accessed 25 June 2021. 68 Ukraine was in the same position for almost 15 months. E.g. International Criminal Court, Office of the Prosecutor 2020d. However, on 28 February 2022 Prosecutor Khan announced he would seek an investigation. International Criminal Court, Office of the Prosecutor 2022. By contrast, OTP requested an investigation into the Situation in the Philippines rather than postponing a decision for operational reasons. Situation in the Republic of the Philippines, (Public redacted version of “Request for authorisation of an investigation pursuant to Article 15(3)” 24 May 2021, ICC-01/217-SECRET-Exp), 14 June 2021, ICC-01/21 PTC I, para 1. 69 E.g. International Criminal Court, Office of the Prosecutor 2020a, paras 250–251. 70 International Criminal Court, Office of the Prosecutor 2015, paras 197–198. 71 Ibid., paras 199–200. 72 Ibid., paras 201–202. 73 Ibid., paras 203–204. 74 Ibid., paras 205–207. 65

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(vi) Intentional targeting of buildings dedicated to religion;75 and (vii) Attacks on personnel or objects involved in humanitarian assistance and the taking of hostages.76 Substantively, the cases include allegations of various crimes against humanity and war crimes. Both categories of crimes have clearly defined threshold legal requirements. A crime against humanity must be committed as part of a widespread or systematic attack directed against a civilian population,77 by a perpetrator who knew or intended their conduct to be part of that attack.78 A war crime in the context of a non-international armed conflict requires a showing that there was a non-international armed conflict, the crime occurred in that context and associated with that conflict, and the perpetrator was aware of the factual circumstances which established the conflict (collectively, “NIAC threshold requirements”).79 Factually, OTP’s broad descriptions of these seven cases give rise to substantial potential overlap. For instance, the abduction of the Chibok schoolgirls falls within at least cases two, three, and five, and possibly others.80 The cases are also potentially tied together by “the policy defined at the leadership level of Boko Haram aiming at establishing an Islamic system of government in Nigeria,”81 under which the “primary targets” of Boko Haram were “members of [the] Christian community, local politicians and community leaders, Muslims who are perceived as opposing Boko Haram, and members of the international community.”82

75

Ibid., paras 208–209. International Criminal Court, Office of the Prosecutor 2019b, paras 183–184. 77 See Rome Statute art 7(2)(a) (noting an attack requires the multiple commission of Article 7 crimes “pursuant to or in furtherance of a State or organizational policy”); International Criminal Court 2011, p. 5. 78 Ibid., p. 5. 79 E.g. ibid., pp. 31–32, see 13. The Rome Statute gives the Court jurisdiction over war crimes “in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.” Rome Statute art 8(1). Initially, OTP considered this requirement a “gravity threshold” which “provide[s] guidance that the Court is intended to focus on situations meeting these requirements.” E.g. SáCouto and Cleary 2008, pp. 807, 828–829, citing International Criminal Court, Office of the Prosecutor 2006. More recently, OTP has limited Article 8(1)’s relevance, simply concluding it “may be a consideration for the gravity assessment.” International Criminal Court, Office of the Prosecutor 2020b, para 142. In any event, it appears requirements of policy and scale would be satisfied if the alleged crimes in the seven cases were to be established. 80 As a result, it is not clear if the “cases” as formulated could assist OTP in determining whether potential cases against particular accused persons would be admissible before the ICC. 81 International Criminal Court, Office of the Prosecutor 2013c, para 82 (citation omitted). 82 Ibid. 76

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2.4.1 Case I: Attacks on Civilians Case I includes murder as a crime against humanity83 and a war crime,84 as well as attacks on civilians.85 While recent OTP communications are not entirely clear, Case I may also include persecution on religious grounds as a crime against humanity.86 The OTP noted 1200 alleged Boko Haram murders in the Article 5 Report.87 Since it was issued in 2013, reports of crimes by Boko Haram which would fall within Case I have continued. A 2015 OHCHR report noted government sources estimated Boko Haram had killed 20,000 civilians since 2009 in Nigeria and its other countries of operations, adding “The actual number… is likely to be much higher.”88 It noted, “Civilians have been shot, beheaded, amputated, stoned, drowned, burned and bombed,” and some of their deaths had been captured on video.89 For instance, the same day as the Chibok kidnapping, Boko Haram claimed responsibility for an attack on an Abuja bus station which killed almost one hundred people.90 A 2018 CFR report linked Boko Haram to the deaths of 37,000 people between 2011 and 2018, of whom 45% (or approximately 16,450) were civilians.91 In 2019 alone, the Secretary-General attributed responsibility to Boko Haram for killing 56 children.92 In 2021, the State Department Human Rights report identified Boko Haram attacks on population centres and civilians and a massacre of 76 civilians in Zabarmari.93 Taken together, OTP reports indicate that it has evidence which provides a reason to believe Boko Haram is responsible for killing 10,000 or more civilians.94 83

Rome Statute art 7(1)(a). Rome Statute art 8(2)(c)(i). 85 Rome Statute art 8(2)(e)(i). 86 Rome Statute art 7(1)(h), Section III.H (Crimes against Christians). 87 International Criminal Court, Office of the Prosecutor 2013c, para 15. 88 United Nations Office of the High Commissioner for Human Rights 2015, A/HRC/30/67, para 20. Boko Haram’s other countries of operations include Cameroon, Chad, and the Niger. Ibid., para 1. 89 Ibid., paras 20, 22–23. 90 Campbell 2014a, cited in Felter 2018. 91 Felter 2018. 92 United Nations General Assembly Security Council 2020. 93 United States Department of State, Bureau of Democracy, Human Rights and Labor 2021, p. 16. See Kurtzer 2020, pp. 7, 9. 94 E.g. International Criminal Court, Office of the Prosecutor 2013c, para 15; International Criminal Court, Office of the Prosecutor 2013b, para 212 (noting allegations of up to 211 more civilians killed in Boko Haram attacks); International Criminal Court, Office of the Prosecutor 2014, para 177 (noting allegations of more than 2000 civilians killed in Boko Haram attacks in the first six months of 2014); International Criminal Court, Office of the Prosecutor 2015, para 198 (“According to the Office’s analysis, from January 2013 to March 2015, 356 reported incidents of killings can be attributed to Boko Haram… which led to the killing of over 8,000 civilians…”); International Criminal Court, Office of the Prosecutor 2017, para 211 (noting allegations of 381 civilians killed by Boko Haram between April 2017 and September 2017 in Cameroon and Nigeria); International Criminal Court, Office of the Prosecutor 2018, paras 228–229 (noting allegations that approximately 60 more civilians had been killed). 84

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To show murder under Article 7 of the Rome Statute, the Prosecution must prove a perpetrator killed one or more persons, in addition to the threshold requirements for crimes against humanity.95 To show murder as a war crime in the context of a non-international armed conflict, the Prosecution must prove a perpetrator (i) killed one or more persons; (ii) victims were either hors de combat, or were civilians, medical personnel, or religious personnel taking no active part in the hostilities; and (iii) was aware of the factual circumstances that established this status; as well as the NIAC threshold requirements.96 To prove attacks against a civilian population, the Prosecution must show a perpetrator (i) directed an attack; (ii) made the object of the attack the civilian population as such or individual civilians not taking direct part in hostilities; and (iii) intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack; as well as proving the NIAC threshold requirements.97

2.4.2 Case II: Abduction and Detention of Civilians Between May 2013 and April 2015, the OTP identified reports of the abduction of more than 2000 women and girls.98 Boko Haram also reportedly abducts boys to use as child soldiers.99 Boko Haram has reportedly continued to use abduction as a tactic. In 2019, the UN Secretary-General attributed responsibility to Boko Haram for the abduction of 44 children between 11 and 17 years old.100 In 2020, he concluded Boko Haram “continued to carry out a series of brutal attacks, including mass abductions of girls and boys.”101 Various kidnapped victims have reportedly been beaten, starved, deprived of water, subjected to sexual violence, and had their hands amputated or even in one case been stoned to death for alleged violations.102 The Chibok kidnapping is just one harrowing example. On the night of 14 April 2014, over 200 Boko Haram fighters burst into a dormitory at the Chibok Government Girls Secondary School. They commanded the girls there to go outside; stole the food from the school’s storeroom; and then set fire to it. They then loaded the girls 95

Rome Statute art 7(1)(a); International Criminal Court 2011, p. 5. The case would also likely include allegations of extermination as a crime against humanity, which also requires proof that the perpetrators’ conduct constituted, or formed part of, a mass killing of members of a civilian population. Ibid., 6; Rome Statute art 7(1)(b). 96 Rome Statute art 8(2)(c)(i); International Criminal Court 2011, p. 31. 97 Rome Statute art 8(2)(e)(i); International Criminal Court 2011, p. 34. 98 International Criminal Court, Office of the Prosecutor 2015, para 199. See United Nations Office of the High Commissioner for Human Rights 2015, A/HRC/30/67, paras 29–32. 99 Office of the High Commissioner Human Rights Council 2015, A/HRC/30/67, para 29. 100 United Nations General Assembly Security Council 2020. 101 United Nations Security Council 2021, S/2021/312 para 67. See also Kurtzer 2020, p. 7; United States Department of State, Bureau of Democracy, Human Rights and Labor 2021, pp. 2, 4, 17. 102 United Nations Office of the High Commissioner for Human Rights 2015, A/HRC/30/67, paras 35–38, 40–41, 43.

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onto pickup trucks and drove away into the Sambisa forest. While 57 girls escaped that night, more than 100 are still missing, and reports indicate some have died.103 Shekau reportedly issued a lengthy statement taking responsibility for the Chibok kidnapping, calling the schoolgirls “slaves” and threatening to “sell them”.104 Legally, Case II includes the crimes against humanity of enslavement,105 unlawful imprisonment,106 and torture107 and the war crimes of torture,108 cruel treatment,109 and hostage-taking.110 To support a conviction for enslavement, the Prosecution must show that a perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.111 The elements of the crime of imprisonment are that a perpetrator (i) imprisoned one or more persons or otherwise severely deprived one or more persons of physical liberty; (ii) with the gravity of the conduct being such that it was in violation of fundamental rules of international law.112 To prove torture as a crime against humanity, the Prosecution must prove that a perpetrator inflicted severe physical or mental pain or suffering upon one or more persons, who were in the custody or under the control of the perpetrator, and whose pain or suffering did not arise only from and was not inherent or incidental to lawful sanctions.113 In each instance, the Prosecution must also prove the threshold legal requirements for crimes against humanity. To prove torture as a war crime, the Prosecution must show that the perpetrator inflicted the pain or suffering for a prohibited purpose such as obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind; against victims who were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities; and was aware of the factual circumstances that established the victims’ protected status.114 To prove cruel treatment, the Prosecution must show that a perpetrator inflicted severe physical or mental pain or suffering upon one or more persons who were either hors de combat, or were civilians, medical personnel, or religious 103

E.g. The Associated Press (2014) https://www.cbc.ca/news/world/boko-haram-nigeria-school girls-anatomy-of-a-kidnapping-1.2633309. Accessed 24 June 2021; Strochlic (2020) https://www. nationalgeographic.com/magazine/article/six-years-ago-boko-haram-kidnapped-276-schoolgirlswhere-are-they-now. Accessed 24 June 2021; Blanchard 2016, p. 7. 104 Nossiter (2014) https://www.nytimes.com/2014/05/06/world/africa/nigeria-kidnapped-girls. html. Accessed 24 June 2021. 105 Rome Statute art 7(1)(c). 106 Rome Statute art 7(1)(e). 107 Rome Statute art 7(1)(f). 108 Rome Statute art 8(2)(c)(i). 109 Rome Statute art 8(2)(c)(i). 110 Rome Statute art 8(2)(c)(iii). 111 International Criminal Court 2011, p. 6. 112 Ibid., p. 7. 113 Ibid. 114 Ibid., pp. 32–33.

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personnel taking no part in the hostilities, while the perpetrator was aware of the factual circumstances that established the victims’ protected status.115 Finally, to prove the war crime of taking hostages the Prosecution must show that a perpetrator (i) seized, detained or otherwise held hostage one or more persons; (ii) threatened to kill, injure or continue to detain such person or persons; (iii) with the intention to compel a State, an international organization, a natural or legal person or a group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of the hostages; (iv) the victims were hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities;116 and (v) the perpetrator was aware of the factual circumstances that established this status.117 In each instance, the Prosecution must also satisfy the NIAC threshold requirements.

2.4.3 Case III: Attacks on Schools, Teachers, and Students In 2013, Shekau “publicly threatened to burn secular schools and kill their teachers”.118 In 2015, the OTP noted reports of more than 170 killed teachers, 50 burned or badly damaged schools, and almost 200 more forced to close.119 The same year, OHCHR noted “[t]he education authorities reported that 338 schools had been damaged or destroyed between 2012 and 2014 in the States of Adamawa, Borno and Yobe.”120 The UN Secretary-General attributed responsibility to Boko Haram for attacks on four schools in 2019.121 The Rome Statute bars “intentionally directing attacks against buildings dedicated to…education… provided they are not military objectives” in the context of a non-international armed conflict.122 The elements of this crime are that a perpetrator directed an attack, against

115

Ibid., p. 32. The ICTY/IRMCT has held that threats against persons who are hors de combat due to their detention satisfy the actus reus of hostage-taking regardless of whether the victims’ initial detention was unlawful. E.g. Prosecutor v. Karadži´c, Judgment, 20 March 2019, MICT-13-55-A, paras 659– 661. 117 International Criminal Court 2011, p. 33. 118 Blanchard 2016, p. 8 (citation omitted). 119 International Criminal Court, Office of the Prosecutor 2015, para 202. 120 United Nations Office of the High Commissioner for Human Rights 2015, A/HRC/30/67, para 48. 121 United Nations General Assembly Security Council 2020. 122 Rome Statute art 8(2)(e)(iv). 116

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2.4.4 Case IV: Recruitment and Use of Child Soldiers In a recent report on children in conflict, the UN Secretary-General listed Boko Haram for recruiting and using child soldiers.125 He has concluded that Boko Haram recruited and used more than 1000 children between 2017 and 2019, using more than 200 in “suicide incidents” in which they carried improvised explosive devices.126 In 2016 CRS observed that “most of [Boko Haram’s suicide bombers are] women and children.”127 The same year, Dermot Groome noted Boko Haram’s “strategy of deploying young girls as suicide bombers”, including 12 female suicide attacks in a single month in 2015, and noted reports that Boko Haram had begun indoctrinating potential bombers when they were as young as seven years old.128 The Rome Statute bars “conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities.”129 To prove such a crime, the Prosecutor must show the perpetrator conscripted or enlisted, or used to participate in hostilities, one or more persons who were in fact under 15 years old, and knew or should have known that they were under 15 years old.130 The terms “conscripting”, “enlisting”, and “using” are not defined in the Rome Statute or Elements of Crimes.131 However, case law defines them as three separate offenses.132 In principle enlistment refers to voluntary enlistment in an armed force; conscription to compulsory enlistment.133 “Use” refers to using child soldiers to actively participate in hostilities, judged on a case-by-case basis by the 123

An object is a military objective if it by its “nature, location, purpose, or use makes an effective contribution to military action and [its] total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.” Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (8 June 1977) 1125 UNTS 3 (Protocol I) art 52(2). See generally ICRC, Customary IHL Database undated-b; ICRC Customary IHL Database undated-a. 124 International Criminal Court 2011, p. 36. 125 United Nations General Assembly Security Council 2020. See United States Department of State 2020, pp. 2, 19. 126 Ibid., paras 207, 209. See UN Security Council 2020, S/2020/652, para 25. United Nations Office of the High Commissioner for Human Rights 2015, A/HRC/30/67, paras 44–46. 127 Blanchard 2016, p. 9. See UN News (2015) https://news.un.org/en/story/2015/05/499802-nig eria-un-warns-alarming-spike-suicide-attacks-women-and-girls. Accessed 29 June 2021. 128 Groome 2016, paras 26–34 (citations omitted). 129 Rome Statute art 8(2)(e)(vii). 130 Rome Statute art 8(2)(e)(vii). 131 Prosecutor v Lubanga, Judgment, TC I 14 March 2012, ICC-01/04-01/06, para 600. 132 Ibid., para 609. 133 Ibid., paras 607–618. Children’s general inability to provide informed consent creates uncertainties between “enlistment” and “conscription”. Regardless, a child’s alleged consent to become

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link between the activity the child is used for and the combat the force using the child is engaged in.134 The Prosecution must also satisfy the NIAC threshold requirements. The first case, and first conviction, at the ICC focused solely on charges of recruiting, conscripting, and using child soldiers.135

2.4.5 Case V: Gender-Based Crimes Allegations of gender-based violence by Boko Haram are notorious in international reporting. For example, the UN Secretary General’s March 2021 report on conflictrelated sexual violence identifies Boko Haram as a “party of concern”, noting it had “carried out brutal attacks against women and girls” and that in Nigeria specifically: The Government’s special investigations panel on sexual and gender-based violence documented 210 cases of conflict-related sexual violence committed in 2020, including rape and forced marriage, affecting 94 girls, 86 women and 30 boys, noting that such crimes continue to be chronically underreported owing to stigma and harmful social norms.136

OHCHR’s 2015 report details “widespread and severe” sexual violence.137 The UN Secretary General’s report on child soldiers similarly attributed sexual violence against 30 children to Boko Haram members in 2019.138 Case V includes allegations of rape, sexual slavery, and forced pregnancy as both crimes against humanity139 and war crimes,140 as well as persecution141 and forced marriage142 as crimes against humanity. To prove rape the OTP must show the perpetrator invaded the body of a person resulting in penetration of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or body part; and did so by force, threat, or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or did so against a person incapable of giving a soldier does not provide the person who enlisted that child with a defense against charges of enlistment. 134 Prosecutor v Lubanga, Judgment, A 5 1 December 2014, ICC-01/04-01/06, para 335. 135 Prosecutor v Lubanga, Judgment, TC I 14 March 2012, ICC-01/04-01/06, para 600; Prosecutor v Lubanga, Judgment, A 5 1 December 2014, ICC-01/04-01/06, para 335. 136 United Nations Security Council 2021, S/2021/312 paras 14, 67–68. See United States Department of State 2020, pp. 2, 19; Kurtzer 2020, p. 7; United Nations Office of the High Commissioner for Human Rights 2015, A/HRC/30/67, paras 38–43. 137 United Nations Office of the High Commissioner for Human Rights 2015, A/HRC/30/67, paras 38–43. 138 United Nations General Assembly Security Council 2020. 139 Rome Statute art 7(1)(g). 140 Rome Statute art 8(2)(e)(vi). 141 Rome Statute art 7(1)(h). 142 Rome Statute art 7(1)(k).

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genuine consent.143 To prove sexual slavery, the OTP must establish the elements of enslavement and prove the perpetrator caused a victim to engage in one or more acts of a sexual nature.144 To prove forced pregnancy, the OTP must show that a perpetrator confined one or more women forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law.145 In each instance, to prove a crime against humanity the Prosecution must satisfy the relevant threshold requirements, and to prove a war crime the Prosecution must satisfy the NIAC threshold requirements. Forced marriage may be prosecuted as an “other inhumane act” under the Rome Statute.146 To prove inhumane acts, the Prosecution must show that a perpetrator (i) inflicted great suffering, or serious injury to body or to mental or physical health, by means of inhumane act; (ii) committed acts of a character similar to any other crime against humanity defined in the Rome Statute; and (iii) was aware of the factual circumstances that established the character of the act.147 The “central element” specific to forced marriage is the imposition of duties associated with marriage, including a forced and exclusive conjugal union. The crime continues until the victim is freed.148 The Prosecution must also satisfy the threshold requirements for crimes against humanity. Finally, Case V involves allegations of gender-based persecution.149 The elements of persecution are that a perpetrator (i) severely deprived, contrary to international law, one or more persons of fundamental rights; (ii) targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such; (iii) chose targets based on political, racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognized as impermissible under international law; (iv) committed conduct in connection with any act referred to in article 7, paragraph 1, of the Statute, or any crime within the jurisdiction of the court. The Prosecution must also satisfy the threshold requirements for crimes against humanity.150 Crimes such as those alleged in Case V are of sufficient gravity to constitute underlying acts of persecution.151

143

International Criminal Court 2011, pp. 8, 36–37. See Weiner 2013. Ibid., pp. 6, 8, 37. See above, Sect. 2.4.3. 145 Ibid., pp. 9, 38. 146 Prosecutor v. Ongwen, Judgement, 4 February 2021, ICC-02/04-01/15, paras 2748–2752. 147 International Criminal Court 2011, p. 12. 148 Prosecutor v. Ongwen, Judgement, 4 February 2021, ICC-02/04-01/15, paras 2748–2752. 149 See Rome Statute art 7(1)(h). 150 International Criminal Court 2011, p. 10. 151 E.g. Prosecutor v. Šainovic et al., Judgment, 23 January 2014, IT-05-87-A, para 586; Prosecutor v. Ntaganda, Judgment, 8 July 2019, ICC-01/04-02/06, para 1008 (rape as persecution). See also Strayer 2019. 144

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2.4.6 Case VI: Attacks on Buildings Dedicated to Religion The Rome Statute bars “intentionally directing attacks against buildings dedicated to religion… provided they are not military objectives” in the context of a noninternational armed conflict.152 The elements of this crime mirror the elements of the crime of targeting buildings dedicated to education.153 OTP’s 2015 PE Report noted for instance an attack on a mosque and noted five churches had been set on fire near Chibok just months after the kidnapping.154 Reports reflect more than a thousand churches have closed and many Christians fled.155 One of the ICC’s few convictions focused solely on Article 8(2)(e)(iv): the prosecution and guilty plea of Ahmad Al Faqi Al Mahdi, the head of a body established to uphold public morals and prevent vice within the ranks of Ansar al-Dine, for destroying religious monuments in Timbuktu, Mali.156 Prosecutor Bensouda’s “forceful opening statement” in Al Mahdi emphasized the importance of such buildings, arguing that an attack on one is “a profound attack on the identity, the memory and, therefore, the future of entire populations.”157 OTP recently issued a policy on prosecuting crimes against cultural heritage in which it explained it was “committed to addressing these crimes” and will include related charges in cases “whenever evidence permits”.158

2.4.7 Case VII: Attacks on Humanitarian Workers The UN Secretary-General has attributed responsibility to Boko Haram for killing three aid workers in an attack on Rann camp in March 2018 and abducting—and later executing—three more.159 Boko Haram also claimed responsibility for a 2011 attack on a UN compound in Abuja which killed more than twenty people.160 Over 100 aid workers have been killed, wounded, or kidnapped in Nigeria during the conflict.161 In the context of a non-international armed conflict, the Rome Statute bars: 152

Rome Statute art 8(2)(e)(iv). International Criminal Court 2011, p. 36. See also United States Department of State, Bureau of Counterterrorism 2018, p. 36. 154 International Criminal Court, Office of the Prosecutor 2015, para 209. 155 Ochab and Zorzi 2016, para 83 (citations omitted). 156 See Corliss 2019, 213-216. Like Boko Haram, Ansar has been designated by the United States as a foreign terrorist organization. United States Department of State, Office of the Spokesperson 2013. 157 Corliss 2019 citing International Criminal Court 2016. 158 International Criminal Court, Office of the Prosecutor 2021, paras 3–5. 159 United Nations Security Council 2020, S/2020/652, para 12; see International Criminal Court, Office of the Prosecutor 2018, para 229. 160 Kurtzer 2020, p. 3. See United States Department of State, Office of the Spokesperson 2013. 161 Ibid., pp. 3, 9. 153

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To prove a violation of Article 8(2)(e)(iii), the Prosecutor must show the perpetrator (i) directed an attack, the object of which was personnel, installations, material, units, or vehicles involved in a peacekeeping mission; (ii) intended those persons or objects to be the object of the attack; (iii) while aware that those persons or objects in fact were protected under international law. The Prosecution must also satisfy the NIAC threshold requirements.163

2.4.8 Case VIII: Attacks Directed at Christians It is Allah that instructed us, until we soak the ground of Nigeria with Christian blood, and socalled Muslims contradicting Islam. We will kill and wonder what to do with their smelling corpses... This is a war against Christians and their democracy and their constitution. – Abubakar Shekau164

In its Article 5 Report, OTP noted Boko Haram’s policy of targeting Christians; statements by Shekau directing all Christians to leave Nigeria; and repeated crimes against Christians, including Christian places of worship.165 It concluded there was a possible case against Boko Haram for persecuting Christians by targeting them for criminal violence based on their religion, which is a protected characteristic under Article 7(1) of the Rome Statute.166 The Article 5 Report indicates that the crime of persecution of Christians may fall within Case I. However, attacks on Christians are likely better understood as a distinct case similar to gender-based crimes. Such a case would encompass the crimes of persecution on religious grounds as a crime against humanity; murders of Christians; attacks directed at Christian civilians; abductions of Christians; and targeting of Christian religious facilities.167 OTP’s framework separates these crimes into different cases even if temporally and geographically proximate, grouping them instead with other violations of the same Rome Statute provisions which bear a less natural factual connection. These crimes are best understood as a distinct case for several reasons:

162

Rome Statute art 8(2)(e)(iii). International Criminal Court 2011, pp. 34–35. 164 Campbell 2014b, p. 12 (citation omitted). 165 International Criminal Court, Office of the Prosecutor 2013c, paras 82, 87-88, 97–100. 166 Ibid., paras 96–100. See International Criminal Court 2020c. 167 The elements of these crimes are set forth above in Sects. 2.4.1, 2.4.2, 2.4.3, 2.4.5, and 2.4.6. 163

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• Threshold requirements for such crimes would be proven and challenged through the same direct and circumstantial evidence seeking to prove the same “organizational policy or plan” underlying crimes targeting Christians. This evidence would need to be weighed against the higher standards of proof applicable later on in the ICC process and evidence challenging the existence of such a policy or plan; • Similar evidence (like public statements, patterns of conduct, or group doctrine) will also serve as the basis for allegations that Christians were targeted for violations due to their religious identity, to support persecution charges; • Acts carried out with the same anti-Christian animus will serve as particularly clear evidence of a single “course of conduct involving the multiple commission of” Article 7 crimes, to prove the chapeau elements of crimes against humanity;168 • The same crime-base evidence would otherwise be necessary in multiple cases. For instance, assessing the presence and location of Christian fighters in a town may be essential to determining whether an attack can be proved to have been directed at a civilian group (Case I), a building dedicated to education (Case IV), or a protected object (Case VI). Imagine tomorrow Boko Haram attacked a Christian community in Northern Nigeria; bombed a church during services; killed male survivors even if they were civilians or hors de combat; abducted, enslaved, and committed acts of sexual violence against female survivors; and burned down the community’s elementary school. OTP’s methodology would split that incident into five separate cases. Case VIII would put the various criminal acts committed within that incident—and the broader campaign against Christians which the Article 5 Report finds there is reason to believe Boko Haram is conducting, and into which this incident would fall— into a single case, facilitating sound evidentiary analysis and appropriate charging decisions. As Ewelina Ochab and Kelsey Zorzi have laid out, alleged Boko Haram crimes against Christians meet the standard for persecution by violating fundamental rights including those to life, liberty and security; and freedom of religion or belief.169 They summarize reports of widespread murders; targeted attacks; destruction of churches and Christian property; targeted abductions;170 and targeted acts of sexual violence,171 in support of an organizational policy which is perhaps best summarized by four words from Shekau’s statement after the Chibok kidnapping: “We are antiChristian.”172 Reports suggest Boko Haram continues to implement this policy. In December 2020, the U.S. State Department designated Nigeria as a Country of Particular Concern for Religious Freedom for “having engaged in or tolerated particularly 168

E.g. Rome Statute art 7(2). Ochab and Zorzi 2016, para 83. 170 See Blanchard 2016, p. 9. 171 Ochab and Zorzi 2016, paras 70, 72–73, 76 (citations omitted). 172 Ibid., paras 57, 60, 63, 70, 77–88 (citations omitted). 169

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severe violations of religious freedom” and Boko Haram as an Entity of Particular Concern for “having engaged in particularly severe violations of religious freedom.”173 The U.S. Commission on International Religious Freedom’s 2021 report notes Boko Haram burned at least five churches, attacked Christian communities in northern Nigeria, and “beheaded a local chairman of the Christian Association of Nigeria… because he refused to renounce his faith.”174 Intersociety estimates that Boko Haram has murdered 4000 Christians between June 2015 and early 2020.175 Open Doors USA concludes that “[m]ore Christians are murdered for their faith in Nigeria than in any other country”, noting violent attacks against Christians by Boko Haram, ISWAP, and other groups.176 Reports indicate that most of the kidnapped Chibok women were Christians.177 And in early 2020, Nigeria’s Minister of Information publicly declared Boko Haram were “targeting Christians and Christian villages” and “have a deliberate policy of attacking Christians.”178

2.5 Next Steps and Lessons for Future Situations 2.5.1 Immediate Next Steps The natural next step is a formal investigation of Boko Haram’s alleged international crimes.179 Because the preliminary examination was opened proprio motu, OTP must request that a pre-trial chamber authorize the investigation. The time necessary for litigating and adjudicating such a motion will delay any investigation until at least

173

United States Department of State 2021b. U.S. Commission on International Religious Freedom (2021), pp. 30–31. See United States Department of State 2021a, p. 14. 175 Umeagbalasi 2020. 176 Open Doors USA undated. 177 United Nations Human Rights Council 2021, A/HRC/46/NGO/99, p. 1. See Ochab and Zorzi 2016, para 73. 178 See Cox 2020 cited in Paroda 2020, p. 374. 179 Indeed, OTP had previously taken the position that “when the statutory criteria for opening an investigation are met the Prosecutor ‘shall’ proceed… this mandatory language requires the Prosecutor to proceed to an investigation once the statutory requirements for the opening of an investigation have been met.” International Criminal Court, Office of the Prosecutor 2019a. 174

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late 2023.180 In the interim, States Parties and scholars will seek to evaluate the preliminary examination’s lessons for future ICC situations.

2.5.2 Implications for the Preliminary Examination Process Nigeria has an unusual preliminary examination. Of nearly 30 such examinations in the short history of the Court, it is one of four which have lasted more than a decade along with Afghanistan, Colombia, and Guinea.181 As in Colombia and Guinea, OTP determined early in the preliminary examination that the Court has subject-matter jurisdiction in Nigeria.182 Most of the preliminary examination has focused on the second admissibility factor, complementarity.183

2.5.2.1

Gravity

A case is inadmissible before the ICC where, inter alia, it is “not of sufficient gravity to justify further action by the Court.”184 Based on OTP’s standards for evaluating gravity, an investigation in Nigeria will involve allegations against Boko Haram members which are not only of sufficient gravity to justify further action, but among the gravest the Court has ever investigated. 180

For instance, the Kenya, Myanmar, Côte d’Ivoire, and Georgia situations took between 100 and 150 days from the filing of a Prosecution request to the authorization of an investigation. Situation in the Republic of Kenya, Decision pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March 2010, ICC-01/09; Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, Decision pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/Union of Myanmar, 14 November 2019, ICC-01/19; Situation in Georgia, Decision on the Prosecutor’s request for authorization of an investigation, 27 January 2016, ICC-01/15; Situation in the Republic of Cote D’Ivoire, Corrigendum to ‘Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d’Ivoire’, 15 November 2011, ICC-02/11 (noting in Annex A that the original decision was issued 3 October 2011). A decision in Burundi was issued more quickly, while Afghanistan required an appeal and protracted litigation. Situation in the Republic of Burundi, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Burundi, 25 October 2017, ICC-01/17-X-9; Situation in the Islamic Republic of Afghanistan, Judgment on the appeal against the decision on the authorisation of an investigation into the situation in the Islamic Republic of Afghanistan, 5 March 2020, ICC-02/17 OA4. 181 See generally International Criminal Court undated-a; International Criminal Court 2020, para 714; Bosco 2017, pp. 395, 401. 182 See International Criminal Court, Office of the Prosecutor 2013b (reflecting Colombia, Guinea, Nigeria, and Georgia in the “admissibility” phase). 183 See International Criminal Court 2020c (“The duration of the preliminary examination, open since 2010, was due to the priority given by my Office in supporting the Nigerian authorities in investigating and prosecuting these crimes domestically”). 184 Rome Statute art 17(1)(d).

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The “scale, nature, manner of commission and impact” of alleged crimes185 are “significant indicators of the gravity of a case”.186 Scale refers to the number of direct and indirect victims, the extent of damage including bodily harm, and the geographic or temporal spread of the crimes.187 Killings, acts of sexual or gender based-violence, crimes against children, identity-based crimes like persecution, and genocide are particularly grave by nature.188 Particular cruelty or abuse of a perpetrator’s power, discriminatory intent, particular vulnerability of victims, a link to an organized policy or plan or a systematic pattern of crimes, the use of rape and other forms of sexual and/or gender-based violence, the destruction of the environment, or the destruction of protected objects may all enhance the gravity of a crime’s manner of commission.189 Impact encompasses the immediate and longer-term effects of crimes on victims and their communities.190 The IER recently made important recommendations to revitalize the gravity standard. Their spirit is best conveyed in its “prioritized recommendations” annex: The OTP should focus on a narrower range of situations, and limit their interventions to the extent possible, focusing on situations of the highest gravity and on those most responsible for the crimes, which may well include mid-level perpetrators. The Prosecutor should adopt a higher threshold for the gravity of the crimes alleged to have been perpetrated. Gravity should also be taken into account at Phase 1 of PEs. [R227, R233, R236]191

These recommendations were intended to push the OTP towards “allocating [its] limited resources… to the situations that are the most serious.”192 They “reflect a strong recognition that the Court is over-extended—that it has involved itself in too many countries and is spread too thin to operate successfully.”193 Fully adopting these IER recommendations may require amendment of the Statute or other action by the Assembly of States Parties to correct Appeals Chamber jurisprudence which holds that almost any violation of the Rome Statute satisfies the gravity

185

International Criminal Court 2009, Regulation 29(2); International Criminal Court, Office of the Prosecutor 2013a, paras 61–66. 186 Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Décision relative à l’exception d’irrecevabilit´e pour insuffisance de gravit´e de l’affaire soulevée par la défense), 27 September 2019, PTC I, para 47. International Criminal Court 2009, Regulation 29(2); International Criminal Court, Office of the Prosecutor 2013a, para 61. Al Hassan, Public Redacted Judgment on the appeal of Mr Al Hassan against the decision of Pre-Trial Chamber I entitled ‘Décision relative à l’exception d’irrecevabilit´e pour insuffisance de gravit´e de l’affaire soulevée par la défense’, AC 19 February 2020, para 92. 187 International Criminal Court, Office of the Prosecutor 2013a, para 62; International Criminal Court, Office of the Prosecutor 2016a, para 38. 188 Ibid., para 63; ibid., para 39. 189 Ibid., para 64; ibid., para 40. 190 Ibid., para 65; ibid., para 41. 191 International Criminal Court 2020, Annex I, para 54. As others have pointed out, this is phrased more strongly than the underlying recommendations it summarizes. See Buchwald 2020a. 192 International Criminal Court 2020, para 650. 193 Buchwald 2020a; International Criminal Court 2020, paras 642–643.

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threshold,194 effectively limiting the gravity assessment to a mere reiteration of the Court’s subject-matter jurisdiction. To provide any benefit for focusing the Court’s investigative resources, it would also require judging the gravity of situations in their entirety, rather than cases against individual accused persons. In any event, Boko Haram crimes rank very high on any gravity scale. Indeed, the great majority of factors which OTP has found increase gravity would be present in potential cases against Boko Haram members, see Table 2.1 below. In short, if an investigation is opened Nigeria will be the newest, but also one of the gravest, open situations at the Court. As such, it will provide a first opportunity to see if OTP will follow the IER’s gravity recommendations. To do so, OTP would have to reallocate enough resources to immediately advance this long-delayed investigation into a particularly grave situation.

2.5.2.2

Complementarity

The principle of complementarity holds that a case is not admissible at the ICC if it “is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution[.]”195 A State may be found unable to carry out an investigation if “due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.”196 A State may be found “unwilling” if it is investigating only to shield a suspect from ICC jurisdiction, if its proceedings have been unjustifiably delayed in a manner inconsistent with an intention to bring a perpetrator to justice, or if the proceedings are not independent, not impartial, or inconsistent with an intention to bring perpetrators to justice.197 In general, the burden is on a State to show it is conducting domestic proceedings which trigger complementarity.198 OTP has noted ongoing domestic proceedings involving Boko Haram members in Nigeria, but has also noted challenges and limitations of those proceedings. For instance: • The 2019 PE report concluded domestic proceedings were “limited in scope and depth” and hampered by “the absence of legislative provisions addressing certain categories of conduct; the persistence of the armed conflict; inadequate investigative files; an overreliance on confession-based evidence; a lack of forensic evidence” and other challenges;199 194

See International Criminal Court, Office of the Prosecutor 2020b, para 124 (citations omitted). Rome Statute art 17(1)(a). 196 Rome Statute art 17(3). 197 Rome Statute art 17(2). 198 E.g. Buchwald 2020b. 199 International Criminal Court, Office of the Prosecutor 2019b, paras 191, 193. 195

Number of direct and indirect victims, extent of damage including bodily harm, and geographic or temporal spread

Killings, acts of sexual or gender based-violence, crimes against children, identity-based crimes like persecution, and genocide

Scale

Nature

(continued)

Cases include: killings (case I, case III, case IV, case VII); acts of sexual or gender-based violence (case II, case V); crimes against children (case III, case IV); and identity-based crimes (case V, case VI). Case VIII would also include all four of these factors. All crimes listed as particularly grave by nature except genocide201 are included

High number of direct and indirect victims. More than 10,000 killed victims (Case I), thousands of abducted victims (Case II). High extent of damage (many victims killed, others subjected to rape, torture, or long-term abduction). High temporal spread of criminality (ongoing for more than ten years). 2013 Article 5 Report determined Boko Haram appeared “able to launch attacks across the country.”200 Case VIII would also include a significant temporal spread and high numbers of victims

Considerations present in Boko Haram cases

201

International Criminal Court, Office of the Prosecutor 2013c, para 84. Genocide Watch has opined that Boko Haram is carrying out “genocidal massacres” which in its view constitute genocide. It concedes, however, that those massacres do not fit the “narrow” legal definition. Stanton 2020.

200

Considerations increasing gravity

Gravity factor

Table 2.1 Gravity analysis for Nigeria

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See Campbell 2014b, p. 10 (“Boko Haram is brutal… Its murder methods are grisly, featuring throat-slitting and beheadings, which it sometimes captures on video for propaganda purposes”). 203 See Prosecutor v. Ðorðevi´ c, Judgment, TC II 23 February 2011, IT-05-87/1-T, para 2151.

202

Cases include particular cruelty (e.g. case I, case V);202 Case V includes allegations of persecution, which requires discriminatory intent, and case VI includes allegations of targeting buildings dedicated to religions other than Boko Haram’s—which also may reflect a discriminatory intention.203 Cases II, III and IV involve particularly vulnerable child victims, while Cases II and V involve targeting female victims. Cases II and V involve SGBV. Cases III and VI involve the targeting of protected objects for destruction. At a minimum, Cases I, II, and V would involve a systematic pattern of crimes and a link to an organizational policy or plan because they include alleged crimes against humanity and those considerations mirror the threshold requirements for crimes against humanity. Case VIII would also include at least an organized plan or policy, discriminatory intent and the destruction of protected objects, among other allegations

Presence of particular cruelty or an abuse of a perpetrator’s power, discriminatory intent, particular vulnerability of victims, a link to an organized policy or plan or a systematic pattern of crimes, the use of rape and other forms of sexual and/or gender-based violence, the destruction of the environment, or the destruction of protected objects

Manner of commission

(continued)

Considerations present in Boko Haram cases

Considerations increasing gravity

Gravity factor

Table 2.1 (continued)

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Immediate and longer-term effects of crimes on victims and their communities

Impact

Obviously, impacts on killed victims are very serious (Case I). Sexual violence in Case V,204 abduction in Case II,205 and the use of child soldiers (Case IV),206 among other crimes, may also have serious lasting effects. Crimes against education in Borno State (Case III) reportedly led to schools being cancelled for two years.207 And OTP has noted “the broad and severe impact that [crimes against cultural heritage] may have on individuals, communities, and humanity as a whole” (Case VI)208

Considerations present in Boko Haram cases

205

E.g. RAINN (undated) https://www.rainn.org/effects-sexual-violence. Accessed 24 June 2021; Ochab and Zorzi 2016, para 93. For example, the Chibok women have guards because Boko Haram threatened to kill them if they returned to school. Many continue to suffer from physical injuries. “Most… wrestle with lingering trauma.” There have been attacks on the homes of the families of some of the women who have returned to school. And of course, more than 100 are still captive or killed, and more than 100 families are still waiting to see if their children are alive or dead. More generally, many abduction victims are not accepted by their communities: “Many women held prisoner by Boko Haram return to communities that fear them and families that shun them.” Strochlic (2020). https://www.nationalgeographic.com/magazine/article/six-years-ago-boko-haram-kidnapped-276-schoolgirls-where-are-the y-now. Accessed 24 June 2021. 206 E.g. Prosecutor v. Lubanga, Corrected version of the “Decision Setting the Size of the Reparations Award for which Thomas Lubanga Dyilo is Liable”, TC II 21 December 2017, ICC-01/04-01/06, paras 180–184. See Souris 2021. 207 Strochlic (2020). https://www.nationalgeographic.com/magazine/article/six-years-ago-boko-haram-kidnapped-276-schoolgirls-where-are-they-now. Accessed 24 June 2021 citing Human Rights Watch 2016. 208 International Criminal Court, Office of the Prosecutor (2021), para 95. See Prosecutor v. al Mahdi, Reparations Order, TC VIII 17 August 2017, ICC-01/1201/15.

204

Source Author

Considerations increasing gravity

Gravity factor

Table 2.1 (continued)

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• The 2018 PE Report noted some Boko Haram members had been prosecuted, mostly under anti-terrorism legislation,209 but cases were “scarce in quantity and often lacking in progression compared to the quantity of allegations and the number of persons in detention” and “may be affected by procedural and substantive issues”;210 and • The 2017 PE report noted the commencement of what became the Kainji mass trials, noting that those which had been completed had resulted in 45 convictions (8.2%) and 502 acquittals (91.8%), while 28 cases had been adjourned until the next year due to a lack of relevant witnesses.211 In its most recent preliminary examination report, OTP concluded there were “several national cases against Boko Haram members”, but none created a complementarity issue “either because they did not cover substantially the same alleged conduct or … are against low level perpetrators.”212 Days later, Prosecutor Bensouda expanded on OTP’s assertion about the difference between Nigerian proceedings and potential ICC proceedings, asserting in a public statement that: our assessment is that none of these proceedings relate, even indirectly, to the forms of conduct or categories of persons that would likely form the focus of my investigations. And while this does not foreclose the possibility for the authorities to conduct relevant and genuine proceedings, it does mean that, as things stand, the requirements under the Statute are met for my Office to proceed.”213

Bensouda’s categorical language that no Nigerian proceedings relate “even indirectly” to a possible ICC investigation gives rise to a natural question: if there is not even any indirect relationship between Nigerian Boko Haram investigations and a possible ICC investigation, how could it have taken seven years for OTP to figure that out? The answer to that question begins with acknowledging that the OTP’s statement does not match other international sources or its own previous reports, quoted above. Secretary-General Guterres recently noted, in the context of discussing sexual violence by Boko Haram, that the Nigerian Government has established both a special 209

See also International Criminal Court, Office of the Prosecutor 2016b, para 299. International Criminal Court, Office of the Prosecutor 2018, paras 236–240 (citing inter alia mass trials of most of the 1669 suspects detained in Kainji; the trial of Kabiru Omar in 2013; the then-ongoing trial of Mohammed Usman; the trial of Abba Umar; and the trial of Haruna Yahaya). A Reuters report in early 2018 refers to the convictions of 205 persons for involvement with Boko Haram. Carsten (2018). www.reuters.com/article/us-nigeria-security/nigeria-convicts205-boko-haram-suspects-in-mass-trials-idUSKCN1G3253. Accessed 23 June 2021; United States Department of State, Bureau of Counterterrorism 2018, p. 38. 211 International Criminal Court, Office of the Prosecutor 2017, para 217. See also Akwagyiram (2018). www.reuters.com/article/us-nigeria-security/first-person-convicted-for-nig erias-boko-haram-schoolgirl-kidnap-idUSKCN1FY2N3; United States Department of State, Bureau of Counterterrorism 2018, p. 36 (DOS reported the same statistics for 2017 as OTP, but reported the 45 convicted persons “pled guilty” and 468 of the 502 acquitted persons were “ordered to undergo a de-radicalization and rehabilitation program before being released”). 212 International Criminal Court, Office of the Prosecutor 2020a, para 259. 213 International Criminal Court 2020c. 210

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investigations panel on sexual and gender-based violence and a specialized unit of the Office of the Attorney General to investigate and prosecute crimes committed by Boko Haram factions.214 OTP reports note cases against Boko Haram members,215 and at least two men responsible for the Chibok kidnapping have been convicted and sentenced to lengthy prison terms216 while eight more have reportedly confessed.217 Nigeria also operates “Operation Safe Corridor”, a deradicalization and reintegration program which had served at least 268 former Boko Haram members by the end of 2019.218 Moreover, OTP decided there was no complementarity issue in December 2020— during the COVID-19 pandemic, which had largely closed Nigerian courts for months in early 2020 and delayed more than 150,000 court cases.219 As of 27 April 2021, the Nigerian terrorism department alone reportedly had a backlog of over 5000 cases,220 exacerbating a problem which had existed even before the pandemic.221 Viewed in this light, the timing of OTP’s decision to discount Nigeria’s domestic proceedings is particularly unfortunate. There are nonetheless several possible explanations for OTP’s categorical language. First, the 2020 PE Report indicates that OTP may have concluded that the Nigerian proceedings failed the “same conduct” test. That test holds that only national prosecutions for the “same conduct” as would be charged at ICC trigger complementarity.222 Under this standard, OTP may reason that charging someone with supporting terrorism is not sufficiently related to the atrocity crimes committed by the terrorist group the accused person allegedly supported—and for which evidence may indicate they bear culpability—to justify the ICC standing down from prosecution.223 214

United Nations Security Council 2021, S/2021/312 14, paras 67–68. International Criminal Court, Office of the Prosecutor 2018, paras 236–240. 216 Adebayo (2018) https://edition.cnn.com/2018/07/13/africa/chibok-girls-kidnapper-jailed/ index.html. Accessed 23 June 2021; United States Department of State, Bureau of Counterterrorism 2018, p. 38. 217 Lanre and Kingimi (2018) https://www.reuters.com/article/us-nigeria-violence-girls/nig erian-police-say-eight-boko-haram-suspects-confess-to-chibok-abduction-idUSKBN1K81QL. Accessed 23 June 2021. 218 United States Department of State, Bureau of Counterterrorism 2020, p. 33. See Felbab-Brown 2018. 219 See Azu (2020) https://allafrica.com/stories/202004200271.html. Accessed 23 June 2021; Ojo (2020). https://guardian.ng/features/covid-19-impact-on-legal-system-in-nigeria-is-devastatingsays-etomi/. Accessed 23 June 2021; Ogungbenro et al. (2020) https://www.lexology.com/library/ detail.aspx?g=9697c469-1925-4f89-a12f-9b120a1ca3bf. Accessed 23 June 2021; Ogbuagu and Takuro (undated) https://www.ibanet.org/article/BA479B88-55BA-43EA-9DF6-80A0FB6C3668. Accessed 23 June 2021. 220 The Commonwealth (2021) 9:23. https://thecommonwealth.org/backlogs-criminal-justicesystem. Accessed 23 June 2021. 221 Ibid., 10:00. 222 See International Criminal Court 2020, paras 722–724. 223 OTP’s decision to request an investigation regardless of domestic processes could in theory be due to allegations against other perpetrator groups, but its statement about Boko Haram allegations still requires explanation. 215

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Second, OTP may have concluded Nigeria’s domestic proceedings are not fundamentally fair. Those proceedings have been subject to criticism from international NGOs,224 as noted in reports from OTP225 and the U.S. State Department.226 Third, OTP may have been reacting to IER recommendations intended to shorten preliminary examinations227 by concluding its review in a situation where it had previously sought to take “positive complementarity” measures during the preliminary examination phase. Whatever the reasoning, several of the challenges for Nigerian investigations OTP cited in its 2019 PE Report will not necessarily be fixed by international investigations. OTP cited, inter alia, the persistence of the armed conflict; inadequate investigative files; and a lack of forensic evidence.228 But ICC involvement will not end the armed conflict; generate evidence which does not exist; or provide access to such evidence if it is inaccessible. These problems are only likely to be fixed if Nigeria has simply chosen not to look for key evidence or the OTP is able to gain access— directly or through partners—to evidence Nigeria would be unable to secure. OTP’s own proceedings have faced strong criticisms and significant setbacks.229 Moreover, all three rationales are imperfect. Mechanically applying the “same conduct” test could have negative ramifications for both complementarity and the ICC. A literal interpretation of the test eliminates good-faith exercises of domestic prosecutorial discretion—like finding efficiencies to prosecute more perpetrators within a group responsible for mass criminality through terrorism charges, rather than proving and re-proving contextual elements of international crimes.230 If interpreted to require charging international crimes rather than ordinary crimes like murder or rape, it risks unnecessarily making cases more difficult to win by requiring prosecutors to prove additional contextual elements and requiring domestic courts to work in areas of law where they are less expert, all in cases where failure may bring significant risks for domestic peace and stability.231 It risks expending scarce court time and resources on investigations, and subsequent trials, in cases where the accused person has already received a longer sentence in domestic court than would be triggered by an ICC conviction232 or where domestic proceedings actually related to a more serious offense than ICC proceedings.233 It may discourage states from joining—or remaining members of—the Court if good-faith domestic prosecutions which do not reflect shielding or a breakdown of law and order are still deemed insufficient due

224

See Amnesty International 2018. International Criminal Court, Office of the Prosecutor 2018, para 237. 226 United States Department of State, Bureau of Counterterrorism 2018, p. 38. 227 Ibid., p. 44. 228 International Criminal Court, Office of the Prosecutor 2019b, paras 191, 193. 229 See Groome 2014; Guilfoyle 2019; Al Hussein et al. 2019. 230 See Buchwald 2020b. 231 See Heller 2012, pp. 100–107. 232 Ibid. 233 See Newton 2010, p. 156. 225

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to what may appear to be mere technicalities.234 And at the preliminary examination stage, when OTP has not had an opportunity to independently gather evidence, the “same conduct” test is applied to conduct which OTP may have only a limited evidentiary basis to believe even occurred. Relying on procedural concerns about domestic proceedings to override domestic primacy would also risk contradicting recent ICC precedent. The OTP noted in declining to investigate in the Iraq/UK situation that the ICC is “not a human rights body called upon to decide whether in domestic proceedings the requirements of human rights or of domestic law have been violated,” but simply tasked with determining whether domestic authorities are willing and able to prosecute the relevant offenses. As a result, OTP did not seek to open an investigation despite expressing misgivings about the British investigation into the allegations which formed the basis for its own preliminary examination.235 Finally and revealingly, OTP has not emphasized one fundamental challenge facing Nigeria which the ICC could not mitigate: the sheer number of potential defendants. In twenty years, the ICC has completed proceedings involving ten persons accused of atrocity crimes: four convicted (Al Mahdi, Katanga, Lubanga, and Ntaganda), three acquitted (Bemba, Blé Goudé, Gbagbo, and Ngudjolo Choi), and two charges vacated (Ruto and Sang). In three other cases, charges were not confirmed or were withdrawn (Abu Garda, Kenyatta, and Mbarushimana). One accused person (Ongwen) is presently appealing his conviction.236 As such, the Court does not have experience prosecuting large numbers of defendants, let alone on the scale of the mass Boko Haram trials in Nigeria. Indeed, it is impossible to imagine the Court conducting proceedings involving thousands of alleged Boko Haram members—or even of the number necessary to abduct 276 women.237 For any meaningful number of Boko Haram suspects to be convicted, positive complementarity and moving Nigerian proceedings forward will be essential even if a small number of accused persons are tried before the ICC.238

2.5.2.3

Conclusions Regarding the Preliminary Examination Process

Court watchers will likely look at Prosecutor Khan’s first steps in the Nigeria situation—and Guinea, an even more protracted preliminary examination where no final admissibility determinations have yet been made239 —as first indications of whether ICC’s era of ten-year preliminary examinations is coming to an end. Victims’ groups may be particularly interested in whether Nigeria continues to languish or is promptly 234

See Heller 2012, pp. 96, 126–127. International Criminal Court, Office of the Prosecutor 2020b, paras 9–11. 236 See International Criminal Court undated-b. 237 Reportedly, 200 Boko Haram fighters took part in the kidnapping. See Blanchard 2016, p. 7. 238 See Kielsgard and Orina 2020, p. 193. 239 A similarly prolonged preliminary examination in Colombia was concluded without an investigation in late October 2021. International Criminal Court 2021c. 235

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resourced consistent with IER recommendations for situations of its gravity. States subject to ICC jurisdiction will likely be particularly interested in how complementarity issues are assessed in Nigeria and what implications OTP’s treatment of domestic Nigerian processes will have for future situations. The Independent Expert Review criticized OTP’s delay in determining the Nigeria situation admissible.240 The Experts made specific recommendations intended to avoid further decade-long preliminary examinations, for instance by setting a default two-year timetable for completion;241 setting time limits for state cooperation;242 and moving forward to investigations unless relevant national proceedings are already ongoing, without attempting to induce states to conduct such proceedings—so-called “positive complementarity” activities.243 The Experts further recommended that OTP establish preliminary examination strategy plans and report to the Assembly of States Parties on its compliance with those plans, including as to timing.244 In that context, the outcome of any investigation in Nigeria may serve as a test of the de facto OTP policy so far: quasi-hibernating preliminary examinations during the “complementarity” phase in order to monitor domestic developments and engage in positive complementarity before deciding whether to open an investigation. OTP has not yet tried a case arising out of Georgia or Afghanistan, the other hyperextended preliminary examinations which have advanced to the investigation stage. Colombia and Guinea appear to be headed for a focus on domestic proceedings.245 As a result, the first requests for warrants; attempts to confirm charges; and eventually contested trials in situations of hyperextended preliminary examinations may well arise in Nigeria. Before those steps can be taken, Nigeria will have two opportunities to assert its primary right to try Boko Haram cases. First, Nigeria will likely be invited to file submissions in the context of the Pre-Trial Chamber’s consideration of OTP’s request to open an investigation.246 If the request is granted, Nigeria will then have the right to submit a complementarity challenge, which would postpone any OTP action by at least six months.247 Nigeria will likely seek to preserve its domestic jurisdiction over Boko Haram and the other potential investigations which might fall within the 240

International Criminal Court 2020, para 724 and fn 504. International Criminal Court 2020, R257. 242 International Criminal Court 2020, R263. 243 International Criminal Court 2020, R264. Notably, this approach might well lead to more open investigations (though fewer open preliminary examinations) at any given time, and arguably would thus increase the demands on OTP because investigations are more resource-intensive than preliminary examinations. See Buchwald 2020b. 244 International Criminal Court 2020, R261. 245 See International Criminal Court 2021d; International Criminal Court 2021c. In her farewell message, Bensouda announced the OTP is preparing to take similar action in Guinea. Bensouda 2021. 246 While Article 15 does not explicitly provide for concerned States to make submissions regarding a request to open an investigation, Chambers have commonly invited both States and other amici curiae to file such pleadings. 247 Rome Statute art 18(2). 241

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scope of the ICC situation. Practically, achieving this goal may require further honing its investigations and ensuring compliance with procedural safeguards. It may also require including atrocity crimes in charges against Boko Haram defendants, where such charges are supported by the available evidence.248 Other states interested in preserving domestic primacy at the ICC will watch such litigation closely. Should the ICC eventually hear cases against Boko Haram members, the delays during the preliminary examination may raise several practical problems. First, during delays evidence may deteriorate or be destroyed before being preserved for use in court.249 Second, other organizations—perhaps NGO’s, or Nigerian law enforcement—may interview potential witnesses for their own processes before OTP does, increasing the likelihood of inadvertent inconsistencies appearing in the trial record.250 Third, extended delays undermine deterrence and incapacitation of perpetrators and closure for victims.251 Fourth, variation in how long it takes to begin proper investigations from situation to situation may give rise to concerns about how and why such discrepancies arise. Fifth, delay may create perceptions of unfairness and may undermine the willingness of states concerned to cooperate.252 Sixth, witnesses may become frustrated and less willing to testify.253 Seventh, in a situation like Nigeria which lacks a clear temporal endpoint, extended ICC processes can encompass additional incidents unrelated to those which prompted the OTP to take jurisdiction. As the number of ICC situations increases, eliminating the guardrails provided by preliminary examination for subsequent events in countries with open situations could render the Court’s workload even more unmanageable than it is now. If the decision to move forward in Nigeria does indicate preliminary investigations will be resolved more rapidly in the future, OTP will have to determine how to manage the likelihood of a faster investigation tempo without further compromising case outcomes. Its options include reallocating staff; adopting higher gravity standards and/or more State-friendly complementarity standards; or settling for opening and then “hibernating” investigations,254 which would have many of the same challenges as longer preliminary examinations.

2.5.3 Africa—ICC Relations The Court’s next steps in the Nigeria situation may also have implications for its relationship with African states and the African Union. While that relationship has 248

Including atrocity crime charges, where appropriate, may have various investigative and policy benefits. See Pearlman and Traldi 2020. 249 E.g. International Criminal Court 2020, para 712. 250 See McKay 2004, pp. 5–6; Mahmood undated, p. 1. 251 See American Bar Association 2006. 252 International Criminal Court 2020, para 713. 253 E.g. Wald 2002, p. 220; International Criminal Court 2020, para 712. 254 See International Criminal Court 2020, para 689.

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been contentious at times, the 2017 AU-ICC controversy never quite came to a head. The AU’s call for member states to “consider” withdrawing from the ICC255 has been accompanied by only one withdrawal—Burundi, which had already given notice of its intent to withdraw when the call was issued. Gambia and South Africa reversed their decisions to withdraw.256 The attempt to set up a parallel African body under the Malabo protocol257 has not yet come to fruition. As noted earlier, Nigeria was a prominent supporter of the ICC during the 2017 African Union controversy and throughout the preliminary examination.258 Speaking at the 2020 ICC Assembly of States Parties, Attorney General Malami maintained Nigeria’s support even days after then-Prosecutor Bensouda’s December 2020 statement that the criteria for an investigation had been fulfilled.259 It is an example of successful diplomacy by the Court and a testament to the value of personal diplomacy by senior figures like President Eboe-Osuji that Nigeria remained supportive even during a preliminary examination which it had not invited and which included allegations against government forces. Indeed, Nigeria’s support for the ICC has been a bulwark in Africa. However, three weeks after Bensouda issued the Nigeria Completion Statement, Nigerian Information Minister Lai Mohammed took a very different tone. Mohammed alleged the ICC was acting like “another ‘fighting force’ against Nigeria… harassing our security forces… attempt[ing] to demoralize our security men and women as they confront the onslaught from bandits and terrorists” due to the inclusion of allegations against government forces, as well as Boko Haram and other related groups, within the scope of the future investigation.260 It is too early to say if Mohammed’s statement will reflect a lasting change in Nigeria’s support for the Court. However, Court watchers will likely carefully monitor the OTP’s next steps in Nigeria, mindful that a change in Nigeria’s relationship with the Court could re-energize African withdrawal or regionalization movements.

255

African Union (Assembly of the Union), Decision on the International Criminal Court (ICC), Addis Ababa 1 February 2017, EX.CL/1006 (XXX), pp. 5–6. 256 Pillai 2018. Burundi withdrew while subject to a preliminary examination, which became a full investigation before its withdrawal took effect. See Situation in the Republic of Burundi, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Burundi, 25 October 2017, ICC-01/17-X-9. 257 See African Union 2019; Chella 2021. See also Chap. 3 by Editimfon J. Ikpat on the African regional court in this book. 258 See above, Sect. 2.3.3. 259 Malami 2020. 260 Clowes (2021) https://www.msn.com/en-xl/africa/nigeria/nigeria-says-war-crimes-probe-ham pers-fight-against-insurgents/ar-BB1cthV2. Accessed 29 June 2021.

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2.6 Conclusion The ICC process in Nigeria—and the next steps taken by a new Prosecutor—will help shape the ICC’s approach to complementarity and gravity, and its relations with the African Union, for years to come. Nonetheless, after a decade-long preliminary examination and six months (thus far) of limbo without a formal request to investigate, international justice for Boko Haram’s victims seems no closer than it did in April 2014 when the Chibok schoolgirls were first abducted.

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Pham J (2012) Africa Security Brief: Boko Haram’s Evolving Threat. Africa Center for Strategic Studies 20:5. https://africacenter.org/wp-content/uploads/2016/06/ASB20EN-BokoHaram%E2%80%99s-Evolving-Threat.pdf. Accessed 24 June 2021 Pillai P (2018) The African Union, the International Criminal Court, and the International Court of Justice: At the Fault Lines of International Accountability. American Society of International Law 22: 10. https://www.asil.org/insights/volume/22/issue/10/african-union-internationalcriminal-court-and-international-court. Accessed 24 June 2021 SáCouto S, Cleary K (2008) The Gravity Threshold of the International Criminal Court. Am. U. Int’l. L. Rev. 23: 807, 828–829. https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi? article=1037&context=auilr. Accessed 9 January 2022 Souris R (2021) What is so wrong with using child soldiers? The International Journal of Human Rights 26: 74–99. https://www.tandfonline.com/doi/full/10.1080/13642987.2021.189 5765. Accessed 24 June 2021 Ssenyonjo M (2018) State Withdrawal Notifications from the Rome Statute of the International Criminal Court: South Africa, Burundi and the Gambia. Criminal Law Forum 29: 63–119. https:// doi.org/10.1007/s10609-017-9321-z. Accessed 9 January 2022 Stanton G (2020) Genocide Emergency: Nigeria, Genocide Watch. https://www.genocidewatch. com/single-post/2020/09/23/genocide-emergency-nigeria. Accessed 24 June 2021 Stewart S (2011) The Rising Threat from Nigeria’s Boko Haram militant group. Stratfor, 13 November 2011. https://worldview.stratfor.com/article/rising-threat-nigerias-boko-haram-mil itant-group. Accessed 24 June 2021 Strayer A (2019) Protecting Rights “In Small Places”: Why Depriving Girls of the Right to Education is Gender-based Persecution and a Crime against Humanity. Geo. J. Int’l L. 50: 947, 977–985. https://articleworks.cadmus.com/geolaw/zsx00419.html. Accessed 25 June 2021 Umeagbalasi E (2020) Nigeria is a Killing Field of Defenseless Christians. Genocide Watch. https://www.genocidewatch.com/single-post/2020/04/13/nigeria-is-a-killing-field-of-def enseless-christians. Accessed 24 June 2021 United Nations General Assembly Security Council (2020) Children and Armed Conflict: Report of the Secretary-General. UN Doc. A/74/845–S/2020/52. https://www.un.org/sg/sites/www.un.org. sg/files/atoms/files/15-June-2020_Secretary-General_Report_on_CAAC_Eng.pdf. Accessed 9 January 2022 United Nations Human Rights Council (2021) Written statement* submitted by Jubilee Campaign, a non-governmental organization in special consultative status. UN Doc. A/HRC/46/NGO/99. https://undocs.org/pdf?symbol=en/A/HRC/46/NGO/99. Accessed 25 June 2021 United Nations Office of the High Commissioner for Human Rights (2015) Violations and abuses committed by Boko Haram and their impact on human rights in the countries affected: Report of the United Nations High Commissioner on Human Rights. UN Doc. A/HRC/30/67. https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session30/Docume nts/A-HRC-30-67_en.docx. Accessed 25 June 2021 United Nations Security Council (2015) Statement by the President of the Security Council. UN Doc. S/PRST/2015/12. https://unoca.unmissions.org/sites/default/files/s_prst_2015_12_0. pdf. Accessed 29 June 2021 United Nations Security Council (2017) Resolution 2349. UN Doc. S/RES/2349. http://unscr.com/ en/resolutions/2349. Accessed 25 June 2021 United Nations Security Council (2020) Children and armed conflict in Nigeria: Report of the Secretary-General. UN Doc. S/2020/652. https://digitallibrary.un.org/record/3873109?ln=en% 23record-files-collapse-header. Accessed 24 June 2021 United Nations Security Council (2021) Conflict-Related Sexual Violence: Report of the SecretaryGeneral, UN Doc. S/2021/312. https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_2021_312.pdf. Accessed 24 June 2021 U.S. Commission on International Religious Freedom (2021) Annual Report 2021. https://www. uscirf.gov/sites/default/files/2021-04/2021%20Annual%20Report.pdf. Accessed 24 June 2021

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United States Department of State (2013) Terrorist Designations of Ansar al-Dine. https://20092017.state.gov/r/pa/prs/ps/2013/03/206493.htm. Accessed 25 June 2021 United States Department of State (2020) Nigeria 2019 Religious Freedom Report. https://www. state.gov/wp-content/uploads/2020/05/NIGERIA-2019-INTERNATIONAL-RELIGIOUS-FRE EDOM-REPORT.pdf. Accessed 29 December 2021 United States Department of State (2021a) Nigeria 2020 Religious Freedom Report. https://www. state.gov/wp-content/uploads/2021/05/240282-NIGERIA-2020-INTERNATIONAL-RELIGI OUS-FREEDOM-REPORT.pdf. Accessed 24 June 2021 United States Department of State (2021b) Secretary of State’s Determinations under the International Religious Freedom Act of 1998 and Frank R. Wolf International Religious Freedom Act of 2016. Federal Register 86: 2718–2719 United States Department of State, Bureau of Counterterrorism (2018) Country Reports on Terrorism 2017. https://www.state.gov/wp-content/uploads/2019/04/crt_2017.pdf. Accessed 25 June 2021 United States Department of State, Bureau of Counterterrorism (2019) Country Reports on Terrorism 2018. https://www.state.gov/wp-content/uploads/2019/11/Country-Reports-on-Terror ism-2018-FINAL.pdf Accessed 24 June 2021 United States Department of State, Bureau of Counterterrorism (2020) Country Reports on Terrorism 2019. https://www.state.gov/wp-content/uploads/2020/06/Country-Reports-on-Terror ism-2019-2.pdf. Accessed 24 June 2021 United States Department of State, Bureau of Counterterrorism (2021) Designated Foreign Terrorist Organizations. https://www.state.gov/foreign-terrorist-organizations/. Accessed 25 June 2021 United States Department of State, Bureau of Democracy, Human Rights and Labor (2021) Nigeria 2020 Human Rights Report. https://www.state.gov/wp-content/uploads/2021/03/NIG ERIA-2020-HUMAN-RIGHTS-REPORT.pdf. Accessed 25 June 2021 United States Department of State, Office of the Spokesperson (2013) Terrorist Designations of Boko Haram and Ansaru. https://2009-2017.state.gov/r/pa/prs/ps/2013/11/217509.htm. Accessed 25 June 2021 Wald P (2002) Dealing with Witnesses in War Crimes Trials: Lessons from the Yugoslav Tribunal. Yale Hum. Rts. & Dev. L. J. 5: 217, 220. https://digitalcommons.law.yale.edu/cgi/viewcontent. cgi?article=1032&context=yhrdlj. Accessed 29 June 2021 Weiner P (2013) The Evolving Jurisprudence of the Crime of Rape in International Criminal Law. B. C. L. Rev. 54: 1207, 1217–1219. https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?art icle=3321&context=bclr. Accessed 28 June 2021

Arthur Traldi is Senior Counsel at the Brandeis Center for Human Rights Under Law, a senior consultant with Lexpat Global Services, an adjunct professor at Villanova University Charles Widger School of Law, and Senior Fellow at the American University Center on Technology, Law, and Security. He has served at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. While all errors are the author’s, Aubrey Lay, Megan O’Connor, Mitchell Harrison, Nick Berklan, and Zoha Siddiqui provided valuable research assistance, and Amanda Grafstrom and Adam Pearlman provided thoughtful comments on draft versions of this chapter.

Chapter 3

Is an African Regional Court a Viable Alternative to the International Criminal Court? A Neutral View Editimfon J. Ikpat

Contents 3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Internationalization of Criminal Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.1 Post-World War I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.2 Post-World War II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.3 Post-Cold War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.4 The International Criminal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Regionalization of ‘International’ Criminal Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 The Malabo Protocol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.1 The African Regional Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.2 Roadmap to the African Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5 Jurisdiction of the African Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.6 The African Regional Court; A Viable Alternative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.6.1 Closing the Gap . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.6.2 Burden-Sharing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The African Union Assembly of Head of States and Governments, in June 2014, adopted the Malabo Protocol empowering the African Court of Justice and Human Rights with international criminal jurisdiction. While this is a welcome development in the pursuit of criminal justice for human rights violations in Africa, it has however been overshadowed by academic indifference, mostly with regards to discrepancies that may arise in the jurisdictional relationship between the already existing International Criminal Court and the Proposed African Criminal Court. As such, while the coming into force of the African Criminal Court still awaits fruition, its possibility has garnered scholarly debates supporting and opposing the African Criminal Court having the mandate to prosecute international crimes. This chapter explores relevant provisions of the Malabo protocol, and the ideal of regionalizing the enforcement of international criminal law. Extrapolating from these, the chapter E. J. Ikpat (B) Public International Law and Policy Group (PILPG) Netherland Office, Amsterdam, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 T. B. K. Sendze et al. (eds.), Contemporary International Criminal Law Issues, https://doi.org/10.1007/978-94-6265-555-3_3

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addresses from a neutral perspective whether the proposed African Regional Court is a feasible option within the existing framework of international criminal justice. Keywords International criminal law · Regional criminal law · International Criminal Court · African Criminal Court · Nuremberg Principles · Alternative jurisdiction

3.1 Introduction On 27 June 2014, The African Union (AU) Assembly of Heads of State and Government adopted the Protocol on Amendment to the Protocol on the Statute of the African Court of Justice and Human Rights (Protocol).1 The Protocol not only incorporates the unanimously accepted international crimes as codified in the Rome Statute, but it also includes crimes believed to be the root causes of violence and catalyst to the commission of ‘core’ international crimes in Africa.2 As a result, the Protocol proscribes fourteen international crimes, inclusive of genocide, crimes against humanity, war crimes and the crime of aggression, for which individual and corporate criminal liability can be incurred.3 To give effect to the provisions of the Protocol, the Protocol established an impartial, efficient and autonomous international criminal chamber within the existing framework of the African Court of Justice and Human Rights (African Regional Court) to investigate situations wherein these crimes occur as well as hold accountable persons—natural or legal—who are alleged to having committed the proscribed acts.4 With the adoption of the Protocol, the prospect towards establishing an African Regional Court has been set into motion. If the required number of ratifications is attained, the African Regional Court will be the first ever regional court with jurisdiction over international crimes including but not limited to the crimes that fall within the jurisdiction of the International Criminal Court (ICC). Although it can be presumed that the framework of the African Regional Court is substantially different from that of the ICC, in reality, a perusal of the Protocol and its provisions against that of the Rome Statute reveals that the proposed mandate of the African Regional Court is identical to that of the already functioning ICC. It can therefore be assumed that the African Regional Court would function as a model of the ICC, enforcing international criminal law in Africa. In light of this development, the response to the idea of a regional mechanism having international criminal jurisdiction has not largely been met with great enthusiasm. Scholars have expressed different views about the Protocol. Most scholars

1

African Union Assembly 2014. African Union Assembly 2013c. 3 Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, 27 June 2014 (Malabo Protocol). 4 Murungu 2011, pp. 1067–1088. 2

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view the African Regional Court as a rebel court.5 This notion of rebellion is founded on the anti-ICC sentiments projected by the AU. As a result, it has been presumed that the rationale behind the Court is to shield the African continent against further scrutiny by the ICC.6 It has equally been put forth that there is bound to be conflict between the African Regional Court and the ICC given that they will be operating within the same jurisdictional scope.7 Consequently, instead of complementing the ICC, the African Regional Court would rather frustrate the mandate of the ICC. Against this backdrop, the chapter seeks to add to the existing scholarship on the topic of the ICC and the African Regional Court. However, the chapter does not take a determinative stance in the different opinions on the proposed regional court as role model or rebel court, but rather charts a new course in examining whether the African Regional Court would serve as a viable alternative for the ICC in the investigation and prosecution of international crimes in Africa. This neutral perspective is hinged on the gradual shift towards the acknowledgement of regional actors in the field of international criminal law. Structurally, the chapter is organised as follows. Section 3.2 provides a background on the evolution of international criminal law and justice, examining the history of international criminal law and justice, the need for international trials for mass atrocities committed from the post-World War I era up until the current framework of the International Criminal Court. Section 3.3 examines the evolving idea towards the role of regional organizations and actors in the adjudication of international crimes. Section 3.4 examines the breakout of the norm by regional actors as seen in the case of the African Union, the adoption of the Malabo Protocol establishing the first ever regional jurisdiction to deal with international crimes. It examines the event leading to the adoption of the Protocol and gives a summary of the provisions of the Protocol. Section 3.5 addresses the jurisdiction of the African Court. Section 3.6 addresses from a neutral viewpoint the central focus of the chapter: whether the African Court is a viable alternative to the ICC in the investigation and prosecution of international crimes in Africa.

3.2 Internationalization of Criminal Justice The earliest prosecution for violations of the laws and customs of war were conducted by national courts. However, these were not effective as the standard practice after war was either to exchange prisoners and/or grant de jure or de facto amnesties to those who have committed violations of the laws and custom of war.8 Also, due to state involvement in the commission of mass atrocities or for fear of escalated violence 5

Ibid., pp. 1067–1088. See also Van den Herik and van Sliedregt 2017; Abass 2013b, pp. 933–946; Du Plessis 2012. 6 Ibid. See further Ankumah 2016; Imoedemhe 2015, pp. 74–105. 7 Du Plessis 2012. 8 Schabas 2017, p. 1; Stigen 2010, p. 185.

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by perpetrators, states absolved themselves from the prosecution of international crimes.9 This gap propelled the need to marry international law with criminal prosecution in order to establish a stronger system for the enforcement of international law, thus the need for international trials through an established international jurisdiction. The first effort to create a global criminal court can be traced to Gustave Moynier, one of the founders of the International Committee of the Red Cross. Moynier in 1872 proposed a draft statute for an international criminal court to prosecute breaches of the 1864 Geneva Convention and other humanitarian norms.10 However, the idea and application of international criminal justice over time has not been dormant. The field of international criminal law has evolved in specific historical moments; the years following World War I and II, the end of the Cold War, and event culminating in the adoption of the internationally recognised treaty—Rome Statute—codifying the substantive and procedural application of international criminal law and justice.

3.2.1 Post-World War I After the First World War, there was an increased desire for the criminal prosecution of persons considered to be responsible for the war. The desire to prosecute was not only limited to the violations of the laws and customs of war, but also to prosecute the waging of war itself in violation of international treaties.11 In response to public opinion for the prosecution of war crimes, the Allied and Associated Powers (AAP) created a Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties to inquire into the causes of and responsibilities for the war. The Commission had a four point mandate to inquire into the responsibility for the causes of the war, “the fact relating to violations of the laws and customs of war committed by the central powers, the degree of responsibility that should attach to individual members of the enemy force however highly place, and the constitution and procedure for a tribunal to try such offences”.12 The Commission’s formal report recommended the establishment of a High Tribunal to try enemy offenders to be composed of persons appointed by the AAP.13 Although the Tribunal was to decide on its procedure, the applicable law consisted of “the principles of the law of nations as they result from the usages established among civilised peoples, from the laws of humanity and from the dictates of public conscience”.14 Following the works and recommendations of the Commission, the AAP concluded the Treaty of Versailles.15 A key component towards the dispensation of 9

Ibid. Schabas 2017, p. 2; Lewis 2014, p. 27; Kersten 2013. 11 Schabas 2017, p. 3; Bassiouni 2020, p. 252. 12 Bassiouni 2020, p. 253. 13 Ibid., pp. 254, 262. 14 Ibid., p. 262. 15 Ibid., p. 265. 10

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international criminal justice as seen in the provisions of the Treaty was the constitution of a special tribunal to try William II of Hohenzollern, a former German Emperor for a supreme offence against international morality and the sanctity of treaties.16 However, William fled to Holland, which refused to extradite him on the grounds that a “supreme offence against international morality and the sanctity of treaties” did not constitute a valid legal basis for extradition; and that charging conduct of a political nature as a crime was, non-existent in Dutch law or international law.17 Building on the Treaty of Versailles, the 1920 Treaty of Sèvres equally saw the AAP create a Special Tribunal to try individuals accused of having committed acts in violation of the laws and customs of war.18 However, it was replaced by the 1923 Treaty of Lausanne containing no war crimes clauses.19 While the early attempts to create post-war international war crimes tribunals were not successful, in the years that followed, international lawyers were motivated to explore the prospect of prosecuting the violations of the laws and customs of war on an international level.20 Major contributions to the idea of an international criminal justice system were made by the International Law Association (ILA) and the Association Internationale de Droit Penal (AIDP). The ILA primarily focused on war crimes. Its draft statute for an international criminal court centred on the repression of war crimes. This was influenced by the drafter Hugh H. L. Bellot who thought that the prosecution of individuals for war crimes be carried out by an impartial international tribunal.21 Bellot’s belief was founded on the pre-conviction that such a tribunal would not be susceptible to biased judgement and would bring about the uniformity of sentencing as well as “uphold international law above national law and strike the public imagination to a degree to which a national court could not attain”.22 Consequently, the ILA proposed an international criminal court having jurisdiction over both individuals and states for war crimes—violations of the laws and customs of war as contained in treaties, conventions, declarations, and customary principles “generally accepted as binding by civilized nations”—and violations of international obligations of a penal character.23

16

Treaty of Peace between the Allied and Associated Powers and Germany, 28 June 1919, Articles 227–228. 17 Bassiouni 2020, p. 280. 18 Treaty of Peace between the Allied and Associated Powers and Turkey, 10 August 1920, Articles 226–230. 19 Treaty of Lausanne between Principal Allied and Associated Powers and Turkey, 24 July 1923. See Bassiouni 2020, p. 287; Schabas 2017, p. 4. 20 European international jurists and lawyers tried establishing an international criminal court during the 1920s. This was motivated by the rejection of an international criminal court by the Council of Four, the discouraging results of domestic prosecution for war crimes and the desire to complete the League system with an international criminal jurisdiction. See Lewis 2014, p. 78. 21 Ibid., pp. 95–97. 22 Ibid., p. 97. 23 Ibid., p. 96.

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On the other hand, the AIDP focused on the prevention of war. Equally influenced by the perspective of its lead scholar, Vespian V. Pellet, who wanted a politically neutral international criminal court that would complement the League of Nations and prevent wars of aggression.24 The AIDP resolved that a criminal chamber within the then Permanent Court of International Justice should prosecute both individuals and states for unjust aggressive wars and violations of international law, and also criminal cases where the jurisdiction of states was in dispute.25 In its final draft, the AIDP proposed that the court prosecute other types of acts—war crimes, crimes which needed to be removed from national courts so that they could be prosecuted objectively, and crimes and offences committed in peacetime and liable to disrupt peaceful relations between states.26 The combined efforts of both organizations culminated in the adoption of the Convention for the Prevention and Punishment of Terrorism in 1937 by the League of Nations.27 A Protocol or Annex to the Convention provided for the creation of an international criminal tribunal, however the treaty never came into force due to insufficient ratification by states.28

3.2.2 Post-World War II The end of the Second World War reinforced the need for a genuine global effort to address international crimes.29 This need was borne out of the flagrant and unimaginable commission of crimes that shocked the international community. The postSecond World War era saw the victorious allied powers take an unprecedented step towards the prosecuting of the defeated axis leadership for crimes under international law. The atrocities committed during the Second World War compelled the Allied Nations to seek international prosecutions for these crimes. As a result, proposals to create an international criminal court returned to the international debate. At the centre of the debate was the International Commission for Reconstruction and Development (ICRD) and the London International Assembly (LIA), both of which were in support of establishing an international court.30 The ICRD looked at the possibility of establishing a permanent international criminal court to judge war crimes where the impartiality of the municipal law could not be guaranteed.31 The LIA proposed the establishing of an international criminal court to adjudicate on 24

Ibid., p. 79. Ibid., p. 108. 26 Ibid., p. 110. 27 Schabas 2017, p. 5 and Schabas 2014, pp. 172–173. 28 Ibid. 29 Rosen 2017. 30 Schabas 2014, p. 173. 31 Von Lingen 2014, p. 60. 25

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crime that do not fall within any national jurisdiction, crimes that are within national jurisdiction but the state concerned do not wish to prosecute, crimes committed in more than one national jurisdiction and crimes committed against nationals of different countries.32 While the discussions were still underway in the ICRD and the LIA for the establishment of an international court, the Allied Powers established the United Nations War Crimes Commission (UNWCC),33 thus shifting the forum of discussion34 . Further to its inherent mandate,35 the Commission examined the possibility of establishing an international court for war crimes. This culminated in the final draft of a ‘Convention for the Establishment of a United Nations War Crimes Court’ on 26 September 1944.36 The court was to have “jurisdiction over the trial and punishment of any person—irrespective of rank or position—who has committed, or attempted to commit, or has ordered, caused, aided, abetted or incited another person to commit, or by his failure to fulfil a duty incumbent upon himself committed, an offence against the laws and customs of war”.37 While the UNWCC Enforcement Committee38 was discussing the establishment of an international or treaty court, it had become clear that the creation of such a court would be subject to long delays and it was advisable that some interim tribunal be set up, which could operate immediately.39 The London Conference attended by the United Kingdom, France, United State and the Soviet Union laid the foundation for international criminal prosecutions.40 The Agreement to Prosecute and Punish Major Criminals of the European Axis provided for the creation of an International Military Tribunal for the trial of war criminals whose offences have no particular geographical location; whether they be accused individually or in their capacity as members of organisations or groups or in

32

Ibid., pp. 18–19. The St. James Declaration of 1942 established the United Nations War Crimes Commission, while the scope of its mandate was determined by the Moscow Declaration of 1943. See Ellis 2014, p. 192. 34 This was made possible due to the continuity of its members, the forum of discussion for the establishment of an international court to try war criminals shifted to the UNWCC. See Von Lingen 2014, pp. 66–67. 35 The UNWCC was tasked with the mandate to: (i) collect, investigate and record evidence of war crimes, identifying where possible the individuals responsible; (ii) report to the Government concerned cases where the material available appeared to disclose a prima facie case; (iii) act as a Committee of Legal Experts charged with advising the Governments concerned upon matters of a technical nature, such as the sort of tribunals to be employed in the trial of war criminals, the law to be applied, the procedure to be adopted and the rules of evidence to be followed. See Ellis 2014, p. 94. 36 United Nations General Assembly 1949, p. 20. 37 Ibid. 38 The Enforcement Committee was set up for “the detection, apprehension, trial and punishment of suspected war criminals”. Ellis 2014, p. 194. 39 Schabas 2014, p. 183. 40 Agreement for the prosecution and punishment of the major war criminals of the European Axis, United Nations, 8 August 1945 (London Agreement). 33

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both capacities after consultation with the Control Council for Germany.41 Hence the International Military Tribunal for Nuremberg (Nuremberg Tribunal) was established in 1945. Subsequently, in 1946, the International Military Tribunal for the Far East was established by a special proclamation issued by the Supreme Allied Commander of the Far East for the prosecution of Japanese war criminals.42 The Tribunals had jurisdiction over crimes against peace, war crimes and crimes against humanity. These Tribunals laid down the basic foundations for the development of international criminal justice, breaking the monopoly of domestic jurisdiction over the adjudication of “international crimes”—war crimes—and expressly acknowledging the concept of individual criminal liability and the non-recognition of official capacity.43 Consequently, the collection of rulings of the International Military Tribunals (IMTs) became known as the Nuremberg principles, shaping the dispensation of international criminal justice. In the immediate aftermath of the IMTs, the need was felt to establish a permanent international criminal court, potentially entrusted with the competence to pursue and try persons accused of international crimes committed at anytime and anywhere in the world. As it was maintained that only a universal system of criminal justice together with national judiciaries would guarantee a fair international criminal justice system for preventing impunity for international crimes.44 The idea of international criminal law and justice was an ‘unchartered water’, and the United Nations General Assembly (UNGA) took steps towards its development and codification. The Assembly “affirmed” the principles of international law recognized by both the Charter and the Judgement of the Nuremberg Tribunal.45 Subsequently, the task of formulating the principles of international law recognized in the Charter of the Nuremberg Tribunal, the judgement of the tribunal, and the Draft Code of Offences against the Peace and Security of Mankind was entrusted with the International Law Commission (ILC).46 In 1950 the ILC adopted a report on the “Principles of International Law Recognised in the Charter of the Nuremberg Tribunal and in the Judgement of the Tribunal”.47 Also, the Committee on International Criminal Jurisdiction was set up to prepare a draft statute for an international criminal Court. The Committee produced a text in 1951 which was subsequently revised in 1953.48 Nevertheless, the creation of a permanent international criminal court was not immediately actualised as the cold war impeded the task of the ILC.49 41

Ibid., Article 1. The International Military Tribunal for the Far East; Special proclamation by the Supreme Commander tor the Allied Powers at Tokyo, 19 January 1946 (Tokyo Charter). 43 London Agreement, Article 6. 44 Pedrazzi 2014. 45 Boot 2002, p. 310 and Sohn 1950, p. 505. 46 Boot 2002, p. 312. 47 Sohn 1950, pp. 505–508. However, Boot is of the view that the United Nations General Assembly did not formally adopt by resolution, see Boot 2002, p. 314. 48 Sohn 1950, p. 505; Boot 2002, p. 310. 49 Schabas 2017, p. 9. 42

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3.2.3 Post-Cold War The idea of a system of international criminal justice re-emerged after the end of the cold war. While negotiations were ongoing for the establishment of a permanent international criminal court, the flagrant commission of widespread international humanitarian law violations and the failed attempts to resolve the conflict led the United Nations Security Council (UNSC) to set up ad hoc tribunals in accordance with its inherent powers embedded in Chapter VII of the United Nations Charter. In reacting to the conflict in former Yugoslavia, the UNSC in its Resolution 780 of 6 October 1992 set up a Commission of Expert to investigate whether there was evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian Law committed in the territory of former Yugoslavia.50 Acting on the Report of the Commission of Expert which echoed the call for the creation of an ad hoc international tribunal fashioned after the Nuremberg Tribunal to hold individuals criminally responsible for the atrocities committed,51 the UNSC in its Resolution 827 of 25 May 1993 established the International Criminal Tribunal for the former Yugoslavia (ICTY) for the prosecution of persons responsible for such serious violations.52 Similarly, in response to the to the Rwandan genocide, the UNSC acting on the report of the Commission of Experts concerning the killings in Rwanda, in its Resolution 955 of 8 November 1994 established the International Criminal Tribunal for Rwanda (ICTR) for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring states.53 Building on the affirmed Nuremberg principles of individual criminal responsibility and the non-recognition of official position, as well as borrowing from the ongoing work of the ILC on the draft statute for a permanent international criminal court and the code of crimes, the Statutes of the ad hoc tribunals defined the crimes to be adjudicated therein and equally established the procedure before the courts.54 As such the tribunals had jurisdiction over genocide, crimes against humanity and war crimes, confined within the territory of former Yugoslavia and Rwanda. The workings of the tribunals had a significant impact on the substantive and procedural development of international criminal law. Though limited by its narrow jurisdiction, the relative success of the tribunals served as further inspiration and refuelled the need for the prospect of a permanent international criminal court.

50

United Nations Security Council 1992, para 2. Bassiouni 1994, p. 280. 52 United Nations Security Council 1993, para 10. 53 United Nations Security Council 1994b, para 8 and United Nations Security Council 1994a, para 10. 54 Schabas 2017, p. 12. 51

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3.2.4 The International Criminal Court Though its progress was impeded by the cold war, the question of an international criminal court came back to the agenda of the UN in 1989 following the suggestion of Trinidad and Tobago for the creation of a specialized international criminal court to deal with the issue of drug trafficking.55 This led to the UNGA asking the ILC to resume its work on drafting a statute. Predicated on the earlier work of the ILC, the Draft Statute for an International Criminal Court was submitted to the General Assembly in 1994. The ILC also recommended that an international conference of plenipotentiaries be convened to ‘study the Draft Statute and conclude a convention on the establishment of an international criminal court’.56 Prior to the international conference, the UNGA in its resolution, established an Ad Hoc Committee on the Establishment of an International Criminal Court (AHCom) to review the major substantive and administrative issues arising out of the Draft Statute and consider arrangements for the convening of a diplomatic conference.57 The AHCom had two sessions in 1995 and produced a report which served as the basis for the UNGA to establish the 1996 Preparatory Committee on the Establishment of an International Criminal Court (PrepCom).58 The PrepCom had the mandate to further discuss the major substantive and administrative issues arising out of the Draft Statute prepared by the ILC and prepare a widely acceptable consolidated text of a convention for an international criminal court for consideration by a conference of plenipotentiaries.59 Based on the Preparatory Committee’s draft text, the UNGA convened the United Nations Conference of Plenipotentiaries on the Establishment of the ICC to finalize and adopt a convention on the establishment of an ICC. At the later convening of an international conference in Rome in 1998, the Rome Statute was adopted birthing the ICC. Thus, affirming that the most serious crimes of concern to the international community as a whole must not go unpunished, determined to put an end to impunity through effective prosecution for the perpetrators of these crimes and also contributing to the prevention of such crimes,60 the ICC entered into force on 1 July 2002 with the mandate of enforcing international criminal justice globally. To this end, the ICC has complementary jurisdiction in situations where genocide, crimes against humanity, war crimes and, crime of aggression have been committed on the territory of a state party or a state that has accepted the jurisdiction of the court or by a state party national on or after 1 July 2002.61 The jurisdiction of the Court can only be triggered by a 55

Cassese et al. 2002, p. 16. Ibid., p. 36. 57 Ibid., p. 37. 58 Ibid., pp. 37, 45–46. 59 Cassese et al. 2002, p. 46. 60 United Nations Treaty Collection, opened for signature (17 July 1998), entered into force (1 July 2002). Rome Statute of the International Criminal Court. See preamble to the Statute. 61 Ibid., Article 12. 56

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state party referral, UNSC referral, proprio motu powers of the prosecutor, and by extension a state declaration accepting the jurisdiction of the court.62 The establishment of the ICC is seen to be the most notable step in the global adjudication of international crimes. The court signals the culmination of the effort towards the internationalization of criminal justice. It is therefore without doubt that the ICC is to play a highly significant role since the prospects of the court represents a framework aimed at enforcing and reinforcing the principles of international criminal law, as well as bringing to accountability individuals responsible for gross violations of international law constituting criminal liability. Nevertheless, with the continuous evolution of international criminal law, there is a gradual shift towards the acknowledgement of regional actors in the prosecution of international crimes.

3.3 Regionalization of ‘International’ Criminal Justice The notion of ‘regional criminal justice’ is understood in an abstract sense, as there is yet to be a concrete definition. However, there is the general understanding that regions are more limited geographically. It is seen to be the level between the international and domestic levels, made up of a limited number of states having some geographical association and collectively pursuing a common goal.63 This conceptualization is reflected in Joseph Nye’s definition of regions as “consisting of a group of states linked together by both a geographical relationship and a degree of mutual interdependence”.64 Though controversies may arise as to the preciseness of the geographical connections of regions due to the plethora of regional and subregional institutions, however, the fundamental factor is to focus on states that have a formal agreement to act collectively in pursuit of a common goal. Consequently, the idea of regions, regionalism and/or regionalization do not exist in vacuity, and there is a compelling argument for regions to be examined as a distinct level from the international level.65 Flowing from this argument, the regionalization of international criminal justice could be seen as a distinguished level from international jurisdictions in the enforcement of international criminal law. While regional arrangements are currently central features of human rights law, international investment and trade law,66 the same cannot be said in the field of international criminal law, as it is yet to fully engage with the regional level. This disengagement could be due to the perceived normative framework of regional bodies under international law. First, regional frameworks largely relate to state responsibility. In other words, the jurisdiction of regional bodies in the sphere of international 62

Ibid., Articles 12(3), 13. Burchill 2010, p. 209. 64 Nye 1968. 65 Burchill 2010, p. 209. 66 Bantekas and Oette 2016, pp. 235–294; Chalmers and Slupska 2019, pp. 169–197; Schill 2017, pp. 367–369; Leal-Arcas 2010. 63

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law is limited to state actors, as it concerns the obligations of states emanating from specific human right treaties. Where a state has breached its human rights obligations, the regional body provides redress to the victims of such violations.67 Second, the regional level is attuned to transnational criminal law which deals with treaty crimes for which suspects are not prosecuted regionally, but by domestic criminal jurisdictions.68 Consequently, most regional jurisdictions affecting fundamental principles of international law are not criminal in nature. Regional bodies through historical precedents are “emphatically not empowered to adjudicate claims against individuals for actions that in addition to being human rights violations may constitute crimes as well”.69 This feature is deemed to be the underlining differentiating factor between regional bodies and international criminal tribunals which are organs of individual criminal responsibility ‘emphatically empowered to preside over human right violations by non-state actors’.70 This static reasoning has led to the enforcement of international criminal law at two focal points; at the international level through the delegation of authority by states to international criminal tribunals and courts, and at the national level, through the delegation of authority by the international community to the domestic courts.71 As a result it has inadvertently become settled practice that the prosecution of international crimes is solely for the domestic and international actors, to the exclusion of regional actors. However, with the continuous evolvement of international criminal law, and the normative appeal of a regional approach to international criminal justice,72 there has been a gradual shift towards the acknowledgement of regional actors in the prosecution of international crimes. Burke-White in his ‘preliminary exploration of the regionalization of international criminal law enforcement’ not only theorized the regionalization of international criminal justice, but also suggested four different approaches to the regionalization of international criminal justice.73 The first approach towards the regionalization of international criminal law is the actual establishment of a regional criminal court having jurisdiction to adjudicate over international crimes.74 The court would be created by a treaty concluded by prospective member state of the region where the court would seat.75 Though the framework of the regional criminal court would be modelled after the existing ICC, its jurisdiction ratione temporis would be the determining factor, as this limits the jurisdiction of the court to a particular region. Although it is argued that the ad-hoc tribunals could be considered as “regional” jurisdictions dispensing international criminal justice, these tribunals have their jurisdictions limited to events in a particular country or 67

Méndez 2009. Cordini 2018, pp. 261–276. 69 Méndez 2009. 70 Emphasis added. 71 Burke-White 2003, p. 733. 72 Ibid., pp. 733–743. 73 Ibid., pp. 748–755. 74 Ibid., p. 749. 75 Ibid. 68

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countries, depending on the specificity of a particular case.76 Also, when placed on the same pedestal with human rights mechanisms at the regional levels, these established international criminal tribunals cannot be equated to regional courts having jurisdiction over international crimes. Nevertheless, in the circumstance where the establishment of an independent regional criminal court is not feasible, there is also the possibility of creating a regional criminal court within the auspices of already existing regional mechanisms.77 It is without any doubt that there exist viable regional mechanisms around the globe. There is the European Court of Justice and European Court of Human Rights in Europe, the Inter-American Court of Human Rights for the Organization of African States, and in Africa, the African Court of Human and People’s Rights, African Court of Justice and Human and People’s Rights and/or the African Court of Justice and People’s Rights—depending on which court enters into force first. In such situations, amendments could be made to the enabling treaties of these mechanisms vesting them with jurisdiction over international crimes committed within the territory of its member states or by a national of its member states. The second approach for regionalizing international criminal justice, is for the ICC to sit regionally.78 Article 3 of the Rome statute establishing the ICC allows for the court to sit at another location apart from the seat of the Court in The Hague.79 It can therefore be interpreted that the ICC can sit regionally. According to Article 3, this is only possible where it is considered desirable for the court to do so. Without any further guidance in the Statute on what could constitute the ‘desirability’ of the court to sit elsewhere, credence can be given to the Report on the Basic Principles Governing a Headquarters Agreement to be Negotiated between the Court and the Host Country. The Report states that in determining whether the court is to sit outside The Hague, the ICC is to consider the practicality of such an arrangement and whether it would be in the interests of justice to do so.80 The precondition of the ‘interest of justice’ is also reiterated in the Rules of Procedure and Evidence of the Court.81 The decision on the ‘practicability of arrangements’ and ‘interest of justice’, with regards to whether the Court can sit elsewhere rest on the presidency of the court.82 Therefore, where the decision of the presidency of the court allows, the ICC may sit as a criminal mechanism in the region where international crimes were or are being committed. That notwithstanding, one important factor is that the presidency will have to consult with a state in the region where the court intends to sit at least for the purposes of obtaining evidence and conducting the trial in that state.83 Though not in a regional context, the ICC has considered holding part of the proceedings in the

76

Alter 2014. Burke-White 2003, p. 749. 78 Ibid., p. 750. 79 This provision can be read in conjunction with the Rome Statute, Article 62. 80 See Burke-White 2003, p. 751. 81 Rules of Procedure and Evidence of the International Criminal Court 2000, rule 100(1), (RPE). 82 Rome Statute, Article 38(3). See also Burke-White 2003, p. 751. 83 RPE, rule 100(3). 77

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Lubanga case in the Democratic Republic of Congo, hence, this is not a far-reaching approach.84 The third approach towards the regionalization of international criminal justice is the regional exercise of the universality principle.85 Universal jurisdiction is a legal principle under international law which allows for criminal proceedings against internationally recognised crimes by any sovereign state regardless of the location of the crime, the nationality of the perpetrator or the nationality of the victim.86 Therefore, universal jurisdiction can be exercised without any required linkage by the exercising state to territorial, active personality, passive personality, and/or protective principles.87 While universal jurisdiction is usually exercised, with respect to serious international crimes, by any state that has granted its court the jurisdiction to hear such cases, the idea of regionalization through the use of universal jurisdiction is founded on granting jurisdictional preference to states within the region in which the crime occurred.88 For example, the numerous proceedings that were instituted against African state officials in Europe,89 —especially in France, the UK, Spain and Belgium—subjecting African States officials to its jurisdictions could be seen as the regional exercise of the universality principle by European states. However, this departs from the crux of the matter, as in this case, the ideal would be to give priority to African states to regionally exercise the universality principle, since the crimes adjudicated upon were committed within the African region. This is evidenced in the reaction of the AU towards European states of abusing the principle of universal jurisdiction, contrary to sovereign equality and independence of states, thereby evoking memories of colonialism.90 In response to this allegation, the AU-EU Expert Panel on the Principle of Universal Jurisdiction was set up, of which one of the recommendations of the Expert Panel was for African states to adopt national legislative and other measures aimed at preventing and punishing these grave circumstances.91 This is consistent with the view of Burke-white, in giving priority to states within which the crime occurred as a form of regionalization. Also, it has been argued by Burke-White that the regional exercise of universal jurisdiction is reflected in the Princeton Principles on Universal Jurisdiction which implicitly acknowledges the importance of regionalism by emphasizing on the priority of the territorial state and proximity to the affected parties and evidence as factors to determine when resolving jurisdictional conflicts that may arise due to the exercise of universal jurisdiction.92 84

ICC, Prosecutor v. Lubanga, Decision on disclosure issues, responsibilities for protective measures and other procedural matters, 24 April 2008, ICC-01/04-01/06-1311-Anx2, para 105. 85 Burke-White 2003, p. 751. 86 Princeton Principles on Universal Jurisdiction 2001, p. 28, prin. 1(1). http://hrlibrary.umn.edu/ instree/princeton.html. Accessed 21 November 2021. 87 Ibid. 88 Burke-White 2003, p. 752. 89 Murungu 2011, p. 1069–1072. 90 Council of European Union 2009, para 37. 91 Ibid., R2. 92 Burke-White 2003, p. 752.

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The fourth approach in regionalizing international criminal law is the use of specialized domestic courts with regional judges.93 These types of courts are often established in states transitioning from post-conflict situations for the prosecution of international criminal cases. They are usually described as mixed courts, internationalized criminal courts, semi-internationalized courts or internationalized domestic courts, and are a mix of national and international components aimed at avoiding the short-comings of domestic and international trials.94 Examples of these courts include but are not limited to the Extraordinary Chambers in the Courts of Cambodia, Kosovo Specialist Chambers, Special Court for Sierra Leone, Special Panel of the Dili District Court, Special Tribunal for Lebanon.95 Since these courts are effectively part of the domestic system, it would seem strange to acknowledge it as a possible approach to regionalization. However, Burke-White suggests that regionalization through this medium can be achieved through the selection of the judges who sit in these courts. Rather than the selection of judges from an international pool, the judges should be selected from within the region where the court sits, and the crimes occurred.96 An example is seen in the Special Court for Sierra Leone, where of the three judges to serve in the Trial Chamber, one is to be appointed by the Government of Sierra Leone and two judges appointed by the UN Secretary-General upon nominations forwarded by states and in particular the member states of the Economic Community of West African States and the Commonwealth.97 Of the four possible approaches towards the regionalization of international criminal law, the strongest possible form and the most scholarly explored, is the actual creation of an autonomous regional criminal court for the enforcement of international criminal law.98 However, while the suggested approaches may serve as a springboard toward the realization of this phenomenon, the feasibility of its actualisation depends on each region’s approach towards the idea. While Europe sees regionalization as a fragmentation of international criminal law,99 and the Organization of American States as a region re-emphasizes the duty of its states parties to prosecute international crimes,100 Africa as a region has taken a rather bold and explicit approach towards regionalization of international criminal law. Among other things such as the possibility of giving priority to African mechanisms,101 Kenya’s

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Ibid., p. 753. Nouwen 2006, pp. 190–192. 95 Ibid. 96 Burke-White 2003, p. 752. 97 Agreement for and Statute of the Special Court for Sierra Leone, 16 January 2002, Article 2. 98 Burke-White 2003, p. 752; Murungu 2011, p. 1075. See also Tiba 2016; Carter et al. 2016a, b. 99 Pereira 2012, p. 218; Garrido 2020, pp. 113–140. 100 Inter-American Commission on Human Rights Resolution No 1/03 on Trial for International Crimes. http://www.cidh.oas.org/resolutions/1.03.int.crimes.resolution.htm. Accessed 21 November 2021. 101 Committee of Eminent African Jurists 2006. 94

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recommendation for the amendment of the Rome Statute to include complementary jurisdiction to regional criminal jurisdictions,102 and that the intended outcome of the various decisions of the AU Policy Organ is to “enhance the regionalization of international criminal law”.103 The AU Assembly at its twenty-third ordinary session adopted the Protocol introducing international criminal jurisdiction within the African Regional Court.104

3.4 The Malabo Protocol The Protocol establishing the international criminal chamber of the African Regional Court was adopted on 27 June 2014 by the AU Assembly. The international criminal chamber is charged with the sole responsibility to prosecute individuals with the highest criminal responsibility for international crimes committed on the African continent. The Protocol draws upon lessons from other international courts and tribunals through the incorporation of provisions from their respective Statutes. Certain provisions, in some cases, have been lifted verbatim from the Rome Statute,105 and in some other instances, adopted from the Statutes of the International Criminal Tribunals as well as the Nuremberg and Tokyo Charters.106 In addition, some provisions have been taken with necessary changes from the Statute of the International Court of Justice.107 The incorporation of these provisions from other international penal instruments into the Protocol connotes that there is an attempt to bring examples from best practices from the international legal system, and also to ensure a certain amount of consistency in the approach of the African Regional Court with other international Courts.108 This consistency is without any doubt obvious with regards to the crimes provided within the Protocol, which includes the unanimously accepted international crimes that are also contained in the Rome Statute. This approach by the drafters of the Protocol is due to the inevitable overlapping jurisdiction with the ICC with respect to these crimes. In that regard, the adopted definitions had to be fundamentally similar to those contained in the Rome Statute.109 102

ICC-Assembly of State Parties 2014. Withdrawal Strategy Document 2017, para 8. https://www.hrw.org/sites/default/files/suppor ting_resources/icc_withdrawal_strategy_jan._2017.pdf. Accessed 21 November 2021. 104 Malabo Protocol, Article 1. 105 See Malabo Protocol, Articles 28B, 28C, 28D vis-à-vis Rome Statute, Articles 6–8. 106 See London Agreement, Articles 5 and 8; Tokyo Charter, Articles 5 and 6; Statute of the International Criminal Tribunal for the Former Yugoslavia, 25 May 1993, Articles 4, 5 and 7 (ICTY Statute) and Statute of the International Criminal Tribunal for Rwanda, 8 November 1994, Articles 2, 3 and 6 (ICTR Statute). 107 See Malabo Protocol, Article 31 vis-à-vis Statute of the International Court of Justice, 18 April 1946, Article 38. 108 Amnesty International 2016, p. 15. 109 African Union Commission 2010. 103

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This adopted similarity by the drafters is deemed necessary to reflect the latest developments in international law, as any variation between the Rome Statute and the Protocol will signify challenges for complementarity practice.110 Where in some circumstances the ICC may be moved to indict an individual, who is already indicted before the African Regional Court, for crimes which are covered in the Rome Statute definition and are absent in the Protocol.111 Therefore, it can be proposed that the inclusion of the crimes in the subject matter jurisdiction of the Protocol suggests the need on the part of African States to prosecute these globally accepted crimes whenever they occur on the continent. This need is presumably based on the duty emanating either from treaty-based law or customary international law, or probably the intention of the AU to address these crimes within Africa as they would have been dealt with by the ICC or any other state responsibly exercising universal jurisdiction. However, irrespective of the need for consistency, the Protocol is progressive in certain provisions relating to crimes and criminal liability. The Protocol provides for an extensive and ambitious list of fourteen international crimes. It has been argued that the classification of these crimes as international in the Protocol is controversial, since not all the crimes listed under Article 28A of the Protocol are international in nature.112 This is derived from the perspective that not all the crime provided under this said article affects the fundamental values of the international community which gives rise to direct criminal liability.113 Due to this a segmentation has been made in the crimes provided in the Protocol.114 The listed crimes have been categorised into two—and in some cases four115 — different classes of international and transnational crimes.116 It is beyond the scope of this chapter to analyse the evolution, development and the laid down criteria for the inclusion of crimes as international crimes. There seems to be a biased and stringent view that the crimes as provided by the Rome Statute are to be considered as customary international crimes.117 While the ideology of international crimes is not too different from what is contained in the Rome Statute, the Protocol has introduced some noticeable variations in the definition of the crimes,118 thus, introducing unique contributions to substantive international criminal law. The Protocol provides for the “acts of rape or any other form of sexual violence” as an additional actus reus element to the already existing four elements to the crime of genocide.119 This addition in the Protocol reflects the jurisprudence of the ICTR 110

Ibid. Ibid. 112 Jalloh 2017, pp. 799–826. 113 Ibid. 114 Ibid. 115 Ibid. 116 Ibid. See also Mninde-Silungwe 2017, pp. 111–112; Bassiouni 2013. 117 Mninde-Silungwe 2017; Ambos 2013, p. 223. 118 Compare the provisions of the Malabo Protocol, Articles 28(B)(C)(D)(M) and the Rome Statute, Articles 6–8 and 8Bis. 119 Malabo Protocol, Article 28B (f). 111

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in the Akayesu Case where the Chamber believed “the act of rape or any other form of sexual violence committed with intent to destroy, in whole or in part, a national, ethical, racial or religious group, as such” falls within the ambit of genocide.120 The chamber took the standpoint that it has been commonly accepted that rape is a weapon of war, which can also be committed as an act of genocide.121 This inclusion clearly reflects the Protocol as a current document promulgating the recent jurisprudence and definitions of genocide.122 The Protocol incorporates the definition of the crime against humanity as stated in the Rome Statute, including the definition of ‘attack directed against any civil population’.123 One striking difference in the definition of the crimes of humanity in the Protocol is the inclusion of the term ‘enterprise’ as a contextual element alongside ‘attack’.124 This provision of ‘enterprise’ by the Protocol significantly lowers the applicable threshold, as the definition of the ICC requires that an attack be committed by a state or state-like entity.125 Also, the Protocol despite having the same categorisation of war crimes as the Rome Statute makes some additions to the criminalised violations.126 The Protocol adopts the Rome Statute’s definition with minimal adjustments, except for the category providing for the grave breaches of the Conventions and the serious violations of Article 3 common to the four Geneva Conventions which remains the same in the Protocol.127 The Protocol provides for the inclusion of seven more acts which will constitute war crimes if committed in an international armed conflict.128 It also proscribes seven ‘other serious violations of the laws of customs applicable in armed conflicts not of an international character established within the framework of international law’.129

120

ICTR, Prosecutor v. Jean-Paul Akayesu, Judgement, 2 September 1998, ICTR 96-4-T, para 731. Ibid., para 698–734. 122 Ibid. 123 See Malabo Protocol, Articles 28C (1)(2); Rome Statute, Article 7 (1)(2). 124 Malabo Protocol, Article 28C (2)(a). 125 Van den Herik et al. 2017, p. 5. 126 Malabo Protocol, Article 28D 127 Ibid., Article 28D (a) and (c). 128 (i) Unjustifiably delaying the repatriation of prisoners of war or civilians, (ii) wilfully committing practices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination, (iii) making non-defended localities and demilitarized zones the object of attack, (iv) slavery and deportation to slave labour, (v) collective punishments (vi) despoliation of the wounded, sick, shipwrecked or dead and (vii) intentionally launching an attack against works of installation containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects which will be excessive in relation to the concrete and direct overall military advantage anticipated. 129 (i) intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies, (ii) utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations, (iii) launching an indiscriminate attack resulting in death or injury to civilians, or an attack in the knowledge that it will cause excessive incidental civilian loss, injury or damage, (iv) making non-defended localities and demilitarised zones the object of attack, (v) slavery, (vi) collective punishments, (vii) despoliation of the wounded, sick, shipwrecked or dead. 121

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With regards to the crime of aggression, the Protocol adopts a creative license in its definition. The Protocol adds a twist to the definition of the crime of aggression by including the word “organization”.130 The effect of this addition widens the scope of the commission of the crime of aggression not only by the armed forces of a given state, but also to organizations—although not stipulated in the Protocol what or which type of organization will fall within this scope.131 This recognises non-state actors in the perpetration of aggression.132 By incorporating an organization within the scope of an aggressor in the commission of the crime of aggression “whether connected to the state or not”, the Protocol broadens the traditional conceptualisation of aggression as a leadership crime, targeting high-ranking state officers and introduces non-state actors as possible perpetrators of the crime.133 This also provides a hint towards corporate criminal liability as provided in the Protocol.134 Another pertinent aspect to note is the non-distinctive definition of the act of aggression as provided in the Rome Statute. The Protocol rather transforms the act of aggression as defined in the Rome statute to an additional act that constitutes the act of aggression under Article 28M (B)(a).135 From the comprehensive text of this sub-paragraph, it seems that the provision seeks to protect the security of African States against the broadest possible form of international unlawful use of force.136 Also, the Protocol broadens the scope of the last provision of acts constituting the acts of aggression in the Rome Statute— Article 8 bis (2)(g)—by adding the phrase “materially supporting” as another element alongside “sending”.137 This connotes that even though an individual in position of authority does not out rightly send armed forces against another sovereign state but provides material support—of which the support can take any specific form— such an individual is also substantially involved in the perpetration of the crime of aggression.138 This is the only act of aggression whose customary nature has been confirmed by the International Court of Justice (ICJ).139 Other noteworthy aspect of the definition of the crime of aggression is the requirement that the character, gravity and scale of an act of aggression ‘constitutes a manifest violation of the Charter of the United Nations or the Constitutive Act of the AU,140 as well as the protection of two specific values; ‘territorial integrity’ and ‘human security of the population of a state party’ against aggression.

130

Ibid. Sayapin 2019. 132 Ibid. 133 Asaala 2017. 134 Malabo Protocol, Article 46C 135 See Malabo Protocol, Article 28C. 136 Ibid. 137 Malabo Protocol, Article 28M (B) (h). 138 ICJ, Nicaragua v. United States of America, Judgement, 27 June 1986, paras 75–125, 187–209, 227–245. 139 Ibid. 140 Malabo Protocol, Article 28M. 131

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The broadening of the categories of crimes to include ‘transnational crimes’ reflects the criminalization of crimes considered to be of serious concern to the African continent. This conforms with the increased recognition of these categories of crimes as inseparable, since they are mostly committed alongside each other especially in Africa.141 These crimes are seen as the foundational acts leading to the commission of international crimes on the African continent. This narrative is evident in the crime of unconstitutional change of government which was primarily considered in the First OAU Ministerial Conference on Human Rights as one of the causes of human rights violations in Africa,142 as well as the intersection between international crimes and illicit exploitation of natural resources.143 The definition of transnational crimes as contained in the Protocol are drawn from a number of international and regional conventions, however, similar to the definition of international crimes, there are certain modifications made.144 With regards to criminal liability, the protocol maintains the customary conception of individual criminal liability, albeit expanding the modes of liability. In respect to perpetratorship, the Protocol provides for four different modes of perpetration; principal, co-principal, agent and accomplice.145 For the modes of participation, the Protocol adopts both approaches of the International Criminal Tribunals—plans, instigates, orders, commits or otherwise aids and abets—and the ICC—order, solicits or induces. The Protocol also provides for secondary participation in the form of incites, organizes, directs, facilitates, finances, counsels, participates, aids or abets and accessory before and after the fact. The Protocol goes further to introduce the concept of corporate criminal liability. From the conception of international criminal justice up until the ICC, the focus has been on the criminal liability of individuals for international crimes committed.146 The Protocol departs from this narrow conception of criminal liability and thus provides for the criminal liability of legal persons either public or private for international crimes committed by such entities.147 The inclusion of corporate criminal liability within the jurisdiction of the African Court not only fills the gap where corporations have committed international crimes with impunity, it also gives legitimacy to the ‘transnational crimes’ provided within the Protocol, which are mostly committed by corporate entities. This therefore allows 141

Van den Herik et al. 2017, p. 7. Grand Bay (Mauritius) Declaration and Plan of Action 1999. 143 Van den Herik et al. 2017, p. 7. 144 Werle and Vormbaum 2017. 145 Malabo Protocol, Article 28N (i). 146 Nuremberg Tribunal Judgment and Sentence 1947, p. 221. See also ICTY Statute, Article 7; ICTR Statute, Article 6; Rome Statute, Article 25. Although during the negotiation of the Rome Statute before its adoption, there was a proposal put forward by the French delegate to extend the personal jurisdiction of the ICC to include legal persons, this proposal was withdrawn on two main grounds: (i) the lack of uniformity in domestic legislation recognising corporate criminal liability; (ii) the issue of complementarity, as domestic jurisdiction did not want a situation where it will be deemed that because they were unable or unwilling to prosecute the corporation, the ICC would have jurisdiction to do so by reason of Article 17. See Haigh 2008, p. 202; Clapham 2000. 147 Malabo Protocol, Article 46C. 142

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for the prosecution of private and/or public corporations in the event that they have perpetrated crimes contained in the Protocol. The Protocol can be seen as a current codification of international criminal law because it reproduces progressive case laws of international criminal mechanisms in its definition and crimes. The Protocol also recognizes the shifting paradigm by including legal entities as subjects of international law for the purpose of criminal responsibility. Though the prospect of the African Regional Court can be presumed to be substantially different due to the wide range of crimes and the persons which can be tried therein, the reality is that it is envisioned as operating within a legal realm that is similar to the already existing ICC.

3.4.1 The African Regional Court The African continent has been a victim to incessant conflicts for decades. When compared to other continents around the globe, Africa has suffered from the lack of retributive judicial mechanisms aimed at redressing violations and bringing about accountability. This has resulted in an ingrained culture of impunity. The genocide and crimes against humanity committed in Rwanda and South-Africa respectively, as well as other human rights violations constituting international crimes committed and still being committed in conflict-ridden African countries have served as constant reminders. These continued atrocities have reinforced Africa’s resolve for the need of a conflict-free continent. Departing from the mandate of its predecessor, the Organization of African Unity (OAU), and rooted on the principles of having respect for the sanctity of human life, condemning and rejecting impunity and as well intervening with respect to international crimes,148 the AU in its renewed mandate reaffirmed its determination and dedication to address the root causes of violence and bring about accountability. In a solemn declaration adopted by African leaders at the 50th anniversary of the OAU/AU, with regards to peace and security, the AU Assembly pledged to “achieve the goal of a conflict free Africa, to make peace a reality for all our people and to rid the continent of wars, civil conflicts, human rights violation, humanitarian disasters and violent conflicts and to prevent genocide”.149 In achieving this feat, the AU Assembly resolved to address the root causes of conflict as well as putting an end to impunity by strengthening domestic and regional judicial institutions in order to ensure accountability.150 Resultantly, the AU is proposing to establish an impartial, efficient and autonomous permanent international criminal chamber within the framework of the African Regional Court.

148

Constitutive Act of the African Union, opened for signature (1 July 2000), entered into force (26 May 2001) (Constitutive Act), Article 4(h) and (o). 149 African Union Assembly 2013a. 150 Ibid.

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3.4.2 Roadmap to the African Court On 27 June 2014 progress was made towards the establishment of a new and unprecedented human rights court for Africa, with jurisdiction over international crimes. Various scholarly articles and literature have linked this event to the prevailing tension between the African Union and the ICC.151 The tension has been speculated to have arisen from the following issues; (i)AU serving Heads of State and/or Government and other senior state officials having immunity from criminal prosecution before the ICC;152 (ii) the alleged misuse of indictments and politicization of international criminal justice against African leaders by the ICC;153 and (iii) the claim of neocolonialism by western powers using the threat of indictment and prosecution before the ICC as a means of imposing their bidding on the African government, thereby making the ICC racially biased.154 While these are seen as driving factors to the adoption of the Protocol, the proposal for the creation of an African Regional Court with the mandate to adjudicate over crimes under international law has been made long before the creation of the ICC. Following the visit of the International Commission of Jurist to Africa in 1961, a resolution was adopted urging the African government to “study the possibility of adopting an African Convention on Human Rights and the creation of a court of appropriate jurisdiction”.155 As a result, during the drafting of the African Charter on Human and Peoples’ Rights in 1981, Guinea proposed for the creation of an African Human Rights Court to try violations of human rights as well as crimes under international law.156 However, this proposal was not included in the Charter as it was seen as “premature” to establish an African Court. The idea was rather seen to be “useful” for “future” inclusion to the existing Charter by means of an additional protocol.157 The “future” as proposed by the OAU became evident in June 1998, when it adopted the Protocol on the African Court on Human and Peoples’ Rights.158 However, the jurisdiction of the court did not still include the investigation and prosecution of international crimes as proposed by Guinea. Jurisdiction was instead exclusively limited to human rights.159 151

Murungu 2011, p. 1077; Du Plessis 2012; Ssenyonjo and Nakitto 2016, p. 77; Abass 2013a, pp. 933–946; Sceats 2009. 152 African Union Assembly 2013a, para 5. 153 Ibid., para 4. See also African Union 2013b, para 4. 154 Latiff 2013; York 2013. 155 International Commission of Jurists 1961. 156 Organization of African Unity 1981, para 117. 157 Organization of African Unity 1979. 158 The Protocol was adopted on 9 June 1998, entered into force 25 January 2004 after ratification by 15 states. By 2014 the Protocol had been adopted by 27 out of 54 AU Member States. 159 The Jurisdiction of the African Court on Human and Peoples Rights is to adjudicate on all cases and disputes submitted to it concerning the interpretation and application of the African Charter, the enabling protocol and any other relevant human rights instruments ratified by the States concerned and equally providing advisory opinions on any legal matter relating to the African Charter or any

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In 2003, the Protocol of the Court of Justice of the African Union providing for the establishment of the African Court of Justice was adopted.160 However, this court never came into operation based on the decision by the AU Assembly in 2004 that the African Court for Human and Peoples’ Rights and the Court of Justice be integrated into one court.161 This proposition was made by the then chairperson of the AU Assembly, that both courts be merged as one, and the possibility of conferring the proposed merged court with criminal jurisdiction.162 Although this proposition did not sit well with major stakeholders, the Eminent African Jurists appointed in 2006 by the AU to take into considerations all “aspects and implications of the Hissène Habré case as well as the options available for his trial, subject to a series of benchmark” in their report made reference to the proposed court being conferred with criminal jurisdiction.163 As much as all these actions hinted towards the possible establishment of an African Regional Court with criminal jurisdiction, it did not automatically lead to the conferring of such jurisdiction. The adoption of the Protocol granting the African Regional Court criminal jurisdiction was galvanized by some main events; (i) the numerous proceedings instituted against senior African State officials in Europe for international crimes164 and (ii) ICC’s indictment and issuance of an arrest warrant against President Al-Bashir of Sudan; and the indictment and trial before the ICC of President Uhuru Kenyatta of Kenya, and his deputy, William Ruto.165 While these events occurred independent of each other, for the AU, these events signified the abuse of the principle of universal jurisdiction by the concerned European states166 and the biased and unfair targeting of African states by the ICC.167 These events led the AU Assembly in its February 2009 Decision to request the Commission, in consultation with the African Commission on Human and Peoples’ Rights, and the African Court on Human and Peoples’ Rights, to examine the implications of the Court being empowered to try international crimes such as genocide, crimes against humanity and war crimes, and report thereon to the Assembly in 2010.168 Consequently, the AU Commission tasked the secretariat of the Pan African other relevant human rights instruments. See Protocol on the African Court on Human and Peoples’ Right. Opened for signature (9 June 1998), entered into force 25 January 2004. 160 This court was to preside over matters of interpretation arising from the application or implementation of the AU Constitutive Act. This includes adjudication of matters related to economic integration and matters of a political nature, such as border disputes. See Protocol of the Court of Justice of the African Union, opened for signature (1 July 2003), entered into force (11 February 2009). 161 African Union Assembly 2005b and African Union Assembly 2005a, para 2. See also Du Plessis 2012, fn 26; Amnesty International 2016, p. 15. 162 Ibid., Amnesty International 2016. 163 Committee of Eminent African Jurists 2006. 164 Murungu 2011, p. 1069–1072. 165 Amnesty International 2016, p. 9. 166 Council of European Union 2009, para 37. 167 Dugard 2013, pp. 563–570; Schabas 2010, pp. 535–552; Imoedemhe 2015, pp. 74–105. 168 African Union Assembly 2008, para 9.

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Lawyers Union (PALU) to carry out a study and therefore recommend a legal instrument amending the Protocol on the African Court of Justice and Human Rights (ACJHR).169 The PALU submitted its report to the AU Commission in June 2010 annexed with the first draft of the Amendment Protocol.170 The Draft Protocol was tabled for adoption at the 19th ordinary session of the AU Assembly; however, it was not adopted, rather the Assembly requested the Commission in collaboration with the African Human Rights Court to: (1) prepare a study on the financial and structural implications resulting from the expansion of the jurisdiction of the ACJHR; and (2) propose a definition of the crime of unconstitutional change of government.171 A meeting was convened in Arusha by the Commission to consider the request of the Assembly. One major point of consideration at the meeting was the definition of acts that will constitute the crime of unconstitutional change of government. There was an uncertainty as to whether the act of “popular uprising” would constitute a crime of unconstitutional change of government. The uncertainty stemmed from the need not to criminalize people peacefully exercising their inherent right which may result in a change of government.172 Due to this, it was resolved that the AU Peace and Security Council was to determine whether the change of government through popular uprising constituted a crime of unconstitutional change of government or not.173 On the issue of the financial implication of expanding the jurisdiction of the ACJHR, the report presented by PALU was adopted by the Assembly.174 Despite the conclusion reached by the Commission at the meeting in Arusha, the AU Executive Council further requested the Commission to conduct ‘a more thorough reflection, in collaboration with the Peace and Security Council (PSC) on the issue of popular uprising in all its dimensions’.175 It also requested the Commission to submit yet another report on the structural and financial implications of expanding the jurisdiction of the ACJHR to try international crimes.176 While this was still in progress, Kenya with the support of AU requested the UNSC to defer the proceedings against the Kenyan President and his deputy at the ICC for a year in accordance with Article 16 of the Rome Statute. However, this request did not yield the positive result expected by the AU, as the UNSC did not consider the request.177 As a result, the AU in its January 2014 Decision, recalled its decision aimed at extending the jurisdiction of the ACJHR to prosecute international crimes committed on the continent and requested the Commission in collaboration with all stakeholders to speed up the process with a view to reporting thereon to the

169

Amnesty International 2016, p. 9. Ibid. 171 African Union Assembly 2012d, para 2. 172 African Union Assembly 2012a. 173 African Union Assembly 2012b, para 12. 174 Amnesty International 2016, p. 10. 175 African Union Assembly 2012c, para 2. 176 Ibid., para 3. 177 African Union Assembly 2019, para 7. 170

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Assembly in June 2014.178 Prior to the next Assembly meeting in June 2014, the first AU Ministerial Meeting of the Specialized Technical Committee on Justice and Legal Affairs was held in May 2014. The objective of the meeting was to consider the 2012 Draft Protocol with regards to two main issues: (i) to resolve the definition of the crime of unconstitutional change of government which had been left unresolved since 2012 and (ii) in the light of indictments and arrest warrants issued against senior African state officials, to take into consideration immunities of African Head of States. Consequently, a significant decision was made at the meeting to grant immunity not only to African Head of State and Government but to a rather broad and undefined group of state officials. The AU at its Ministers of Justice and/or Attorney General Meeting having adopted the report of the Government Legal Experts on amending the Protocol on the Statute of the African Court of Justice and Human Rights,179 approved the Draft Protocol as amended and recommended it to the AU Assembly for adoption.180 At its twenty-third ordinary session, the AU Assembly adopted the Protocol establishing an international criminal chamber within the African Regional Court.

3.5 Jurisdiction of the African Court The African Regional Court is to have jurisdiction over the proscribed crimes following the coming into force of the Protocol.181 The jurisdiction of the Court is not automatic. It can only be activated on three grounds: a state party referral of the situation in which one or more of such crimes appears to have been committed; referral by the AU Assembly or PSC of a situation in which one or more of such crimes appears to have been committed and an investigation initiated by the Prosecutor in accordance with Article 46G of the Protocol.182 A state party to the Protocol reserves the right to refer to the prosecutor situations in which one or more crimes appeared to have been committed.183 The text of this sub-provision is wholly adopted form Article 13 of the Rome Statute. To this effect the state party making such referral can only do so with respect to a situation and not to specific individuals for investigation. The purpose of the referral is for the prosecutor to investigate the situation to determine whether one or more specific persons would be charged with the commission of such crimes.184 Therefore, the referral should specify the relevant circumstances and be accompanied by such supporting

178

Ibid., para 13. African Union Assembly 2012a, p. 5, para X, No. 16. 180 Ibid., No. 22. 181 Malabo Protocol, Article 46E. 182 Ibid., Article 46F (1). 183 Ibid. 184 Rome Statute, Article 14 (1). 179

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documents as available by the referring states.185 This state ‘self-referral’ triggering mechanism can be considered as the primary mode of activating the jurisdiction of the court, as the other two triggering mechanisms can only be employed when the state party fails in referring the situation to the court. The AU Assembly and the PSC can refer a situation to the prosecutor in which one or more crimes appears to have been committed to the Prosecutor.186 The AU Assembly is made up of the heads of state and government of AU member states and is accorded the status as the ‘supreme organ’ of the AU.187 Decisions taken at the AU Assembly require at least a two-third majority of the member state, it may therefore be convenient to state that the same will apply in decisions concerning the referral of situations to the African Courts.188 The PSC was established by a protocol pursuant to the provision of Article 5(2) of the AU Constitutive Act, to act as the decision-making organ for the “prevention, management and resolution of conflicts”.189 Among its key functions is the promotion of peace, security and stability in Africa, and peace support operations and interventions pursuant to Article 4(h) and (j) of the Constitutive Act.190 With respect to interventions pursuant to Article 4(h), the Council is to recommend to the Assembly interventions on behalf of the Union, in a member State in respect to grave crimes.191 The referral by the AU organs can be with regards to the situations within the territory of a state party and non-state party to the Protocol. This is similar to the UNSC referrals under the Rome Statute, which are not limited to state parties, but also extends to non-state parties to the Rome Statute.192 It can therefore be construed that the reasoning behind both referrals is similar, as the only way of bringing non-state parties within the jurisdictional scope of the Courts will be through the AU Organs. This by implication confers jurisdictional powers to the African Regional Court over non-party states. Similar to state party referrals, the referral is situation specific and not individual specific. The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.193 The seriousness of the information received on the crimes leading to the initiation of the investigation must be analysed.194 In so doing the prosecutor can seek for additional information from states, organs of the AU and UN, intergovernmental or non-governmental organizations or other sources deemed appropriate and may also receive written or oral

185

Ibid., Article 14(2). Malabo Protocol, Article 46F (2). 187 Constitutive Act, Article 6; Nerlich 2017, p. 179. 188 Constitutive Act, Article 7(1); Nerlich 2017, p. 179. 189 Protocol relating to the establishing of the Peace and Security Council of the African Union, opened for signature (9 July 2002), entered into force (26 December 2003), Article 2(1). 190 Ibid., Article 6(a) and (d). 191 Ibid., Article 7(e). 192 Akande 2003. 193 Malabo Protocol, Article 46G (1). 194 Ibid., Article 46G (2). 186

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testimony.195 Also, the jurisdiction of the court limits the power of the prosecutor to only initiate investigation on proscribed crimes within the Protocol committed, only within member states to the Protocol. Upon the analysis of the seriousness of the information, the prosecutor may conclude “that there is a reasonable basis to proceed with an investigation”, and further submit to a pre-trial chamber a request for the authorization of an investigation.196 The ‘reasonable basis to proceed’ is not defined in the Protocol and there is no Rule of the Court for clarification. Nevertheless, recourse can be had to the ICC criteria in this regard.197 Where the prosecutor concludes that there is no reasonable basis to proceed based on the information received, the prosecutor shall inform “those who provided the information”.198 Where the jurisdiction of the African Regional Court is activated, the jurisdiction can only be exercised in circumstances where “(i) a state on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the state of registration of that vessel or aircraft; (ii) the state of which the person accused of the crime is a national; (iii) when the victim of the crime is a national of that state, (iv) extraterritorial acts by non-nationals which threaten a vital interest of that state”.199 Any case brought before the court on the aforementioned preconditions to the exercise of jurisdiction, can be declared inadmissible where the state is either unwilling or unable to carry out the investigation or prosecution. It should be noted that the use of the word ‘case’ in this context, could be in reference to a ‘concrete’ or ‘potential’ case.200 As a result, the jurisdiction of the African Regional 195

Ibid. Ibid., Article 46G (3). 197 Nerlich 2017, p. 182. 198 Malabo Protocol, Article 46G (6). 199 Ibid., Article 46E bis. 200 ICC, Prosecutor v. Ruto, Kosgey and Arap Sang, Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute”, 30 August 2011, ICC-01/09-01/11 O A, para 37–340; ICC, Prosecutor v. Muthaura, Kenyatta and Ali, Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute”, 30 August 2011, ICC-01/09-02/11 O A, para 36–39. See also Rastan 2017, pp. 9–10. Where the Chamber stated that concrete cases “are defined by the warrant of arrest or summons to appear used under Article 58 or charges brought by the prosecutor and confirmed by the Pre-Trial Chamber under Article 61…thus, the defining elements of a concrete case before the Court are the individual and the alleged conduct. It follows that for such a case to be inadmissible under Article 17 (1) (a) of the Statute, the national investigation must cover the same individual and substantially the same conduct as alleged in the proceedings before the Court. However, the Chamber did not define a potential case. It might be assumed that this silence was due to the fact that the Pre-Trial Chamber and in a rather vague manner examined the admissibility of potential case. The Pre-Trial Chamber in its decision authorising an investigation in Kenya opined that “admissibility at the situation phase should be assessed against certain criteria defining a "potential case" such as: (i) the groups of persons involved that are likely to be the focus of an investigation for the purpose of shaping the future case(s); and (ii) the crimes within the jurisdiction of the Court allegedly committed during the incidents that are likely to be the focus of an investigation for the purpose of shaping the future 196

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Court is not that of first instance; it is complementary to the jurisdiction of domestic courts. This is similar to the jurisdiction of the ICC which is complementary to the domestic jurisdiction of state parties to the Rome Statute inclusive of African States. This similarity has led diverse opinions on the legal basis for the creation of a regional arrangement, in this case the African regional court in the light of the Rome Statute and the ICC.201 This urge to validate the provisions of the Protocol and the African Court is reliant on two factors; the Report of the Committee of the Eminent Jurist on the Hissène Habré case and the principle of complementarity.202 In making future recommendations for dealing with issues of similar nature as seen in the Hissène Habré Case, the Committee of the Eminent Jurist considered the possibility of conferring criminal competence on the African Regional court. This recommendation was made on the basis that such conferment will not result in the duplication of the workings of the ICC as there “is room for such development”.203 This statement by the Committee is dicey, as the phrase ‘room for such development’ carries a sub-conscious connotation that the workings of the ICC can or will be expanded to accommodate the workings of the African Court. This by implication seeks to validate the establishment of African Regional Court against the already existing regime of the ICC thus subjecting the jurisdiction of the former to that of the latter. Whether this was the notion of the Committee remains unknown. However, with reference to international law there are two key circumstances wherein the validity of a subsequent treaty may be determined in light of an already existing treaty.204 The complementarity principle serves a secondary purpose of regulating the jurisdictional relationship between the ICC and its member state. Therefore, the only envisaged relationship is that of the domestic criminal jurisdiction of state parties to the Rome Statute and not (sub) regional as it neither expressly or impliedly provides for such a relationship. This can be literally interpreted from the explicit wording of the complementarity provision of the Statute which does not give room for the possibility of regional arrangement conferred with international criminal jurisdiction to adjudicate on crimes within the purview of the Rome Statute.205 This has led to the perception that the ICC is seen as the sole hub for the dispensation of international criminal justice in a non-domestic realm. Since it does not recognise regional arrangements, it might not validate the establishment of the same. This may thus case(s) …..this means that the Prosecutor’s selection on the basis of these elements for the purposes of defining a potential "case" for this particular phase may change at a later stage, depending on the development of the investigation”. See ICC, Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March 2010, ICC-01/09, para 50. See also Jon Heller’s opinion on substantially same conduct requirement with respect to situations in Jon Heller 2016, p. 644. 201 Murungu 2011, p. 1080; Abass 2017, p. 20; Abass 2013a, pp. 47–48; Carter et al. 2016a, b, p. 227. 202 Abass 2017, p. 21. 203 Committee of Eminent African Jurists 2006, para 35. 204 Abass 2017, p. 22. 205 Ibid., p. 21.

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require the establishment of the African Court to be impliedly validated within the complementarity framework of the ICC. Though a progressive interpretation of the complementarity principle has been construed to accommodate regional arrangements in the prosecution of international crimes provided within the Statute.206 The AU Transitional Framework on Transitional Justice in Africa is of the view that the complementarity principle is not to be interpreted as accommodating of regional arrangements. Rather, the fundamental feature of the principle anticipates a framework wherein “continental, regional and national jurisdictions have primacy in adjudication of international crimes”.207 That notwithstanding, it has been argued that the legal basis for the creation of the African Court should not be defined or determined in the light of the Rome Statute and/or the ICC but should be defined or determined in light of the provisions of the AU’s Constitutive Act. The Constitutive Act provides for the reserved inherent distinct legal basis for the creation of an African Court. Article 4(h) of the Constitutive Act empowers the AU pursuant to the decision of its Assembly to intervene in a member state in cases of grave circumstances such as genocide, crimes against humanity and war crimes. This puts the African Court in the same sphere as the domestic courts—which has the duty to exercise its criminal jurisdiction over those responsible for international crimes—and the international court—who is charged with the responsibility that the most serious crimes of concern to the international community must not go unpunished. Therefore, the provision of Article 4(h) is an inherent obligation on the AU and African States to take measures in redressing human right violations culminating into international crimes on a regional plain and thereby filling the oblivious gap in the prosecution of international crimes. Aside from the general obligation to prosecute international crimes, there is also the need to prosecute crimes particular to the African Continent which do not come within the jurisdiction of the ICC.208 Some transnational crimes ravaging the African Continent, which in most cases results and/or facilitates the commission of international crimes, do not fall within the jurisdiction ratione materiae of the ICC. This is because such crimes are not seen to be grave enough to exude serious concern from the international community. The non-proscription of such crimes in any penal instruments brings about a lacuna in the possible prosecution and punishment of such grievous and significant transnational crimes. An example of this can be seen in the crime of unconstitutional change of government. The crime of unconstitutional change of government is not only condemned and rejected in the AU Constitutive

206

Murungu 2011, p. 1081. A different opinion is construed by Abass 2017, p. 23. African Union Transitional Justice Framework, para F.3.1.1. https://www.legal-tools.org/doc/ bcdc97/pdf/. Accessed 25 January 2021. See also Naidoo and Murithi 2016, p. 4. 208 The non-inclusion of such crimes in the jurisdiction of the Court could be attributable either to a perception among a vast majority of ICC States Parties that such acts do not constitute international crimes at all, or to a perception that these international crimes are not “serious” enough for the purposes of the International Criminal Court. 207

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Act but is to be prosecuted before the competent court of the AU.209 Van Der Wilt argues that this requirement is the legal basis for the creation of the African Regional Court.210

3.6 The African Regional Court; A Viable Alternative The ICC is the existing international institution capable of effectively prosecuting international crimes on an international scale. With the advent of the African Regional Court, it places the African continent concurrently within the jurisdiction of both the African Regional Court and the ICC. With both courts having concurrent jurisdiction, the full replacement of the ICC is only possible when no African state is party to the Rome Statute and the option of triggering the jurisdiction of the ICC pursuant to Article 13(b) of the Rome Statute is non-existent. There are currently thirtythree African state parties to the Rome Statute. These states can be classified under three factions: the pro-ICC, the anti-ICC, and the neutral-ICC.211 Also, the UNSC can still refer situations to the Office of the Prosecutor. Therefore, the idea of the African Court being a viable alternative is not to be seen as a replacement usurping the existing framework and jurisdiction of the ICC on the African continent, but as the availability of another possible choice other than the ICC in the prosecution of international crimes in Africa. This places the African Regional Court as a court of parallel hierarchy with the ICC. The notion of the African Court being a viable alternative could be centred on the normative appeal of regional international criminal justice mechanisms. The physical proximity of the African Regional Court to the alleged crimes committed on the continent would not only lend legitimacy to the court but would also offer significant opportunities for judicial reconstruction and restorative justice, an opportunity which is lacking with international courts such as the ICC.212 Apart from the physical proximity, psychological proximity is offered, bringing about a sense of connection between the courts and the local community. This sense of connection is borne out of the common identity and goal to address issues of serious concern in a way that is not detached from the community for which justice is to be served.213 According to Schabas, such concerns could vary based on geographical locations such as regions. For it has been proven through the course of history that “no region has a monopoly on the crimes of genocide or ethnic cleansing, nor is any region free of their scourge,

209

Constitutive Act, Article 4(p). See also the African Charter on Democracy, Elections and Governance, opened for signature (30 January 2007), entered into force (15 February 2012), Article 25(5). 210 Van der Wilt 2017, p. 1. 211 Bertram-Nothnagel 2016, p. 372. 212 Burke-White 2003, pp. 733–743. 213 Ibid.

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but some crimes may be more regional in scope”.214 This variation in ‘most serious crimes of concern’ is rightly depicted in the provisions of transnational crimes within the Protocol. However, there exist questions as to the feasibility and workability of the African Regional Court. A perusal of the protocol reveals certain progressive provisions as aforementioned that would speak to the African Regional Court being a viable alternative since it acknowledges certain areas of international law such as environmental crimes, financial crimes and corporate criminal liability which there are debates for its inclusion within the jurisdiction of the ICC.215 Nevertheless, a further perusal of the Protocol reveals some drawbacks that might become clogs to the wheels of dispensing international criminal justice by the African Regional Court. Most important of these drawbacks is the Court’s over-stretched mandate and the provision of immunity. Prior to the introduction of the international criminal chamber, the African Regional Court already had an extensive mandate.216 With the introduction of an international criminal jurisdiction, it further extends the existing mindset of the court, therefore running the risk of over-stretching the mandate of the court beyond necessary. This could have an adverse effect on the feasibility of the Court. Also, it is pertinent to note that the conferred international criminal jurisdiction is excessively broad. Not only is the court to adjudicate on the number of crimes listed in the Protocol, but its jurisdiction can be further extended to include additional crimes to reflect the current developments in international law.217 While it could be seen as a welcome idea of keeping abreast with the development of the law in order to avoid redundancy, the ability of the court to adjudicate on a non-exhaustive list of crimes is indeed questionable. International criminal trials are not easy feats that can be accomplished overnight. An analogy from the ICC shows that it is a slow and painstaking process, with trials running into years. With the African Regional Court having an excessively broader mandate than the ICC, one can only wonder as to the efficiency of the court. Therefore, with the mandate of the Court, the Court may run 214

Schabas 2007, pp. 20–21. ICC-OTP 2016; see also Greene 2019; Schreurs 2020. 216 The African Regional Court is to have jurisdiction over all cases and legal disputes relating to the “interpretation and application of the Constitutive Act; (b) the interpretation, application or validity of other Union Treaties and all subsidiary legal instruments adopted within the framework of the Union or the Organization of African Unity; (c) the interpretation and the application of the African Charter, the Charter on the Rights and Welfare of the Child, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, or any other legal instrument relating to human rights, ratified by the States Parties concerned; (d) any question of international law; (e) all acts, decisions, regulations and directives of the organs of the Union; (f) all matters specifically provided for in any other agreements that States Parties may conclude among themselves, or with the Union and which confer jurisdiction on the Court; (g) the existence of any fact which, if established, would constitute a breach of an obligation owed to a State Party or to the Union; (h) the nature or extent of the reparation to be made for the breach of an international obligation. See the Protocol on the Statute of the African Court of Justice and Human Rights, 1 July 2008. 217 Malabo Protocol, Article 28A (2). 215

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the risk of falling short of its objective due to the vast number of cases in its docket. It is therefore unrealistic to imagine the Court being able to effectively deliver on all jurisdictions. Article 46B (2) of the Protocol equally adopts the conventional position in international criminal law that the official position of any accused person will not relieve such a person from criminal responsibility or mitigate punishment.218 This provision however conflicts with the preceding article which precludes the commencement or continuation of criminal charges before the court against any serving AU Head of State or Government, or any one acting in such a capacity, as well as senior state officials based on their function in office.219 The provision of immunity as with the Protocol limits the jurisdiction of the African Court by excluding high-ranking state officials and other state officials from possible indictments and/or prosecution for international crimes while they are still in office. At the first instance, the provision of immunity contradicts the settled law that only high-ranking officials are entitled to immunity ratione personae to the exception of senior officials who under international law are entitled only to immunity ratione materiae for acts carried out on behalf of the state.220 Therefore, the reintroduction of the immunity clause within the framework of the court, not only violates the international consensus on immunity, but it is also a direct contrast to the provision of customary international criminal law on immunity with regards to individual criminal liability.221 Aside from the above ambiguities and inconsistencies arising from the immunity clause, there are questions of internal conflict of the provision of Article 46A bis with several new crimes which either by definition or implication are committed or are most likely to be committed by incumbent heads of state or government and senior officials. These novel crimes include the crime of unconstitutional change of government, corruption, money laundering and the crime of aggression. All these provisions seem to 218

London Agreement, Article 7; Tokyo Charter, Article 6; ICTY Statute, Article 7 (2), ICTR Statute, Article 6 (2); Rome Statute, Article 27. 219 Malabo Protocol, Article 46A Bis. 220 ICJ, Democratic Republic of the Congo v. Belgium, Judgement, 14 February 2002. 221 While these immunities have over time been considered by the international community as an essential and legitimate characteristic of international law. The advent of international criminal law on the international stage has brought about a competing good—to prosecute those most responsible for international crimes—with the principle of immunity. Where it was opined that “Crimes against international law are committed by men, not by abstract entities,—and only by punishing individuals who commit such crimes can the provisions of international law be enforced…The principle of international law, which under certain circumstances, protects the representatives of a state, cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings. Article 7 of the Charter expressly declares: "The official position of Defendants, whether as heads of State, or responsible officials in Government departments, shall not be considered as freeing them from responsibility, or mitigating- punishment." On the other hand the very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state if the state in authorizing action moves outside its competence under international law. See IMT Nuremberg, Judgment, 1 October 1946, para 447.

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allow for prosecution of senior state officials, including high ranking state officials.222 However, such state officials cannot be prosecuted for these proscribed crimes due to the provision of immunity which bars these state officials from prosecution before the African Regional Court. The exclusion of high-ranking officials from accountability before the court on the one hand, departs from the underlying objective fuelling the creation of the court and on the other, further strengthens the culture of impunity already entrenched on the African continent. As a result, the court’s ability to serve as a deterrent to the perpetration of international crimes on the continent will be greatly undermined by the immunity clause. A consequence of which might affect the credibility and efficacy of the court in the pursuit of international criminal justice. The aforementioned concerns have also been shared by academics who have, in this regard, criticised the framework of the African Regional Court. Though the criticisms levelled against the court do bear an iota of realism, it could also be perceived that the criticisms are hinged on the notion that the African Regional Court is a completely distinct entity from the ICC in the fight against impunity. This perception detaches the African Regional Court from the commitment of the international community in punishing the most serious crimes of concern and places the African Regional Court in a competitive relationship with the ICC. Thus, presenting regional criminal jurisdiction as one which demeans the existence of the ICC. There may be some credence to this view as there is no existing relationship between the African Regional Court and the ICC. However, Deya is of the opinion that the lack of reference to the ICC or the Rome Statute in the Protocol is not a deliberate act to undermine the framework of the ICC. On the reasoning that throughout the process of drafting it was made clear that the African Regional Court ‘intends to cooperate with and complement the ICC’.223 This was made with reference to Article 46L (3) of the Protocol entitling the African Court to seek the co-operation or assistance of international courts and may conclude Agreements for that purpose.224 With the use of ‘international courts’ to be interpreted as the ICC in this regard. Therefore, rather than a strict recognition of the African Regional Court as an ‘alternative’ or ‘competitive’ jurisdiction to the ICC, the African Regional Court could be seen as an additional or supplementary jurisdiction to the ICC for the prosecution of international crimes in Africa. This idea is founded on the complementarity principle. It cannot be over-emphasized that the complementary jurisdiction of the ICC relates solely to the jurisdictional relationship with domestic and not regional jurisdiction in the prosecution of international crimes. Nevertheless, the complementarity principle could be broadened to accommodate regional criminal jurisdictions. The emergence of the intention of establishing the African Regional Court has facilitated different views as to the incorporation of the African jurisdiction within the

222

Malabo Protocol, Articles 28E (1)(d)(e) and (f); 28I (1)(h); 28Ibis (1)(i)(ii) and (iii) and 28M

(a). 223

Kenyans for Peace with Truth and Justice (2016), p. 20; http://kptj.africog.org/wp-content/upl oads/2016/11/Malabo-Report.pdf Accessed 20 January 2021. 224 Ibid.

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complementary regime of the ICC. There are two schools of thought with respect to this form of complementary relationship. The first school of thought proposes the merging of domestic and regional jurisdictions as one for the purpose of reflecting the regional jurisdiction as a state action in the context of Article 17 of the Rome Statute. This school of thought is of the opinion that there are two sides to the complementarity principle: the acknowledgement of state sovereignty in the prosecution of international crimes and the confined role of the ICC as the court of last resort.225 By acknowledging the sovereignty of states and the inherent primacy that flows from such sovereignty in the prosecution of international crimes, the state may choose not to exercise its primary jurisdiction through its judicial system but through a secondary jurisdiction by the delegation of powers to a regional tribunal.226 With this understanding of delegation of powers, the prosecution of international crimes by a regional tribunal seen as a state action would not be out of place.227 Therefore, the genuine prosecution by a lawfully constituted regional tribunal should be seen as prosecution by a state. This interpretation of complementarity is evidenced in the works of Akande—who proposes that the principle which enables states to prosecute international crimes, equally allows such states to act collectively—through a regional court or tribunal—to achieve the same goal.228 This is consistent with the concept of ‘radical complementarity’ which proposes that as long as the state is making a genuine effort to bring a suspect to justice, inclusive of regional courts, the ICC should find his or her case inadmissible regardless of the conduct the state investigates or the prosecutorial strategy the state employs.229 This also builds upon the opinion of Akande’s, that the acknowledgement of state action in the prosecution of international crimes within the context of complementarity, places these states acting as agents of the international community in the protection of collective interest and values and should not be prohibited but rather encouraged to take collective actions for the prosecution of collective interest. Thus, where states collective actions include the delegation of its powers to a regional court for the prosecution of international crimes, Article 17 of the Rome Statute should be interpreted as a state’s genuine willingness and ability to investigate and prosecute international crimes committed on its territory. In this regard, the ICC is to [recognise] decline the exercise of its jurisdiction over national jurisdiction in the face of a genuine prosecution by a regional tribunal, in that the prosecution of international crimes by the African Court is to be seen as a genuine prosecution by a state party.230 The second school of thought proposes that the regional jurisdiction should be seen to be a different and distinct jurisdiction from the national jurisdiction. The regional jurisdiction is to be seen as an additional jurisdiction within the complementarity

225

Jackson 2016, p. 1068. Ibid., p. 1069. 227 Ibid., p. 1067. 228 Akande 2003, pp. 625–634. 229 Ibid. 230 Jackson 2016, p. 1071. 226

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regime not expressly provided within Article 17.231 This school of thought proposes a progressive interpretation of the complementarity principle for the purposes of closing the gaps of impunity.232 This progressive interpretation is inferred from the concept of positive complementarity, not in the context of partnership or co-operation as co-equals but subjecting the jurisdiction of the African Regional Court over international crimes within the jurisdiction of the ICC.233 The positive interpretation of the complementarity principle proposes an intermediate jurisdiction between the domestic and ICC jurisdictions in the prosecution of international crimes. This transposes the relationship between the African Regional Court and the ICC from horizontal to vertical in nature implying that the ICC should be complementary both to national and regional jurisdictions. This therefore puts the regional jurisdiction as a secondary jurisdiction in the ICC complementarity regime hierarchy in the prosecution of international crimes. This form of relationship broadens the scope of the complementarity principle from a ‘single-failure’ complementarity—where the domestic jurisdiction is unwilling or unable to prosecute—to a ‘double-failure’ complementarity—where the domestic and regional jurisdictions are both unwilling and/or unable to genuinely prosecute. Thus, the jurisdiction of the ICC can only be triggered when firstly the domestic jurisdiction and then subsequently the regional jurisdiction are both unwilling and/or unable to genuinely investigate or prosecute international crimes. This proposition reflects the position of the AU Political Framework on Transitional Justice234 and equally reiterates Kenya’s proposed amendment to the preambular provision of the Rome Statute in accordance with African Union resolution, to allow the recognition of judicial mechanisms as follows “emphasizing that the international criminal court established under this statute shall be complementary to national and regional jurisdiction”.235 This proposed relationship equally preserves the status of the ICC as the court of last resort. Where this form of relationship is not possible between the African Regional Court and the ICC, both courts could partner in the prosecution of international crimes committed in Africa on the merits of judicial cooperation. A cooperative jurisdictional relationship between the African Regional Court and the ICC in encouraging and promoting anti-impunity measures is consistent with the mandate to ensure that international crimes do not go unpunished, which can be construed as the priority of both institutions. This partnership can be effected on the grounds of closing the impunity gap and burden sharing.

231

Murungu 2011, p. 1081. Ibid. 233 Ibid. 234 African Union Transitional Justice Framework, para F.3.1.1. https://www.legal-tools.org/doc/ bcdc97/pdf/. Accessed 24 August 2021. 235 ICC-ASP 2014, p. 17. 232

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3.6.1 Closing the Gap Accruing from the limited resources, the Office of The Prosecutor (OTP) functions in a two-levelled approach in the combating of impunity. The first level approach is that the OTP initiates prosecutions against individuals who are most responsible for the crimes and the second level approach, is that the OTP encourages domestic jurisdictions to initiate prosecutions against lower ranking perpetrators.236 In line with the mandate of the ICC, Regulation 34(1) of the Regulations of the Office and the Prosecution’s Strategic Plan on the identification of a Case, the information and evidence collected shall be reviewed in order to determine a ‘provisional case hypothesis’ identifying the incidents to be investigated and the person(s) who appear to be the most responsible.237 An approach where the ICC focuses on the ‘most responsible’, and the domestic jurisdiction focuses on the ‘least responsible’ may in turn create an unintended circle of impunity for the ‘intermediate responsible’. In other words, the perpetrators in-between the one extreme point of individuals most responsible for the commission of international crimes and the other extreme point of individuals least responsible for the commission of international crimes will be left unpunished. In its policy paper, the OTP recognises this lacuna and proposes an alternative of national courts working with the international community to ensure that offenders are brought to justice by other means.238 Oblivious to the vagueness of the term ‘international community’, importance will be given to the phrase ‘by other means’. This phrase can be construed through the presumed intent of the OTP to mean any other forum other than the ICC and domestic jurisdiction, either judicial or nonjudicial in nature. If the ICC is willing to work—cooperate—with the international community through national affiliations in achieving international criminal justice 236

ICC-OTP 2003. This is akin to the provision of the Completion Strategy. The Resolution 1534 of the UN Security Council requires that the ICTY and ICTR prosecutors in the reviewing and the confirmation of any new indictments, ensure that such indictments are with respect to the ‘most senior leaders suspected of being most responsible for crimes’ committed within the jurisdictions of either the ICTY or ICTR. Therefore, this means that before an indictment is being made by any of the adhoc tribunals it has to ascertain those indictments which concern intermediate and lower ranked accused be transferred to the respective national jurisdictions for criminal proceedings. Recalling and reaffirming in the strongest terms the statement of 23 July 2002 made by the President of the Security Council (S/PRST/2002/21), which endorsed the ICTY’s strategy for completing investigations by the end of 2004, all trial activities at first instance by the end of 2008, and all of its work in 2010 (ICTY Completion Strategy) (S/2002/678), by concentrating on the prosecution and trial of the most senior leaders suspected of being most responsible for crimes within the ICTY’s jurisdiction and transferring cases involving those who may not bear this level of responsibility to competent national jurisdictions, as appropriate, Urging the ICTR to formalize a detailed strategy, modelled on the ICTY Completion Strategy, to transfer cases involving intermediate- and lower-rank accused to competent national jurisdictions, as appropriate, including Rwanda, in order to allow the ICTR to achieve its objective of completing investigations by the end of 2004, all trial activities at first instance by the end of 2008, and all of its work in 2010 (ICTR Completion Strategy), ICC-OTP 2003, p. 2.1. 238 Ibid. 237

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by any other means, then it could also cooperate with the African Court in closing this ‘intermediate’ impunity gap in Africa. Therefore, as a means of cooperation, while the ICC deals with the most responsible and the domestic jurisdiction deals with the least responsible, the Africa Regional Court may be charged with the duty of dealing with the intermediate responsible. Thus, a mutual and transparent cooperation between the parties concerned will determine the classification of the perpetrator and the appropriate forum to exercise jurisdiction in such a case, especially where all three jurisdictions are concurrent.

3.6.2 Burden-Sharing Apart from the need of closing the impunity gap, a cooperative jurisdictional relationship between the African Regional Court and the ICC may serve the purpose of burden-sharing. This may be through the provision of direct assistance, advice by exchanging information and evidence to facilitate investigation and prosecution and may go a step further to include the merger of indictment as part of a two-way agreement or an anti-impunity strategy. This may arise in circumstances where in the exchange of assistance, information, and evidence in facilitating investigation and prosecution it turns out that the alleged individual could be indicted and subsequently prosecuted before the African Regional Court or the ICC. Therefore, to avoid this complicating aspect of the complementarity principle, and in order to share the burden of prosecution and enhance and/or facilitate the dispensation of international criminal justice, both the ICC and the African Regional Court can cooperate by merging the indictment of alleged perpetrators where the need arises. Therefore, where both courts are indicting an alleged perpetrator for the commission of two different international crimes, based on the evidence gathered during the investigation stage, the indictments can be merged, and the individual prosecuted before the consented court. However, where either the African Regional Court or the ICC has carried out an intensive and extensive investigation and has developed superior evidence, witness and expertise relating to the situation and the other Court has not, there will be no obstacle as to the admissibility of the case before the effective forum of adjudication. Therefore, a situation which entails the commission of crimes solely international in nature, the transfer of jurisdiction in this regard to any of the judicial institutions may be subject to the factors of most responsible or gravity threshold. Therefore, the idea of burden-sharing under the cooperative jurisdictional relationship of the African Regional Court with respect to the merger of indictment may serve to avert the situation of consecutive prosecution and sentencing of an accused before the African Regional Court and then subsequently before the ICC or vice versa.

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3.7 Conclusion The idea of international criminal justice has become an integrated feature of the international system, wherein the issue is no longer centred on the possibility of prosecuting persons alleged of committing international crimes. With the proliferation of judicial institutions, the focus is now on how and where perpetrators of international crimes should be prosecuted.239 While it still remains undisputed that the primary duty for the prosecution of international crimes rests with the domestic jurisdiction, there is still an underlying tension in the recognition of regional actors. With respect to the provisions of the UN Charter, regional organizations have overtime played an active role in the maintenance of international peace and security, the fighting of impunity cannot be detached from this role. With the proposition of the African Regional Court, this tension has generated to the regional jurisdiction becoming one of competition with the ICC. This is because most scholarly appraisals of the Protocol and Court have been carried out with a preconceived structure in mind, thus seeking to validate the idea of the African Regional Court against the existing framework of the ICC, particularly with the reintroduction of immunity. However, what if a more pragmatic approach is undertaken with the understanding that being immune before the African regional Court does not necessarily translate to immunity before the ICC, or the understanding that there is so much commonality with the objective of the African Regional Court and the idea of fighting impunity? At the first glance, this might not seem like a perfect picture, but from the onset, that has always been the problem with international criminal law: having to deal with multiple views and interpretations. The departure from the conventional approach to international criminal law should not be seen as competitive or as a feeling of ‘either you are with us or against us’, but as bits of the puzzle towards the attainment of universality in international criminal law. As such, the systematic approach to discredit the African Regional Court particularly in respect of the existing ICC is not the way to go. Rather than being stuck in this mindset, a progressive representation of the African Court as an additional mechanism culminating in the enforcement of international criminal justice should be embraced, as there is need for other mechanisms to bring about international criminal justice. There are much more crimes than the ICC can handle, and much more than all state parties to the Rome Statute can handle.

239

Megret 2005, p. 725.

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Editimfon J. Ikpat is currently a Research Associate with Public International Law & Policy Group (Netherlands). Ms Ikpat does research in International Criminal law, Regional Criminal Law and Public International Law. She is also starting a career in compliance with regards to Money Laundering, Corruption and Terrorist Financing.

Chapter 4

The Legitimacy of the International Criminal Tribunal for Rwanda (ICTR) Claire M. H. Boost

Contents 4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 The International Criminal Tribunal for Rwanda (ICTR) . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.1 Legitimacy Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 Legitimacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.1 Legitimacy and Transitional Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.2 Managing Legitimacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 The ICTR’s Legitimisation Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.1 The Jean-Bosco Barayagwiza Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.2 The Removal of the ICTR’s Chief Prosecutor, Carla Del Ponte . . . . . . . . . . . . . . 4.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract Over the years, the international community has established international courts to eliminate the culture of impunity in relation to international crimes, and to enforce a culture of accountability. A critical success factor for these courts is ensuring that they are perceived as legitimate instruments of law, to provide justice to those affected by any crimes committed and to rebuild the judicial landscape within post-conflict societies. However, the legitimacy of the International Criminal Tribunal for Rwanda (ICTR)—established following the 1994 Rwandan genocide against the Tutsis—has been questioned, due in part to: its location in Tanzania, its focus on prosecuting only members of the Hutu ethnic group, the employment of former génocidaires, and the acquittals and early releases of those considered most responsible for the 1994 genocide. This chapter uses an empirically oriented approach to identify and examine the measures taken by the ICTR to promote its legitimacy and detaches the term legitimacy from its normative legacy. The chapter will focus on two specific events—the Jean-Bosco Barayagwiza case and the removal of the ICTR’s chief prosecutor, Carla Del Ponte, in 2003—which challenged the ICTR’s legitimacy and forced the Tribunal to adopt legitimisation activities in order to repair its legitimacy. The aim is to demonstrate the multifaceted nature of legitimacy, while C. M. H. Boost (B) NIOD, Amsterdam, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 T. B. K. Sendze et al. (eds.), Contemporary International Criminal Law Issues, https://doi.org/10.1007/978-94-6265-555-3_4

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examining whether the ICTR’s short-term need for legitimacy affected its longerterm objectives. The chapter is based on data collected through desk and archival research, and interviews conducted between 2019 and 2020. Keywords Legitimacy · Legitimisation · International criminal law · Transitional justice · International Criminal Tribunal for Rwanda · United Nations · Rwanda

4.1 Introduction International crimes cause widespread mortality and victimisation, leading to societal disruption that may take generations to heal. Over the years, the international community has established international criminal courts to eliminate the culture of impunity in relation to such crimes and to enforce a culture of accountability. A critical factor for the success of these courts is ensuring that they are perceived as legitimate instruments of law within post-conflict societies.1 Research has shown the importance of legitimacy in transitional justice, more specifically the legitimacy of the mechanisms established to assist a region or country in transitioning from a period of conflict in which gross human rights violations have taken place, to a more cohesive and stable society in which reconciliation is promoted and accountability for past abuses is recognised and addressed.2 In recent history, the emergence of international criminal law has been a major contributing factor to transitional justice by providing mechanisms to hold those most accountable for heinous crimes committed and to assist post-conflict societies restore or create robust national criminal justice systems. However, in order for international criminal courts and tribunals to reach their full potential in providing justice to those populations scarred by conflict and to rebuild the judicial landscape in post-conflict states, they too must be accepted as legitimate. Focusing on one such organisation—the International Criminal Tribunal for Rwanda (ICTR)—this chapter will identify the efforts made to legitimise the Tribunal’s existence, as a mechanism established by the United Nations (UN) to prosecute those most responsible for the 1994 genocide in Rwanda. The legitimacy of the ICTR was questioned from its inception and throughout its twenty years of existence (from 1995 to 2015) in part because of: its location, the focus on prosecuting only members of the Hutu ethnic group, the employment of former génocidaires, and the acquittals and early releases of those considered most responsible for the 1994 genocide. This chapter will examine whether the Tribunal’s response to these legitimacy challenges affected its legitimacy as an independent judicial body, and whether the legitimisation activities it implemented had any influence on the longerterm ambitions of the ICTR, or on international criminal law as a whole, in its efforts to fight impunity and enforce a culture of accountability. 1 2

Cryer et al. 2019, pp. 28–43; Smeulers and Grünfeld 2011, pp. 471–472. Møse 2005; Oomen 2009; Shany 2012; Vasiliev 2015.

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The chapter is divided into three sections. Section 4.2 will provide background information regarding the establishment of the ICTR, while also describing some of the legitimacy challenges the Tribunal faced over the course of its existence. Given the variety of interpretations regarding the term legitimacy, Sect. 4.3 will unpack this concept, and examine the role of legitimacy with regard to the work of the ICTR. Finally, Sect. 4.4 of this chapter will examine the legitimisation activities implemented by the Tribunal in an effort to repair its legitimacy when faced with two specific events that challenged its legitimacy: the acquittal of Jean-Bosco Barayagwiza, a key figure in Rwandan politics prior to and during the 1994 genocide; and the removal of the ICTR’s chief prosecutor (from 1999 to 2003), Carla Del Ponte. This final section will make use of data collected through desk and archival research, and interviews conducted with former ICTR staff members, members of the Rwandan judiciary, Rwandan government officials, Rwandan academics and representatives of civil society organisations, all of whom worked alongside the ICTR during its existence in Arusha from 1995 to 2015.3 The chapter will end with some concluding thoughts and suggestions for future research in Sect. 4.5.

4.2 The International Criminal Tribunal for Rwanda (ICTR) Reports of extreme violence within Rwanda hit media outlets in early April 1994, following the downing of the Presidential plane on 6 April, which killed Rwandan President Habyarimana and Burundian President Ntaryamira, along with eight others, who were returning from peace talks in Arusha.4 That same night, roadblocks were erected in the capital city of Kigali and reports of killings were quick to follow. During the days, weeks and months that followed, violence surged throughout the whole country. Urged on by radio broadcasts, aided by soldiers and militia, and facilitated by roadblocks and security checkpoints set-up throughout the country, ordinary Rwandans used clubs and machetes to hunt down, mutilate, rape and kill their neighbours and fellow citizens.5 Over the course of the next hundred days, Rwandans (consisting of men and women of all ages) killed approximately eight hundred thousand of their fellow 3

Interviews and archival research took place both in the field (Rwanda and Tanzania) and as part of desk research between 2018 and 2020. All interviews are anonymised. Dates are not included given that they can be used to trace back to the interviewee. Consent was asked, and forms were signed, for all interviews. This research was approved by Maastricht University’s Ethics Review Committee Inner City faculties. 4 BBC (1994) http://news.bbc.co.uk/onthisday/hi/dates/stories/april/6/newsid_2472000/247219 5.stm. Accessed 21 September 2021; Guardian (1994) https://www.theguardian.com/world/1994/ apr/09/rwanda. Accessed 21 September 2021; New York Times (1994) https://www.nytimes.com/ 1994/04/14/world/anarchy-rules-rwanda-s-capital-and-drunken-soldiers-roam-city.html. Accessed 21 September 2021. 5 Des Forges 1999, pp. 10–12.

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citizens.6 The majority of the victims were men, women and children from the Tutsi ethnic group and those considered “moderate”7 Hutu.8 The targeted killings concluded a four-year long civil war fought between the Rwandan Hutu government and the Rwandan Patriotic Front.9 The number of deaths recorded accounts for approximately ten percent of the Rwandan population (estimated at approximately seven million at the time) with roughly eight thousand men, women and children killed every day.10 Aside from the sheer volume of deaths, reports estimated the number of killers at seven hundred and fifty thousand, which accounted for approximately one in four Rwandan adults.11 By the end of the conflict in July 1994, Rwanda had been left devastated: schools, hospitals, banks, government buildings and other public and private property had been destroyed or ransacked; there was a lack of food and clean water, and the streets of Kigali were empty of people. Outside the capital whole communities had been torn apart; fields and farms had been destroyed and were left deserted. Furthermore, the country was scattered with bodies left in fields and on roads where roadblocks had been abandoned.12 With Rwanda’s basic infrastructure in ruins, a severe lack of qualified personnel, the new Rwandan government requested the assistance of the UN to establish an international tribunal that would focus on prosecuting those responsible for inciting and committing the gross human rights violations that had ravaged the country.13

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The UN estimates that 800,000 people lost their lives during the 1994 genocide. UN Security Council 1999, S/1999/1257. https://peacekeeping.un.org/en/report-of-independent-inquiry-act ions-of-united-nations-during-1994-genocide-rwanda-s19991257. Accessed 21 September 2021; the Government of Rwanda refers to over one million Tutsi and moderate Hutu victims of genocidal violence. www.gov.rw/home/history. Accessed 21 September 2021; while Human Rights Watch places the number closer to 500,000 victims (Des Forges 1999, pp. 15–16). 7 Moderate Hutu are those generally considered as having supported the power-sharing agreement negotiated during the Arusha Accords, which would have enabled the Tutsi-led RPF to gain power and to work alongside the Hutu government. 8 Members of the Twa ethnic group were also heavily involved in the conflict, both as perpetrators and victims. They are rarely mentioned in relation to the 1994 genocide in Rwanda. The ethnic divisions that were intrinsic to Rwandan society prior to and during the 1994 genocide no longer exist in Rwanda. Since 2001, identifying individuals with the ethnic labels—Hutu, Tutsi or Twa—is considered as “divisionist” in Rwanda (Rwandan Law No. 47/2001). 9 Des Forges 1999, pp. 15–16; Drumbl 2007, p. 81; Moghalu 2005, p. 17. With a growing number of Tutsi refugees living in Uganda, the “Front Patriotique Rwandais” (Rwandan Patriotic Front— RPF) was established in Kampala in 1988. The aim of this political and military movement was to return to Rwanda and to overthrow the Rwandan government. The RPF launched their first major attack against the Hutu government in Rwanda on the 1 October 1990, marking the start of the Rwandan Civil War (Moghalu 2005, pp. 13–14). 10 Des Forges 1999, pp. 15–16; UN Security Council 1999, S/1999/1257. 11 Penal Reform International 2006, p. 1. https://cdn.penalreform.org/wp-content/uploads/2013/05/ WEB-english-gacaca-rwanda-5.pdf. Accessed 21 September 2021. Schabas 2005, p. 883. 12 Brannigan and Jones 2009, p. 197; Ferstman 1997, p. 859; Moghalu 2005, p. 37. 13 UN Security Council 1994, S/1994/1115.

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Through UN Resolution 955, the International Criminal Tribunal for Rwanda14 was established and located in Arusha, Tanzania: The Security Council […] decides hereby, having received the request of the Government of Rwanda (S/1994/1115), to establish an international tribunal for the sole purpose of prosecuting persons responsible for genocide and other serious violations of International Humanitarian Law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994.15

In addition to the adoption of Resolution 955, as stated in the preamble of the ICTR Statute,16 all UN member states agreed to cooperate with the ICTR and to take measures, through their own domestic legal systems, to enable the execution of the resolution. The ICTR had jurisdiction over individuals rather than states or organisations (as with the previous international military tribunals in Nuremburg and in Tokyo) and claimed primacy over national investigations and prosecutions: the Tribunal could therefore take over proceedings being held within a national court at any stage. However the UN Security Council assured the Rwandan government that they would receive notification prior to any decisions taken by the ICTR regarding the commutation or enforcement of sentences, as stipulated under Articles 26 and 27 of the Statute.17

4.2.1 Legitimacy Challenges Despite the apparent smooth establishment of the ICTR, the UN Security Council was entering unchartered waters in the early 1990s, when it used Chapter VII of the UN Charter18 to establish two ad-hoc tribunals: the International Criminal Tribunal for the former Yugoslavia (ICTY) and the ICTR. They were the first international criminal tribunals created following the International Military Tribunals established in Nuremberg (1945–1946) and Tokyo (1946–1948) following World War II, and the first tribunals to be set up through resolutions based on Chapter VII of the UN Charter. As such they both needed to find their way in this new era for international criminal law.19 Although the Rwandan government had requested the assistance of the international community, the Rwandan delegation to the UN, led by Manzi Bakuramusta, 14

Formal name: International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January and 31 December 1994. 15 UN Security Council 1994b, S/RES/955. 16 ICTR 2010. 17 Cryer et al. 2019, pp. 137–142; Klip and Sluiter 2003, p. 239; Smeulers and Grünfeld 2011, p. 44. 18 Chapter VII of the UN Charter addresses “action with respect to threats to the peace breaches of the peace, and acts of aggression”. 19 Cryer et al. 2019, p. 127.

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raised seven objections to the creation of the international tribunal, summing up Rwanda’s position by stating: “my delegation considers that the establishment of so ineffective an international tribunal would only appease the conscience of the international community rather than respond to the expectations of the Rwandese people and of the victims of genocide in particular”.20 In its capacity as a member of the UN Security Council at the time, the Rwandan delegation eventually voted against UN Resolution 955, while thirteen other member states voted in favour of the resolution and China abstained.21 Rwanda’s opposition to UN Resolution 955 signalled a bad start for the Tribunal, certainly with regard to its legitimacy, and indeed the legitimacy of the international criminal law project as a whole: “an international court has the greatest chance of being perceived as legitimate if it involves the people concerned in its set-up”.22 This sentiment was shared by the UN Secretary General in 2006, who stated that in the case of both the ICTY and the ICTR “a key lesson learned from those experiences was that the interested State should be associated in the establishment of the tribunal”.23 One of the objections to the ICTR presented by the Rwandan delegation was the location of the Tribunal.24 In November 1994, establishing the ICTR in Kigali was not considered an option given that the infrastructure in Rwanda—destroyed after four years of conflict—could not have accommodated an international criminal tribunal. The UN Secretary-General also considered the security risks in bringing leaders from the previous regime back into Rwanda, and the need for the ICTR to be perceived as a just and fair court, with complete impartiality and objectivity. This led to the conclusion that trial proceedings would be best held outside Rwanda in a neutral country.25 The decision to locate the ICTR in Arusha, Tanzania, was made by the UN Security Council in February 1995, following the Tanzanian government’s offer to accommodate the Tribunal at the Arusha International Conference Centre (AICC).26 The AICC held symbolic relevance, given that the building had previously hosted the negotiations between the Rwandan government and the Rwandan Patriotic Front (RPF), which culminated in the signing of the Arusha Peace Accords in 1993. Furthermore, the layout and space available at the AICC could readily house an international criminal tribunal.27 However, based in Arusha, the ICTR faced an exceptional challenge in addressing crimes that had been committed over a thousand kilometres away in the neighbouring 20

UN Security Council 1994a, S/PV.3453, p. 15. Forsythe 2009, p. 121; Peskin 2008, p. 168. China considered the events that occurred in Rwanda in 1994 as an internal conflict and therefore a matter for Rwanda, rather than the UN, to address (Bonner 1994; Forsythe 2009, p. 121). 22 Oomen 2009, p. 184. 23 UN Security Council 2006, S/2006/176, para 2. 24 UN Security Council 1994a, S/PV.3453, p. 16. 25 Møse 2005, p. 1. 26 UN General Assembly 1996, a/51/399-S/1996/778, p. 15. 27 Andreopoulos et al. 2010, p. 171. 21

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state of Rwanda. Not only did this physical distance impede access to witnesses and crime scenes—the Tribunal was wholly dependent on the Rwandan government’s cooperation in facilitating the collection of evidence and in providing access to witnesses through the issuance of visas and flight permits.28 The distance also impacted the access and visibility of the Tribunal to the Rwandans who had experienced gross violations of their human rights first hand.29 The Tribunal would clearly have been more accessible to the Rwandan population had it been located in Kigali; however, the UN Secretary Council’s decision was steadfast, in order to ensure the efficiency, security and impartiality of trials.30 The Tribunal therefore faced a challenge in conveying information about the proceedings taking place in Arusha to the Rwandan population, especially given that a large number of citizens lived in rural areas, that the illiteracy rate in Rwanda was considerably low at the time, and that international criminal law was a new, re-emerging field of law.31 The physical distance of the ICTR was especially significant given that from 1996 the Tribunal worked in parallel with the national Rwandan courts and later on (from 2005) the community based gacaca courts,32 both of which operated within Rwanda and directly involved Rwandan citizens. The use of an international criminal justice system based in Tanzania to address crimes committed within Rwanda raised questions with regard to the necessity of such an expensive international tribunal.33 Furthermore, unlike national courts, an international court or tribunal does not originate from the national legal system and is not established through domestic democratic processes, which understandably creates further questions about their domestic credibility and accountability as the affected population has no control or say over their activities.34 The court’s authority was not based on treaty law, but rather on a resolution created under Chapter VII of the UN Charter, and from its inception—as an international criminal court addressing the crimes that occurred in the sovereign state of Rwanda—the legality of the Tribunal was questioned, especially given that the conflict in Rwanda did not pose any threat to international peace and security.35 Another area of contention was the ratione personae jurisdiction of the ICTR, as it was established to prosecute all those who had violated “international humanitarian law committed in the territory of Rwanda”, leaving open the possibility of prosecution for crimes committed on both sides. Yet, the prosecution of individuals 28

Moghalu 2005, pp. 136–143; Oosterveld and McManus 2002, p. 822. Peskin 2005, p. 951. 30 Ibid., pp. 950–951. 31 Des Forges 1999, p. 58. 32 Gacaca can be loosely translated to “justice amongst the grass”. These community-based courts, inspired by Rwandan tradition, were re-introduced in Rwanda from 2005 to 2012, in order to address the backlog of cases related to the 1994 genocide waiting for trial in conventional domestic courts (Clark 2010). 33 Oomen 2009, pp. 188–189. 34 Vasiliev 2015, p. 5. 35 ICTR, Prosecutor v. Kanyabashi, 18 June 1997, ICTR-96-15-T, pp. 3–4. 29

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in Arusha occurred along ethnic lines: only Rwandans from the Hutu ethnic group36 were indicted and prosecuted by the ICTR.37 By focusing on crimes committed by Hutu and failing to investigate crimes committed by the Tutsi, more specifically certain soldiers from the RPF, the Tribunal was soon accused of conducting “victor’s justice”.38 The pressure on the Tribunal further intensified in 2002, when the Office of the Prosecutor (OTP) signalled plans to pursue investigations into alleged RPF crimes. This move was not well received by the Rwandan government, who responded by restricting all communication with the Tribunal, refusing access to documents and prohibiting the travel of witnesses and ICTR investigators between Kigali and Arusha.39 This response paralysed the Tribunal. Soon afterwards, the ICTR’s chief prosecutor, Carla Del Ponte, was removed from her position in order to concentrate her efforts on the work of the ICTY based in The Hague.40 The mandate of Del Ponte’s successor, Hassan Bubacar Jallow, did not allow for any new investigations.41 As a result, not one member of the RPF was brought before the ICTR for prosecution, and, aside from the one RPF case transferred from the ICTR to the Rwandan courts,42 both national courts and Rwanda’s local gacaca courts also failed to address crimes committed by RPF soldiers; other non-prosecutorial mechanisms (for example truth commissions) were not considered.43 The examples above describe a handful of legitimacy challenges faced by the ICTR during its twenty-year lifespan. The legitimacy of the Tribunal’s existence was of paramount importance. Not only was it imperative that the ICTR be perceived as a legitimate judicial institution for those living in Rwanda, demonstrating that it could assist the country in transitioning from a period of conflict to a more cohesive and stable society; the Tribunal also needed to promote its legitimacy to its two key stakeholders—the UN and the Rwandan government, who played a crucial role in the functioning of this international ad-hoc Tribunal. The ICTR was the first international court to be established on the African continent, with a limited time-frame in which to complete its mandate, and an annual budget that had to be approved by the UN General Assembly. As a result, the Tribunal was fully dependent on the UN for funding and supplying all its operational systems 36

With the exception of Georges Ruggiu, a Belgian national, who played a key role in broadcasting Hutu propaganda as a presented for the radio station Radio Télévision Libre des Mille Collines. In 2000, Ruggiu pleaded guilty to two charges: crimes against humanity (persecution), and direct and public incitement to commit genocide (ICTR, Prosecutor v. Ruggiu, 1 June 2000, ICTR-97-32-I). 37 Bonner 1994, A3; Schabas 2006, p. 388. 38 Moghalu 2005, p. 71; Straus and Waldorf 2011, p. 61. 39 Moghalu 2005, pp. 136–143; Straus and Waldorf 2011, pp. 176–178. 40 ICTR (2003) https://unictr.irmct.org/en/news/security-council-appoints-separate-prosecutorstwo-ad-hoc-un-tribunals. Accessed 21 September 2021. 41 ICTR 2003, S/2003/946, pp. 6 and 11. https://unictr.irmct.org/en/documents/completion-str ategy-reports. Accessed 21 September 2021. 42 The investigation regarding the deaths of fifteen Rwandans, including 13 clergy, at Gakurazo in June 1994, was transferred to the Rwanda judiciary, which resulted in the prosecution of four low-ranking RPF soldiers (Bouka 2013, p. 3; Straus and Waldorf 2011, p. 180). 43 Drumbl 2007, pp. 86, 96–97; Ohlin 2005, pp. 748–749.

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and processes; and it required permission from the Rwandan government to gain access to crimes scenes and witnesses in Rwanda. Without the support and acceptance of these two key stakeholders, the ICTR could not operate. It was therefore imperative that the Tribunal demonstrate its legitimacy in order to ensure continued backing that would enable the continuation of its operations and the completion of its mandate. In order to examine the importance of legitimacy for the ICTR, the following section will break down the concept of legitimacy and will describe the role of legitimisation activities in solidifying the ICTR’s role as a legitimate court of law.

4.3 Legitimacy Although discussion surrounding the term legitimacy is vast and varied, the comparison of the terms legitimacy and legality appears to be the most commonly debated. This is unsurprising given that the term legitimacy is derived from the term lex, the Latin word for law. Indeed, in the legal arena, legitimacy is often connected to the notion of legality in that normative assessments of legitimacy make use of the legal standards of the rule of law. As such, legal scholars have argued that if the government or an organisation complies with the rule of law, it can essentially be considered legitimate.44 Legality and legitimacy are both defined as “being in accordance with the law”, so it is understandable that there may be confusion—and even debate—over their use. However, Vasiliev explains how the two terms legality and legitimacy can be distinguished and recognised in their own right: “legality is a definitive finding which may be controverted by an expert argument or reversed by a competent (e.g. judicial) finding to the contrary. By contrast, legitimacy is a dynamic, relative, and variable value, and is subject to constant renegotiation”.45 Legality therefore refers to a legal framework and defines what fits within the framework, while legitimacy reflects society’s acceptance of such a framework. More specifically, legality consists of two concepts: nulla crimen sine lege (there is no crime without law) and nullum poena sine lege (there is no punishment without law); while legitimacy explains the behaviour regarding compliance to the law. As such, legality examines whether an action is a violation of the law, while legitimacy is concerned with behaviour. However, legality can influence—or indeed play a role in—the construction or definition of legitimacy and vice versa.46 The dynamic between these two concepts unites in the normative approach for assessing legitimacy, which is based predominantly on the rule of law.47 The assessment of legitimacy through legal standards (the legal, normative or objective 44

Nicholson 2017; Schiff 2010; Vasiliev 2015. Vasiliev 2015, p. 10. 46 Nicholson 2017, pp. 658–659. 47 Vasiliev 2015, pp. 11–12. 45

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approach) is a key concept that can only be matched with the second approach used to assess legitimacy: the descriptive (or subjective) approach. Yet it may be argued that the normative and descriptive approaches—and indeed legitimacy and legality— are intertwined. The rule of law is established through legal interpretations made by judges; yet the validity of a judge lies not only in their legal analyses, but also through their behaviour and actions: a judge must issue fair, unbiased and balanced opinions when resolving disputes. As such a judge—and the legal system itself—must be perceived as legitimate. This is vital to ensure that society is ruled by legal codes, rather than through shifting politics or financial influences. Therefore, in order for the standard of the rule of law to be effective in preserving legitimacy, the rule of law must itself be considered legitimate.48 Aside from its legal roots—and interpretation—the seeds for the concept of legitimacy were sown in political philosophy, where the origins of this concept can be traced back to Plato and Aristotle, and were further developed through the works of Hobbes (1651), Locke (1689), Rousseau (1762) and Weber (1922a). Plato describes how the “ideal polity” would be run by a council of philosophers or Kings that “have the spirit and power of philosophy”.49 These leaders would start their rule at the age of fifty—once they had gained essential experience in the world: “let those who still survive and have distinguished themselves in every action of their lives and in every branch of knowledge come at last to their consummation”.50 Aristotle unpacked the notion of society in his essays entitled Politics (335–323 BCE), in which he described humans as social animals that are useless unless they live in a community, with governments that manage and oversee these communities in the pursuit of the common good. Aristotle accentuated the role of justice in ensuring that humans act appropriately and conform to public life.51 Unlike Plato, who believed that experienced “philosopher kings” should rule society,52 Aristotle argued that humans possess different skills and qualities, and that the most competent individuals should be chosen to govern.53 Building on these early works, Thomas Hobbes explored the concept of a social agreement, which examines how moral obligations are formed through a mutual contract (or agreement) that then forms the society in which individuals collectively live together.54 In a similar vein, Jean-Jacques Rousseau explained the need for citizens to work together towards a “harmony of interests”, instead of fighting for their own self-interest; it is on the basis of this “general will”, created by a community of individuals, that the legitimacy of the ruling power is dependant.55 Given that legitimacy depends on the community’s consensus—or social consent—Rousseau 48

Epstein 2014, p. 6; Hilbink 2012, pp. 592–595. Plato and Jowett 2009, pp. 382, 444. 50 Ibid., p. 530. 51 Aristotle et al. 1998, pp. 9–12. 52 Plato and Jowett 2009, p. 530. 53 Aristotle et al. 1998, p. 100. 54 Hardin 2007, pp. 241–243; Hobbes 1998, p. 89. 55 Rousseau 1997, p. 60. 49

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claimed that only democratic or “republic” rule can be legitimate, while an autocracy or dictatorship is by default illegitimate.56 John Locke turned rather towards the notion of consent, whereby individuals feel a legitimate obligation (not just a legal obligation) to the agreement to which they have consented: “all men are naturally in the state of nature, and remain so until they consent to make themselves members of some political society”.57 As such, a government can only be regarded as legitimate if it enjoys the consent of those it governs, while according to Locke consent is only achieved through majority rule.58 Following from the works of Rousseau and Hobbes (social contracts), and Locke (individual consent), Max Weber played a key role in developing the descriptive approach to the notion of legitimacy, through his essay on The Three Types of Legitimate Rule (1922).59 Weber’s work explores the concepts of authority and social order, arguing that the governed need to believe in the legitimacy of a government: the right to rule needs to be justified in order for an authority to be accepted. In line with this, legitimacy has long been recognised as a core element in political and governance systems, dealing with the relationship between societal acceptance of regimes and organisations, and their ability to exercise authority effectively. In the case of organisations—including international courts and tribunals—assessments of legitimacy are based on the way in which an organisation is established, its legality and its underlying values; on the experience, expertise and integrity of the organisation’s staff; and the efficiency and effectiveness of its operational procedures.60 This assessment follows an organisation from its inception throughout its lifespan and may even continue once its operations have discontinued.61 The concept of organisational legitimacy is influenced by a multitude of factors (internal and external), which justifies an organisation’s role in society, and helps attract resources and support from its stakeholders.62 Legitimacy is therefore considered as an important resource in its own right and carries a weight that can make or break an organisation. However, perceptions of an organisation’s legitimacy may differ among various stakeholders; they can be contradictory, evolve over time and be difficult to operationalise. Gaining, maintaining and repairing organisational legitimacy can therefore be a challenge.63

56

Ibid., pp. 138–139. Locke 2014, p. 7—original emphasis. 58 Ibid., pp. 24–25. 59 Weber 1922b; original title: Die drei reinen Typen der legitimen Herrschaft. 60 Brinkerhoff 2005. 61 Bodansky et al. 2013. 62 Bitektine 2011. 63 Deephouse et al. 2017; Suchman 1995. 57

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4.3.1 Legitimacy and Transitional Justice Following the collapse of state order and the violations of human rights, ensuring that transitional justice mechanisms are perceived as legitimate is of critical importance if a society is to rebuild their trust in state run organisations: “strengthening people’s perceptions of legitimacy should be of concern to all those involved in these institutions”.64 The legitimacy of organisations involved in transitional justice is particularly vital for their acceptance in post-conflict societies and has an influence on their potential to contribute to peace and justice. Studies have shown how legitimacy promotes compliance and cooperation, which in turn enhances the collective social order and social stability.65 The legitimacy of transitional justice mechanisms is thought to be achieved when their processes are transparent, they are aligned with pre-set norms and they adhere to values that are acknowledged as universally and/or locally accepted, and when these accepted standards are explicitly communicated to all concerned.66 The role of international criminal courts in the post-conflict environment is to contribute to the process of transitional justice in places that have experienced gross human rights violations. Indeed, although the primary mandate of the ICTR was “bringing to justice those responsible for serious violations of international humanitarian law”, UN Resolution 955 also states that “the prosecution of persons responsible for serious violation of international humanitarian law would […] contribute to the process of national reconciliation and to the restoration and maintenance of peace”.67 This was reiterated by a spokesperson for the ICTR, Tim Gallimore, who explained that “through taking judicial notice in its cases, the Tribunal’s legal process may contribute significantly to reconciliation in Rwanda”.68 Indeed, Kathryn Sikkink’s Justice Cascade theory demonstrates that by holding political and military leaders accountable for their actions, international criminal trials have the capacity to change the practices and norms of national criminal justice systems.69 Failure to identify and respond to legitimacy challenges can compromise both international criminal courts and the laws that they interpret and apply; it is therefore critical for international criminal courts to be perceived as legitimate instruments of law within post-conflict societies: if international criminal courts lack justified authority, so too will their interpretations of international criminal law.70 Furthermore, research by Mark Suchman demonstrates how legitimacy affects how individuals understand and act towards organisations: a legitimate organisation is perceived as more meaningful, more predictable and, as a result, is considered trustworthy.71 64

Oomen 2009, p. 175. Beetham 2013, p. 20. 66 Beetham 1991, pp. 15–20; Hazan 2006, p. 46; Oomen 2007, p. 144; Suchman 1995, p. 574. 67 UN Security Council 1994b, S/RES/955, p. 1. 68 Gallimore 2006, p. 2. 69 Sikkink 2011. 70 Cryer et al. 2019, pp. 3–8; Smeulers and Grünfeld 2011, pp. 3–34; Vasiliev 2015, pp. 5–8. 71 Suchman 1995, p. 573–575. 65

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However, the complexity of international criminal law, the time and money spent on international trials, the physical distance of most international courts to the survivors of atrocities, as well as language and cultural barriers, run the risk of leaving target populations—including legal professionals—unaware or unable to understand the work of these courts. As a result, international criminal courts may become inaccessible or be perceived as irrelevant to local populations, and consequently be unable to have any meaningful impact on the society that they are seeking to serve.72 Additionally, these international courts often operate in a completely different social, political and legal sphere than national organisations: [….] all social systems must confront what we might call the problem of social control – that is, how to get actors to comply with society’s rules – but the problem is particularly acute for international relations, because the international social system does not possess an overarching center of political power to enforce rules.73

International criminal courts also have a wide variety of stakeholders: the international community (often represented by the UN); individual member states; the survivors and the perpetrators; and the groups or organisations that represent the perpetrators or the survivors. If an international criminal court is to maintain its legitimacy, the influence of the international community (for example the UN Security Council) or independent states (in this case Rwanda) must be limited.74 This in itself presents a challenge, as “constituencies […] have different expectations regarding what constitutes proper behaviour”.75 The need for “proper behaviour” is especially relevant in the case of international criminal courts and tribunals, which—as inherently legal organisations—embody the international rule of law: an international criminal court has a responsibility to exemplify legitimacy by providing unbiased adjudication, demonstrating a commitment to procedural justice and ensuring a strict adherence to the rule of law.76 That said, creating a relationship of legitimacy between an international court and the citizens of a particular country might depend more on factors such as traditions, values, customs and culture.77 The challenges for international criminal courts are therefore great. Yet, the need for these courts of law to be perceived as legitimate is especially important given that they also play a key role in contributing to the success of transitional justice, which aims to restore peace, fight impunity and promote reconciliation between opposing factions in a post-conflict state.78

72

Peskin 2005, p. 951. Hurd 1999, p. 379. 74 Shelton 2008, pp. 543–544 75 Barnett and Finnemore 2004, p. 171. 76 Helfer and Slaughter 1997, pp. 389–391. 77 Schiff 2010, p. 42. 78 Shany 2012, p. 253; Vasiliev 2015, p. 6. 73

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4.3.2 Managing Legitimacy Aside from the greater societal implications regarding the legitimacy of an organisation, legitimacy is also an important factor in the daily operations of an organisation for a variety of reasons: it is used as a means to collaborate with other organisations and provides access to resources such as personnel, capital, technology and material goods.79 Legitimacy often has been conceptualized as simply one of many resources that organisations must obtain from their environments […] Legitimacy itself has no material form. It exists only as a symbolic representation of the collective evaluation of an institution, as evidenced to both observers and participants perhaps most convincingly by the flow of resources.80

In order to address the complexities of conducting trials in a post-conflict environment, international criminal courts require strong relationships and collaboration between states, and good communication (and understanding) between all parties. Legitimacy plays an important role in these relationships, which are not only critical in safeguarding the legitimacy of international criminal courts but also enable them, as a legitimate organisation, to do their job by providing much needed resources, infrastructure and recognition.81 When examining organisational legitimacy, many authors turn to a paper written by Mark Suchman, which provides a framework from which to understand and define organisational legitimacy, and which identifies how organisations have sought to manage their legitimacy in the past.82 Suchman’s research describes three forms of organisational legitimacy: pragmatic, moral and cognitive legitimacy. Pragmatic legitimacy relates to the self-interest of the organisation’s most immediate stakeholders: the organisation fulfils the needs and interests of its stakeholders by providing certain services and products, and in exchange the stakeholders support the organisation and consider it as legitimate.83 The second type of organisational legitimacy is defined as moral legitimacy, which rests on normative approval and whether any given activity is “the right thing to do”. In this context, a legitimate organisation reflects the desired norms and values of a given society and meets the accepted standards with regard to its outputs, procedures, structures, and the conduct of its employees.84 The third and final type of organisational legitimacy is cognitive legitimacy, which denotes a legitimacy that is “taken-for granted” and unchallenged; the organisation is part of a larger, socially constructed reality, which protects or reassures the stakeholders. Cognitive legitimacy is bestowed on an organisation when

79

Zimmerman and Zeitz 2002; Meyer et al. 2013. Hybels 1995, p. 243. 81 Bassiouni 1994, pp. 1192–1193, 1197; Cassese 1998, pp. 12–13; Drumbl 2007, pp. 144–148. 82 Suchman 1995. 83 Ibid., pp. 578–579. 84 Ibid., pp. 579–582. 80

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it pursues goals and activities that fit with broad social understandings of what is appropriate, proper and desirable.85 These three types of legitimacy also reflect different types of legitimacy challenges that an organisation may face: performance challenges are directly related to the actions and behaviour of an organisation and/or its staff, which links to pragmatic legitimacy; value challenges relate to the organisation’s mission and vision, affecting the organisation’s moral legitimacy; and legitimacy challenges related to failures of meaning are linked to cognitive legitimacy. This last form of legitimacy challenge goes deeper than the performance and values challenges, as they touch on the validity of an organisation’s existence: stakeholders may begin to suspect that the structure of the organisation is in fact a facade, or that the organisation’s outputs may actually be harmful, or that so-called efficient procedures are an illusion.86 In order to address challenges to an organisation’s legitimacy, organisations use a variety of legitimisation activities. Legitimisation87 is the act of promoting legitimacy, it is the process of making something legitimate (acceptable) to a society, a specific group or an individual. Legitimisation is achieved by providing arguments that explain actions, ideas or decisions, from which to gain support and approval. Research shows how issues can be framed in specific ways to advance the legitimisation of certain decisions or practices; and how– whether intentional or not–different accounts can provide radically different understandings of issues, and result in either legitimisation or de-legitimisation.88 According to Suchman (1995), legitimisation activities are used in three different scenarios: to gain legitimacy, maintain legitimacy, or to repair legitimacy. Legitimisation activities linked to gaining legitimacy are used when a new organisation is established, or when a new organisational structure or process is introduced, or with the introduction of a new employee (ex. a board member or director). In order to maintain legitimacy during the course of its existence, an organisation will adopt activities that highlight, promote or protect its past accomplishments, while also mitigating the risk of any future legitimacy challenges. Finally, an organisation may be required to repair its legitimacy. This often requires a reactive response to an unforeseen challenge.89 With regard to repairing legitimacy, an organisation’s immediate response is to formulate a normalising account that separates the threatening revelation from a larger assessment of the organisation as a whole using either symbolic or substantive actions.90 Symbolic legitimisation activities relate to the discursive actions of an organisation in response to a legitimacy challenge, which often do not involve any structural changes within the organisation. Symbolic activities can be defined as six different (sometimes overlapping) categories of action: (i) the promotion 85

Ibid., pp. 582–583. Deephouse et al. 2017, pp. 23–24. 87 Also referred to as legitimation. 88 Creed et al. 2002, p. 492; Deephouse et al. 2017, p. 21; Reyes 2011, p. 782. 89 Suchman 1995, pp. 586, 595–597. 90 Ashforth and Gibbs 1990. 86

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of socially acceptable goals; (ii) denial and concealment (suppressing information); (iii) redefining its objectives and goals; (iv) providing excuses and justifications (offering an explanation for the organisation or staff member’s behaviour); (v) offering an apology; and (vi) ceremonial conformity, whereby an organisation might adopt certain symbolic practices that are consistent with social expectations, but will leave the essential operational procedures of the organisation intact. These six categories may be used interchangeably or in combination, and may also be used together with substantive actions.91 Unlike symbolic legitimisation activities, substantive activities involve a significant change in the objectives, the organisational structure(s) and/or the activities of an organisation in response to questions regarding its legitimacy. Ashforth and Gibbs provide four categories of substantive action: (i) role performance, which involves the organisation taking action in an appropriate and expected manner; (ii) coercive isomorphism, whereby the organisation is pressured into changing, rather than responding to the legitimacy challenge on its own accord; (iii) altering resource dependencies, by which the organisation avoids dependence on any one particular stakeholder or supplier, thereby retaining a certain flexibility and freedom in its actions; and (iv) altering socially organisationalised practices, whereby the organisation attempts to make its environment conform to its actions and practices, through lobbying or advertising campaigns (for example, the tobacco industry in the 1950s).92 The theoretical framework presented here describes the dynamics of organisational legitimacy; however, Sect. 4.2 of this chapter will demonstrate that managing an organisation’s legitimacy is multifaceted, and that a challenge to legitimacy may be addressed in different ways depending on when the challenge is perceived by the organisation, who perceives the challenge, and how it is perceived. Furthermore, a legitimacy challenge may consist of other challenges and/or act as a catalyst for additional legitimacy challenges. The following section examines the use of legitimisation activities in practice, in response to two specific legitimacy challenges. Reference will be made to data that was collected during field research, primarily consisting of interviews93 and archival research conducted between 2019 and 2020. The primary data was triangulated with secondary data obtained through desk research consisting predominantly of reports made by media and civil society organisations, and a review of academic literature. All data was analysed using ATLAS software, during which an open coding method was used.94

91

Ibid., p. 180. Ibid., p. 178. 93 All interviews are anonymised. Dates are not included given that they can be used to trace back to the interviewee. 94 Strauss and Corbin 1990. 92

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4.4 The ICTR’s Legitimisation Activities For justice to contribute to comprehensive national reconciliation processes, both academics and policy-makers agree that it is important for the affected populations to be provided with an understanding of an international court or tribunal’s work;95 and according to sociologist David Beetham, the first condition of legitimacy is that it is acquired and exercised in accordance with established rules.96 In the case of the ICTR: UN Resolution 955 and the subsequent ICTR Statute and Rules of Procedure and Evidence97 provided a solid foundation for a legitimate Tribunal. The Tribunal’s conformity with these rules provided an additional touchstone from which to measure the organisation’s legitimacy.98 Research has shown that organisations often act to enhance their legitimacy by promoting a favourable image of their activities or their staff, or by donating to charities and actively seeking external endorsements.99 In line with this, the ICTR established a “sustained strategic communication program using a range of techniques to explain its work and relevance to audiences in Rwanda as well as the international community”.100 The ICTR’s communication programme was perceived as “the primary channel to ensure that the concerned people are informed about the work of the tribunal” and was consequently expected to have a positive impact on the perception of the court as a legitimate criminal court.101 Yet, promoting the image of the ICTR was not as straightforward as it may sound, as explained by a former ICTR staff member: It was very difficult to keep people interested in the Tribunal’s activities. Trials were so long and people are only interested in the outcome. So yes, keeping people interested and informed was a challenge. There is not much to say about the everyday activities of a court. At least, not what the general public is interested in.102

Within the Tribunal, the responsibility for handling all matters related to public information and external relations fell to the Registry which was responsible for the ICTR’s administration, including both judicial and non-judicial support.103 In 2003, all external relations tasks were assigned to a new department: the External Relations and Strategic Planning Section (ERSPS), which was also charged with policy 95

Clark 2010, pp. 33–45. Beetham 1991, pp. 15–20. 97 UN Security Council 1994b, S/RES/955; ICTR 2010; ICTR Rules of Procedure and Evidence. https://unictr.irmct.org/en/documents/rules-procedure-and-evidence. Accessed 21 September 2021. 98 Cryer et al. 2019, p. 137. 99 Galaskiewicz 1985; Salancik and Pfeffer 1978. 100 Gallimore 2006, p. 1. 101 Ibid., p. 2. 102 Interviewee T18. 103 ICTR 2010, Article 16. https://unictr.irmct.org/sites/unictr.org/files/legal-library/100131_Sta tute_en_fr_0.pdf. Accessed 21 September 2021; ICTR 2015, rule 33. All press-related matters were originally managed under the Press and Information Section, renamed the Press and Public Affairs Unit in 2001. 96

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development, strategic planning, and fundraising for the ICTR. The ERSPS was, therefore, designated the task of communicating the developments and functioning of the ICTR, specifically with regard to its UN mandate.104 The ERSPS was in regular contact with the media, ensuring the wide dissemination of information about the activities of the ICTR through press briefings, as well as developing and updating the Tribunal’s own website, producing newsletters and distributing information brochures in English, French and Kinyarwanda. Not only did the ERSPS’s work seek to inform and raise awareness regarding the Tribunal’s activities, the Section was bound by the Principle of Publicity,105 which required the Registry to make ICTR documents publicly available: all motions and requests filed by the parties (defence and prosecution), any decisions or judgements, transcripts and recordings of public hearings, and the minutes of proceedings. When asked whether some of the ERSPS’s activities might be (explicitly or implicitly) linked to promoting the ICTR’s legitimacy, one former ICTR staff member explained that such legitimisation activities or documents did not exist: “There was no strategy regarding legitimacy”.106 Instead, the ERSPS was mandated to “contribute[s] to the building of a positive image of the Tribunal”.107 Indeed, despite several former ICTR staff members affirming that the Tribunal had absolute legitimacy108 the importance of the ICTR’s image was evident through the archival research and interviews with those that had worked at the ICTR. In 2000, following an incident at the ICTR’s Kigali office, the registrar, Adama Dieng, called a general staff meeting in Arusha: “We cannot have the image of the Tribunal tarnished at this critical phase of our completion strategy as a result of misconduct of some staff members”.109 The message is repeated again in 2005, during which the key objective of the ERSPS is reiterated “Building a positive image of the Tribunal”.110 Even those working on the defence teams emphasised the importance of image: Our image was very important. We were conscious of this. We wanted to prevent people thinking that we were not impartial, so we were careful about how we portrayed ourselves. […] the environment was tense. This entered into of our private life. We had to be on good behaviour at all times. We could not have parties for example, or invite big groups around, because it would easily give a negative image.111 104

Tribunal Voices 2008, video 89. http://www.tribunalvoices.org/voices/video/89. Accessed 21 September 2021. 105 ICTR 2010, Article 20. 106 Interviewee T5. 107 Dieng 2004. 108 Interviewees T10, T16, T17 and T19. 109 Dieng 2000. 110 Dieng 2005. 111 Translated from French: “Notre image était très importante. Nous en étions conscients. Nous voulions empêcher les gens de penser que nous n’étions pas impartiaux, nous avons donc fait attention à la façon dont nous nous représentions. […] L’environnement était tendu. Cela faisait partie de note vie privée. Nous devions toujours avoir un bon comportement. Nous ne pouvions pas organiser de fêtes par exemple, ni inviter de grands groupes, car cela donnerait facilement une image négative.” (Interviewee T23)

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The ICTR’s focus on its external image was also highlighted by journalists based in Arusha at the time, who had covered the activities of the Tribunal: “It was more concerned with its image for the outside world.”112 However, when it came to communicating this positive image, another journalist was sceptical: There was no communication strategy. As with all big institutions. People working there didn’t know what they were supposed to communicate or how, so they just made sure to promote the ICTR in any way possible. They always aimed to place it in good light. There was certainly not a problem with lack of resources.113

According to a third journalist, working for an international media outlet, the Tribunal’s legitimisation activities, or the promotion of its image, did not reach the Rwandan public: “Rwandans were not interested, including the Rwandan Government. This was a major flaw. If anything the ICTR retained a negative image throughout and didn’t do much to improve their image”.114 This negative image of the Tribunal was not evident in the newspaper articles consulted within the ICTR’s archive, nor during archival research conducted in Rwanda. However, with regard to external relations, a former ICTR employee explained that the official communication channels were conducted through the Rwandan government and the governments of UN member states: “The link with Rwanda was through the Ministry of Justice and with States was through the Ministry of Foreign Affairs”.115 The responses given by the journalists116 do, however, raise questions regarding the ICTR’s legitimisation activities. The implications of losing legitimacy pose a serious threat to all organisations, whether public or private in nature: there may be economic, political, legal or reputational consequences, or other social ramifications. Likewise, an increase in the perception of legitimacy is beneficial for an organisation for the same reasons: it may lead to more partnerships, the strengthening of existing support networks and/or more funding. Legitimacy is therefore key for the existence and development of an organisation.117 Regardless of whether a strategy to promote the Tribunal’s legitimacy was in place, or indeed whether activities were implemented to improve the image of the Tribunal (rather than viewed as legitimisation), the actions of the ICTR provide an insight into the type of legitimacy promoted by the Tribunal (moral, pragmatic or cognitive) and the stakeholders that were targeted through the activities and communications implemented and promoted by the Tribunal. 112

Interviewee M2. Translated from French: “Il n’y avait pas de stratégie de communication. Comme toutes les grandes institutions. Les gens qui y travaillaient ne savaient pas ce qu’ils étaient censés communiquer ou comment, alors ils s’assuraient simplement de promouvoir le TPIR de toutes les manières possibles. Ils ont toujours cherché à le placer sous un bon éclairage. Le manque de ressources n’était certainement pas un problème.” (Interviewee M3) 114 Translated from French: “Les Rwandais n’étaient pas intéressés, y compris du gouvernement rwandais. C’était un défaut majeur. En fait, le TPIR a conservé une image négative tout au long et n’a pas fait grand-chose pour améliorer leur image.” (Interviewee M1) 115 Interviewee T18. 116 Interviewees M1, M2 and M3. 117 Meyer et al. 2013, pp. 169–171. 113

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In order to further examine the legitimisation activities implemented by the ICTR, and the consequences of their use, two legitimacy challenges will be described. The first concerns the case of Jean-Bosco Barayagwiza, a former government official at the time of the 1994 genocide, who was also one of the founders of Radio Television Libre des Milles Collines (RTML).118 Irregularities in the handling of Barayagwiza’s case led to serious questions regarding the ICTR’s legitimacy and the actions in this situation appear to have played a role in a subsequent legitimacy challenge, related to the removal of the ICTR’s chief prosecutor at the time, Carla Del Ponte. The following sections will examine these two legitimacy challenges, and the legitimisation activities implemented to repair the Tribunal’s legitimacy.

4.4.1 The Jean-Bosco Barayagwiza Case The trials that took place at the ICTR were long and complex, with most external attention focused on the final judgement of each case. The conviction and sentencing of those accused involved in the 1994 genocide was widely celebrated, especially in Rwanda, while the acquittals and the early release of those convicted for crimes of genocide was generally met with disbelief and outrage.119 This was especially evident in the case of Jean-Bosco Barayagwiza. Barayagwiza had been a senior official in the Foreign Ministry and chair for Gisenyi prefecture of the Coalition pour la Defense de la Republique (CDR), a farright political party that boycotted the 1993 Arusha Peace Agreement; he was also one of the founders and a senior director of RTML, which played a significant role during the 1994 genocide.120 Following the genocide, Barayagwiza fled from Rwanda and settled in Cameroon. In March 1996, Rwanda’s general prosecutor issued an international arrest warrant for Barayagwiza, followed by a request for extradition, and by mid-April Barayagwiza had been arrested. The hearings on Rwanda’s extradition application began a few days later. At the same time, the ICTR’s prosecutor requested provisional measures with regard to Barayagwiza, pursuant to Rule 40 of the Rules of Procedure and Evidence (RPE). As a result, on 31 May 1996, the Yaounde Court of Appeal suspended the Rwandan extradition hearing, explaining that they were acting pursuant to Article 8(2) of the ICTR Statute, which asserts the ICTR’s primacy over all cases linked to the Rwandan genocide and requires states to relinquish jurisdiction in its favour. However, in a letter dated 15 October 1996, the new ICTR prosecutor, Louise Arbour, informed the authorities in Cameroon that the ICTR was not interested 118

RTML played a pivotal role in broadcasting the Hutu propaganda, inciting violence against individuals from the Tutsi ethnic group, prior to and during the 1994 genocide. 119 Translated from French: “Avez-vous rencontré le juge [nom]? Il m’a dit qu’il ne ferait pas la même chose que le juge [nom]. Il était très méprisé par de nombreux Rwandais en raison des libérations anticipées.” (Interviewee CS9). 120 Moghalu 2005, p. 102.

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in prosecuting Barayagwiza. The Yaounde Court of Appeal therefore continued the extradition hearing, which eventually denied Rwanda’s extradition request, and ordered the release of Barayagwiza.121 Barayagwiza was due to be released from detention on 21 February 1997; however, on the same day the ICTR prosecutor reversed her position and issued an urgent request for the provisional detention of Barayagwiza, pursuant to Rule 40 (RPE). A few days later the OTP requested an order for the transfer of the accused to the ICTR in accordance with Rule 40bis (RPE), which was signed by Judge Lennert Aspegren on 3 March 1997 and issued the following day.122 In September 1997, after months of detention in Cameroon, Barayagwiza filed a writ for habeas corpus, which was never met with a response from the ICTR. It does not appear to have come before any of the ICTR’s judges. The President of Cameroon finally authorised Barayagwiza’s transfer on 21 October 1997, and a month later, on 19 November 1997, Barayagwiza was transferred from Cameroon to the UN Detention Facility in Arusha. On 23 February 1998, Barayagwiza came before the ICTR judges for the first time and pleaded not guilty to all the counts in the indictment. The next day he filed an Extremely Urgent Motion seeking to nullify his arrest. The motion was dismissed on 17 November by Trial Chamber II.123 However, on 27 November Barayagwiza appealed the decision pursuant to Rule 72(D), and in its decision of 3 November 1999, the Appeals Chamber ordered Barayagwiza to be returned to authorities in Cameroon, dismissing the OTP’s indictment “with prejudice to the Prosecutor”.124 The decision made by the Appeals Chamber was made in accordance with the judicial process and with the ICTR judges demonstrating the impartial nature of proceedings: “As troubling as this disposition may be to some, the Appeals Chamber believes that to proceed with the Appellant’s trial when such violations have been committed, would cause irreparable damage to the integrity of the judicial process”.125 The response to this decision was indeed “troubling” to many. One interviewee described the disbelief at hearing of Barayagwiza’s acquittal: “It is unacceptable that they allowed acquittals purely for technical reasons”.126 The Rwandan government responded by suspending its cooperation with the Tribunal: investigators were prevented from accessing crime scenes and speaking to witnesses; and demonstrations took place outside the ICTR’s Kigali office.127 The pressure of this boycott on the ICTR was immense, as explained by Roland Amoussouga, who was working as a legal officer within the ICTR at the time: 121

ICTR, Prosecutor v. Barayagwiza, Decision, 3 November 1999, ICTR-97-19-AR72, para 5–7. ICTR, Prosecutor v. Barayagwiza, Order for transfer and provisional transfer, 3 March 1997, ICTR-97-19-DP. 123 ICTR, Prosecutor v. Barayagwiza, Decision, 17 November 1998, ICTR-97-19-1. 124 ICTR, Prosecutor v. Barayagwiza, Decision, 3 November 1999, ICTR-97-19-AR72, para 108. 125 Ibid. 126 Interviewee M2. 127 Moghalu 2005, p. 108; Peskin 2008, pp. 181–182; The New Humanitarian (1999) https://www. thenewhumanitarian.org/fr/node/179881. Accessed 21 September 2021. 122

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[…] we have had decisions that have tested the will of all parties concerned. Barayagwiza. When the court decided that ok, Barayagwiza, the Prosecutor violated his rights therefore he should be set free. Immediately there was a big fight with Rwanda government. […] They put pressure on witnesses not to come and there was a threat from the Tribunal to report Rwanda to the Security Council until the time appeals chamber come and reverse and then we got – the relationship got normalized.128

Following the backlash related to the Chamber’s dismissal of the OTP’s indictment against Barayragwiza, the same Appeals Chamber suspended their decision a few weeks later, on 25 November 1999. In response to requests from both the OTP and the Rwandan government, the Chamber agreed to a new hearing in order to consider new facts brought forward by the prosecutor, Carla Del Ponte.129 The decision to suspend the Appeals Chamber decision of 3 November, despite the ruling that “to proceed […] would cause irreparable damage to the integrity of the judicial process”,130 highlight the Tribunal’s awareness of their dependence on the relationship with the Rwandan government—a key stakeholder. This suspension represents a legitimisation action consistent with role performance, demonstrated by organisations seeking to repair their pragmatic legitimacy.131 Furthermore, the subsequent hearing was held in Arusha, rather than in The Hague where the ICTR’s Appeals Chamber was located, which shows additional steps taken by the ICTR to demonstrate the transparency and fairness of its proceedings.132 At this point, the ICTR was experiencing an important legitimacy challenge. Given the sensitive context within which the Tribunal was working, the fluctuation of legitimacy related to acquittals was, in most cases, beyond its control. However, the acquittal of Barayagwiza due to technical reasons, provided the ICTR with an existential problem. During the new hearing, the ICTR prosecutor and the attorney general for Rwanda, Gerald Gahima, presented arguments as to why the Appeals Chamber should reverse its decision.133 A key argument from both Del Ponte and Gahima was that the Tribunal had been established to assure that those most responsible would be prosecuted before an international criminal tribunal. This relates to the Tribunal’s mission and vision, and therefore implicates the moral legitimacy of the ICTR. The Tribunal’s response to the public outcry and pressure from the Rwandan government demonstrates a substantive legitimisation activity labelled as coercive isomorphism, whereby an organisation is forced to act in line with the expectations of its stakeholders. This is done, however, while emphasising that they are conforming to their own norms and procedure: “The Prosecutor of the ICTR, Ms Carla Del Ponte, had asked the Chamber […] to review its judgment of 3 November 1999, a 128

Tribunal Voices (2008) video 89. http://www.tribunalvoices.org/voices/video/89. Accessed 21 September 2021. 129 ICTR, Prosecutor v. Barayagwiza, Order, ICTR-97-19-AR72, 25 November 1999. 130 ICTR, Prosecutor v. Barayagwiza, Decision, 3 November 1999, ICTR-97-19-AR72, para 108. 131 Ashforth and Gibbs 1990, p. 183. 132 Peskin 2008, p. 182. 133 See amicus curiae brief filed by the Rwandan government on 15 February 2000.

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procedure provided for by the Statute and the Rules of Procedure of the Tribunal”.134 This statement demonstrates a justification—a symbolic legitimisation action that explains the behaviour of the Tribunal. This symbolic act not only highlights the legitimacy of the Tribunal—demonstrating that it has procedures in place that allow a case to be reviewed—it also validates the substantive legitimisation action taken, which relates to the core values of the organisation—why it exists and how it should function: “[…] the remedy ordered by the Appeal Chamber in its judgement of 3 November 1999, […] now appeared disproportionate in relation to the circumstances and had to be revised”.135 On the 31 March 2000, the Appeals Chamber confirmed that Barayagwiza’s rights had been violated, yet not as severely as originally found, and on 3 December 2003 Barayagwiza was found guilty of committing crimes of genocide and crimes against humanity.136 The new approach put forward by the Appeals Chamber suggests that the decision to go ahead with a trial, and eventually convict Barayagwiza, was due to the crippling effect of the Rwandan government’s suspension of all Tribunal activities in Rwanda.137 Both the prosecutor and the Rwandan government had achieved what they set out for. However, Judge Nieto-Navia argued otherwise on 31 March 2000, emphasising the independence of the Tribunal as an international judicial body: I refute most strenuously the suggestion that in reaching decisions, political considerations should play a persuasive or governing role, in order to assuage States and ensure cooperation to achieve the long-term goals of the Tribunal. On the contrary, in no circumstances would such considerations cause the Tribunal to compromise its judicial independence and integrity. This is a Tribunal whose decisions must be taken, solely with the intention of both implementing the law and guaranteeing justice to the case before it, not as a result of political pressure and threats by an angry government.138

Despite Nieto-Navia’s statement to the contrary, the legitimisation activities taken in this case appear to have damaged the legitimacy of the Tribunal for other stakeholders: “For the RPF, the Arusha tribunal’s judicial process is a means to seal its military victory over the forces of genocide”.139 As a result, the impression that the ICTR was being used as a political tool, rather than a mechanism to promote reconciliation in Rwanda, was starting to take shape.140

134

ICTR (2000) https://unictr.irmct.org/en/news/barayagwiza-be-tried-ictr. Accessed 21 September 2021. 135 Ibid. 136 ICTR, Prosecutor v. Barayagwiza, Judgement and Sentence, 3 December 2003, ICTR-99-52-T, pp. 28–29. 137 Moghalu 2005, pp. 111–113; Peskin 2008, p. 183. 138 ICTR, Prosecutor v. Barayagwiza, Decision, Separate Declaration, 31 March 2000, ICTR-9719-AR72, para 7. 139 Moghalu 2005, p. 137. 140 Apuuli 2009; Bouka 2013.

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4.4.2 The Removal of the ICTR’s Chief Prosecutor, Carla Del Ponte This was not the last time that the ICTR’s prosecutor, Carla Del Ponte, would be embroiled in controversy. During the Barayagwiza case, Del Ponte had placed the ICTR judges in a difficult position having stated at a hearing, on 22 February 2000, that: Whether we want it or not, we must come to terms with the fact that our ability to continue with our prosecution and investigations depend on the government of Rwanda. That is the reality that we face. What is the reality? Either Barayagwiza can be tried by this Tribunal, in the alternative; or the only other solution that you have is for Barayagwiza to be handed over to the state of Rwanda to his natural judge, judex naturalis. Otherwise I am afraid, as we say in Italian, possiamo chiudere la baracca. In other words we can as well put the key to that door, close the door and then open that of the prison. And in that case the Rwandan government will not be involved in any manner.141

The political influence on the reasoning of the Appeal Chamber’s judges had been vigorously denied, notably by Judge Nieto-Navia. Nevertheless, the prosecutor’s statement implied that the Tribunal should comply with the Rwandan government’s request if it were to have a chance to continue its operations. The tables turned, however, when Del Ponte came under fire from the Rwandan government for starting investigations into the actions of the RPF in 1994.142 Shortly after her appointment in 1999, Del Ponte had announced that she would tackle not only the crimes of genocide committed during 1994, but also the international crimes that witnesses claimed had been committed by RPF soldiers.143 The ICTR’s first prosecutor, Richard Goldstone, had avoided the issue of investigating the RPF, working instead on building a relationship of cooperation between the ICTR and the Rwandan government. At the time, an agreement had been made to allow the Rwandan government to prosecute any crimes committed by its own soldiers.144 Louise Arbour, who was the ICTR’s second chief prosecutor (from 1996 to 1999), explored the possibility of investigating the RPF’s actions, but these investigations were soon abandoned for security reasons. Arbour later stated that “[Kagame’s government] could turn on and off the co-operative tap at will, depending whether they were pleased or not with the work that was being done”.145 It was therefore Carla Del Ponte, the third ICTR prosecutor (in post from 1999 to 2003), who finally

141

ICTR, Prosecutor v. Barayagwiza, Decision, 31 March 2000, ICTR-97-19-AR72, para 2. Moghalu 2005, p. 134. 143 ICTR (2000) https://unictr.irmct.org/en/news/prosecutor-outlines-future-plans. Accessed 21 September 2021; Moghalu 2005, p. 133; Peskin 2008, pp. 188–189. 144 Thomson 2017, p. 185. 145 The Globe and Mail (2016) https://www.theglobeandmail.com/news/world/kagame-gov ernment-supporters-complicated-un-efforts-to-investigate-crimes/article32524359/. Accessed 21 September 2021. 142

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established a Special Investigations team dedicated to looking into the possibility that the RPF may have committed international crimes in 1994.146 Yet, as soon as they started, the Special Investigations were confronted with serious operational obstacles. As in the case of Barayagwiza, the message from the Rwandan government was clear: cooperation with the Tribunal would be suspended if investigations into the actions of RPF soldiers continued.147 The popular opinion in Rwanda agreed: pursuing crimes allegedly committed by those that had put a stop to the genocide in 1994 was out of the question, as explained by the representative of a civil society organisation, working in Rwanda at the time: “The RPF stopped the genocide, the Unity government came to power. It was they who decided to fight impunity. The genocide convention of ‘48 had been signed but never put into place due to the government’s genocidal plan at the time. […] Del Ponte was looking the wrong way”.148 The prosecutor’s actions also drew criticism from within the Tribunal, as described by a former staff member: She was most interested in her image. Not the victims. They didn’t have enough information about other crimes. If she had this, she would have brought the case to court. She didn’t. How could she go to the government to say she wanted to prosecute them? It was destined to fail. She should have found another way. We have a poor image of Carla del Ponte. She was a strong prosecutor from Italy. She was used to the mafia. She wanted to show her skills. But bringing this justice to destroy peace and the government? This was not right.149

As in the Barayagwiza case, the actions of the OTP resulted in the Rwandan government boycotting all activities related to the Tribunal. This time the government went a step further than in 1999, causing the ICTR to temporarily shut-down its operations: visa applications for ICTR staff were rejected or withdrawn, preventing investigators from working in Rwanda; and airport landing permits were denied, stopping all flights between Arusha and Kigali that were carrying investigators and witnesses to and from the ICTR. The sudden lack of witnesses arriving in Arusha brought the work of the Tribunal to a complete standstill.150 The government’s actions provoked a series of tense exchanges between the UN Secretary General and the ICTR, with Del Ponte demanding that the UN exert pressure on Rwanda to “cooperate fully” with the Tribunal, as required in UN Resolution 955.151 146

Moghalu 2005, p. 133; Peskin 2008, pp. 188–191. Peskin 2008, pp. 187, 212–213. The reason given for the suspension of all cooperation with the Tribunal was the poor treatment of witnesses (ibid., p. 213). 148 Interviewee CS7. 149 Translated from French: “Elle était surtout intéressée par son image. Pas les victimes. Ils n’avaient pas suffisamment d’informations sur ces autres crimes. Si elle avait eu cela, elle aurait porté l’affaire devant les tribunaux. Elle ne l’a pas fait. Comment a-t-elle pu s’adresser au gouvernement pour dire qu’elle voulait les poursuivre. C’était voué à l’échec. Elle aurait dû trouver un autre moyen. Nous avons une mauvaise image de Carla Del Ponte. Elle était une forte procureure italienne. Elle était habituée à la mafia. Elle voulait montrer ses compétences. Mais amener cette justice pour détruire la paix et le gouvernement? Ce n’était pas juste.” (Interviewee T9). 150 Moghalu 2005, p. 134; Peskin 2008, pp. 187, 213. 151 Peskin 2008, pp. 218–219; UN Security Council 1994b, S/RES/955, para 2. 147

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Following several weeks of discussions—involving the Rwandan government, the UN Secretary General, UN member states (in particular the USA and the UK) and the ICTR’s prosecutor herself—a decision was made by the UN Security Council to remove Del Ponte from the ICTR. With completion strategies for both the ICTY and the ICTR in place, the UN Security Council agreed that two separate prosecutors were needed—one for each Tribunal—in order to ensure that both the ICTR and the ICTY could meet their deadlines and close on time. The resolution that was adopted in UN Resolution 1503, which “requests the Secretary-General to nominate a person to be the Prosecutor of the ICTR”. 152 This effectively removed Carla Del Ponte (at the time prosecutor for both the ICTR and ICTY) from her post as chief prosecutor for the ICTR.153 Following the adoption of this resolution, the UN Security Council amended Article 15 of the ICTR Statute removing the following sentence from the original Statute: “The Prosecutor of the International Tribunal for the Former Yugoslavia shall also serve as the Prosecutor of the International Tribunal for Rwanda”.154 The removal of Del Ponte exposed the UN Security Council to claims that it had sacrificed the ICTR’s chief prosecutor in order to prevent the Tribunal from issuing RPF indictments, therefore yielding to the Rwandan government’s demands.155 These allegations were strengthened by Del Ponte’s own accusations against both the UN and the Rwandan government: “[I was] expelled from Rwanda because I wanted to do justice […] if I had conceded [to their demands] I would still be in my place”.156 However, others interpreted the actions of the Tribunal differently: With the RPF, the prosecutors made a choice. They needed to make a distinction between the crimes. Carla Del Ponte mixed things up. The crimes are so different. They are different levels. The ICTR wanted to show they were doing something. They didn’t prosecute everyone involved in the genocide. The Priest and the Bishop were killed by RPF. These people were tried in Rwanda with monitoring by ICTR. The ICTR had to start with most important criminals. The most important crimes.157

Despite launching the Special Investigation in 2000, no indictments had yet been made and the team of investigators allocated to the investigation (located first in 152

UN Security Council 2003, S/RES/1503, para 8. ICTR (2003) https://unictr.irmct.org/en/news/security-council-appoints-separate-prosecutorstwo-ad-hoc-un-tribunals. Accessed 21 September 2021; UN 2003. https://www.un.org/press/en/ 2003/sc7858.doc.htm. Accessed 21 September 2021. 154 ICTR 2010, Article 15(3). 155 Peskin 2008, pp. 220–221. 156 Translated from Italian: “cacciata dal Ruanda perché volevo fare giustizia. [...] Se mi fossi piegata sarei ancora al mio posto” (La Repubblica, 2003). http://www.repubblica.it/2003/i/sezioni/ esteri/delponte/delponte/delponte.html?refresh_ce. Accessed 21 September 2021. 157 Translated from French: “Avec le FPR, les procureurs ont fait un choix. Ils devaient faire une distinction entre les crimes. Carla Del Ponte a mélangé les choses. Les crimes sont tellement différents. Ce sont des niveaux différents. Le TPIR voulait montrer qu’il faisait quelque chose. Ils n’ont pas poursuivi toutes les personnes impliquées dans le génocide. Le prêtre et l’évêque ont été tués par le FPR. Ces personnes ont été jugées au Rwanda sous la surveillance du TPIR. Le TPIR devait commencer par les criminels les plus importants. Les crimes les plus importants.” (Interviewee T9) 153

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Rwanda and then in Arusha) was officially withdrawn in May 2003.158 The sensitivity surrounding the removal of Carla Del Ponte as the prosecutor for the ICTR is highlighted in an interview with one of the Tribunal’s former presidents, Judge Vagn Joensen, in 2016: Our mandate covers all atrocities that happened in Rwanda in 1994 including those that were committed by the RPF in retaliation of the genocide. I know that was especially a dispute between prosecutor Carla Del Ponte and the Rwandan government which ended with the Security Council deciding that we should have our own prosecutor because, initially, we had a joint prosecutor with the ICTY. This hybridization of prosecution into one for both ICTY and ICTR happened in connection with the complete strategy that was adopted. Part of that complete strategy was that we could not issue new indictments after 2004. So the new prosecutor, Hassan Bubacar Jallow, was actually barred from issuing new indictments, whereas Del Ponte could have done it but was unable to because she didn’t get the collaboration from Rwanda that she asked for.159

In removing Del Ponte from her position as prosecutor, the UN Security Council made it clear that any crimes committed by RPF soldiers would not fall within the Tribunal’s jurisdiction.160 As in the Barayagwiza case, this action relates to coercive isomorphism, whereby an organisation is pressured into responding to the expectations of its stakeholders. However, the difference here is that the decision to remove Carla Del Ponte as prosecutor for the ICTR was effectively taken out of the hands of the Tribunal. It is the UN Security Council that took the decision to eradicate the dual role of the prosecutor. While the removal of Del Ponte from the ICTR is a clear example of a coercive measure, it also demonstrates the dual role of the UN in relation to the ICTR. Although the Tribunal was created as an independent court of law, it was established and fully funded by the UN, which also had the authority to alter provisions in the ICTR’s Statute, as demonstrated in this case. The UN provides a justification for their actions in this situation through UN Resolution 1503161 and the 2003 Completion Strategy Report.162 Although the reason given for this structural change was to improve the efficiency of both Tribunals, the timing of UN Resolution 1503—following weeks of heated discussions between the Rwandan government, Del Ponte and the UN Secretary General, regarding the Special Investigations—gave many observers the impression that the removal of Del Ponte was not necessarily designed to improve the productivity of the ICTR, but rather because this was a requirement from the Rwandan government, a key stakeholder.163 158

Peskin 2008, pp. 220–221; Schabas 2008, p. 389. Jambonews (2006) https://www.jambonews.net/en/actualites/20160204-closing-interviewwith-the-president-of-the-international-criminal-tribunal-for-rwanda-ictr-part-ii/. Accessed 21 September 2021. 160 Ibid.; Peskin 2008, pp. 224–226. 161 UN Security Council 2003, S/RES/1503. 162 ICTR 2003, S/2003/946. https://unictr.irmct.org/en/documents/completion-strategy-reports. Accessed 21 September 2021. 163 Apuuli 2009; Bouka 2013; Deephouse et al. 2017, p. 26; Peskin 2008, pp. 219–220; Schabas 2008, p. 389. 159

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Furthermore, given the ICTR’s dependence on the UN, for funding and operational support, the option of altering resource dependencies as a substantive legitimisation activity—which would have provided the Tribunal with more freedom in its actions—was not possible. The UN clearly played an important role with regard to the autonomy of the ICTR. Likewise, the Tribunal’s dependence on the Rwandan government, as demonstrated by its ability to paralyse the Tribunal’s daily operations both in this situation and in the Barayagwiza case, also prevented the ICTR from behaving as an autonomous organisation. The legitimisation activities implemented in response to these two situations appear to have been effective in the short-term: by ensuring the continued operations of the Tribunal, and enforcing the notion that the Tribunal was legitimate as an organisation established to “prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda […] between 1 January 1994 and 31 December 1994".164 However, the long-term consequences of these legitimisation activities, especially related to the ICTR’s legitimacy to other stakeholders, may play an important role in defining Rwanda’s future and—maybe more importantly—in the practice of international criminal law.

4.5 Conclusion Examining the legitimacy challenges faced by the ICTR, and the legitimisation activities implemented in order to mitigate or remove these challenges, provides an insight into the complexities and multifaceted nature of legitimacy. The Tribunal’s legitimacy was not only important in its role as a mechanism seeking accountability for those involved in committing crimes during the 1994 genocide in Rwanda, it was also needed in order to gain and maintain support from its two key stakeholders—the UN and the Rwandan government—who were vital in assuring the daily functioning of the ICTR, and the achievement of its mandate. Over the course of its twenty-year lifespan, the Tribunal faced several situations during which its legitimacy was questioned. In order to further understand the mechanisms of legitimacy, and legitimisation activities in practice, this chapter focused on two specific legitimacy challenges related to the Barayagwiza case and the removal of Carla Del Ponte as chief prosecutor for the ICTR. In the case of Jean-Bosco Barayagwiza, the Appeals Chamber initially acquitted the defendant due to procedural irregularities, yet five months later the same Appeals Chamber “held that new facts presented to it diminished the impact of certain failings of the Prosecutor and the gravity of the resulting infringements of Barayagwiza’s rights as an accused person”.165 This decision was met with relief by the OTP, who could pursue their case against Barayagwiza; and the Rwandan government and survivor organisations, who had been horrified by the idea that Barayagwiza would be released without facing 164 165

UN Security Council 1994b, S/RES/955, Article 1. ICTR, Prosecutor v. Barayagwiza, Order, 25 November 1999, ICTR-97-19-AR72.

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prosecution.166 However, the Appeal Chamber’s change in position gave other stakeholders the impression that the Tribunal was bowing to external pressures, notably those of the Rwandan government.167 The relationship between the ICTR and the Rwandan government was, however, crucial for the functioning of the Tribunal: in order to conduct investigations and to proceed with trials, the ICTR needed access to crime scenes and witnesses in Rwanda. There was a fine line between appeasing the Rwandan government, while retaining the Tribunal’s status as a fair and objective court—the very reason behind the decision to establish the ICTR in Tanzania rather than in Rwanda. This balancing act was tested once again in the early 2000s, when the ICTR’s OTP launched Special Investigations into the crimes allegedly committed by RPF soldiers in 1994. Although the Rwandan government had worked closely with the OTP in the case of Barayagwiza, the OTP’s investigations into the RPF went against the government’s wishes. As a result, the Rwandan government strongly opposed these investigations and withheld all support from the ICTR, resulting in a lengthy delay in all trials taking place in Arusha at the time, and halting all investigations on the ground in Rwanda. In response to the pressure exerted by the government, and with an additional push from the UN Secretary General, the ICTR had no choice but to accept the demands of these two prominent stakeholders and Del Ponte was removed as prosecutor for the ICTR. Yet the dismissal of Del Ponte also gave a conflicting message regarding the Tribunal’s legitimacy: an attempt to investigate the other party to the conflict had resulted in the removal of its chief prosecutor. In both of these situations, the actions of the ICTR are labelled as legitimisation activities, implying that this was behaviour intended to ensure that the Tribunal’s legitimacy was kept intact; however, it may also be argued that the actions of the Tribunal had nothing to do with legitimacy, but were rather designed to keep the ICTR operational. The UN Security Council was also keen to keep the Tribunal focused on prosecuting those most responsible for the 1994 genocide, while assuring support and cooperation from the Rwanda government, especially after the UN’s own failing in preventing and/or stopping the genocide in 1994. Yet for those observing from elsewhere, the optics were damning for the ICTR. Regardless of the Tribunal’s intentions, both of these situations represented a serious challenge to its legitimacy. They also demonstrated the link between power, politics and legitimacy, as highlighted by a lawyer, who worked on genocide cases in Rwanda at the time: “The Rwandan government clashed with the ICTR. This demonstrated that the ICTR was not as powerful as it thought it was” (J4). Although representative of a small period in the Tribunal’s history, these two challenges demonstrate the sensitivity of the Tribunal’s work, the challenges it faced in balancing its legitimacy and operational needs, while also demonstrating how legitimacy is perceived differently through the eyes of its diverse set of stakeholders. The 1990s saw a revival in international criminal law, forty years after the two military tribunals established after World War II. Both the ICTY and the ICTR 166 167

Del Ponte and Sudetic 2011. Apuuli 2009; Bouka 2013.

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played a pivotal role in revitalising the international community’s role in ensuring accountability and impunity for gross human rights violations committed by political and military leaders. Furthermore, the success of these two ad-hoc tribunals was of paramount importance for those lobbying for the establishment of a permanent international criminal court. Thanks to the early successes of both tribunals, the Rome Statute was adopted by one hundred and twenty states in 1998, which paved the way to the creation of the International Criminal Court in 2002. This permanent court would become a key player in other conflicts taking place on the African continent, facing its own legitimacy challenges along the way. While the ICTR closed its doors in December 2015, its legacy, and indeed legitimacy challenges, continue to affect the practice of international criminal law, and maintaining peace in the Great Lakes region remains a huge challenge. Ensuring the legitimacy of these transitional justice mechanisms, to stakeholders in both the conflict region and beyond, is crucial in ensuring that this form of international justice prevails and the universal condemnation of inhumane acts continues. It is therefore important that the legitimisation activities implemented by organisations involved in transitional justice are thought through, and that the long-term goals of international criminal law are taken into consideration alongside the short-term objectives of each court or tribunal. Although several studies have focused on organisational legitimacy, there is a need for further research into the legitimacy of international criminal courts and tribunals—especially in relation to the populations living in post-conflict states— and to further understand the dynamic between the states and international bodies that establish such courts. With the existence of the International Criminal Court, established as a permanent court involved in prosecuting those most responsible for international crimes committed far from its location in The Hague, the need to promote its legitimacy to a variety of key stakeholders is crucial for the success of its ambitious mandate. Yet it faces more legitimacy challenges than the ad-hoc Tribunal for Rwanda, based in Tanzania. This chapter offers an introduction into the importance of legitimacy for these international mechanisms established to enforce criminal justice. A deeper dive is needed to fully understand the consequences of short-term legitimisation activities on the longer-term objectives of these mechanisms in order to ensure the continued development and success of international criminal law.

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Rousseau J J (1997) Rousseau: ’The Social Contract’ and Other Later Political Writings. Cambridge University Press Salancik G R, Pfeffer J (1978) A Social Information Processing Approach to Job Attitudes and Task Design. Administrative Science Quarterly, 224–253 Schabas W A (2005) Genocide Trials and Gacaca Courts. Journal of International Criminal Justice, 3(4), 879–895 Schabas W A (2006) The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone. Cambridge University Press Schabas W A (2008) International Criminal Tribunals: A Review of 2007. Northwestern Journal of International Human Rights, 6, 382 Schiff B N (2010) Lessons from the ICC for ICC/R2P Convergence. The Finnish Yearbook of International Law, 21(1), 101–105 Shany Y (2012) Assessing the Effectiveness of International Courts: A Goal-Based Approach. American Journal of International Law, 106(2), 225–270 Shelton D (2008) Form, Function, and the Powers of International Courts. Chicago Journal of International Law, 9, 537 Sikkink K (2011) The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (The Norton Series in World Politics). WW Norton & Company Smeulers A, Grünfeld F (2011) International Crimes and Other Gross Human Rights Violations: A Multi- and Interdisciplinary Textbook. Brill Straus S, Waldorf L (eds) (2011) Remaking Rwanda: State Building and Human Rights After Mass Violence. University of Wisconsin Press Strauss A, Corbin J (1990) Basics of Qualitative Research. Sage Publications Suchman M C (1995) Managing Legitimacy: Strategic and Institutional Approaches. Academy of Management Review, 20(3), 571–610 Thomson S (2017) The Long Shadow of Genocide in Rwanda. Current History, 116 (790), 183–188 UN General Assembly (1996) Report, Fifty-first Session, Agenda Item 59, a/51/399-S/1996/778 UN Security Council (1994) Letter dated 94/09/28 from the Permanent Representative of Rwanda to the United Nations addressed to the President of the Security Council, S/1994/1115 UN Security Council (1994a) Provisional Agenda, S/PV.3453 UN Security Council (1994b) Resolution 955, S/RES/955 UN Security Council (1999) Letter Dated 15 December 1999 from the Secretary-General addressed to the President of the Security Council, S/1999/1257 UN Security Council (2003) Resolution 1503, S/RES/1503 UN Security Council (2006) Security Council Report, S/2006/176 Vasiliev S (2015) Between International Criminal Justice and Injustice: Theorising Legitimacy. The Legitimacy of International Criminal Tribunals. Cambridge University Press Weber M (1922a) The city (non-legitimate domination). Economy and Society: An Outline of Interpretive Sociology, 1212–372 Weber M (1922b) The Three Types of Legitimate Rule [Die drei reinen Typen der legitimen Herrschaft]. Published in an English translation (Gerth H, transl) in Berkeley Publications in Society and Institutions 4(1): 1–11, 1958 Zimmerman M A, Zeitz G J (2002) Beyond Survival: Achieving New Venture Growth by Building Legitimacy. Academy of Management Review, 27(3), 414–431

Dr Claire M. H. Boost is Project Manager for the European Holocaust Research Infrastructure (EHRI) projects based at NIOD in Amsterdam. From 2017 to 2021 she was a Ph.D. candidate at the Faculty of Law at Maastricht University, where she researched the legitimisation activities of the International Criminal Tribunal for Rwanda. Alongside her research, Claire taught international criminal law, supranational criminology and criminal procedure; and served on the Board of the Maastricht Centre for Human Rights. Prior to her position at Maastricht University, Claire managed and developed programmes focused on human rights, social justice and

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sustainability located across Africa, Europe and North America, working from regional hubs in London, Nairobi, New York and Amsterdam. She has a master’s degree in international crimes and criminology (cum laude) from Vrije Universiteit Amsterdam (2016), and a master’s degree in developmental psychology from the University of Lausanne (2007).

Chapter 5

The Law of Genocide and Atrocities Committed Against the Herero and Nama Peoples Dermot Groome

Contents 5.1 5.2 5.3 5.4

From ‘Race Extermination’ to Genocide as a Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dolus Specialis: The Special Mens Rea Requirements for Genocide . . . . . . . . . . . . . . . . Prohibited Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Modes of Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.1 Genocide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.2 Conspiracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.3 Direct and Public Incitement of Genocide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.4 Attempt to Commit Genocide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.5 Complicity in Genocide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract On 8 June 2021, the International Residual Mechanism for Criminal Tribunals confirmed the genocide conviction of General Ratko Mladi´c for the murder of thousands of Muslim men and boys in Srebrenica during the summer of 1995. The judgment also dismissed the Prosecution’s appeal of the Trial Chamber’s acquittal of Mladi´c on a genocide charge related to the 1992–95 ethnic cleansing campaign in six Bosnian municipalities. This judgment marked the ICTY’s final judicial interpretation of the Genocide Convention. It is a capstone on a rich interpretative corpus of law related to the crime of genocide and together with the important judgments and decisions of the ICTR and other international criminal tribunals forms a comprehensive jurisprudence of the 1948 Genocide Convention. On 28 May 2021, 11 days before the historic Mladi´c Appeal Judgment, Germany recognized that its crimes against the Herero and Nama peoples constituted genocide as defined by the Convention in 1948. The Herero/Nama Genocides, having their roots in German colonialism in southwest Africa, resulted in the estimated biological destruction of 80% of the Herero people and 60% of the Nama people between 1904 and 1908 in, what is now, Namibia and Botswana. This chapter surveys the current state of the law interpreting the Genocide Convention and in doing so, places it within the context of these first and lesser-known genocides of the twentieth century. D. Groome (B) Penn State Dickinson Law, Carlisle, PA, United States e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 T. B. K. Sendze et al. (eds.), Contemporary International Criminal Law Issues, https://doi.org/10.1007/978-94-6265-555-3_5

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Keywords Genocide · Herero · Nama · Ethnic cleansing · Mladic Appeal Judgment · Genocide Convention

5.1 From ‘Race Extermination’ to Genocide as a Crime On 16 July 1915, Henry Morgenthau, the then American Ambassador to the Ottoman Empire, sent a telegram to the newly appointed U.S. Secretary of State Robert Lansing stating ‘Deportation and excesses against peaceful Armenians is increasing and from harrowing reports of eyewitnesses it appears that a campaign of race extermination is in progress’.1 This instance of ‘race extermination’, as described by Morgenthau, would become what was popularly thought to be the first of several times during the twentieth century that campaigns would be waged to eliminate groups that were targeted because of their race or ethnicity. Ten years before Morgenthau sent his cable describing the ‘race extermination’ of Armenians, there was an effort to exterminate two other groups on the African continent in what is today Namibia and Botswana. The Herero and Namaqua Genocides (hereafter Herero/Nama Genocides) is regarded, by many, to be the first genocides of the twentieth century, albeit lesser known than the Armenian Genocide—‘the forgotten genocide’.2 Having its roots in German colonial enterprises in southwest Africa and occurring primarily between 1904 and 1908, the Herero/Nama Genocides resulted in the estimated biological destruction of 80% of the Herero people and 60% of the less populous Nama people3 —two ethnic groups native to the regions of current day Namibia and Botswana. Nearly all these casualties were civilians or non-combatants.4 Under the direction and command of General Lothar von Trotha, German colonial forces implemented a planned and systematic extermination of these indigenous peoples to secure Germany’s unfettered and unopposed access to the resource-rich land.5 On 28 May 2021, Germany recognized that its crimes against the Herero and Namaqua tribes constituted genocide as defined by the Genocide Convention of 1948. German Foreign Minister, Heiko Maas stated, ‘We will now, also in an official capacity call these events what they were from today’s perspective—a genocide’.6 While the Herero/Nama Genocides had come to be known as the ‘forgotten 1

Morgenthau 1915. Cooper 2007, pp. 113–114. Perhaps the first recorded act of genocide on the African Continent occurred during the Punic Wars between Rome and Carthage (modern-day Tunisia). After several years of conflict, the Romans overcame the Carthaginian resistance in 146 BC. Despite their surrender, Roman forces led by Scipio Aemilianus destroyed the city and killed its inhabitants and sold the remaining 50,000 into slavery. See Le Bohec 2015, p. 441. See generally Bagnell 2005. 3 Cooper 2007, p. 113. 4 The Economist (2017) https://www.economist.com/middle-east-and-africa/2017/05/11/what-ger many-owes-namibia. Accessed 20 May 2021. 5 Sarkin-Hughes 2008, p. 5. 6 Deutsche Welle (2021) https://www.dw.com/en/germany-officially-recognizes-colonial-era-nam ibia-genocide/a-57671070. Accessed 2 June 2021. In conjunction with this acknowledgement, the 2

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genocide’,7 Benjamin Whitaker, the British representative on the United Nations (“UN”) Sub-Commission on Prevention of Discrimination and Protection of Minorities, referred to atrocities against the Herero people as an example of genocide in 1985.8 This chapter will survey the current state of the law of genocide as it has developed since the adoption of the Genocide Convention in 1948 (including the most recent Appeal judgment in the Mladi´c case) and place it in the context of the Herero/Nama Genocides to deepen our understanding of what happened in the twentieth centuries’ first genocide. At the time of the Herero and Armenian genocides, a young Jewish boy by the name of Raphael Lemkin, born in Poland, was developing an interest in atrocity crimes committed against ethnic populations, particularly the campaign against the Armenians. When he was 12, he began to study large-scale crimes committed against distinct ethnic, racial and religious groups for no reason other than their membership to that distinct group.9 With World War I literally happening outside his door, his curiosity developed into a life-long personal, intellectual and professional pursuit.10 Lemkin’s interest continued during his study of linguistics at Lwów University [renamed Lviv University]11 and continued while he worked as a lawyer and prosecutor in the Warsaw district court from 1929 to 1934.12 As his thinking on atrocity crimes evolved, he considered state sovereign immunity to be an unacceptable justification for the impunity enjoyed by the architects of such atrocities like the Grand Vizier of the Ottoman Empire, Talat Pasha. Lemkin began to develop conceptual and definitional constructs regarding how such leaders might be held accountable for their grave crimes under international law.13 In 1933, Lemkin proposed the adoption of two new international crimes: the crime of ‘vandalism’ and the crime of ‘barbarity’.14 The crime of vandalism was defined as the destruction of art and cultural objects that, in his formulation, were the property of humanity as a whole.15 The crime of barbarity

German government pledged to create a fund of e1.1 billion (U.S$1.34 billion) and the return of tens of thousands of body parts taken from the victims for scientific study and that are currently housed in German museums and libraries. Ibid. While, the large sum clearly appears to be a form of reparations, the German government did not refer to it as such to the dismay of Herero and Nama leaders. Onishi and Eddy (2021) https://www.nytimes.com/2021/05/28/world/europe/germany-namibia-genocide. html. Accessed 2 June 2021. 7 Onishi and Eddy (2021) https://www.nytimes.com/2021/05/28/world/europe/germany-namibiagenocide.html. Accessed 2 June 2021. 8 Whitaker 1985, p. 9 “Among other examples which can be cited as qualifying [as genocide] are the German massacre of Hereros in 1904.” 9 Schaller and Zimmerer 2009, p. 29. 10 Power 2002, p. 21. 11 Schabas 2000, p. 25. 12 Irving-Erikson 2016, pp. 36–37. 13 Ibid., p. 69. 14 Schabas 2000, p. 25. 15 Schabas 2000, p. 26.

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‘comprised acts directed against a defenceless “racial, religious or social collectivity”, such as massacres, pogroms, collective cruelties directed against women and children and treatment of men that humiliates their dignity.’16 During the Holocaust, Lemkin lost 49 members of his extended family; he survived by immigrating to the United States in 1941.17 While the crimes of vandalism and barbarity were never adopted by the international community, they would form the basis of the crime of genocide as articulated by Lemkin in his seminal work, Axis Rule in Occupied Europe.18 In this book, Lemkin assembled a dossier of evidence establishing Nazi crimes and proposed that these crimes constituted a new crime called ‘genocide’; a word Lemkin coined by combining the Greek word ‘genos’ (γšνoς) meaning race or people with the Latin suffix ‘cide’ or ‘caedo’ meaning the ‘act of killing’.19 In its inceptual definition, the crime of genocide was broad and included several forms of destruction based on characteristics related to inter alia: physical, cultural, religious, economic and political views.20 Other core features in its original articulation included an application of the crime in times of peace as well as war; the elimination of superior orders as a legal defence, and a proposal that such crimes be the subject of universal jurisdiction.21 While the convenors of the Nuremberg trials did consider including a narrower formulation of the crime of genocide in its charter, it was ultimately absent from the proceedings, but for some scattered references.22 It may be that the drafters were concerned that this newly minted and still malleable crime would invite challenges based on the legality principle, thus undermining the credibility of the Tribunal’s work and bolster claims that Allied Forces were exacting victors’ justice.23 It is an ironic historical footnote that the crimes constituting the Holocaust, the mostly widely recognized example of a genocide, were ultimately not adjudicated, as such, by the court. Nuremberg did serve to establish much of the normative foundation of the crime and made clear the urgent need for the adoption of an internationally recognized definition of it. This process began shortly after the Nuremberg Judgement was issued when the UN General Assembly, ‘affirm[ed] that genocide is a crime under 16

Ibid. Quoting De Asua et al. 1935, pp. 54–55. Note, Raphael Lemkin credited the Romanian Jurist Vespasien V. Pella with authorship of the definition of barbarity. 17 Bartrop and Jacobs 2014, pp. 1301–1302. 18 Lemkin 1944, p. 91. 19 Stanton 2021. See also King et al. 2008. 20 Lemkin 1944, p. 79. Lemkin wrote: ‘The objectives of such a plan would be disintegration of the political and social institutions, of culture, language, national feelings, religious and the economic existence of national groups, and the destruction of the personal security, liberty, health dignity, and even the lives of the individuals belonging to such groups.’. Although the law of genocide has developed in a way that parses and draws legal distinctions between the different harms inflicted on the targeted group, Lemkin saw the different harms inextricably linked. 21 Ibid., pp. 93–94. 22 Mettraux 2019, p. 7. 23 See United Nations War Crimes Commission 1948, p. 197.

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international law which the civilized world condemns’ and charged the Economic and Social Council to develop a ‘draft convention on the crime of genocide’.24 The resolution begins with the core definitional distinction that sets genocide apart from other crimes, ‘[g]enocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings’.25 On 9 December 1948, two years after this charge, the UN General Assembly (UNGA) adopted the Convention on the Prevention and Punishment of the Crime of Genocide (hereafter Genocide Convention or Convention).26 The Genocide Convention defined the crime more narrowly than UNGA Resolution 96/1 by limiting the open-ended language of the resolution language that extended protection to groups identified by ‘religious, racial, political or any other ground’.27 The core provisions of the Genocide Convention were incorporated verbatim, or near verbatim into the statutes of the ad hoc Yugoslav and Rwandan tribunals created by the UN Security Council in the mid-1990s. Fifty years after the Convention, the Akayesu case would mark the first time someone was found guilty of the crime by an international court.28 This conviction heralded a series of judicial decisions and judgments that carefully considered and interpreted the language of the Genocide Convention and applied them to real-life events.29 This work continued in the Extraordinary Chambers in the Courts of Cambodia (hereafter ECCC) and in other international tribunals.30 The prohibitions of the Genocide Convention are now a matter of customary international law and apply throughout the world irrespective of whether a state is a party to the Convention or not.31 Its definition describes the gravest of conduct and thus has been called, ‘the crime of crimes’.32 As stated in the Krsti´c Appeals Judgment: Among the grievous crimes this Tribunal has the duty to punish, the crime of genocide is singled out for special condemnation and opprobrium. The crime is horrific in its scope; its perpetrators identify entire human groups for extinction. Those who devise and implement genocide seek to deprive humanity of the manifold richness its nationalities, races, ethnicities 24

UN General Assembly 1946, A/RES/96(1). Ibid. 26 UN General Assembly 1948, A/RES/810. 27 UN General Assembly 1946, A/RES/96(1) emphasis added. 28 ICTR, Prosecutor v. Akayesu, Judgment, 2 September 1998, ICTR-96-4-T. The Genocide Convention was adopted on 9 December 1948 and became effective on 12 January 1951. 29 See e.g., ICC, Prosecutor v. Bashir, 12 July 2010, ICC-02/05-01/09; ECCC, Co-Prosecutors v. Nuon Chea and Khieu Samphan, Judgment, 16 November 2018, ECCC-002/19-09-2007/ECCC/TC; ICJ, Bosnia and Herzegovina v. Serbia and Montenegro. 30 ECCC, Co-Prosecutors v. Nuon Chea and Khieu Samphan, Judgment, 16 November 2018, ECCC-002/19-09-2007/ECCC/TC. See also Special Panels of the Dili District Court (East Timor Tribunals). 31 ‘[A]rticles of the Genocide Convention are widely accepted as customary international law’. ICTY, Prosecutor v. Popovi´c et al, Judgment, 10 June 2010, IT-05-88-T, para 807. 32 ICTR, Prosecutor v. Kambanda, Judgment and Sentence, 4 September 1998, ICTR-97023-S, para 16. 25

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and religions provide. This is a crime against all of humankind, its harm being felt not only by the group targeted for destruction, but by all of humanity.33

Recognizing the inherent temptation to use the “crime of crimes” to achieve political objectives, Judge Patricia Wald cautioned against undermining the ‘currency’ of the crime by too expansive an application.34 Violations of the Convention are a crime under international law ‘in time of peace or in time of war’.35 Its criminal prohibitions apply to both individuals and states and can form the basis of both individual criminal responsibility36 and state responsibility.37 At present, there have been no cases involving corporate criminal responsibility for genocide, and while such liability is outside genocide’s customary legal definition, there is no language in the Convention that excludes that possibility.38 Before embarking on a detailed examination of the definitional requirements of genocide, a closer examination of the Herero/Nama Genocides is merited. The Herero/Nama Genocides took place in Germany’s colony in southwest Africa— modern day Namibia and Botswana.39 Germany acquired the territory as a protectorate in 1884 and quickly procured an abundance of the tenable cattle-grazing lands via a series of unfair ‘protective treaties’ with the indigenous peoples.40 Ultimately, 33

ICTY, Prosecutor v. Radislav Krsti´c, Judgment, 19 April 2004, ICTY-IT-98-33-A. ICTY, Prosecutor v. Goran Jelisi´c, Judgment, 5 July 2001, IT-95-10-A, para 2. Note, Judge Wald was a member of the Krsti´c Trial Chamber. The Krsti´c Appeals Judgment set out that the gravity of the crime must be reflected in rigorous application of its stringent requirements:

34

These requirements – the demanding proof of specific intent and the showing that the group was targeted for destruction in its entirety or in substantial part – guard against a danger that convictions for this crime will be imposed lightly. Where these requirements are satisfied, however, the law must not shy away from referring to the crime committed by its proper name. ICTY, Prosecutor v. Radislav Krsti´c, Judgment, 19 April 2004, ICTY-IT-98-33-A, para 37. Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948) 78 UNTS 277 (Genocide Convention or Convention). See also ICTR, Prosecutor v, Kayishema & Ruzindana, Judgment, 21 May 1999, ICTR-95-1 and ICTR, Prosecutor v. Kamuhanda, Judgment, 22 January 2004, ICTR-99-54A-T. 36 Mettraux 2019, pp. 153–54. 37 ICJ, Bosnia and Herzegovina v. Serbia and Montenegro. See generally Milanovi´ c 2006. It is important to note that there are important differences between how the convention applies to individuals versus states. For example, Article I, of the Genocide Convention imposes a duty on state parties to ‘prevent and to punish’ acts prohibited by the Convention; no such duty is imposed in the case of individual criminal responsibility, irrespective of the position held by an individual. 38 Mettraux 2019, p. 19. In February 2021, the Association of Uyghurs in France filed a lawsuit alleging that Nike is complicit in the treatment of Uyghurs by China. Amiel (2021) https://www.euronews.com/2021/02/26/france-based-uighur-group-sues-nike-forcomplicity-in-forced-labour. Accessed 4 June 2021. Although the suit does not specifically allege that Nike has committed the crime of genocide, it does allege complicity regarding acts that may constitute the actus reus of genocide. 39 The Economist (2017) https://www.economist.com/middle-east-and-africa/2017/05/11/what-ger many-owes-namibia. Accessed 20 May 2021. 40 Hull 2005, p. 8. 35

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the Herero and Nama peoples were left with mostly barren land to tend and were frequently exploited by the colonial authority as a source of cheap labour. This, combined with the demeaning brutality of the colonial police, caused increasing tensions between the native peoples and the German settlers. Starting in 1903, the Herero and Nama peoples began staging revolts against the German forces—these typically consisted of quick, guerrilla-style attacks against smaller platoons. While the local German population was already hostile to the natives, these revolts were a catalyst for the complete brutalization and destruction of the Herero and Nama tribes.41 German settlers quickly responded to the uprisings by issuing propaganda to all German troops and citizens within the territory.42 Claims that the Herero and Nama were attempting to conduct a race war against Germans, publicly incited violence towards the indigenous groups. Isolated, disconnected incidents of mistreatment towards the tribes transformed into full-scale violent atrocities commissioned with the intent to forcibly remove the Herero and Nama from their land and kill those who remained.43 The explicit intention vis-à-vis the Herero and Nama was articulated in an infamous ‘extermination order’ issued by General Lothar von Trotha.44 The order, issued on 2 October 1904, read: I, the Great General of the German Soldiers, address this letter to the Herero people. The Herero are no longer considered German subjects. They have murdered, stolen, cut off ears, noses and other parts from wounded soldiers, and now refuse to fight on out of cowardice. I have this to say to them: Whoever turns over one of the captains to one of my garrisons as a prisoner will receive 1,000 Marks and he who hands over Samuel Maharero will be entitled to a reward of 5,000 Marks. The Herero people will have to leave the country. Otherwise I shall force them to do so by means of guns. Within the German boundaries, every Herero, whether found armed or unarmed, with or without cattle, will be shot. I shall not accept any more women and children. I shall drive them back to their people— otherwise I shall order shots to be fired at them. These are my words to the Herero people.45

In a follow-up explanation to his soldier, General von Trotha clarified that the ‘shots to be fired’ at women and children were only to be aimed over their heads to frighten them into fleeing. He noted that no atrocities should be committed against the women and children, lest they sully the character of German forces.46 As General von Trotha insinuates, this clarification was likely a pretextual one made to burnish the reputation of German soldiers. Indeed, von Trotha’s attitude towards the Herero is best captured by one of his comrades, Major Ludwig von Estorff. After Estorff unsuccessfully attempted to persuade von Trotha to end Germany’s gruesome and 41

Ibid. Sarkin-Hughes 2008, p. 5. 43 Ibid. 44 The Economist (2017) https://www.economist.com/middle-east-and-africa/2017/05/11/what-ger many-owes-namibia. Accessed 20 May 2021. 45 Gewald 1994, pp. 67–68. See generally Goldhagen 2009; PBS (undated) https://www.pbs.org/ wnet/worse-than-war/stories-essays/understanding-genocides/understanding-genocide-our-ageof-suffering/27/. Accessed 20 May 2021. 46 Ibid. 42

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senseless policies towards the indigenous people of the territory, he concluded that von Trotha ‘wanted their total extermination’.47 It was with this mentality that the Herero population was violently reduced from 80,000 to 90,000 to about 15,000 in the span of a decade.48

5.2 Dolus Specialis: The Special Mens Rea Requirements for Genocide Under domestic penal codes, prosecutors are required to establish, to a legally defined threshold of proof (most often, beyond reasonable doubt), that an actor intentionally engaged in prohibited conduct or engaged in conduct that caused harm with the intention of causing that harm. Prosecutors are assisted in meeting this burden by a well-established legal principle that actors are presumed to intend the reasonable and foreseeable consequences of their voluntary actions.49 For example, credible evidence that an actor fired a gun at a victim’s head causing their death not only establishes that the actor caused the victim’s death (actus reus) but that the actor intended (mens rea) to cause that death. While this straightforward proposition may apply under some circumstances to the direct perpetrator of a ‘killing’ prohibited by Article II of the Genocide Convention, its evidential import is diminished in the case of other prohibited acts and when the crime is the product of a collective effort that includes remote actors who contribute to the genocide in ways that do not create such compelling inferences (e.g., paying the direct perpetrators). Article II imposes a requirement that the prohibited acts enumerated in the article must be ‘committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such’. In the case of atrocity crimes, which are nearly always the product of a collective effort, this imposes upon the prosecutor an obligation to establish that each actor contributing to the crime and subsequently charged with genocide contributed to the crime with the intention of ultimately destroying, in whole or in part, a group that is protected by the Convention.50 This presents a significant challenge for prosecutors because the circumstances of the underlying 47

Cooper 2007, p. 114. Silvester and Gewald 2003, p. 122. The 1918 Blue Book is a colloquialism for a report published by the British government in 1918 on the atrocities committed by the Germans in South-West Africa. The 1918 Blue Book contained the eye-witness accounts of 47 people regarding the atrocities against the Herero and Nama peoples. In 1926, it was withdrawn and an order given to destroy remaining copies in order to remove an official critical account of the German government. Ibid., p xiii. 49 See e.g., Illinois, People v. Conley, 2 August 1989, 1-86-2651. 50 The Krsti´ c Trial Chamber spelled out this requirement, 48

The gravity and the scale of the crime of genocide ordinarily presume that several protagonists were involved in its perpetration. Although the motive of each participant may differ, the objective of the criminal enterprise remains the same. In such cases of joint participation, the intent to destroy, in whole or in part, a group as such must be discernible in the criminal act itself, apart from the intent of particular perpetrators. It is then necessary to establish

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prohibited acts most often do not, in and of themselves, create a clear inference that an accused acted with the required special intent and non-genocidal, albeit criminal, intent. Despite these evidential challenges, it is the dolus specialis that is the essential distinguishing definitional trait of genocide and what imbues it with a level of gravity justifying its placement at the top of the hierarchy of crimes as the ‘crime of crimes’.51 It is the existence of this dolus specialis or special intent that invokes the application of the law of genocide.52

whether the accused being prosecuted for genocide shared the intention that a genocide be carried out. ICTY, Prosecutor v. Krsti´c, Judgment, 2 August 2001, ICTY-IT-98-33-T, para 549. This is a shortcoming of drawing broad conclusions about whether a particular atrocity crime constitutes genocide without conducting a detailed examination of the individuals contributing to that crime and the evidence of their intent. 51 The International Law Commission in its commentary on the 1996 Code of Crimes against Peace and Security of Mankind described the dolus specialis requirement of genocide as ‘the distinguishing characteristic of this particular crime under international law.’ Report of the International Law Commission, 6 May-26 July 1996, A/51/10, p. 44. As regards the first element, the definition of the crime of genocide requires a specific intent which is the distinguishing characteristic of this particular crime under international law. The prohibited acts enumerated in subparagraphs (a) to (e) are by their very nature conscious, intentional or volitional acts which an individual could not usually commit without knowing that certain consequences were likely to result. These are not the type of acts that would normally occur by accident or even as a result of mere negligence. However, a general intent to commit one of the enumerated acts combined with a general awareness of the probable consequences of such an act with respect to the immediate victim or victims is not sufficient for the crime of genocide. The definition of this crime requires a particular state of mind or a specific intent with respect to the overall consequences of the prohibited act. As indicated in the opening clause of article 17, an individual incurs responsibility for the crime of genocide only when one of the prohibited acts is “committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such”. 52

ICC Pre-Trial I described this intent as serving as a trigger in the application of the law of genocide in the Sudan Situation. As a consequence, according to the case law of the ICTY and the ICTR, the protection offered to the targeted groups by the penal norm defining the crime of genocide is dependent on the existence of an intent to destroy, in whole or in part, the targeted group. As soon as such intent exists and materialises in an isolated act of a single individual, the protection is triggered, regardless of whether the latent threat to the existence of the targeted group posed by the said intent has turned into a concrete threat to the existence in whole or in part of that group. ICC, Prosecutor v. Al Bashir, Decision, 4 March 2009, ICC-02/05-01/09-3, para 120 (footnote omitted).

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The dolus specialis of genocide is apparent in the ‘extermination order’ issued by General Lothar von Trotha.53 Within the German borders every Herero, with or without a gun, with or without cattle, will be shot. I will no longer accept women and children, I will drive them back to their people or I will let them be shot at. These are my words to the Herero people. The great General of the mighty German Kaiser.54

Such explicit statements are rare, with most genocidal actors realizing the legal and reputational implications of explicit statements. More commonly, prosecutors must establish this intent circumstantially through inferences and through pattern evidence that demonstrates that the dolus specialis of genocide is the common intent underlying a series of connected crimes and that it is the only reasonable inference to be drawn from the evidence. The challenges involved in establishing the dolus specialis of genocide is compounded by the similarities between the mens rea required for genocide and the crime of persecution as a crime against humanity. Persecution as a crime against humanity can include acts prohibited in Article II of the Genocide Convention if committed voluntarily and on a discriminatory basis. In other words, killing a number of victims may constitute the crime of persecution as a crime against humanity if the victims were selected on a discriminatory basis because of, inter alia, their religious or ethnic affiliation. Those same killings will only constitute genocide if the prosecutor can establish that they were committed with the intent to destroy in whole or in part the protected group the victims were a part of.55 This conceptual demarcation between the two crimes can be difficult to apply to real-world events. For example, in the Bosnian conflict, to establish the crime of persecution, prosecutors needed to show that a perpetrator killed a victim because they were Muslim; for the crime of genocide, prosecutors needed to show that a perpetrator intended to destroy Bosnian-Muslims as a protected group. Recognizing that to physically destroy Bosnian-Muslims as a group (genocide), perpetrators had to kill victims because they were Muslim (persecution) the distinction becomes very difficult to establish with circumstantial evidence.56 53

The Economist (2017) https://www.economist.com/middle-east-and-africa/2017/05/11/what-ger many-owes-namibia. Accessed 20 May 2021. 54 Gewald 1994 (translated by the author). For an image of the original order, see ibid., 73. 55 See e.g., ICTR, Prosecutor v. Nyiramasuhuko, et al., Judgment, 14 December 2015, ICTR-9842-A, para 2125, fn 4930. The Appeals Chamber is mindful that there is no genocidal intent requirement for the crime of extermination as a crime against humanity. However, the Appeals Chamber finds that the Trial Chamber’s findings with respect to the perpetrators’ and Ntahobali’s genocidal intent are relevant in this case to establish that the killings were directed against Tutsis as a collective group rather than victims in their individual capacities. 56

This can be seen in the structure of the indictment against Ratko Mladi´c. The indictment charges him with the crime of persecution based upon the ethnic cleansing campaign carried out in municipalities across Bosnia and Herzegovina between 1992 and 1995. In six of those municipalities,

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Under international law, there are several modes of participation that can incur individually criminally responsible for crimes, including genocide. Atrocity crimes are most often the result of the combined contributions of a collective, different participants, each with their own subjective mental state vis-à-vis the crime. Some may possess genocidal intent and others may not, others may be aware that they are aiding perpetrators who themselves have genocidal intentions. The law of genocide will apply differently depending upon the role an actor played in the overall crime.57 Generally speaking, the Prosecution must establish that the direct perpetrator of prohibited Article III acts possessed the dolus specialis of genocide.58 The ICTR Akayesu Chamber described this dolus specialis or special intent as: 498. Genocide is distinct from other crimes inasmuch as it embodies a special intent or dolus specialis. Special intent of a crime is the specific intention, required as a constitutive element of the crime, which demands that the perpetrator clearly seeks to produce the act charged. Thus, the special intent in the crime of genocide lies in ‘the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’. 499. Thus, for a crime of genocide to have been committed, it is necessary that one of the acts listed under Article 2(2) of the Statute be committed, that the particular act be committed against a specifically targeted group, it being a national, ethnical, racial or religious group.59

The Akayesu Chamber went to hold that in the case of an accomplice, aiding and abetting a direct perpetrator who possessed genocidal intent, incurs liability as an accomplice if they knew of the direct perpetrator’s genocidal intent. As far as genocide is concerned, the intent of the accomplice is thus to knowingly aid or abet one or more persons to commit the crime of genocide. Therefore, the Chamber is of the opinion that an accomplice to genocide need not necessarily possess the dolus specialis of genocide, namely the specific intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such.60

the Prosecution alleged that the evidence established not only the crime of persecution as a crime against humanity but the crime of genocide as well. 57 ICTR, Prosecutor v. Nahimana et al., Judgment, 28 November 2007, ICTR-99-52-A, para 523 (footnotes omitted). Article 2(2) of the Statute defines genocidal intent as the ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’. It is the person who physically commits one of the enumerated acts in Article 2(2) of the Statute who must have such intent. However, an accused can be held responsible not only for committing the offence, but also under other modes of liability, and the mens rea will vary accordingly. 58 ICTR, Prosecutor v. Zigiranyirazo, Judgment, 18 December 2008, ICTR-01-73-T, para 398 (‘The Chamber recalls that the mens rea varies according to the mode of liability’); ICTR, Prosecutor v. Nahimana, et al. Judgment, 28 November 2007, ICTR-99-52-A, para 523. 59 ICTR, Prosecutor v. Akayesu, Judgment, 2 September 1998, ICTR-96-4-T, paras 98–99. 60 ICTR, Prosecutor v. Akayesu, Judgment, 2 September 1998, ICTR-96-4-T, para 540.

Thus, if for example, an accused knowingly aided or abetted another in the commission of a murder, while being unaware that the principal was committing such a murder, with the intent to destroy, in whole or in part, the group to which the murdered victim belonged, the

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During the Herero/Nama Genocides, different mechanisms were used to physically destroy the Herero and Nama peoples. These mechanisms included, killing, internment in concentration camps, overwork, and forcible exile into the desert under conditions calculated to cause their destruction.61 In assessing individual criminal responsibility for the camp workers, overseers, military officers, and task masters who each contributed to the destruction of the Herero and Nama peoples, their conduct, as well as their accompanying intent would have to be carefully examined. In some cases, the historical record provides such evidence. In Peter Moor’s Journey to South-West Africa, Gustav Frenssen recounts the words of a lieutenant after killing an unarmed Herero man, ‘Safe is safe. He can’t raise a gun against us anymore nor beget any children to fight against us. The struggle for South Africa will be a hard one, whether it is to belong to the Germans or to the blacks’.62 Establishing the special mens rea requirement of genocide is a formidable task for a prosecutor. Genocidaires rarely express their genocidal intent in clear terms and in those rare cases in which they do, such expressions may be deemed inconclusive by a trial chamber.63 Absent such expressions or in conjunction with them, a court may infer genocidal intent from the acts of an accused and the circumstances under which they took place.64 The Akayesu Trial Chamber found the ‘massive and/or systematic nature’ of the genocidal acts particularly relevant.65 accused could be prosecuted for complicity in murder, and certainly not for complicity in genocide. However, if the accused knowingly aided and abetted in the commission of such a murder while he knew or had reason to know that the principal was acting with genocidal intent, the accused would be an accomplice to genocide, even though he did not share the murderer’s intent to destroy the group. ICTR, Prosecutor v. Akayesu, Judgment, 2 September 1998, ICTR-96-4-T, para 541. See also ICTR, Kaliminzira v. Prosecutor, Judgment, 20 October 2010, ICTR-05-88-A, para 86 “Specific intent crimes such as genocide require that “the aider and abettor must know of the principal perpetrator’s specific intent.” Quoting ICTY, Prosecutor v. Blagojevi´c and Joki´c, Judgment, 9 May 2007, ICTY-IT-02-60-A, para 127. 61 BBC (2021) https://www.bbc.com/news/world-europe-57279008. Accessed 2 June 2021. 62 Silvester and Gewald 2003, p. 113. 63 In the Jelisi´ c case, the accused Goran Jelisi´c, introduced himself to others as the ‘Serb Adolf’ [Hitler] and told residents of Brˇcko that he had come to kill Muslims and ‘had to rid the world of them’. The chamber heard evidence that he told others that he wanted to sterilize Muslim women ‘to prevent any proliferation’. He even introduced himself to the Pre-Trial Chamber as ‘Adolf’ during his initial appearance before the Tribunal. Despite this evidence, the Trial Chamber ultimately acquitted Jelisi´c of genocide finding that the evidence did not establish ‘an affirmed resolve to destroy in whole or in part a group as such’. ICTY, Prosecutor v. Goran Jelisi´c, Judgment, 14 December, 1999, IT-95-10-T, paras 102, 107. 64 ICTR, Prosecutor v. Akayesu, Judgment, 2 September 1998, ICTR-96-4-T, para 478. 65 ICTR, Prosecutor v. Akayesu, Judgment, 2 September 1998, ICTR-96-4-T, para 523. The Trial Chamber stated: On the issue of determining the offender’s specific intent, the Chamber considers that intent is a mental factor which is difficult, even impossible, to determine. This is the reason why, in the absence of a confession from the accused, his intent can be inferred from a certain number of presumptions of fact. The Chamber considers that it is possible to deduce the

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Hereros who survived the massacres (mostly women and children) were transported to concentration camps like Shark Island aka ‘Death Island’ where they were forced to work as slaves for the German military and German settlers, often dying from physical exhaustion.66 Such a multi-faceted organized effort to destroy a particular group is a good example of the ‘massive and/or systemic’ nature the Akayesu Chamber considered indicative of genocidal intent. While premeditation is often a feature of large-scale atrocities the travaux préparatoires of the Genocide Convention makes clear that establishing premeditation on the part of actors is not a definitional requirement of the crime.67 One of the requirements of genocide is that the at the time an actor engaged in the conduct prohibited by Article III of the Convention, they specifically intended to contribute to the destruction of the protected group.68 While the actor must possess the intention to destroy a protected group in whole or in part at the time of their prohibited conduct, whether or not their conduct actually advances that end is not a consideration.69 However, the level of destruction achieved can create a compelling inference that establishes the existence of genocidal intent.70 In determining whether

genocidal intent inherent in a particular act charged from the general context of the perpetration of other culpable acts systematically directed against that same group, whether these acts were committed by the same offender or by others. Other factors, such as the scale of atrocities committed, their general nature, in a region or a country, or furthermore, the fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the members of other groups, can enable the Chamber to infer the genocidal intent of a particular act. See also ICTR, Prosecutor v. Popovi´c, et al., Judgment, 30 January 2015, IT-05-88-A, para 503; ICTR, Prosecutor v. Kayishema & Ruzindana, Judgment, 21 May 1999, ICTR-95-1-T, para 93. 66 Hartmann et al. 1999, p. 118. 67 See Robinson 1960, p. 60. 68 ICTY, Prosecutor v. Jelisi´ c, Judgment, 5 July 2001, ITCY-IT-95-10-A, para 46; ECCC, Prosecutor v. Ao An, Closing Order, 16 August 2018, 004/07-09-2009-ECCC-OCIJ, para 95. 69 ICTY, Prosecutor v. Karadži´ c, Judgment, 11 July 2013, ICTY-IT-95-5/18-AR98bis.1, paras 22 et seq. See also ICTR, Prosecutor v. Mpambara, ICTR-01-65-T, para 8. (‘The actus reus of genocide does not require the actual destruction of a substantial part of the group; the commission of even a single instance of one of the prohibited acts is sufficient, provided that the accused genuinely intends by that act to destroy at least a substantial part of the group’.) 70 ICTY, Prosecutor v. Radislav Krsti´ c, Judgment, 19 April 2004, ICTY-IT-98-33-A, para 35. In this case, the factual circumstances, as found by the Trial Chamber, permit the inference that the killing of the Bosnian Muslim men was done with genocidal intent. As already explained, the scale of the killing, combined with the VRS Main Staff’s awareness of the detrimental consequences it would have for the Bosnian Muslim community of Srebrenica and with the other actions the Main Staff took to ensure that community’s physical demise, is a sufficient factual basis for the finding of specific intent. See also ICTY, Prosecutor v. Miloševi´c, Decision, 16 June 2004, IT-02-54-T, para 125 “However, the extent of the actual destruction, if it does take place, will more often than not be a factor from which the inference may be drawn that the underlying acts were committed with the specific intent to destroy, in whole or in part, a specific group as such”.

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this specific intent existed, courts will consider the totality of the evidence and not parse out evidence of mens rea related to individual acts.71 It is important to note that this intent is different from motive. The prosecution does not have to establish the underlying personal or collective motives for the genocidal conduct. For example, the intentional destruction of the group might be motivated by a desire to achieve an economic or political advantage over it. This motivation does not ipso facto exclude the existence of the dolus specialis required for genocide.72 Morgenthau, in his book written shortly after the Armenian genocide, recalled some of the ‘justifications’ the Ottomans advanced to excuse the murder and deportation of Armenians into the Syrian desert with little chance of survival: ‘The Armenians have brought this upon themselves’; ‘They had fair warning this would happen to them’; ‘We [the Ottomans] were fighting for our national existence…[w]e were justified, in resorting to any means that would accomplish these ends’.73 Germany’s genocidal campaign against the Herrero and Nama peoples was rooted in and motivated by a desire to exploit the natural resources owned and controlled by these indigenous peoples.74 The intended destruction must be the actual physical or biological destruction of the group.75 While other types of destruction may contribute to and be relevant to 71

ICTY, Prosecutor v. Mladi´c, Judgment, 22 November 2017, IT-09-92-T, para 3435 “In assessing specific intent, consideration ought to be given to all of the evidence, taken together instead of considering separately whether an accused intended to destroy a protected group through each of the prohibited acts of genocide.”. See also ICTY, Prosecutor v. Staki´c, Judgment, 22 March 2006, IT-97-24-A, para 55. 72 ICTY, Prosecutor v. Jelisi´ c, Judgment, 5 July 2001, ITCY-IT-95-10-A, para 49. The Appeals Chamber further recalls the necessity to distinguish specific intent from motive. The personal motive of the perpetrator of the crime of genocide may be, for example, to obtain personal economic benefits, or political advantage or some form of power. The existence of a personal motive does not preclude the perpetrator from also having the specific intent to commit genocide. In the Tadi´c appeal judgement the Appeals Chamber stressed the irrelevance and ‘inscrutability of motives in criminal law’. ICTY, Prosecutor v. Jelisi´c, Judgment, 5 July 2001, ITCY-IT-95-10-A, para 49 quoting ICTY, Prosecutor v. Tadi´c, 15 July 1999, ICTY-IT-95-1-A, para 269. See also ICTR, Prosecutor v. Kayishema & Ruzindana, Judgment (Reasons), 1 June 2001, ICTR-95-1-A, para 161; ICTY, Prosecutor v. Staki´c, Judgment, 22 March 2006, IT-97-24-A, para 44. 73 Morgenthau 1918, p. 364. Morgenthau dedicated the book to President Woodrow Wilson with the following inscription: “The exponent in America of the enlightened public opinion of the world, which has decreed that the rights of small nations shall be respected and that such crimes as are described in this book shall never again darken the pages of history”. 74 Sarkin-Hughes 2008, p. 5. 75 ICTY, Prosecutor v. Mladi´ c, Judgment, 22 November 2017, IT-09-92-T, para 3435. (‘The mens rea required for genocide is a specific intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. The term ‘destroy’ is limited to the physical or biological destruction of the group.’ (footnote omitted). See also ICTY, Prosecutor v. Radislav Krsti´c, Judgment, 19 April 2004, ICTY-IT-98-33-A, para 25 “The Genocide Convention, and customary international law in general, prohibit only the physical or biological destruction of a human group.” and ICTR, Prosecutor v. Kajelijeli, 23 May 2005, ICTR-98-44A-A, para 808.

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an adjudication of genocide charges, cultural destruction and social destruction of communities of targeted groups does not constitute the crime of genocide.76 The intent to ethnically cleanse an area of a particular group is not ipso facto genocidal intent although it may in the context of other efforts to destroy a group be relevant. [n]either the intent, as a matter of policy, to render an area ‘ethnically homogeneous’, nor the operations that may be carried out to implement such policy, can as such be designated as genocide: the intent that characterizes genocide is ‘to destroy, in whole or in part’ a particular group, and deportation or displacement of the members of a group, even if effected by force, is not necessarily equivalent to destruction of that group, nor is such destruction an automatic consequence of the displacement.77

Efforts to ethnically cleanse or forcibly displace a targeted population may support a finding of genocidal intent when considered within the context of accompanying crimes such as murder and crimes of sexual violence.78 In 1904, after the battle of Hamakari, General von Trotha ordered Major Estorff to pursue the Herero into the Omaheke desert.79 Estorff noted the implications of this order.

76

The ICTY has held: The term “destroy” in customary international law means physical or biological destruction and excludes attempts to annihilate cultural or sociological elements. However, attacks on cultural and religious property and symbols of the targeted group often occur alongside physical and biological destruction and “may legitimately be considered as evidence of an intent to physically destroy the group.”

ICTY, Prosecutor v. Popovi´c et al., Judgment, 10 June 2010, IT-05-88-T, para 822 (footnotes omitted). See also ICTR, Prosecutor v. Kajelijeli, 23 May 2005, ICTR-98-44A-A, para 808; ICTY, Prosecutor v. Tolimir, Judgment, 8 April 2015, IT-05-88/2-A, para 230 “As the Trial Chamber itself acknowledged, acts amounting to “cultural genocide” are excluded from the scope of the Genocide Convention.”; ICJ, Croatia v. Serbia, Judgment, 3 February 2015, paras 161 et. seq. 77 ICJ, Bosnia and Herzegovina v. Serbia and Montenegro, para 190. The Court further opined: [T]his is not to say that acts described as ‘ethnic cleansing’ may never constitute genocide, if they are such as to be characterized as, for example, ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part’, contrary to Article II, paragraph (c), of the Convention, provided such action is carried out with the necessary specific intent (dolus specialis), that is to say with a view to the destruction of the group, as distinct from its removal from the region…In other words, whether a particular operation described as ‘ethnic cleansing’ amounts to genocide depends on the presence or absence of acts listed in Article II of the Genocide Convention, and of the intent to destroy the group as such. In fact, in the context of the Convention, the term ‘ethnic cleansing’ has no legal significance of its own. That said, it is clear that acts of ‘ethnic cleansing’ may occur in parallel to acts prohibited by Article II of the Convention, and may be significant as indicative of the presence of a specific intent (dolus specialis) inspiring those acts. ICJ, Bosnia and Herzegovina v. Serbia and Montenegro, para 190. ICTY, Prosecutor v. Tolimir, Judgment, 8 April 2015, IT-05-88/2-A, para 209. 79 Silvester and Gewald 2003, p. xxi. 78

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It was a policy which was equally gruesome as senseless, to hammer the people so much, we could have still saved many of them and their rich herds, if we had pardoned and taken them up again, they had been punished enough. I suggested this to General von Trotha, but he wanted their total extermination.80

Von Trotha’s intention at driving the survivors into the desert, as described by Estorff demonstrates that von Trotha was not merely trying to ‘ethnically cleanse’ the Hereros’ territory but to destroy them as a group. Genocide, as defined by both the Convention and customary international law is committed when an actor intends on physically destroying a group in its entirety or in substantial part.81 It is not necessary to establish that the actor intended the complete eradication of the group members wherever in the world they might be found.82 At a minimum, the prosecution must establish that the actor intended to destroy a substantial part of the protected group as viewed within the particular context of events and a number of other considerations.83 While the numerical size 80

von Estorff 1979, p. 117. ICTY, Prosecutor v. Radislav Krsti´c, Judgment, 19 April 2004, ICTY-IT-98-33-A, paras 8–12; ICTY, Prosecutor v. Tolimir, Judgment, 12 December 2012, IT-05-88/2-T, para 749 (footnotes omitted).

81

The term “in whole or in part”, relates to the requirement that the perpetrator intended to destroy at least a substantial part of a protected group. While there is no numeric threshold of victims required, the targeted portion must comprise a “significant enough [portion] to have an impact on the group as a whole”. Although the numerosity of the targeted portion in absolute terms is relevant to its substantiality, this is not dispositive; other relevant factors include the numerosity of the targeted portion in relation to the group as a whole, the prominence of the targeted portion, and whether the targeted portion of the group is “emblematic of the overall group, or is essential to its survival”. 82

ICTY, Prosecutor v. Radislav Krsti´c, Judgment, 19 April 2004, ICTY-IT-98-33-A, para 12. See also ICTR, Prosecutor v. Muhimana, Judgment and Sentence, 28 April 2005, ICTR-95-1B-T, para 498 “In proving the intent to destroy “in whole or in part”, it is not necessary for the Prosecution to establish that the perpetrator intended to achieve the complete annihilation of a group.”; and ICTR, Prosecutor v. Gacumbitsi, Judgment, 17 June 2004, ICTR-01-64-T, para 253. 83 ICTY, Prosecutor v. Radislav Krsti´ c, Judgment, 19 April 2004, ICTY-IT-98-33-A, para 12 (footnote omitted). The intent requirement of genocide under Article 4 of the Statute is therefore satisfied where evidence shows that the alleged perpetrator intended to destroy at least a substantial part of the protected group. The determination of when the targeted part is substantial enough to meet this requirement may involve a number of considerations. The numeric size of the targeted part of the group is the necessary and important starting point, though not in all cases the ending point of the inquiry. The number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group. In addition to the numeric size of the targeted portion, its prominence within the group can be a useful consideration. If a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4. See also ICTY, Prosecutor v. Ratko Mladi´c, Judgment, 8 June 2021, MICT-13-56-A, para 576.

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of the targeted group is the starting point for this determination, careful analysis will include the size of the targeted victims in relation to the overall size of the group, the importance of the victims to the group and whether they are emblematic or essential to the survival of the group.84 ‘However, the law and the jurisprudence are not entirely clear on the question of how broadly or narrowly a group can be defined…’85 Despite this lack of clarity, it is important for the court to make precise findings about what constitutes ‘the whole’ group as other determinations about whether the accused’s intent was directed towards the whole or just a part of it depend on this determination.86 Whether or not an intended victim was a member of the targeted group ‘is a subjective rather than an objective concept’.87 In other words, the court will assess whether the accused perceived the victim as a member of the targeted group. An

84

The Mladi´c Appeal Chamber contrasted the impact of the Srebrenica genocide on Bosnian Muslims as a group with the impact of prohibited acts committed in the six municipalities alleged to constitute genocide by the Prosecution and found: With respect to the Count 1 Communities, however, neither the Trial Chamber’s findings nor the evidence referred to by the Prosecution reflects a similar threat to the viability or survival of the Bosnian Muslim group. In addition, the Appeals Chamber notes that the events in the Count 1 Municipalities occurred in 1992, closer to the outset of the war. By contrast, the events in Srebrenica took place three years later in July 1995, by which time tens of thousands of Bosnian Muslims seeking refuge, many of whom were “injured […] exhausted, lethargic, and frightened”, and only “five percent of whom were able-bodied men”, had gathered in Srebrenica in dire living conditions.1983 Thus, although the destruction directed against each of the Count 1 Communities may have “represented powerful, early steps in the Bosnian Serb campaign towards an ethnically homogeneous state”, it was open to the Trial Chamber to infer that such destruction was not significant enough to have an impact on the overall survival of the Bosnian Muslim group at the relevant time.

ICTY, Prosecutor v. Ratko Mladi´c, Judgment, 8 June 2021, MICT-13-56-A, para 581. See ICTY, Prosecutor v. Radislav Krsti´c, Judgment, 19 April 2004, ICTY-IT-98-33-A, para 12; ICTR, Prosecutor v. Muhimana, Judgment and Sentence, 28 April 2005, ICTR-95-1B-T, para 498; ICTY, Prosecutor v. Mladi´c, Judgment, 22 November 2017, IT-09-92-T, para 3437. 85 Mettraux 2019, p. 179. For example, in the case of the ICTY, ‘the whole’ group was defined as Bosnian-Muslims. ICTY, Prosecutor v. Tolimir, Judgment, 12 December 2012, IT-05-88/2-T, para 750. In ICTR jurisprudence ‘the whole’ were people of Tutsi ethnicity in Rwanda. See ICTR, Prosecutor v. Akayesu, Judgment, 2 September 1998, ICTR-96-4-T, para 122 and ICTR, Prosecutor v, Kayishema & Ruzindana, Judgment, 21 May 1999, ICTR-95-1, paras 522–526. In the ECCC, the court found that both the Cham (Muslim) and Vietnamese ethnic minorities in Cambodia were each individual groups for the purposes of the genocide charges. See ECCC, Prosecutor v. Nuon Chea et al., Closing Order, 15 September 2010, 002/19-09-2007-ECCC-OCIJ, paras 1336, 1343. 86 Mettraux 2019, p. 179. For example, the Mladi´ c Appeal Chamber, in dismissing the Prosecution’s appeal of the Trial Chamber’s acquittal of Mladi´c on genocide charges related to the 1992–95 ethnic cleansing campaign in six municipalities, considered that the Muslim population in these municipalities ranged from 0.6 to 2.6 of the overall Bosnian Muslim population in Bosnia and Herzegovina. ICTY, Prosecutor v. Ratko Mladi´c, Judgment, 8 June 2021, MICT-13-56-A, para 577. 87 ICTR, Prosecutor v. Gacumbitsi, Judgment, 17 June 2004, ICTR-01-64-T, para 254.

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accused will not have a legal defence in cases where they targeted someone who they believed was a member of the targeted group but was in fact not.88 Where the actor targeted a ‘part’ of the whole group it must be established that the part targeted constituted a substantial part of the group. This ‘substantiality requirement both captures genocide’s defining character as a crime of massive proportions and reflects the Convention’s concern with the impact the destruction of the targeted part will have on the overall survival of the group’.89 Although the actor must have intended to target a part of the group that would impact its overall survival, there is no corresponding actus reus requirement that such an impact on the group occurred.90 In determining substantiality, the court will assess both quantitative and qualitative factors.91 For example, the ICTY defined ‘the whole’ of the targeted group as Bosnian-Muslims found that Bosnian-Muslims living in Eastern Bosnia and in Srebrenica constituted substantial parts of the whole.92 With respect to BosnianMuslims living in the six municipalities alleged by the Prosecution to establish genocide during the ethnic cleansing campaign from 1992 to 95, the ICTY found that this population did not constitute a substantial part of the whole.93 Criminal laws are tailored to protect against specific societal harms. The harm the crime of genocide seeks to protect against is the physical destruction of groups based on their national, ethnic, racial or religious identity. Although it protects individuals from killings and other maltreatment by protecting the groups they belong to, its impetus is to protect the groups themselves.94 Conceptually, it is the protected group that is the ‘victim’ of the crime and not the individuals who are physically destroyed 88

Ibid., paras 254–255. ICTY, Prosecutor v. Ratko Mladi´c, Judgment, 8 June 2021, MICT-13-56-A, para 576; ICTY, Prosecutor v. Radislav Krsti´c, Judgment, 19 April 2004, ICTY-IT-98-33-A, para 8. See also ICTY, Prosecutor v. Tolimir, Judgment, 12 December 2012, IT-05-88/2-T, para 749. 90 Mettraux 2019, p. 184. 91 ICTY, Prosecutor v. Radislav Krsti´ c, Judgment, 19 April 2004, ICTY-IT-98-33-A, paras 12– 14. ICTY, Prosecutor v. Miloševi´c, Decision, 16 June 2004, IT-02-54-T, para 132 “However, the operative requirement is that of substantiality, and the intention to destroy a significant section of the group such as its leadership is not an “independent consideration”, but an element that may establish that requirement.”. ICJ, Croatia v. Serbia, Judgment, 3 February 2015, paras 142, 406 (footnote omitted). See also Mettraux 2019, p. 182. 92 ICTY, Prosecutor v. Radislav Krsti´ c, Judgment, 19 April 2004, ICTY-IT-98-33-A, paras 15–18; ICTY, Prosecutor v. Krsti´c, Judgment, 2 August 2001, ICTY-IT-98-33-T, paras 560, 591–92; ICJ, Croatia v. Serbia, Judgment, 3 February 2015, para 142, 406. Contrast with the Mladi´c Appeal Chamber that found the Muslim population in the six ‘genocidal’ municipalities ranged from 0.6 to 2.6% of the overall Bosnian Muslim population of Bosnian and Herzegovina. ICTY, Prosecutor v. Ratko Mladi´c, Judgment, 8 June 2021, MICT-13-56-A, para 577. 93 ICTY, Prosecutor v. Ratko Mladi´ c, Judgment, 8 June 2021, MICT-13-56-A, para 589. 94 ICJ, Croatia v. Serbia, Judgment, 3 February 2015, para 139 “As the Court noted in 1951 [Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (1951)] and recalled in 2007 [Bosnia v. Serbia], an object of the Convention was the safeguarding of the very existence of certain human groups”. See also ICJ, Bosnia and Herzegovina v. Serbia and Montenegro, para 194; ICC, Prosecutor v. Al Bashir, Decision, 4 March 2009, ICC-02/05-01/09-3, para 114. 89

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or harmed by acts prohibited by Article III.95 ‘[G]enocide was originally conceived as the destruction of a race, tribe, nation, or other group with a particular positive identity—not as the destruction of various people lacking a distinct identity’.96 Therefore the prosecution must identify with precision the victim group and establish that it is one of the enumerated groups afforded protection by the Convention.97 The identified group is differentiated from other groups or the general population because its ‘members have common characteristics distinguishing them from other members of society’.98 Furthermore, four categories of groups based on nationality, ethnicity, race and religion are protected by the Genocide Convention and under international customary law.99 95

Ibid. ICTY, Prosecutor v. Staki´c, Judgment, 22 March 2006, IT-97-24-A, para 21. 97 The ICTY Appeals Chamber has held that it is insufficient to identify a group in the negative using an attribute (i.e., ‘non-Serbs’) but instead genocide requires the identification of the protected group with specificity. 96

Article 4 of the Tribunal’s Statute defines genocide as one of several acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such”.52 The term “as such” has great significance, for it shows that the offence requires intent to destroy a collection of people who have a particular group identity. Yet when a person targets individuals because they lack a particular national, ethnical, racial, or religious characteristic, the intent is not to destroy particular groups with particular identities as such, but simply to destroy individuals because they lack certain national, ethnical, racial or religious characteristics. ICTY, Prosecutor v. Staki´c, Judgment, 22 March 2006, IT-97-24-A, para 20. See also ICTY, Prosecutor v. Tolimir, Judgment, 12 December 2012, IT-05-88/2-T, para 735. “[T]he presence of such a group is required for each constitutive element of the crime of genocide”. ICJ, Bosnia and Herzegovina v. Serbia and Montenegro, para 191. 98 UN Secretary-General 1947, E/447 “Genocide, as its name suggests, is aimed at a group through the individual members which compose it. A human group is made up of a certain part of the population whose members have common characteristics distinguishing them from other members of society”. 99 See generally Schabas 2000, pp. 102–150. The ICTY Appeals Chamber sets out the rationale of harm avoidance underlying this requirement: Raphaël Lemkin explained that genocide constitutes such a serious offence in part because the world loses “future contributions” that would be “based upon [the destroyed group’s] genuine traditions, genuine culture, and … well-developed national psychology.” Thus, genocide was originally conceived of as the destruction of a race, tribe, nation, or other group with a particular positive identity…. The drafting history of the Genocide Convention, whose second article is repeated verbatim in Article 4(2) of the Tribunal’s Statute, shows that the Genocide Convention was meant to incorporate this understanding of the term genocide – an understanding incompatible with the negative definition of target groups. General Assembly Resolution 96(I) defined genocide as the “denial of the right of existence of entire human groups”. Members of the General Assembly’s Sixth Committee, which prepared the final text of the Genocide Convention, echoed this view, making clear that leading countries viewed genocide as the destruction of “human groups”, not just the destruction of individuals because they have, or lack, national, ethnical, racial, or religious characteristics. Perhaps even more tellingly,

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Identifying the targeted group with the precision required by the Convention has proven to be a difficult task that includes consideration of the objective characteristics of the group in conjunction with the subject perceptions of the group by the perpetrators.100 It is important to note that such a determination cannot be made solely on the subjective perception of either the victims or perpetrators.101 To the extent that subjective perceptions are considered, the perceptions of both the victims and the perpetrators are relevant to a case-by-case assessment.102

members of the Sixth Committee declined to include destruction of political groups within the definition of genocide, accepting the position of countries that wanted the Convention to protect only “definite groups distinguished from other groups by certain well-established”, immutable criteria. ICTY, Prosecutor v. Staki´c, Judgment, 22 March 2006, IT-97-24-A, paras 21–22. This holding rejected the prosecution’s argument that the protected group could be defined in the negative as ‘non-Serbs’. 100 The ICTR Trial Chamber III described the process for identifying the targeted group. The Statute of the Tribunal does not provide any insight into whether the group that is the target of an accused’s genocidal intent is to be determined by objective or subjective criteria or by some hybrid formulation. The various Trial Chambers of this Tribunal have found that the determination of whether a group comes within the sphere of protection created by Article 2 of the Statute ought to be assessed on a case-by-case basis by reference to the objective particulars of a given social or historical context, and by the subjective perceptions of the perpetrators. The Chamber finds that the determination of a protected group is to be made on a case-by-case basis, consulting both objective and subjective criteria. ICTR, Prosecutor v. Semanza, Judgment and Sentence, 15 May 2003, ICTR-97-20-T, para 317 (footnotes omitted). See also ICTY, Prosecutor v. Blagojevi´c and Joki´c, Judgment, 17 January 2005, IT-02-60-T, para 667. Guénaël Mettraux points out: [I]n a given situation, objectively ascertainable factors, such as the exercise of a particular religion, and a commonly shared perception of one’s or another’s membership in a group might be relevant to establishing the existence of a protected group. In all cases, however, a group must have some sort of objective reality so that purely imagined entities would not, in principle, come within the scope of protection of the Convention. Mettraux 2019, p. 198. Schabas 2000, pp. 110–111 “[T]he subjective approach flounders because law cannot permit the crime to be defined by the offender alone”. 102 The ICTY has described its approach: 101

In accordance with the jurisprudence of the Tribunal, the relevant protected group may be identified by means of the subjective criterion of the stigmatisation of the group, notably by the perpetrators of the crime, on the basis of its perceived national, ethnical, racial or religious characteristics. In some instances, the victim may perceive himself or herself to belong to the aforesaid group. Judgment, 1 September 2004, IT-99-36-T, para 683. See also ICTY, Prosecutor v. Brdanin, ICTR, Prosecutor v. Rutaganda, Judgment and Sentence, 6 December 1999, ICTR-96-3-T, para 56; ICTY, Prosecutor v. Krsti´c, Judgment, 2 August 2001, ICTY-IT-98-33-T, paras 559–560.

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The victims of Article III acts must not only be members of the targeted group but must be targeted because of their membership in that group. The fact, that they are targeted for other reasons but share a common membership in a group will be insufficient to establish genocide.103 In Vasiliauskas v. Lithuania, the European Court of Human Rights found that the stringent requirements of genocide were not met by ‘the extermination of the partisans as a separate and clearly identifiable group, characterised by its armed resistance to Soviet power.104 Article II of the Convention enumerates four types of groups: national, ethnical, racial and religious. The same list of groups has been incorporated into the statutes of international criminal tribunals. The ICTR has found that these groups were included in the Convention because ‘membership in such groups would seem to be normally not challengeable by its members, who belong to it automatically, by birth, in a continuous and often irremediable manner’.105 Based on the Nottebohm case before the International Court of Justice, the ICTR held ‘that a national group is defined as a collection of people who are perceived to share a legal bond based on common citizenship coupled with reciprocity of rights and duties’.106 The concept of nationality is one of identity and is not restricted to formalistic interpretations of citizenship and legal status.107 An illustration of this can be found in the jurisprudence of the ICTY where Bosnian-Muslims were found to be a distinct national group despite sharing nationality in the legal sense with BosnianSerbs and Bosnian-Croats.108 Similarly, Cambodians of Vietnamese descent were considered a national group in Cambodia for the purposes of applying the law of genocide.109 The ICTR has defined the term ‘ethnic group’ ‘as a group whose members share a common language or culture’.110 A literal application of this definition failed to achieve the precision required considering that many different races and nationals may speak a common language (e.g., English) and cultural attributes are vague and often shared among distinct groups. ‘It therefore appears that ‘ethnicity’ in its contemporary understanding would reflect a mixture of objective linguistic, religious and cultural peculiarities which result in the subjective perception of ‘ethnic’ difference

103

ECtHR, Vasiliauskas v. Lithuania, 20 October 2015, 35243/05, paras 181–186. Ibid., para 182. 105 ICTR, Prosecutor v. Akayesu, Judgment, 2 September 1998, ICTR-96-4-T, para 511. The Akayesu Chamber distinguished these ‘irremediable’ groups from what it called ‘mobile’ groups which individuals join through ‘voluntary commitment, such as political and economic groups’. 106 ICTR, Prosecutor v. Akayesu, Judgment, 2 September 1998, ICTR-96-4-T, para 512 citing ICJ, Liechtenstein v. Guatemala. 107 Jennings and Watts 1996: “Nationality’ in the sense of citizenship of a certain state, must not be confused with ‘nationality’ as meaning membership in a certain nation in the sense of race”. 108 ICTY, Prosecutor v. Radislav Krsti´ c, Judgment, 19 April 2004, ICTY-IT-98-33-A, para 15. 109 ECCC, Prosecutor v. Nuon Chea et al., Closing Order, 15 September 2010, 002/19-09-2007ECCC-OCIJ. Note, the ECCC determined that Cambodian-Vietnamese were both a national group and an ethnic group under for the purposes of genocide analysis. 110 ICTR, Prosecutor v. Akayesu, Judgment, 2 September 1998, ICTR-96-4-T, para 513. 104

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between groups’.111 Racial groups are defined ‘based on the hereditary physical traits often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors’.112 Religious groups are defined by members who share the same religion, religious denomination or type of worship.113 In the 1918 Blue Book, the Herero were described as ‘a branch of the Great Bantu family, which at one time occupied approximately one-third of the African Continent from five degrees north to 20 degrees south primarily in an area called the Damaraland.114 Colonial powers distinguished them by the tone of their skin and their tall and muscular build.115 The Herero also had unique religious beliefs and rights and their laws of inheritance required generational wealth to pass through the matriarch.116 They were also marked by philological similarities with the Hamite people originating in the Nile region.117 Similarly, Hereros were perceived as a unique group related to Hamites because of their practice of extracting some lower teeth and the filing of a V-shaped groove in the upper front teeth.118 The Nama people were a distinct pastoral group that occupied land to the south of the Herero.119 They lived in ‘disjointed groups or clans under chiefs who had waxed powerful in their perpetual wars with the Hereros in the north’.120 Their populations consisted of approximately 20,000 people.121 The Nama were described in the 1918 Blue Book in unflattering and racist terms.122 They were described as having a dusky, yellow-skinned complexion.123 The Nama were considered friendly to Dutch settlers when they first arrived and maintained large herds of sheep, goats and horned

111

Mettraux 2019, p. 211. ICTR, Prosecutor v. Akayesu, Judgment, 2 September 1998, ICTR-96-4-T, para 514. 113 ICTR, Prosecutor v. Akayesu, Judgment, 2 September 1998, ICTR-96-4-T, para 515. 114 Silvester and Gewald 2003, p. 63. ‘At the time of the annexation by Germany the Hereros occupied the heart of South-west Africa. Their sphere of influence extended from Swakopmund in the west to the Kalahari border in the east, and from the mountains of Outjo in the north to Windhuk and Gobabis in the south’. Ibid., 65. The 1918 Blue Book contains several pages dedicated to a precise definition of the Herero, as a group, both from their perspective and the perspective of colonial powers. See Silvester and Gewald 2003, pp. 63–70. 115 Ibid. 116 Ibid. 117 Ibid., p. 64. 118 Ibid., pp. 64–65. 119 In historical texts, the name ‘Hottentot’ was used to describe the Khoikhoi people, who were indigenous non-Bantu people and who occupied Great Namaqualand. Silvester and Gewald 2003, p. 21, fn 16. It is considered derogatory as it is derived from a Dutch word that was used as a nick-name for people with speech impediments. Ibid., p. 124. 120 Silvester and Gewald 2003, p. 52. 121 Ibid. 122 Ibid., pp. 123 et seq. 123 Ibid., p. 124. 112

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cattle.124 Their language was distinguished by its unique ‘clicking’ sounds.125 The Herero and Nama peoples are exactly the types of distinguishable human groups that the Genocide Convention was designed to protect. It was the perennial tension between the Herero and Nama peoples that the German colonial powers exploited to establish ‘protection’ agreements. The groups enumerated in the Genocide Convention were a product of the time and reflected the minority groups deemed in need of protection in that era.126 Considered in a modern context they seem to omit protections for groups that many would agree should be protected from biological destruction such as LGBT groups. The Akayesu Trial Chamber in one of the earliest judgments to interpret the Genocide Convention considered that there might be a more universally applicable interpretation of the Genocide Convention that allowed its protections to evolve along with humankind. Moreover, the Chamber considered whether the groups protected by the Genocide Convention, echoed in Article 2 of the Statute, should be limited to only the four groups expressly mentioned and whether they should not also include any group which is stable and permanent like the said four groups. In other words, the question that arises is whether it would be impossible to punish the physical destruction of a group as such under the Genocide Convention, if the said group, although stable and membership is by birth, does not meet the definition of any one of the four groups expressly protected by the Genocide Convention. In the opinion of the Chamber, it is particularly important to respect the intention of the drafters of the Genocide Convention, which according to the travaux préparatoires, was patently to ensure the protection of any stable and permanent group.127

However, this seemingly common-sense approach to expanding the protections of the Genocide Conventions to other non-enumerated identifiable stable and immutable groups has not been adopted in other cases and has been rejected by scholars.128 It might be argued that the term ‘as such’ is superfluous given the precision of genocide’s other definitional elements as developed by the jurisprudence. However, the term reinforces the requirement that it must be the group to which an individual belongs that must be the purposeful target of the Article III conduct.129 As the International Court of Justice held, ‘The intent must also relate to the group “as such”. That means that the crime requires an intent to destroy a collection of people who have a particular group identity.’130 In other words, the prosecution must establish that the individual victim was a member of the targeted group and was selected 124

Ibid., pp. 123–124. Ibid., p. 124. For a more complete description of the group’s features as recorded by British colonial authorities in 1918, see Silvester and Gewald 2003, pp. 123–130. 126 Schabas 2000, pp. 106–108. 127 ICTR, Prosecutor v. Akayesu, Judgment, 2 September 1998, ICTR-96-4-T, para 516. See also ICTR, Prosecutor v. Rutaganda, Judgment and Sentence, 6 December 1999, ICTR-96-3-T, paras 57–58. 128 Schabas 2000, p. 150 (Schabas characterizes this expansive approach as ‘flimsy’ but recognizes that the protected groups could in time be expanded through the process of customary international law). Mettraux 2005, p. 230 (such would amount to judge-made law). 129 See generally Mettraux 2019, pp. 218–222. See also Vianney-Liaud 2016, pp. 261 et seq. 130 ICJ, Bosnia and Herzegovina v. Serbia and Montenegro, para 193. The ICTY has held similarly: 125

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because of that membership and the intent to destroy the group as such in whole or in part.131

5.3 Prohibited Acts Article II of the Genocide Convention sets out the prohibited acts that constitute the actus reus of genocide if other requirements of the crime are met.132 It states: In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.133

The term ‘as such’ reemphasises the crime’s prohibition of the destruction of the protected group itself, as opposed to the destruction of a collection of the group’s individual members. Although the victim of the underlying act is selected by reason of his or her membership in a group, ‘the victim of the crime of genocide is the group itself and not only the individual.’ ICTY, Prosecutor v. Tolimir, Judgment, 12 December 2012, IT-05-88/2-T, para 747 (footnote omitted). 131 The ICTY has held: The intent to destroy a group as such, in whole or in part, presupposes that the victims were chosen by reason of their membership in the group whose destruction was sought. Mere knowledge of the victims’ membership in a distinct group on the part of the perpetrators is not sufficient to establish an intention to destroy the group as such. ICTY, Prosecutor v. Krsti´c, Judgment, 2 August 2001, ICTY-IT-98-33-T, para 561. See also Drost 1959, p. 124 “It is an externally perceptible quality or characteristic which the victim has in common with the other members of the group… and which for that very reason causes the attacker to commit the crime against such marked and indicated individual”. 132 The International Court of Justice has described the relationship between these prescribed acts and the other requirements of the Convention. The acts listed in Article II of the Convention constitute the actus reus of genocide. Such acts are proscribed in the context of genocide inasmuch as they are directed against the members of the protected group and reflect the intent to destroy that group in whole or in part. As the Court has already pointed out, such acts cannot be taken in isolation, but must be assessed in the context of the prevention and punishment of genocide, which is the object of the Convention. 133

ICJ, Croatia v. Serbia, Judgment, 3 February 2015, para 149. Genocide Convention art II.

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The five categories of acts reflected the types of crimes employed during the Holocaust to eliminate Jews and other targeted minority populations.134 These acts have been incorporated into the statutes for all international (or internationalized) courts with jurisdiction over the crime of Genocide.135 The conceptual commonality between these acts is the inherent gravity of their nature and their potential to destroy protected groups. These prohibited acts help establish the crime of genocide only when they are committed by an intentional act or culpable omission.136 Killing as a prohibited act of genocide is very similar to the crime of murder in most national penal codes. Definitionally, a person commits a ‘killing’ for the purposes of the Genocide Convention if they voluntarily and intentionally cause the death of a human person (reemphasizing that other requirements must be met such as the victim’s membership in the protected group, etc.).137 The Karadži´c Chamber described mens rea for killing as: both direct intent (dolus directus), which is a state of mind in which the perpetrator desired the death of the individual to be the result of his act or omission, and indirect intent (dolus eventualis), which is knowledge on the part of the perpetrator that the death of a victim was a probable consequence of his act or omission.138

134

See United Nations War Crimes Commission, which observed: As can be seen the offences enumerated in Article 2 of this Convention cover practically the entire field tried in this case. The most conspicuous instances are abortions, punishments for sexual intercourse, preventing marriages and hampering reproduction, and the measures undertaken for forced Germanization, including the kidnapping or taking away of children and infants, the deportation and resettlement of populations, and the persecutions of Jews.

United Nations War Crimes Commission 1949, pp. 39–40. Note that this list of prohibited acts is a ‘subset’ of the acts enumerated by Raphael Lemkin in his book Axis Rule in Occupied Europe, which included acts related to other types of destruction in addition to physical destruction (i.e., political, social, cultural religious, economic and moral). Lemkin 1944, p. 82. See generally Schabas 2000, pp. 151 et seq. 135 Mettraux 2019, p. 253. 136 As the International Court of Justice has held: The Court notes that genocide as defined in Article II of the Convention comprises “acts” and an “intent”. It is well established that the acts […] themselves include mental elements. “Killing” must be intentional, as must “causing serious bodily or mental harm”. Mental elements are made explicit in paragraphs (c) and (d) of Article II by the words “deliberately” and “intended”, quite apart from the implications of the words “inflicting” and “imposing”; and forcible transfer too requires deliberate intentional acts. The acts, in the words of the ILC, are by their very nature conscious, intentional or volitional acts. ICJ, Bosnia and Herzegovina v. Serbia and Montenegro, para 186 citing International Law Commission 1996, para 5. 137 ICTY, Prosecutor v. Radislav Krsti´ c, Judgment, 19 April 2004, ICTY-IT-98-33-A, para 21; ICTY, Prosecutor v. Karadži´c, 24 March 2016, IT-95-5/18-T, paras 446–448. 138 ICTY, Prosecutor v. Karadži´ c, 24 March 2016, IT-95-5/18-T, para 448 (footnote omitted). It does not include killings that are the result of negligence. See ICTR, Prosecutor v. Bagilishema, Judgment, 7 June 2001, ICTR-95-1A-T, para 58.

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It does not include negligent or involuntary killings,139 and the prosecution does not have to establish premeditation.140 The prosecution does not have to establish the existence of the victim’s body if the victim’s death can be established with circumstantial evidence.141 Killings were the primary mechanism for physically destroying the Herero people as a group. The 1918 Blue Book records the statement of Daniel Kariko, a Herero chief, The result of this war is known to everyone. Our people, men, women and children were shot like dogs and wild animals. Our people have disappeared now. I see only a few left; their cattle and sheep are gone too, and all our land is owned by the Germans … after the fight at Waterberg we asked for peace; but von Trotha said there would only be peace when we were all dead, as he intended to exterminate us.142

‘Causing serious bodily or mental harm to members of the group’ is another act prohibited by Article II and is a less precise term than ‘killing’; ‘it has been described more than it has been defined’.143 Bodily harm describes serious injuries to the victim’s physical person.144 It includes acts of torture and acts that cause serious injury and seriously threaten the health of the victim.145 Similarly, ‘mental harm’ describes injury to the personality of the victim.146 The ICTY has held that: ‘serious mental harm results only from acts causing grave and long-term disadvantage to the ability of members of the protected group to lead a normal and constructive life’.147 One way courts have used to assess the ‘seriousness’ of the bodily and mental harm 139

See ICTR, Prosecutor v. Bagilishema, Judgment, 7 June 2001, ICTR-95-1A-T, para 58. See ICTR, Prosecutor v. Kayishema & Ruzindana, Judgment (Reasons), 1 June 2001, ICTR95-1-A, para 151; ICTR, Prosecutor v. Bagilishema, Judgment, 7 June 2001, ICTR-95-1A-T, paras 55, 57–58. 141 ICTY, Prosecutor v. Karadži´ c, 24 March 2016, IT-95-5/18-T, para 446. For example, in some cases, the Prosecution in ICTY established the death of individual victims circumstantially through the introduction of census data, voting records and testimony of surviving family members that they had not seen or heard from the victim in many years. 142 Silvester and Gewald 2003, pp. 113–114. See also, the sworn testimony of Johannes Kruger: I went with the German troops right through the Herero rebellion. The Afrikaner Hottentots of my werft were with me. We refused to kill Herero women and children, but the Germans spared none. They killed thousands and thousands. I saw this bloody work for days and days and every day. Often, and especially at Waterberg, the young Herero women and girls were violated by the German soldiers before being killed. Ibid., p. 117. See also the sworn testimony of Jan Kubas: ‘They slaughtered until there were no more Hereros left to kill. I saw this every day; I was with them. A few Hereros managed to escape in the bush and wandered about, living on roots and wild fruits. Von Trotha was the German General in charge’. 143 Mettraux 2019, p. 259. The ICC Elements of Crimes states, in reference to such acts that ‘[t]his conduct may include, but is not necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment.’ International Criminal Court 2011, Article 6(b)(1) fn 3. 144 ICTY, Prosecutor v. Brdanin, Judgment, 1 September 2004, IT-99-36-T, para 690. 145 Ibid. “The harm inflicted need not be permanent and irremediable, but needs to be serious”. 146 Ibid. 147 ICTY, Prosecutor v. Tolimir, Judgment, 8 April 2015, IT-05-88/2-A, para 215. 140

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is to examine whether the harm ‘tends to contribute to the destruction of the protected group as such’.148 There is no determinate list of acts which qualify as establishing Article II (b) conduct, but include inter alia, inhuman treatment, sexual violence, physical violence that causes serious injury.149 During the Armenian genocide, Ambassador Morgenthau understood the odious intent behind forcing the Armenian population into the desert. The Central Government now announced its intention of gathering the two million or more Armenians living in the several sections of the empire and transporting them to this desolate and inhospitable region. Had they undertaken such a deportation in good faith it would have represented the height of cruelty and injustice. As a matter of fact, the Turks never had the slightest idea of re-establishing the Armenians in this new country. They knew that the great majority would never reach their destination and that those who did would either die of thirst and starvation or be murdered by the wild Mohammedan desert tribes.150

Jurisprudence interpreting the Genocide Convention has understood Article II(c) to describe conduct which may not immediately cause the death of the victim but is reasonably calculated to do so.151 The focus of this prohibited act is on the conditions themselves and not the successful realization of the calculated and intended destruction (as with Article II(a) and (b)).152 Although the intended result is not definitionally required, it must be clear from the evidence that the intent was the group’s destruction and not simply its dissolution.153 With respect to the types of 148

Ibid., para 212. See also ICTR, Prosecutor v. Seromba, Judgment, 12 March 2008, ICTR-200166-A, para 48. The Karadži´c Trial Chamber noted that the prosecution does not have to establish that the conduct actually contributed to the destruction but simply that it had the potential to do so. ICTY, Prosecutor v. Karadži´c, 24 March 2016, IT-95-5/18-T, para 544. 149 ICJ, Croatia v. Serbia, Judgment, 3 February 2015, para 158; ECCC, Prosecutor v. Ao An, Closing Order, 16 August 2018, 004/07-09-2009-ECCC-OCIJ, para 92; ICTR, Prosecutor v. Akayesu, Judgment, 2 September 1998, ICTR-96-4-T, paras 503–504, 720–722, 731; ICTY, Prosecutor v. Karadži´c, Judgment, 11 July 2013, ICTY-IT-95-5/18-AR98bis.1, para 33. For a comprehensive enumeration of the acts capable of establishing ‘bodily and mental harm’, see Mettraux 2019, p. 264 fn 42–49. 150 Morgenthau 1918, p. 309. ‘It is absurd for the Turkish Government to assert that it ever seriously intended to ‘deport the Armenians to new homes’; the treatment which was given the convoys clearly shows that extermination was the real purpose of Enver and Talaat’. Ibid., p. 318. 151 ICTR, Prosecutor v. Akayesu, Judgment, 2 September 1998, ICTR-96-4-T, paras 505–506; ICTR, Prosecutor v. Musema, Judgment and Sentence, 27 January 2000, ICTR-96-13-A, para 157; ICTY, Prosecutor v. Staki´c, Judgment, 31 July 2003, IT-97-24-T, paras 517–519. 152 ICTY, Prosecutor v. Staki´ c, Judgment, 31 July 2003, IT-97-24-T, para 517. The ICTY has held that there is no requirement that the intended result occur. Unlike Articles 4(2) (a) and (b) [incorporated verbatim from Genocide Convention Article II], Article 4(2)(c) does not require proof of a result such as the ultimate physical destruction of the group in whole or in part. However, Article 4(2)(c) applies only to acts calculated to cause a group’s physical or biological destruction deliberately and, as such, these acts must be clearly distinguished from those acts designed to bring about the mere dissolution of the group. 153

ICTY, Prosecutor v. Tolimir, Judgment, 12 December 2012, IT-05-88/2-T, para 741. Ibid.

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acts which have been found to meet these requirements the ICTY has held that, ‘[i]n relation to (c), the acts may include: systematic expulsion from homes; denial of medical services; and the creation of circumstances that would lead to a slow death, such as lack of proper housing, clothing, and hygiene or excessive work or physical exertion.’154 To qualify as a condition for the purposes of establishing genocide it must be a deliberate act.155 The condition must also be ‘calculated’ in that there must be a nexus between the deliberate conditions and the physical destruction of the group.156 A written account by Gustav Frenssen recorded his observations of what happened to Hereros who escaped attempts to kill them outright. Setting down on my knees and creeping for a little way, I saw tracks of innumerable children’s feet, and among them those of full-grown feet. Great troops of children, led by their mothers, had passed over the road here to the north-west.… Thousands of women and children were lying there under the roofs of leaves around the dying fires… Still the thought went through my head: There lies a people with all its children and all its possessions, hard pressed on all sides by the horrible deadly lead and condemned to death….157

He goes on to describe what happened the next day, Through the quiet night we heard in the distance the lowing of enormous herds of thirsty cattle and a dull, confused sound like the movement of a whole people…. The enemy [Hereros] had fled to the east with their whole enormous mass – women, children and herds. The next morning we ventured to pursue the enemy… The ground was trodden down into a floor for a width of about a hundred yards, for in such a broad, thickly crowded horde had the enemy and their herds of cattle stormed along. In the path of their flight lay blankets, skins, ostrich feathers, household utensils, women’s ornaments, cattle and men, dead and dying and staring blankly… How deeply the wild, proud, sorrowful people had humbled themselves in the terror of death! Wherever I turned my eyes lay their goods in quantities, oxen and horses, goats and dogs, blankets and skins. A number of babies lay helplessly languishing by mothers whose breasts hung down long and flabby. Others were lying alone, still living, with eyes and nose full of flies. somebody sent out our black drivers and I think they helped them to die. All this life lay scattered there, both man and beast, broken in the knees, helpless, still

154

ICTY, Prosecutor v. Mladi´c, Judgment, 22 November 2017, IT-09-92-T, para 3434. For a comprehensive list of acts that courts have found established a violation of Article II (c) see Mettraux 2019, pp. 271–276. 155 ICTY, Prosecutor v. Mladi´ c, Judgment, 22 November 2017, IT-09-92-T, para 3434; ICTY, Prosecutor v. Popovi´c et al, Judgment, 10 June 2010, IT-05-88-T, para 817; ICTR, Prosecutor v. Akayesu, Judgment, 2 September 1998, ICTR-96-4-T, para 505; ICTY, Prosecutor v. Staki´c, Judgment, 31 July 2003, IT-97-24-T, para 517. 156 As Schabas points out, The word ‘calculated’ definitely adds an important concept to the offence, implying not only intent and even premeditation but also indicating that the imposition of conditions must be the principal mechanism used to destroy the group, rather than some form of ill-treatment that accompanies or is incidental to the crime.’ Schabas 2000, p. 243, citing UN Preparatory Commission for the International Criminal Court 1999, PCNICC/1999/WGEC/RT.1. 157 Silvester and Gewald 2003, p. 112, quoting Frenssen 1906, p. 158.

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in agony or already motionless, it looked as if it had all been thrown down out of the air. At noon we halted by waterholes which were filled to the very brim with corpses.158

Article II(d) of the Genocide Convention states, ‘Imposing measures intended to prevent births within the group’. As the jurisprudence has evolved a consensus has developed that measures may be both physical (e.g., abortion, sterilization, separation of the sexes) and mental (traumatizing victims in a manner that will make them unlikely to procreate in the future).159 There is no requirement for the prosecution to establish that births within the group were in fact prevented.160 When relevant, the cultural context of both the victim and the perpetrator will also be considered. For example, in Rwanda, a patriarchal society the Trial Chamber found: [W]here membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother’s group.161

Transferring children from the protected group to the perpetrator’s or another group, may also constitute an act of genocide if other requirements are met.162 The separation of families and forced adoption of children into other groups impedes the protected group’s ability to reconstitute itself and contributes to its long-term biological destruction.163 Although the Convention is silent on what age individuals should no longer be considered ‘children’ for the purposes of this article, the ICC has adopted the age of 18 from the UN Convention on the Rights of the Child.164 Sadly, during the Herero/Nama Genocides, the lives of children were not spared and there was no intention to assimilate them into German settler families. Here, in a statement by the son of Nama chief, Hendrik Witbooi, we can see that children too were the intended direct targets of the German campaign to kill the Nama: ‘Then we saw it was the Germans. The women and children were left in the werft [a hangar], and the soldiers began to shoot at them, they shot little children, children at the breast, children on their mother’s backs were shot through by the same bullet that killed the mothers.’165 158

Ibid., quoting Frenssen 1906, p. 186. ICTR, Prosecutor v. Rutaganda, Judgment and Sentence, 6 December 1999, ICTR-96-3-T, para 53. (‘the words “measures intended to prevent births within the group” should be construed as including sexual mutilation, enforced sterilization, forced birth control, forced separation of male and females and prohibition of marriages. The Chamber notes that measures […] may be not only physical, but also mental’. See also, ICTR, Prosecutor v. Akayesu, Judgment, 2 September 1998, ICTR-96-4-T, para 508; ICTY, Prosecutor v. Tolimir, Judgment, 12 December 2012, IT-05-88/2-T, para 743; ICTY, Prosecutor v. Popovi´c et al., Judgment, 10 June 2010, IT-05-88-T, para 822. 160 Ibid. 161 ICTR, Prosecutor v. Akayesu, Judgment, 2 September 1998, ICTR-96-4-T, para 507. 162 Lemkin 1947, p. 147. 163 ICJ, Croatia v. Serbia, Judgment, 3 February 2015, para 136. 164 International Criminal Court 2011, Article 6(e), para 5 “The person or persons were under the age of 18 years.” 165 Silvester and Gewald 2003, p. 47, fn 59. This excerpt is from the complete statement made by Hendrik Witbooi’s son maintained in the Archives of South Africa and included in an annotation to 159

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5.4 Modes of Participation So far in this chapter, I have examined the mens rea of genocide and its special requirements and the actus reus of genocide—the prohibited acts. Article II of the Genocide Convention contains all the definitional elements necessary to adjudicate the conduct of a direct perpetrator for a violation of the Convention. Article III of the Convention recognizes that historically, genocide, as a crime, has been committed by collectives, large groups of people sharing the same genocidal intent toward the same protected group. Each member of these genocidal collectives has a part to play within the machinery designed to physically destroy the group; each makes their own contribution to the actus reus of the crime. To address the collective nature of the crime of genocide, Article III establishes five categories of contributions or modes of participating, each with their own defined actus reus elements. These different categories or modes of participation are: (a) (b) (c) (d) (e)

Genocide; Conspiracy to commit genocide; Direct and public incitement to commit genocide; Attempt to commit genocide; Complicity in genocide.

These five modes of participation, established by the Convention, are now fully recognized as part of international customary law.166 The five tersely worded modes are broad and include both choate and inchoate liability.167 In addition to these modes of participation, where the crime of genocide has been incorporated into the statutes of international tribunals, the modes of participation enumerated in their statutes also

the 1918 Blue Book. Hendrik Witbooi was a Nama chief born circa 1830 and raised as a Lutheran by German missionaries. He was multi-lingual and cooperated with German forces in their campaign against the Herero people until 1904 when he too found his people engaged in armed conflict with German colonial powers. Witbooi was killed in combat on 29 October 1908. He is considered a national hero of Namibia and appears on its currency. See generally Witbooi 1995. 166 The ICTY has stated: The crime of genocide is punishable under Article 4 of the Statute, which adopts the definition of genocide and list of punishable acts in Articles II and III of the Genocide Convention. These articles of the Genocide Convention are widely accepted as customary international law. Genocide was therefore a punishable offence under customary international law at the time of the acts alleged in the Indictment. ICTY, Prosecutor v. Popovi´c et al, Judgment, 10 June 2010, IT-05-88-T, para 807 (footnote omitted). See also ICTR, Prosecutor v, Kayishema & Ruzindana, Judgment, 21 May 1999, ICTR95-1, para 88 “Furthermore, the crime of genocide is considered part of international customary law and, moreover a norm of jus cogens”; ICJ, Bosnia and Herzegovina v. Serbia and Montenegro, para 161; ICJ 1951. 167 In the statutes of the ad hoc tribunals, genocide is the only crime that includes criminal liability as an inchoate crime.

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form the basis of liability.168 For example, joint criminal enterprise (J.C.E) developed as a mode of liability in the ad hoc tribunals for Yugoslavia and Rwanda is not included in the Convention. Nonetheless it has been recognized by those tribunals as a basis for liability for genocide.169 It is also possible that that ‘[l]iability could be incurred as a matter of customary law for contributing to an act of genocide in a variety of other ways…’170 There is also nothing in the Convention or in international customary law that prevents individual states from enacting domestic laws against genocide that include different formulations of these modes or additional modes of participation.171

5.4.1 Genocide Article III(a) simply states ‘genocide’. While perhaps an obvious point, this mode of criminal liability describes the crime of genocide in its most fundamental form is committed when: an actor engages in one of the prohibited acts enumerated in Article II with the ‘intent to destroy in whole or in part, a national, ethnical, racial or religious group, as such’.172 Much of the discussion above describes this most elemental form of the crime.

5.4.2 Conspiracy The crime of conspiracy developed in Anglo-American law and criminalizes agreements to engage in criminal conduct (an agreement to engage in the actus reus of a particular crime). It developed as an inchoate crime in countries that recognized the increased danger of societal harm when two or more people agree to engage in criminal conduct.173 Under a subjectivist view of crime, society, through its justice 168

ICTR, Prosecutor v. Ntakirutimana, Judgment, 13 December 2004, ICTR-96-10-A and ICTR96-17-A, para 500; ICTY, Prosecutor v. Radislav Krsti´c, Judgment, 19 April 2004, ICTY-IT-98-33A, paras 138-139; ICTR, Prosecutor v. Ndindabahizi, Judgment, 16 January 2007, ICTR-01-71-A, para 117 fn 259. 169 See e.g., ICTR, Rwamakuba v. Prosecutor, Decision, 22 October 2004, ICTR-98-44-AR72.4, para 19. For an example of an Appeal Chamber applying joint criminal enterprise in its analysis of whether genocide was established see ICTY, Prosecutor v. Ratko Mladi´c, Judgment, 8 June 2021, MICT-13-56-A, paras 584–589. 170 Mettraux 2019, p. 289. See generally Schabas 2000, pp. 257 et seq. 171 Mettraux 2019, p. 291. 172 Genocide Convention art II. See ICTR, Prosecutor v. Nahimana, et al, Judgment, 28 November 2007, ICTR-99-52-A, para 492; ICTR, Prosecutor v. Gatete, Judgment, 9 October 2012, ICTR-0061-A, para 260; ICTR, Prosecutor v. Karemera et al., Judgment, 29 September 2014, ICTR-98-44-A, para 710 “the crime of genocide requires the commission of one of the enumerated acts in Article 2(2) of the Statute.” (footnotes omitted). 173 See generally Robinson and Darly 1998, p. 409.

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system, should address the potential harm once such an agreement is manifested.174 Conspiracy as a mode of participating in genocide, recognises the potential for grave irreversible harm once two or more people enter into an agreement to engage in genocidal acts. The Convention seeks to mitigate this danger in its early stages of planning by criminalizing agreements to commit acts of genocide.175 In Nuremberg, conspiracy was included as a distinct crime.176 The ad hoc tribunals as the first judicial body to adjudicate individual criminal responsibility for the crime of genocide held ‘that the constitutive elements of conspiracy, as defined under both systems, are very similar. Based on these elements, the Chamber held that conspiracy to commit genocide is to be defined as an agreement between two or more persons to commit the crime of genocide.’177 An agreement to engage in any of the Article II prohibited acts accompanied with the dolus specialis of genocide is a completed crime (i.e., conspiracy to commit genocide) as soon as a bilateral agreement has occurred and irrespective of whether additional steps to engage in the prohibited acts take place.178 The similarities between conspiracy as a completed inchoate crime and joint criminal enterprise as an mode of liability for genocide as a choate crime has caused some confusion.179 The requirement that both require at least two people who enter into an agreement that is criminal in nature has caused some confusion. Joint Criminal Enterprise is not an inchoate crime; it is a form of perpetration or ‘committing’ and is applicable only to a completed crime as a mode of responsibility.180 A violation of Article III(b) 174 175

Ibid. The ICTR Appeal Chamber has held: The Appeals Chamber recalls that criminalising conspiracy to commit genocide, as an inchoate crime, aims to prevent the commission of genocide. However, the Appeals Chamber considers that another reason for criminalising conspiracy to commit genocide is to punish the collaboration of a group of individuals resolved to commit genocide. The danger represented by such collaboration itself justifies the incrimination of acts of conspiracy, irrespective of whether the substantive crime of genocide has been committed.

ICTR, Prosecutor v. Gatete, Judgment, 9 October 2012, ICTR-00-61-A, para 262. See also ICTY, Prosecutor v. Tolimir, Judgment, 12 December 2012, IT-05-88/2-T, para 589. See generally Robinson 1960, p. 68. 176 IMT 1951, 82 UNTS 279. 177 ICTR, Prosecutor v. Musema, Judgment and Sentence, 27 January 2000, ICTR-96-13-A, para 191. See also ICTR, Prosecutor v. Nahimana, Judgment and Sentence, 3 December 2003, ICTR99-52-T, paras 1044–1045. 178 The ICTY has held that, ‘under the Statute of the Tribunal, conspiracy to commit genocide is not a mode of liability but an inchoate crime, constituted as soon as there is an agreement among the conspirators “to act for the purpose of committing genocide”.’ ICTY, Prosecutor v. Tolimir, Judgment, 8 April 2015, IT-05-88/2-A, para 590 (footnote omitted). See also ICTR, Prosecutor v. Nahimana, et al., Judgment, 28 November 2007, ICTR-99-52-A, para 896. 179 See e.g., ICTY, Prosecutor v. Tolimir, Judgment, 8 April 2015, IT-05-88/2-A, para 589. This confusion is caused, in part, because the Genocide Convention was drafted before more clearly structured theories of co-perpetration such as joint criminal enterprise developed in international law, thus creating incongruity and confusions between the two. 180 ICTY, Prosecutor v. Tadi´ c, Judgment, 15 July 1999, IT-94-1-A, paras 226–227.

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‘conspiracy to commit genocide’ is conceptually distinct and legally independent of J.C.E.181 Conspiracy does not require the completion of any underlying crime while J.C.E. does. The actus reus of conspiracy to commit genocide is a bilateral agreement between two or more persons to commit one of the prohibited acts listed under Article II.182 The agreement must be made with the requisite mens rea, the intent to destroy in whole or in part a national, ethnical, racial or religious group.183 Although a conspiratorial agreement may be inferred from the evidence, the prosecution must establish beyond reasonable doubt that there was a concerted agreement and exclude the possibility of a mere association or coincidence of conduct.184 One of the mechanisms that Germany employed to assert colonial authority over southwest Africa was entering into protection agreements with the indigenous peoples. These protectorate agreements were used to curry favour with tribes who were in conflict with other indigenous peoples, to exert influence over native peoples, and ultimately to assert authority over the internal and external affairs of the territory.185 Both the Herero and the Nama peoples entered into protectorate agreements with Germany during different periods, motivated in part by their wish to secure an advantage in the longstanding armed conflict between them. These agreements are a complex matrix of obtuse legal relationships of uncertain effect, particularly since neither the Herero and Nama peoples consisted of unitary social structures and were instead often loose conglomerates of disjointed tribes and clans, each with their own leadership structure and customs.186 Hendrik Witbooi, the Nama chieftain, viewed the protection agreement reached between the German colonial governor Heinrich Göring and Herero leaders as an

181

ICTY, Prosecutor v. Tolimir, Judgment, 8 April 2015, IT-05-88/2-A, para 590. ICTR, Prosecutor v. Ntagerura, et al., Judgment, 7 July 2006, ICTR-99-46-A, para 92 “Appeals Chamber considers that, at a minimum, conspiracy to commit genocide consists of an agreement between two or more persons to commit the crime of genocide” (footnote omitted). See also ICTR, Prosecutor v. Ntakirutimana, Judgment and Sentence, 21 February 2003, ICTR-96-10 & ICTR-9617-T, para 798. I use the term ‘bilateral’ to make clear that under international law there must be at least two persons who enter into the genocidal agreement and make the distinction from some jurisdictions that permit a ‘unilateral agreement’, that is, an actor who enters into an agreement with an undercover police officer to engage in criminal conduct may be criminally culpable for the crime of conspiracy irrespective of the fact that the undercover was feigning agreement and did not intend to agree to any criminal conduct. See American Law Institute 1985, §5.04(1)(a); LaFave and Scott 1972, pp. 488–90; Robinson 1997, pp. 648–649. 183 ICTR, Prosecutor v. Ntakirutimana, Judgment and Sentence, 21 February 2003, ICTR-96-10 & ICTR-96-17-T, para 92. 184 ICTR, Prosecutor v. Nahimana, et al., Judgment, 28 November 2007, ICTR-99-52-A, para 898; ICTY, Prosecutor v. Popovi´c et al., Judgment, 10 June 2010, IT-05-88-T, para 869 “the evidence must establish beyond reasonable doubt a concerted agreement to act, and not merely similar conduct or a of a negotiation in progress.” (footnotes omitted). 185 Sarkin-Hughes 2008, pp. 35 et seq. 186 Ibid., p. 38. 182

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implicit agreement to physically destroy the Nama people.187 On 30 May 1890, Witbooi wrote to Maharero ka Tjamuaha, the powerful Herero chief, characterizing the protection agreement as part of a plan to destroy the Nama, ‘You are to be protected and helped by the German Government, but dear Captain do you appreciate what you have done? … You have looked upon me as a hindrance and a stumbling block … and so you have accepted this great Government in order to destroy me by its might’.188 It is not possible to say whether these protectorate agreements would be sufficient to sustain a prosecutor’s burden at trial. There is no explicit language in them indicating genocidal intent and the inferences drawn from them are diluted by the inclusion of other agreements related to trade, etc. It is also significant that it is unlikely that many of the tribal leaders who entered into them could read German or understand German legal terminology.189 Whether or not there were conspiratorial agreements between German settlers, German companies and German forces that would have violated the Genocide Convention if it existed at the time would also merit the attention of prosecutors. In the early days of the twentieth century, German companies and settlers did not own much land and envied the rich flocks and herds shepherded by the Herero.190 Some ‘settlers believed that the land ought to be emptied of the local people to establish farms for themselves’.191 Herero lands would be used to create ‘a new Germany’.192 A prevailing view amongst settlers at the time was that once dispossessed of their land and dominated militarily, there were simply too many Hereros to be employed as labourers on the stolen land.193 A prosecutor would want to explore whether or not there existed agreements evidencing genocidal intent between the different German entities. When General von Trotha arrived in Southwest Africa, settlers believed that the time had come to ‘effectively settle the native question’.194 The dawn of German 187

Heinrich Göring was a German diplomat and the colonial governor of German South-West Africa. Heinrich Göring was also the father of Hermann Göring one of the most powerful men in the Nazi Party and an architect of the Holocaust. Gross 2015. 188 Silvester and Gewald 2003, p. 37, quoting a letter dated 30 May 1890 from Henrik Witbooi to Captain Maharero Tjamuaha. Witbooi chastises Maharero for giving over sovereignty to the Germans and foretells that it will cause the destruction of the Herero people. But this thing which you have done, this giving of yourself into the hands of white people for government, thinking that you have acted wisely, that will become to you a burden as if you were carrying the sun on your back. I cannot say whether you have sufficiently pondered [sic] over and whether you actually understand what you have done by giving yourself into German Protection. 189

Silvester and Gewald 2003, p. 56. Sarkin-Hughes 2008, p. 27; ibid., p. 8. 191 Ibid., p. 30. 192 Ibid., p. 26. 193 Silvester and Gewald 2003, p. 93. 194 Ibid., p. 165. 190

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dominance by von Trotha’s troops was forecast in local settler newspapers.195 Von Trotha would assert German dominance with a ruthless genocidal campaign against the Herero and Nama people. He is reported in the 1918 Blue Book to have said (in reference to Hereros), ‘let not a man, woman or child be spared—kill them all’.196 A closer examination of the relationship and cooperation between General von Trotha, local government and police officials and settler leaders might uncover the existence of agreements that constitute the crime of genocide.

5.4.3 Direct and Public Incitement of Genocide Article III(c) criminalizes the ‘direct and public incitement to commit genocide’. Under the Genocide Convention and the crime of genocide in customary international law, incitement is also an inchoate crime.197 It is not necessary that the prosecution establish that the act of incitement caused any person to actually commit an act of genocide.198 Similar to ‘conspiracy to commit genocide’, the gravity and inherent danger of publicly inciting others to commit acts of genocide merits its status as an inchoate crime.199 The actus reus of incitement is the public and direct incitement of acts prohibited by Article II of the Genocide Convention.200 In assessing provocative statements 195

Silvester writes: The local newspapers took up the theme with zest and vigour. It was openly forecasted that (a) All tribal bonds would be broken. (b) The Chiefs would all be deposed. (c) All natives would be forcibly disarmed and placed in reserves. In other words, Germany was about to repudiate all pledges and promises made in the protection agreements, now that she felt strong enough to do so, and in the general breaking up of the old order the loyal Chieftains amid natives would suffer the same fate as those who had gone into rebellion.

Ibid. Ibid., p. 70. 197 ICTR, Prosecutor v. Nyiramasuhuko, et al., Judgment, 14 December 2015, ICTR-98-42-A, para 2677. 198 Ibid. See also ICTR, Prosecutor v. Akayesu, Judgment, 2 September 1998, ICTR-96-4-T, paras 561–562; ICTR, Prosecutor v. Musema, Judgment and Sentence, 27 January 2000, ICTR-96-13-A, paras 193–194; ICTR, Prosecutor v. Nahimana, et al, Judgment, 28 November 2007, ICTR-99-52-A, para 678. 199 ICTR, Prosecutor v. Nyiramasuhuko, et al., Judgment, 14 December 2015, ICTR-98-42-A, para 3449 “The Appeals Chamber observes that the gravity of the crime of direct and public incitement to commit genocide derives from that of the crime of genocide, a crime of the most serious gravity.” (footnotes omitted). ICTR, Prosecutor v. Bikindi, Judgment, 18 March 2010, ICTR-01-72-A, para 208. 200 The ICTR defined incitement as: 196

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courts must consider the applicable historical, cultural, social and linguistic context in which they occurred.201 Recent events, particularly acts of violence related to a genocidal campaign are also highly relevant to a court’s assessment.202 The requirement that the incitement be ‘direct’ has been interpreted to require that the language ‘specifically provoke another to engage in a criminal act’.203 Explicit directions are not required but the prosecution must establish that the intended recipients of the incitement ‘immediately grasped the implications’ of the language.204 The requirement of ‘publicly’ distinguishes the speech from private speech and requires that the venue or mechanism employed was public in nature or at least had the protentional to reach a public audience.205 Incitement is ‘public’ when conducted through speeches, shouting or threats uttered in public places or at public gatherings, or through the sale or dissemination, offer for sale or display of written material or printed matter in public places or at public gatherings, or through the public display of placards or posters, or through any other means of audio-visual communication.206

directly provoking the perpetrator(s) to commit genocide, whether through speeches, shouting or threats uttered in public places or at public gatherings, or through the sale or dissemination, offer for sale or display of written material or printed matter in public places or at public gatherings, or through the public display of placards or posters, or through any other means of audiovisual communication. ICTR, Prosecutor v. Akayesu, Judgment, 2 September 1998, ICTR-96-4-T, para 559. ICTR, Prosecutor v. Nahimana, et al, Judgment, 28 November 2007, ICTR-99-52-A, paras 698–703. 202 ICTR, Prosecutor v. Karemera, Judgment and Sentence, 2 February 2012, ICTR-98-44-T, paras 1598 “The Chamber finds that, in the context of the recent massacres, the speeches were understood by the audience as a direct call to continue killing of Tutsis in order to destroy the Tutsi population in Rwanda in whole or in part” and 1602. 203 ICTR, Prosecutor v. Akayesu, Judgment, 2 September 1998, ICTR-96-4-T, para 557 “The “direct” element of incitement implies that the incitement assume a direct form and specifically provoke another to engage in a criminal act, and that more than mere vague or indirect suggestion goes to constitute direct incitement” (footnote omitted). See also ICTR, Prosecutor v. Nahimana, et al., Judgment, 28 November 2007, ICTR-99-52-A, para 692; ICTR, Prosecutor v. Nyiramasuhuko, et al., Judgment, 14 December 2015, ICTR-98-42-A, para 3338. 204 The ICTR has held, 201

The Chamber will therefore consider on a case-by-case basis whether, in light of the culture of Rwanda and the specific circumstances of the instant case, acts of incitement can be viewed as direct or not, by focusing mainly on the issue of whether the persons for whom the message was intended immediately grasped the implication thereof. ICTR, Prosecutor v. Akayesu, Judgment, 2 September 1998, ICTR-96-4-T, para 558. See generally Dojˇcinovi´c 2012. 205 ICTR, Prosecutor v. Kalimanzira, Judgment, 22 June 2009, ICTR-05-88-T, (hereafter Kalimanzira Trial Judgment) para 515. Even though definitionally the speech must be public, there is no minimum number of people who hear it or are likely to hear it. See ICTR, Prosecutor v. Nzabonimana, Judgment, 29 September 2014, ICTR-98-44D-A, para 126 “The number of individuals in the audience is not an element of the crime of direct and public incitement to commit genocide” (footnote omitted). See also Ibid., para 128. 206 ICTR, Prosecutor v. Kalimanzira, Judgment, 22 June 2009, ICTR-05-88-T, para 515.

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The requisite mens rea for incitement to commit genocide is that the actor intended to directly and publicly incite others to commit genocidal acts. the inciter must possess the desire to create by his actions a particular state of mind necessary to commit such a crime in the minds of the person(s) he is so engaging, that is to say that the person who is inciting to commit genocide must himself have the specific genocidal intent.207

5.4.4 Attempt to Commit Genocide Traditionally, a criminal attempt to commit a crime has been understood to describe those cases in which an actor possesses the mens rea for a crime and takes a substantial step to implement that crime.208 The crime is not completed because the actor cannot complete all of the actus reus of the crime because they are either thwarted (e.g., interrupted by the police) or are mistaken: (e.g., purchases counterfeit drugs believing they are illicit drugs).209 The ICC has adopted a similar approach to criminal liability for attempts to commit crimes enumerated in the Rome Statute including genocide. ‘Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions’.210 This definition is considered a codification of the general requirements of attempt and reflects its evolution from somewhat inconsistent conceptualizations of this form of liability.211 Mere preparation is insufficient and the actor must engage in a ‘substantial step’ towards the completion of genocidal act in order to incur liability.212 The prosecution must establish that the actor not only had genocidal intent but that they also had the mens rea for the prohibited act attempted.213

5.4.5 Complicity in Genocide The final mode of participation listed in Article III is ‘complicity in genocide’ a form of criminal liability familiar in most national criminal justice systems and 207

ICTR, Prosecutor v. Kajelijeli, Judgment and Sentence, 1 December 2003, ICTR-98-44A-T, para 854. See also ICTR, Prosecutor v. Akayesu, Judgment, 2 September 1998, ICTR-96-4-T, para 560. 208 Robinson 1997, p. 627. 209 For a discussion of ‘attempt’ generally, see ibid., 623 et seq. 210 Rome Statute Article 25(3)(f). See Ohlin 2009, pp. 197–201. 211 Mettraux 2019, pp. 334 et seq. See also Triffterer and Ambos 2016, p. 1020. See also ICC, Prosecutor v. Katanga et al., Decision, 30 September 2008, ICC-01/04-01/07-717, para 460. 212 Triffterer and Ambos 2016, p. 1020 fn 41. 213 ICC, Prosecutor v. Katanga et al., Decision, 30 September 2008, ICC-01/04-01/07-717, para 460.

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featured in a number of prosecutions after WWII.214 Its incorporation as a mode of participation in genocide is recognized in customary international law.215 The inclusion of complicity as a mode of participation in the Genocide Convention allows a plethora of contributions to the prohibited acts of Article II if accompanied by the requisite scienter.216 In short, complicity in genocide criminalizes knowingly contributing to a completed genocidal act.217 And although complicity requires a completed genocidal act, there is no requirement that the direct perpetrator who received the assistance be convicted or even identified.218 Complicity can be both a positive act or culpable omission.219 Although there is no requirement that, for the assistance, the crime would not have occurred, the assistance giving rise to complicity must be substantial.220 With respect to the required mens rea, there are two requirements. First, the complicit contribution must be voluntary, deliberate and with the knowledge that the

214

‘It would not be hard to show that, for instance, the rules of English law regarding complicity in crimes, which are frequently quoted in war crime trials before the British Military Courts, will be “found in substance in the majority” of systems of civilized law.’ UNWCC (1946a), p. 72 (footnote omitted). See also UNWCC (1946b), pp. 5–17; UNWCC (1946c), pp. 23–55. 215 ICTY, Prosecutor v. Brdanin, Judgment, 1 September 2004, IT-99-36-T, para 724 “Complicity is one of the forms of criminal responsibility recognised by the general principles of criminal law, and in respect of genocide, it is also recognised in customary international law’” (footnote omitted). 216 ICTY, Prosecutor v. Krsti´ c, Judgment, 2 August 2001, ICTY-IT-98-33-T, para 640 “By incorporating Article 4(3) in the Statute, the drafters of the Statute ensured that the Tribunal has jurisdiction over all forms of participation in genocide prohibited under customary international law” (footnote omitted). 217 ICTY, Prosecutor v. Krsti´ c, Judgment, 2 August 2001, ICTY-IT-98-33-T, para 643; ICTY, Prosecutor v. Brdanin, Judgment, 1 September 2004, IT-99-36-T, para 728. 218 ICTY, Prosecutor v. Brdanin, Judgment, 1 September 2004, IT-99-36-T, para 728 “Complicity in genocide under Article 4(3)(e) necessarily implies that genocide has been or is being committed. However, an individual can be prosecuted for complicity in genocide even when the perpetrator of genocide has not been tried or even identified.” (footnote omitted). 219 ICTR, Prosecutor v. Kajelijeli, Judgment and Sentence, 1 December 2003, ICTR-98-44A-T, para 766 “The act of assistance may consist of an act or an omission, and it may occur before, during or after the act of the actual perpetrator” (footnote omitted). 220 The ICTY has defined the contribution in the following way: The Appeals Chamber reiterates that one of the requirements of the actus reus of aiding and abetting is that the support of the aider and abettor has a substantial effect upon the perpetration of the crime. In this regard, it agrees with the Trial Chamber that proof of a cause-effect relationship between the conduct of the aider and abettor and the commission of the crime, or proof that such conduct served as a condition precedent to the commission of the crime, is not required. It further agrees that the actus reus of aiding and abetting a crime may occur before, during, or after the principal crime has been perpetrated, and that the location at which the actus reus takes place may be removed from the location of the principal crime. ICTY, Prosecutor v. Blaški´c, Judgment, 29 July 2004, IT-95-14-A, para 48. See also ICTR, Prosecutor v. Kayishema & Ruzindana, Judgment, 21 May 1999, ICTR-95-1, para 186 “Hence, this participation must have a direct and substantial effect on the commission of the illegal act”.

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contribution is providing substantial assistance to criminal acts.221 The complicit actor cannot inadvertently or negligently render a contribution to a crime and bear criminal responsibility. The second mens rea requirement relates to the dolus specialis of genocide. The interplay and overlap of dolus specialis and the conventional mens rea requirements of criminal complicity have resulted in less than complete clarity in the jurisprudence.222 Absent, a clear definitive holding on the issue, it would seem that complicity like all other Article III modes of participation should also require the prosecution to establish that the complicit person possessed the dolus specialis of genocide.223

5.5 Conclusion In 2001, the descendants of the Herero people sued Germany and numerous German companies who facilitated or were complicit in the crimes. In doing so, they became ‘the first ethnic group to seek reparations under the legal definition of genocide’ in U.S. federal courts under the Alien Torts Claim Act of 1789 (ATCA, also known as the Alien Tort Statute).224 Descendants of the Herero and Nama peoples filed a similar lawsuit in 2017. Unfortunately, U.S. federal courts rarely ever uphold actions brought under the Alien Torts Claim Act and these two lawsuits were no exceptions. In both instances, the lawsuits were either dismissed on procedural grounds or because the atrocities did not sufficiently ‘touch and concern’ the United States—one of the legal standards that must be met to succeed on an ATCA challenge.225 Germany’s recent acknowledgment that its treatment of the Herero and Nama peoples amounted to the crime of genocide under international law today is a milestone in recognizing one of the gravest and most prescient crimes in history. On 8 June 2021, 70 years after the Genocide Convention of 1948 entered into force, the Appeal Judgment against Ratko Mladi´c became the most recent contribution to a robust, comprehensive, mature corpus of international law interpreting the Convention’s legal protections for distinct human groups. Prosecutors and Judges 221

ICTR, Prosecutor v. Akayesu, Judgment, 2 September 1998, ICTR-96-4-T, para 541. “The intent or mental element of complicity implies in general that, at the moment he acted, the accomplice knew of the assistance he was providing in the commission of the principal offence. In other words, the accomplice must have acted knowingly” para 538. 222 Compare, ICTY, Prosecutor v. Krsti´ c, Judgment, 2 August 2001, ICTY-IT-98-33-T, paras 636– 645 and ICTY, Prosecutor v. Radislav Krsti´c, Judgment, 19 April 2004, ICTY-IT-98-33-A, paras 138–144. See generally Schabas 2000, pp. 300–303. 223 Mettraux 2019, pp. 344–345; Schabas 2000, p. 300. 224 Stempel (2017) https://www.reuters.com/article/us-germany-namibia-genocide-lawsuit/ger many-is-sued-in-u-s-over-early-1900s-namibia-slaughter-idUSKBN14P25O. Accessed 20 May 2021. 225 Stempel (2019) https://www.reuters.com/article/us-namibia-genocide-germany/lawsuit-aga inst-germany-over-namibian-genocide-is-dismissed-in-new-york-idUSKCN1QN2SQ. Accessed 20 May 2021. See also USDC, Herero People’s Reparations Corp. v. Deutsche Bank, A.G., 2004, 03-7110, paras 1195–1196.

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have everything they need to hold individuals and states that would target such groups responsible in a court of law and ‘liberate mankind from such an odious scourge’.226 The inaction of the international community in the 21st century in the face of atrocities committed against distinct groups like the Tamils, the Rohingya, the Yazidis, and others, reminds us that this rich body of law amounts to naught absent the will of the international community to enforce it.

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UNWCC (1946c) Trial of Robert Wagner, Gauleiter and Head of the Civil Government of Alsace during the Occupation, and six others, Permanent Military Tribunal at Strasbourg, Case No. 13, 23 April 1946 to 3 May 1946, 24 July 1946 (Appeal), UN War Crimes Commission, Law Reports of Trials of War Criminals Vol III USDC, Herero People’s Reparations Corp. v. Deutsche Bank, A.G.[2004] U.S. Ct. Appeals, District Columbia, Case No. 03-7110, 370 F.3d 1192, 1195-96

Other Documents Report of the International Law Commission on the Work of Its Forty-Eighth Session, 6 May-26 July 1996, UN Doc. A/51/10, p. 44

Dermot Groome is a former national and international prosecutor who currently teaches related subjects and researches emerging areas of human rights and international criminal law. He spent over 11 years as a senior war crimes prosecutor at the International Criminal Tribunal for the former Yugoslavia. He investigated and drafted the first genocide indictment against a sitting head of state, Slobodan Miloševi´c, and was the Senior Trial Attorney for the Bosnia indictment. In total, Groome led the prosecution of five international criminal trials including the case against Ratko Mladi´c and is currently a member of the Atrocity Crimes Advisory Group established by the U.S. State Department to advise the Prosecutor General of Ukraine and her staff in the investigation and prosecution of international crimes. Professor Groome gratefully acknowledges the contribution of his research assistant Cole Gordner to this chapter.

Chapter 6

Horizontal and Vertical International Co-operation in Criminal Matters: An African Regional and Sub-regional Perspective Gerhard Kemp

Contents 6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 Mutual Legal Assistance in Criminal Matters: A Sub-regional Example . . . . . . . . . . . . . 6.2.1 Double Criminality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.2 Search and Seizure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.3 Proceeds of Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.4 Grounds for Refusal of Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.5 Authentication of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.6 Settlement of Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.7 Differences Between States: Judicial and Executive Roles . . . . . . . . . . . . . . . . . . 6.3 Mutual Legal Assistance, Extradition, and Death Penalty Concerns . . . . . . . . . . . . . . . . . 6.4 General Human Rights Concerns (Including the Risk of Torture) . . . . . . . . . . . . . . . . . . . 6.5 Transfer of Prisoners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.6 Africa and the ICC: Of Promises, Principles, and Presidents . . . . . . . . . . . . . . . . . . . . . . . 6.6.1 Assistance by States Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.6.2 The Duty to Arrest and Surrender, and the Impact of Immunities . . . . . . . . . . . . 6.7 Final Observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

178 180 181 182 182 182 183 183 184 186 188 190 191 191 192 209 210

Abstract This chapter deals with the topic of mutual legal assistance as a means to combat international crime (including the core atrocity crimes) in Africa. It can be argued that effective mutual legal assistance modalities are imperatives of true PanAfricanism. Caveats will be noted and explored: For instance, for Pan-Africanism to be a useful and effective driver of the international criminal justice project on the Continent, it should neither be promoted as an amorphous expression of African solidarity, devoid of critical reflection and normative aspiration, nor as a cynical shield for elite interests or as a bulwark against democratic aspirations. Mutual legal assistance will thus be explored as a modality of horizontal Pan-Africanism fit for purpose and with normative content. There are, apart from bilateral and even some multilateral extradition treaties (for instance in the SADC sub-region), also a few AU instruments dealing with topics such as terrorism, cybercrime, and transnational organised crime. G. Kemp (B) University of Derby, Derby, United Kingdom e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 T. B. K. Sendze et al. (eds.), Contemporary International Criminal Law Issues, https://doi.org/10.1007/978-94-6265-555-3_6

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These instruments contain various mutual legal assistance and enforcement modalities. There is at least one AU instrument that specifically deals with continental police cooperation. With the exception of the anti-terrorism treaty, none of the other major international and transnational instruments are in operation yet (the latter category includes the Malabo Protocol, the Continent’s only prospective vertical enforcement mechanism). The aim of this chapter is thus to critically explore the potential of mutual legal assistance modalities as manifestations of horizontal Pan-Africanism; a normative, yet realistic paradigm to combat international and transnational crime in Africa. Keywords Mutual legal assistance · Pan-Africanism · international crime · transnational crime · extradition · international co-operation in criminal matters

6.1 Introduction International criminal justice in Africa is often discussed and analysed through the prism of Africa’s relationship with the International Criminal Court (‘ICC’). This is a relationship that covers the full spectrum of interactions between African states and the ICC as an international actor. It can be traced back to the role that African states played during the drafting of the Rome Statute of the ICC (and here one can note the prominent role that African states such as South Africa has played as a member of the group of ‘Like Minded States’).1 The first referrals of situations to the ICC pointed to a promising continued relationship,2 and the first decisions and judgments concerning African cases3 signalled a maturing if at times irritable symbiosis.4 But then, in a rather dramatic turn, the slow simmering tensions caused by several African states’ failure to arrest incumbent5 President Omar Al-Bashir of Sudan, and, subsequently, the politics of withdrawal and attempted withdrawal from

1

The ‘Like Minded Group’ included South Africa, Germany, the Netherlands, Australia, Canada, and Argentina. For more on the significant contribution of this group of states to the drafting of the Rome Statute, see Washburn 1999, p. 368. 2 In 2003, Uganda became the first state party in the history of the ICC to refer a situation to the Court, pursuant to Articles 13 and 14 of the Rome Statute. For commentary, see Akhavan 2005, pp. 403–421. 3 On 14 March 2012, the ICC delivered its first verdict in The Prosecutor v. Lubanga. Various procedural and preliminary decisions were delivered prior to the verdict in Lubanga’s case, but the first (and long awaited) verdict on the merits in a case constituted an important milestone for the ICC. For commentary on the Lubanga verdict, see: Ambos 2012, pp. 115–153. 4 For a collection of papers that reflect this period, see Werle et al. 2014. 5 Omar Al-Bashir was ousted as leader of Sudan on 11 April 2019. For a report and timeline, see BBC (2019) https://www.bbc.co.uk/news/world-africa-47892742. Accessed 5 March 2021.

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the Rome Statute (Burundi,6 South Africa,7 and The Gambia8 ), warned of a full-scale rupture.9 There is no denying that the complex relationship between Africa (as a political collective) and the ICC, is one of the most talked about and published themes in international criminal justice. There is always room for more perspectives, but this chapter will not focus on the relationship between Africa and the ICC generally. Rather, this chapter aims to look at international criminal justice in Africa in vertical and horizontal ways; focussing on modalities of co-operation and with selected national, sub-regional, regional, and international examples to illustrate the various issues at stake. The reality on the ground as well as the full spectrum of material, procedural, institutional, policy, and political dimensions of international criminal justice in the broad sense of the word, demand engagement with the subject in diverse and diversifying ways. An emerging alternative, perhaps complementary (if not competing), frame is that of international criminal justice through the lens of Pan-Africanism. The Malabo Protocol10 (on the establishment of an African criminal jurisdiction) is an obvious, if somewhat underwhelming, and perhaps unpromising, example of the assertion that ‘African solutions for African problems’ is the best way forward, not only as a pragmatic way out of a contentious AU-ICC relationship, but also, and more fundamentally, as a concretisation of the post-colonial ideal of Pan-Africanism.11 It is within the latter framework and worldview that I want to address the topic of mutual legal assistance as a means to combat international and transnational crime in Africa. Indeed, it can be argued that effective mutual legal assistance modalities are imperatives of true Pan-Africanism. Caveats will be noted and explored: For instance, Pan-Africanism, to be a useful and effective driver of the international criminal justice project on the Continent, should neither be promoted as an amorphous expression of African solidarity, devoid of critical reflection and normative aspiration, nor as a cynical shield for elite interests or as a bulwark against democratic aspirations. Mutual legal assistance will thus be explored as a modality of horizontal and vertical Pan-Africanism fit for purpose and with normative content.

6

The UN Secretary General received Burundi’s official notification of withdrawal on 27 October 2016. Secretary-General, 2016 C.N.805. 2016. TREATIES-XVIII. 10. 7 The UN Secretary General received South Africa’s official notification of withdrawal on 19 October 2016. Secretary-General, 2016 C.N.786. 2016. TREATIES-XVIII. 10. This notification was later withdrawn. For more background, see Kemp 2017, pp. 411–438. 8 The UN Secretary General received The Gambia’s official notification of withdrawal on 10 November 2016. Secretary-General, 2016 C.N.862. 2016. TREATIES-XVIII. 10. This notice of withdrawal was subsequently withdrawn. 9 For more on the period of the increasingly acrimonious relationship between Africa and the ICC, see: Okurut 2018, pp. 19–31; Jalloh and Bantekas 2017; Ankumah 2016; Dancy et al. 2020, pp. 1443–1469. 10 Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, 27 June 2014. 11 For critical perspectives, see Werle and Vormbaum 2017; Martini 2021, pp. 1–21.

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There are, apart from bilateral and even some multilateral extradition treaties (for instance in the SADC sub-region), also a few AU instruments dealing with topics such as terrorism12 and transnational organised crime. These instruments contain various mutual legal assistance and enforcement modalities. There is at least one AU instrument that specifically deals with continental police cooperation.13 With the exception of the anti-terrorism treaty, none of the other major international and transnational instruments are in operation yet (the latter category includes the Malabo Protocol, the Continent’s only prospective vertical enforcement mechanism). This chapter is, however, not intended to be a comprehensive discussion or even survey of all the relevant legal and policy instruments. Selected national, sub-regional, regional, and international examples and case studies will illustrate the possibilities and pitfalls presented by international co-operation modalities. The chapter is, for the most part, written from a South African vantage point. This is by no means to suggest that South Africa has some or other special place or status in Africa. It is simply because my own background is South African, and because many of the international co-operation in criminal matters issues discussed represent a kind of microcosm of issues faced not only by South Africa, but also by countries across the African region.

6.2 Mutual Legal Assistance in Criminal Matters: A Sub-regional Example South Africa’s International Co-operation in Criminal Matters Act14 provides that the President may enter into agreements with foreign States for the provision of mutual assistance in criminal matters. These agreements can either be bilateral or multilateral and may contain specific conditions negotiated between the state parties. The ad hoc nature of these agreements is not ideal from a regional or international criminal justice point of view. It therefore makes sense that South Africa (and other states in the Southern Africa Development Community, SADC) committed to a regional approach to mutual legal assistance in criminal matters. South Africa’s parliament gave effect to the political commitment. The International Co-operation in Criminal Matters Act therefore incorporates the Southern African Development Community Protocol on Mutual Legal Assistance in Criminal Matters, which is a regional framework for mutual legal assistance, into South African domestic law.15 The Protocol is aimed at better co-operation in criminal matters between the member states of SADC. It provides for relatively broad measures of mutual legal assistance. While the Protocol is aimed at effective mutual legal assistance, it clearly cannot be 12

OAU Convention on the Prevention and Combating of Terrorism, 14 July 1999. Statute of the African Union Mechanism for Police Cooperation (AFRIPOL), 30 January 2017. 14 International Co-operation in Criminal Matters Act 75 of 1996 (South Africa). 15 In terms of Section 27(2) of the International Co-operation in Criminal Matters Act the SADC Protocol (which entered into force on 1 March 2007) became law in South Africa by notice in the Government Gazette 35368 of 25 May 2012. 13

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described as an all-encompassing code of possible measures of mutual assistance in criminal matters between the state parties. Notably, it does not apply to extradition, the enforcement of foreign criminal judgments (unless domestic law provides for this modality of co-operation) or the transfer of persons in custody to serve sentences. In the absence of specific treaties governing bilateral or multilateral co-operation in criminal matters, states can, of course, still rely on comity between the requesting and the requested states. The SADC Protocol was adopted to change the regional dynamic and to plug significant holes.16 By ratifying and incorporating the Protocol, states in the Southern region of Africa accepted certain legal obligations and commitments. Requests for mutual legal assistance from states party to the Protocol must, in principle, be complied with. There are of course certain grounds for refusal (Article 6 of the Protocol). The obligations in terms of the Protocol are, as a result, not absolute. A few important issues are considered, below.

6.2.1 Double Criminality Article 2(4) of the SADC Protocol provides that mutual legal assistance shall be provided ‘without regard to whether the conduct which is the subject of investigation, prosecution, or proceedings in the Requesting State would constitute an offence under the laws of the Requested State’. Double criminality is thus not a requirement for mutual assistance. This is a significant departure from comparable international practice where ‘double criminality is often required with regard to requests for mutual assistance, for which coercive powers must be used, such as searches, seizures and cross-border pursuit’.17 Is this departure from the double criminality requirement a weakness or flaw in the SADC Protocol? It can be argued that the rationale for the requirement of double criminality is the protection of individuals against the coercive powers of the state. Indeed, the SADC Protocol provides for certain coercive powers (like search and seizure) to be used in terms of the laws of the requested state. In this sense it goes further than mutual assistance modalities that do not affect individual rights, for instance the mere service of summons or interrogation of persons with their consent. One will therefore have to consider the SADC Protocol as a holistic whole, and with reference to the varying degrees of due process and human rights protections in the SADC region. As such, the absence of a double criminality requirement could be construed as a weakness in the Protocol, albeit not a fatal one.

16

The SADC Protocol can be compared with efforts in East Africa to enhance co-operation in the fight against transnational organised crime, including human trafficking. UNODC (2021) https:// www.unodc.org/easternafrica/en/Stories/countering-trafficking-in-persons-and-smuggling-of-mig rants-in-ethiopia-through-international-cooperation-in-criminal-matters.html. Accessed 1 March 2021. 17 Klip 2012, p. 345.

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6.2.2 Search and Seizure Article 17 of the Protocol provides for the search and seizure of property and items. The request must include information justifying such action under the laws of the requested state. Strong reliance on detailed domestic laws on search and seizure is implied.

6.2.3 Proceeds of Crime The SADC Protocol provides for the securing, confiscation and forfeiture of proceeds of crime.18 The basic structure of this modality (focusing on the proceeds of crime) is that the relevant laws of the requested state shall apply with respect to the confiscation and forfeiture of proceeds of crime. However, judicial processes in the requesting state are relevant as well, as illustrated by Article 20(2) of the Protocol which provides that where ‘suspected proceeds of crime are found, the Requested State shall take such measures as are permitted by its laws to prevent any dealing in, transfer or disposal of, those suspected proceeds of crime, pending a final determination in respect of those proceeds by a court of the Requesting State’. The domestic criminalisation of crimes like money laundering, as well as relevant regulatory and enforcement frameworks, are important prerequisites for this aspect of the SADC Protocol to be effective.

6.2.4 Grounds for Refusal of Assistance The SADC Protocol, which is based on the request model of international cooperation, provides for certain grounds for refusal of assistance. This is in line with comparable international practice in terms of which requested states are normally left with a relatively wide margin of appreciation to refuse assistance.19 Compare it, for instance, with Article 2 of the European Convention on Mutual Assistance in Criminal Matters 1959. Grounds like ‘sovereignty’ and ‘public interest’ are of course potentially very wide in scope and open for abuse. It is submitted that states must always provide assistance in a bona fide manner and with due regard to the purpose of the SADC Protocol. States must always provide reasons for any refusal of mutual assistance.

18 19

SADC Protocol on Mutual Legal Assistance, Articles 19–22. Van Hoek and Luchtman 2005, pp. 13–14.

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6.2.5 Authentication of Documents The SADC Protocol provides that where ‘the laws of the Requested State require authentication, documents shall be authenticated in accordance with the domestic laws of the Requesting State’. In order to facilitate this, the Protocol provides that authentication procedures must be communicated to the SADC Secretariat so that all state parties know what to expect.20

6.2.6 Settlement of Disputes Article 24 of the Protocol provides that disputes (arising from the interpretation or application of the Protocol and which cannot be settled amicably) shall be referred to the SADC Tribunal for determination. The Tribunal is provided for in the SADC Treaty and functions (since 2005) in terms of its own Protocol. The functioning and recent history of the Tribunal is unfortunately not proof of an effective regional body. The SADC Tribunal is one of the three sub-regional tribunals in Africa, the other being the Economic Community of West African States Community Court of Justice (the ECOWAS Court) and the East African Court of Justice (EACJ). The sub-regional tribunals are primarily aimed at facilitating regional integration and for the interpretation and application of treaty provisions (such as the sub-regional protocols). While economic integration and trade policies are the main focus of their mandates, the subregional tribunals are by necessity if not by design also tasked to consider human rights issues. It is on this front that the SADC Tribunal disappoints. In formal terms, the SADC Tribunal functions as the judicial organ of the SADC. Its mandate, as noted above with reference to the SADC Protocol on Mutual Assistance in Criminal Matters, includes adherence to and proper interpretation of the SADC Treaty (establishing the sub-regional organisation), and all subsidiary instruments (such as the Mutual Assistance Protocol).21 Sadly, it is precisely because of the SADC Tribunal’s ruling that it had the power to adjudicate on human rights matters, that the Tribunal was for all intents and purposes abolished by the SADC sub-region’s political leaders.22 Is the SADC Tribunal the only sub-regional tribunal that ventured into the area of human rights? A cursory look at the other sub-regional tribunals suggest that they are able to adjudicate on human rights matters, at least because of the construction

20

SADC Protocol on Mutual Legal Assistance, Article 9(2). Phooko 2015, p. 532. 22 The case that triggered the political backlash was the SADC Tribunal decision in Mike Campbell (Pvt) Ltd v Republic of Zimbabwe, Judgment, 28 November 2008, SADCT 2/2007. The applicant took the Zimbabwe Government to the SADC Tribunal on allegations of human rights violations. The Tribunal ruled that it had the necessary powers and competency to adjudicate on human rights matters. 21

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of implied powers in their founding instruments. Indeed, both the EACJ23 and the ECOWAS Court24 have delivered opinions that suggest a willingness to exercise jurisdiction over matters concerning human rights. The ECOWAS Court has, in terms of the Supplementary Protocol of 19 January 2005, jurisdiction ‘to determine cases of violations of human rights that occur in any Member State’.25

6.2.7 Differences Between States: Judicial and Executive Roles Intra-state human rights concerns, including those relating to criminal justice issues, are ideally addressed by domestic courts in a thorough and credible way. International, regional, and sub-regional tribunals often act as checks on and complementary to domestic legal systems. In addition, human rights and rule of law concerns can also be a function of inter-state relations and co-operation in criminal matters. Disputes regarding the interpretation and application of regional and sub-regional instruments can be dealt with directly by the regional and sub-regional tribunals concerned. There is also an indirect (horizontal) modality to realise human rights in the context of international co-operation in criminal matters, and that is through the executive and judicial branches of the requesting and requested states. For this modality to be effective and credible, there should be a great degree of compatibility and normative coherence. I will explain this proposition with reference to two examples from the SADC region: Namibia and South Africa. The two countries share a lot of history, not all of it happy. For much of the twentieth century Namibia was effectively a colony of South Africa.26 As a result, the two countries still share a common legal tradition, that is, a mix of Roman-Dutch and English common law, and customary/indigenous law. Both nations have adopted laudable democratic, progressive, and human rights-informed post-apartheid, postindependent constitutional dispensations. Having said that, it is also the case that there are significant constitutional and legal differences that are relevant for the 23

See, for instance, Katabazi v Secretary General of the East African Community, 1 November 2007, EACJ 3. The case concerned the due process rights of accused persons who were out on bail, but who were re-arrested by the security forces of Uganda under circumstances that violated the accused persons’ due process rights and the rule of law in Uganda. In their application before the EACJ, the applicants relied on the overarching goals of the Treaty Establishing the East African Community (which includes adherence to the principles of democracy, the rule of law, and the promotion of human rights as provided for in the African Charter on Human and Peoples’ Rights). 24 See the ground-breaking decision in Socio-Economic Rights and Accountability Project (SERAP) v Federal Republic of Nigeria and Universal Education Commission, 27 October 2009, ECW/CCJ/APP/0808. This case concerned education as a fundamental human right. 25 Supplementary Protocol (2005) http://www.courtecowas.org/wp-content/uploads/2018/11/Sup plementary_Protocol_ASP.10105_ENG.pdf. Accessed 1 March 2021. 26 For a comprehensive historical overview, see Wallace 2011. The book covers Namibian history until independence from South Africa in 1990.

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present discussion. Notably, there are similarities, but also key differences between South Africa’s International Co-operation in Criminal Matters Act and Namibia’s International Co-operation in Criminal Matters Act.27 Section 7 of the Namibian Co-operation Act provides as follows: (1)

A request by a court or tribunal of competent jurisdiction in a foreign State, or by an appropriate government body in a foreign State, for assistance in obtaining evidence in Namibia for use in that State shall be submitted to the Permanent Secretary or, in a case of urgency, directly to the magistrate’s court within whose area of jurisdiction the person whose evidence is required resides or is.

(2)

When a request from a foreign State for assistance in obtaining evidence in Namibia is in terms of subsection (1) received – (a) by the Permanent Secretary shall forward such request to the magistrate’s court within whose area of jurisdiction the person whose evidence is required resides or is; (b) by such a magistrate’s court, the Permanent Secretary shall without delay be notified thereof in writing by the clerk of the court and be furnished with a certified copy of such a request.

(3) Upon receipt by a magistrate’s court of a request contemplated in subsection (1), that court shall satisfy itself – (a) that the proceedings have been instituted in a criminal court or tribunal of competent jurisdiction in the requesting state concerned; or (b) that – (i) there are reasonable grounds for believing that an offence has been committed in that requesting state or that it is necessary to determine whether an offence has been committed; and (ii) an investigation in respect of thereof is being conducted in that requesting State. (4) For the purposes of subsection (3), a court may rely on a certificate purporting to be issued by any competent authority of the requesting State concerned, stating the facts contemplated in paragraph (a) or (b) of that subsection.

Some commentators suggest that Section 7 of the Namibian Co-operation Act provides for a more flexible co-operation regime in urgent matters, compared to the South African model, in that in urgent matters a co-operation request may be sent directly to the magistrate’s court within whose area of jurisdiction the person, whose evidence is required, resides or is.28 There is also a more prominent judicial role in the Namibian legislation. Section 7(3) of the Namibian legislation provides that the magistrate must be satisfied that certain conditions have been met, as opposed to the South African Section 7(3), which provides that the Director-General of Justice and Constitutional Development must be satisfied that certain conditions have been met in the context of requests for the provision of evidence. The more prominent role of the judiciary in Namibia is, according to Mujuzi,29 something that the South African legislature should emulate. I would go further, and suggest that the Namibian approach should be followed by states across the SADC-region, and beyond. A more prominent judicial role serves as a protective layer against political convenience in matters of mutual legal assistance in criminal matters between states. It also has

27

Act 9 of 2000. See comments by Mujuzi 2015, p. 386. 29 Mujuzi 2015, p. 387. 28

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the potential to bring in considerations like human rights and due process in situations often dominated by extra-legal considerations, especially when bilateral diplomatic concerns, rather than the protection of individual rights, are the dominant considerations at play.

6.3 Mutual Legal Assistance, Extradition, and Death Penalty Concerns Few international co-operation in criminal matters entail stakes higher than that of the modality of extradition. This is a modality that concerns the personal liberty and bodily integrity of the subject of the extradition request. And when the extradition could lead to a trial involving capital punishment, the stakes could not be higher. Death penalty concerns constitute a serious obstacle to a smooth extradition regime, and is briefly discussed here in the context of the broader human rights dimension of international co-operation in criminal matters in Africa, a region where there is a vast divide between abolitionist and retentionist states.30 Despite a ruling by the African Court on Human and Peoples’ Rights31 that mandatory imposition of capital punishment was unfair and an affront to due process, and regardless of the fact that the African Commission on Human and Peoples’ Rights has adopted a Draft Protocol on the Abolition of the Death Penalty in Africa,32 there still seems to be little political appetite within the African Union to make the continent an abolitionist region. In South Africa, an abolitionist country,33 it was judicially determined that in extradition matters, authorities have a constitutional obligation to seek assurances from any requesting state which might impose the death penalty that such state will not impose the sentence with respect to the extradited person.34 While the constitutional standard is clear, there are some practical, legal and political questions that need to be addressed when the relevant provisions of the Extradition Act (South Africa) are applied. A provincial high court in South Africa35 heard an appeal against an order by a lower court magistrate, granting a request by the Ministry of Foreign Affairs and 30

For an overview, see Amnesty International (2020) https://deathpenaltyinfo.org/policy-issues/int ernational/abolitionist-and-retentionist-countries. Accessed 1 March 2021. See also Amnesty International (2019) https://www.amnesty.org/download/Documents/ACT5011622019ENGLISH.PDF. Accessed 1 March 2021. See also Anyangwe 2015, pp. 1–28. 31 CEMAS (undated) http://www.cemas.org.uk/index.php/africa/6730-africa-positive-death-pen alty-decision-undermined-by-continued-executions. 32 The Protocol to the African Charter on Human and Peoples’ Rights on the Abolition of the Death Penalty 2015 was adopted at the 56th ordinary session of the African Commission on Human and Peoples’ Rights. https://fiacat.org/images/pdf/leaflet-uk-simple.pdf. Accessed 1 March 2021. 33 The death penalty was abolished in South Africa following S v Makwanyane, Judgment, 6 June 1995, (3) SA 391 (CC). 34 Minister of Home Affairs & others v Tsebe & others, Judgment, 27 July 2012, (5) SA 467 (CC). 35 S v Misozi Chanthunya, 30 May 2013, 4/2013.

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International Co-operation of the Republic of Malawi for the extradition of the appellant in the matter. The request referred to an extradition agreement between South Africa and Malawi. The appellant was accused of murder in terms of the Penal Code of Malawi. The Penal Code provides for the death penalty or life imprisonment in murder cases. The high court in South Africa noted that the charges against the accused were very serious (pre-meditated murder). The court further noted that, upon conviction of the appellant, the imposition of the death penalty was inevitable. The former Malawian President (now deceased) gave an undertaking in this particular case that the death penalty would not be imposed upon the appellant if he would be extradited from South Africa to Malawi. The question was whether the President’s successor in title could be bound to undertakings given by the deceased President. It was submitted by the appellant that the deceased Malawian President’s undertaking should not be considered a sufficient assurance that the death penalty shall not be imposed, or if imposed shall not be executed. The South African Extradition Act provides for a division of labour between the judiciary and the executive in extradition requests. The judicial role is important, but, according to the South African legislative scheme, it is the executive (the relevant Minister) that must take ultimate responsibility for the extradition decision, including human rights concerns surrounding extradition requests. The court noted as follows: ‘[The] fact that a sufficient assurance that the death sentence will not be imposed on the appellant or not, is one of the grounds that the Minister is empowered by the [Extradition] Act to consider when granting or refusing the order of surrender’.36 The court therefore set aside the finding by the magistrate that the assurance given by the Malawian Government (with respect to the death penalty) was sufficient, and substituted that finding with the following: ‘The constitutional issue raised by the appellant (whether the assurance given by the Malawian Government is sufficient or not) is to be considered by the Minister in terms of Section 11 of the [Extradition] Act’. The meaning of ‘sufficient assurance’ might not always be straightforward or uncomplicated. The constitutional standard is clear. The judicial role in the extradition process as set out in the Extradition Act is important, but also limited. The South African high court correctly held that the ultimate responsibility to determine whether human rights assurances given by a requesting state is sufficient, rests with the Minister of Justice. It is submitted that the Minister should not take any assurance at face value. The Minister can make use of political and diplomatic channels of communication to make sure that any assurance is indeed sufficient. Where there is doubt, the Minister can communicate with his or her counterpart and can be advised by experts in the relevant government departments such as Justice and Foreign Affairs. In this sense the Minister is better placed than a magistrate who would not be able to go beyond the evidence put before him or her. But this means that a Minister in such cases must apply his or her mind to the question of ‘sufficient assurance’ and should also not take it at face value.

36

Ibid., para 42.

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The matter is further compounded by the seemingly intractable position of states like Botswana. One can note the case of Edwin Samotse,37 a Botswana national and suspect in a murder case, who was wrongly deported from South Africa to Botswana. This was done contrary to the South African government policy, which, of course, is informed by the constitutional jurisprudence discussed above. The conundrum was that Botswana refused to send Samotse back to South Africa in order for proper extradition or deportation procedures to be followed. Furthermore, the authorities in Botswana gave a clear indication that the prosecution would seek the death penalty in this matter. Stories like these underscore the reality of South Africa becoming a safe haven for murder suspects—especially from the neighbouring jurisdictions that share borders with South Africa and that retain the death penalty, namely Botswana, Zimbabwe, and Lesotho. It should be pointed out that in the case of Samotse, Botswana initially did apply for extradition, upon which South Africa did seek assurances that Botswana would not apply the death penalty if Samotse were found guilty. The problem arose when Samotse was wrongly deported. In reality, all indications are that people can move with relative ease across the borders that South Africa shares with the three retentionist states mentioned above. Given Botswana’s hard-line insistence that it will not give assurances that the death penalty will not be imposed and carried out in, for instance, murder cases, the problem is clear: in the absence of legislation that would provide South Africa with the necessary extraterritorial jurisdiction over crimes like murder, South Africa does, in fact, become a safe haven for murder suspects from elsewhere in the region. Problems like these also underscore the importance of a regional approach to international co-operation in criminal matters that is informed not by transactional regionalism, but normative Pan-Africanism that respects human rights in all spheres, including international cooperation and mutual legal assistance in criminal matters. That, in turn, will lead to more trust, and, ultimately, more effective co-operation in states’ efforts to address issues like crime and security. The death penalty is perhaps the most drastic example, but it is not the only normative factor impacting on extradition, mutual legal assistance, and other forms of co-operation in criminal matters. The risk of torture, and other egregious human rights violations, present challenges to the Pan-African ideal of optimal integration and co-operation.

6.4 General Human Rights Concerns (Including the Risk of Torture) The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 provides for a normative framework that obliges states to adopt measures to prevent torture and other cruel, inhuman or 37

See International Federation for Human Rights (2014) https://www.fidh.org/en/region/Afr ica/botswana/16141-botswana-south-africa-edwin-samotse-faces-possible-execution-in-secrecy. Accessed 1 March 2021.

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degrading treatment or punishment. Many states have adopted domestic laws to give effect to these obligations. For instance, South Africa has adopted the Prevention and Combating of Torture of Persons Act,38 which provides for the offence of torture of persons and other offences associated with the torture of persons. It also provides for an enforcement framework to prevent and combat the torture of persons within or across the borders of South Africa. The enforcement regime via this piece of domestic legislation also has implications for international co-operation in criminal matters. Section 8 of the South African Prevention of Torture Act provides as follows: (1) No person shall be expelled, returned or extradited to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. (2)

For the purpose of determining whether there are such grounds, all relevant considerations must be taken into account, including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

As we have seen, one of the important exceptions to extradition is the death penalty exception, which is now well-established in extradition jurisprudence, albeit not universally and certainly not in all parts of Africa. In countries like South Africa, authorities are now obligated, in principle, not to extradite an individual to a requesting state in the absence of an assurance that the death penalty will not be imposed by such requesting state. Section 8 of the South African Prevention of Torture Act provides for a similar obligation with respect to torture. The obligation is couched in mandatory terms. The principle is clear—no extradition to a state where there are substantial grounds for believing that the relevant individual would be in danger of being subjected to torture. Death penalty matters are perhaps easier in this respect. Either there is an assurance that the death penalty will not be imposed, or there is no such assurance. But in the context of the risk of torture in the requesting state, it will first be necessary to determine whether there are substantial grounds for believing that there is a danger that the individual will be tortured. The South African Prevention of Torture Act attempts to make it easier to determine these matters. A liberal reading of Section 8(2) of the Act cast the net wide to include states where there are consistent patterns of gross, flagrant or mass violations of human rights. However, this might not be easy to prove. Courts will inevitably have to pronounce on the conduct and practices of foreign states. But courts should not avoid these delicate issues. From the perspective of a requested state, there is the risk that unwanted or even dangerous individuals (who, for whatever reason, cannot be tried in the requested state due to jurisdictional limitations or evidentiary or other weaknesses in the criminal case) will find a safe haven in the requested state because of the fact that extradition or deportation is barred by domestic legal frameworks such as the South African example, the Prevention of Torture Act. In other regions of the world, for instance in Europe, courts have identified the circumstances in which it may be permissible under human rights instruments (notably the European Convention on Human Rights) to 38

Act 13 of 2013.

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expel an individual to a state (where there is evidently widespread torture practices) on the basis of diplomatic assurances that torture will not be inflicted.39 According to European case law, consistent reports of the existence of widespread and routine torture practices in requesting states don’t preclude requested states from seeking to rely on assurances as to the individual’s treatment while in custody or on trial in requesting states for purposes of favourable consideration of extradition requests.40 Should African human rights and international co-operation in criminal matters case law follow this pragmatic approach? It is submitted that African jurisdictions (as requesting and requested states) will have to find the same defensible balance between the norms protected by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, on the one hand, and on the other hand, the realities of transnational and international crime afflicting the African Continent. The point of departure should be that individuals should not be extradited to requesting states where there is a substantial risk of torture practices. Where there is doubt, domestic law should be amended to make it clear that if conditional extradition is allowed, it should not be based on pro forma assurances, but rather be based on verifiable assurances; something that should come naturally in a truly Pan-African spirit of solidarity and trust.

6.5 Transfer of Prisoners The prevention, suppression and prosecution of transnational and international crime require all kinds of co-operation and mutual legal assistance. The international transfer of prisoners is one of the modalities that ‘facilitates the fair treatment and social rehabilitation of prisoners, but is also a tool of international cooperation’.41 The United Nations Congress on the Prevention of Crime and the Treatment of Offenders (1985) has adopted the UN Model Agreement on the Transfer of Foreign Prisoners and Recommendations on the Treatment of Foreign Prisoners.42 Although there is not at present a comprehensive African instrument dealing with the transfer of prisoners, there are indications that states are willing to adopt domestic legal frameworks for the transfer of prisoners between states and between states and international courts and tribunals. For instance, South Africa has (via statutory frameworks, including the Extradition Act, the International Co-operation in Criminal Matters Act, and the Implementation of the Rome Statute of the International Criminal Court Act) most of the important co-operation modalities in place, and these modalities are supplemented by the framework that provides for transfer of prisoners between South Africa 39

For instance, Othman (Abu Qataba) v The United Kingdom, Judgment, 17 January 2012, 8139/09. Ibid. 41 UNODC, International Transfer of Sentenced Persons (undated) https://www.unodc.org/unodc/ en/organized-crime/transfer-of-sentenced-persons.html. Accessed 1 March 2021. 42 UNODC (1990) https://www.unodc.org/pdf/compendium/compendium_2006_part_02_01.pdf. Accessed 1 March 2021. 40

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and the International Criminal Court.43 However, a similar horizontal instrumentality is still lacking. The lack of a formal legislative framework for purposes of transfer of prisoners between South Africa and foreign states (including other states in Africa) is unsatisfactory. It leads to legal uncertainty, and there is also the potential for injustice. South Africa can on an ad hoc basis enter into bilateral agreements in terms of which transfer of prisoners can occur. Government seems to realise that at the regional level, at least, there should be a formal protocol to give some clarity and structure to the issue of transfer of prisoners.44 South Africa’s lack of a formal (and comprehensive) legal framework dealing with the transfer of prisoners is emblematic of the lack of a regional African approach to this particular international co-operation modality. Any regional transfer of prisoner dispensation should also be coupled with prison reform and concerted efforts to improve the conditions in Africa’s penal institutions.45

6.6 Africa and the ICC: Of Promises, Principles, and Presidents 6.6.1 Assistance by States Parties Article 93 of the Rome Statute of the International Criminal Court provides for a non-exhaustive list of forms of assistance by states party to the Rome Statute, as long as the forms of assistance are not prohibited by the law of the requested state. In Prosecutor v William Samoei Ruto & Joshua Arap Sang46 the Appeals Chamber of the ICC confirmed a decision of the Trial Chamber that a Chamber of the ICC has the power to compel witnesses, and that a state party (in this instance Kenya) was obliged to serve summonses and to compel unwilling witnesses to give evidence when a Chamber sits in situ in the state concerned or when the witness gives testimony via video link from such a state. In the absence of a direct co-operation request, states should nevertheless strive to provide optimal assistance and support to the ICC, where appropriate. Passive non-cooperation should therefore be addressed with the same attention as is the case with active non-cooperation. But passive non-cooperation (for example where a state allows evidence to get tampered with or destroyed even before the ICC could formally request the preservation of said evidence) may be difficult to detect and sanction. To make the co-operation regime of the Rome Statute system 43

Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002, Section 20 (South Africa). 44 For critical comments and useful suggestions, see Mujuzi 2013, pp. 151–186. 45 For more on this, see Penal Reform International (undated) https://www.penalreform.org/wherewe-work/africa/. Accessed 1 March 2021. 46 Prosecutor v William Samoei Ruto & Joshua Arap Sang, Decision, 9 October 2014, ICC-01/0901/11 OA 7 OA 8.

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more effective, there is a strong argument to be made for the criminalisation of at least active non-cooperation.47 There are, of course, the possibility of sanctions (whether effective or symbolic) in cases of non-cooperation. One of the most prominent examples was that of South Africa’s failure to arrest and transfer (the now former) President Al-Bashir of Sudan to the ICC in The Hague. I will discuss the saga in some detail to illustrate the temporal, logistical, diplomatic and policy issues that comprised the fateful standoff between South Africa and the ICC. South Africa is not the only African state party with a history of non-compliance with co-operation requests. Other African state parties with a history of non-compliance with ICC co-operation requests include Malawi, Chad, the Democratic Republic of Congo, Djibouti, and Kenya. Most of these relate to the non-compliance with requests by the ICC for states to arrest former President Al-Bashir on indictments and an arrest warrant relating to charges of genocide, crimes against humanity, and war crimes.

6.6.2 The Duty to Arrest and Surrender, and the Impact of Immunities Immunities (head of state immunity and diplomatic immunity) are well-established features of international law and international relations between states. As such, immunities are manifestations of state sovereignty, which is still a fundamental element of the international legal and political system. The advent of international criminal law brought about a paradigm shift: the quest to end impunity for the most serious crimes under international law. The establishment of the ICC represents a key development in this quest to end impunity, by providing for the possibility to hold individuals (including serving heads of state and government) criminally liable for the crimes of genocide, crimes against humanity, war crimes, and the crime of aggression.48 Article 27(2) of the Rome Statute of the ICC provides as follows: Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

The above provision thus makes it clear that for purposes of proceedings before the ICC, immunities will not apply. The Assembly of States Parties which adopted the Rome Statute clearly adopted this exception to the general recognition of immunities under international law.49 There appears to be a contradiction in the Rome Statute in the context of requests by the ICC to states for the arrest and surrender of individuals who may be protected 47

Van der Merwe and Kemp 2019, pp. 21–49. Kemp et al. 2015, pp. 586–588; Fisher 2013, pp. 8–29. 49 Kemp et al. 2015, p. 588. 48

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by immunities under general international law. Article 98(1) of the Rome Statute of the ICC provides as follows: The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court first obtain the cooperation of that third State for the waiver of the immunity.

This apparent contradiction in the Rome Statute is the topic of on-going academic debate. There are several different interpretations that attempt to reconcile Articles 27(2) and 98(1). For present purposes it is sufficient to refer to the most commonly held interpretation (although it is prudent to point out that it is by no means a unanimous position among international criminal law scholars). This basic approach is to interpret Article 27 as a waiver by a state party of any immunity that might otherwise apply to their officials before the ICC. Article 98(1) is thus limited to cases where officials from non-party states are concerned. The underlying rationale is that states parties accepted, via the Rome Statute, the exception to immunities not only in terms of the proceedings before the ICC itself, but also in terms of their co-operation with the ICC (which includes arrest and surrender of individuals). Of course, states parties must still respect immunities flowing from general international law obligations to states that are not party to the Rome Statute and who have not acceded to this immunity exception. The indictment by the ICC of heads of state of non-state parties, which is a possibility based on Security Council referral of cases to the ICC, presents a predicament. There are some conflicting views emanating from the ICC itself on this point. In Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court, Al Bashir,50 the position as set out by the ICC can be summarised as follows: in principle, heads of state of non-party states are immune from the jurisdiction of the ICC. The legal rationale for this is clear: the Rome Statute, as a multilateral treaty, does not bind non-party states. The implication is that state parties (such as the DRC) cannot be forced to arrest and surrender to the ICC a head of state of a non-party state, such as Sudan. However, the position changes when a matter was referred to the ICC by the Security Council of the United Nations. Where there is such a referral, as we will see below in the case of President Al Bashir of Sudan, it essentially serves as a waiver of the immunity of the relevant official, including a head of state. The underlying rationale is that all member states of the UN (which includes Sudan) are bound by Security Council decisions, and all members of the UN are expected to give effect to Security Council Resolutions.51 This brings us to the matter of President Omar Al-Bashir, the former president of Sudan. Sudan, as noted above, is not a party to the Rome Statute of the ICC. In 2005, due to the gross human rights violations in the Darfur region of Sudan, the Security Council of the United Nations, acting under Chapter VII of the Charter 50 51

The Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision, 9 April 2014, ICC-02/05-01/09. For further commentary on this point, see Tladi 2015, pp. 1042–1043.

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of the United Nations and in accordance with the relevant provisions of the Rome Statute of the ICC, referred the matter to the ICC for investigation and possible prosecution of individuals for crimes within the jurisdiction of the ICC. In 2009 and 2010 the ICC issued arrest warrants for President Al-Bashir for war crimes, crimes against humanity, and genocide.52 In light of the warrants for the arrest of the (at the time still sitting) president of Sudan, the apparent contradiction between Articles 27 and 98 of the Rome Statute suddenly gained practical significance. For present purposes one can point to the decision by the Pre-Trial Chamber of the ICC in the above-mentioned case of the DRC’s failure to arrest and surrender Al Bashir to the ICC. The interpretation of Articles 27 and 98 by the Pre-Trial Chamber seemed to be clear enough, but, as we shall see with reference to the South Africa and Kingdom of Jordan decisions, the issue turned out to be more complex and contentious. Decisions handed down by courts in South Africa and Kenya contributed to the debate and confusion. I will comment on these in some detail in order to illustrate the problem from a domestic (African) perspective. In Southern Africa Litigation Centre v Minister of Justice and Constitutional Development 53 the high court in the Gauteng province considered the apparent failure of the South African authorities to arrest President Al-Bashir and to surrender him to the ICC, on occasion of his visit to South Africa in June 2015. South Africa, as a state party to the Rome Statute of the ICC, has a general obligation in terms of Article 86 of Statute, to co-operate fully with the ICC in its investigation and prosecution of crimes within the jurisdiction of the ICC. This general duty includes the duty to arrest and surrender individuals to the ICC. It should be noted that South Africa has a comparatively detailed and elaborate incorporation of the Rome Statute. Indeed, the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (‘Implementation Act’) provides for the full incorporation of the substantive part of the Rome Statute, as well as for South Africa’s co-operation with the ICC. South Africa thus went further than what the Rome Statute actually requires as a minimum, since the Statute only obliges states parties to provide for the necessary mechanisms in terms of co-operation and legal assistance. The only obligation in terms of the provision of substantive law is provided for in Article 70 of the Rome Statute. Article 70(4) provides that each state party ‘shall extend its criminal laws …to offences against the administration of justice referred to in this article’. Such offences include corruption of witnesses, perjury, tampering with evidence, and intimidation of witnesses. It can thus be concluded that South Africa is one of a number of states that opted for the full incorporation of the Rome Statute.54

52

The Prosecutor v. Omar Hassan Ahmad Al Bashir, 4 March 2009, ICC-02/05-01/09-1; The Prosecutor v. Omar Hassan Ahmad Al Bashir, 12 July 2010, ICC-02/05-01/09-95. 53 Southern Africa Litigation Centre v Minister of Justice and Constitutional Development & others 2015, Judgment, 26 June 2015, (5) SA 1 (GP). 54 For the modality of ‘full incorporation’ and related matters, see Werle and Jessberger 2014, pp. 144–147.

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On two occasions since the promulgation of the Implementation Act in 2002, South Africa’s commitment to the letter and spirit of the Act, as well as the general obligations under the Constitution, 1996 and the Rome Statute were tested. On the first occasion South African authorities failed to investigate allegations of torture as a crime against humanity committed in Zimbabwe.55 On the second occasion South African authorities failed to arrest President Al-Bashir during his visit to South Africa in June 2015. This is the matter that was ultimately considered by the court in Southern Africa Litigation Centre v Minister of Justice and Constitutional Development. President Al-Bashir was attending a high-level summit of the African Union (AU) that was held in Johannesburg. The failure by South African authorities to arrest Al-Bashir, who was indicted by the ICC on charges of war crimes, crimes against humanity, and genocide, elicited a number of legal issues pertaining to South Africa’s duties under domestic and international law. These issues are considered below. As mentioned above, a first warrant of arrest for Al-Bashir, relating to the charges of crimes against humanity and war crimes, was issued by the ICC on 4 March 2009. A second warrant of arrest, for charges of genocide, was issued by the ICC on 12 July 2010. The ICC accordingly requested all state parties to the Rome Statute to arrest Al-Bashir in the event that he would visit their jurisdictions. Subsequent to the issuing of these warrants, Al-Bashir did manage to visit states parties (including Kenya, Djibouti, Democratic Republic of Congo, Malawi, and Chad) without being arrested. It is important to note, however, that these states had to explain themselves before the relevant structures of the ICC. As we have seen above in the matter of the DRC’s failure to arrest and surrender Al-Bashir, there is a clear expectation from the ICC that state parties should provide full and effective co-operation with the ICC, including the arrest and surrender to the ICC of a sitting president, even where that president is from a non-party state. The latter position is made possible due to the effect of Security Council Resolutions, an aspect that we will return to below. Before June 2015 there had been a number of occasions where Al-Bashir could have visited South Africa in his capacity as head of state of Sudan, for instance the opening of the FIFA World Cup in 2010, for both inaugurations of President Jacob Zuma, and for the funeral of former President Nelson Mandela. On at least one of these occasions, namely the 2009 inauguration of President Zuma, South African officials warned that they would arrest Al Bashir should he arrive in the country. Al Bashir consequently declined the invitation.56 Indeed, the record shows that South Africa, as a state party to the Rome Statute, did follow the letter and spirit of its own domestic law—the Implementation of the Rome Statute of the ICC Act—when the Department of Justice decided, subsequent to the issuing by the ICC of the arrest warrant against Al-Bashir in 2009, to transmit this warrant to a magistrate, as per the requirements of Section 8 of the Implementation Act. The arrest warrant 55

National Commissioner of Police v Southern African Human Rights Litigation Centre & another, 30 October 2014, (1) SACR 255 (CC). 56 Southern Africa Litigation Centre v Minister of Justice and Constitutional Development & others 2015, Judgment, 26 June 2015, (5) SA 1 (GP), para 12.

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was subsequently endorsed by a senior magistrate. The practical legal effect is that since 2009 there has been a South African warrant for the arrest of President AlBashir of Sudan.57 It is because of this fact and considering the delicate diplomatic circumstances that South Africa was at pains to warn President Al-Bashir not to visit the country on the occasions mentioned above. The visit of Al-Bashir to South Africa in June 2015 turned out to be different. The Director-General: Justice and Constitutional Development, who is the Central Authority as defined in Section 1 of the Implementation Act (and thus the point of contact between the ICC and South Africa for purposes of requests for arrest of individuals and other forms of assistance) presented to the high court in her answering affidavit a number of important background facts pertaining to the visit of Al-Bashir to South Africa and the subsequent events surrounding the request for his arrest and transfer to the ICC. She stated the following: . During January 2015 South Africa agreed to host an AU Summit, to be held during June 2015. . In order to facilitate the hosting of the summit, South Africa was required to enter into an agreement with the Commission of the AU, specifically relating to the material and technical organisation of the meetings. . The Director-General emphasised in her affidavit that South Africa was not involved in or responsible for extending invitations to any or all of the delegates or attendees of the AU Summit. That was the sole responsibility of the AU Commission. . Furthermore, Article VIII of the host agreement between South Africa and the AU, specifically provides for privileges and immunities. Members of the Commission, relevant staff members, the delegates as well as representatives of intergovernmental organisations attending the meetings were thus accorded the necessary privileges and immunities. The latter were based on the provisions of the General Convention on the Privileges and Immunities of the Organisation of African Unity (‘OAU Convention’). Articles V(1) (a) of the OAU Convention provides for immunity from personal arrest or detention and from any official interrogation. . It was also pointed out that the AU provisions on immunities are also contained in the Vienna Convention on Diplomatic Relations, 1961. This Convention was incorporated into South African law via the Diplomatic Immunities and Privileges Act 37 of 2001. . In order to give effect to the host agreement between South Africa and the AU, Article VIII of the agreement was published in the official Government Gazette of 5 June 2015. The privileges and immunities were thus incorporated into South African law. These privileges and immunities would only be effective for the duration of the AU Summit.

57

See also Tladi 2015, p. 1037.

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. It was confirmed through the appropriate diplomatic channels that President AlBashir of Sudan would attend the AU Summit. Sudan explicitly requested confirmation that Al-Bashir should be granted the necessary privileges and immunities as provided for in Article VIII of the host agreement. . It was the view of the relevant authorities in South Africa that Article VIII of the host agreement, as incorporated into South African law, prevented South Africa from arresting Al-Bashir during the duration of the AU Summit plus an additional two days after the summit. The legal position as described by the Director-General: Justice and Constitutional Development was backed by a supporting affidavit by the Director-General of the Presidency, which provided some additional context. It was stated that the Cabinet was aware of the invitation from the AU to Al-Bashir to attend the AU Summit. It was also made clear that Cabinet appreciated the fact that South Africa as a state party to the Rome Statute was obliged to give effect to any request by the ICC pertaining to a warrant of arrest issued by the ICC. In light of the fact that there were warrants issued by the ICC for the arrest of Al-Bashir and the fact that Al-Bashir was invited to attend the AU Summit in South Africa, the Cabinet deemed it prudent to request advice from the Chief State Law Advisor. The conclusion was reached that South Africa, as host country, was first and foremost obliged to uphold and protect the inviolability of President Al-Bashir in accordance with the AU agreement. It was thus decided not to arrest Al-Bashir in terms of the ICC arrest warrants (and indeed the active South African arrest warrant) while he was attending the AU Summit. Cabinet also acknowledged the fact that the decision not to arrest Al-Bashir could only apply for the duration of the summit. It is necessary to briefly consider some international context. While the South African government was clear in its interpretation of South Africa’s obligations toward the ICC, the African Union, and President Al-Bashir, it also wanted to avoid a showdown with the ICC, and it certainly did not want the kind of censure by the ICC that was meted out to other states party to the Rome Statute that had failed to arrest and surrender Al Bashir—states like Malawi, Chad and the DRC. South Africa thus acted under Article 97 of the Rome Statute to initiate consultation with the ICC. The ICC presiding judge in the Al-Bashir matter met with South Africa’s ambassador to the Netherlands on Friday 12 June 2015. At this meeting the ambassador communicated to the presiding judge the position of the South African government, which, at least in terms of this communication, seemed not as certain as the position that Cabinet put forward, as explained above. According to the ambassador’s note verbale to the ICC, South Africa was concerned about the possible competing legal obligations and the lack of clarity in the law with respect to the visit of Al-Bashir to South Africa as host of the AU summit58 The ICC presiding judge, however, was not convinced that there could be any ambiguities in the law and in South Africa’s obligations under the Rome Statute. The judge made clear that South Africa was under the obligation to immediately arrest and surrender Al-Bashir as soon as he would arrive on South 58

The Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision, 13 June 2015, ICC-02/05-01/09-242, para 4.

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African soil. The judge went further to clarify that the consultation between the ICC and South Africa under Article 97 of the Rome Statute, or any other further discussions at a later stage, should not be interpreted as triggering any suspension of South Africa’s clear obligations under the Rome Statute.59 Back in South Africa, in the high court, the legal position set out by the respondents was challenged by the applicants, and mainly on the following grounds. First, Articles 86, 87(1) and 89 of the Rome Statute bind a state party to adhere to an ICC request for the arrest and surrender of a person within that state’s jurisdiction. Second, South Africa, by virtue of the Implementation Act, is bound by the obligations in terms of the Rome Statute as incorporated into domestic law. Third, South Africa became liable to arrest and surrender Al-Bashir from the moment that he entered the country. Fourth, the only basis on which a state party could avoid its obligation to arrest and surrender an individual such as President Al-Bashir, would be if he enjoyed some kind of immunity from arrest or from the jurisdiction of a relevant domestic court. In light of the position taken by the ICC, as well as the positions of the applicants in the Al-Bashir matter before the high court, and subsequently the respondents before the Supreme Court of Appeal, it is necessary to explore in more detail the impact of immunities on South Africa’s international and domestic obligations to adhere to ICC requests for the arrest and surrender of individuals such as (now, former) president Al-Bashir of Sudan. We will first look at the high court decision, and thereafter consider the judgment by the Supreme Court of Appeal that was delivered in March 2016. The high court in Southern Africa Litigation Centre v Minister of Justice (supra) noted that diplomatic immunity is governed by the Diplomatic Immunities and Privileges Act 37 of 2001. Section 4 of the Immunities Act recognises that heads of state are ‘immune from civil and criminal jurisdiction to the extent afforded to them under customary international law, or as agreed to between South Africa and the relevant State party, or as are conferred on them by the Minister of International Relations’.60 The court noted that the agreement between South Africa and the AU Commission grants privileges and immunity to members of the Commission and the delegates and other representatives of intergovernmental organisations attending the AU Summit. The court stated that the ‘only grounds on which President Al-Bashir could conceivably be alleged to enjoy immunity would be as a head of state in terms of the host agreement’.61 According to the court, neither basis conferred immunity on Al-Bashir. The host agreement did not confer immunity on heads of state. The notice that was published by the South African government in the Government Gazette also did not mention Section 4 of the Immunities Act, which provides for head of state immunity. That leaves only customary international law as a basis for Al-Bashir to claim head of state immunity. It is on this latter point that one needs to point out the paradigm shift that international criminal law, as expressed in the Rome Statute of 59

Ibid., para 8. Southern Africa Litigation Centre v Minister of Justice and Constitutional Development & others 2015, Judgment, 26 June 2015, (5) SA 1 (GP), para 28. 61 Ibid. 60

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the ICC, brought to international and domestic law. The Rome Statute provides that heads of state do not enjoy immunity under its terms. South Africa also incorporated this into domestic law. To the extent that the Immunities Act confers a discretion on the Minister to grant immunities and privileges on persons of her choosing, the court noted that the Minister must still do so lawfully, and in accordance with South Africa’s domestic and international obligations. Clearly South Africa’s obligations flowing from the Constitution, the Rome Statute of the ICC and the Implementation Act trump any decision by the Minister to effectively prevent the arrest and surrender of a person subject to an ICC warrant and request for surrender. Furthermore, decisions by the AU also cannot trump South Africa’s obligations under the Rome Statute and under domestic law. According to the high court in South Africa, the status of AU decisions in domestic law ‘is persuasive, at best’.62 It is worth referring, again, to the relevance of the ICC decision on the failure by the DRC to arrest and surrender Al-Bashir. The high court in Southern Africa Litigation Centre v Minister of Justice took notice of the ICC’s views on the failure of the DRC—a state party to the Rome Statute—to arrest Al-Bashir and to surrender him to the ICC. Furthermore, it was noted above that there exists an apparent contradiction in the Rome Statute between Articles 27 and 98. The judgment in Southern Africa Litigation Centre v Minister of Justice supported the view that in cases of Security Council referrals, states parties to the Rome Statute (like South Africa and the DRC) are, in principle, obliged to adhere to requests from the ICC for the arrest and surrender of individuals, including heads of state, from states that are not party to the Rome Statute. The court noted ‘the fact that Members of the UN agree to accept and carry out the decisions of the Security Council’.63 With reference to the reasoning by the relevant ICC pre-trial chamber in the DRC matter, the court noted that ‘in the event of a conflict in the obligations of members of the UN under the UN Charter and their obligations under any other international agreement their obligations under the Charter would prevail’.64 These observations by the court may not be the most exhaustive of reasoning; some might even say it is rather glib. Nevertheless, the high court in Southern Africa Litigation Centre v Minister of Justice interpreted domestic law first and foremost, namely the relevant provisions of South Africa’s Implementation Act, and also the various executive decisions and agreements between South Africa and the AU. The court gave support to the view that the apparent contradiction between Articles 27 and 98 of the Rome Statute has a solution based on the inherent pragmatism of the Rome Statute. This pragmatism is based on a premise: ideally, all states in the world should eventually sign up to the Rome Statute, thus providing for the system of complementarity whereby states accept first responsibility to investigate and prosecute the most serious crimes under international law. Where states are unwilling or unable to undertake this duty, the ICC will step in. Of course, there are many states, also in Africa, that are not (yet) 62

Ibid. Southern Africa Litigation Centre v Minister of Justice and Constitutional Development & others 2015, Judgment, 26 June 2015, (5) SA 1 (GP), para 32. 64 Ibid. 63

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states party to the Rome Statute. The Statute thus provides that the Security Council of the UN can refer situations that would fall within the substantive jurisdiction of the ICC to the ICC—even in situations involving states that are not party to the Rome Statute. Since virtually all states in the world are members of the UN, this incorporation of Security Council referrals into the ICC system clearly aims to plug impunity gaps. Of course, there is much to criticise, not least because of the real and perceived political biases of the Security Council. But, imperfect as the Rome Statute system might be, the fact is that South Africa signed up to it. Indeed, South Africa fully incorporated the Rome Statute into domestic law. The high court in Southern Africa Litigation Centre v Minister of Justice (supra) was correct to emphasise this point. The high court thus held that the South African government had failed to arrest Al-Bashir. Indeed, the President of Sudan was allowed to leave South Africa unhindered. The court found the government’s conduct to have been unconstitutional. The government subsequently appealed the decision. In Minister of Justice and Constitutional Development v Southern Africa Litigation Centre the Supreme Court of Appeal considered the following issues relevant to the present discussion: (a) Did the relevant stipulations in the hosting agreement between South Africa and the AU, together with certain ministerial proclamations, provide President Al-Bashir with immunity (at least for so long as the proclamation was not set aside)? (b) If there was no immunity based on the host agreement and the ministerial proclamation, was President Al-Bashir entitled to immunity from arrest and surrender to the ICC by virtue of customary international law and s 4(1) of the Diplomatic Immunities and Privileges Act 37 of 2001? (c) If President Al-Bashir would ordinarily have been entitled to such immunity did the provisions of the Implementation Act remove that immunity? (d) If the immunity was not removed by the Implementation Act, have Security Council Resolution 1593 (2005) and the relevant provisions of the Genocide Convention of 1948 removed his immunity?65 As far as the hosting agreement between South Africa and the AU is concerned, the Supreme Court of Appeal noted that the effect of Article VIII of the agreement was ‘not only the principal, but also the only’, an argument advanced by the government before the high court.66 The Supreme Court of Appeal agreed with the high court’s understanding of the issue. By simply looking at the terms of the hosting agreement between South Africa and the AU, the Supreme Court of Appeal agreed with the high court that the agreement conferred ‘immunity on members or staff of the AU

65

Minister of Justice and Constitutional Development & others v Southern Africa Litigation Centre & others, Judgment, 15 March 2016, (3) SA 317 (SCA), para 18. 66 Ibid., para 40.

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Commission and on delegates and other representatives of intergovernmental organisations’. The immunity thus conferred clearly did not include AU member states or their representatives or delegates.67 More importantly for present purposes, is the next issue that the Supreme Court of Appeal dealt with, namely whether there was immunity under customary international law and Section 4(1) of the Diplomatic Immunities and Privileges Act. Section 4(1)(a) of the Immunities Act essentially provides that a head of state enjoys the immunity that ‘heads of state enjoy in accordance with the rules of customary international law’. The Supreme Court of Appeal remarked that, when construing Section 4(1)(a) and its reference to customary international law, it must be read in the light of the Constitution and obligations flowing from the Constitution. The Supreme Court of Appeal referred to the submissions made by the Helen Suzman Foundation (as amicus curiae) which were premised on the Constitution in the following terms: [Under] the Constitution the government is required to take steps to ensure that persons accused of international crimes are detained, arrested and prosecuted before an appropriate tribunal. This duty is reinforced by the fact that, under s 232, customary international law is law in South Africa unless it is inconsistent with the Constitution or an Act of Parliament. Section 231 deals with the legal effect of international agreements, such as the Rome Statute [of the ICC], to which South Africa is a party. Under s 231(4) an international agreement becomes law in South Africa when it is enacted into law by national legislation. So customary international law is to be read in the light of legislation under which South Africa has enacted international agreements into law.68

The question of immunity, as per customary international law and the Diplomatic Immunities and Privileges Act, must be analysed with reference to the full constitutional and international criminal justice regime relevant to the fundamental issue at hand, namely the arrest of a sitting President of a foreign state to be surrendered to the ICC in order to stand trial on the most serious crimes under international law. As we have seen, South Africa has incorporated the Rome Statute into domestic law. The Supreme Court of Appeal noted that Part 9 of the Rome Statute ‘deals comprehensively’ with the obligations of international and judicial assistance to the ICC in the performance of its tasks.69 Article 86 of the Rome Statute imposes a general obligation to ‘cooperate fully’ with the ICC in the investigation and prosecution of crimes within the jurisdiction of the ICC. In addition, Article 89 deals with the arrest and surrender of persons to the ICC as well as with the fact that the ICC is entitled to request a state party to cooperate in securing such arrest and surrender. Crimes like genocide, war crimes and crimes against humanity are by their nature and in some instances per definition made possible by state conduct. This does not of course imply that state officials, including heads of state and government, should automatically be targeted for prosecution. The fundamental principle is still that of individual criminal responsibility. But, as the Supreme Court of Appeal also noted, 67

Minister of Justice and Constitutional Development v Southern Africa Litigation Centre, Judgment, 15 March 2016, 867/15, para 41. 68 Ibid., para 53. 69 Ibid., para 57.

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Article 27 of the Rome Statute ‘deals with the possibility that the crime being prosecuted is likely in many instances to have been perpetrated by a state actor, ranging from a head of state to a humble official or soldier, and therefore the possibility would exist of the accused person raising a claim to immunity in accordance with long-established principles of customary international law’.70 One of the outstanding features of the international criminal justice system is embodied in Article 27(1) of the Rome Statute of the ICC which provides that official capacity (including as head of state) shall in no case exempt a person from criminal responsibility. This provision refers to criminal trials before the ICC. Like the high court, South Africa’s Supreme Court of Appeal also recognised the relevance of Article 98 for the discussion about the impact of immunities before the ICC. It is not necessary to repeat the debate about the apparent tension between Articles 27 and 98 here, suffice to note that the Supreme Court of Appeal also recognised the lack of clarity on the legal obligations of states party to the Rome Statute (such as South Africa) vis-à-vis non-party states like Sudan. Should South Africa adhere to a request for assistance from the ICC, or should South Africa respect the immunity from arrest afforded to a visiting head of state (for instance President Al-Bashir of Sudan on the occasion of the AU Summit in Johannesburg in 2015)? Importantly, the Supreme Court of Appeal decided to use a constitutional frame as a starting point in the search for a solution to the apparent contradictory legal obligations that South Africa faced, and as presented by the Government as reasons for the non-adherence to the ICC request. The Supreme Court of Appeal stated: South Africa is bound by its obligations under the Rome Statute. It is obliged to cooperate with the ICC and to arrest and surrender to the court persons in respect of whom the ICC has issued an arrest warrant and a request for assistance. To this end it passed the Implementation Act. The relationship between that Act and the head-of-state immunity conferred by customary international law and [the Diplomatic Immunities and Privileges Act] lies at the heart of this case. But the starting point is not immediately with these, but with the Constitution.71

The Supreme Court of Appeal correctly highlighted the incorporation of customary international law via Section 232 of the Constitution. The court further noted the mechanism in terms of which international agreements become part of South African law. With reference to the judgment by the Constitutional Court of South Africa in Glenister v President of the Republic of South Africa72 (‘Glenister II’), the court noted with approval the Constitutional Court’s description of the ‘special place’73 that international law fulfils in the South African legal and constitutional system. Since head of state immunity forms part of customary international law, which in turn is incorporated into South African law via the Constitution, the

70

Ibid., para 59. Ibid., para 61. 72 Glenister v President of the Republic of South Africa & others 2011, Judgment, 17 March 2011, (3) SA 347 (CC) (‘Glenister II’). 73 Minister of Justice and Constitutional Development v Southern Africa Litigation Centre, Judgment, 15 March 2016, 867/15, para 62. 71

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Supreme Court of Appeal proceeded to unpack the nature of head-of-state immunity in customary international law. The Supreme Court of Appeal pointed to the relevance of a possible internationalcrimes exception to head of state immunity. The crisp issue is that there is no unanimity amongst commentators as to the right of states to ignore head-of-state immunity when requested to cooperate with the ICC to bring an individual before the ICC to stand trial for the most serious crimes under international law. The Supreme Court of Appeal recognised the legitimacy of the proposition that a national court, asked to provide assistance to an international tribunal, is not necessarily in a position to rely on an international crimes exception to head-of-state immunity.74 Importantly, the Supreme Court of Appeal noted that the ICC itself (as we have seen earlier in this comment) has articulated the position that South Africa was obliged to arrest and surrender President Al-Bashir, with reference to the effect of a Security Council Resolution, not with reference to the nature of the crimes for which Al-Bashir’s arrest warrants were issued. Thus, according to the ICC, and according to how the Supreme Court of Appeal read the ICC decision on South Africa’s obligations, it was the Security Council Resolution that provided the exception to the fact that South Africa would otherwise be obliged to respect the immunity from arrest of a visiting President of a state that is not a party to the Rome Statute. With respect to the role of customary international law, it appears from the judgment that the Supreme Court of Appeal was (reluctantly) unable to conclude that there is under customary international law as it currently stands an ‘international-crimes exception to the immunity and inviolability that heads of state enjoy when visiting foreign countries and before foreign national courts.’75 This view of the Supreme Court of Appeal is in line with most authorities on public international law. Professor James Crawford, for instance, states emphatically that it is ‘well established’ that serving heads of state enjoy immunity ratione personae from the jurisdiction of foreign states. This head of state immunity applies to international crimes as well.76 Incidentally, Crawford also noted that recent developments in international criminal law do not necessarily change the accepted position under general international law. With reference to the impact of the Rome Statute of the ICC, he states: ‘The entitlement of nationals of non-parties to personal immunity is not obviously eroded, particularly in the light of Article 98(1) of the ICC Statute.’77 South Africa’s Supreme Court of Appeal’s view that there is still no general ‘international-crimes exception’ to the immunity and inviolability of visiting heads of states, seems therefore to be in the mainstream of international law thinking. But the analysis does not stop with customary international law (via the Constitution) or with the Rome Statute of the ICC. It must include a proper analysis of the application of South Africa’s Implementation of the ICC Act, which serves as a transformation of the Rome Statute into domestic law. The Supreme Court of Appeal 74

Ibid., para 77. Ibid., para 84. 76 Crawford 2012, pp. 499–500. 77 Ibid., p. 501. 75

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acknowledged the nature of the Implementation Act as a legal regime that incorporates an international agreement into South African law. Thus, the court posed the question whether the Implementation Act ‘has the effect of removing the immunity that President Al Bashir would otherwise enjoy’.78 The Supreme Court of Appeal started to answer the question with the observation that the Implementation Act needs to be interpreted in light of Section 39(2) of the Constitution, which obliges the court to interpret the law in a way that ‘promotes the spirit, purport and objects of the Bill of Rights’.79 The Supreme Court of Appeal took a decidedly human rights-centric approach and noted that reference to the two ICC arrest warrants shows that the conduct of which Al-Bashir stands accused (war crimes, crimes against humanity and genocide) involve acts that would infringe also South Africa’s Bill of Rights. The court was careful not to conflate its task with that of an adjudicator of the merits of the allegations, but noted that the nature of the allegations ‘illustrates the importance, in the context of the interpretation of the Implementation Act, of construing it in a way that accords with and gives effect to the spirit, purport and objects of the Bill of Rights’.80 The long title of the Implementation Act clearly describes the purpose of the Act in terms of the broader aims of the international criminal justice system provided for in the Rome Statute. This includes the criminalisation of the most serious crimes under international law, notably genocide, war crimes, crimes against humanity and aggression, as well as for the arrest and surrender to the ICC of persons accused of having committed these serious crimes. Against this background, and with reference to the facts before the Court, the Supreme Court of Appeal stated: [T]here is no dispute that President Al Bashir is subject to the jurisdiction of the ICC and can be prosecuted by it for his alleged crimes. He has been stripped of any immunity before the ICC. It is therefore important that the purpose of the Implementation Act is to provide a framework to ensure the effective implementation of the Rome Statute. It is to ensure that South Africa conforms with its obligations under the Rome Statute. In that regard there is no doubting its obligation to endeavour to bring President Al Bashir before the ICC for trial. The head-of-state immunity claimed for him is only a procedural bar to the enforcement of that obligation in this country. It is not an immunity that confers impunity for any wrongdoing on his part.81

There is, per the objectives of the Implementation Act, indeed a clear statutory (and constitutional) duty on South Africa to bring to justice persons who commit atrocity crimes, either in a court in South Africa under domestic laws, where possible, or in the event of South Africa declining or being unable to go ahead with the prosecution, and in line with the principle of complementarity, in the ICC. The court referenced this general objective of the Implementation Act not because there was any attempt or even suggestion that Al-Bashir should have been prosecuted in 78

Minister of Justice and Constitutional Development v Southern Africa Litigation Centre, Judgment, 15 March 2016, 867/15, para 86. 79 Ibid., para 87. 80 Ibid., para 88. 81 Ibid., para 90.

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South Africa, but rather to underscore the general thrust of the Implementation Act, which is to give the fullest effect possible to the aims of the Rome Statute of the ICC, and, importantly, also the Constitution, via Section 231 which provides for the incorporation of international agreements, such as the Rome Statute.82 Having considered the general aims and objectives of the Implementation Act, the Supreme Court of Appeal turned to the specific provisions that were really at the heart of the matter before the Court: the provisions of the Implementation Act dealing with the requests for assistance from the ICC, in particular requests for assistance in terms of arrest warrants issued by the ICC for the purpose of securing the presence before the ICC of alleged perpetrators of international crimes. The Supreme Court of Appeal noted that none of the provisions of the Implementation Act that deal with arrest and surrender mentions the issue of immunity. Indeed, it is not apparent where a claim to immunity could find its place in the inquiry contemplated by Section 10(1) of the Implementation Act. The court stated that the inquiry is ‘expressly confined to the three matters specified and none of those appear to involve issues of immunity’.83 The three specified matters in Section 10(1) are: . whether the warrant applies to the person in question; . whether the person has been arrested in accordance with the procedures laid down by domestic law (meaning, primarily, the Criminal Procedure Act); and . whether the rights of the person, as contemplated in the Bill of Rights, have been respected, if, and the extent to which they are or may be applicable. The only relevance of immunity in the context of Section 10 would be if an arrest would be unlawful because of the existence of immunity. But that, according to the Supreme Court of Appeal, begs the very question whether, in relation to an ICC arrest warrant and request for assistance, such immunity exists. It is therefore important to look at Section 10(9), which deals specifically with the relevance of claims to immunity to the order of surrender to the ICC. It is worth quoting the text of Section 10(9) here: The fact that the person to be surrendered is a person contemplated in section 4(2)(a) or (b) [of the Implementation Act] does not constitute a ground for refusing to issue an order contemplated in subsection (5).

The ‘person’ referred to in Section 4(2) includes ‘a person’ who ‘is or was a head of state’. The Supreme Court of Appeal noted that this provision is clearly applicable to an individual like President Al-Bashir. And the fact that President Al-Bashir ‘was such a person would not have provided a ground for a magistrate not to make an order for his surrender in terms of s 10(5)’.84 There is one further matter to be considered, namely the interaction (and apparent tension) between the provisions of the Implementation Act and the Diplomatic Immunities and Privileges Act. Commentators like Tladi noted that there is an apparent 82

Ibid., para 92 (supra). Ibid., para 99. 84 Ibid., para 100. 83

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conflict between Section 10(9) of the Implementation Act ‘and the various provisions of the [Diplomatic Immunities and Privileges Act] under which Al-Bashir could claim immunity and inviolability.’ He then anticipated the next step, namely that a court will have to address, through ordinary rules of interpretation, in particular the rule that wherever possible ‘legislative provisions should be interpreted in such a way so as to promote consistency.’ Tladi concluded that the outcome of such a process of interpretation would be difficult to predict. He then offered the following possible solution: [One] possible interpretation would be to require the respect of immunity only for international conferences of international organizations such as the AU or the UN. This would mean that for other visits including state visits and personal visits, Al-Bashir, though still entitled to immunity and inviolability under international law, would not have such protection under South African law. The reasoning for the differentiation is that with respect to other visits, South Africa is free not to invite him – or to invite him but require him not to come to South Africa.85

Three months after the publication of Tladi’s thoughts on a possible solution for the apparent clash between the provisions of the Implementation Act and the Diplomatic Immunities and Privileges Act, the Supreme Court of Appeal delivered judgment on precisely this issue of interpretation of the contradictory language of the two statutes. The Court held: The Implementation Act is a specific Act dealing with South Africa’s implementation of the Rome Statute. In that special area the Implementation Act must enjoy priority. I would not, however, use the language of repeal or amendment. It is rather more an example of the application of the related principle in the converse situation embodied in the maxim generalia specialibus non derogant (general words and rules do not derogate from special ones). Where there is legislation dealing generally with a topic and, either before or after the enactment of that legislation, the legislature enacts other legislation dealing with a specific area otherwise covered by the general legislation, the two statutes coexist alongside one another, each dealing with its own subject-matter and without conflict. In both instances the general statute’s reach is limited by the existence of the specific legislation. So [the Diplomatic Immunities and Privileges Act] continues to govern the question of head-of-state immunity, but the Implementation Act excludes such immunity in relation to international crimes and the obligations of South Africa to the ICC.86

The fundamental effect of the adoption of the Implementation Act by South Africa was to accept one of the aims of the international criminal justice movement (of which the ICC is a key role-player), namely that immunity, in whatever form, should not serve as an obstacle to the prosecution of international crimes. The decision of the Supreme Court of Appeal in the Al-Bashir arrest matter contributes to the abovementioned movement. Indeed, the conclusion of the majority opinion of the court is as strong a domestic statement in favour of the ideals of international criminal justice as one can get. On the effect of the adoption of the Implementation Act, the court held: 85

Tladi 2015, p. 1046. Minister of Justice and Constitutional Development v Southern Africa Litigation Centre, Judgment, 15 March 2016, 867/15, para 102.

86

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I conclude therefore that when South Africa decided to implement its obligations under the Rome Statute by passing the Implementation Act, it did so on the basis that all forms of immunity, including head-of-state immunity, would not constitute a bar to the prosecution of international crimes in this country or to South Africa cooperating with the ICC by way of the arrest and surrender of persons charged with such crimes before the ICC, where an arrest warrant had been issued and a request for cooperation made. I accept, in the light of the earlier discussion of head-of-state immunity, that in doing so South Africa was taking a step that many other nations have not yet taken. If that puts this country in the vanguard of attempts to prevent international crimes and, when they occur, cause the perpetrators to be prosecuted, that seems to me a matter for national pride rather than concern. It is wholly consistent with our commitment to human rights, both at a national and an international level. And it does not undermine customary international law, which as a country we are entitled to depart from by statute as stated in s 232 of the Constitution. What is commendable is that it is a departure in a progressive direction.87

An important contextual matter is the South African government’s understanding of its obligations under the Constitution, the Rome Statute of the ICC, and the Implementation Act. Earlier in this chapter it was noted that when South Africa, as a state party to the Rome Statute, received the first arrest warrant and request for assistance from the ICC in the Al-Bashir matter in 2009, the relevant government organ did act in terms of Section 8(1) of the Implementation Act, subsequently securing a warrant for the arrest of Al-Bashir issued by a South African magistrate. The Supreme Court of Appeal took this initial executive action as supportive of the legal conclusion that South Africa had an obligation to arrest President Al-Bashir—an obligation that existed in 2009 and that was still applicable in 2015 when Al Bashir attended the AU summit in Johannesburg. An aspect of the Al-Bashir matter that received considerable attention in academic commentary as well as in argument before the Supreme Court of Appeal is the proposition that, even if legal mechanisms such as the Implementation Act did not take away Al-Bashir’s head-of-state immunity, it had been waived as a consequence of Security Council Resolution 1593 of 2005. The court however did not find it necessary to further pronounce on the legal consequences of Security Council Resolution 1593, since, as per the majority opinion, the Implementation Act does indeed oust headof-state immunity. This conclusion puts the Supreme Court of Appeal’s decision at the forefront of international criminal law jurisprudence. But even if the court were to conclude that the wording of the Implementation Act does not oust South Africa’s obligation to respect the personal immunity of a visiting head of state of a country that is not party to the Rome Statute of the ICC, the relevant Security Council Resolution, properly construed, may indeed obligate states (whether party to the Rome Statute or not) to fully cooperate with the ICC. Professor Erika de Wet, a renowned expert on the legal nature of Security Council Resolutions, opined that ‘there is no requirement under international law that the Security Council should spell out an obligation to lift immunity’. The reference to ‘full cooperation’ in Resolution 1593 should be taken to denote all required measures under domestic and international law, including lifting

87

Ibid., para 103.

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immunities.88 Thus, the obligation on Sudan to lift Al-Bashir’s immunity requires all member states of the UN ‘to regard his immunity as having been waived’.89 The Supreme Court of Appeal judgment on the application of the Constitution and the Implementation Act on the Al Bashir matter is not reliant on Security Council Resolution 1593. The ratio of the decision is built on the text and foundational values of the Constitution, on South Africa’s international obligations under the Rome Statute, and on the text and proper interpretation of the Implementation Act. But it is nevertheless important to note the legal effect of yet another layer of international obligations, via the Security Council of the UN, that were ostensibly disregarded by the South African government when it failed to arrest Al-Bashir. The relevant South African authorities, including the police and the central government itself, were wrong to ignore the letter and spirit of the Implementation Act and the Rome Statute of the ICC. Dismissing Government’s appeal, the Supreme Court of Appeal thus replaced the high court order with an order that read, in part: The conduct of the respondents in failing to take steps to arrest and detain, for surrender to the International Criminal Court, the President of Sudan, Omar Hassan Ahmad Al Bashir, after his arrival in South Africa on 13 June 2015 to attend the 25th Assembly of the African Union, was inconsistent with South Africa’s obligations in terms of the Rome Statute and s 10 of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002, and unlawful.90

It should be noted that South Africa’s Supreme Court of Appeal was not the only senior domestic court on the African continent to find that the national government has violated its own laws when it failed to arrest President Al-Bashir of Sudan.91 In Kenya, a state party to the Rome Statute that has also domesticated the Statute via legislation,92 the Nairobi Court of Appeal held that the Kenyan Government’s failure to arrest Al-Bashir violated relevant international law, the Kenyan Constitution, and national law. The Court of Appeal noted: Kenya clearly found itself in a rare geopolitical predicament when it was requested by the ICC to effect the arrest and surrender of President Al Bashir. The choice was between cooperating with the ICC and remaining true to the African Union resolution not to cooperate with the ICC. In view of the law that we have set out in this judgment, the former was the only tenable legal choice for Kenya; that is, to demonstrate its commitment to champion the fight on global impunity. But by inviting President Al Bashir to the inauguration of a new Constitution, which ironically has one of the most progressive Bill of Rights in the region, the Government of Kenya itself acted with impunity and joined States like Malawi, Djibouti, Chad, Uganda and the Democratic Republic of Congo … against which the ICC has issued non-cooperation decisions and reported their failures to arrest President Al Bashir to the Security Council as well as the Assembly of States Parties.93 88

De Wet 2015, p. 1061. Ibid., p. 1062. 90 Minister of Justice and Constitutional Development v Southern Africa Litigation Centre, Judgment, 15 March 2016, 867/15, para 113. 91 Kemp 2019, pp. 61–82. 92 International Crimes Act 16 of 2008 (Kenya). 93 Attorney General & two others v Kenya Section of International Commission of Jurists, Judgement, 16 February 2018, JELR 105981 (CA). 89

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Regarding the question of Head of State immunity, the Nairobi Court of Appeal went further than what the Supreme Court of Appeal in South Africa was prepared to say about the meaning, scope and application of domestic and international law. While it reached essentially the same conclusion as its South African counterpart, the Court of Appeal in Nairobi reasoned as follows: For Kenya the Rome Statute, which is a higher norm than the [Security Council Resolution], and customary international law imposed an overriding obligation to cooperate. Under customary international law, the UN Charter, the Rome Statute and the International Crimes Act, and as a UN Member State it was legitimate for Kenya to disregard President Al Bashir’s immunity and execute the ICC’s request for cooperation by arresting him, because under the concept of pacta sunt servanda embodied in Article 26 of the Vienna Convention on the Law of treaties, ‘[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith.94

The above discussed domestic judicial findings against the governments of South Africa and Kenya, both of which failed to provide the required co-operation with the ICC in the form of effecting the arrest of the then sitting President of Sudan, were echoed at the international level in that the ICC Pre-Trial Chamber found against South Africa in the matter concerning that country’s non-co-operation with the ICC.95 The obligation of states parties to the Rome Statute to provide co-operation to the fullest extent was confirmed by the ICC Appeals Chamber in the matter of the non-compliance by the Kingdom of Jordan with the request by the ICC for the arrest and surrender of President Al-Bashir.96 The ICC Appeals Chamber held that the ICC is not prevented, by virtue of a right to personal immunity of a sitting Head of State, from requesting a state party to the Rome Statute to arrest a Head of State of a non-party state (such as Sudan).97

6.7 Final Observations Internal and external manifestations of the ideal of Pan-Africanism also find expression in modalities of co-operation in criminal matters, whether with regards to international tribunals (vertical co-operation), or between states (horizontal co-operation). While this chapter is not a comprehensive survey of all relevant African laws, instruments and practices in the area of co-operation in criminal matters, the discussion of selected issues points to significant incongruities resulting from differing views on human rights, the death penalty, treaty obligations, incorporation of international law, and so on. International co-operation in criminal matters is a complex subject, 94

Ibid., pp. 56–57. The Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision, 6 July 2017, ICC-02/05-01/09-302. 96 The Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision, 6 May 2019, ICC-02/05-01/09-397Corr. 97 See also Kress 2019. 95

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and Pan-Africanism, as an ideal and as a practical organising principle, can show the way forward, but this will require consistency on human rights, normative clarity, and pragmatism not of the cynical kind.

References Akhavan P (2005) The Lord’s Resistance Army Case: Uganda’s submission of the first state referral to the International Criminal Court. American Journal of International Law 2: 403-421 Ambos K (2012) The first judgment of the International Criminal Court (Prosecutor v. Lubanga): A comprehensive analysis of the legal issues. International Criminal Law Review 2: 115-153 Anyangwe C (2015) Emerging African jurisprudence suggesting the desirability of the abolition of capital punishment. African Journal of International and Comparative Law: 1–28 Ankumah E (2016) The International Criminal Court and Africa. Intersentia, Cambridge Crawford J (2012) Brownlie’s Principles of Public International Law, 8th edn. Oxford University Press, Oxford Dancy G et al. (2020) What determines perceptions of bias toward the International Criminal Court? Evidence from Kenya. Journal of Law and Conflict Resolution: 1443–1469 De Wet E (2015) The implications of President Al-Bashir’s visit to South Africa for international and domestic law. Journal of International Criminal Justice: 1049–1071 Fisher K (2013) Moral Accountability and International Criminal Law. Routledge, London Jalloh C, Bantekas I (2017) The International Criminal Court and Africa. Oxford University Press, Oxford Kemp G (2017) South Africa’s (possible) withdrawal from the ICC and the future of the criminalization and prosecution of crimes against humanity, war crimes and genocide under domestic law: A submission informed by historical, normative and policy considerations. Washington University Global Studies Law Review 3: 411-438 Kemp G (2019) Immunity of High-Ranking Officials Before the International Criminal Court – Between International Law and Political Reality. In: Werle G, Zimmermann A (eds) The International Criminal Court in Turbulent Times. T.M.C. Asser Press, The Hague Kemp G et al. (2015) Criminal Law in South Africa, 2nd edn. Oxford University Press, Cape Town Klip A (2012) European Criminal Law – An Integrative Approach, 2nd edn. Intersentia, Cambridge Kress C (2019) Preliminary observations on the ICC Appeals Chamber’s Judgment of 6 May 2019 in the Jordan Referral re Al-Bashir Appeal. https://www.toaep.org/ops-pdf/8-kress. Accessed 19 December 2021 Martini P (2021) The International Criminal Court versus the African Criminal Court. Journal of International Criminal Justice: 1–21 Mujuzi JD (2013) Prisoner transfer to South Africa: Some of the likely challenges ahead. Potchefstroom Electronic Law Review: 151–186 Mujuzi JD (2015) The South African International Co-operation in Criminal Matters Act and the issue of evidence. De Jure: 351–387 Okurut E (2018) The contentious relationship between Africa and the International Criminal Court (ICC). Journal of Law and Conflict Resolution 3: 19-31 Phooko M (2015) No longer in suspense: Clarifying the human rights jurisdiction of the SADC Tribunal. Potchefstroom Electronic Law Journal: 531–567 Tladi D (2015) The duty on South Africa to arrest and surrender President Al-Bashir under South African and International Law: A perspective from International Law. Journal of International Criminal Justice: 1027–1047 Van der Merwe HJ, Kemp G (2019) International Criminal Justice in Africa. Konrad Adenauer Stiftung, Berlin

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Van Hoek A, Luchtman M (2005) Transnational cooperation in criminal matters and the safeguarding of human rights. Utrecht Law Review: 1–39 Wallace M (2011) A History of Namibia. Oxford University Press, Oxford Washburn J (1999) The negotiation of the Rome Statute for the International Criminal Court and international lawmaking in the 21st century. PACE International Law Review 11: 361-377 Werle G et al. (2014) Africa and the International Criminal Court. T.M.C. Asser Press, The Hague Werle G, Jessberger F (2014) Principles of International Criminal Law, 3rd edn. Oxford University Press, Oxford Werle G, Vormbaum M (2017) The African Criminal Court. T.M.C. Asser Press, The Hague Werle G, Zimmermann A (2019) The International Criminal Court in Turbulent Times. T.M.C. Asser Press, The Hague

Prof. Gerhard Kemp is a Professor of law, University of Derby, United Kingdom, specializing in international criminal justice, post-conflict studies and international humanitarian law. Senior research fellow at Robert Bosch Stiftung, Berlin (2016–2017) and recipient of the Alexander von Humboldt Foundation research fellowship (2017–2019). Advocate of the High Court of South Africa; amicus curiae of the South African Constitutional Court in the Zimbabwe Torture Docket case (2014). Assistant editor at African Yearbook of International Humanitarian Law and regional editor at Criminal Law Forum. On the board of directors of the Institute for Justice and Reconciliation, Cape Town.

Chapter 7

The Scope and Application of Universal Jurisdiction: A Synopsis of African States’ Positions and Proposals During Plenary Sessions in the Sixth Committee of the United Nations General Assembly James Nyawo

Contents 7.1 7.2 7.3 7.4

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Principles for Exercising Criminal Jurisdiction Under International Law . . . . . . . . . . . . Universal Jurisdiction Principle in International Law and International Relations . . . . . The Trigger for African Union and African States to Approach the United Nations on the Scope and Application of Universal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5 African States’ Positions and Contributions During the Legal Committee (Sixth Committee) of the United Nations General Assembly (2009–2020) . . . . . . . . . . . . . . . . . 7.6 Africa’s Recognition of the Principle of Universal Jurisdiction and Its Commitment to Fighting Impunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.7 African States’ Qualified Recognition of Universal Jurisdiction and Insistence on the Respect of the Sovereign Equality of States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.8 Immunity and the Application of Universal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . 7.9 African Approaches to the Application of Universal Jurisdiction . . . . . . . . . . . . . . . . . . . 7.10 African Union Model National Law on Universal Jurisdiction Over International Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11 Discord Concerning the Role of the International Law Commission in Determining the Scope and Application of Universal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.12 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract Universal jurisdiction has the potential to close the impunity gap for the perpetrators of atrocity crimes around the world. Such potential has reached both its zenith and nadir points as the international community continues to seek ways of balancing victims’ demand for accountability and the importance of safeguarding the fundamental principles governing the international politico-legal system. This chapter analyses the submissions and contributions of African states during debates within the United Nations General Assembly’s Sixth Committee on the scope and application of universal jurisdiction. African states, through the African Group, were responsible for putting universal jurisdiction onto the General Assembly. The chapter J. Nyawo (B) School of Humanities and Social Sciences, Strathmore University, Nairobi, Kenya e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 T. B. K. Sendze et al. (eds.), Contemporary International Criminal Law Issues, https://doi.org/10.1007/978-94-6265-555-3_7

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established that the traumatic history of imperialism and colonial rule continues to influence African diplomacy and its approach to international relations. It argues that by raising the issue of universal jurisdiction at the level of the United Nations General Assembly, the African Group demonstrated that it is continuously seeking to recover and assert its voice lost during colonization, and that it is committed to multilateral dialogue based on sovereign equality, and legal positivism as a means of shaping and developing international law. The majority of African States consider themselves to be vulnerable to the arbitrary application of universal jurisdiction, hence the push for proper definitions of both its scope and application. Their concern is that in its current form its application could lead to disastrous consequences for international relations. Keywords Universal jurisdiction · Impunity · International law · African Union · International criminal jurisdiction · Sixth Committee

7.1 Introduction The Sixth Committee of the United Nations General Assembly has been deliberating on the scope and application of universal jurisdiction since 2009.1 The topic has been considered in 12 plenary sessions within the Sixth Committee starting with the Sixty-fourth session in 2009 to Seventy-fifth session in 2020. In 2021, the deliberations were still ongoing. This was probably the first time the United Nations General Assembly has substantively considered the concept of universal jurisdiction.2 Previous deliberations had been conducted either on academic or practitioner forums, such as Princeton Project on Universal Jurisdiction3 and Arusha-Cairo Principles,4 or in national or international courts.5 A consensus still remains elusive. States remain divided on the definition of the concept of universal jurisdiction (what 1

According to the Rules of Procedure of the General Assembly, Rule 96, the General Assembly may establish such committees as it deems necessary for the performance of its function. The Sixth Committee (Legal) is one of the six committees of the United Nations General Assembly and it’s the primary platform for the consideration of legal questions. All 193 Member States of the United Nations are entitled to be represented in the Committee. See United Nations General Assembly, Sixth Committee (Legal) https://www.un.org/en/ga/sixth Accessed 12 December 2022. 2 The closest that the United Nations General Assembly came to deliberating on the issues related to universal jurisdiction is when it negotiated and enacted the Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948 and entered into force 12 January 1951. 78 UNTS 277; International Convention on the Suppression and Punishment of the Crime of Apartheid opened for signature on 30 November 1973, and entered into force 18 July 1976, 1015 UNTS 243; and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punish opened for signature on 10 December 1984, and entered into force on 26 June 1987, 1465 UNTS 85. 3 Office of Communications 2001. 4 Ankumah 2004, p. 98. 5 ICJ, Democratic Republic of the Congo v. Belgium, Judgement on the Case Concerning the Arrest Warrant of 11 April 2000, 14 February 2002, ICJ Reports 2002.

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is its role, purposes, and relevant components), the scope of universal jurisdiction (what crimes should be punished under universal jurisdiction), and its application (what are the conditions and criteria for its application). This was captured in a statement delivered on behalf of the African Group by Amadou Jaiteh, the Permanent Representative at the Mission of the Gambia to the United Nations during the Seventy-fourth session (2021) of the Sixth Committee. The statement reads, “For 10 years the Sixth Committee had failed to address the real concerns that necessitated the addition of the topic in our agenda, and for 10 years, the scope of universal jurisdiction remains uncertain.”6 The topic on the scope and application of universal jurisdiction was introduced to the United Nations General Assembly’s agenda by the African Union, through a letter submitted by the Permanent Representative of the United Republic of Tanzania to the United Nations to the Secretary-General.7 In the letter, Ambassador Augustine P. Mahiga indicated that his request was made “on behalf of the Group of African States.”8 The Group of African States has been instrumental for African Diplomacy and ensuring that the voices of African States were heard on issues that preoccupied the continent. For instance, apartheid in the then Southern Rhodesia and South Africa, and liberation struggles including the recognition of liberation wars as international armed conflicts. The recognition secured international and legal protection for those who had taken up arms and waged liberation struggles across Africa to be treated as Prisoners of War (PoW) under International Humanitarian Law instead of being viewed as mere criminals by the colonial regimes. Despite internal challenges, it is apposite to state that the Group has managed to establish itself as a dynamic force to reckon with at the United Nations. At the same time, it has received some criticism for being too Afrocentric instead of having a global outlook.9 Still, the group has remained African Union’s effective mouthpiece in several United Nations General Assembly organs, such that when the assembly of the African Union become preoccupied with the abusive application of universal jurisdiction by non-African States against African leaders, the African Group played a critical role in ensuring that it was not only raised but also sustained in the United Nations General Assembly and the Sixth Committee respectively. Moreover, after every annual session, African States took it upon themselves to introduce draft resolutions that ensured a decision was made to include the topic in the provisional agenda for the following session.10 In other words, African States demonstrated a strong belief and commitment to dialogue, negotiation and can be said to have put the concept of the African palaver 6

United Nations General Assembly Sixth Committee (74th Session) 14 and 15 October 2019. UN Doc, A/63/237/Rev 1 2009. 8 Ibid; the Group of African States is a continental caucus consisting of all 54 African member states in the United Nations General Assembly. Its roots can be traced back to the late 1950s, however it seems to have been formalized in 1963 during the first conference of independent African heads of state and governments held in Addis Ababa between 22 and 25 May 1963. 9 Hoskyns 1964. 10 Rwanda was the first African State to introduce a draft resolution A/C.6/64/L.18, which ensured that the topic was included in the Sixth Committee’s Sixty-fifth session. See, UNGA Sixth Committee (64th Session) UN Doc. A/C.6/64/L.18 Draft Resolution 2009. 7

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tree into practical use in African diplomacy. The concept of African palaver has deep roots in African philosophy. As Kofi Annan—the former Secretary General of the United Nations from Ghana—pointed out, the concept: has always been a tangible part of our heritage, as a source of the relative peace and harmony among myriad tribes and religions. A place to meet and talk, to seek compromise and settle disputes, to bridge differences and foster unity…If you have a problem and you can’t find a solution, you meet again tomorrow and you keep talking until you find a solution.11

The purpose of this chapter is to provide a synopsis of African States’ submissions and positions during the deliberations on the definition, scope, and application of universal jurisdiction in the Sixth Committee of the United Nations. The synopsis is framed around the theme of subalternity within postcolonial discourse of international relations and international law. Central to postcolonial discourse is the idea that it is impossible to ignore the history of imperialism and colonial rule that has shaped and continues to shape the relationship between the former colonial powers and the colonised within the realm of International Relations and International Law.12 The discourse places binary logic at the centre of how post Second World War international political/legal systems operate. It interprets the functioning of the international legal order in terms of binary oppositions based on the domination of one by the other: good versus bad, civilized versus primitive and coloniser versus colonised.13 Such binarism has its roots in the colonial vocabulary and psychology. Loomba 2005 traces the roots to how “the colonial state cast itself as the parens patriae, controlling but also supposedly providing for its children.” Such colonial familial vocabulary had racial or cultural undertones, where the coloniser had a parental role to look after the colonised, in this case the children. The colonizer viewed its responsibility not only as being limited to protecting the child but also in “disciplining them into obedience”.14 Therefore, this chapter locates the debates on the scope and application of universal jurisdiction, as the desire by African States to be heard, treated with respect and as equals in the international political and legal system— and not as children who await disciplining. Theirs is an attempt to break the wall between the powerful states and former colonial powers, those who by the nature of their economic, political, and military prowess seem to seek any opportunity to interfere in the domestic affairs of the former colonised people, who on the other hand are the weak, poor, and marginalised in the international decision making process, including decisions affecting their domestic affairs. This sentiment is reflected in several statements by African States during the Sixth Committee Sessions when they underscored their opposition to “arbitrary and unilateral exercise of universal jurisdiction” against African heads of states and government or state agents.15 11

Annan 2012, p. 22. Loomba 2005. 13 Ashcroft et al. 2000. 14 Loomba 2005, p. 181. 15 United Nations General Assembly, Sixth Committee, (Malawi) Official Records A/C.6/65/SR.10, 13 October 2010 para 60; United Nations General Assembly, Sixth Committee, (Kenya) Official 12

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The Ethiopian delegate, Ms. Habtemarian captured this sentiment during the Sixty-sixth session when she said, “The scope and application of the principle of universal jurisdiction must therefore be regulated to avoid arbitrary use, politicization, and a fatal loss of credibility.” 16 Rwanda equated such behaviour to “international judicial imperialism.” When arbitrary actions and decisions are taken, such as the application of universal jurisdiction, African States’ natural fall-back strategy is to reassert the importance of state sovereignty as a cardinal principle in postsecond World War international legal order and their line of defence. In general, and by default, African states become sovereign absolutists. The chapter argues that by raising the issue at the level of the United Nations General Assembly, the African Group is demonstrating that (a) it is continuously seeking to recover and assert its voice lost during colonization, and (b) that it is committed to multilateral dialogue, and legal positivism as a means of shaping and developing international law. This chapter is by no means the first to discuss the universal jurisdiction principle in the context of Africa. As already mentioned, in 2002, a group of jurists and academic practitioners met in Cairo (Egypt) and Arusha (United Republic of Tanzania) and agreed on the principles of universal jurisdiction from an African perspective.17 Although the agreed principles reflected African academics and jurists’ perspective they cannot be said to represent the views of the African government and states on the scope and application of the universal jurisdiction. Of interest about the Cairo-Arusha Principles is that Principle 4, which sought the expansion of crimes to be punished under the universality principle, proposes the inclusion of “major adverse economic, social or cultural consequences such as acts of plunder and gross misappropriation of public resources, human trafficking and serious environmental crimes.”18 The proposal makes sense considering the role that multinational corporations played and continue to play in the disparagement of Africa with impunity for centuries. For instance, the discovery of rubber tyres fuelled demand for rubber trade from the Congo Free State, leading King Leopold to commit atrocities against the Congolese people. The atrocities were so heinous that George W. William accused King Leopold of committing crimes against humanity.19 In 2010, a comprehensive article examining the African Union’s stance, at the time, on the application of universal jurisdiction was published by the Criminal Law Forum Journal.20 In the article, Professor Charles Jalloh suggested that states applying universal jurisdiction needed to balance it with other norms and rules of

Records A/C.6/66/SR.12, 12 October 2011 para 12, and United Nations General Assembly, Sixth Committee, (Sudan) Official Records A/C.6/75/SR.11, 3 November 2020 para 38. 16 United Nations General Assembly, Sixth Committee, (Ethiopia) Official Records A/C.6/66/SR.12, 16 November 2011 para 40. 17 Kwakwa 2002, pp. 407–430. 18 Ibid. 19 Hochschild 1998, p. 278. 20 Jalloh 2010.

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customary international law.21 He stated that “…the seemingly well-meaning European jurisdictions must strictly comply with the requirements of customary international law immunities when pursuing African cases.”22 The article was published just after the African Union had managed to add universal jurisdiction to the United Nations General Assembly agenda. The following section of this chapter discusses the different and recognized legal basis for states to exercise forms of criminal jurisdiction under the international law, namely territorial jurisdiction, passive personality jurisdiction, active personality jurisdiction, protective jurisdiction, and lastly the principle of universality, which forms the focus of this chapter. The third section will analyse how the application of the principle of universality has impacted inter-state relations. The fourth section examines the events which triggered African leaders to approach the United Nations General Assembly to have a dialogue over the scope and application of universal jurisdiction. The fifth section analyses the main propositions by African States, illustrating two main features: first, as the subaltern in international affairs, they asserted their collective voice in trying to shape international criminal law and the application of universal jurisdiction in particular. Second, that they prefer a positivist approach to international law, that is, they would rather give their consent and expect similar behaviour from other members of the international community instead of arbitrary imposition of obligations on the African States. In other words, it is safe to suggest that African States would prefer to have an international treaty on the scope and application of universal jurisdiction. Such a treaty would articulate the contested components of universal jurisdiction from definition to the application and ensure co-operation. This of course would go against the very essence of universal jurisdiction as some states might opt out of such a treaty. Regardless, there is a need for some well recognized framework and guidelines on the concept, if it is to remain a legitimate mechanism working towards closing the impunity gap. Still the issues raised by African States cannot be wished away. There is no doubt that the dialogue on universal jurisdiction in the United Nations General Assembly has not been progressing. Nevertheless, it has generated a wealth of state information on practice, which could be a foundation for the codification of universal jurisdiction in the form of a multilateral treaty. The propositions made by the African States, the majority of which revolve around ideas that were moulded by western legal philosophers, for instance, sovereignty introduced by Jean Boden and the concept of equality which was propounded by French revolutionaries reflects Africa States’ both strong commitment and acceptance of international law. It can also be argued that the nature of their pushback has an element of biasness, as it focuses primarily on protecting African heads of state and government but not ordinary Africans. It must be noted that the issue with the application of universal jurisdiction only became controversial among African leaders when they themselves became targeted. Otherwise, when ordinary citizens were indicted and prosecuted there was no opposition against the application of universal jurisdiction. This raises 21 22

Ibid. Ibid.

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questions on whether African leaders view themselves as being legibus solutus, that is they are not bound by the law.

7.2 Principles for Exercising Criminal Jurisdiction Under International Law International law contemplates five principles that provide states with the right to exercise criminal jurisdiction. These are the principles of territoriality, active personality, passive personality, real protection, and universality.23 Territoriality is regarded as the primary basis for jurisdiction and is hardly contested. It’s based on Max Weber’s widely accepted definition of a state: “…human community, which rightfully asserts its monopoly over the legitimate use of physical force within a certain territory.”24 Following this conceptualization of a state, states have authority over persons that fall within their territory, including exercising criminal jurisdiction over the people. Chapter III of the Kenya Penal Code stipulates that the application of its code is based on territoriality principle as follows: The jurisdiction of the courts of Kenya for this Code extend to every place within Kenya including territorial waters.25 This is a common provision found in several other penal codes in Africa and in the world. The application of the principle of territoriality is generally straightforward and less controversial. However, the main challenge from the international criminal law perspective is that states tend to not have enough appetite to prosecute international crimes committed in their territories. There are simply not enough prosecutions for the perpetrators of atrocities under the territoriality principle. This has been attributed to either lack of political will, unwillingness, or inability, if not a combination of both. Part of the challenge comes from the fact that in general atrocity crimes are committed by those with political power. In such circumstances, national courts can rarely put government officials, who have allegedly committed atrocity crimes, to trial. In circumstances when there has been a collapse of the regime, either following a war (defeat of the Hutu government of Rwanda in 1994) or a revolution (the Arab Spring and Sudan’s Revolution), the state might not be ready to investigate and prosecute complex international crimes. As Linda Melvern described the post genocide Rwanda, it would be unimaginable that the state would have had the capacity to investigate and prosecute those responsible: “There was no triumphant victory. The country had been ransacked. There was not a penny in public coffers, there were no offices intact, no chairs, no desks, no paper, no phones, nothing at all…Qualified staff had been killed or had fled the country.”26 As such, extra-territorial mechanisms such as the International Criminal Tribunal for Rwanda had to be established. 23

Pella 1950, pp. 37–68. Weber 1992. 25 Government of Kenya 2012–2010. 26 Melvern 2009, p. 247. 24

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Other countries with custody of the suspects put them on trial under the universality principle as shall be discussed later in this chapter. The principle of active personality, also referred to as nationality-based jurisdiction, authorises states to investigate and prosecute its nationals who commit atrocities abroad. While it is anchored on sovereignty, its roots pre-dates the relationship between the principle of territoriality and state sovereignty as we understand it today.27 The active personality principle emerged during the period in human development when community law was based not on the territorial state but on religion, race, or nationality of the people.28 Aliens were excluded from the local legal systems. Outsiders neither had the same rights nor duties as those bestowed on the members of a given religion, race or nationality. Foreigners and foreign practices were scorned either by the host communities or by the aliens themselves. As such, exclusiveness in law enforcement was a common feature, and foreigners have for centuries been granted extraterritorial rights, including being punished per the laws of their own country.29 Furthermore, nationality-based jurisdiction is considered to be expedient in the realignment of the relationship between the citizen and the state in the increasingly globalised world marked with increased international mobility.30 State boundaries are becoming less significant, for example in the European Union and in Africa, once the African Continental Free Trade Area is fully operationalized.31 However, being tried and punished among one’s peers and those aware of their character and reputation is often desirable and favoured.32 States’ practice on nationalitybased jurisdiction is varied. The United States favours prosecuting its nationals and hardly accepts that they face trial in foreign courts,33 including international criminal tribunals. This was the basis for the United States Government’s opposition to the International Criminal Court.34 In the Republic of South Africa, nationality-based jurisdiction is applied in a limited way. It is applied to crimes involving treason and international crimes, namely genocide, crimes against humanity, war crimes, and mercenaryism. South Africa’s Regulation of Foreign Military Assistance Act of 1998 provides that “Any court of law in the Republic may try a person for an offense referred to in Sect. 8 even though the act or omission to which the charge relates, was committed outside the Republic….”35 Nationality-based jurisdiction is 27

Kassan 1935, pp. 237–247. Ibid. 29 Cassese 1986. 30 Arnell 2001. 31 Agreement Establishing the African Continental Free Trade Area, opened for signature (21 March 2018), entered into force (30 May 2019) Article 3 para 1 (a) the General Objectives states the treaty’s general objective is: ‘to create a single market for goods, services, facilitated by movement of persons in order to deepen the economic integration of the African continent and in accordance with the Pan African Vision of “An integrated, prosperous and peaceful Africa” enshrined in Agenda 2063’. 32 Arnell 2001 33 Walson 1992. 34 Scheffer 2012, p. 221. 35 Republic of South Africa Government Gazette, Regulation of Foreign Military Assistance Act 1998, para 9. 28

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relied upon by United Nations Peacekeeping Missions to secure criminal accountability for peacekeepers who commit crimes while abroad.36 The primary responsibility to prosecute United Nations Peacekeepers is with the national governments of troop-contributing states. Once the prosecution is done, the troop-contributing state is expected to report back to the United Nations. This is because the United Nations lacks a platform to punish its peacekeepers, and that in most situations, peacekeeping missions find themselves operating in states where domestic legal systems are weak and ineffective and this makes it inevitable that the only realistic forum for peacekeepers to face trial is in their own national domestic legal system. The efficacy of nationality-based jurisdiction in combating international crimes can be best described as minimal. When it comes to international crimes, especially war crimes, troop-contributing countries are unwilling to prosecute their troops and civilians, and when they do, the process is often viewed as tainted with flaws and is considered self-serving.37 In addition, and as exemplified in the case of My Lai Massacre, when such trials do happen, they face criticism for being lenient.38 Furthermore, it is often impractical to get reliable evidence from the crime scene located thousands of miles from the courtroom and in an active war theatre. International law recognizes the rights of states to exercise criminal jurisdiction to protect their interests for offenses committed abroad. This is the principle of real protection.39 Under this principle, states are allowed to assert jurisdiction either over their nationals or foreign nationals whose criminal acts threaten their vital interests. According to the Harvard Research Draft Convention on Jurisdiction concerning crime, the interests that states seek to protect include security, territorial integrity, or political independence. 40 Such interests could be threatened by criminal acts against a state’s own seals, currency, treason, stamps, passports and public documents. The principle of real protection was used as one of Israel’s legal bases for asserting jurisdiction over Adolf Eichmann. In the judgement, the Court said: Indeed, this crime (“the killing of millions of Jews with intent to exterminate the Jewish People”) very deeply concerns the vital interests of the State of Israel, and pursuant to the “protective principle,” this State has the right to punish the criminals.41

36

The common practice is that when a state contributes troops as a Troops Contributing Country (TCC) to a United Nations Peacekeeping mission, it signs a Memorandum of Understanding with the United Nations stating that it will be responsible for prosecuting its own military members for crimes committed during the mission. See United Nations Office of International Oversight Services, Evaluation of the Enforcement and Remedial Assistance Efforts for Sexual Exploitation and Abuse by the United Nations and Related Personnel in Peacekeeping Operations, 4, U.N. Doc. IED-15-001 (5 May 2015) https://oios.un.org/page?slug=evaluation-report Accessed 17 August 2021. 37 Kalwahali 2013, p. 176. 38 Cryer et al. 2007, p. 42. 39 Pella 1950. 40 Abass 2014. 41 The District Court of Jerusalem, Attorney-General of Israel v. Eichmann, Judgement, 11 December 1961, Criminal Case No. 40/61.

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The two principles, territoriality and active personality, discussed above are solidly anchored on the direct and substantial connection between the state claiming jurisdiction and the crime committed or its perpetrator. This connection could be the territory or nationality of the -offender. As Francis Wharton said, “the authority of a nation within its territory is absolute and exclusive”.42 As such, these are the less controversial basis for asserting criminal jurisdiction under international law. Controversy emerges when the connection between the crime, victim, and perpetrator is not straightforward, as is the case with the principle of passive personality jurisdiction and the principle of universality. Passive personality jurisdiction authorises states to assert criminal jurisdiction over foreign nationals in foreign states when their national interests are injured. This is often the case when crimes are committed against their nationals while abroad. Therefore, it is applied by states, to protect their citizens abroad and the main concern is the effects of the crime and not the location of the crime itself. This makes the application of the principle of passive personality controversial on two grounds. First, its application runs the risk of infringing on the territorial sovereignty of the state where the crime was committed. This was expressed by the dissenting judges in the Lotus Case. Judge Bernard Cornelis Johannes Loder, a Dutch Jurist, who was on the bench wrote the following in his dissenting opinion arguing that the principle of passive personality is inconsistent with international law: The criminal law of a State may extend to crimes and offenses committed abroad by its nationals since such nationals are subject to the law of their own country; but it cannot extend to offenses committed by a foreigner in foreign territory, without infringing the sovereign rights of the foreign State concerned, since in that State the State enacting the law has no jurisdiction.43

Similar opinions were expressed by five other dissenting judges. Second, the fact that the victims are the only connection between the offender and the state exercising criminal jurisdiction raises questions on the offender’s rights to a fair trial in a foreign legal system. For instance, in the absence of a dual-criminality requirement, a country might prosecute a foreigner who committed an act not criminalized in his or her territory. It can be observed that states’ practice shows a general tolerance of passive personality jurisdiction only for specific crimes, such as terrorism, hijackings, and crimes against humanity which are committed targeting specific nationals. For instance, although France objected to Turkey’s claim to prosecute French nationals based on the passive personality principle, it later amended its penal code and incorporated it.44 In South Africa, the passive personality principle is implemented under 42

Wharton 1887, p. 432. Permanent Court of International Justice, France vs Turkey, Judgement in the Lotus Case, 7 September 1927. 44 Code Pénal [C.PÉN] art. L.113-7 (Fr) (“La loi pénale française est applicable à tout crime, ainsi qu’`a tout délit puni d’emprisonnement, commis par un Français ou par un étranger hors du territoire de la République lorsque la victime est de nationalit´e française au moment de l’infraction.”) English translation, “French criminal law is applicable to any crime, as well as to any offense punishable by 43

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Section 4 (3) of its Implementation of the Rome Statute of the International Criminal Court Act of 2002. Under the Act, South African courts are authorised to punish any person who “has committed the said crime (genocide, crimes against humanity, war crimes) against a South African citizen or against a person who is ordinarily resident in the Republic.” 45 Leading international law jurists, Rosalyn Higgins (UK), Pieter H. Kooijmans (Netherlands) and Thomas Buergenthal (United States) opined that although the principle had been regarded as controversial in the past “today [it] meets relatively little opposition, least so far as a particular category of offenses is concerned.”46 The observation is consistent with state practice and is reflected in some international legal instruments. The passive personality principle is commonly applied by states for crimes, such as terrorism,47 hostage-taking,48 and Article 5 (c) of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), which requires states to establish jurisdiction based on passive personality. It provides that: Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over the offenses referred to in Article 4 in the following cases:… (c) when the victim is a national of that state if that State considers it appropriate.49

Despite the increasing acceptance of passive personality principles, there are serious reservations on its application without clear safeguards on the human rights of the offender. The risk is that offenders would face criminal prosecutions for actions unknown to them as illegal.50 Closely linked to the passive personality principle is the universal jurisdiction principle, which is the central focus of this chapter. Professor Bassiouni 1986 outlines the rationale behind the universality principle as being that of the existence of certain offenses which are “so heinous and so widely condemned that, any state if its captures the offender may prosecute and punish that person on behalf of the world community regardless of nationality, or the offender or victim or where the crime was committed.”51 A precise definition of universal jurisdiction remains elusive, and this

imprisonment, committed by a French person or by a foreigner outside the territory of the Republic when the victim is of French nationality at the time of the offense….”. 45 Republic of South Africa, Implementation of the Rome Statute of the International Criminal Court Act, No. 27 of 2002, 18 July 2002. 46 ICJ, Democratic Republic of the Congo v. Belgium, Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal Arrest Warrant of 11 April 2000, 14 February 2002, ICJ Reports 2002. 47 UK Terrorism Act 2000, United Kingdom of Great Britain and Northern Ireland, 2000, Chapter 11, 20 July 2000. 48 United States Court of Appeals, District of Columbia Circuit, United States of America v. Fawaz Yunis, a/k/a Nazeeh Yunis, Judgement, 29 January 1991, 924 F.2d 1086 (1991). 49 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punish, opened for signature (10 December 1984) entered into (26 June 1987) 1465 UNTS 85 Article 5 (c). 50 United States of America v. Fawaz Yunis, a/k/a Nazeeh Yunis (n. 49). 51 Bassiouini 1986, p. 298.

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has been viewed by several African states as a potential source for “disastrous consequences for international relations.”52 A commonly accepted definition of universal jurisdiction was proffered by the Princeton University Program in 2001. It defined universal jurisdiction as “criminal jurisdiction based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction.”53 In the following section, the universal jurisdiction is discussed in the context of international law and international relations.

7.3 Universal Jurisdiction Principle in International Law and International Relations Universal jurisdiction is on one hand viewed as globalisation of justice,54 a preferred technique in ending impunity for international crimes.55 On the other hand, its application is considered to be disruptive, provoking judicial and diplomatic chaos within the international system.56 In 2015, the African Union’s Peace and Security Council viewed it as both a threat to state sovereignty, security, and stability of Rwanda and Africa as a whole.57 In other words, the principle qualifies to be one of the contentious topics in international law and international relations, alongside other topics, such as immunity, Responsibility to Protect, and jus cogens. Perhaps this is because there is no international treaty that defines its scope and application, which ends up creating considerable uncertainty in its application. At the core of the controversy and debates about universal jurisdiction is its derogation from the ordinary territoriality or nationality grounds of criminal jurisdiction under international and municipal law. It ignores the close association between the enforcement of criminal justice and sovereign authority.58 This is an association that can be traced back to the works of sixteenth century philosophers and theologians, such as Francisco Suárez who pointed out that “no law is binding outside the limits of 52

See United Nations General Assembly, Sixth Committee, (Senegal) Official Records A/C.6/64/SR.13, 12 October 2009 para 38; United Nations General Assembly, Sixth Committee, (Rwanda) Official Records A/C.6/64/SR.13, 12 October 2009 para 34; United Nations General Assembly, Sixth Committee, (Sudan) Official Records A/C.6/64/SR.25, 12 November 2009, para 43; United Nations General Assembly, Sixth Committee, (Malawi) Official Records A/C.6/65/SR.10, 13 October 2010 para 59 and also Jalloh 2010, pp. 1–65, discussing the definitional problems of universal jurisdiction and variation in its application across states. 53 Office of Communications 2001. 54 Kwakwa 2002. 55 Bassiouni 2001, p. 42. 56 Langer 2011, p. 105. 57 African Union Doc PSC.PR/COMM.(DXIX) Communiqué, Peace and Security Council 519th, 26 June 2015. 58 Rabkin et al. 2007, pp. 98–136.

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the territory of the superior or prince by who it is decreed…”59 On the contrary, the principle of universality allows punishment of certain crimes committed by anybody, anywhere around the world. It is built on the foundation that there are crimes that are too serious that when committed they threaten or attack the basis of international legal order, which all states have an inherent interest in upholding. To protect the international legal order, all states must prosecute the perpetrators of such crimes.60 Proponents of universal jurisdiction trace its history to the punishment of pirates on the high seas. They argue that since pirates could be arrested and punished by all nations this practice forms the foundation and justification for contemporary universal jurisdiction. In the sixteenth century, all nations using the sea were authorised to exercise criminal jurisdiction over pirates, who were considered to be hostis humani generis enemies of mankind at the time.61 However, the link between universal jurisdiction and punishment of pirates cannot be sustained considering that nations were allowed to punish piracy because pirates did not fall under the jurisdiction of any nation, hence they were labelled enemies of mankind.62 The authorisation was not based on the nature of piracy as a crime, which is a major element in the definition of contemporary universal jurisdiction, but the nature of the perpetrators, who were undesirable elements that affected smooth trade in the high seas and it was in the interest of all sea users to arrest and punish them. M. Cherif Bassiouni rightly argues that pragmaticism informed the approach that allowed universal punishment of pirates, as nations could not simply get hold and punish them.63 This is not exactly the basis for explaining modern universal jurisdiction, which focuses on the heinous nature of the crimes authorized to be prosecuted under the principle of universality. In the modern context, the perpetrators may even have a constituency in those who believe, support, and even protect them against any form of punishment. Some perpetrators might even have political power at their disposal as was the case with the former Sudanese President Omar Bashir who was indicted by the International Criminal Court but managed to resist any arrest and surrender using his state machinery and also support from the African Union. The natural theory of international law provides a rather persuasive theory of universal jurisdiction. The theory recognizes the existence of universal moral obligations binding on all human agents as well as states.64 The moral obligations acknowledge that there are universal wrongs that require universal effort to address the wrongs. In 1933, the International Association of Penal, one of the oldest associations of specialists in penal law, recognized that there were some offences which are harmful to the interests common to all states before noting that such crimes required universal repression.65 The United Nations Security Council’s resolution, 59

Williams 1944, p. 396. Cryer 2009, p. 53. 61 Bassiouni 2001. 62 Rabkin et al. 2007. 63 Bassiouni 2001. 64 Capps 2011, pp. 61–92. 65 International Association of Panel Law 2015, p. 261. 60

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S/RES/138 (1960) on the question relating to the case of Adolf Eichmann suggested that it also subscribes to the existence of universal offenses and the duty to punish their perpetrators. The preamble of the resolution noted that it was: Mindful of the universal condemnation of the persecution of the Jews under the Nazis, and of the concern of people in all countries that Eichmann should be brought to appropriate justice for the crimes of which he is accused.66

Argentina had brought the question relating to the case of Adolf Eichmann to the United Nations Security Council following his kidnapping by the State of Israel’s security agents in 1960.67 The event threatened the diplomatic and friendly relations between Argentina and the State of Israel. Argentina had alleged that the State of Israel’s actions undermined the very basis of international order. Argentina felt that the kidnapping had violated its sovereignty and had contradicted “rules of international law and the Purposes and Principles of the Charter of the United Nations and created an atmosphere of insecurity and mistrust incompatible with the preservation of international peace.”68 During the trial in the State of Israel, Eichmann’s Chief of Defense Counsel Dr. Robert Servatius from West Germany—who a New York journalist thought had ‘Quixote complex’ for he had also represented several Nazi officials at Nuremberg Trial—,69 challenged the Israel courts’ jurisdiction to try the case.70 The Defense Counsel dismissed Israel’s Nazi Collaborators (Punishment) Act of 1950, which was the legislation applied in the charges levelled against Eichmann. The basis of his argument was that the heinous crimes committed by Eichmann against the Jews happened before Israel was a state, hence it could not have jurisdiction over the perpetrators of such crimes. In the end, the Court defended its jurisdiction based on the atrocious nature of the crimes which Eichmann had committed in his capacity as the Gestapo’s Jewish Affairs Bureau. In the judgment, the Court explained the universal source of its jurisdiction as follows: The abhorrent crimes defined in this Law are crimes not under Israeli law alone. These crimes which offended the whole of mankind and shocked the conscience of nations are grave offences against the law of nations itself (“delicta juris gentium”). Therefore, so far from international law negating or limiting the jurisdiction of countries with respect to such crimes, in the absence of an International Court, the international law is in need of the judicial and legislative authorities of every country to give effect to its penal injunctions and to bring criminals to trial. The jurisdiction to try crimes under international law is universal. This universal authority, namely the authority of the “forum deprehensionis” (the court of the country in which the accused is actually held in custody) was already mentioned in 66

UN Doc. UNSC/S/RES/138, 23 June 1960. The particular paragraph was proposed by the United States delegate during the debates on the letter from the Republic of Argentina protesting against what it described as ‘illicit and clandestine transfer of Adolf Eichmann from Argentine territory to the territory of the State of Israel” See also UN Doc S/4336, 15 June 1960. 67 Bounty Books 2014. 68 See UN Doc S/4336, 15 June 1960. 69 https://timesmachine.nytimes.com/timesmachine/1961/04/18/101458260.pdf?pdf_redirect= true&ip=0, New York Times, 18 April 1961. 70 Lasok 1962, p. 359.

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the Corpus Juris Civilis …and the towns of northern Italy had already in the Middle Ages taken to trying specific types of dangerous criminals (“banniti, vagabundi, assassin”) who happened to be within their area of jurisdiction, without regard to the place in which the crimes in question were committed….71

According to German philosopher Karl Jaspers, Israel was justified to try Eichmann because it had managed to muster “the energy and skill necessary for bringing him before a court. This is an effort that no other state was able or willing to undertake.”72 In hindsight, the Eichmann Trial captures some of the intricacies surrounding the application of universal jurisdiction as discussed in the Sixth Committee of the United Nations General Assembly. Firstly, the kidnapping resulted in a severance of diplomatic relations between Argentina and the State of Israel leading to the intervention of the United Nations Security Council. Secondly, the fact that the United Nations Security Council confirmed the universal condemnation of the persecution of the Jews galvanised the State of Israel’s resolve to prosecute Eichmann. One can observe that the contemporary application of universal jurisdiction is less controversial when there has been international condemnation of atrocities committed by certain groups or individuals. Suspected perpetrators from scenes of such atrocities, for example in former Yugoslavia, Rwanda and Syria, can easily be prosecuted by States under universal jurisdiction without incurring severe sovereignty or diplomatic costs. On the contrary, attempts to apply universal jurisdiction outside this established framework, and applying it against heads of states and governments or any government officials has proved to be a source of serious diplomatic tension. An example of this is when in 1999 France put Ely Ould Dah, a Mauritanian Military Official, into pre-trial detention. The Mauritanian Government responded by (a) expelling French citizens from its territory, (b) repatriating its military trainees from France, thus jeopardizing the military cooperation between the two states and (c) re-introducing a visa requirement for French citizens seeking to enter Mauritania.73 Thirdly, the universal authority (The United Nations Security Council) to condemn certain offenses and punish them, which was relied on by the District Court of Jerusalem, underlines that impunity cannot be an option for acts that offend the whole of mankind and shake the conscience of nations. Perhaps it is for this reason that even those critical of the application of universal jurisdiction do not base their opposition as support for the odious nature of the crimes committed, but mainly on the procedures and the need to consider other established norms and rules governing international order. Fourthly, and following on Karl Jaspers’ interview with Francois Bondy, it seems that the application of universal jurisdiction comes down to individual states’ ability and willingness to exercise universal jurisdiction. However, as shall be discussed in the next section, the application of universal jurisdiction remains controversial 71 The District Court of Jerusalem, Attorney-General of Israel v. Eichmann, Judgement, 11 December 1961, Criminal Case No. 40/61. 72 Jaspers 2006, pp. 853–858. 73 Langer 2011, p. 21.

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and is viewed by some as threatening to the ethos of the international order. As a decentralized enforcement regime of international criminal law, universal jurisdiction relies on individual sovereign states’ actions to end impunity. This can be the regime’s strength and its Achilles heels. In theory, the regime gives all states an equal chance to play their role in closing the impunity gap. However, as Karl Jaspers pointed out, the difference emerges when states have different abilities and willingness to exercise universal jurisdiction due to the number of available resources. Another complication in universal jurisdiction is the lack of clear legal rules to guide states on how and when they apply universal jurisdiction. It seems to date the regime of universal jurisdiction is based on a laisser faire approach, as states are left to unilaterally decide when to and when not to apply universal jurisdiction. This has caused friction in international relations. In the absence of clear rules and guidelines on how states should apply universal jurisdiction, what has emerged is a ragged pattern of state practice, making it hard to discern any solid systematic and predictable standard state behaviour. In some situations, Spain and France issued arrest warrants to the same individuals from Rwanda. As such, some scholars concluded that the universal jurisdiction has not reached the international customary law level, and that very few individuals have been put to trial under universal jurisdiction.74 Some eminent scholars have suggested that it “is not as well established in conventional and customary international law as its ardent proponents ... profess it to be.”75 In other words, universal jurisdiction could be said to have generated more heat than fire, when it comes to establishing international rule law where all perpetrators of heinous crimes are held criminally responsible.76 Where it has been applied it has generated contestations over legal certainty, the principle for equality of all before the law and has been perceived as some form of neo-colonialism, as shall be discussed in the next section.

7.4 The Trigger for African Union and African States to Approach the United Nations on the Scope and Application of Universal Jurisdiction The African Union Assembly, African Union Peace and Security Council,77 AU Pan African Parliament and other regional groupings, such as the Committee of Intelligence and Security Services of Africa (CISSA),78 and individual African States, mainly Rwanda and Sudan, have been in the forefront of the campaign to resist 74

Langer 2011. Bassiouni 2001. 76 Scheffer 2001, p. 233. 77 African Union Doc/PSC/PR/COMM. (DXIX), 26 June 2015. 78 Committee of Intelligence and Security Services of Africa (CISSA), CNF/13/OR/6 Communique, 6 August 2016. 75

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what they characterised as arbitrary application of universal jurisdiction by nonAfrican judges against African leaders and personalities. This pushback was triggered by a decision by Andreu Merelles, a Spanish Investigative Judge, on 6 February 2008 to issue an indictment charging 40 Rwandan military officials79 with atrocity crimes including genocide, crimes against humanity, war crimes and terrorism. In 2006, before the indictment of the Rwandanese government officials by the Spanish judge, Jean-Louis Bruguiere, a French anti-terrorism magistrate, had also indicted Paul Kagame, President of Rwanda, and nine of his military aides, accusing them of shooting down a plane carrying Hutu President Juvenal Habyarimana, an event alleged to have triggered the 1994 Rwandan Genocide.80 Rwanda responded in two ways, first it broke bilateral relations with France, and second it approached the International Court of Justice (ICJ) requesting it declare that by issuing the international arrests warrants, France had “violated, and is continuing to violate, international law with regard to international immunities generally and with regard to diplomatic immunities in particular.”81 France’s international arrest warrants were primarily based on the principle of passive nationality, as it was triggered by a ‘victim’ of the crime, the daughter of Jean-Pierre Minaberry, the French co-pilot of Habyarimana’s plane. In addition, the charges levelled against the suspects were based on the French Penal Code. This was not the same with Spanish indictments which were based on the principle of universality.82 At the time of the indictment of the 40 Rwandan government and military officials, the Spanish judiciary system had a robust, absolute application of universal jurisdiction. It was authorised to prosecute international crimes: genocide, crimes against humanity, and war crimes wherever they occurred and by whosoever committed the crime and irrespective of any other traditional jurisdictional link to the forum state—for instance, the nationality of either the victims or the perpetrators.83 The 79

Those indicted were 1. James Kabarebe, General Mayor. 2. Kayumba Nyamwasa, General Mayor 3. Karenzi Karake, General de Brigada. 4. Fred Ibingira, General Mayor 5. Rwahama Jackson Mutabazi, Coronel .6. Jack Nziza (o Jackson Nkurunziza o Jaques Nziza), General de Brigada 7. Rugumya Gacinya, Teniente Coronel 8. Dan Munyuza, Coronel 9 Charles Kayonga, Teniente General 10. Joseph Nzabamwita, Teniente Coronel. 11.Ceaser Kayizari, General Mayor. 12. Erik Murokore, Coronel 13. Denys Karera, Mayor 14. Evariste Kabalisa, Capitán 15. Justus Majyambere, Mayor16. Evariste Karenzi, Subteniente 17. Alex Kagame, General de Brigada18.Charles Musitu, Coronel 19. Gasana Rurayi, Teniente Coronel 20. Samuel Kanyemera o Sam Kaka, General de Brigada 21. Twahirwa Dodo, Coronel 22. Firmin Bayingana, Teniente Coronel 23. Agustín Gashayija, General de Brigada 24. Wilson Gumisiriza, General de Brigada 25. Willy Bagabe, Coronel 26. Wilson Gabonziza, Teniente 27. Samuel Karenzezi, alias “viki”, Caporal 28. Joaquim Habimana, Capitán 29. Karara Misingo, Capitán 30. Alphonse Kaje, Capitán 31. Frank Bakunzi Capitán 32. Dan Gapfizi, General de Brigada 33. John Butera, Teniente 34. Charles Karamba Coronel 35. Matayo Capitán 36. Peter Kalimba, Coronel 37. Silas Udahemuka, Mayor 38. Steven Balinda, Mayor 39. John Bagabo, Coronel 40. Godefroid Ntukayajemo, alias “Kiyago”, Capitán see Juzgado Central de Instrucción No 4, Audiencia Nacional, Sumario 3/2.008-D, Auto. 80 Thalmann 2008, pp. 995–1002. 81 Press Release No 2007/11, 18 April 2007. 82 Commentator 2008. 83 Langer 2011.

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indictment was based on the crimes committed in the Democratic Republic of the Congo. It appears as if it were the Spanish indictments that triggered Rwanda to raise concerns about the abuse and misuse of the application of universal jurisdiction to the African Union. Perhaps the number of those indicted (40), their potential disruptive effect in the running of the Rwandan Government, combined with the fact that previously, France had not accepted the ICJ’s jurisdiction to settled a dispute arising from its application of universal jurisdiction, all contributed to the decision by Rwanda to mobilize the African Union member states to bring the issue to the United Nations General Assembly. It is apposite to highlight that Rwanda was not the only African State to be targeted by non-African judges in matters of international criminal jurisdiction in general, and universal jurisdiction in particular. In 2000, a Belgian investigating judge issued an international arrest warrant against Abdulaye Yerodia Mbombasi, The Democratic Republic of Congo’s former Minister of Foreign Affairs. The arrest warrant was based on the principle of universality. In response, The Democratic Republic of Congo opened proceedings against Belgium at the International Court of Justice. It argued that universal jurisdiction was not recognized by international law and that Belgium had violated norms and rules of international law regarding the immunity of foreign ministers. The case which became known as Arrest Warrant Case confirmed the existence of immunities from the criminal jurisdiction of other states for foreign ministers, diplomatic agents, heads of states and government. As shall be seen later in this chapter, this position by the International Court of Justice, which is based on the sovereign equality of states, became a shield used by several African States in opposing the unilateral application of universal jurisdiction against their government and state officials. In 2002, the Procureur de la République (District Attorney) of the Tribunal de grande instance de Meaux France, acting on a request from several human rights NGOs based in the Republic of Congo, ordered a preliminary inquiry into allegations of crimes against humanity and torture against Denis Sassou Nguesso, the President of the Republic of Congo and other senior Government officials.84 The Republic of Congo responded by instituting proceedings against France at the International Court of Justice. First, it argued that France had violated the principle of sovereign equality of states by, “unilaterally attributing to itself universal jurisdiction in criminal matters, and by arrogating to itself the power to prosecute and try the Minister of the Interior of a foreign State …” then second, it accused France of violating criminal immunity of a foreign Head of State, which it said was an “international customary rule recognized by the jurisprudence of the Court.”85 Earlier, we saw how Mauritania responded to the arrest of its top military officer while he was attending a training course in France.86 Instead of taking a legal route by approaching the International Court of Justice, as was the case with the Democratic 84

ICJ, Republic Of The Congo V. France Application instituting proceedings-Certain Criminal Proceedings in France, 9 December 2002. 85 Ibid. 86 Langer 2011.

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Republic of Congo and The Republic of Congo, Mauritania decided to impose a series of politically oriented retaliatory measures leading to the escape of their military officer.87 Such an approach is not unique considering that the United States and Israel also resorted to imposing political pressure against Belgium following the indictment of some of its top military officials for the invasion of Iraqi. The United States Secretary of Defense Donald H. Rumsfeld threatened to suspend funding to NATO headquarters in Brussels. He said Belgium “risked losing its status as host to the North Atlantic Treaty Organization’s headquarters.”88 When Rwanda’s pursuit for legal redress against France failed, it appears to have changed its approach from seeking legal intervention into adopting a political approach by taking the issue to the African Union. The African Union Assembly has since passed a total of six resolutions that are specific to the principle of universal jurisdiction.89 On universal jurisdiction, the African Union’s involvement followed a study recommended by Ministers of Justice and Attorney Generals at a meeting held in Addis Ababa, Ethiopia in April 2008. During the meeting, Tharcisse Karugarama, Rwandan Minister for Justice called on his colleagues “…to take the lead in speaking out loudly and resisting foreign domination through neo-colonial judicial coup d’état.”90 Speaking directly on the indictment of 40 Rwandan senior military officers, Karugarama accused Spanish judges of “exercising political power over independent sovereign states hiding behind ‘Judicial Independence’ intentionally abused to serve their neo-colonial ambitions to control and dominate the targeted countries.”91 In the declaration adopted at the meeting, the Ministers of Justice and Attorney Generals stated that the “The abuse of the principle of ‘universal Jurisdiction’ by some non-African States is a great affront to the sovereignty of States.”92 It then requested the Commission of the African Union to carry out a comprehensive legal study and make appropriate recommendations to the Assembly. The Commission presented the report to the Assembly of the African Union during the Eleventh Ordinary Session held in 2008 in Sharm El- Sheikh, Egypt. The Assembly of the African Union took note of the Report, which had outlined four recommendations on how to respond to the abuse and misuse of universal jurisdiction.93 The first recommendation was to explore legal redress before the International Court of Justice. As already discussed in this chapter, some African States had 87

Ibid. Craig S. Smith (2003) Rumsfeld Says Belgium Law Could Prompt NATO to leave, The New York Times, June 2003. 89 African Union Assembly, Assembly/AU/Dec.199 (XI), 30 June–1 July 2008; African Union Assembly, Assembly/AU/Dec.243(XIII) Rev.1 1–3 July 2009; African Union Assembly, Assembly/AU/Dec.292(XV), 27 July 2010; African Union Assembly, Assembly/AU/Dec.335(XVI), 30–31 January 2011. 90 Times Reporter (2008) https://www.newtimes.co.rw/section/read/46269 Accessed 12 January 2020. 91 Ibid. 92 Ibid. 93 African Union Assembly, Assembly/AU/Dec.199 (XI), 30 June -1 July 2008. 88

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already explored this avenue with mixed outcomes. The primary challenge or disadvantage for approaching the International Court of Justice is that it lacks automatic jurisdiction.94 It relies on the consent of the participants to a specific international legal dispute to be heard. States are usually reluctant to give such consent. The second recommendation was for African states to seek “political or diplomatic redress”. The report suggested that “African states can lodge diplomatic protests objecting to the abuse of universal jurisdiction by some states.” This appears to be the recommendation that was adopted and even embellished by the African Union. Initially the African Union launched a collective protest directed at the European Union, which was then followed by ensuring that the issue was discussed at the United Nations (as shall be discussed later in the chapter). The third recommendation, which is legal, was for the African Union to request for an advisory opinion from the yet to be operationalised African Court of Justice and Human Rights.95 Article 53 of the Protocol on the Statute of the African Court of Justice and Human Rights authorises the Court to “give an advisory opinion on any given legal question raised by the Assembly, The Parliament, the Executive Council…”96 Advisory opinions are not binding although they provide some solid and authoritative interpretation of international law, and in this case the scope and application of universal jurisdiction. The African Court of Justice and Human Rights never became operational, as its protocol failed to secure the number of required ratifications (15) for it to enter into force.97 The fourth recommendation was for the African States to refer cases to the International Criminal Court, under Article 14 of the Rome Statute.98 This recommendation was erroneous as only State Parties to the Rome Statute can make referrals to the International Criminal Court under Article 14.99 In addition, the states are permitted to refer ‘situations’ and not ‘cases’ to the International Criminal Court. Finally, the recommendation went against the general opposition that the African States were showing against what they claimed to be selective targeting of African individuals and personalities by the International Criminal Court. As such, encouraging any referrals would have been contradictory to the African Union’s position against the International Criminal Court’s involvement in the continent at the time. Eventually the African Union settled for the second recommendation, which focused on seeking political and diplomatic redress. It first resolved that the application of universal jurisdiction by judges from some non-African States against African

94

Ibid. Ibid. 96 Article 53, Protocol on the Statute of the African Court of Justice and Human Rights, opened for signature (1 July 2008). 97 As of 2022, the Protocol had 8 Ratifications. These were Algeria, Benin, Burkina Faso, Congo, Gambia, Libya, Liberia and Mali. 98 African Union Assembly, Assembly/AU/Dec.199 (XI), 30 June -1 July 2008. 99 See Article 14 ‘Referral of a situation by a State Party’ in the Rome State of the International Criminal Court opened for signature 17 July 1998, entered into force 1 July 2002, 2187 UNTS 3. 95

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leaders, particularly Rwanda, was a clear violation of the sovereignty and territorial integrity of targeted states.100 Further, the Assembly resolved that: The abuse and misuse of indictments against African Leaders have a destabilizing effect that will negatively impact the political, social, and economic development of States and their ability to conduct international relations.101

African Union members were instructed not to execute the arrest warrants issued by the non-African States judges. The intention here was to protect some of the Rwandan Officials who were among the list of those indicted by the Spanish judges and were serving in different capacities, including as ambassadors or envoys. For instance, in 2008 Lieutenant General Karenzi Kareke, who was indicted, was in the Darfur region of Sudan, serving as the Deputy Force Commander of the United Nations African Union Mission in Darfur (UNAMID).102 Rwanda was one of the first African states to contribute peacekeeping troops to Darfur. Although the chances for Sudan to execute the arrest warrant against General Kareke were remote, still such a resolution might have been necessary to protect him and others from being arrested while on Rwandan and African Union missions. To protect indicted African government officials serving on international missions or duty, the Assembly requested “all the UN Member States, in particular the EU states to impose a moratorium on the execution of those warrants until all the legal and political issues have been exhaustively discussed between the African Union, and the European Union and the United Nations.”103 The Chairperson of the African Union, who at the time was Jakaya Kikwete, the President of the United Republic of Tanzania, was requested to “table the matter before the United Nations (UN) Security Council and the UN General Assembly for consideration.” The request provided the basis upon which the Permanent Representative of the United Republic of Tanzania to the United Nations presented on behalf of the African Group the proposal for the inclusion of the scope and application of the principle of universal jurisdiction to the United Nations General Assembly: it was granted without a vote.104

7.5 African States’ Positions and Contributions During the Legal Committee (Sixth Committee) of the United Nations General Assembly (2009–2020) On 14 September 2009, the General Assembly decided to include the item “The scope and application of the principle of universal jurisdiction” on its agenda and 100

African Union Assembly, Assembly/AU/Dec.199 (XI), 30 June -1 July 2008. Ibid. 102 Commentator 2008. 103 African Union Assembly, Assembly/AU/Dec.199 (XI), 30 June -1 July 2008. 104 UN Doc A/63/PV.105 General Assembly official records, 14 September 2009. 101

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recommended that it be considered by the Sixth Committee (Legal) of the United Nations.105 The Sixth Committee (Legal) is one of the main six committees established by the United Nations General Assembly following Rule 96.106 It is the primary forum for the consideration of legal questions brought to the attention of the United Nations General Assembly. All of the member states of the United Nations are entitled to be represented in the Sixth Committee. This means all the 54 members of the African Group are entitled to participate and contribute to debates in the Sixth Committee. The fact that members participating in the Sixth Committee do so as representatives of their governments means that it is a typical political forum and their contributions represent the state official position on the subject-matter. This is in contrast to the International Law Commission where members sit in their capacity and not as representatives of their governments. As will be highlighted later, African States have been divided over the proposals to have the discussions on the scope and application of universal jurisdiction referred to the International Law Commission. Perhaps it is because they prefer having such discussions to be held in a political environment, where they have direct control of the proceedings and all of them can participate, hence have numerical advantage. Since 2009, the Sixth Committee (Legal), has been seized with the issue on the scope and application of the principle of universal jurisdiction and has had 12 sessions between 2009 and 2020. During this period, an approximate total of 35 African states provided their contributions and proposals.107 The states with consistent record of participation and submission are Algeria (12 Sessions), South Africa (12 Sessions), Sudan (11 Sessions), Burkina Faso, (10 Sessions) Egypt (10 Sessions), Kenya (10 Sessions), Senegal (9 Sessions), Ethiopia (7 Sessions), and Tunisia (6 Sessions). Angola, Congo, Equatorial Guinea, Malawi, Uganda, and Zimbabwe (1 Session). In the year 2018, a total of 19 African States submitted their comments and proposals during the Six Committee (Legal). This was the highest number of African states in attendance. The lowest attendance by African States was in 2015 and 2016 with only 8 African States in attendance. The reason behind the surge in the number of participants in 2018 is unclear. Perhaps the fact that the spike coincided with Rwanda President Paul Kagame’s chairpersonship of the African Union suggests he might have played a critical role in mobilising other member states into participating in the 105

UN Doc 63/568. The scope and application of the principle of universal jurisdiction, 14 September 2009. 106 UN Doc A/520/Rev.19 Rules of Procedure of the General Assembly, Rule 96 states that: The General Assembly may be established such committees as it deems necessary for the performance of its functions. The Main Committees of the General Assembly are the following: (a) Disarmament and International Security Committee (First Committee); Economic and Financial Committee (Second Committee); Social, Humanitarian and Cultural Committee (Third Committee); Special Political and Decolonization Committee (Fourth Committee); Administrative and Budgetary Committee (Fifth Committee); Legal Committee (Sixth Committee). 107 Based on the Sixth Committee (Legal) Reports the following States made submissions on the debate: Algeria, Angola, Botswana, Burkina Faso, Cameroon, Congo, Democratic Republic of Congo, Egypt, Equatorial Guinea, Ethiopia, Gabon, Gambia, Ghana, Guinea, Kenya, Libya, Lesotho, Mali, Malawi, Morocco, Mozambique, Mauritius, Nigeria, Rwanda, South Africa, Senegal, Sierra Leone, Sudan, Eswatini, Tanzania, Togo, Tunisia, Uganda, Zambia and Zimbabwe.

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debates. As already highlighted, Rwanda had brought the issue of abuse of universal jurisdiction to the African Union. In addition, it was in 2018, during the African Union Assembly’s Thirteenth Ordinary Session that a decision was made that: [T]he African Group and the Commission to ensure that decisions of the AU Policy Organs are conveyed during the discussions on Universal Jurisdiction in the Sixth Committee of the United Nations General Assembly and to make recommendations to the Summit on how to move this discussion forward in view of the apparent impasse in the Sixth Committee.108

In an act of showing compliance with the African Union Assembly decision, Mr. Amadou Jaiteh, First Secretary of the Permanent Mission of Gambia to the United Nations, delivered a statement on behalf of the Africa Group, which included the following: As stated in decisions of many African Union Summits, African states recognize that universal jurisdiction is a principle of international law … The African Group would like to most specifically reiterate the request by the African Heads of State and Government that the warrants of arrest issued based on the abuse of universal jurisdiction shall not be executed in any Member State. It is also to be noted that the African Union has urged its member states to use the principle of reciprocity to defend themselves against the abuse of universal jurisdiction.109

The decision by the African Union to urge its member states to resort to the principle of reciprocity had been reached during the Sixteenth Ordinary Session of the African Union Summit in 2012.110 Around that period, there was a concern from the African Union that it was not being heard and its calls were treated with disdain. It therefore seems that by encouraging its members to resort to the principle of reciprocity, the Assembly of the African Union had resigned to the Hobbesian state of nature in international relations: in international relations there is no external authority to either enforce agreements or protect the weak states, hence the best approach is self-help. Robert Keohane observed that under such circumstances states invoke reciprocity as “an appropriate standard of behavior which can produce cooperation.”111 If this observation is accurate, then the motivation behind the African Union invoking reciprocity was to force those non-African states to apply universal jurisdiction to cooperate, through some form of tit-for-tat strategy. In this case, African states were being called to also apply universal jurisdiction against European nationals. This claim is based on an inaccurate assumption of equivalence in terms of capacity to mount investigations, prosecutions and issue arrest warrants between the African 108

African Union Assembly EX.CL/1068 (XXXII), 28–29 January 2018. Statement on behalf of the African Group by Mr. Amadou Jaiteh First Secretary of the Permanent Mission of the Gambia to the United Nations before the Sixth Committee 73rd Session of the United Nations General Assembly under Agenda Item 87 "The scope and application of the principle of universal jurisdiction", New York, 18 October 2018. 110 African Union Assembly (n 90). The Assembly requested its member states to ‘Apply the principle of reciprocity on countries that have instituted proceedings against African State Officials and to extend mutual legal assistance to each other in the process of investigation and prosecution of such cases’. 111 Keohane 1986. 109

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and European States. In general, European States have shown great caution in as far as extraditing African individuals accused of committing atrocity crimes from their capitals to face trial in Africa. This point was raised by Rwanda during the Sixty-seventh Session when it is observed that “many of the masterminds of the 1994 Rwanda genocide remained at liberty around the world, enjoying impunity; few had been brought to justice under universal jurisdiction.”112 Mr. Edu Mbasogo, representative of Equatorial Guinea, observed that international warrants issued by African Judges were not executed in any non-African State. He cited how his country “had issued an international warrant for the arrest and extradition of Mark Thatcher, a British national who had instigated and perpetrated mercenary terrorist acts against the State of Equatorial Guinea, he had not been arrested or extradited to Equatorial Guinea”.113 African legal experts involved in the drafting of the Cairo-Arusha Principles of Universal Jurisdiction identified that the costs of exercising universal jurisdiction could deter African states from applying universal jurisdiction. Professor Shadrack Ghutto from South Africa questioned: “What would happen if an African State like Djibouti would prosecute let us say a national of the United States for crimes against humanity? The prosecuting State would either be bombed or will not receive aid from the World Bank.”114

7.6 Africa’s Recognition of the Principle of Universal Jurisdiction and Its Commitment to Fighting Impunity When Tanzania proposed the inclusion of an item “scope and application of the Principle of Universal Jurisdiction” to the United Nations General Assembly’s Agenda, on behalf of the African Group, it also submitted an explanatory memorandum, which affirmed African States’ recognition of the principle of universal jurisdiction.115 The explanatory memorandum set the scene and the tone for the majority of the African States’ contributions and proposals during the debates in the Sixth Committee. It presented the African States’ position in favour of the conditional application of the principle of universal jurisdiction. The explanatory memorandum states that “Many African States have expressed approval of the principle of universal jurisdiction on a treaty basis, and existing practice shows that many states establish a jurisdictional link with the commission and punishment of such crimes as genocide, crimes against humanity and war crimes”.116 It further pointed out that the principle of universal 112 United Nations General Assembly, Sixth Committee, (Rwanda) Official Records A/C.6/67/SR.13, 21 October 2009 para 32. 113 United Nations General Assembly, Sixth Committee, (Equatorial Guinea) Official Records A/C.6/68/SR.14, 18 October 2013 para 24. 114 Kwakwa 2002. 115 UN Doc, A/63/237/Rev 1, 29 June 2009. 116 Ibid.

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jurisdiction had not crystallized in international law: its components, especially scope and application, were still a bone of contention. Although they had misgivings on the manner in which it had been applied, individual African states speaking in the Sixth Committee acknowledged the existence of universal jurisdiction as a mechanism for ending impunity. Mr. Bugingo Rugema from Rwanda submitted that “Universal jurisdiction was vital to the fight against impunity.”117 Egypt regarded it as an important means of ensuring that those who committed genocide, war crimes, crimes against humanity, slavery and torture were brought to justice.118 Apart from acknowledging that the principle of universal jurisdiction is a part of international law, the African Union claims that it “respects this principle, which is enshrined in Article 4 (h) of the Constitutive Act.” 119 This is a curious claim considering that universal jurisdiction is a purely state-centric principle, whereas Article 4 (h) outlines the obligations of a regional body, the African Union. Universal jurisdiction authorises individual states and not regional bodies, such as the African Union to exercise criminal jurisdiction. Such an understanding of the relationship between state-centrism and the application of universal jurisdiction is reflected in the Arusha-Cairo Principles of Universal Jurisdiction. Principle 3 of the Arusha-Cairo Principles outlines where responsibility in the application of universal jurisdiction lies. Principle 3 states: States shall adopt measures, including legislative and administrative, that will ensure that their national courts can exercise universal jurisdiction over gross human rights offenses, including, but not limited to, those contained in the Rome Statute of the International Criminal Court.120

It is however a common practice that regional organizations recognize universal jurisdiction, although they would maintain that the responsibility to apply it lies with the sovereign state. A case in point is the European Parliament of the European Union. In 2018, when the European Parliament passed a resolution on the situation in Syria, it reiterated its support for the principle of universal jurisdiction in tackling impunity and welcomed the steps taken by some EU Member States to this effect.121 The other challenge with the African Union’s position is that if Article 4 (h) embodies its recognition and respect for the principle of universal jurisdiction, it is supported by neither its own African States practice, nor scholarly commentary 117 United Nations General Assembly, Sixth Committee, (Rwanda) Official Records A/C.6/64/SR.13, 21 October 2009 para 31. 118 United Nations General Assembly, Sixth Committee, (Egypt) Official Records A/C.6/65/SR.10, 13 October 2010 para 68, see also United Nations General Assembly, Sixth Committee, (Rwanda) Official Records A/C.6/65/SR.11, 13 October 2010 para 4 stating that: His delegation did not take issue with the principle of universal jurisdiction itself, as a means of eradicating impunity for serious crimes, but with its abuse, as individual judges with political agendas issued arrest warrants in violation of all rules of judicial procedure. 119 UN Doc A/63/237/Rev 1 29 June 2009. 120 Kwakwa 2002. 121 European Parliament Doc P8_TA (2018) 0090 Situation in Syria, European Parliament resolution of 15 March 2018 on the situation in Syria (2018/2626 (RSP).

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of the provision. To begin with, the provision creates an obligation to the African Union as it gives the Union the right to intervene in a Member State, “according to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity.”122 The intervention has to be based on a decision by the Assembly, the supreme organ of the Union. This is composed of heads of states and governments or their duly accredited representatives, which means it’s essentially a political body. In fact, in 2003 an additional protocol on the amendments to the Constitutive Act of the African Union was adopted to expand Article 4 (h) by adding that the African Union Peace and Security Council, another political organ, should make a recommendation to the Assembly on whether to intervene or not.123 Although the protocol has not entered into force, what it is proposing makes the application of universal jurisdiction purely a political and not a judicial issue. Judge Abdulqawi A. Yusuf indicated that the inclusion of this provision marks a paradigm shift by Africa’s continental body from a conservative non-interference doctrine to a more liberal interventionist approach.124 The provision is considered to be a positive innovation and shows Africa’s commitment to humanitarian intervention.125 This is as far as it goes, as there are still huge operational gaps to be filled for it to achieve the intended purpose, ending impunity from the AU’s initiatives. The Arusha-Cairo Principles interpret Article 4 (h) as giving rise to “prosecution under the principle of universal jurisdiction.”126 Such an interpretation would be consistent if one is to consider the Report of the International Commission on Intervention and State Sovereignty that identified three broader forms of intervention: (a) political, economic, or other sanctions; (b) international criminal prosecution; and (c) military intervention for humanitarian ends.127 However, under the African Union, it seems intervention referred to in Article 4 (h) is purely military intervention and peace support operations. This is evidenced by the function of the Peace and Security Council which was established to be “the standing decision-making organ for prevention, management and resolution of conflicts.”128 One of the functions of the Peace and Security Council is to provide peace support operations and interventions according to Article 4 (h) and (j) of the Constitutive Act. Further, the purpose behind the establishment of the African Standby Force cements the view that Article 4 (h)’s primary focus is military intervention. Article 13 of the Protocol Relating to the Establishment of the Peace and Security Council of African Union states that the African Standby Force shall be established to “enable the Peace and Security 122

OAU Doc CAB/LEG/23.15 Constitutive Act of the African Union (2000) Principle 4 (h). Not yet in force. 124 Yusif 2015, p. 335. 125 Gray 2018, p. 56. 126 Kwakwa 2002. 127 See the Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty, International Development Research Centre, Ottawa, 2001, 16. 128 African Union, Protocol Relating to the Establishment of the Peace and Security Council of African Union, Adopted by the 1st Ordinary Session of the Assemble of the African Union, 9 July 2002. 123

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Council to perform its responsibilities concerning the deployment of peace support missions and intervention according to Article 4 (h) and (j) of the Constitutive Act.” Therefore it appears inaccurate for the African Union to directly associate Article 4 (h) with universal jurisdiction.

7.7 African States’ Qualified Recognition of Universal Jurisdiction and Insistence on the Respect of the Sovereign Equality of States African States that submitted their positions and proposals during Sixth Committee meetings showed overwhelming support, yet qualified recognition of the universality principle. The Universality principle was accepted as a vital tool to end impunity, however the majority of states insisted that its application needed to comply with other principles governing international relations, such as sovereign equality of states and immunity. Ms. Jeanne d’ Arc Byaje, Deputy Permanent Representative, Permanent Mission of the Republic of Rwanda to the UN expressed these sentiments when she delivered a Rwandan speech during a Sixth Committee plenary session. She said the purpose of universal jurisdiction is to “ensure that perpetrators of heinous crimes did not enjoy impunity anywhere in the world.” She elaborated that although “her Government supported the appropriate exercise of universal jurisdiction, it strongly rejected the misuse of indictments … such indictments violated the principle of sovereign equality of States and the immunity of Heads of States and other high ranking State officials…”129 Mrs. Nour Zarrouk Boumiza, First Secretary, Permanent Mission of Tunisia, expressed the same view when she said that “universal jurisdiction was an important mechanism for strengthening the rule of law, ensuring equitable justice and ending impunity, However, it must be exercised in strict conformity with the Charter of the United Nations and the basics of international law, as such the sovereign equality of states and only in exceptional circumstances and without selectivity of abuse.”130 The need for states to balance the exercising of their right to apply universal jurisdiction and respecting other international law norms and rules as enshrined in the Charter of the United Nations, especially sovereign equality, was a common position raised by several African delegates throughout several plenary sessions in the Sixth Committee.131

129

United Nations General Assembly, Sixth Committee, (Rwanda) Official Records A/C.6/69/SR.12, 15 October 2014 para 26. 130 United Nations General Assembly, Sixth Committee, (Tunisia) Official Records A/C.6/68/SR.13, 17 October 2013 para 60. 131 United Nations General Assembly, Sixth Committee, (Algeria) Official Records A/C.6/68/SR.13, 17 October 2013 para 1; United Nations General Assembly, Sixth Committee, (Kenya) Official Records A/C.6/69/SR.12, 15 October 2014 para 50; United Nations General Assembly, Sixth Committee, (Mozambique) Official Records A/C.6/67/SR.13, 18 October 2012.

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The assertion by the African States on the need to respect the principle of sovereign equality reflects an attempt to protect themselves from being treated with condescension because of their weak position by the economic and militarily powerful states. The events which occurred following the Assembly of African Union’s adoption of its first decision on The Abuse of the Principle of Universal Jurisdiction during the Eleventh summit in January 2008, must have generated a feeling among African States that their voices and concerns were falling on deaf ears and were not treated as equal members of the United Nations. In the decision, the Assembly had requested that UN Members States, EU States to “impose a moratorium on the execution of those warrants ….” However, in November 2008 German authorities executed the Spanish warrant of arrest by detaining and extraditing Ms. Rose Kabaye, the Chief of Protocol to the President of the Republic of Rwanda to France. In June 2015, General Karenzi Karake, who at that time was the Director-General of the National Intelligence and Security Services in Rwanda was arrested at Heathrow Airport, United Kingdom. Such continued disregard of African Union’s requests for a moratorium and dialogue could have created anxiety and a sense of vulnerability to the actions of powerful states, who could behave as they wish against African States. The African Union’s Peace and Security Council expressed such concern when it issued a strongly worded communique protesting and demanding unconditional release of Lt. General Karenzi Karake on 28 June 2015.132 After expressing that the arrest was “not only an attack on a Rwandan national but on Africa,” it further stressed that the abuse of universal jurisdiction “threatens to reverse the hard-won security and stability in Rwanda and Africa as a whole.” The Peace and Security Council claimed that arrest warrants were an “attempt to subordinate African legal systems to those of non-African states”.133 Both the positions of African States and the stance of the Peace and Security Council reveals two main approaches that the African States adopted as they pushed back on what they viewed to be an abuse of universal jurisdiction. The first is that they value international law as their main source of protection. Unlike the United States, which flexed its muscles to arm-twist Belgium into changing its universal jurisdiction laws, African States were aware of their handicap in using such an approach. They simply lack the political and economic leverage, hence African States resorted to international law. Article 2 paragraph 1 of the Charter of the United Nations states that the United Nations organization is based on “the principle of the sovereign equality of all its Members.”134 African States and the non-African States that had issued arrest warrants under universal jurisdiction are members of the United Nations, hence they were expected to treat each other as equals in compliance with Article 2 (1). Sovereignty entails that individual states reign supreme over their territory including exercising territorial jurisdiction. In addition, sovereign states are not expected to accept orders or interference from any external authority. 132

Institute for Security Studies 2015; Peace & Security Council, Report Issue 27, 8. Ibid. 134 See Article 3 paragraph 1 of the Charter of the United Nations opened for signature (26 June 1945) and entered into force (24 October 1945) 892 UNTS 119 Article 2 para 1. 133

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Closely linked to the concept of sovereignty is legal equality of states, which is understandably favoured by the African States and many other states that are politically and economically weak. Legal equality ensures that all sovereign states, no matter how small or big, are not expected to accept orders from any other state. The two, sovereignty and equality, provide a much-needed shield for African States from potential external interference, domination, and pressure from the politically and economically powerful members of the United Nations. Perhaps this explains why the African States insisted that the application of universal jurisdiction needed to be based and guided by the Charter of the United Nations where sovereign equality of states is sacrosanct. Abdelazia Bouteflika, the Algerian President, explained why African States tend to jealously guide their sovereignty: We do not deny that the United Nations has the right and the duty to help suffering humanity, but we remain extremely sensitive to any undermining of our sovereignty, not only because sovereignty is our last defense against the rules of an unequal world, but because we are not taking part in the decision-making process of the Security Council.135

The second approach, which seems to be again based on the reality of Africa’s weakness in the international system, is that instead of leaving Rwanda to deal with the United Kingdom and Spain on a bilateral basis, the African Union decided to make it a continental issue involving the entire continent. There seems to be a subtle concern by the African States that European and Western powers, in general, still treat African States with less respect. This is reflected in the demand by African States for compliance with the principle of sovereign equality of states. African States are paranoid that they are treated as less important members in the international system. This is also echoed in some of the direct diplomatic interactions between African and Western European States. For instance, immediately after the Spanish judge issued international arrest warrants for 40 Rwandan military officers, Rwanda was uneasy about how some of its bilateral partners, such as the United States, were going to react. The international arrest warrants had created obligations for other states to arrest and extradite top Rwandan military officers. In this case, Rwanda was not sure whether its partners would honour the arrest warrants at the expense of their bilateral obligations. For instance, Wikileaks cable reveals how Rosemary Museminali, Rwandan Foreign Minister had approached the United States Embassy in Kigali to express her fears that extradition obligations between the United States and Spain would put bilateral relations between the United States and Rwanda “in a lower position.”136

135

Weiss 2004, p. 141. See Foreign Minister on Spanish Indictments and Travel by Senior Rwandans, 2 April 2008, Public Library of US Diplomacy, 08KIGALI237_a Wikileaks.org.

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7.8 Immunity and the Application of Universal Jurisdiction Several African States raised the need for those applying universal jurisdiction to respect the immunity of government and state officials. Immunity, under international law, exempts certain individuals from criminal liability.137 International Court of Justice judgment in the Congo v. Belgium (Arrest Warrant Court) case had observed that “in international law, it is firmly established that, as also diplomatic and consular agents, certain holders of high-ranking office in a state, such as the Head of State, Head of Government and Minister of Foreign Affairs, enjoy immunities from the jurisdiction in other States, both civil and criminal.”138 The Vienna Convention on Diplomatic Relations ratified by all African Union member states139 explains that the purpose of diplomatic privileges and immunities is “not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States.”140 It further explains that only the sending states may waive such immunity. State practice confirms that sitting heads of State and Governments enjoy immunities. In 2001, the French Cour de Cassation ruled that the French judiciary lacked criminal jurisdiction over Gaddafi since he had immunity as the Libyan Head of State. What is curious is that the Assembly of the African Union did not use immunity as its first line of defense against the abuse of the principle of universal jurisdiction. Its first two decisions at the Eleventh and Twelfth summits overlooked the fact that some of the targeted African States and government officials might have been exempted from prosecution in foreign jurisdictions as had been confirmed in the Arrest Warrant Case. Reference to immunity appeared in the Assembly decisions on the abuse of the Principle of Universal Jurisdiction after the thirteenth Assembly. At the thirteenth summit, the Assembly called upon “… All concerned States to respect international law and particularly the immunity of state officials when applying the Principle of Universal Jurisdiction.”141 137

Garner 2009. Judgement International Court of Justice, ‘Case Concerning the Arrest Warrant of 11 April 2000’ Democratic Republic of the Congo v. Belgium, 14 February 2002. 139 Algeria (1964), Angola (1990), Benin (1967), Botswana (1969), Burkina Faso (1987), Burundi (1968), Cabo Verde (1979), Cameroon (1977), Central African Republic (1973), Chad (1977), Comoros (2004), Congo (1963), Côte d’Ivoire (1962), Democratic Republic of the Congo (1965), Djibouti (1978), Egypt (1964), Equatorial Guinea (1976), Eritrea (1997), Eswatini (1969), Ethiopia (1979), Gabon (1964), Gambia (2013), Ghana (1962), Guinea (1968), Guinea-Bissau (1993), Kenya (1965), Lesotho (1969), Liberia (1962), Libya (1977), Madagascar (1963), Malawi (1965), Mali (1968), Mauritania (1962), Mauritius (1969), Morocco (1968), Mozambique (1981), Namibia (1992), Niger (1962), Nigeria (1967), Rwanda (1964), Sao Tome and Principe (1983), Senegal (1972), Seychelles (1979), Sierra Leone (1962), Somalia (1968), South Africa (1989), Sudan (1981), Togo (1970), Tunisia (1968), Uganda (1965) United Republic of Tanzania (1962), Zambia (1975), and Zimbabwe (1991). 140 Vienna Convention on Diplomatic Relations (adopted 18 April 1961), entered into force on 24 April 1964, 500 UNTS 95. 141 African Union, Decision on the Abuse of the Principle of Universal Jurisdiction Doc. Assembly /AU/11 (XIII). 138

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The situation was different in the plenary of the Sixth Committee where several African States stressed the need for the respect of immunity of state officials. Such states used the International Court of Justice’s judgment in the Arrest Warrant Case to justify their stance against the indictment of African States and governmental officials. The Sudanese delegate referred to the judgment when he recalled that “in the opinion of the International Court of Justice, the immunity granted to Heads of State and Government and other government officials under international law was beyond question.”142 Thembile Elphus Counsellor, Legal Affairs Officer at the Permanent Mission of the Republic of South Africa to the United Nations, mentioned temporal immunities of heads of states among several issues which remained unresolved about universal jurisdiction.143 He stated that “Despite the consensus that universal jurisdiction was an important principle in combating impunity, some issues remained unresolved: the definition of the principle …the temporal immunity of Heads of States, the assurance of due process and fairness in national proceedings based on universal jurisdiction.”144 Kelebone Maope, the Ambassador Extraordinary and Plenipotentiary Permanent Representative of the Kingdom of Lesotho, shared the same sentiments with those of the South African Representative. 145 The position expressed in the statements of South Africa and Lesotho pointed out the unsettled nature of immunity in as far as the application of universal jurisdiction was concerned. However, the delegate from Algeria, Mr. Belaid, was categorical in expressing that universal jurisdiction should be “applied in good faith in accordance with principles of international law, such as State sovereignty … the immunity of incumbent Heads of States and Government.”146 Ethiopian delegate, Mr. Tesfaye expressed the views that immunity should not only be respected by states but also by international institutions. He said, “International organs exercising universal jurisdiction were customarily bound to take into account the immunity of States officials under international law and the same was true of the Member States, which were duty-bound to refrain from prosecuting officials entitled to such immunity.”147 Ethiopia was sceptical of the application of universal jurisdiction against “sitting African leaders and other high-ranking officials in violation

142

United Nations General Assembly, Sixth Committee, (Sudan) Official Records A/C.6/70/SR.12, 20 October 2015 para 13. 143 United Nations General Assembly, Sixth Committee, (South Africa) Official Records A/C.6/68/SR.13, 17 October 2013. 144 Ibid. 145 United Nations General Assembly, Sixth Committee, (Lesotho) Official Records A/C.6/68/SR.14, 18 October 2013 para 29. 146 United Nations General Assembly, Sixth Committee, (Algeria) Official Records A/C.6/68/SR.13, 17 October 2013. 147 See United Nations General Assembly, Sixth Committee, (Ethiopia) Official Records A/C.6/67/SR.12, 17 October 2012.

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of the immunity granted to them under international law.” 148 For Rwanda, disrespecting the immunity of heads of states and other high ranking state officials was not only a violation of international law but also an undermining of “the dignity of those indicted”.149 What is evident from the submissions from the African States is the lack of a common position on the issue of immunities. Some states share the South African position, which is that immunity, especially for international crimes, remains an unsettled component of universal jurisdiction. At the same time, there are states like Rwanda which view immunity in absolute terms and one that must be respected. Such a position reflects the current status and practices and debates at states level, that of the International Criminal Court and the International Court of Justice.

7.9 African Approaches to the Application of Universal Jurisdiction As mentioned earlier, the application of universal jurisdiction is a pure example of how international law, in general, and international criminal law is decentralised and enforced by individual states. In the words of Cassese quoting German jurist H. Triepel, “international law is like a field marshal who can only give orders to generals. It is solely through the general that his orders can reach the troops. If the general does not transmit them to the soldiers in the field, he will lose the battle.”150 States have to apply universal jurisdiction through their domestic legal systems if impunity is to be ended. A survey of how national legal systems have incorporated and applied universal jurisdiction shows a lack of uniformity, both in the scope and in its application. Several African States base their enforcement of universal jurisdiction on international treaties. This means that they have ratified and domesticated international treaties which gives them the right to apply universal jurisdiction. The basis on which Senegal, Togo, Burkina Faso, Kenya, and South Africa apply universal jurisdiction is through the ratification of the Geneva Conventions of 1949, Convention against Torture of 1986, and the Convention against the Crime of Genocide (1948). Ethiopia also recognizes universal jurisdiction based on its obligations under international treaties. Its 2004 Criminal Code provides for the criminal jurisdiction over crimes committed outside Ethiopia against international law or universal order. Article 17 states that Ethiopia can prosecute (1) Any person who has committed outside Ethiopia: (a) a crime against international law or an international crime specified in Ethiopian legislation, or an international treaty or a convention to which Ethiopia has adhered; or 148

See United Nations General Assembly, Sixth Committee, (Ethiopia) Official Records A/C.6/69/SR.12, 15 October 2014. 149 United Nations General Assembly, Sixth Committee, (Rwanda) Official Records A/C.6/69/SR.12, 15 October 2014. 150 Cassese 1986, p. 15.

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(b) a crime against public health or, morals specified in Articles 525, 599, 635, 636, 640 or 641 of this Code.151

What could be of interest in the case of Ethiopia is that its definition of genocide differs from the one provided for in the Genocide Convention, in that it adds the political group to the list of protected groups.152 Article 281 of the Ethiopian Penal Code states that a crime of genocide involves the “…intent to destroy, in whole or in part, a national, ethnic, radical, religious or political groups…” 153 This creates a legal lacuna, in the sense that an individual might find him/herself facing charges of genocide involving killing political groups in Ethiopian courts, when that would not be possible in any other domestic system. This somehow could lead to contestations over legal certainty which could undermine the legitimacy of universal jurisdiction. The statements presented during the Sixth Committee indicate that some African States either apply the principle of universality indirectly or do not recognize it altogether. For instance, the Moroccan delegate stated that “while Moroccan law did not recognize the principle of universal jurisdiction, it did contain a number of provisions that came within its scope.”154 In Morocco, the principle of territoriality and personality are the primary sources of jurisdiction. The Democratic Republic of Congo has no “national law on universal jurisdiction.”155 Similarly, Zimbabwe does not have “legislation that expressly relates to universal jurisdiction”.156 In relation to the two versions in the application of universal jurisdiction, absolute universal jurisdiction and conditional universal jurisdiction, African States appear to prefer the latter as it is the former which has triggered uncertainty in the current international discourse about universal jurisdiction.157 Under absolute universal jurisdiction, which is also considered as pure universal jurisdiction, states have the right to prosecute a limited set of offenses, wherever they are committed by whoever and irrespective of any other traditional jurisdictional link to the forum state; for instance, the nationality of either the victims or the perpetrators.158 Some states take absolute universal jurisdiction to mean the removal of preconditions including that the alleged perpetrator is present in their territories to apply universal jurisdiction.159 The drafters of Princeton Principles were not categorical on whether the alleged 151

The Criminal Code of the Federal Democratic Republic of Ethiopia, Proclamation No. 414/2004. See also, A/C.6/68/RS.13. 152 The Panel Code of Ethiopia, No. 158 of 1957. 153 Ibid. 154 See United Nations General Assembly, Sixth Committee, (Morocco) Official Records A/C.6/69/SR.12, 15 October 2014. 155 See United Nations General Assembly, Sixth Committee, (The Democratic Republic of the Congo) Official Records A/C.6/69/SR.11, 15 October 2014. 156 Statement Delivered by His Excellency Ambassador Frederick M.M. Shava, Permanent Representative of the Republic of Zimbabwe To The United Nations Before the Sixth Committee 75th Session of the United Nations General Assembly On Agenda Item 87: “The Scope and Application of the Principle of Universal Jurisdiction” 27 October 2020. 157 Turns 2004. 158 Office of Communications 2001. 159 Langer 2011.

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perpetrator needed to be present in the territory of the prosecuting state. Part of the reason was “to allow for further discussion, partly to avoid stifling the evolution of universal jurisdiction and out of deference to pending litigation in the International Court of Justice.”160 On the flip side, the second version of conditional universal jurisdiction, requires that the alleged perpetrator is present in the territory of the prosecuting states.161 This is considered to be a narrow conditional form of jurisdiction and Jalloh points out that this “appears to enjoy greater support, at least among scholars.”162 Kenya’s national law on universal jurisdiction requires the presence of the accused on the Kenyan territory.163 Similarly, Senegalese law requires that “the accused must be present in Senegalese territory, either under arrest or after extradition, or one of his or her victims must reside in Senegal.”164 The requirement is a result of an amendment to Senegal’s Code of Criminal Procedure in 2007 as part of the domestication of the Rome Statute. The amendment addressed the procedural and substantive issues necessary for the successful implementation of conditional universal jurisdiction. The amendment states: Tout étranger qui, hors du territoire de la République s’est vu reproché d’être l’auteur ou le complice d’un des crimes visés aux articles 431-1 à 431-5 du code pénal, d’un crime ou délit d’attentat à la sûreté de l’Etat ou de contrefaçon du sceau de l’Etat, des monnaies nationales ayant cours ou d’actes visés aux articles 279-1 à 279-3, 295-1 du code pénal peut être poursuivi et jugé d’après les dispositions des lois sénégalaises ou applicables au Sénégal, s’il se trouve sous la juridiction du Sénégal ou si une victime réside sur le territoire de la République du Sénégal, ou si le gouvernement obtient son extradition.165

The amendment provided the legal framework for the successful trial, conviction, and sentencing of former Chadian President Hissène Habré by the Extraordinary African Chambers in Senegal. The Chambers was established within the Senegal 160

Office of Communications 2001. The case referred to was Belgium v Democratic Republic of Congo. 161 Langer 2011. 162 Jalloh 2010. 163 Statement by Susan W. Mwangi, Acting Deputy Permanent Representative/Minister Counsellor of the Republic of Kenya to the United Nations to the Sixth Committee on Agenda Item 84 ‘The Scope and Application of the Principle of Universal Jurisdiction’ during the 74th Session to the United Nations General Assembly, 16 October 2019. 164 See United Nations General Assembly, Sixth Committee, (Senegal) Official Records A/C.6/72/SR.13, 11 October 2017. 165 Loi n° 2007-05 du 12 février 2007 modifiant le Code de procédure pénale relative à la mise en oeuvre du Traité de Rome instituant la Cour pénale internationale. Official Translation ‘Any foreign national who, outside Senegalese territory, has been accused of committing or aiding in the commission of any of the crimes mentioned in Articles 431-1 to 431-5 of the Criminal Code, an offence against the security of the State or forgery of the State seal or national currency, or of the acts referred to in Articles 279-1 to 279-3 and 295-1 of the Criminal Code, may be prosecuted and tried under Senegalese law or laws applicable in Senegal if he or she is arrested in Senegal, if a victim resides in Senegalese territory or if the Government secures the alleged offender’s extradition.’ See Republic of Senegal, Ministry of Justice Directorate of Human Rights, Information and observation on the scope and application of universal jurisdiction, 17-08094E.

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judicial system to prosecute the main perpetrator(s) of the crimes and serious violations of international law committed in Chad between 7 June 1982 and 1 December 1990. The Chambers found Hissène Habré guilty of crimes against humanity, war crimes, and torture including rape. He was sentenced to life imprisonment. The trial has been hailed as the first application of universal jurisdiction against a former Head of State in Africa.166 In South Africa, the Implementation of the Rome Statute of the International Criminal Court Act of 2002, Section 4 (3) in particular, forms the legal basis and outlines the modalities for the implementation of universal jurisdiction.167 The Act of 2002 states that for South African judicial authorities to establish jurisdiction over a suspect of war crimes, crimes against humanity, and genocide, the following conditions should be met: (a) that person is a South African citizen; or (b) that person is not a South African citizen but is ordinarily resident in the Republic; or (c) that person, after the commission of the crime is present in the territory of the Republic; or (d) that person has committed the said crime against a South African citizen or against a person who is ordinarily resident in the Republic.168 In 2014, the South African Constitutional Court interpreted this provision to mean that the presence of the suspect on South African territory was only required at the trial stage and not during the investigation stage.169 It argued that “It would appear that the predominant international position is that presence of a suspect is required at a more advanced stage of criminal proceedings when a prosecution can be said to have started.”170 In this regard, the Constitutional Court did not see any legal problems in conducting anticipatory investigations. That is, opening investigations in the absence of the suspect in South Africa, anticipating that they will visit and get arrested. On one hand, such an approach sounds applaudable and pro-accountability, however on the other hand, it could flood the South African justice system with requests for investigations, which will not lead to any trials as the suspect might never return to or visit South Africa. Another aspect, where African States’ submissions and positions showed a lack of uniformity, is in the nature of crimes they consider to fall under universal jurisdiction. Although war crimes, genocide, and crimes against humanity appear to be common crimes over which states are ready to exercise universal jurisdiction. There is a divergence of views and approaches concerning other crimes. Ethiopia’s

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Republic of Senegal, Ministry of Justice Directorate of Human Rights, Information and observation on the scope and application of universal jurisdiction, 17-08094E. 167 Republic of South Africa, No. 27 of 2002: Implementation of the Rome Statute of the International Criminal Court Act, 2002. 168 Ibid. 169 Constitutional Court of South Africa, National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre and Another, Judgement 30 October 2014. 170 Ibid., para 47.

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list of crimes include terrorism, money laundering, illicit drug production and trafficking, production of indecent pictures and publications.171 Togo adds the crime of apartheid to its list of serious crimes falling under universal jurisdiction. The other crimes are war crimes, crimes against humanity, and genocide.172 Senegal recognizes offenses against the security of State, forgery of the State seal or national currency, acts of terrorism, attacks, plots and other crimes against the authority of the State or the integrity of the national territory, crimes likely to disrupt public order, and acts of torture as violations, which could also give rise to the exercise of universal jurisdiction.173

7.10 African Union Model National Law on Universal Jurisdiction Over International Crimes During the Seventy-first Session of the Sixth Committee, Professor Vincent O. Nmehielle, the AU’s Legal Counsel and Director, forwarded to the Sixth Committee the African Union Model National Law on Universal Jurisdiction over International Crimes (“The AU Model National Law”).174 The AU Model Law had been adopted by the AU Executive Council in 2012 as one of the outputs from several “steps taken by the AU Commission to follow-up on various Assembly Decisions on the Abuse of the Principle of Universal Jurisdiction…”175 The AU Assembly welcomed the development of the AU Model Law and encouraged “the Member States to fully take advantage of this Model National Law to expeditiously enact or strengthen their National Laws in this area.”176 What is curious is that this statement was included in a decision of the African Union Assembly targeting the International Criminal Court, instead of a decision focusing on the implementation of universal jurisdiction, as had been the practice before. Professor Dapo Akande described such an anomaly as ‘odd’.177 Perhaps it is a reflection of the general perception among some African States that both the International Criminal Court and the abuse of universal jurisdiction were similar in as much as they arguably “selectively targeted Africa”. What is also absurd is that there was very little reference to the Model National Law during the plenary Sessions in the Sixth Committee. The two states that mentioned the Model 171

Statement by Sufian Hussein Mohammed, Legal Counselor, Ministry of Foreign Affairs of the Federal Democratic Republic of Ethiopia on The Scope and Application of the Principle of Universal Jurisdiction, 16 October 2019. 172 See United Nations General Assembly, Sixth Committee, (Togo) Official Records A/C.6/72/SR.13, 11 October 2017 para 63. 173 Republic of Senegal, 13 December 2016. 174 African Union BC/OLC/22589/66.5-2/306.16, 10 February 2016. 175 African Union Executive Council Ex.cl/dec.731 (xxi (c), 2012 African Union Model National Law on Universal Jurisdiction over International Crimes. 9–13 July 2012. 176 African Union Assembly, Decision on the Implementation of the Decisions on the International Criminal Court (ICC) doc. ex.cl/731(xxi). 177 Akande 2012.

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National Law in 2012 were the Democratic Republic of Congo and Angola. The Democratic Republic of Congo viewed it as a useful tool to strengthen domestic law for the prosecution of international crimes.178 Mr. Gaspar Martins of Angola pointed out that the model law served to overcome constraints arising from the application of the principle of universal jurisdiction.179 During the Seventy-first Session, when the African Union presented the Model National Law, there was not even a single mention of it by the African delegates. This includes the South African delegation, which delivered a statement on behalf of the African Group.180 In 2019, Ethiopia made a passing statement on the Model National Law when it stated that “the African Union adopted a model law on universal jurisdiction to assist states apply the principle for the intended goal.”181 If one is to compare the investment by the African Union Ministers of Justice and Attorney Generals and the African Union Commission in the development of the National Model Law to the level at which states referred to it during the Sixth Committee Session, one can see a huge discrepancy. It is unclear why this could be the case, but it reflects some level of disconnect between what is done at the continental level in Addis Ababa with what is expressed at the United Nations. It is important that the African States project one voice with consistency to influence international policies. The steps taken by the African Union to develop the Model National Law are not unique and it is common practice during and after the drafting of international treaties. States usually require legal and technical assistance to adapt their domestic legislation to new international obligations. For instance, after the adoption of the Rome Statute in 1998, the Commonwealth Secretariat conducted several workshops leading to the development of a Model Law for the domestication process. It is clear that in the debates on the scope and application of universal jurisdiction, the African Union assumed the role of providing legal and technical assistance to its member states. Perhaps the Model National Law is a precursor towards the development of an international treaty on the scope and application of universal jurisdiction. A central feature in the AU Model National Law is that it is state-centric and considers states as having the primary responsibility for the prosecution of international crimes. Furthermore, it gives priority to the “court of the State in whose territory the crime is alleged to have been committed.” This is an endorsement of the territoriality principle and a crawl-back stance from universal jurisdiction. Several African delegates in the Sixth Committee expressed similar sentiments towards the primacy of the territorial court in prosecuting international crimes. Mr. Waweru from Kenya submitted that “Extra-territorial jurisdiction should be invoked only as a 178

United Nations General Assembly, Sixth Committee, (The Democratic Republic of the Congo) Official Records A/C.6/77/SR.12, 17 October 2012. 179 United Nations General Assembly, Sixth Committee (Angola) Official Records, A/C.6.67/SR.13, 18 October 2012. 180 United Nations General Assembly, Sixth Committee (South Africa) Official Records, A/C.6/71/SR.13. 11 October 2016. 181 Statement by Sufian Hussein Mohammed, Legal Counselor, Ministry of Foreign Affairs of the Federal Democratic Republic of Ethiopia on ‘The Scope and Application of the principle of Universal Jurisdiction, 16 October 2019.

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secondary means in cases where domestic courts were unwilling or unable to address a matter.”182 Mr. Dahamane from Algeria said “universal jurisdiction was a complementary means of combating impunity and was subsidiary to national legal frameworks and mechanisms…”183 Mr. Mohamed from Sudan and Mr. Elshenawy from Egypt weighed in when they said, “universal jurisdiction remained a complementary mechanism rather than a substitute for national jurisdiction”184 and “universal jurisdiction could serve as a complement to national jurisdiction”185 respectively. The Ethiopian delegate Mr. Gebremeskel Zewdu, captured the views expressed in the Model National Law. He said “The primary responsibility for prosecution rested with the Member State where the crime had been committed;”186 Zambia had a slightly different view, it was sceptical about the role of territorial states in the prosecution of international crimes. Mr. Muki M. Benas Phiri, the First Secretary (Legal Affairs) of the Republic of Zambia to the United Nations, mentioned that his country “recognizes that the international community cannot rely on the mere goodwill of states to guarantee the prosecution of perpetrators of such atrocious crimes as genocide, crimes against humanity, war crimes, slavery and torture.”187 The statement from Zambia reflects the general thinking around the investigation and prosecution of international crimes. In most situations, state agents are often involved in the commission of some international crimes,188 for instance the Hutu Government was directly involved in the planning and execution of the genocide against the Tutsi in 1994. It would therefore be too sanguine to expect them to hold their state agents accountable. Under such circumstances, the international community or other well-meaning states have the right to intervene. If states were willing and able to investigate and prosecute international crimes based on the territoriality principle, there would be no need for extraterritorial interventions. Further to being state-centric, the Model National Law adopts a conditional universal jurisdiction approach. Under the Model National Law, a state is deemed to have jurisdiction when the perpetrator is within its territory.189 The provision seeks to discourage 182

United Nations General Assembly, Sixth Committee, (Kenya) Official Records A/C.6/76/SR.13, 11 October 2016. 183 United Nations General Assembly, Sixth Committee, (Algeria) Official Records A/C.6/67/SR.12, 17 October 2012. 184 United Nations General Assembly, Sixth Committee, (Sudan) Official Records A/C.6/71/SR.13, 11 October 2016. 185 United Nations General Assembly, Sixth Committee, (Egypt) Official Records A/C.6/70/SR.13, 20 October 2015. 186 United Nations General Assembly, Sixth Committee, (Ethiopia) Official Records A/C.6/68/SR.12, 17 October 2013. 187 Statement by Mr. Muki. M Benas Phiri, First Secretary (Legal Affairs) of the Republic of Zambia to the United Nations on Agenda Item 87 ‘The Scope and Application of the Principle of Universal Jurisdiction’ at the Sixth Committee during the Seventy-Third Session of the United Nations General Assembly, October 2019. 188 See Cassese 2008, p. 13. 189 African Union Model National Law on Universal Jurisdiction Over International Crimes, Article 4.

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absentia trial from the continent, although it does not rule out the commencements of investigations. As raised in the South African Torture Case, this might lead to speculative investigations which will lead to no trials at all if the perpetrator does not set foot in the investigating territory. More so, several states might end up investigating the same perpetrator for the same offenses. The AU National Model Law tries to harmonize the crimes punishable under universal jurisdiction. The selected crimes are genocide, crimes against humanity, war crimes, piracy, drug trafficking and terrorism. The list streamlines various crimes that African Union Member States punish under the universal jurisdiction. The submissions by some African States to the Sixth Committee reflect a salad of what is considered punishable offenses under universal jurisdiction. The Ethiopian Criminal Code includes money laundering among the crimes punishable under universal jurisdiction.190 Mozambique views universal jurisdiction as playing a key role in punishing the following crimes: slave trade, trafficking in human beings, air and maritime piracy, abductions, and organized crimes.191 As discussed earlier, Senegal punishes attacks on state security, counterfeiting, and torture under its universal jurisdiction law.192 Burkina Faso proposed that hostage-taking, human trafficking, slavery, and counterfeiting be included in the list of crimes punishable under universal jurisdiction.193 Togo appears to be the only African State which proposed the inclusion of the crime of apartheid among the list of serious crimes including crimes of genocide, war crimes, and crimes against humanity.194 It is evident from the above discussion that despite the differences in the scope of crimes included in the African Union National Model Law and African States’ submissions and proposals, there is a general agreement that in addition to the core crimes punishable under universal jurisdiction, there is an appetite to expand the list of offenses to include crimes that particularly affect Africa. The Cairo-Arusha Principles on universal jurisdiction had made a similar observation. Principle 4 states that: In addition to the crimes that are currently recognized under international law as being subject to universal jurisdiction, certain other crimes that have major adverse economic, social or cultural consequences – such as acts of plunder and gross misappropriation of

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United Nations General Assembly, Sixth Committee, (Ethiopia) Official Records A/C.6/69/SR.12, 15 October 2014 other crimes include genocide, crimes against humanity, war crimes, and terrorism. 191 United Nations General Assembly, Sixth Committee, (Mozambique) Official Records A/C.6/70/SR.13, 20 October 2015. 192 See United Nations General Assembly, Sixth Committee, (Senegal) Official Records A/C.6/72/SR.13, 11 October 2017, the list of crimes is in addition to genocide, crimes against humanity and war crimes. 193 United Nations General Assembly, Sixth Committee, (Burkina Faso) Official Records A/C.6/68/SR.14, 18 October 2013. 194 See United Nations General Assembly, Sixth Committee, (Togo) Official Records A/C.6/72/SR.13, 13 October 2017 para 63.

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public resources, trafficking in human beings and serious environmental crimes—should also be granted this status.195

The criteria used by the drafters to decide on the inclusion of piracy, drug trafficking, and terrorism in the Model Law, is unavailable in the public domain. However, it is curious that torture and human trafficking are completely left out, yet they cause untold suffering in Africa. In 2018, human trafficking was reported to be an enterprise that is worth USD13.1 billion annually.196 Listing human trafficking could have increased the protection of victims of such a crime.

7.11 Discord Concerning the Role of the International Law Commission in Determining the Scope and Application of Universal Jurisdiction The possible role of the International Law Commission in resolving issues surrounding the scope and application of universal jurisdiction was raised as early as during that Sixty-seventh plenary session of the Sixth Committee.197 Mr. Diallo, a delegate from Senegal, believed that the “conclusions of the International Law Commission on the topic would doubtless contribute to a greater understanding of the issues involved.”198 In 2013 during working group199 discussions, the delegations of the Czech Republic, Guatemala, Liechtenstein, and Switzerland made a concrete proposal200 for the International Law Commission to be involved to undertake a study of certain aspects of the scope and application of universal jurisdiction. The following year, in 2014, Switzerland made it clear that the involvement of the International Law Commission needed to be given serious consideration. The rationale being that the topic was largely juridical and technical.201 The African States did not have a common position on the proposed involvement of the International Law Commission. Nigeria was open to supporting the role of the 195

Kwakwa 2002. See African Centre for Strategic Studies 2018 ‘Africa Lags in Protections against Human Trafficking’ https://africacenter.org/spotlight/africa-lags-in-protections-against-human-trafficking/. 197 United Nations General Assembly, Sixth Committee, (Chile) Official Records A/C.6/67/SR.12, 17 October 2012. 198 United Nations General Assembly, Sixth Committee, (Senegal) Official Records A/C.6/67/SR.12, 17 October 2012, para 33. 199 In 2011, The United Nations General Assembly had decided to establish a Working Group of the Sixth Committee to determine similarities and differences in how States approached universal jurisdiction; see UN Doc A/Res/65/33 Resolution adopted by the General Assembly on 6 December 2010. The Working Group is open to Member States, see UN Doc A/Res/67/98 Resolution adopted by the General Assembly on 14 December 2012. 200 UN Doc. A/C.6/68/SR.23 Official Records Six Committee, Summary Record of the 23rd Meeting, New York, 4 November 2013. 201 United Nations General Assembly, Sixth Committee, (Switzerland) Official Records A/C.6/68/SR.23, 4 November 2013. 196

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International Law Commission. During the sixty-ninth session, its delegate, Mr. Sarki told the plenary that in future, the International Law Commission might be requested to play its role.202 It reiterated its support during the seventy-first session when it emphasized that universal jurisdiction was a technical issue which required input from the International Law Commission.203 Fintakpa Lamega, the Togolese delegate, considered the International Law Commission to be an ideal forum for discussing and codifying the principle of universal jurisdiction.204 Other African States were opposed to the role of the International Law Commission. Sudan considers it to be premature for the Sixth Committee to request the International Law Commission to conduct a study on various aspects of the principle of universal jurisdiction.205 This was the position adopted by the Non-Aligned Movement, to which all African States are party.206 In 2018 the International Law Commission,207 in its own right decided to include universal criminal jurisdiction in the long-term programme of work.208 The decision was informed by the United Nations General Assembly resolution, which said in its decision for the Sixth Committee to continue deliberations on the universal criminal jurisdiction, while leaving an opening for other forums of the United Nations to make their contribution. 209 Professor Charles Chernor Jalloh, a member of the International Law Commission, demonstrated how the topic on the scope, and application of universal jurisdiction satisfied the criteria for its addition to the LongTerm Programme of International Law.210 That is, the topic (a) reflected the needs of States, (b) was at a sufficiently advanced state, (c) was concrete and feasible, 202

United Nations General Assembly, Sixth Committee, (Nigeria) Official Records A/C.6/69/SR.12, 15 October 2014, para 5. 203 UN Doc A/C.6/71/SR.13 Official Records Sixth Committee Summary Records of the 13th Meeting, 11 October 2016, para 83. 204 United Nations General Assembly, Sixth Committee, (Togo) Official Records A/C.6/71/SR.14, 14 October 2016, para 14. 205 United Nations General Assembly, Sixth Committee, (Sudan) Official Records A/C.6/72/SR.13, 11 October 2017 para 31. 206 United Nations General Assembly, Sixth Committee, (Islamic Republic of Iran) Official Records A/C.6/72/SR.13, 11 October 2017 para 10. 207 The International Law Commission is a subsidiary body of the United Nations General Assembly responsible for the development and codification of international law. Its membership consists of 30 legal experts selected from the Member States to the United Nations. In 2018 when the decision was made seven of the members were from African States namely: Mr. Yocouba Cissé (Côte d’ Ivoire), Mr. Hussein A. Hossouna (Egypt), Mr. Charles Chernor Jalloh (Sierra Leone), Mr. Ahmed Laraba (Algeria); Mr. Hassan Ouzzani Chahdi (Morocco), Mr. Chris Maina Peter (United Republic of Tanzania) and Mr. Dire D. Tladi (South Africa). 208 UN Doc. A/73/10 Report of the International Law Commission Seventieth Session (30 April– 1 June and 2 July–10 August 2018) Chapter XIII, Other Decisions and Conclusions of the Commission, 299. 209 UN Doc A/Res/65/33 Resolution adopted by the General Assembly on 6 December 2010. 210 See UN Doc. A/73/10 Report of the International Law Commission Seventieth Session (30 April–1 June and 2 July–10 August 2018) Chapter XIII, Other Decisions and Conclusions of the Commission, 299.

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and (d) it reflected new developments and pressing concerns of the international community.211 The inclusion of the topic “Universal Criminal Jurisdiction” on the long-term programme of the International Law Commission was received with mixed reactions by the African States. During the Sixth Committee’s Seventy-fourth plenary session, Sierra Leone, Senegal, and Ethiopia welcomed the International Law Commission’s decision. Gabon and Algeria’s view was that the decision was premature; while South Africa and Gambia preferred the middle ground. Sierra Leone viewed the involvement of the International Law Commission as a positive development that would inject “technical rigor” to the technical legal topic of Universal Criminal Jurisdiction.212 Senegal heeded the International Law Commission’s decision on the basis that it was the only authority empowered to provide technical guidance on legal concepts and principles within the United Nations. It said: On admettons-le, au sein des Nations Unies, la seule et unique instance habilitée à foumir les aspects légaux des notions, concepts et autres principes dont nous sommes saisis, reste la Commission de Droit International (GDI). C’est pourquoi ma délégation ne peut que se féliciter de 1’inscription du point « Portée et application du principe de compétence universelle » dans le programme de travail à long terme de la Commission du droit international.213

On the contrary, Gabon and Algeria expressed their opposition to any involvement of the International Law Commission. In their view, it was premature for the International Law Commission to play any part. Gabon was uncompromising in its view, which it said reflected the African Union view. It stated that: Pour conclure, le Gabon qui prend note de I’lnclusion à long terme de cette question à l’ordre du jour de la Commission du Droit International, réitère la position de principe de Group Africain pour que cette question en fonction de sa nature demeure à l’ordre du jour de la Sixième Commission.214 211

Ibid. See Letter of The Permanent Mission of the Republic of Sierra Leone to the United Nations dated 26 April 2019. ‘Information and Observation from the Republic of Sierra Leone on the Scope and Application of the Principle of Universal Jurisdiction. 213 Mission Permanente De La République Du Sénégal Auprés Des Nations Unies, 74-éme Session de I’ Assemblée Générale, Débat general de la Sixiéme Commission-Point 84: Portée et Application du Principe de Competence Universelle, 16 Octobre 2019. This translates to ‘Now, let us admit, within the United Nations, the one and only body empowered to provide the legal aspects of notions, concepts and other principles before us, remains the International Law Commission (ILC). This is why my delegation can only welcome the inclusion of the item "Scope and application of the principle of universal jurisdiction" in the long-term program of work of the International Law Commission.’ 214 Annette Onanga (Gabon) Mission Permanente du Gabon auprès des Nations Unies- Réunion De La 6 -ème Commission Sur: La portée et application du principe de la compétence universelle, point 87, 17 Octobre 2019. This translates to: ‘To conclude, Gabon, which takes note of the longterm inclusion of this question on the agenda of the International Law Commission, reiterates the position of principle of the Group Africain so that this question, depending on its nature, remains to be considered. The agenda of the Sixth Committee’; see also The Statement of the People’s Democratic Republic of Algeria before the Sixth Committee under agenda item 80 on ‘The Scope 212

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South Africa had a balanced approach: On one hand, it viewed the International Law Commission as crucial in providing clarity on legal matters, while on the other hand, it preferred that the Sixth Committee continues with discussions on political issues surrounding the scope and application of universal jurisdiction, especially its abuse and misuse.215 During the thirty-third Summit in 2020, the African Union Assembly made clear its preference for the discussions to remain within the Sixth Committee. It stated that it was maintaining its position “to keep the discussions on universal jurisdiction in the Sixth Committee.”216 How African States reacted to the decision by the International Law Commission to add the scope and application of universal jurisdiction to its longterm plan, reveals a lack of a common principled position among the African States on the issue. It also suggests the existence of situations where there is a disconnect between decisions made and adopted at African Union Assembly summits, and how individual African states approach issues at the United Nations. This probably frustrates the African Union’s efforts to ensure that its Member States speak with one voice as reflected by several decisions encouraging African States to speak with one voice at the United Nations. Furthermore, the preference by the African Union and some African States for the Sixth Committee to be the forum for discussing and resolving universal jurisdiction could also be informed by the fact that when the United States and Israel were faced with a similar issue with Belgium, they resorted to pure power politics and not a legal approach. One major difference between the Sixth Committee of the United Nations General Assembly and the International Law Commission, which could have been a source of the African Union’s anxiety, is their composition. The representation in the Sixth Committee is primarily by representatives from all members of the United Nations. The representatives are political appointees who represent the interests and positions of their states. On the contrary, the International Law Commission consists of independent legal experts who act in their capacity. Perhaps, the African Union’s decision to maintain the discussions on the scope and implementation of universal jurisdiction in the Sixth Committee was influenced by some African States’ need to maintain control of the proceedings. They would not have such control in the International Law Commission, where membership is limited to a few legal experts.

and Application of the Principle of Universal Jurisdiction stating that of 15 October 2019’. The referral of this topic to the ILC would therefore be premature at this stage.’ 215 Thabo Molefe (South Africa) Statement on Behalf of the Republic of South Africa before the Sixth Committee of the 74th Session of the United Nations General Assembly Under the Agenda Item 84 ‘The Scope and Application of the Principle of Universal Jurisdiction’, 16 October 2019. See also statement by Gambia. 216 AU Doc EX.CL/1218 (XXXVI) Decision on the International Criminal Court, Assembly/AU/Doc.789 (XXXIII).

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7.12 Conclusion Universal jurisdiction presents an additional tool to ensure that perpetrators of atrocity crimes are held criminally accountable. If it continues to be applied in its current format, without consensus of its definition, crimes it covers, and the necessary preconditions, the chances are high that it might lose its legitimacy. The concerns raised by African States over the scope and application of universal jurisdiction require addressing perhaps through a proper international legal instrument. Otherwise, the ad hoc and arbitrary application of the universal jurisdiction could lead to disruption of inter-state relations that are key for maintaining international security and peace. This was observed when the United States threatened to disengage from the North Atlantic Treaty Organisation (NATO). African States are aware of their limitations to be able to individually and successfully protest against the abuse of universal jurisdiction in the same manner as the United States and Israel managed against Belgium. As a result, they resorted to collective and regional strategy where they rely on the African Group at the United Nations. They also prefer to have dialogue within the United Nations framework, as opposed to other forums. Perhaps this is because of their numerical advantage in the United Nations, possibility of being joined and supported by the Non-Aligned Movement groups, and also that it offers a broader multilateral approach on issues impacting global governance. It must be recalled that before approaching the United Nations, the African Union had to address the issue of scope and application of universal jurisdiction directly with the European Union. That approach did not seem to have borne fruit. The proposals and positions proffered by African States points to a group of states that feel vulnerable within the international legal system and seek safeguards and protection. Such sentiments could be fuelled by the fact that those non-African States, ready to arbitrarily apply universal jurisdiction are former colonial powers. Although it is understandable that historical ties have always played a role in shaping the relations between former colonial powers and the colonised; the issue of exercising criminal jurisdiction raises serious historical sensitivities. As discussed in this chapter, territoriality and sovereignty form the bedrock for exercising criminal jurisdiction. The colonisation process took away these two: territoriality and sovereignty from many African nations who became governed by colonial powers. African States had to wage protracted liberation wars to regain their territoriality, sovereignty, and self-determination. It is therefore understandable that any action that suggests an attempt to take away African States’ independence in governing their territories and limit their sovereign rights, appears to touch a raw African nerve. This could explain why several African States emphasised the need to respect sovereign equality of states protected in the Charter of the United Nations. In other words, African States are seeking refuge in international law from what they consider to be judicial imperialism.

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International Association of Panel Law (2015) Third International Congress of Penal Law Palermo, 3–8 April 1933, Resolutions of the Congresses of the International Association of Panel Law (1926–2014) https://www.penal.org/en/resolutions-aidp-iapl-congresses Institute for Security Studies (2015) Peace & Security Council, Report Issue 27, 8 Jalloh C C (2010) Universal Jurisdiction, Universal Prescription? A Preliminary Assessment of the African Union Perspective on Universal Jurisdiction. Criminal Law Forum DOI https://doi.org/ 10.1007/s10609-010-9115-z Jaspers K (2006) Who Should Have Tried Eichmann? Journal of International Criminal Justice, 4 (4) 853–858, https://doi.org/10.1093/jicj/mql069 Kalwahali K (2013) The Crimes Committed by UN Peacekeepers in Africa: A Reflection of Jurisdictional and Accountability Issues 223–24 (Feb. 2013) (unpublished L.L.D. thesis, University of South Africa, discussing the outcome of Canada’s investigations crimes committed in Somalia.) 176 Kassan S (1935) Extraterritorial Jurisdiction in the Ancient World. The American Journal of International Law, https://doi.org/10.2307/2190489, 29 (2), 237–247 Keohane R O (1986) Reciprocity in International Relations. International Organization, 40 (1), 1–27. https://doi.org/10.1017/S0020818300004458 Kwakwa E (2002) The Cairo-Arusha Principles on Universal Jurisdiction in Respect of Gross Human Rights Offenses: Developing the Frontiers of the Principle of Universal Jurisdiction. African Yearbook of International Law Annuaire Africain de Droit International, 10 407–430 Langer M (2011) The Diplomacy of Universal Jurisdiction: The Political Branches and the Transnational Prosecution of International Crimes. The American Journal of International Law 105(1) 1–50 Lasok D (1962) The Eichmann Trial. The International and Comparative Law Quarterly 11 (2), 355–374 Loomba A (2005) Colonialism/Postcolonialism. Routledge, New York Melvern L (2009) A People Betrayed – The Role of the West in Rwanda’s Genocide, new updated edn. Zed Books, New York Office of Communications (2001) The Princeton Principles on Universal Jurisdiction (Princeton Project on Universal Jurisdiction). Program in Law and Public Affairs, Princeton University, Princeton Pella V V (1950) Towards an International Criminal Court. The American Journal of International Law, https://doi.org/10.2307/2193451, 44 (1), 37–68 Rabkin J (2007) No Substitute for Sovereignty: Why International Criminal Justice has a bleak future and deserves it. In: Hudges E et al (eds) Atrocities and International Accountability -Beyond Transitional Justice. United Nations University Press, New York, pp 98–136 Scheffer D (2001) Opening Address at the Universal Jurisdiction Conference at the New England School of Law. New England Law Review 35 (2) 233–240 Scheffer D (2012) All the Missing Souls – A Personal History of the War Crimes Tribunals. Princeton University Press, Princeton Thalmann V (2008) French Justice’s Endeavours to Substitute for the ICTR. Journal of International Criminal Justice 6 (5) 995–1002. https://doi.org/10.1093/jicj/mqn065 Thayer LE (1923) The Capitulations of the Ottoman Empire and the Question of their Abrogation as it Affects the United States. The American Journal of International Law, https://doi.org/10. 2307/2188106 17(2), 207–233 Turns D (2004) Book Review of ‘Universal Jurisdiction: international and municipal Legal perspectives by L. Reydams’. Oxford University Press, Oxford Watson G R (1992) Offenders Abroad: The case for Nationality-Based Criminal Jurisdiction. Yale Journal of International Law 17, 41-84 Weber M (1992) Politik Als Beruf. Stuttgart Weiss T G (2004) The Sunset of Humanitarian Intervention? The Responsibility to Protect in a Unipolar Era. Security Dialogue (International Peace Research Institute) 35 135-153 Wharton F (1887) A Digest of the International Law of the U.S., Vol. 2. Washington

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Wikileaks (2008) Foreign Minister on Spanish Indictments and Travel by Senior Rwandans, 2 April 2008 Public Library of US Diplomacy, 08KIGALI237_a Wikileaks.org https://wikileaks. org/plusd/cables/08KIGALI237_a.html Accessed 31 December 2019 Williams G (1944) Selections from Three Works of Francisco Suárez. S. J. Clarendon Press, London Yusif A A (2015) The Right to Forcible Intervention in Certain Conflicts. In: Yusuf A A, Ouguergouz F (eds) The African Union - Legal Institutional Framework – A Manual on the Pan-African Organization Mkuki Na Nyota. Dar-Es Salam, pp 335-353

African Union Decisions AU (2008) Decision on the Implementation of the Assembly Decision on the Abuse of the Principle. of Universal Jurisdiction Doc. Assembly/AU/3 (XII); https://archives.au.int/handle/123456789/ 1073?show=full Accessed 15 March 2021 AU (2008) Decision on the Report of the Commission on the Abuse of the Principle of Universal Jurisdiction Doc. Assembly/AU/14 (XI)Assembly of the African Union Eleventh Ordinary Session, 30 June–1 July 2008b, Sharm el-Sheikh, Egypt. https://au.int/sites/default/files/decisi ons/9558-assembly_en_30_june_1_july_2008b_auc_eleventh_ordinary_session_decisions_dec larations_tribute_resolution.pdf Accessed 30 March 2021 AU (2008) African Union Assembly/AU/14 (XI), Report of the Commission on the Use of the Principle of Universal Jurisdiction by some non-African States as Recommended by the Conference of Ministers of Justice/Attorney https://archives.au.int/handle/123456789/5667?show=full Accessed 29 March 2021 AU (2009) African Union, Assembly/AU/Dec.243(XIII) Rev.1. Decision on the Abuse of the Principle of Universal Jurisdiction Doc. Assembly /AU/11 (XIII). Adopted by the Thirteenth Ordinary Session of the Assembly in Sirte, Great Socialist People’s Libyan Arab Jamahiriya on 3 July 2009 AU (2010) African Union Assembly/AU/ /Dec.335(XVI) Decision on the Abuse of the Principle of Universal Jurisdiction Doc; EX.CL/640 (XVIII)’.). https://archives.au.int/bitstream/handle/ 123456789/1231/Assembly%20AU%20Dec%20335%20%28XVI%29%20_E.pdf?sequence= 1&isAllowed=y Accessed 13 February 2021 AU (2010) African Union Assembly/AU/Dec.271(XIV). Decision on the Abuse of the Principle of Universal Jurisdiction Doc. Ex.Cl/540(XVI); https://au.int/sites/default/files/decisions/9561-ass embly_en_31_january_2_feburuary_2010b_bcp_assembly_of_the_african_union_fourteenth_ ordinary_session.pdf Accessed 7 March 2021 AU (2010) African Union Assembly/AU/Dec.292 (XV). Decision on the Abuse of the Principle of Universal Jurisdiction Doc.Ex.CL/640 (XVIII). https://archives.au.int/bitstream/handle/123456 789/1174/Assembly%20AU%20Dec%20292%20%28XV%29%20_E.pdf?sequence=1&isAllo wed=y Accessed 10 March 2021 AU (2010) African Union, AU/Dec. 672(XXX). Decision on the International Criminal Court Doc EX.CL/1068 (XXXII)’ AU Assembly/ 30th Ordinary Session of the Assembly, 28-29 January 2018, Addis Ababa. https://au.int/sites/default/files/decisions/33908-assembly_decisi ons_665_-_689_e.pdf Accessed 15 April 2021 AU (2015) Doc/PSC/PR/COMM. (DXIX) Communique, Peace and Security Council, 519th Meeting, Addis Ababa, Ethiopia, 26 June 2015. https://www.peaceau.org/en/article/commun ique-of-the-519th-psc-meeting-on-universal-jurisdiction-26-june-2015 Accessed 29 January 2021 AU (2020) African Union Assembly. Assembly/AU/Dec.789(XXXIII) Decision on the International Criminal Court, Doc. EX.CL/1218(XXXVI) https://au.int/sites/default/files/decisions/38180-ass embly_au_dec_749-795_xxxiii_e.pdf Accessed 25 February 2021

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United Nations General Sixth Committee UNGA Sixth Committee UN Doc. A/C.6/64/SR.13 Official Records, Sixth Committee, Summary Record of the 13th Meeting 12 October 2009 UNGA Sixth Committee UN Doc. A/C.6/65/SR.10 Official Records, Sixth Committee Summary Record of the 10th Meeting 13 October 2010 UNGA Sixth Committee UN Doc. A/C.6/66/SR.12 Official Records Sixth Committee Summary Record of the 12th Meeting 12 October 2011 UNGA Sixth Committee UN Doc. A/C.6/67/SR.13 Official Records Sixth Committee, Summary Record of the 13th Meeting, 18 October 2012 UNGA Sixth Committee UN Doc. A/C.6/67/SR.12 Official Records Sixth Committee, Summary Record of the 12th Meeting, 17 October 2012 UNGA Sixth Committee UN Doc. A/C.6/68/SR.14 Official Records Sixth Committee, Summary Record of the 14th Meeting, 18 October 2013 UNGA Sixth Committee UN Doc. A/C.6/69/SR.12 Official Records Sixth Committee, Summary Record of the 12th Meeting, 15 October 2014 UNGA Sixth Committee UN Doc. A/C.6/70/SR.12 Official Records Sixth Committee, Summary Record of the 12th Meeting, 20 October 2015 UNGA Sixth Committee UN Doc. A/C.6/71/SR.13 Official Records Sixth Committee, Summary Record of the 13th Meeting, 11 October 2016 UNGA Sixth Committee UN Doc. A/C.6/71/SR.14 Official Records Sixth Committee, Summary Records of the 14th Meeting, 13 October 2016 UNGA Sixth Committee UN Doc. A/C.6/72/SR.13 Official Records Sixth Committee, Summary Record of the 13rd Meeting, 11 October 2017 UNGA Sixth Committee UN Doc. A/C.6/74/SR. Statement on behalf of the African Group by Amadou Jaiteh, Permanent Mission of the Gambia to the United Nations, before the Sixth Committee 74th Session of the United Nations General Assembly, Under Agenda Item 84 ‘The Scope and Application of the Principle of Universal Jurisdiction’, 14 and 15 October 2019 UNGA Sixth Committee UN Doc. A/C.6/75/SR.11 Official Records, Sixth Committee Summary Record of the 11th Meeting, 3 November 2020 UNGA Sixth Committee Informal Working Paper prepared by the Chairperson of the Work Group of the Sixth Committee of the United Nations General Assembly, 4 November 2016 UNGA Sixth Committee Statement Delivered by His Excellency Ambassador Frederick M.M. Shava, Permanent Representative of the Republic of Zimbabwe To The United Nations Before the Sixth Committee 75th Session of the United Nations General Assembly On Agenda Item 87: “The Scope and Application of the Principle of Universal Jurisdiction”, 27 October 2020 UNGA Sixth Committee Statement on behalf of the African Group by Mr. Amadou Jaiteh First Secretary of the Permanent Mission of the Gambia to the United Nations before the Sixth Committee 73rd Session of the United Nations General Assembly under Agenda Item 87"The scope and application of the principle of universal jurisdiction" New York, 18 October 2018 UNGA Sixth Committee Statement by Susan W. Mwangi, Acting Deputy Permanent Representative/Minister Counsellor of the Republic of Kenya to the United Nations to the Sixth Committee on Agenda Item 84 ‘The Scope and Application of the Principle of Universal Jurisdiction’ during the 74th Session to the United Nations General Assembly, 16 October 2019 UNGA Sixth Committee Statement by Sufian Hussein Mohammed, Legal Counselor, Ministry of Foreign Affairs of the Federal Democratic Republic of Ethiopia on The Scope and Application of the Principle of Universal Jurisdiction, 16 October 2019 UNGA Sixth Committee Republic of Senegal, ministry of justice directorate of human rights, information and observation on the scope and application of universal jurisdiction, 17-08094e UNGA Sixth Committee Statement by Sufian Hussein Mohammed, Legal Counselor, Ministry of Foreign Affairs of the Federal Democratic Republic of Ethiopia on ‘The Scope and Application of the principle of Universal Jurisdiction, 16 October 2019

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UNGA Sixth Committee Statement by Mr Muki. M Benas Phiri, First Secretary (Legal Affairs) of the Republic of Zambia to the United Nations on Agenda Item 87 ‘The Scope and Application of the Principle of Universal Jurisdiction’ at the Sixth Committee during the Seventy-Third Session of the United Nations General Assembly, October 2019 UNGA Sixth Committee Letter of The Permanent Mission of the Republic of Sierra Leone to the United Nations dated 26th April 2019. ‘Information and Observation from the Republic of Sierra Leone on the Scope and Application of the Principle of Universal Jurisdiction UNGA Sixth Committee Mission Permanente De La République Du Sénégal Auprès Des Nations Unies, 74éme Session de I’ Assemblée Générale, Débat général de la Sixième CommissionPoint 84: Portée et Application du Principe de Compétence Universelle, 16 Octobre 2019. This translates to ‘Now, let us admit, within the United Nations, the one and only body empowered to provide the legal aspects of notions, concepts and other principles before us, remains the International Law Commission (ILC). This is why my delegation can only welcome the inclusion of the item "Scope and application of the principle of universal jurisdiction" in the long-term program of work of the International Law Commission.’ UNGA Sixth Committee Annette Onanga (Gabon) Mission Permanente du Gabon auprès des Nations Unies- Réunion De La 6 -ème Commission Sur: La portée et application du principe de la compétence universelle, point 87, 17 Octobre 2019. This translates to: ‘To conclude, Gabon, which takes note of the long-term inclusion of this question on the agenda of the International Law Commission, reiterates the position of principle of Group Africain so that this question, depending on its nature, remains to be considered. the agenda of the Sixth Committee’; see also The Statement of the People’s Democratic Republic of Algeria before the Sixth Committee under agenda item 80 on ‘The Scope and Application of the Principle of Universal Jurisdiction stating that of 15 October 2019 “The referral of this topic to the ILC would therefore be premature at this stage.’ UNGA Sixth Committee Thabo Molefe (South Africa) Statement on Behalf of the Republic of South Africa before the Sixth Committee of the 74th Session of the United Nations General Assembly Under the Agenda Item 84 ‘The Scope and Application of the Principle of Universal Jurisdiction’, 16 October 2019. See also statement by Gambia

UN General Assembly UN Doc. A/63/237/Rev 1 Letter dated 29 June 2009 from the Permanent Representative of the United Republic of Tanzania to the United Nations Address to the Secretary-General Annex 1 Explanatory Memorandum UN Doc A/63/PV.105 General Assembly official records, 63rd session: 105th plenary meeting, Monday, 14 September 2009, New York UN Doc 63/568. The scope and application of the principle of universal jurisdiction, 14 September 2009 UN Doc. A/73/10 Report of the International Law Commission Seventieth Session 30 April–1 June and 2 July–10 August 2018) Chapter XIII, Other Decisions and Conclusions of the Commission UN Doc A/Res/65/33 Resolution adopted by the General Assembly on 6 December 2010 UN Doc A/Res/67/98 Resolution adopted by the General Assembly on 14 December 2012 UN Doc. A/73/10 Report of the International Law Commission Seventieth Session (30 April–1 June and 2 July–10 August 2018) Chapter XIII, Other Decisions and Conclusions of the Commission, 299 UN Doc A/520/Rev.19 Rules of Procedure of the General Assembly, Rule 96

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United Nations Security Council UN Doc. UNSC/S/RES/138 Question Relating to the Case of Adolf Eichmann (1960) UN Doc. S/4336 Letter dated 15 June 1960 from the Representative of Argentina Addressed to the President of the Security Council dated, 15 June 1960

Other European Parliament Doc P8_TA (2018) 0090 Situation in Syria, European Parliament resolution of 15 March 2018 on the situation in Syria (2018/2626 (RSP) UN Doc IED-15-001 United Nations Office of International Oversight Services, Evaluation of the Enforcement and Remedial Assistance Efforts for Sexual Exploitation and Abuse by the United Nations and Related Personnel in Peacekeeping Operations, 5 May 2015)

James Nyawo holds a doctorate from Middlesex University, United Kingdom. His doctoral research focused on the enforcement of International Criminal Law by the International Criminal Court in Africa. Currently he is a lecturer at Strathmore University, School of Humanities and Social Sciences. He teaches International Relations & Diplomacy and International Law. He worked in the humanitarian sector with international organisations in Angola, Uganda, Sudan and South Sudan. His research interests include international relations, international criminal justice, transitional justice, humanitarian affairs and post-colonialism. His e-mail address is jnyawo@ strathmore.edu

Part II

International Criminal Law Beyond the African Region

Chapter 8

Breaking Binaries and Honing-in on Harms: Inclusive Approaches Towards Sexual and Gender-Based Crimes Priya Gopalan

Contents 8.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2 Plurality of Crimes, Victims, and Perpetrators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.1 ‘Only Women are Raped’: The Invisibility of Sexual Violence Against Men . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.2 Capturing the Multiple Forms, Motivations, and Victims of Violence . . . . . . . . . 8.2.3 Female Perpetrators: Of Mothers and Monsters? . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.4 Stereotyped and Straightjacketed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.5 Heeding Harms in the Eyes of Those Harmed . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3 Inclusive Approaches Towards Gender and Sexual and Gender-Based Crimes . . . . . . . . 8.3.1 Honing in on Harms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.2 Unravelling Intersectional Harms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.3 Breaking Binaries: Stigma, Sexual Violence and Beyond . . . . . . . . . . . . . . . . . . . 8.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract Gender analysis has served as a tool to surface, articulate and pursue accountability for conflict-related crimes. It has been a critical partner in efforts to redress the historical invisibility of female experiences of conflict, particularly the marginalisation of sexual and gender-based violence. Nonetheless, the next steps in this journey necessitate an expansion and nuancing of our understanding of the concept of ‘gender’ as an analytical framework. This is because the failure to apply gender analysis in its fullest form to flesh out harms experienced in conflict has resulted in accountability lacunae for certain categories of crimes, victims, and perpetrators. This chapter analyses some of these gaps, arguing for a deeper and intentional exploration of the ways in which gender norms, narratives and stereotypes underpin gender-based violence against all (women, men, boys, girls, and other sexual and The views expressed in this chapter are solely those of the author. The author wishes to thank Gianpaolo Mascaro for his invaluable research assistance and for their feedback Mark Drumbl, Alexandra Lily Kather and Solange Mouthaan. P. Gopalan (B) International Criminal Lawyer, Geneva, Switzerland e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 T. B. K. Sendze et al. (eds.), Contemporary International Criminal Law Issues, https://doi.org/10.1007/978-94-6265-555-3_8

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gender identities including LGBTQI+ persons). In pivoting away from gendered dichotomies and breaking binaries, this chapter seeks to widen our analytical apertures to improve accountability for sexual and gender-based violence. In doing so, it builds on existing scholarly work on harm analysis to better articulate the diversity of crimes, victims, and perpetrators as well as the multiplicity of harms. To hone-in on harms, this chapter advocates intersectional and interdisciplinary approaches that, along with gender analysis, embrace other individual characteristics when distilling violations. The chapter argues that, when woven together, these various strands segue into survivor-centred approaches to deliver compassionate remedies that are responsive to individual harms. Keywords Sexual and gender-based crimes · Accountability · Intersectionality · Male victims · Female perpetrators · LGBTQI+

8.1 Introduction Early feminist criticisms of international humanitarian law (IHL) and international criminal law (ICL) centred on the invisibility of female experiences of conflict, in particular the marginalisation of sexual violence against women perpetrated as a conflict-related crime.1 Following this historical neglect and consequent impunity for the widespread and systemic sexual violence committed during the Second World War, prosecutions before ad hoc tribunals and the International Criminal Court (ICC) have made progress in surfacing conflict-related sexual violence (CRSV) by pursuing accountability for these crimes and articulating their various forms and facets, as well as their causes and consequences.2 While gender analysis has served as a critical partner in this process, the next steps in this journey necessitate an expansion and nuancing of our understanding 1

Violence against women reflects underlying unequal power structures, relations and dynamics that are embedded in patriarchal structures and gender hierarchies. Sexual violence exists within this continuum of violence. As MacKinnon writes, ‘sexual violation symbolises and actualises women’s subordinate social status to men. It is both an indication and practice of inequality between the sexes, specifically the low status of women relative to men’. MacKinnon 1991, p. 1302. The various binaries, dichotomies and stereotypes discussed in this chapter have invariably sprung from this structural paradigm of power inequalities. 2 References to ‘men’, unless indicated otherwise, are taken to include boys and references to ‘women’ are taken to include girls, unless otherwise indicated. See e.g. the definition of rape in ICTY, Prosecutor v Furundzija, 10 December 1998, IT-95-17/1-T, para 185; sexual slavery in ICTY, Prosecutor v Kunarac, 22 February 2001, IT-96-23-T& IT-96-23/1-T, para 543; rape as genocide in ICTR, Prosecutor v Akayesu, ICTR-96-4-T, 2 September 1998, paras 507–508; forced marriages before the SCSL in SCSL, Prosecutor v Brima, 22 February 2008, SCSL-2004-16-A, paras 195196; forced marriages before the ECCC in ECCC, Prosecutor v Chea and Samphan, 16 November 2018, 002/02, paras 3686–3687 and forced pregnancy before the International Criminal Court in ICC, Prosecutor v Dominic Ongwen, 6 May 2021, ICC-02/04- /15, paras 315–317. See also ICTY, Prosecutor v Dordevic, 23 February 2011, IT-05-87/1-T, para 887 (crimes of sexual violence ‘must not be treated differently from other violent acts simply because of their sexual component’).

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of the concept of ‘gender’ as an analytical framework.3 In order to embrace a more accurate framing of ‘gender’ in conflict-related crimes, misconceptions that have crept into our understanding of the scope of ‘gender’ require attention. As this article highlights, the failure to properly apply gender analysis in its fullest form and to flesh out harms experienced in conflict results in accountability lacunae for certain categories of crimes, victims, and perpetrators. As the initial application of gender analysis focused on remedying the marginalisation of crimes against women in conflict, this has led to ‘gender’ being seen as synonymous with ‘women’.4 This conflation of ‘women’ and ‘gender’, most notably, restricts ‘gender’ to a binary approach of male vs female. As gender is seen as a ‘women’s issue’, there is a scarcity of gender analysis relating to certain male experiences of conflict as highlighted by commentators. Dolan argues that the militarisation of men is an egregious form of gender-based violence that is overlooked. He highlights that the very process of becoming and being a militarised man can lead to severe, life-long psychological consequences, or death, which are forms of gender-based violence.5 Bergtora Sandvik, in her blog ‘Dead male bodies: a challenge to feminist legal thought’, discusses the targeted killing of men using drone strikes and the screening practices that exclude men from full refugee protection as illustrative forms of gendered violence that overwhelmingly affect young, poor men of non-Caucasian ethnicity.6 This scarcity of gender analysis relating to crimes against men in conflict is also seen in sexual violence against men, where the scope and frequency of male-directed sexual violence is often minimised.7 Conversely, when it comes to women, the focus has been on sexual violence as the predominant conflict-related violation against women, leading to limited analysis of the gendered impacts on non-sexual violations.8 While sexual violence is an 3

‘Gender analysis is a key tool to help recognize, understand and make visible the gendered nature of human rights violations, including their specific and differential impact on women, men and others, as well as human rights violations based on gender that specifically target lesbian, gay, bisexual, transgender and intersex (LGBTI) persons. It can help to identify differences in the enjoyment of all human rights and fundamental freedoms in all spheres of life. It also seeks to analyse power relations within the larger sociocultural, economic, political and environmental contexts to understand the root causes of discrimination and inequality.’ OHCHR 2018, p. 7. 4 The term ‘gender-based violence’ gained wider purchase after being included in the 1993 UN Declaration on the Elimination of all forms of Violence against Women, and in this context was intended to refer to ‘women’ only. Art 1 reads ‘the term “violence against women” means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life’. UN General Assembly 1993. 5 Dolan 2014a, p. 493. He also notes that men, as products of militarisation, turn into perpetrators of sexual violence in conflict. 6 Bergtora Sandvik 2018. 7 Sellers 2018, p. 222. On the limited attention paid to sexual violence against Rohingya men, see Eichert 2020; Buzo 2020. 8 Another relevant factor is donor funding that has prioritised sexual violence over other forms of less ‘significant’ gender-based violence which influences the work of those funded, which in turn informs scholarship on these issues leading to the selective narrative.

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egregious crime deserving of the attention received, more so in light of its historical marginalisation, gender analysis also provides the tools to surface non-sexual gendered violations.9 Moreover, a focus on the rape of women as the primary form of sexual violence is to the exclusion of the plurality of other forms of conflict-related sexual violence, victims, and perpetrators. As Sjoberg writes, the focus on penetrative rape with a penis carries implicit assumptions of men as perpetrators, disregarding women as perpetrators, and those with non-binary gender identities, rendering other forms of harms and their survivors invisible.10 Such a constrained understanding of the notion of ‘gender’ ignores sexual orientation, non-binary gender identities, expressions or sexual orientation of victims, thus perpetuating the lack of redress under international criminal law for certain categories of victims such as Lesbian, Gay, Bisexual, Transgender, Queer and Intersex identified (‘LGBTQI+’) persons.11 Recent legal developments have moved the dial forward in addressing some of these critiques surrounding the prosecution of sexual and gender-based crimes as international crimes. In May 2021, in its case against Abd-Al-Rahman, the ICC brought its first case in which crimes committed exclusively against men and boys were expressly charged as gender-based crimes (specifically, as persecution on intersecting political, ethnic and gender grounds).12 As Grey writes, the male-focused persecution charges in Abd-al-Rahman help to correct the historic inattention to men’s experiences of gender-based violence in international criminal law.13 This follows on the ICC’s first charge of gender-based persecution, relating to female victims during the conflict in Mali, in the case of Al Hassan in 2019.14 In the recent case of Ongwen in 2021, the ICC secured the first conviction for forced pregnancy in an international criminal tribunal, thus broadening the scope of sexual violence prosecutions beyond the paradigmatic ‘rape in war’ scenario.15 In the case of Ntaganda, sexual violence committed against child soldiers by their commanders was found to be a war crime, thus expanding the scope of who can be a victim of sexual violence.16 Against this backdrop, this chapter explores the crevices and crannies in which gendered silences mute or muffle the voices of certain groups of victims and perpetrators and suppress the recognition of certain types of sexual violence. Section 8.2 9

This focus on sexual violence is also seen in international humanitarian law which contains specific rules relating to protecting women from sexual violence, which is cast as a crime against honour. On the harmful consequences of characterising sexual violence as a crime against honour and other related precepts of social morality such as chastity and dignity, see Gopalan 2021. For a discussion on the greater need to engage with and respond to a wider range of violence that women may experience during conflict, see Swaine 2015. 10 Sjorberg 2016. 11 Sellers 2018, p. 222; ICC 2022, p. 3. 12 ICC, The Prosecutor v Ali Muhammad Ali Abd-Al-Rahman (‘Ali Kushayb’), 22 April 2021, ICC-02/05-01/20, para 93. 13 Grey 2021. 14 ICC, The Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, 30 September 2019, ICC-01/12-01/18, para 2. 15 ICC, The Prosecutor v Dominic Ongwen, 4 February 2021, ICC-02/04-01/15, para 35. 16 ICC, The Prosecutor v Bosco Ntaganda, 7 November 2019, ICC-01/04-02/06, para 93.

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of this chapter, by relying on gender narratives, norms, and stereotypes as its foundational basis, analyses two archetypical gender gaps in international criminal law: male victims of sexual violence and female perpetrators of international crimes.17 In pivoting away from gender dichotomies and binaries, this chapter seeks to widen our analytical apertures relating to sexual violence. It argues that a deeper exploration of the ways in which gender norms, narratives and stereotypes underpin genderbased violence against women, men, boys, girls, and other sexual and gender identities, including LGBTQI+, improves the prospects and quality of accountability. To better understand, articulate, and categorise victims’ multiplicity of harms and their ramifications, the gender lens must be broadened to capture a diversity of crimes, perpetrators, and victim groups.18 As such, crimes against men, as well as LGBTQI+ individuals and those otherwise perceived to be stepping outside traditional gender roles, must be part of our line of sight.19 Section 8.3 of the chapter asks why and how this more inclusive approach towards gender should be favoured. Building on recent scholarly work around notions of harm and conflict-related crimes, the chapter offers some reflections on broadening our understandings around the gender narratives surrounding the commission and experiences of violations, as well as the harms arising from these crimes. In doing so, it harnesses tools, approaches and methodologies beyond the confines of the law to expand on established frameworks of harm. Harm analysis offers a tool to ground our reasoning around gender while embracing other individual traits within analytical frameworks. The chapter advocates interdisciplinary and intersectional approaches to enrich harm analysis which include utilising expert evidence in the legal proceedings. Woven together, these various strands segue into survivor-centred approaches that can break binaries to deliver compassionate remedies that are responsive to individual harms.

8.2 Plurality of Crimes, Victims, and Perpetrators International humanitarian law is imbued with gender narratives that take male experiences of conflict as its starting point and prevailing normative standard. Meanwhile, women’s experiences of conflict are refracted through the prism of their perceived weakness, whether psychological or physical, as defined by their woman/motherhood, sexual and reproductive functions, and significantly, needing

17

Gender norms refer to the different expectations of how people of each gender should behave, according to notions of masculinity and femininity. Gender stereotypes influence our perception of fact, resulting in a certain classification of facts that perpetuates gender norms. See United Nations Office of the High Commissioner for Human Rights undated. 18 Sellers 2018, p. 222. 19 In the ISIS-controlled areas of Syria and Iraq, those perceived to belong to gender minorities were targeted for sexual violence: Davis 2018, pp. 513–514.

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special protection, particularly against sexual violence.20 What follows is the gender binary of the ‘damsel in distress’ as the perennial female victim and its male counterpart—the invincible and fearless male warrior. These gender stereotypes embed the misconceptions that men cannot be victims and women cannot be perpetrators of serious crimes. As discussed in the following sub-sections, these binaries are reflected in the invisibility of sexual violence against men and the high visibility of penetrative anal sex, to the exclusion of other forms of sexual violence. The focus on male perpetratorship and the reductive characterisation of female perpetrators as freaks and the titillating tropes used to define and confine them further illustrate the underbelly of gender binaries.21 Along with these dichotomies, the tendency to ascribe rigid and monolithic reasons for sexual violence is another outcome of gender binaries.

8.2.1 ‘Only Women are Raped’:22 The Invisibility of Sexual Violence Against Men While there has been some forward momentum in the prosecution of sexual violence against men,23 the scarcity in surfacing gendered harms to men in conflict is acutely seen in cases of sexual violence against men, which has received limited attention as a conflict-related crime.24 Contrary to the gender stereotype that men are sexually inviolable and impenetrable, the data on this issue reveal a vastly different picture. Men and boys suffer

20

Gardam 2018. Sexual violence is situated within the continuum of gendered violence experienced by women that traverses both peace time and conflict. Moreover, the distinction between conflict, post conflict, and peace may be untenable in many circumstances. The division between sexual violence in conflict and sexual violence in peace or ‘regular’/daily sexual violence faced by women has been criticised. See e.g., Grewal 2010, p. 57 (arguing that instead of helping to dismantle the traditional public/private binary, international criminal law has created a new binary between the experience of sexual violence in peace and in conflict). 21 See Sjoberg and Gentry 2007. 22 This was the view expressed by a participant in a seminal study on sexual violence against men. See Lees 1997, p. 95, cited in Shepard 2018, p. 130. 23 See e.g., ICTY, Prosecutor v Todorovic, 31 July 2001, IT-95-9/1-S; ICTY, Prosecutor v Staki´ c, 31 July 2003, IT-97-24-T, paras 241, 780, 806; ICTY, Prosecutor v Cesi´c, 11 March 2004, IT-95-10/1S, para 13; ICC, The Prosecutor v Jean-Pierre Bemba Gombo, 21 March 2016, ICC-01/05-01/08. However, Bemba’s conviction was overturned on appeal. ICC, The Prosecutor v Jean-Pierre Bemba Gombo, 8 June 2018, ICC-01/05-01/08 A. 24 The ICC statute defines rape using gender-neutral language (ICC, ‘Elements of Crimes’ (ICC 2011) art 7(1)(g)-1), which was a ground-breaking legal development in the field. Nonetheless the ICC policy paper on sexual and gender-based crimes does not specifically address male sexual violence, see ICC 2014. While the focus of this section is crimes of sexual violence against men, further investigation, reflection, and scholarship are needed in relation to other forms of gendered crimes against men. See e.g. Dolan 2014a; Bergtora Sandvik 2018.

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many forms of sexual violations in diverse conflicts across the world.25 As argued by Sivakumaran in his seminal article ‘Sexual Violence against Men in Armed Conflict’, ‘the range of sexual violence committed against men in armed conflict crosses the full gamut of possibilities: all permutations and combinations are present’.26 Since 2000, acts of sexual violence against men and boys have been documented in at least 25 countries from Latin and Central America, through Africa, the Middle East and Asia. Sexual abuse by US military of male captives in Iraq is a notorious example of this phenomenon.27 In Liberia, during the second Liberian Civil War (1999–2003), 32% of male ex-combatants experienced sexual violence (‘only’ 10% less than the figure for female ex-combatants).28 The UN inquiry into crimes committed during the civil war in Sri Lanka reported in 2014 that: One of the most disturbing findings of the OISL investigation has been the extent to which sexual violence was committed, often extremely brutally, by the Sri Lanka security forces, with men as likely to be victims as women. The prevalence of rape, often on repeated occasions, was particularly shocking.29

A 2017 report by UNHCR on sexual violence against men and boys in the Syria crisis revealed that 19.5-27% of male respondents interviewed in Iraqi Kurdistan, Jordan and Lebanon had experienced sexual harassment or unwanted sexual contact as boys. Refugee women estimated that 30-40% of adult men in their community had experienced sexual violence while in detention in Syria.30 A network of Syrian doctors (Lawyers & Doctors for Human Rights—LDHR) medically examined 138 Syrian male former detainees and recorded that 88% reported at least one form of conflict-related sexual violence, with 43% reporting more than one.31

25

Kapur and Muddell 2016, p. 1. Sivakumaran 2007, pp. 253, 257. Other examples include oral rape, as well as rape using objects (e.g. screwdrivers, bottles); having ropes tied to the genitalia and being pulled around by this rope; having electric wires attached to the genitalia, through which electric shocks are administered; linking two men using ropes tied to their genitalia and making them walk in opposite directions; being made to dig holes in the ground, or in trees, and then to rub themselves in that hole to the point of ejaculation; being forced to have vaginal sex with women who are also under detention; being forced to have anal or oral sex with fellow detainees, or with brothers, or fathers; being forced into sexual acts with the victim’s spouse, while being watched by children, parents etc; being used as a mattress while soldiers rape their family members on top of them; being held for lengthy periods of time as sexual slaves; forced circumcision, castration, and other forms of genital mutilation. 27 UN Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict 2013, p. 13. 28 Quoted in Johnson et al. 2010, pp. 553–554. 29 Human Rights Council 2015, A/HRC/30/CRP2, para 571. A 2018 report by the ITJP, an NGO that documents CRSV and torture in Sri Lanka, focuses on sexual violence against mostly Tamil men and boys, and contains a narrative analysis of the experiences of more than 100 male victims of sexual violence by the state security forces in Sri Lanka between 2014-2018. Most were detained and abused multiple times. Touquet 2018, p. 7. 30 Chynoweth 2017, p. 6. 31 Elliott et al. 2020, pp. 469, 473. 26

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Despite this wealth of information, Resolution 2106, passed by the UN Security Council in June 2013, was the first resolution explicitly to mention men and boys, noting with concern that: [s]exual violence in armed conflict and post-conflict situations disproportionately affects women and girls, as well as groups that are particularly vulnerable or may be specifically targeted, while also affecting men and boys and those secondarily traumatized as forced witnesses of sexual violence against family members [emphasis added].32

In December 2013, the Office of the Special Representative of the UN SecretaryGeneral on Sexual Violence in Conflict reported that, despite mounting evidence that sexual violence against men and boys is a major issue in a number of conflict situations around the globe, such violence continues to be ‘under-reported, underdocumented and under-acknowledged, thereby preventing victims from being availed much needed assistance and from accessing justice’.33 This remains true at the time of writing. Denial, silences and woeful marginalisation override the proper categorisation, documentation, investigation, and prosecution of sexual violence crimes against men. While many of these challenges overlap with sexual violence against women, certain nuances and qualitative aspects that are pertinent to men are highlighted below. For example, even when male victims do report sexual violence, the failure by authorities and organisations to detect and responsibly document reported cases is severe and systemic. Male victims are often confronted with ridicule and disbelief when reporting sexual violence.34 When sexual violence against men does surface in accountability processes, there can be a gap between what the victim reports and what is documented (coded). Interviewers may code these crimes as torture instead of sexual violence.35 Case law from international criminal tribunals is rife with instances

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UN Security Council 2013, S/RES/2106. This resolution was passed 13 years after the Security Council recognised sexual violence against women and girls as a matter of international concern through its Women, Peace and Security Agenda in UN Security Council 2000, S/RES/1325. In the same year, three high level documents on wartime sexual violence were adopted, all mentioning male victims for the first time. The 2014 Global Summit on Sexual Violence organised by the UK Government’s Prevention of Sexual Violence Initiative in Collaboration with the SRSG-SVC also discussed male victims of sexual violence. See Touquet and Gorris 2016, p. 37. 33 UN Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict 2013, p. 5. 34 Agence France-Presse (2009) https://www.youtube.com/watch?v=OGz3VkcLgkk. Accessed 24 July 2022. Such responses to sexual violence against men speak volumes to the extent to which these crimes are perceived to breach societal taboos, in light of the privileges conferred to them by patriarchy. 35 See e.g. Drumond Rangel Campos 2015, p. 2. Michelle Leiby found that ‘gender identities also affect coding: male interviewers were less likely to interpret stories as sexual violence than female interviewers’.

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of male sexual violence being described as ‘torture’.36 As Schulz writes, ‘the relationship, similarities and disjuncture between torture and sexual violence, especially if directed against men is a complicated issue which requires further investigation’.37 In addition, the stereotype of the strong and silent man discourages men and boys from expressing themselves, more so when it involves sexual violence38 —a topic not only steeped in taboo but in some countries leading to criminal repercussions, as discussed below. This is compounded by a lack of vocabulary or specific legal terminology for certain acts, such as being forced to watch family members being raped.39 Effective reporting and documentation continue to pose a fundamental challenge to surfacing sexual violence against men. A seminal study on sexual violence against men found that a major reason men did not report the offences to the police was because, ‘Only women are raped.’40 As remedies and redress must flow from this starting point, under-reporting and, relatedly, under-documentation act as a bottleneck. As in the case of sexual violence against women, a complex matrix of factors, including shame and fear, leads to the under-reporting of male sexual violence. The consequences of this crime are manifold, often rooted in biological essentialism, and furthered by gender narratives and stereotypes: Internalised feelings of shame, fear of stigmatization, and legal frameworks and social services that do not recognise men as victims prevent the majority of victims from reporting to the authorities. Gendered assumptions, which for centuries obscured the rape of women and girls, continue to operate to mask what is happening to men and boys; where rape is construed as a violation of women who are regarded as the property of men it is difficult to see men as victims. Where women remain essentialised as submissive, weak and vulnerable it is difficult to acknowledge that they can be perpetrators. When a ‘real man’ is defined as strong and in control and invulnerable, it is easy to assume that if he was engaged in a same-sex act, then surely ‘he must have wanted it’. And where understandings of sexuality and physiology are limited, it is not surprising that if a victim has a physiological response such as an erection, this is mistakenly taken to mean that he was enjoying it.41

Such misconceptions and myths about sexual violence against men manifest in two consequences that are perceived to arise when men suffer this crime.42 As Sivakumaran writes, the first is the ‘feminization’ of male victims, as demonstrated by the 36

UN Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict 2013, p. 10. See e.g. ICTY, Prosecutor v Mucic and Landzo, Trial Chamber Judgement, 16 November 1998, IT-96-21-T, para 1066; ICTY, Prosecutor v Simic et al., Trial Chamber II Judgement, 17 October 2003, IT-95-9-T, paras 728, 772; ICTY, Prosecutor v Momˇcilo Krajišnik, Trial Chamber I Judgement, 27 September 2006, IT-00-39-T, paras 304, 800. 37 Schulz 2015, p. 45. 38 Relatedly, Mookherjee in her examination of the silence surrounding male sexual violence visà-vis the emphasis on the rape of women in independent Bangladesh, argues that racialised and gendered discourses are intricately associated with the link between sexuality and the state in relation to masculinity. See Mookherjee 2012, p. 1572. 39 Sivakumaran 2007, pp. 255–256, 263. 40 This was the view expressed by one man who participated in the study. See Lees 1997, p. 95. 41 Dolan 2014b, p. 4. 42 For a detailed discussion on this issue, see Sivakumaran 2007, pp. 270–273.

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victim’s inability to defend himself, which contradicts the gender norms of male invulnerability and physical strength. This is reflected in the language used by male rape victims to describe the crime: ‘He made me his wife’, ‘They turned me into a woman’,43 ‘They used me like a woman/wife/girl’.44 In the ICC case of Bemba, witness P23, who was anally raped by three armed soldiers in his compound while family members and his neighbour watched, considered himself a ‘dead man’. People in his community disrespected him.45 Male Tamil survivors of torture and sexual violence in detention in Sri Lanka describe being subordinated and ‘feminised’ because of the use of gendered slurs that accompanied their violations. The Sinhalese perpetrators referred to them as ‘sexual slaves’ or ‘prostitutes’ while cursing them with words relating to female ], genitalia such as the word ‘cunt’,46 or ‘pundaiyaandi’ [ the Tamil word for female genitalia: The man asking the questions would call me ‘a Tamil dog’ and asked whether or not I felt any shame as I was being beaten by them. […] He said other degrading things to me such as ‘pundaiyaandi’ which is a word for female genitalia that is used to degrade men.47

Sexual violence in post-conflict Sri Lanka is perpetrated in a context of dehumanisation and subordination, with perpetrators asserting cultural superiority against Tamil detainees. As described above, these depraved acts are exacerbated by degrading misogynistic abuse in the form of swear words. Conditions of detention compound this dehumanisation: dirty cells smelling of human or animal excrement, bloodstained walls and floors, being urinated on or forced to drink urine.48 These conditions reinforce the role played by sexual violence as a potent weapon of ‘emasculation’ and degradation.49 In the case of Sri Lanka, the common conception of what it means to be a ‘real Tamil man’ ( )—that is the paragon of hegemonic masculinity—is that he should be married, have children, and be a breadwinner for his family. A recent study of Tamil masculinity calls it the Warrior-Hero ideal: ‘Attributes include physical and psychological strength, courage in the face of danger, leadership, sexual prowess, and self-reliance—also common expectations

43

UN Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict 2013, p. 13. 44 Institute for International Criminal Investigations 2016, pp. 8–9. 45 ICC TJ, Prosecutor v Jean-Pierre Bemba Gombo, 21 March 2016, ICC-01/05-01/08, para 494. 46 Touquet 2018, W197, pp. 31–34. 47 Ibid., W299, p. 33. 48 Ibid. (‘The men urinated on me and forced me to drink urine. It was sickening. The pain was unbelievable. I felt extremely ashamed and dirty’) Ibid., W221, p. 31. 49 As Schulz highlights, the term ‘emasculation’ is problematic as it links socio-culturally constructed masculinities with biological male sex and reinforces the gendered notions which value masculinity over femininity. However, as it is commonly used in the literature, and as more appropriate language gains purchase, it is used in quotation marks in this chapter. Schulz 2017, p. 88. See also Schulz 2018.

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across many cultures.’50 Due to their experiences of sexual violence, male victims feel diminished when compared against this ideal of hegemonic masculinity.51 A second perceived consequence, to borrow Sivakumaran’s phrase, is the ‘taint’ of homosexuality.52 Victims describe their experience of sexual violence in such terms: ‘I was homosexualised’.53 The perpetrator may well intend to cast this ‘emasculating taint’ that tarnishes the victim’s self-image as a man, as illustrated below: I was taken back to the bigger room and the officers who abused me said to the other officers that I was acting like a gay. ‘Gay’ was the only word I understood as they were talking in Sinhala. … after that incident I did not feel like getting married any more. Whenever I speak to my girlfriend, I remember what was done to me.54

As Alain Kabenga, former president of Men of Hope Refugee Association Uganda (a survivor network for male victims of sexual violence in Uganda), explains: ‘[T]here is a confusion… between male rape and homosexuality. People don’t really know [how] to differentiate who is a male survivor and who is a homosexual. I remember, some time ago I got a problem with “boda” guys.55 [T]hese people recognised… me [from] TV [and] then they [would] say “This is the man promoting homosexuality on the TV.” I went to my local councillor to report to him what had just happened to me… [H]e [asked] me, “Tell me really, who are you? Are you not a homosexual?”’56 The fear of being labelled homosexual is significant, considering the widespread criminalisation of homosexuality. Domestic and international legal frameworks replicate the gender norm of the female victim and male attacker. In many countries, the legally defined crime of rape applies only to women and girls as victims.57 A recent survey of the national laws of 189 countries found that ‘90 per cent of men in conflictaffected countries are in situations where the law provides no protection for them if they become victims of sexual violence; 62 countries, representing almost two-thirds of the world’s population, only recognize female victims of rape; 67 states criminalise men who report abuse’.58 As discussed above, gender norms, stereotypes, and binaries pertaining to men underlie the challenges faced in surfacing sexual violence 50

Affleck et al. 2018, pp. 840, 842. For the Warrior-Hero ideal, the authors refer to HellmannRajanayagam 2005, p. 112. 51 Hegemonic masculinity is the ‘masculinity that occupies the hegemonic position in a given pattern of gender relations’ and is defined as ‘the configuration of gender practice which embodies the currently accepted answer to the problem of the legitimacy of patriarchy, which guarantees (or is taken to guarantee) the dominance position of men and the subordination of women’. Connell 2005, pp. 76–77. 52 See Sivakumaran 2005, p. 1274. 53 Institute for International Criminal Investigations 2016, pp. 10–11. 54 Touquet 2018, W285, pp. 25–26. 55 ‘Boda-boda’ is the term used in Uganda for motorbike taxis. Edström et al. 2016. 56 Ibid., pp. 23–24. 57 For example, the Sri Lankan Penal Code only recognises men as perpetrators and women as victims of rape respectively. According to section 363 of the Penal Code, a man is said to commit rape who has sexual intercourse with a woman under circumstances specified in the code. Edirisinghe and Mudalige 2017. Uganda: The Penal Code Act (Cap120), 15 June 1950, art 123. 58 Dolan 2014b, p. 6.

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directed against them. These dichotomies also contribute to the focus on penetrative male rape to the exclusion of other forms of sexual violence against men, as will be discussed in the following sub-section.

8.2.2 Capturing the Multiple Forms, Motivations, and Victims of Violence Anal rape is perceived as the paradigmatic articulation of sexual violence against men. Consequently, case law and documentation are dominated by descriptions of penetrative anal rape of men and boys, particularly by other men.59 This underlying unwillingness to recognise the multiple forms of sexual violence encompasses a failure to categorise harm and violence against male genitalia as sexual violence. This is illustrated in the case against Uhuru Mugai Kenyatta at the International Criminal Court (ICC) which involved the forced circumcision of Luo men. In this case the Pre-Trial Chamber found that ‘not every act of violence that targets parts of the body commonly associated with sexuality should be considered an act of sexual violence’, thus ruling that neither forced circumcisions nor penile amputations were to be classified as sexual violence within the meaning of the Rome Statute, but rather as inhumane acts.60 The Pre-Trial Chamber went on to find that the violence was intended to demonstrate the cultural domination of the perpetrators over the victims who were members of the Luo community,61 thus sidestepping the sexual aspects of the violations. Yet a single incident of sexual violence can be motivated by multiple purposes, such as exerting cultural superiority and targeting the victim with specific violations due to their gender. These acts can have multiple motivations, even if often elided into the more ‘palatable’ or acceptable categories of motivations, such as cultural domination or torture. This is another manifestation of the discomfort surrounding the recognition of sexual violence, in this instance against men. This unwillingness

59

Sjorberg 2016. ICC, Prosecutor v Francis Kirimi Muthuara, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, Decision, 23 January 2012, ICC-01/09-02/11, paras 264-265. ICC, The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, Decision on the Prosecutor’s Application for Summons to Appear, 8 March 2011, ICC-01/09-02/11, para 27. This case concerns sexual and gender-based violence during the 2007-2008 post-election violence in Kenya. While the full scale of violence is not known, the Kenyan Commission of Inquiry into Post-Election Violence (the Waki Commission) reported that it documented more than 900 cases of sexual violence committed during that period alone. Women and girls were subjected to rape, defilement (sexual assault of a minor), gang rape, forced pregnancy, and other forms of sexual and gender-based violence. Men and boys were subjected to sodomy, forced circumcision, and amputation of their penises, among other forms of sexual and gender-based violence. Physicians for Human Rights 2010. 61 Ibid., para 266. 60

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to discern the complexity of motivations that drive sexual violence results in another accountability lacuna.62 A focus on a single motivation for acts of violence encourages monolithic conceptions of crimes, victims, and perpetrators that are in marked contrast to the complexities of the lived experiences of conflict. Another example of the multiple motivations of sexual violence is in its predatory use during an anti-government revolt by the majority Sinhalese Janatha Vimukthi Peramuna (JVP). Thousands of JVP members were killed and many sexually violated by state actors in their efforts to quell this movement.63 A government-appointed inquiry investigating the second JVP uprising of the late 1980s and early 1990s found that ‘violence against women was used as a tool of control of a community’.64 What is less known is that Singhalese men were also targeted with various forms of sexual violence including the harming of genitals of young Singhala men who supported the JVP.65 De Silva sees this violence as an effort to physically destroy the bodies of young men as a punishment for daring to challenge the dominant gerontocratic and patriarchal order in which the perpetrators are often personally invested, offering another dimension to the multiple purposes and motivations of sexual violence against men.66 Similarly, decades later, as discussed above, Sinhalese perpetrators employed ethnic slurs against male Tamil survivors of sexual violence by referring to them as ‘slaves’. This framing of the violations in the language of racial and cultural superiority67 underlines the intersections between gender and ethnicity, where exertions of cultural superiority drive and underpin sexual violence. Parallels can be drawn between the intent to humiliate victims that surfaces in these narratives and the predicament of the Luo men in Kenya, who were mocked for being uncircumcised before being forcibly circumcised.68 In the case of the Luo community, having foreskin is seen as a sign of manhood. Thus, the forcible removal of foreskin can be perceived as impugning both the victim’s community membership as well as his manhood, thus straddling multiple motivations. Moreover, it has been reported that victims of the forcible circumcision are unable to have erections to have sex, again underscoring the gendered impact of the violation as well as the cultural aspects in terms of affecting the community’s ability to reproduce.69 Thus sexual violence can serve multiple purposes: as a violation per se, and as a means to an end—destroying a community’s reproductive capabilities; or as a means 62

ICC 2014, para 27. The Asia Foundation 2017, p. 162. 64 Government of Sri Lanka 1997, p. 132 cited in The Asia Foundation 2017. 65 De Silva 2005 cited in Myrttinen 2018, p. 81. 66 Ibid. 67 Touquet 2018, pp. 31–34. 68 This pertains to ICC, Prosecutor v Francis Kirimi Muthuara, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, Decision, 23 January 2012, ICC-01/09-02/11. See e.g. Mookherjee 2012, p. 1572. Mookherjee addresses how the wombs of women and the absent skin on the circumcised penises of men become the predominant sites on which racialised and gendered discourses operating during the Bangladesh War are inscribed. 69 Muthiani 2021. https://www.youtube.com/watch?v=s7-DOK_lwW0. Accessed 24 July 2022. 63

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to perpetuate existing hierarchies and supremacies, such as racial, ethnic or gender identities, for instance. The targeting of the reproductive organs has been documented in the conflicts in the former Yugoslavia where Bosnian and Croat men were told by Serb perpetrators that the violations they suffered had the additional purpose of destroying their reproductive capacity.70 Similarly, in relation to women and girls, sexual violence has been employed by extremist groups as a vehicle of persecution directed specifically towards women and girls of reproductive age, as the perceived bearers and transmitters of cultural and ethnic identity and as symbolic repositories of familial and national honour.71 These stereotypes thrive across many cultures and have been used calculatedly against women and girls of reproductive age who are singled out for sexual violence. In Myanmar, Rohingya women and girls aged 13-25 have been targeted for sexual violence.72 Another much overlooked victim group is (LGBTQI+) persons and those otherwise perceived to be stepping outside traditional gender roles. The preexisting vulnerability of LGBTQI+ people—or those perceived or characterized as LGBTQI+—increases in conflict and in post-conflict situations.73 In a lawless environment with amplified stigma, LGBTQI+ people may be particularly vulnerable when seen as ‘legitimate targets for violence’.74 In Islamic-controlled areas of Iraq, those belonging to this group were targeted for ferocious violence.75 Islamic State fighters have reportedly killed men believed to be gay by throwing them off buildings.76 In Syria, LGBTQI+ individuals were sexually violated in government detention facilities77 and at government checkpoints in Damascus.78 LGBTQI+ individuals cited fear of sexual violence as a factor inducing their flight from Syria.79 While these examples represent steps forward in documenting crimes against LGBTQI+ persons, this is a nascent field requiring further investigation and scholarship. As Davis writes, conflict-related atrocities against those marginalised by their societies are inadequately documented, and these experiences are excluded from the human rights discourse, diminishing the prospects for accountability and 70

Myrttinen 2018, p. 73. UNSC 2018, S/2018/250 23, para 13. 72 UNGA 2018, A/HRC/39/64, para 38. There are credible reports of men and boys also being subjected to rape, genital mutilation and sexualised torture. See also UNSC 2018, para 13. See also UN Human Rights Council 2018, A/HRC/42/CRP.4, in which the Independent, International FactFinding Mission on Myanmar documents sexual and gender-based violence against transgender persons as well as marginalised ethnic minorities. 73 Human Dignity Trust undated, pp. 4–11; Human Rights Watch (2018) https://www.hrw.org/rep ort/2018/04/16/audacity-adversity/lgbt-activism-middle-east-and-north-africa. Accessed 24 July 2022; UNSC 2015, S/2015/203; UNSC 2019, S/2019/280, p. 16; Myrttinen et al. 2017, pp. 65–66; Reid 2017, p. 18. 74 Human Dignity Trust undated, pp. 4–11. 75 Davis 2018, pp. 513–514. 76 Ibid. 77 See HRW 2020, p. 41. 78 UN Human Rights Council 2014, p. 12. 79 UNSC 2018, S/2018/250 23, para 19. 71

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justice.80 Such exclusion, limited visibility and consequent impunity for crimes experienced are intertwined with existing hierarchies and power dynamics.81 Specifically, ‘widespread animosity toward sexual and gender diversity goes hand in hand with violence against people based on their real or perceived sexual orientation or gender identity’.82

8.2.3 Female Perpetrators: Of Mothers and Monsters?83 As in the case of sexual violence against men, the data demonstrate that, far from being an insignificant matter, female perpetratorship merits attention and analysis to further accountability for international crimes. After World War II, hundreds of women were tried for crimes relating to concentration camps, euthanasia centres and denunciations.84 In Sierra Leone, over 25% of reported gang rapes that occurred during the civil war allegedly involved female perpetrators.85 Women have been involved in the commission of international crimes, whether crimes against humanity, war crimes or genocide in theatres of war, including the conflicts in the former Yugoslavia, Rwanda and Cambodia.86 Their roles as perpetrators of international crimes, while more visible in domestic prosecutions, have been overshadowed by their paucity in the context of international prosecutions: with Biljana Plavši´c, the only woman tried by the ICTY,87 Pauline Nyiramasuhuko at the ICTR and Ieng Thirith and Im Cheam at the ECCC being the only women to have been tried for 80

Davis 2018, pp. 513–514. See also Rome Statute art 7. By including the mention of two sexes, antigender delegates were hoping to exclude sexual orientation for the definition of gender persecution. Copelon 2000, p. 217. 81 This is also a challenge in other areas of research. See Cornell Law School 2021, p. 10 ‘Researchers found that there is little to no publicly available information about trans and non-binary individuals facing the death penalty for drug offenses, noting that ‘until more death penalty advocates engage with the rights of trans and non-binary people, studies on gender and capital punishment will be limited largely to cis-women’, 82 HRW 2020, p. 23. 83 Sjoberg and Gentry 2007. 84 See Linton 2016, p. 59. 85 Cohen 2013, pp. 383, 399, 400. 86 International examples include ICTY, Biljana Plavši´ c; ICTR, Pauline Nyiramasuhuko; ECCC, Ieng Thirith and Im Cheam; ICC, Simone Gbagbo. Domestic cases include Richburg 2001. https://www.washingtonpost.com/archive/politics/2001/06/09/rwandan-nuns-jailed-ingenocide/fce3308b-3e6e-4784-8490-0887f69c7a39/. Accessed 24 July 2022; Martinez (2011) https://www.cbsnews.com/news/kentucky-woman-indicted-for-bosnian-war-crimes/. Accessed 24 July 2022; BBC News (2013) http://www.bbc.co.uk/news/world-africa-21632819. Accessed 28 September 2015; Cerkez (2011) https://www.nbcnews.com/id/wbna45799565. Accessed 24 July 2022; Sguegila (2013) https://edition.cnn.com/2013/02/21/us/new-hampshire-rwanda-genocide/ index.html. Accessed 24 July 2022; Mirror (2011) http://www.mirror.co.uk/news/uk-news/bosniaarrests-female-monster---98517. Accessed 28 September 2015; BBC News (2009) http://news.bbc. co.uk/1/hi/8412014.stm. Accessed 24 July 2022; as cited in fn 3, 4 in Labenski 2019, p. 42. 87 Labenski 2019, p. 25.

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international crimes.88 The invisibility of female perpetrators in the international arena is linked to the jurisdiction and mandate of international tribunals, which is to try those most responsible.89 Very few women are able to climb the ladder to hold highranking positions of responsibility within domestic power structures (government, military, police etc), due to systematic gender inequality propagated by patriarchy. Even where female perpetrators have been prosecuted in domestic courts, the impacts of gender norms and stereotypes remain unabated. In relation to recent domestic prosecutions of ISIS-associated women under the principle of universal jurisdiction in Germany, Kather and Sudiszky argue that these cases lack a proper analysis of their agency as women living under ISIS’ repressive gender norms.90 They highlight a gendered prosecution strategy in which ISIS-associated men and women face different charges for the same underlying acts. For example, ISIS-associated men who also lived in houses obtained by ISIS were not charged with the war crime of pillage, but ISIS-associated women were. Further, only females were charged with crimes (both national and international) involving their own children.91 The mystique surrounding female perpetrators of serious crimes is another corollary of the female victim and male perpetrator stereotype. According to Sjoberg and Gentry, women are idolised as pristine and pure objects incapable of mass murder and genocidal behaviour.92 Sjoberg and Gentry characterise this as the mother/monster/whore narrative.93 The mother narrative describes women’s violence as a need to belong, a need to nurture, and a way of taking care of and being loyal to men. The monster narrative eliminates rational behaviour, ideological motivation and culpability from women engaged in political violence. It describes violent women as insane and in denial of their femininity. The whore narrative blames violence on the evils of female sexuality at its most intense or at its most vulnerable. In a nutshell, female perpetrators are treated ‘not like men, not like women, but something else, like monsters’.94 These destructive and reductive stereotypes have also reared their heads within international criminal prosecutions. In 2001, Pauline Nyiramasuhuko, the former Rwandan Minister for Family Welfare and Advancement of Women, gained notoriety as the first woman to be prosecuted by an international tribunal for the crime of genocide.95 Nyiramasuhuko was tried at the International Criminal Tribunal for 88

Hodgson 2017, pp. 337, 343. See for example the mandates of the ICTY: https://www.icty.org/en/about/tribunal/mandateand-crimes-under-icty-jurisdiction; the ICTR: https://legal.un.org/avl/ha/ictr/ictr.html; the SCSL: https://legal.un.org/avl/ha/scsl/scsl.html 90 Studzinsky and Kather 2021, pp. 894, 907; see also Kather and Schroeter 2019. 91 Studzinsky and Kather 2021, p. 907. 92 Sjoberg and Gentry 2007. 93 Ibid., p. 13. 94 Ibid.; See also Hogg 2010, p. 100. 95 See ICTR, The Prosecutor v. Pauline Nyiramasuhuko et al, Trial Judgement, 24 June 2011, ICTR-98-42-T. It is estimated that between April and July 1994 approximately 77% of the Tutsi population of Rwanda was eradicated. Nearly all the victims were killed within the first 90 days of the genocide, five times as swift as the Nazi extermination of Jews in the Holocaust, Sperling 89

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Rwanda for these acts together with her son, who was also accused of genocide and rape.96 The prevalence of sexual violence during the conflict in Rwanda was such that ‘rape was the rule and its absence the exception’.97 Yet, during her trial, instead of the shocking crimes she stood accused of, public attention was transfixed by Nyiramasuhuko’s gender, as embodied by her femininity and motherhood.98 As Sperling writes, ‘the press asks: how could a woman, a mother, a female that looks so feminine commit such atrocities?’99 Nyiramasuhuko herself relied on her gender in defending herself against the charges levelled against her: ‘I cannot even kill a chicken. If there is a person who says that a woman, a mother, killed, then I’ll confront that person...’100 Other family members including her mother echoed this gender-biased narrative: ‘It is unimaginable that she did these things. She wouldn’t order people to rape and kill. After all, Pauline is a mother.’101 The media flurry surrounding Nyiramasuhuko’s trial was at the very least misleading, as she was by no means the lone female perpetrator of atrocity crimes in the Rwandan conflict. Women and girls, some of whom were mothers, were willing participants in the Rwandan genocide. The final report of the Gacaca proceedings records that of the 1.2 million persons who have been processed through this mechanism, some 9% were females, with an estimated 50,000 women convicted for their participation in genocide.102 The media frenzy whipped up over Nyiramasuhuko’s gender harks back to the prosecution of Elisa Koch more than 50 years before, after the Second World War. In their recent paper, Drumbl and Mouthaan delve into the prosecutions of Elisa Koch, who received unprecedented public attention as the sole female defendant in 2006 citing Human Rights Watch (1999) http://www.hrw.org/reports/1999/rwanda. Accessed 24 July 2022; Prunier 1997, p. 261; between 500,000 and one million people are calculated to have been killed by the Hutu extremists. 96 ICTR, Prosecutor v Nyiramasuhuko, Amendment Indictment, 3 January 2001, ICTR 97-21-I, p. 6. The joint trial of Nyiramasuhuko and her five co-accused concluded on 30 April 2009: Sperling 2006, p. 637 97 Ibid. 98 Ibid. 99 Sperling 2006, p. 637. 100 African Rights 1995, p. 106. 101 Sperling 2006, pp. 637, 656. Here parallels can be drawn with the ‘fatherhood defence’ which has been deployed to defend against misogynist and sexist behaviour. For example, in comments overheard by a reporter for The Hill newspaper, American Senator Yoho confronted Senator OcasioCortez on a staircase in the Capitol calling her ‘disgusting’ for her comments linking poverty and crime. As she left, Yoho called her a ‘f------ b----’, according to The Hill. Yoho denied he had targeted the profane remarks at Ocasio-Cortez in an apology delivered on the House floor the next day. ‘Having been married for 45 years with two daughters, I’m very cognizant of my language,’ he said. ‘The offensive name-calling words attributed to me by the press were never spoken to my colleagues and if they were construed that way, I apologize for their misunderstanding.’ In response, Senator Ocasio-Cortez pointed out that having a daughter does not make a man decent. By the same token, motherhood does not provide a prima facie defence when accused of crimes. 102 Linton 2016, p. 167, pointing out that this is based on a conviction rate of approximately 65% which is widely cited but for which the source is unclear.

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the case of United States of America v Josias Prince zu Waldeck et al (known as the ‘Buchenwald Case’). In 1947, Koch was charged with war crimes committed in the Buchenwald Camp.103 While Koch’s sentence was commuted following her first trial, public pressure led to her rearrest and a second trial.104 As was the case with Nyiramasuhuko, in both her trials Koch leveraged the womanhood narrative to project the image of a normal SS wife and mother, who took care of her children, who rode horseback and who was innocent of the horrors at Buchenwald Camp.105 Here, the wife narrative was also deployed. The wife narrative encloses the defendant’s actions within her relationship with her husband or partner, and this then becomes the basis to explain or justify the defendant’s involvement in crimes.106 As Hodgson argues, while the wife narrative is similar to the whore narrative, which also depicts women as acting under the control of men, the wife narrative focuses less on the sexualising of the defendant and her behaviour, and more on understanding the influence that the defendant’s romantic connections have had on her decisionmaking process.107 The wife narrative was the dominant narrative relied on by the prosecution and the Pre-Trial Chamber in understanding the motives behind Simone Gbagbo’s involvement in the mass violence committed after the election in Côte d’Ivoire in 2010-2011.108

8.2.4 Stereotyped and Straightjacketed As Drumbl and Mouthaan write, in responding to female perpetrators, judicial actors tend to confine them to both ends of the punishment spectrum. On the one hand, under the chivalry theory, women who perpetrate atrocities are either not prosecuted (as has been noted in Rwanda), or are assigned low sentences. 109 On the other, female 103

Drumbl and Mouthaan 2021, pp. 1, 6. Ibid., p. 11. General Lucius Clay (the interim military governor of the American) commuted her sentence. According to his biography, he called Koch a ‘loathsome creature’ and that he ‘received more abuse for’ reducing Koch’s sentence ‘than for anything else [he] did in Germany’. 105 Ibid., pp. 10–13. 106 Hodgson 2017, p. 349. 107 Ibid., p. 349. 108 Hodgson also identifies this narrative in four other cases: Ieng Thirith who was convicted for before the ECCC, Rasema Handanovi´c who was convicted of war crimes committed during the conflict in Bosnia and Herzegovina; Court of Bosnia and Herzegovina, Prosecutor v Handanovi´c, First Instance Verdict, 30 April 2012, S 1 1 K 009162 12 Kro, para 15; and in the case of Nyiramasuhuko. In the cases of Ieng Thirith and Nyiramasuhuko these narratives were challenged. Ibid., pp. 349-353. 109 Alette Smeulers and Olivera Simi´ c analysed 8 female perpetrators who committed atrocities during conflict in Bosnia and Herzegovina. They note that, in general, the sentences of these defendants seem to be more lenient than those for men. However, they point out that a full statistical analysis and comparison of cases against male and female perpetrators would be needed to substantiate this intuitive observation. Absent this analysis, they can merely state that, but for Rasema Handanovi´c, these women received prison sentences that were in the low range, given the gravity 104

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perpetrators who were prosecuted after the Second World War were sentenced more severely than their similarly situated male comrades.110 Nyiramasuhuko argued in her defence that the reason she was being prosecuted was because she was an educated woman.111 Although the prosecutions of Elisa Koch and Pauline Nyiramasuhuko were separated by over 50 years and different cultural, social and political contexts, their experiences share a commonality. They are united by the outsized attention given to their gender as their defining personal characteristic throughout their trials. These gender narratives and stereotypes ultimately strip female perpetrators of their agency and autonomy, providing a hollow/‘straw [wo]man’ portrayal of their involvement in committing serious crimes. Feminist interventions at the ICTY and ICTR, it has been argued, reinforced the male and female binary through the focus on female victims of sexual violence and male perpetrators.112 These binaries, which stem from gender norms and stereotypes, do not reflect the varied roles played by women in conflict. For example, research on violent extremist groups in South and South-East Asia indicates that women are high-profile recruiters and perpetrators of violence, and as such contradict the idealised image of the submissive, soft-spoken Asian woman whose life is confined to the home. The limited accounts available from women who are violent extremists often indicate a keen sense of agency and empowerment in their decisions to join extremist groups, where some also take on active and public roles.113 Without highlighting these different identities and functions of women in conflict, discussions about female perpetrators become anecdotal,114 and conveniently correspond with the stereotype of the perennial female victim. As Drumbl and Mouthaan note, ‘personality-based assessment also contributes to the fetishization of the female perpetrator’. Depicted as hyper-sexualized, Koch was described in demeaning and derogatory language as ‘creature’, ‘red-headed cocotte’, ‘bitch’, ‘witch’, beast’, ‘Butcher Widow’, ‘Venus Callipyge’ and ‘the Queen of Buchenwald’. Do we reinforce these tropes when we repeat them in academic research? Does focussing on single perpetrators reinforce the personality cult of the phenomenon of female perpetrators? The use of first names appears to be reserved for female perpetrators: ‘Pauline’s Role in the Genocide’ reads the section heading in Sperling’s seminal article of the prosecution of Nyiramasuhuko. It is difficult to imagine academic articles referring to Ratko Mladic or Radovan Karadži´c, who were also convicted of genocide,115 with section headings such as ‘Ratko’s Role in the Genocide’, or ‘Responses to Allegations about Radovan’s Role’. Does the of their crimes. It is unclear what if any role their sex had as a causal factor in their sentences. Smeulers and Simi´c 2018, pp. 87–89. 110 Drumbl and Mouthaan 2021, pp. 155–157. 111 Sperling 2006, p. 650. 112 See Charlesworth 2002, p. 389. 113 See USAID 2011. https://www.usaid.gov/sites/default/files/documents/1870/VEI_Policy_ Final.pdf. Accessed 24 July 2022. See also Conway 2017, p. 77. 114 Davison 2018. pp. 16–17. 115 ICTY, Prosecutor v Mladic, 24 July 2014, IT-09-92-AR73.4; ICTY, Prosecutor v Karadzic, 11 July 2013, IT-9S-SI18-AR98bis.l.

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personalised or ‘homey’/familiar language in academic articles –such as the use of the first name—contribute to gendered narratives that stymie a dispassionate analysis of female perpetrators and their crimes? It would appear that we struggle to grasp the reality or even the possibility of the ‘banality of evil’116 when it comes to female perpetrators, and seen through sexist and reductionist narratives their ‘othering’/monstering serves as emotional and ‘logical’ crutches which are leaned on to explain ‘exceptional’ crimes. The following quote about Monika Karan-Ili´c, who has been described as ‘probably the most famous female perpetrator of war crimes during the conflict in Bosnia Herzegovina,’117 captures this perceived lack of agency, autonomy and intent: She was a little girl with only a woman’s name. She was not a woman, she was a monster. There aren’t many people like that. Was she born like that or was she taught, or did she do all that unknowingly?’118

Monika Karan-Ili´c started committing crimes at sixteen.119 She was charged with torture, inhumane treatment, and physical and mental abuse of prisoners against Bosnians and Croats in the Luka prison camp in Brˇcko in May-July 1992. As the sister of the camp commander Konstantin Simonovi´c at Brˇcko, and the girlfriend of Goran Jelisi´c, her notoriety is also linked to her personal relationships.120 Her participation in crimes committed by Jelisi´c was noted in the ICTY case against Jelisi´c, who was sentenced to 40 years in prison.121 She faced trial in a domestic court in Bosnia Herzegovina and was sentenced to 4 years in prison. Her sentence was subsequently reduced to 2½ years by the Appeals Chamber, on the basis that two charges had not been proven.122

8.2.5 Heeding Harms in the Eyes of Those Harmed Koch was convicted of war crimes in her second trial and imprisoned for life.123 Nyiramasuhuko was convicted of the crime of genocide including sexual violence. 116

To borrow the phrase coined by Arendt 1963. Smeulers and Simi´c 2018, p. 73. For an overview of articles on the case, see BIRN Justice Report (undated) http://www.justice-report.com/en/cases/karan-ilic-monika-news-analysisand-opinion. Accessed 28 August 2015. 118 See Balkan Transitional Justice Reports 2011. 119 Smeulers and Simi´ c 2018, p. 73. 120 ICTY, Prosecutor v Goran Jelisi´ c, 5 July 2001, ICTY IT-95-10-A. 121 See ICTY, Prosecutor v Goran Jelisi´ c, Judgment, 14 December 1999, IT-95-10-T. The Trial Chamber notes that the presence of a woman at Goran Jelisi´c’s side also seems to have encouraged him to commit certain murders to impress the young woman. During the closing statements of the trial, she stated that she suffered under Jelisi´c’s tyranny: ‘I am Jelisi´c’s war trophy, a sexual object with a damaged mind, a victim, a Croat mother’s child who was forced to come to the Luka camp with him two or three times’. Arnautovic 2013. 122 Smeulers and Simi´ c 2018, p. 75. 123 Drumbl and Mouthaan 2021, p. 2. 117

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In doing so, the ICTR sedulously adopted a gender-neutral approach in assessing evidence relating to her genocidal intent.124 Drumbl and Mouthaan note that the judgment reads awkwardly, as if she had no gender.125 They ask, ‘is it worse when a woman abuses a man?’ The significance of the gender of the perpetrator is discussed below. In the context of prosecutions during the Second World War, since ‘[f]emale cruelty was considered by the prisoners and the allies to be a more serious crime than male brutality,’ perhaps the law simply gives voice to this survivor-centred view.126 In contrast, Susannah Heschel remarks that ‘men’s cruelty is discussed without reference to their gender, as though the connection between atrocity and maleness is self-evident’.127 Some male victims of sexual violence report that being violated by female perpetrators exacerbated their sense of shame and humiliation.128 Given the reversal of traditional gender roles and stereotypes pertaining to who asserts control and dominates, perhaps this outcome is unsurprising. One Tamil male survivor describes a female intelligence officer who sexually tortured him: I was also interrogated by a female intelligence officer who badly tortured me. She was in uniform. She beat me with batons. She was the worst torturer. She sexually tortured me. She stamped on my private parts and she beat me with sticks on my private parts. She tied my penis with thin thread and pulled it. She spoke Tamil but she was Sinhalese. She had a strongly built body like men. Always in uniform.129 [emphasis added]

In his account, the survivor describes the female perpetrator’s characteristics that denote masculinity and authority (see emphasis above). Thus, witness accounts demonstrate that, as in the case of male perpetrators, female perpetrators also wield control and domination over their victims. By contrast, another Tamil male survivor when describing female officers perpetrating group sexual torture references attire and physical traits that denote femininity: We were brought naked into a room with four female police officers, two in skirt uniform, two wearing sari and one was pregnant. […] X opened a drawer in a low table. He told me to bend forward and to put my penis inside the drawer. I couldn’t do it properly, so one of the female police officers started masturbating me so my penis could become bigger and then she put my penis inside the drawer. I heard them all laughing.130 [emphasis added]

These accounts provide some indication of the significance of the gender dynamics between perpetrators and victims. Even if acts of violence are similar, the meanings attached to them by perpetrators, victims, and broader society appear to vary, 124

Sperling 2006, p. 664. Drumbl and Mouthaan 2021, p. 17. 126 Lasik 2000, p. V/110. 127 Heschel 2004, p. 305. 128 On file with the author. 129 Touquet 2018, W182, p. 21. 130 Ibid W297, 21. The UN reports that one man described having his penis put in a drawer which was then slammed shut. Human Rights Council 2015, A/HRC/30/CRP2, para 594. 125

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depending on many factors. These include the site of the violation, the conflictcontext, the socio-cultural background, and the identity of the perpetrator and victim, including their gender. Moreover, acts of violence might be informed by the perpetrators’ understanding of the significance of and role within the crimes, and how these accord with their self-image, their narrative of the conflict, and perception of the victim and the victim’s role in the conflict.131 Questions thus remain to what extent, if at all, does gender impact the harms experienced by the victim and influence the behaviour of the perpetrator? What is the significance of the gender dynamics between the victim and the perpetrator, and what implications might this have for both? It would appear that the gender of the perpetrator and victim can have tangible impacts on the harm experienced by the victim, while also affecting the prospects and quality of accountability. How do these outcomes vary with different permutations of victim/perpetrator gender? For example, when a male victim is violated by a female perpetrator? Does the type of violation, for example acts considered particularly humiliating to the victim, such as sexual violence, impact the victim/perpetrator gender dynamic? An exploration of these issues is needed for more nuanced understandings of the interplay between gender and the harms experienced by victims, and to achieve fuller articulation of the crimes.

8.3 Inclusive Approaches Towards Gender and Sexual and Gender-Based Crimes The dichotomies explored above—whether male vs female vs LGBTQI+ persons and those with non-binary gender and sexual identities, rape vs other forms of sexual violence, the rarefied female perpetrator vs the invisible male victim—belie a rigidity of approach that curtails accountability for sexual and gender-based crimes. Against these constrained articulations of gender, this section probes two related questions. Why, and how should a more capacious approach towards gender be favoured when analysing conflict-related crimes? In answering these questions, this section builds on existing scholarly work on harm analysis, to complement gender analysis by drawing on other disciplines. The intention is to create richer and more accurate conceptions of harms that would resonate with survivor-centred and survivor-driven approaches that deliver tailored remedies for sexual and gender-based crimes.

8.3.1 Honing in on Harms Analysing sexual and gender-based crimes as crimes that affect all genders can reap synergies in understanding and furthering accountability for this violation. 131

See Myrttinen 2018, p. 71.

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Accountability for crimes of sexual violence can be promoted by contextualising these offences alongside other conflict related crimes.132 Similarly, better accountability for crimes such as sexual violence against men can be achieved if these crimes are addressed and assessed alongside other crimes, including sexual violence committed against persons of other genders, such as women. Sivakumaran argues that ‘the dynamics, the constructions of masculinity and femininity and the stereotypes involved are similar’.133 Sexual violence against men shares the same gender-based logic as sexual violence against women and girls; it is effective as an instrument of humiliation and debilitation wielded by perpetrators against a backdrop of patriarchal gender norms in which men are regarded as superior and women as inferior.134 There are also many parallels between the high levels of social stigma, exclusion and the psychological impact of being labelled a ‘whore’ and being labelled ‘gay’. Both men and women experience a challenge to their gender identity, with many female victims being denoted as ‘useless’ or ‘whores’, and many male victims losing their social identity and physical capacity to fulfil basic expectations of providing for their families.135 For example, women in Kinyandonyi in the Eastern DRC believe that the rape of a man reduces him to a useless being, and that he loses his authority in the community.136 Importantly, while parallel harmful gender norms and stereotypes may underlie and drive sexual violence in conflict against victims of different genders, the impact, social response and challenges of securing justice can differ greatly between gender.137 One way to capture this plurality is to surface the nature of the discrimination and consequent harms endured by different victims’ groups of different genders.138 For example, gender-based discrimination is found when the individual is part of an oppressed gender group like women. Gender-based violence against women is a manifestation of underlying power relations, including structural gender discrimination that is exacerbated in conflict. It is perpetrated in a landscape of systemic gender inequality that is fuelled by patriarchy. Thus, the way we address sexual and gender-based violence against women is by addressing the discrimination that sustains it. Similarly, discrimination is embedded in the daily lives of many LGBTQI+ persons, as illustrated by the case of Diana Sacayán, a transgender and human rights defender in Argentina. She was murdered in Argentina in 2015, a few weeks after persuading the Buenos Aires State legislature to adopt a law that included improvements to transgender rights. The charge laid for her killing was aggravated homicide 132

Gopalan 2016; Jarvis and Vigneswaran 2016, pp. 33–72. Sivakumaran 2007, p. 260. This debate has now evolved into a discussion of masculinities, underscoring the different types of masculinities. 134 Ibid., p. 260. 135 UN Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict 2013, pp. 13–14. 136 Dolan 2010, p. 22. 137 See e.g. Jarvis and Vigneswaran 2016, pp. 33–72. 138 I am grateful to Lisa Davis for this observation. 133

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motivated by hatred for the victim’s transvestite gender identity (‘transvesticide’), rather than as femicide, although she had been recognised as a woman in her identity documents. Diana Sacayán was beaten, tied, gagged, and stabbed in the abdomen. This case is an object example of the discrimination suffered by LGBTQI+ persons, which is characterised by high levels of cruelty and harm directly related to Diana Sacayán’s gender identity as a transvestite woman.139 The framing of the crime as ‘transvesticide’ allows the nature of the discrimination and consequent harms endured by Diana Sacayán as a LGBTQI+ person to be the defining characteristic of her violations. This approach chimes with the views expressed by Judge Benito in in the ICC case of the Prosecutor v Thomas Lubanga Dyilo, who stated that aside from embarking solely on a determination of the guilt or innocence of an accused person ‘ICC trial proceedings should also attend to the harm suffered by the victims as a result of the crimes within the jurisdiction of the Court. …. The harm suffered by victims is not only reserved for reparations proceedings but should be a fundamental aspect of the Chamber’s evaluation of the crimes committed’. [emphasis added] Harm analysis sharpens our ability to recognise the precise impacts of violations on the victim. Situating harm as a foundational aspect of a crime permits scrutiny of this concept, providing the opportunity to nuance its many facets. For instance, notions of harm are not fixed, nor are they temporally static. Instead, the concept of harm can evolve as we interrogate and deepen our understanding of the nature of the violations and consequent harms suffered by the victim. The case of Helena, who was unlawfully recruited by the FARC-EP in Colombia, underscores the significance of this approach when assessing harm. Helena was 14 when she was forced by the FARC-EP to take contraceptives, and as an adult she was forced to have an abortion that caused lasting damage, both physically and psychologically. While the forced contraception and forced abortion suffered by Helena were initially characterised as a form of sexual violence, as her case progressed these violations were articulated as reproductive violence. This was recognised by the Constitutional Court of Colombia.140 In this case, the broad catch-all violation of sexual violence was distilled to accord with the specific harms inflicted on the victim. Further depth to the concept of harm is provided by Diane Sankey, who draws upon the notion of social harm as an analytical framework to nuance the female experiences of forced population movements under the Khmer Rouge regime. Referring to case 002/01 before the ECCC, Sankey argues that in relation to forced population movements social harms such as family separations and starvation remained 139

In 2018, the court sentenced the accused to life imprisonment for aggravated homicide motivated by gender-based hatred and by violence. The National Criminal Appeals Court later affirmed the conviction for the homicide of Sacayán which was ‘aggravated by the fact that it was a crime of gender-based violence’, but it ruled out the aggravating circumstance of ‘hatred of gender identity’ that had been considered by the trial court. The prosecution filed an extraordinary appeal before the National Supreme Court of Justice, which is still pending at the time of writing: UN Human Rights Office of the High Commissioner (2021) https://www.ohchr.org/Documents/Issues/Women/ WRGS/SL-LatinAmerica-EN.pdf. Accessed 24 July 2022. 140 Ibid., p. 22.

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submerged. She advocates for a ‘social understanding of harm that reflects the impact of harms on families, communities, and social structures and how the social interrelates with and often shapes individual lived experiences, rather than perceiving harm to focus predominantly on the individual’.141 Relatedly, Ní Aoláin writes that ‘understanding the relational nature of the self opens the plurality and complexity of harm and the ways in which harm is understood and experienced through social meanings and relationships’.142 International criminal prosecutions have explored, through expert evidence, the relational and social harms of crimes, including their cultural and psychological aspects. During the ICTY case of Krsti´c on the Srebrenica killings, staff members at Vive Žene Center for Rehabilitation and Prevention (an organisation specialising in multidisciplinary treatment programs for victims of trauma), provided expert testimony on ‘Srebrenica Syndrome’ which was identified as a unique impediment to survivors’ recovery. Many of the factors that gave rise to this syndrome were linked to the social and cultural context of Bosnian society, as well as to the status of women within it. For example, with few exceptions, the fate of the survivor’s loved ones was not officially known, as most men of Srebrenica were still listed as missing. It was essential for Bosnian Muslim women to have a clear marital status. 143 A woman whose husband was missing did not fit into the categories of widowed, divorced or married. 144 The women were unable to move forward psychologically with their recovery process without the closure that came from knowing with certainty what happened to family members and properly grieving for them. 145 The Trial Chamber also heard of the collective guilt experienced by the women because they had survived while their husbands, brothers and fathers had not.146 These facets of ‘Srebrenica Syndrome’ occur in the context of overarching social or relational harm experienced by the women as a result of the loss of their male family members. In addition, therapies provided by Vive Žene in Bosnia and Herzegovina are based on a notion of trauma that makes a strong connection between personal experience and the context—trauma that can only be understood in a specific social-culturalpolitical context.147 This is seen in other cultural contexts too. For example, the Cambodian psychiatrist Sotheara Chhim, identifies ‘Baksbat’ (‘Broken Courage’) as a trauma-based cultural syndrome in Cambodia. He finds that ‘Baksbat’ is a Cambodian idiom of distress with sufficient characteristics to be recognised as formal

141

Aoláin 2009, p. 224 in Sankey 2016, pp. 7, 13. Ibid., p. 236. 143 ICTY, The Prosecutor v Radislav Krsti´ c, 2 August 2001, IT-98-33-T, para 93. 144 Ibid. 145 Ibid. 146 Ibid. 147 Presentation of Augustina Rahmanovi´ c, Center for Rehabilitation and Prevention «Vive Žene», Tuzla, Bosnia Herzegovina. https://www.ohchr.org/sites/default/files/Documents/Issues/ Torture/UNVFVT/Surviving_Torture_and_Fighting_Stigma_Workshop_Report.pdf. Accessed 24 July 2022. 142

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cultural trauma syndrome distinct from Post-Traumatic Stress Disorder (PTSD).148 Similarly, a common idiom of distress for Tamil survivors of the conflict in Sri Lanka is ‘Walking Corpse Syndrome’.149 This relational and social understanding of harm also manifests in the context of ‘bush husbands’, through their multiple identities and relationships: as husbands, fathers, and fighters. In their illuminating work on the experiences of ‘bush husbands’ within forced marriages in the Lord’s Resistance Army (‘LRA’) in Northern Uganda, Denov and Drumbl ask that the law acknowledges the harms that forced marriage and sexual violence impose on all those affected by these crimes, including boys and girls and men and women, so as to redefine the extant focus on the victim, as defined by the narrow bounds of female victimhood. In the same way that sexual violence against men and boys has been consistently overlooked or reconstituted as acts of torture devoid of a sexual component, this pattern is repeated in cases of forced marriages, with the perspective of the female victim overriding a fuller narration of its harms. Denov and Drumbl advocate for the greater and better reliance on expert ethnographic evidence before the ICC to deliver more informed justice outcomes for men who are involved in forced marriages—a form sexual and gender-based violence.150 When relied on in international criminal trials, expert evidence permits other disciplines to intersect with legal reasoning so as to enrich and inform both the legal process and the decision-making. This approach provides an analytical overlay that can further better accountability outcomes. While an interdisciplinary analysis is not without its limitations, as it seeks to navigate different fields, approaches and ultimate goals that might be irreconcilable, nonetheless it can offer valuable insights and learnings that inform legal analysis and proceedings.151 For example, in surfacing the many harms occasioned by forced marriage, Denov and Drumbl harnessed an interdisciplinary framework that merges elements of law and social science. They undertook ethnographic fieldwork in Northern Uganda to garner the perspectives of LRA ‘bush husbands’, and this informed their nuanced articulation of the harms the ‘bush husbands’ experienced.152

8.3.2 Unravelling Intersectional Harms Through their work, Denov and Drumbl plug a gap in research and academic attention relating to the realities of men and boys in forced marriage, as compelled parents or 148

‘The phrase “idioms of distress” describes specific expressions of psychological disorder that occur and are recognised by members of particular cultures.’ Sotheara Chhim 2013, p. 160. 149 Affleck et al. 2018, p. 1. 150 Denov and Drumbl note that sexual violence against men and boys by the LRA is poorly acknowledged and redressed. Denov and Drumbl 2020, p. 354. See also ICC 2014, para 57. 151 Drumbl (2021) https://www.youtube.com/watch?v=s7-DOK_lwW0. Accessed 24 July 2022. 152 Denov and Drumbl 2020, p. 354.

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‘bush husbands’. They point out that in academic literature forced pregnancy, which characterises the crime from the perspective of the woman and girls, is the dominant narrative, while forced parenthood, the flip side of the crime that includes the male perspective, is scarcely considered.153 They argue that this approach misses the opportunity to deepen our understandings and assumptions of men and masculinities in the context of forced marriage which presents a complex array of selfidentified positions: as high-ranking members of the LRA, captives of the LRA, victims of forced marriage, perpetrators of forced marriage, as husbands and fathers. In response, they propose ‘detaching the criminalisation of forced marriage from a largely gender-based analysis to a more nuanced one rooted in multi-party coercion’.154 They call for a gender-informed approach that examines the experiences of both male and female victims of forced marriage.155 This process of parsing the nature of the coercion to an approach that is genderinformed, but not solely gender-based, provides a pathway to other analytical possibilities to better articulate the drivers, multiple facets and impacts of sexual and gender-based crimes. While these crimes by their very nature are inextricably bound to gender, gender—while a significant factor to understanding the nature of coercion—is not the sole factor or analytical tool to be relied upon to surface harms. Individuals face discrimination in multiple and compounded ways due to various facets of their identity. Intersectional identities affect the ways in which individuals experience violence. As such, intersectional analysis can offer more nuance and depth as an analytical tool.156 It permits a more insightful conception of the nature and types of harms which straddle other personal characteristics and circumstances of the victims. Gender, together with other factors like gender identity and sexual orientation, as well as age, ethnicity/race, indigenous or minority status, disability, socioeconomic status and religion or belief, marital and/or maternal status, displacement, education level, migrant, HIV/AIDs, inter alia, are some of the individual factors that influence the specific impacts on, and consequently the needs of victims.157 These factors create and reinforce inequalities and privilege, not only between genders but also among genders, as well as between victims and perpetrators. Such distinctions matter in understanding a crime that is tethered to power inequalities, including ethnicity and racial divisions, that not only manifest in conflicts, but also drive and exacerbate them.

153

Ibid. Ibid. 155 Ibid. 156 Columbia Law School (undated) https://www.law.columbia.edu/faculty/kimberle-w-crenshaw. Accessed 24 July 2022. ‘Kimberlé W Crenshaw is a pioneering scholar and writer on civil rights, critical race theory, black feminist legal theory, and race, racism and the law. In addition to her position at Columbia Law School, she is a Distinguished Professor of Law at the University of California, Los Angeles. Crenshaw’s work has been foundational in critical race theory and in “intersectionality”, a term she coined to describe the double bind of simultaneous racial and gender prejudice.’ 157 World Food Programme 2015, para 12. 154

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Unravelling these intersecting identities through intersectional analysis surfaces the full gamut of harms suffered. In the case of Korean ‘comfort women’ during the Second World War, the combined effects of colonialism, gender inequality and class are pertinent intersectional factors. Japan’s colonisation of Korea was a critical factor in the sexual enslavement of Korean women; a state-supported patriarchal system in Japan facilitated the establishment of military brothels, while patriarchal customs in Korea perpetuated further victimisation upon their return home. Being drawn largely from impoverished families, Korean victims were also more vulnerable to sexual slavery due to their economic and social status.158 Moreover, this social and economic status meant that for some, even when eventually freed from slavery, future prospects were limited, as they were forced to work as sex workers to support themselves.159 Intersectional analysis, while at a nascent stage in international criminal law, is a well-established analytical tool in human rights law. Intersectional discrimination acknowledges ‘that individuals do not experience discrimination as members of a homogenous group but rather, as individuals with multidimensional layers of identities, statuses and life circumstances’.160 Decisions and general recommendations of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) Committee regularly address the intersectional aspects of women’s human’s rights violations, offering a solid body of acquis and analysis that international criminal law could potentially draw upon to deepen the harm-focused assessment discussed above.161 While CEDAW case law is confined to violation of women’s rights, the analytical lens of intersectionality can of course be broadened. For example, as argued by Kristin Bergtora Sandvik, the killing of men using drone strikes overwhelmingly impacts young, poor men of non-Caucasian ethnicity,162 thus highlighting the intersections between gender, race, ethnicity, and socio-economic status. Intersectional analysis resonates with the idea of social harm discussed above, as it also ‘draws on an understanding of human connectedness, opens the complexities of human relationships and the ways in which underlying inequalities, including gender, shape experiences’.163

158

Gap Min 2003, pp. 938–940. Hicks 1995, p. xxi, cited in Askin 2001, pp. 5, 25. 160 Committee on the Rights of Persons with Disabilities 2016, CRPD/C/GC/3, para 16. See also Crenshaw 1991, p. 1241, in which Crenshaw highlights ‘the need to account for multiple grounds of identity when considering how the social world is constructed’. 161 CEDAW (adopted 18 December 1979, entered into force 3 September 1981), 1249 UNTS 13. See e.g. CEDAW 2010, paras 18, 26; CEDAW 2008; CEDAW 1999; CEDAW 1992. A number of cases which address the issue of intersectionality have also been referred to the CEDAW Committee via the Optional Protocol procedure that deals with individual complaints. See e.g. da Silva Pimentel vs Brazil, 25 July 2011, CEDAW/C/49/D/17/2008, 17/2008; Isatou Jallow vs Bulgaria, 28 August 2012, CEDAW/C/52/D/32/2011, 32/2011; Kell versus Canada, 26 April 2012, CEDAW/C/51/D/19/2008, 19/2008. 162 Bergtora Sandvik 2018. 163 Sankey 2016, pp. 7, 16. 159

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Returning to the case study of the ‘bush husbands’, their age at the time of abduction by the LRA, if abducted as children, would be a significant aspect of their identity when considering the nature of their coercion, agency and culpability as perpetrators. Age would also be relevant to the impact of the abductions on their lives, given the increased vulnerability of children as victims. Indeed, it was these very features of childhood that exposed children to abductions by the LRA and the subsequent violations suffered in the LRA’s grasp.164 Age is also highly pertinent to the nature and scope of violations experienced by victims. For example, the violation of the right to education, which crippled future employment prospects and life chances, as lamented upon by some of the ‘bush husbands’ who were interviewed.165

8.3.3 Breaking Binaries: Stigma, Sexual Violence and Beyond Sankey’s work on acknowledging social harms in relation to forced population movements can be applied to another conflict-related crime: sexual violence. A unique feature of sexual violence is the socially-constructed harm associated with this crime—the stigmatisation of survivors of sexual violence.166 In no other crime is the victim blamed and shamed for the violations suffered. In no other crime is the victim subjected to further violation such as ‘honour’ crimes meted out by family and community. While stigmatisation occurs in many layers of the justice chain, the relational harm suffered by survivors of sexual violence in the social context as social harm is immense, debilitating, and lasting. Social stigma decimates family relationships between husbands, wives, children and parents, and bleeds into community relations. Intergenerational harm, not least the birth and lives of children born of rape, ensures that the social repercussions of sexual violence fester beyond the lifetime of the rape survivor. Indeed, it is this destructive nature of sexual violence and its ability to rip apart individuals, families and communities that makes it a potent and prevalent weapon of war.167 In the ICC case of Prosecutor v Jean Pierre Bemba Gombo, an expert’s brief on the mental health outcomes of rape, mass rape and other forms of sexual violence described the individual, familial, communal, and inter-generational impact of the massive and systematic sexual violence committed in the Central African Republic between 2002 and 2003.168 Stigma associated with sexual violence is constructed inter alia around gender narratives, norms, and stereotypes. These are outgrowths of the gender 164

Denov and Drumbl 2020, p. 352. Ibid., p. 356. 166 See UK Foreign and Commonwealth Office 2017, p. 7. 167 For example, enforced rape between family members breaches the taboo of incestuous sexual acts, leading to the disruption of families. Carpenter 2006, pp. 95, 96. 168 ICC, Prosecutor v Jean Pierre Bemba Gombo, 4 May 2016, ICC-01/05-01/08, para 10. 165

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binary of the aggressive, sexually demanding, invulnerable man, in contrast to the peaceful, passive, weak woman,169 as manifested through the gender gaps explored above. Charlesworth highlights that such binaries in international law—‘objective/subjective, legal/political, logic/emotion, order/anarchy, mind/body, culture/nature, action/passivity, public/private, protector/protected’—are listed as distinctions between male and female characteristics, noting that international law privileges the first (male) characteristic.170 On the other hand, this hierarchy can lead to the invisibility of male experiences of violence. For example, in the case of the ‘bush husbands’, Denov and Drumbl highlight the gender binary of the ‘LRA women and girls as victims and LRA men and boys as perpetrators’, which obscures an exploration of male victimhood.171 Efforts to dismantle stigma that stem from these gender binaries must necessarily seek to dismantle the biological essentialism that underpins gender narratives, norms, and stereotypes. These are rooted in social and cultural practices that are configured and learned through socialisation.172 Gender does not exist in a vacuum, and by its very definition is a social construct. As such, it is a dynamic concept that is context and time-specific and therefore changeable.173 Gender roles can be recrafted to allow for more generous iterations of individual identity that transcend the gender silos of female purity and male virility.174 Stereotypical assumptions that deny individualised and tailored justice can evolve. Creating space for individual expression would allow victims to craft their own responses to the violations they have endured, thus paving the way for victim recovery. As such, victims would have room to manoeuvre and break the binaries into which they have been straitjacketed. Survivor activism, informal support networks, peer counselling and group therapy can destigmatise by creating opportunities to reframe experiences of violence.175 These activities may be pivotal in 169

UN Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict 2013, p. 9. 170 Charlesworth 2002, p. 390. 171 Aijazi and Baines 2017, p. 463 cited in Denov and Drumbl 2020, p. 353. Whether as ‘bush husbands’, or in the ICC case of Dominique Ongwen, who was kidnapped as a boy of 10 years by the LRA and convicted of numerous crimes, the strict delineation between victim and perpetrator is another problematic binary, once the surface is scratched. Denov and Drumbl 2020, pp. 369, 370. The notion of ‘implicated parties’ relied upon the context of ‘bush husband’ advances new terminology and approaches in relation to the victim vs perpetrator binary. 172 ‘Across all regions, culture constitutes a primary source of diverse and sometimes contradictory normative systems that provides the rationale for varied patterns of gender roles and identities, which signify relations of power.’ UN Human Rights Council 2007, para 18. 173 Adapted from UNDP 2008. 174 Hypermasculinity is one such gender silo, which has fuelled wartime military enslavement in three paradigmatic examples in Asia Pacific (women who were sexually enslaved by the Pakistani army and its auxiliaries during Bangladesh’s war of liberation (‘birangona’); by the Japanese military (‘ianfu’ or comfort women) and women who were sexually enslaved by the Indonesian military and its auxiliaries in East Timor (‘feto nona; istri TNI or instri ABRI’). See Linton 2019. Toxic masculinity which describes harmful forms of masculinity is another gender silo. 175 See also Schulz 2019, p. 171.

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breaking the cycle of violence and enabling the ‘recalibration’ of manhood in order to deter victims from turning into perpetrators to re-assert their masculinity.176 The camaraderie of being part of a group and knowing that one is not alone can also be deeply cathartic and empowering. When other aspects of being an individual are recognised and allowed to thrive, there is more scope for recovery from sexual violence, as its effects are no longer perceived to be utterly and irredeemably destructive to the core of one’s self and being.177 A broader conception of the individual, where the violation is not seen as the defining feature of an individual, chimes with notions of intersectionality, which give a wider berth in the exploration and understanding of harms flowing from individual identity. Traversing a path that embraces intersectionality and interdisciplinary approaches in addressing sexual and gender-based crimes inevitably segues into a survivorcentred approach. While the meanings attributed to a ‘survivor-centred approach’ are numerous, and continuously evolving, it is used in this chapter to highlight the individuality of each victim, and the necessity of considering services and remedies that correspond to individual circumstances. This is linked to more accurate and comprehensive labelling of crimes and harms, as discussed above. Moreover, before the International Criminal Court, the labelling of crimes and harms is significant in the road map of reparations for victims. Article 75 of the Rome Statute which addresses reparations for victims is limited to reparations for crimes for which the accused is convicted.178 However, the process of achieving this goal is fraught. As discussed above, the frequent characterisation of sexual violence against men as ‘torture’ entrenches the invisibility of sexual violence directed against them, since the term ‘torture’ serves to mask the sexual component of the crime, and detracts from labelling the sexual harm inflicted. Nonetheless, how might this be reconciled with survivors who want to be identified as torture survivors instead of as rape survivors? As discussed above, the stigma of surviving rape can be immense, and arguably more so for men. As such, what if the preference of the survivor is to label the crime as ‘torture’, denying the sexual dimensions of it? How might the seemingly conflicting goals of accurate labelling to surface harms and access remedies be reconciled with survivor-centred and survivor-driven approaches that honour survivor choice and agency in articulating the violations suffered?

8.4 Conclusion Approaches that reject rigid assumptions and pursue a more capacious application of gender analysis can better articulate the diversity of crimes, victims, and perpetrators, 176

Keating et al. 2005, p. 182. For a discussion on these harmful consequences of sexual violence, see Gopalan 2021. 178 I am grateful to Gianpaolo Mascaro for this observation. 177

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as well as the multiplicity of harms. Along with gender analysis, interdisciplinary and intersectional approaches can serve as analytical allies, though still at a nascent stage in the practice of international criminal law. Similarly, many of the issues addressed in this chapter require further reflection, research, and scholarship. Conflict-related crimes against men, including sexual violence, is one such area. A corollary to this, the focus on penetrative male rape to the exclusion of other forms of sexual violence, is another. The tendency to attribute a monolithic purpose or motivation to sexual violence also requires further thought. On the issue of shifting the focus from the stereotypical male perpetrator, the fixation on female perpetrators as anomalies, and the gendered tropes used to define them, are unhelpful in capturing the varied roles played by women in conflict. While gaining visibility, crimes against LGBTQI+ persons also call for further investigation. On our understanding of the harms occasioned by conflict-related crimes, what is the significance of the gender dynamics between victim and perpetrator, and is this influenced by the nature of crime perpetrated? How might gender binaries be broken and the seemingly conflicting goals of accurate labelling of crimes and the right to remedies be navigated vis-à-vis survivorcentred approaches? These questions require further consideration within the oeuvre of intersectional and interdisciplinary perspectives. Breaking binaries and honing-in on harms are the first steps in the journey of crafting tailored justice for all survivors of international crimes.

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Sellers P V (2018) Re-considering gender jurisprudence. In: Aoláin F N, Cahn NR, Haynes DF, Valji N (eds) The Oxford Handbook of Gender and Conflict. Oxford University Press, 211-224 Shepard L J (2018) Gender, sex, and sexual violence against men. In: Zalewski M et al (eds) Sexual Violence Against Men in Global Politics. Routledge, 129–131 Sivakumaran S (2005) ‘Male/Male Rape and the ‘Taint’ of Homosexuality’. HRQ 27(4) 1274-1306 Sivakumaran S (2007) Sexual Violence Against Men in Armed Conflict 18(2) EJIL 253-276 Sjoberg L, Gentry CE (2007) Mothers, Monsters, Whores: Women’s Violence in Global Politics. Zed Books Sjorberg L (2016) Women as Wartime Rapists—Beyond Sensation and Stereotyping. New York University Press, New York Smeulers A, Simi´c O (2018) Female War Crime Perpetrators in Bosnia and Herzegovina. In: Mouthaan S, Jurasz O (eds) Women and War. Intersentia, Cambridge, 65-91 Sperling C (2006) Mother of atrocities: Pauline Nyiramasuhuko’s role in the Rwandan genocide. Fordham Urb LJ 33(1) 637-664 Studzinsky S, Kather A L (2021) Will Universal Jurisdiction Advance Accountability for Sexualized and Gender-based Crimes? A View from Within on Progress and Challenges in Germany. German Law Journal 22(5) 894-913 Swaine A (2015) Beyond Strategic Rape and Between the Public and Private: Violence Against Women in Armed Conflict HRQ 37(3) 755-786 The Asia Foundation (2017) The State of Conflict and Violence in Asia. https://asiafoundation. org/wpcontent/uploads/2017/10/The_State_of_Conflict_and_Violence_in_Asia-12.29.17.pdf [accessed 10 April 2022] Touquet H (2018) Unsilenced: Male Survivors Speak of Conflict-Related Sexual Violence in Sri Lanka. ITJP (September 2018) http://www.itjpsl.com/assets/ITJP_unsilenced_report-final. pdf [accessed 10 April 2022] Touquet H, Gorris E (2016) Out of the shadows? The inclusion of men and boys in conceptualisations of wartime sexual violence. Reproductive Health Matters 24(47) 36-46 UK Foreign and Commonwealth Office (2017) Principles for Global Action: Preventing and Addressing Stigma Associated with Conflict-Related Sexual Violence. https://assets.publishing. service.gov.uk/government/uploads/system/uploads/attachment_data/file/645636/PSVI_Princip les_for_Global_Action.pdf (19 September 2017) [accessed 10 April 2022] UN General Assembly (1993) Declaration on the Elimination of Violence against Women, A/RES/48/104 UN Human Rights Council (2007) Report of the Special Rapporteur on Violence against Women, Its Causes and Consequences on Intersections between Culture and Violence against Women. A/HRC/4/34 (17 January 2007) UN Human Rights Council (2014) Report of the independent international commission of inquiry on the Syrian Arab Republic, A/HRC/25/65 https://www.securitycouncilreport.org/atf/cf/%7B6 5BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/a_hrc_25_65.pdf [accessed 10 April 2022] UN Human Rights Council (2018) Sexual and gender-based violence in Myanmar and the gendered impact of its ethnic conflicts, A/HRC/42/CRP.4 https://gbvaor.net/sites/default/files/2019-08/ A_HRC_CRP_4.pdf [accessed 12 December 2022] UN Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict (2013) Report of Workshop on Sexual Violence against Men and Boys in Conflict Situations. https://www.un.org/sexualviolenceinconflict/wp-content/uploads/report/exececutive-summaryreport-of-workshop-on-sexual-violence-against-men-and-boys/Workshop-on-Sexual-Violenceagainst-Men-and-Boys-in-Conflict-Situations.pdf (5 December 2013) [accessed 31 January 2022] USAID (2011) The Development Response to Violent Extremism and Insurgency. Putting Principles into Practice. USAID Policy, https://www.usaid.gov/sites/default/files/documents/1870/VEI_Pol icy_Final.pdf (September 2011) [accessed 24 July 2022] UN Security Council (2013) Security Council resolution 2106, S/RES/2106. https://www.refworld. org/docid/51d6b5e64.html (24 June 2013) [accessed 16 July 2021]

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UN Torture Fund (2019) Surviving Torture and Fighting Stigma: the road to recovery for victims of sexual and gender-based torture, https://www.ohchr.org/sites/default/files/Documents/Issues/Tor ture/UNVFVT/Surviving_Torture_and_Fighting_Stigma_Workshop_Report.pdf (April 2019) [accessed 10 April 2022] UNDP (2008) Empowered and Equal: UNDP Gender Equality Strategy 2008–2011 UNGA (2018) Report of the Fact-Finding Mission on Myanmar (12 September 2018). A/HRC/39/64 UNHRC (2019) Full report ‘Sexual and gender-based violence in Myanmar and the gendered impact of its ethnic conflicts. (22 August 2019) A/HRC/42/CRP/.4 United Nations International Criminal Tribunal for the Former Yugoslavia (undated) Mandate and Crimes under ICTY Jurisdiction. https://www.icty.org/en/about/tribunal/mandate-and-crimesunder-icty-jurisdiction [accessed 10 April 2022] United Nations Office of the High Commissioner for Human Rights (undated) Gender Stereotyping. https://www.ohchr.org/en/issues/women/wrgs/ pages/genderstereotypes.aspx [accessed 10 April 2022] UNSC (2015) Report of the Secretary-General, Conflict-Related Sexual Violence, S/2015/203, https://undocs.org/s/2015/203 (23 March 2015) [accessed 10 April 2022] UNSC (2018) Report of the Secretary-General on conflict-related sexual violence. S/2018/250. https://reliefweb.int/sites/reliefweb.int/files/resources/N1808325-1.pdf (23 March 2018) [accessed 10 April 2022] UNSC (2019) Report of the Secretary-General, Conflict-Related Sexual Violence. S/2019/280. https://digitallibrary.un.org/record/3799661?ln=en (29 March 2019) [accessed 10 April 2022] Women, Peace and Security Agenda in UN Security Council (2000) Security Council resolution 1325. S/RES/1325. https://peacemaker.un.org/node/105 [accessed 10 April 2022] World Food Programme (2015) WFP Gender Equality Policy 2015-2020. https://www.wfp.org/pub lications/2015-wfp-gender-policy-2015-2020-0 (July 2015) [accessed 10 April 2022]

Cases da Silva Pimentel vs Brazil (Communication no. 17/2008) [CEDAW/C/49/D/17/2008] [25 July 2011] ICC Prosecutor v Jean Pierre Bemba Gombo Case [ICC-01/05-01/08][4 May 2016] Isatou Jallow vs Bulgaria (Communication no. 32/2011) [CEDAW/C/52/D/32/2011] [28 August 2012] Kell vs Canada (Communication no. No. 19/2008) [CEDAW/C/51/D/19/2008] [26 April 2012] ICC, The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, Decision on the Prosecutor’s Application for Summons to Appear, 8 March 2011, ICC-01/0902/11. Nyiramasuhuko et al case, Trial Judgement [ICTR-98-42-T] [24 June 2011] Prosecutor v Akayesu [ICTR-96-4-T] [2 September 1998] Prosecutor v Brima [SCSL-2004-16-A] [22 February 2008] Prosecutor v Cesi´c, [IT-95-10/1-S], [11 March 2004] Prosecutor v Chea and Samphan [002/02] [16 November 2018] Prosecutor v Dominic Ongwen [ICC-02/04- /15] [6 May 2021] Prosecutor v Dordevic [IT-05-87/1-T] [23 February 2011] Prosecutor v Francis Kirimi Muthuara, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, [Decision on the Confirmation of the Charges] [ICC-01/09-02/11] [23 January 2012] Prosecutor v Furundzija [IT-95-17/1-T] [10 December 1998] Prosecutor v Goran Jelisi´c (Judgment) [ICTY IT-95-10-T] [14 December 1999] Prosecutor v Goran Jelisi´c, [ICTY IT-95-10-A] [5 July 2001] Prosecutor v Handanovi´c, First Instance Verdict, [S 1 1 K 009162 12 Kro] [30 April 2012] Prosecutor v Jean-Pierre Bemba Gombo, [ICC-01/05-01/08] [21 March 2016]

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Prosecutor v Kunarac [IT-96-23-T& IT-96-23/1-T] [22 February 2001] Prosecutor v Mladic [IT-09-92-AR73.4] [24 July 2014]; Prosecutor v Karadzic [IT-9S-SI18AR98bis.l] [11 July 2013] Prosecutor v Momˇcilo Krajišnik (Trial Chamber I Judgement) [ICTY] [IT-00-39-T] [27 September 2006] Prosecutor v Mucic and Landzo (Trial Chamber Judgement) [ICTY] [IT-96-21-T] [16 November 1998] Prosecutor v Nyiramasuhuko, Amendment Indictment [ICTR 97-21-I], [3 January 2001] Prosecutor v Staki´c, [IT-97-24-T], [31 July 2003] Prosecutor v Todorovic, [IT-95-9/1-S] [31 July 2001] Simic et al. (Trial Chamber II Judgement) [ICTY] [IT-95-9-T] (17 October 2003) The Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud [ICC-01/12-01/18] [30 September 2019] The Prosecutor v Ali Muhammad Ali Abd-Al-Rahman (‘Ali Kushayb’) [ICC-02/05-01/20] [22 April 2021] The Prosecutor v Bosco Ntaganda [ICC-01/04-02/06] [7 November 2019] The Prosecutor v Dominic Ongwen [ICC-02/04-01/15] [4 February 2021] The Prosecutor v Jean-Pierre Bemba Gombo [ICC-01/05-01/08 A], [8 June 2018] The Prosecutor v Jean-Pierre Bemba Gombo [ICC-01/05-01/08] [21 March 2016]

Priya Gopalan is a Malaysian lawyer specialising in international criminal law, human rights law, and gender. Her work on transitional justice has included developing policy and best practices to further gender justice and operationalising reparations for survivors of sexual violence. Her experiences cover the Balkans, Ukraine, Sri Lanka, Syria, and The Gambia. As a prosecutor and appeals counsel at the UN International Criminal Tribunal for the former Yugoslavia, Priya played a leading role in cases that developed progressive legal precedents on conflict-related - c and Šainovi´c et al.). She served as the first Legal Advisor for sexual sexual violence (Ðordevi´ and gender-based crimes at the International, Impartial and Independent Mechanism on Syria (the IIIM Syria) and as Gender Advisor for the OHCHR Investigation on Sri Lanka. In 2021, she was appointed by the UN Human Rights Council to the Working Group on Arbitrary Detention, as the member for the Asia Pacific region. Priya holds a LL.M in Public International Law (Distinction) from the London School of Economics and Political Science and a B.A. Jurisprudence (Hons) from the University of Oxford, where she was a UK Foreign and Commonwealth Office Chevening Scholar representing Malaysia.

Chapter 9

Sexual and Gender-Based Violence: What Legacy for the New ICC Prosecutor? Natacha Bracq

Contents 9.1 9.2 9.3 9.4

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Significant Shift: From Nuremberg to The Hague . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crystallisation of the Lessons Learnt in the ICC Framework . . . . . . . . . . . . . . . . . . . . . . The Prosecution’s Struggles with Sexual and Gender-Based Violence . . . . . . . . . . . . . . . 9.4.1 The Lack of Sexual and Gender-Based Violence Charges . . . . . . . . . . . . . . . . . . . 9.4.2 Promising Changes in the Charging Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.4.3 Long Lasting Negative Effects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.5 Judicial Conservatism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.5.1 A Regrettable Lack of “Judicial Receptiveness” . . . . . . . . . . . . . . . . . . . . . . . . . . 9.5.2 An Unjustified Higher Degree of Scrutiny . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

306 308 313 316 317 321 328 335 335 341 343 345

Abstract Sexual violence has always been used as an instrument of violence and a weapon during armed conflicts. Yet sexual and gender-based crimes (SGBC) were absent from instruments of international criminal law until very recently and charges are seldom brought in international criminal courts. In the 1990s, the Statutes and jurisprudence of the International Criminal Tribunals for the former Yugoslavia and Rwanda laid the foundation for the recognition of SGBC in international criminal law. Their jurisprudence and lessons learned were incorporated into the Rome Statute of the International Criminal Court (ICC or the court) which has been presented as one of the most developed frameworks for gender justice. With a new Prosecutor coming into office in 2021, an assessment of the first decades of SGBC investigations, prosecutions, and adjudications is necessary to gauge the scope of the task left to be accomplished by the selected candidate. This chapter examines the efforts towards the investigation, prosecution, and adjudication of such crimes, with a particular focus on the ICC. It highlights that, despite providing one of the most advanced legal frameworks, the court still struggles to effectively address such crimes and continues to repeat the errors of the past. The chapter identifies promising and disappointing outcomes by looking at the ICC’s case law and exploring the developments N. Bracq (B) International Nuremberg Principles Academy Nürnberg, Nuremberg, Germany e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 T. B. K. Sendze et al. (eds.), Contemporary International Criminal Law Issues, https://doi.org/10.1007/978-94-6265-555-3_9

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undertaken under the leadership of the last two Prosecutors: from the silence of the Lubanga case to the recent changes in the ICC’s practice, including in the Al Hassan case. Keywords International Criminal Court · Sexual and gender-based violence · Sexual and gender-based crimes · International criminal tribunals · Legacy · International criminal law · Rome Statute

9.1 Introduction Despite noticeable progress in the investigation, prosecution, and adjudication of conflict-related sexual and gender-based violence (SGBV) in the last decades, victims still face a plethora of challenges in obtaining justice and perpetrators are too often left unpunished. SGBV have always been widely used as instruments of violence and weapons during wartime for thousands of years.1 And yet, until the 1990s, sexual violence was largely overlooked, if not ignored, and not criminalised under international law.2 For a long time, such violence has been seen as a social taboo, believed to be an inevitable consequence of armed conflict or a conquest of victory.3 Stemming from this obsolete conception, sexual and gender-based crimes (SGBC) have long been absent from instruments of international criminal law (ICL) and charges were seldom brought at the international level.4 When the International Criminal Court (ICC or the court) was established, a lot of hope ensued. Its legal framework ‘reflects significant historical advances made in the investigation and prosecution of sexual and gender-based crimes before international criminal courts’.5 As the first permanent international tribunal to distinguish between various forms of SGBV, the ICC significantly contributed to ‘growing and strengthening the international recognition of both the prevalence and gravity of SGBV in conflict’.6 The court was seen as potentially being able to finally alleviate many of the obstacles to the investigation and prosecution of SGBC.7 However, in spite of this progress, the ICC has faced strong criticism not only for its investigative and prosecutorial shortcomings, but also for its judicial conservatism when SGBV issues are involved. More than twenty years after its establishment, the court is still struggling and has been accused of having produced a rather poor record.8 Out of the eleven cases containing SGBC charges presented by the last 1

Dallman 2009, p. 1; Lupig 2009, p. 17; Ginn 2013, p. 567; Uhlíˇrová 2019, p. 83. Copelon 2000, p. 220. See also Mannix 2014, p. 7; Grey 2019b, n 5. 3 Copelon 2000, p. 220; Ginn 2013, pp. 567–568; Orentlicher 2020, p. 97. 4 Grey 2019b, p. 2. 5 Lupig 2009, p. 3. 6 Mannix 2014, pp. 7, 8. 7 Phelps 2006, p. 500. 8 Uhlíˇrová 2019, p. 103. 2

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two Prosecutors,9 six of them saw their charges dismissed at the confirmation of charges or later withdrawn or saw the Accused acquitted.10 And only one accused has been convicted for sexual violence to date.11 The reasons behind these disappointing results are diverse and stem from strategic, systemic, and procedural shortcomings.12 With a new Prosecutor coming into office in 2021, an assessment of the first decades of SGBC investigations, prosecutions, and adjudications is necessary to gauge the scope of the task left to be accomplished by the selected candidate. This chapter explores international tribunals’ approach towards SGBV from the investigation stage to trial.13 Section 9.2 first examines the main historical developments related to the investigation, prosecution, and adjudication of SGBV that led to the establishment of the ICC. Highlighting the first international criminal prosecutions, the chapter addresses the milestones reached, as well as their main challenges and lessons learnt. Section 9.3 then considers the ICC’s framework and how the court and its instruments have incorporated and codified the lessons learnt from the past.14 Regrettably, an analysis of the ICC’s approach toward SGBC suggests that the attitudes that contributed to impunity for gender-based crimes under ICL in the past have continued, to some extent, at the ICC.15 Even with achievements on the substantive level, coupled with additional procedural, evidentiary, and staffing requirements, the new court does not seem to have broken bad habits and even appears to have ignored several lessons learnt, demonstrating that changes in law and procedure are not necessarily followed by shifts in practice and behaviour. Section 9.4, thus, examines the Office of the Prosecutor’s attempts and efforts to investigate and prosecute SGBC and identifies the main shortcomings, while Sect. 9.5 addresses worrying trends in the adjudication of such crimes.

9

The Prosecutor v Bosco Ntaganda, The Prosecutor v Dominic Ongwen, The Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud , The Prosecutor v Alfred Yekatom and Patrice-Edouard Ngaïssona, The Prosecutor v Ahmad Muhammad Harun ("Ahmad Harun") and Ali Muhammad Ali Abd-Al-Rahman ("Ali Kushayb"), The Prosecutor v Mbarushimana, The Prosecutor v Muthaura et al, The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, The Prosecutor v Jean-Pierre Bemba Gombo and The Prosecutor v Laurent Gbagbo and Charles Blé Goudé. 10 The Prosecutor v Mbarushimana, The Prosecutor v Muthaura et al, The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, The Prosecutor v Jean-Pierre Bemba Gombo and The Prosecutor v Laurent Gbagbo and Charles Blé Goudé. 11 See The Prosecutor v Bosco Ntaganda. It should be noted that four cases involving SGBV charges are still pending to date: The Prosecutor v Dominic Ongwen, The Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, The Prosecutor v Alfred Yekatom and Patrice-Edouard Ngaïssona, The Prosecutor v Ahmad Muhammad Harun (“Ahmad Harun”) and Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”). 12 See Uhlíˇrová 2019, p. 103. 13 Due to space constraints, reparations will not be addressed in this chapter. 14 See also Oosterveld 2005, p. 119. 15 Grey 2019b, p. 305.

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9.2 Significant Shift: From Nuremberg to The Hague Throughout the twentieth century, significant progress was made towards recognising SGBV as international crimes and prosecuting them as such. Progress was however incremental and relatively slow. In 1945, the charters of the International Military Tribunals in Nuremberg and for the Far East were regrettably silent on sexual violence and contained no refence to rape or sexual violence.16 Their charters established jurisdiction over violations of the laws and customs of war (war crimes), crimes against humanity, and crimes against peace.17 As a result, the Nuremberg Tribunal did not expressly prosecute rape or sexual violence,18 which were not mentioned once in the judgment19 despite evidence that such violent acts were systematically used during World War II.20 Later, even with the reference to rape as a crime against humanity in Control Council Law No. 10, adopted to enable the prosecution of alleged war criminals after the Nuremberg Trials in Germany,21 none of the accused were charged with such a crime.22 Moreover, very few cases dealt with the alleged sexual violence committed despite evidence of medical experiments in concentration camps, especially forced sterilisation, castrations, and fertility experiments by the Nazi regime.23 To contrast, during the Tokyo trials, departing from Nuremberg, acts of rape committed by several Japanese leaders were prosecuted as inhumane treatment, illtreatment, and failure to respect family honour and rights, and considered a violation of the “laws and customs of war” in the case known as the “Rape of Nanking”.24 Of historic significance, the judgment referred to ‘approximately 20,000 cases of rape’ and an unspecified number of rapes outside Japan.25 However, cases related to “comfort women” in Japan in the 1930s and 1940s, referring to the systematic sexual enslavement of 80,000–200,000 women, were never prosecuted.26 16

Seelinger et al. 2011, p. 2; Grey 2019b, p. 72. Charter of the International Military Tribunal annexed to the London Agreement, opened for signature (8 August 1945), United Nations, Treaty Series, vol. 82, no. 280, Article 6 (London Charter); Charter of the International Military Tribunal for the Far East, opened for signature (19 January 1946 as amended 26 April 1946), Treaties and Other International Acts Series, vol. 1589, Article 5 (Tokyo Charter). 18 Lupig 2009, p. 9; Hayes 2013, fn 1. 19 Grey 2019b, p. 76. 20 Dallman 2009, p. 3. For more details, see Askin 2003, p. 301; Lupig 2009, pp. 6–12; Grey 2019b, p. 76. 21 Allied Control Council No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against the Peace and Against Humanity, 20 December 1945, Official Gazette of the Control Council for Germany. See Grey 2019b, p. 72. 22 Grey 2019b, p. 76. 23 Orentlicher 2020, p. 100. See also Viseur Sellers 2008. 24 For more details, see Lupig 2009, pp. 6–12; Grey 2019b, p. 76; Orentlicher 2020, pp. 97–98. 25 Grey 2019b, p. 76. 26 Copelon 2000, p. 217; Grey 2019b, p. 77; Orentlicher 2020, pp. 23, 99. 17

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Despite the growing international recognition of the seriousness of SGBC in the subsequent years, such crimes remained largely unpunished until the 1990s, more than forty years after Tokyo and Nuremberg. Absent established and clear legal foundations, prosecuting SGBC was, indeed, almost impossible for a long time.27 The shift began with the international outrage towards the atrocities committed in the former Yugoslavia and Rwanda, which led to the establishment of ad hoc international criminal tribunals, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). Critical evidence showing that rape had been ‘deliberate, massive and egregious’ was collected.28 Several reports of the United Nations (UN) and many other organisations were the first to describe mass rape and other forms of sexual violence to the world.29 According to the former President of the ICTY, Theodor Meron, the evidence collected demonstrated that rape was not only used as an attack on individual victims but also as a method of ethnic cleansing.30 The shock contributed to the push for the recognition of the sexual violence committed and their prosecution in the international arena. As a result, rape was incorporated in the ad hocs’ Statutes as a crime against humanity.31 The Statute of the ICTR also listed rape, enforced prostitution, and any form of indecent assault as a serious violation of Article 3 Common to the Geneva Conventions,32 the first international instrument to expressly recognise acts of sexual violence as a war crime.33 Although the ICTY and ICTR Statutes did not provide a list of the wide range of SGBV,34 the tribunals innovatively expanded their jurisdiction to cover a variety of SGBV,35 thus playing a leading role in developing the jurisprudence in the matter, and the field itself.36 For example, SGBV were prosecuted as acts of genocide,37 but

27

Phelps 2006, p. 500. Meron 1993, p. 425. 29 Ginn 2013, pp. 570–571. 30 Meron 1993, p. 425. 31 Statute of the International Criminal Tribunal for the Former Yugoslavia, adopted (25 May 1993 as amended 7 July 2009), Article 5 (g) (ICTY Statute); Statute of the International Criminal Tribunal for Rwanda, adopted (8 November 1994 as amended 16 December 2009), Article 3 (g) (ICTR Statute). 32 ICTR Statute, Article 4(e). 33 Grey 2019b, p. 75. 34 Lupig 2009, p. 14; Ginn 2013, p. 574. 35 Ginn 2013, p. 574. 36 Ibid., p. 568. See also Seelinger et al. 2011, p. 2. 37 See ICTY, The Prosecutor v Akayesu, Judgment, 2 September 1998, ICTR-96-4-T, para 731. 28

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also enslavement,38 persecution,39 rape,40 torture,41 forced nudity,42 inhumane acts as crimes against humanity and war crimes.43 ,44 The ICTY also found that SGBV could be an instrument of ethnic cleansing against civilians.45 For the first time, the ad hocs also applied the mode of liability of superior responsibility and common purpose liability to sexual violence, holding non-physical perpetrators responsible for sexual violence committed by a subordinate or a co-perpetrator.46 The ICTY was the first international tribunal to prosecute sexual violence as a war crime47 in the Tadi´c case, which addressed sexual violence against men in the Omarska prison camp in Bosnia and Herzegovina.48 In the landmark case of Akayesu, the ICTR recognised for the first time that rape and sexual violence can constitute acts of genocide and rape a form of torture.49 Other international tribunals also contributed to advancing the field. For example, in the Brima, Kamara and Kanu case, the Special Court for Sierra Leone (SCSL) charged for the first time forced marriage as a crime against humanity (an “other inhumane act”)50 and also identified forced marriage as a gender-based crime by including forced labour such as forced cooking, cleaning, childbearing, and sexual slavery.51

38

See ICTY, The Prosecutor v Dragoljub Kunarac et al, Judgment, 22 February 2001, IT-96-23-T & IT-96-23/1-T, para 745 (Foˇca case). 39 See ICTY, The Prosecutor v Kvoˇ cka et al, Judgment, 2 November 2001, ICTY-IT-98-30/1-T, paras 25 and 33. 40 See ICTY, The Prosecutor v Dragoljub Kunarac et al, Judgment, 22 February 2001, IT-96-23-T & IT-96-23/1-T, para 655. 41 See ICTY, The Prosecutor v Muci´ c et al, Judgment, 16 November 1998, IT-96-21-T, para 496 ˇ (Celebi´ ci case). 42 See ICTY, The Prosecutor v Akayesu, Judgment, 2 September 1998, ICTR-96-4-T, para 10A. 43 See ICTY, The Prosecutor v Muci´ c et al, Judgment, 16 November 1998, IT-96-21-T, para 1066; ICTY, The Prosecutor v Furundžija, Judgment, 21 July 2000, ICTY-IT-95-17/-A, paras 210–272. 44 Uhlíˇrová 2019, p. 90. See also Lupig 2009, pp. 16–17; Jarvis 2016, p. 109. 45 Uhlíˇrová 2019, p. 88. 46 See ICTY, The Prosecutor v Muci´ c et al, Judgment, 16 November 1998, IT-96-21-T. See also Seelinger et al. 2011, p. 3. 47 ICTY (undated) www.icty.org/en/features/crimes-sexual-violence/landmark-cases. Accessed 12 January 2021. 48 ICTY, The Prosecutor v Tadi´ c, Opinion and Judgment, 7 May 1997, ICTY-IT-94-1-T, para 45. 49 ICTY, The Prosecutor v Akayesu, Judgment, 2 September 1998, ICTR-96-4-T, paras 733–734 and 597. 50 SCSL, The Prosecutor v Brima, Kamara and Kanu, Appeal Judgment, 22 February 2008, SCSL2004-16-A, paras 186, 196, 202. 51 Oosterveld 2016.

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Although these tribunals played an unprecedented role in the quest for gender justice, the trials did not advance without procedural, systemic, and legal challenges,52 resulting in SGBC not being prosecuted53 and adjudicated fully. One illustration was the lower conviction rate for such crimes than for other crimes at the ICTY.54 Jarvis, former ICTY Deputy Prosecutor, and Vigneswaran asserted that sexual violence was often seen as less serious and isolated.55 According to them, challenges in sexual violence cases included misconceptions about the nature of conflict-related sexual violence.56 They highlighted that ‘evidentiary leads regarding sexual violence were not always followed up on the basis that they were insufficiently connected to the case theory’.57 Based on her experience at the ICTY, Jarvis stressed that: sexual violence, more than any other category of crimes, is subject to misconceptions that block analysis, thwart accountability efforts and minimise prospects of redress. At the heart of the problem is the failure to fully recognise rape and similar crimes as violent acts. This in turn has a myriad of adverse consequences throughout the investigation and prosecution process.58

Taking an historical approach, Grey identified several tendencies that impacted the prosecution of sexual violence in international law, such as: underestimat[ing] the seriousness of sexual violence, over-estimat[ing] the challenges to investigating it, mak[ing] assumptions about who can be a victim of a gender-based crime, and ignore[ing] the ways that gender norms contribute to the commission of war crimes, crimes against humanity and genocide.59

Referring to the ad hocs, she further stated that cases were mainly concerned with direct perpetrators or perpetrators close to the scene, as illustrated by the Gacumbitsi case,60 where the Trial Chamber refused to link several acts of sexual violence to the accused.61 Several experts have also highlighted a tendency of judges to require a higher level of proof to link the accused to acts of sexual violence than for any other crimes.62 Interestingly, Jarvis and Vigneswaran provided a detailed analysis of the various ‘pressure points’ where SGBC were particularly at risk at the ad hocs. These included overlooking sexual violence and failing to uncover relevant evidence during the 52

See Ginn 2013, p. 575; Grey 2019b, p. 81. Grey 2019b, p. 75. 54 Ginn 2013, p. 569. 55 Jarvis and Vigneswaran 2016, pp. 36–37, 39. 56 Ibid., p. 36. 57 Ibid., p. 38. 58 Jarvis 2016, p. 107. 59 Grey 2019b, pp. 69–98. 60 Ibid., p. 93. 61 Ibid., pp. 93–94. 62 See ibid., pp. 94–95. See also Viseur Sellers 2008. 53

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investigation phase,63 failing to prioritise and include sexual violence charges at the indictment phase,64 cutting sexual violence crimes at the pre-trial phase,65 adducing insufficient evidence of sexual violence at the trial phase,66 and relying on written evidence and disempowering victims.67 Similar findings have also been made for the ICTR,68 which had an even more disappointing record of prosecution of sexual violence crimes in comparison to the ICTY.69 More particularly, none of the first cases included sexual violence charges.70 In the landmark decision of Akayesu, rape had initially been excluded, until the intervention of Judge Navanethem Pillay and women rights activists.71 Despite these hurdles, the ICTY and ICTR had immense normative and substantive impact72 by establishing ‘by far the most robust and least dysfunctional body of prosecutions for sexual violence of all the modern international tribunals (…).’73 Through trial and error, they steadily learnt how to contextualise SGBV and demonstrated that successful prosecutions of sexual violence were possible.74 As a result, their legacy formed an ‘important foundation for the codification of sexual violence’75 and their achievements and lessons learned were finally incorporated into the Rome Statute76 .77 So, after the Rome Statute came into force in July 2002 expectations were naturally high.78

63

Jarvis and Vigneswaran 2016, pp. 53–55. Ibid., pp. 55–60. See also Ginn 2013, pp. 585–587. 65 Ibid., pp. 61–62. 66 Ibid., pp. 64–65. See also Ginn 2013, pp. 585, 587–589. 67 Jarvis and Vigneswaran 2016, pp. 65–67. 68 See for example Oosterveld 2005. 69 Mwangi 2017, p. 26. See also Grey 2019b, p. 82. 70 Grey 2019b, p. 82. 71 Oosterveld 2005, p. 122; Grey 2019b, p. 84. 72 Hayes 2013, p. 3. See also Oosterveld 2005, p. 120. 73 Hayes 2013, p. 2. 74 Ibid., p. 3. 75 Copelon 2000, p. 231. 76 Rome Statute of the International Criminal Court, opened for signature (17 July 1998), United Nations Treaty Collection, entered into force (1 July 2002) (Rome Statute). https://www.icc-cpi. int/resource-library/documents/rs-eng.pdf. Accessed 12 January 2021. 77 Dallman 2009, p. 5. 78 See O’Connell 2010, p. 70. 64

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9.3 Crystallisation of the Lessons Learnt in the ICC Framework When the Rome Statute was adopted, it was heralded as providing ‘the most advanced articulation’ of SGBC under international law.79 Grey stressed that the critiques regarding the international framework seem to belong to the past: SGBC are now expressly mentioned in international instruments.80 Indeed, the Rome Statute is the international instrument containing the broadest range of SGBC, as well as provisions regulating the effective investigation and prosecution of such crimes,81 including procedural, evidentiary, as well as structural and staffing requirements. Thanks to the work of the first international criminal tribunals, advocacy campaigns, and lobbying efforts by gender justice actors, States in Rome finally recognised sexual violence as crimes against humanity and war crimes, and more particularly as rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity.82 Gender was included as a ground for persecution as a crime against humanity, alongside political, racial, religious, and other such categories.83 Additionally, the Elements of Crimes explicitly mention that genocide may include rape and sexual violence.84 Among the main breakthrough, is the reiteration of ‘[t]he recognition [by the ICTR] that consent is meaningless for acts of a sexual nature that have a nexus to genocide, armed conflict, and crimes against humanity (…)’.85 Furthermore, upholding the legacy of the ad hocs, all of the SGBC, with the natural exception of forced pregnancy, are gender neutral, meaning that they apply to victims and perpetrators of either sex or gender.86 Finally, the Rome Statute prohibits discrimination based on gender in applying and interpreting the Rome Statute.87 In addition to this unprecedented legal framework, the Rome Statute, the Rules of Procedure and Evidence,88 and the Regulations of the Registry89 sought to impose procedural, evidentiary, and staffing requirements aimed not only at ensuring effective investigations and prosecutions, but also at protecting victims and witnesses of such crimes. These mechanisms were added during the negotiations in Rome because 79

Chappell 2016. See also Chappell and Durbach 2014, p. 534. Grey 2019b, p. 2. 81 Hayes 2013, p. 4. 82 SGBC are listed under Rome Statute, arts 7(1)(g), 8(2)(b)(xxii), and 8(2)(e)(vi). See Chappell 2014a, p. 579. For more details on each crime, see Lupig 2009, pp. 27–48. 83 Rome Statute, Article 7(1)(h). 84 ICC, Rome Statute, Elements of Crimes, adopted (17 July 1998), UN Doc A/CONF.183/9 (Elements of Crimes) Article 6(b) n 3. 85 MacKinnon 2008, p. 102. 86 Lupig 2009, p. 40. 87 Rome Statute, Article 21(3). 88 ICC, Rules of Procedure and Evidence, adopted (9 September 2002), ICC-ASP/1/3 (RPE). 89 ICC, Regulations of the Registry, approved (6 March 2006), ICC-BD/03-03-13. 80

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the drafters were not convinced that the inclusion of SGBC in the Statute would be enough to ensure the effective investigation, prosecution, and trial of such crimes.90 For example, to ensure specific attention to SGBV during the investigation and prosecution,91 the Rome Statute provides that the Prosecutor shall respect the interests and personal circumstances of victims and witnesses, including gender, and consider the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children.92 Finally, the court is also mandated with the task of protecting the safety, physical, and psychological well-being, dignity and privacy of victims and witnesses, by taking into consideration, among other, gender, and the nature of the crime, in particular, sexual or gender violence.93 Addressing evidentiary matters related to sexual violence, the Rules of Procedure and Evidence contain additional provisions.94 For example, the exclusion of evidence of prior or subsequent sexual conduct of a victim or witness, the prohibition to infer consent by reason of the silence of, or lack of resistance by, a victim to the alleged sexual violence, or the use of audio video recording to reduce re-traumatisation. The Regulations of the Registry also provide specific measures for the protection of victims of sexual violence.95 With regards to staffing, the Rome Statute expressly sets principles of female representation and gender expertise. Article 36(8)(a)(iii), for example, requires a ‘fair representation of female and male judges’ and Article 36(8)(b) further expects state parties to include judges with legal expertise on specific issues, including, but not limited to, violence against women and children. The Victims and Witnesses Unit within the Registry shall also include staff with expertise in trauma related to crimes of sexual violence.96 Pursuant to Article 42(9) of the Rome Statute, the Prosecutor shall appoint advisers with legal expertise on sexual and gender violence. Accordingly, the first Gender Advisor, Prof. Catharine MacKinnon, was appointed in 2008, followed by Brigid Inder in 2012, and Patricia Viseur Sellers since 2017. The Office of the Prosecutor also established a Gender and Children’s Unit in 2003 to provide advice to the Prosecutor, the Executive Committee, and staff from the preliminary examinations phase onwards.97

90

SáCouto and Cleary 2009, p. 341 (footnote omitted). Ibid., p. 340. 92 Rome Statute, Article 54 (1)(b). 93 Rome Statute, Article 68(1). See also RPE, rules 16(1)(d), 17(2)(a)(iv) and (b)(iii), 86, 88. 94 RPE, rules 63(4), 70, 71, 72, 112(4). 95 See for example Regulations of the Registry, regulations 89, 91, 94 bis. 96 Rome Statute, Article 43(6). 97 ICC (2014), para 112. www.icc-cpi.int/iccdocs/otp/OTP-Policy-Paper-on-Sexual-and-GenderBased-Crimes--June-2014.pdf. Accessed 12 January 2021. 91

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Beyond these changes, the Office of the Prosecutor also adopted policies to ensure effective investigation and prosecution of SGBC. In June 2014, the Office of the Prosecutor, under Fatou Bensouda, recognising the challenges to the effective investigation and prosecution of such crimes, adopted a Policy Paper on Sexual and GenderBased Crimes, following extensive consultations.98 The policy aims to ‘[g]uide the implementation and utilisation of the provisions of the Statute and the Rules so as to ensure the effective investigation and prosecution of sexual and gender-based crimes from preliminary examination through to appeal’.99 As a result, the Office of the Prosecutor committed, among others, to adopting a gender perspective and analysis into all of its work,100 to paying particular attention to the commission of SGBC at all stages of its work,101 and to providing adequate training for staff.102 The Office of the Prosecutor also elevated the investigation and prosecution of such crimes to one of its key strategic goals in its successive Strategic Plans since 2012.103 The Office of the Prosecutor underwent further reforms related to their investigation practices,104 ensuring sustainable and long-term changes in their strategy related to sexual violence. For example, if SGBV are not integrated in the investigation plan, the team leader must justify it. The evidence review process, prior to charging an individual, has also contributed to ensuring an increased focus on SGBV.105 The codification of the ad hocs’ jurisprudence and experience in the Rome Statute certainly ensured the standardisation of criminal proceedings against SGBC. Yet, as predicted by the drafters of the Rome Statute, and despite this advanced legal framework, even complemented by the safeguards mentioned above, that the practice of the ICC shows that these achievements cannot, on their own, guarantee effective investigation, prosecution, and adjudication of the full spectrum of the SGBV suffered by the victims.

98

See Uhlíˇrová 2019, pp. 84–85. ICC (2014), para 6. www.icc-cpi.int/iccdocs/otp/OTP-Policy-Paper-on-Sexual-and-GenderBased-Crimes--June-2014.pdf. Accessed 12 January 2021. 100 Ibid., para 37. 101 Ibid., para 14. 102 Ibid., para 37. 103 ICC (undated), Strategic Plans (2012–2015), (2016–2018) and (2019–2021). https://www.icccpi.int/about/otp/otp-policies. Accessed 12 January 2021. 104 Grey 2019b, pp. 261–262. 105 Ibid., pp. 263–264. 99

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9.4 The Prosecution’s Struggles with Sexual and Gender-Based Violence At the time of writing, out of the fifteen cases presented to the ICC,106 charges for SGBV have been sought in eleven,107 for rape, persecution, torture, outrages on personal dignity, sexual slavery, murder, other inhuman acts, cruel treatment, mutilation, forced pregnancy, or forcible transfer.108 On the face of it, these initial observations seem to demonstrate a positive attitude of the ICC towards SGBV. A closer analysis, regrettably, reveals that the court’s record is more of a mixed bag. Similar to Jarvis and Vigneswaran’s analysis of the ad hocs,109 failures have been and continue to be identified at various “pressure points” from the case construction (investigation and charging) to the trial stage at the ICC.110 During the case construction, essential phase to ensure the confirmation of the charges, and ultimately a conviction and reparations, prosecutorial omissions and errors have affected SGBV cases. This section highlights that (A) the Prosecution has failed to charge SGBC in several cases despite extensive evidence of these crimes, and that, (B) even with some promising changes in charging practice in recent years, (C) cases continue to suffer from the age-old trend of overlooking sexual violence and failing to uncover relevant evidence, leading to the collapse of the charges at the confirmation of charges or even later at trial.111

106

This number excludes the eleven cases where the accused are not in the ICC’s custody or are dead (The Prosecutor v Saif Al-Islam Gaddafi, The Prosecutor v Sylvestre Mudacumura, The Prosecutor v Mahmoud Mustafa Busayf Al-Werfalli, The Prosecutor v Abdallah Banda Abakaer Nourain, The Prosecutor v Walter Osapiri Barasa, The Prosecutor v Al-Tuhamy Mohamed Khaled, The Prosecutor v Joseph Kony and Vincent Otti, The Prosecutor v Omar Hassan Ahmad Al Bashir, The Prosecutor v Ahmad Muhammad Harun ("Ahmad Harun"), The Prosecutor v Abdel Raheem Muhammad Hussein, The Prosecutor v Simone Gbagbo), as well as the Article 70 procedures in The Prosecutor v Jean-Pierre Bemba Gombo et al, The Prosecutor v Philip Kipkoech Bett, and The Prosecutor v Paul Gicheru. 107 The Prosecutor v Bosco Ntaganda, The Prosecutor v Dominic Ongwen, The Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, The Prosecutor v Alfred Yekatom and Patrice-Edouard Ngaïssona, The Prosecutor v Ahmad Muhammad Harun ("Ahmad Harun") and Ali Muhammad Ali Abd-Al-Rahman ("Ali Kushayb"), The Prosecutor v Mbarushimana, The Prosecutor v Muthaura et al, The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, The Prosecutor v Jean-Pierre Bemba Gombo and The Prosecutor v Laurent Gbagbo and Charles Blé Goudé. 108 For the full list, see Grey 2019b, p. 260. 109 See Sect. 9.2. 110 This chapter does not address the issue of reparations. 111 Hayes 2013, p. 32. See for example The Prosecutor v Jean-Pierre Bemba Gombo or The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui.

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9.4.1 The Lack of Sexual and Gender-Based Violence Charges Prerequisite to securing a conviction for SGBC and ensuring reparations for victims, the filing of charges for such crimes has not always been a priority for the Office of the Prosecutor.112 Under its first Prosecutor, Luis Moreno-Ocampo, the ICC has been presented as having ‘regressed in both strategy and practice’ as regards to the investigation and prosecution of SGBC.113 Although such a trend has been significantly rectified since the arrival of Fatou Bensouda in 2012, the successive Prosecutors have both failed to adequately charge SGBV even when overwhelming information showed that such crimes were committed in two cases: Lubanga and Al Mahdi.114 Although celebrated as the first conviction of the ICC, the case of The Prosecutor v Thomas Lubanga Dyilo in the situation in the Democratic Republic of the Congo, has also been one of the most criticised115 and deemed disappointing from a gender perspective.116 Lubanga was the former President of the Union des Patriotes Congolais/Forces Patriotiques pour la Libération du Congo (UPC/FPLC), which was involved in an armed conflict against the Armée Populaire Congolaise and other Lendu militias, including the Force de Résistance Patriotique en Ituri. He was transferred to the Hague in 2006. The charges brought against him on 20 March 2006 focused on the war crimes of enlisting and conscripting of children under the age of fifteen years and using them to participate actively in hostilities from 1 September 2002 to 13 August 2003.117 Lubanga was not charged with any SGBC, despite preliminary evidence of rape and sexual slavery gathered by ICC investigators during the initial investigations and publicly available.118 Margot Wallström, the UN Secretary-General’s Special Representative on Sexual Violence in Conflict at the time, even described the Democratic Republic of Congo as the ‘rape capital of the world’.119 The narrow focus on enlistment, conscription and use of child soldiers came as an express instruction from the Prosecutor at the time, Luis Moreno-Ocampo, who decided not to pursue charges of SGBC because of the limited time to arrest

112

Grey 2019b, p. 305. Hayes 2013, p. 4. 114 ICC, The Prosecutor v Thomas Lubanga Dyilo¸ Decision on Sentence Pursuant to Article 76 of the Statute, 10 July 2012, ICC01/04-01/06-2901; ICC, The Prosecutor v Ahmad Al Faqi Al Mahdi, Summary of the Judgment and Sentence, 27 September 2016, ICC-01/12-01/15. 115 Uhlíˇrová 2019, p. 92. 116 Grey 2019b, p. 129. 117 ICC, The Prosecutor v Thomas Lubanga Dyilo, Document Containing the Charges, Article 61(3)(a)), 28 August 2006, ICC-01/04-01/06. 118 SáCouto and Cleary 2009, pp. 342–343; Chappell 2014b, p. 187; Uhlíˇrová 2019, p. 93; Grey 2019b, p. 130. 119 UN News (2010) https://news.un.org/en/story/2010/04/336662. Accessed 12 January 2021. 113

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Lubanga.120 The decision was based on expediency, evidence, and legitimacy,121 rather than the interests of justice for the child soldiers.122 I knew to arrest Lubanga I had to move my case fast. So I had strong evidence about child soldiers. I was not ready to prove the connection between the killings and the rapes. And then I decided to move just with the case I had proofs [sic].123

However, interviews with investigators working on the case, conducted by the Institute of War and Peace Reporting, show that they were disappointed in the chosen strategy and, instead, attributed the lack of sexual violence charges to the Prosecutor’s decision to narrow the scope of the investigation.124 This decision to restrict the charges instigated strong criticism from practitioners, academics, and various NGOs.125 Schabas opined that Ocampo’s decision ‘had more to do with the fact that this was an accused who was accessible to a Court starved for trial work’.126 Additionally, SáCouto and Cleary highlighted that the investigations were launched without sufficient planning, which led to the lack of an effective strategy regarding the investigation of SGBC.127 Further, between the time of Lubanga’s arrest and the beginning of his trial, three years passed during which the Office of the Prosecutor could have investigated SGBC and amended the charges.128 During the pre-trial and trial stages, Women’s Initiatives for Gender Justice (WIGJ), and the Legal Representatives of the Victims even attempted to have SGBV charges included, but both requests were denied by the court.129 The UN Special Representative for Children and Armed Conflict also filed an Amicus Curiae urging the Trial Chamber not to exclude sexual violence from the crime of using child soldiers.130 120

Uhlíˇrová 2019, p. 93. See also Mwangi 2017, pp. 36–37. Chappell 2014b, p. 187. 122 Mwangi 2017, p. 38. 123 Chappell 2014b, p. 187 citing Yates 2009. 124 Glassborow 2008. http://iwpr.net/report-news/icc-investigative-strategy-under-fire: Accessed 12 January 2021. See also Mwangi 2017, pp. 35–36. 125 Chappell 2014b, p. 187; Uhlíˇrová 2019, p. 93. 126 Mwangi 2017, p. 37 citing Schabas 2008, p. 744. 127 SáCouto and Cleary 2009, p. 343 (footnote omitted). 128 Chappell 2014b, p. 187; Uhlíˇrová 2019, p. 93. 129 ICC, The Prosecutor v Thomas Lubanga Dyilo, Decision on Request pursuant to Rule 103 (1) of the Statute, 26 September 2006, ICC-01/04-01/06-480 and ICC, The Prosecutor v Thomas Lubanga Dyilo, Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled "Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change, 17 December 2009, ICC-01/0401/06-2205. See also Mwangi 2017, pp. 42–43; Chappell 2014b, pp. 186–188; Grey 2019b, pp. 133, 136. 130 ICC; The Prosecutor v Thomas Lubanga Dyilo, Submission of the Observations of the Special Representative of the Secretary General of the United Nations for Children and Armed Conflict pursuant to Rule 103 of the Rules of Procedure and Evidence, 18 March 2008, ICC-01/04-01/061229. See also Grey 2019b, pp. 133–134. 121

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To address the growing criticism, the Prosecution attempted to mainstream sexual violence into proceedings through testimony of victims,131 without amending the charges. The discrepancy between the evidence and the charges was carried until the end of the trial, which was even highlighted by Judge Odio-Benito.132 On 14 March 2012, Lubanga was convicted as a co-perpetrator on the three counts of enlistment, conscription, and use of child soldiers to participate actively in hostilities from September 2002 to August 2003.133 The Trial Chamber concluded that ‘given the prosecution’s failure to include allegations of sexual violence in the charges (…) this evidence is irrelevant for the purposes of the [judgment] save as regards providing context’.134 In the sentencing judgment, the Trial Chamber expressly referred to and criticised the prosecutor’s handling of SGBV. The Chamber strongly deprecates the attitude of the former Prosecutor in relation to the issue of sexual violence. He advanced extensive submissions as regards sexual violence in his opening and closing submissions at trial, and in his arguments on sentence he contended that sexual violence is an aggravating factor that should be reflected by the Chamber. However, not only did the former Prosecutor fail to apply or include sexual violence or sexual slavery at any stage during these proceedings, but he actively opposed taking this step during the trial when he submitted that it would cause unfairness to the accused. Notwithstanding this stance on his part throughout these proceedings, he suggested that sexual violence ought to be considered for the purposes of sentencing.135

However, due to the lack of evidence establishing the link between Lubanga and sexual violence, the judges refused to include these crimes in the sentencing decision.136 This sadly resonates with early practice at the ICTY and ICTR that overlooked sexual violence.137 In the first ICTY case against Nikoli´c,138 the Prosecutor at the time, Richard Goldstone, faced similar difficulties. Pressured by time and the lack of established policies, he prioritised investigations that would lead to an indictment.139 As a result, Nikoli´c’s initial indictment did not include sexual violence.140 During

131

Chappell 2014b, pp. 191–192; Grey 2019b, p. 136. ICC, The Prosecutor v Thomas Lubanga Dyilo, Transcript, 25 August 201, ICC-01/04-01/06, pp. 53, 54. See also Hayes 2013, p. 20; Grey 2019b, p. 138. 133 ICC, The Prosecutor v Thomas Lubanga Dyilo, Judgment Pursuant to Article 74 of the Statute, 05 April 2012, ICC-01/04-01/06-2842. 134 Ibid., para 896. 135 ICC, The Prosecutor v Thomas Lubanga Dyilo, Decision on Sentence Pursuant to Article 76 of the Statute, 10 July 2012, ICC01/04-01/06-2901, para 60. 136 Ibid., para 75. 137 See Sect. 9.2. 138 ICTY, The Prosecutor v Dragan Nikoli´ c (IT-94-2). 139 Jarvis and Vigneswaran 2016, p. 47. 140 ICTY, The Prosecutor v Dragan Nikoli´ c, Initial Indictment, 4 November 1994, IT-94-2-I. 132

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the trial, as sexual violence evidence was presented, the Chamber gave the prosecutor the opportunity to amend the charges,141 which the prosecutor did,142 unlike the ICC Prosecutor. A similar approach was taken in the unfortunate and widely criticised decision of the ICTY Prosecutor, Carla del Ponte, in the Luki´c case.143 In that case, she chose not to include any charges of sexual assault in the indictment,144 despite compelling evidence.145 When justifying her decision, she explained that ‘new charges of sex crimes would lengthen the Prosecution’s case’,146 ultimately admitting to refusing to prosecute SGBC despite having the necessary evidence. Eventually, the Lubanga trial ‘exposed fundamental errors of prosecutorial strategy in relation to the investigation and prosecution of SGBC at the international criminal level’147 and illustrated that errors and challenges of the past can still haunt the new court’s operations. According to Grey, such an unfortunate approach could be explained by the pressure of starting the first case, the insufficient number of investigators, inconsistent objectives for the investigation, or time pressure.148 Nine years after Lubanga’s arrest, The Prosecutor v Ahmad Al Faqi Al Mahdi in the situation in the Republic of Mali, led by the new Prosecutor, Fatou Bensouda, is a more recent example of the Office of the Prosecutor’s detrimental selectivity of charges and failure to include SGBC charges. Al Mahdi was a member of Ansar Dine, a movement associated with Al Qaeda in the Islamic Maghreb. He was transferred to the Hague in 2015 and convicted on 27 September 2016 for the war crime of intentionally directing attacks against historic monuments and buildings dedicated to religion, including nine mausoleums and one mosque in Timbuktu, Mali, in June and July 2012.149 It was the only crime he was charged with, despite evidence of other crimes against persons, including sexual violence, being committed in Timbuktu,150 and despite information received by the Office of the Prosecutor demonstrating that 141

ICTY, The Prosecutor v Dragan Nikoli´c, Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 20 October 1995, IT-94-2-R61, para 33. 142 ICTY, The Prosecutor v Dragan Nikoli´ c, First Amended Indictment, 12 February 1999, IT-942-I. See also Jarvis and Vigneswaran 2016, p. 48. 143 ICTY, The Prosecutor v Luki´ c Milan & Luki´c Sredoje (IT-98-32/1). 144 ICTY, The Prosecutor v Luki´ c Milan & Luki´c Sredoje, Second Amended Indictment, 27 February 2006, IT-98-32/1. 145 SáCouto and Cleary 2009, p. 352; Ginn 2013, p. 586. 146 ICTY, The Prosecutor v Luki´ c Milan & Luki´c Sredoje, Decision on Prosecution Motion Seeking Leave To Amend the Second Amended Indictment and on Prosecution Motion To Include U.N. Security Council Resolution 1820 (2008) as Additional Supporting Material to Proposed Third Amended Indictment as Well as on Milan Luki´c’s Request for Reconsideration on Certification of the Pre-Trial Judges Order of 19 June 2008, 8 July 2008, IT-98-32/1-PT, paras 12 and 60 (citing Prosecution Motion Seeking Leave To Amend the Second Amended Indictment, 16 June 2008, IT-98-32/1-PT, para 14 (filed confidentially)). 147 Hayes 2013, p. 23. 148 Grey 2019b, pp. 250–251. 149 Al-Mahdi fully accepted his individual criminal responsibility and waived his right to appeal the conviction or sentence. ICC, The Prosecutor v Ahmad Al Faqi Al Mahdi, Judgment and Sentence, 27 September 2016, ICC-01/12-01/15-171. 150 Uhlíˇrová 2019, pp. 95–96.

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Al Mahdi was allegedly involved in the commission of a broad range of sexual violence, including rape, sexual slavery, and forced marriage. Indeed, in March 2015, the International Federation for Human Rights (FIDH) and five other human rights organisations in Mali filed a complaint against Al Mahdi and 14 others on behalf of 33 victims in Timbuktu before the High Court of Bamako. The FIDH shared with the ICC the testimonies and the information collected.151 In its Article 53(1) report, the Office of the Prosecutor highlighted several reports from NGOs, including that of the FIDH, reporting the commission of rapes, including gang-rape of minors, and considered that ‘information available provide[d] a reasonable basis to believe that war crimes of rape pursuant to Article 8(2)(e)(vi) were committed’.152 Yet, the Prosecutor chose to keep the narrow focus of its case, questioning her alleged commitment to prosecuting SGBV at the time.153 Both cases were the first brought in the situation in the Democratic Republic of the Congo and in the Republic of Mali, respectively. We will see below that the Office of the Prosecutor changed their strategy in the subsequent cases for both situations and charged SGBC in the cases against Ngudjolo Chui and Katanga, Ntaganda, Mbarushimana, and Al Hassan.154 More particularly, since 2012, the Office of the Prosecutor has made some progress, with a notable increase in the number of SGBV charges.155

9.4.2 Promising Changes in the Charging Practice The strong criticism against the strategy of the Office of the Prosecutor in Lubanga and the arrival of Fatou Bensouda in office started to yield positive outcomes. Recent cases, including Ntaganda, Ongwen, Al Hassan, and Ali Kushayb, are examples of

151

FIDH 2015; FIDH 2019, para 104. ICC, Office of the Prosecutor, ‘Situation in Mali—Article 53(1) Report’, 16 January 2013, paras 118–119, 168. 153 Uhlíˇrová 2019, pp. 95–96. 154 See Sect. 9.4.1. We will see however that despite promising steps, two of the cases in the situation in the Democratic Republic of the Congo, ended with a rather disappointing outcome. Al Hassan’s trial is still ongoing at the time of writing. 155 Apart from the case of The Prosecutor v Ahmad Al Faqi Al Mahdi, all the other cases started under the leadership of Fatou Bensouda contain SGBC charges (The Prosecutor v Bosco Ntaganda, The Prosecutor v Dominic Ongwen, The Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, The Prosecutor v Alfred Yekatom and Patrice-Edouard Ngaïssona and The Prosecutor v Ahmad Muhammad Harun ("Ahmad Harun") and Ali Muhammad Ali Abd-Al-Rahman ("Ali Kushayb")). It should be noted that SGBV were also included in the charges in several cases during Luis Moreno Ocampo’s mandate, in the cases of The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, The Prosecutor v Jean-Pierre Bemba Gombo, The Prosecutor v Muthaura et al, The Prosecutor v Laurent Gbagbo and Charles Blé Goudé, and The Prosecutor v Mbarushimana. We will see that these cases have however suffered from a lack of evidence which has led to the collapse of the SGBV charges or the case in general. 152

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proper charging at the outset of the case or correction of existing charges to reflect the crimes committed. The case of The Prosecutor v Bosco Ntaganda in the Democratic Republic of Congo is exemplary of the shift in the Office of the Prosecutor’s strategy related to SGBC, which ultimately led to the first conviction for such crimes at the ICC. Ntaganda, Lubanga’s associate and deputy chief of staff and commander of operations of the FPLC, arrived in the ICC’s custody in March 2013. Although the case started without any SGBV charges in 2006,156 by contrast to Lubanga, the Prosecution extended the charges to a wide range of crimes including sexual slavery and rape, shortly before the beginning of Fatou Bensouda’s term as ICC Prosecutor in 2012.157 The charges of rape and sexual slavery as a crime against humanity and war crime covered sexual violence against civilians (male and female) and child soldiers.158 The eighteen counts of war crimes and crimes against humanity, including rape and sexual slavery, were confirmed on 9 June 2014, making it the first case in which all SGBC allegations passed the confirmation of charges stage.159 And finally, in 2019, the Trial Chamber found that several of the allegations of rape and sexual slavery by UPC/FPLC soldiers against male and female were proven beyond reasonable doubt and found Ntaganda guilty of such crimes.160 He was held responsible as a direct perpetrator and indirect co-perpetrator under Article 25(3)(a) of the Rome Statute.161 At the centre of a debate and strong criticism was however the extension of the protection of child soldiers against sexual violence committed by members of their own group. Ntaganda was the first person to face charges and be convicted for SGBV committed both by and against members of the same armed group.162 The Prosecution contended that, inter alia, FPLC soldiers raped and sexually enslaved their own soldiers including child soldiers under the age of fifteen.163 The Defence repeatedly attempted to have these charges dropped for falling outside the jurisdiction of international humanitarian law (IHL) and ICL.164 156

ICC, The Prosecutor v Bosco Ntaganda, Warrant of Arrest, 24 August 2006, ICC-01/04-02/062-tENG. 157 ICC, The Prosecutor v Bosco Ntaganda, Public redacted version - Decision on the Prosecutor’s Application under Article 58, 13 July 2012, ICC-01/04-02/06-36-Red. See also Grey 2019b, p. 142. 158 Grey 2019b, p. 145. 159 Ibid., p. 146. 160 He was also found guilty of the crimes against humanity of murder and attempted murder, persecution, forcible transfer, and deportation and the war crimes of murder and attempted murder, intentionally directing attacks against civilians, ordering the displacement of the civilian population, conscripting and enlisting children under the age of 15 years into an armed group and using them to participate actively in hostilities, intentionally directing attacks against protected objects, and destroying the adversary’s property. 161 ICC, The Prosecutor v Bosco Ntaganda, Judgement, 9 July 2019, ICC-01/04-02/06, para 1199. 162 Uhlíˇrová 2019, p. 100. 163 ICC, The Prosecutor v Bosco Ntaganda, Prosecution’s submission of document containing the charges and the list of evidence, 10 January 2014, ICC-01/04-02/06-203-AnxA, Counts 4-6. 164 See ICC, The Prosecutor v Bosco Ntaganda, Transcript of Hearing, 13 February 2014, ICC01/04-02/06-T-10-RED-ENG, p. 27, lines 5–25; Decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9, 9 October 2015, ICC-01/04-02/06-892; Appeal

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In 2017, the Trial Chamber rejected the Defence’s last attempts and concluded that sexual slavery and rape can be charged as war crimes, even if committed against members of the same group.165 It explained that even if IHL expressly prohibited rape and sexual slavery to protect civilians and persons hors de combat only, it did not exhaustively define or limit the scope of the protection.166 The Trial Chamber then concluded that the prohibitions against rape and sexual slavery being peremptory norms, such conduct is prohibited at all times and against all persons, regardless of their legal status.167 In June 2017, the Appeals Chamber upheld the Trial Chamber’s decision by stating that:168 Having regard to the established framework of international law, members of an armed force or group are not categorically excluded from protection against the war crimes of rape and sexual slavery under Article 8 (2) (b) (xxii) and (2) (e) (vi) of the Statute when committed by members of the same armed force or group. Nevertheless, it must be established that the conduct in question “took place in the context of and was associated with an armed conflict” of either international or non-international character. It is this nexus requirement that sufficiently and appropriately delineates war crimes from ordinary crimes.169

While such outcome could be praised in that it extends the protection against sexual violence offered by IHL to any individuals regardless of their legal status, such position rather creates a dangerous precedent difficult to reconcile with existing rules of IHL. Following the decision, several authors170 criticised such expansive interpretation. More particularly, Heller demonstrated that, since raping members of its own group is not illegal under IHL, this decision created a situation where war crimes do not have to violate IHL.171 Further, this decision conveniently ignored the widely criticised interpretation of active participation in hostilities adopted in the Lubanga case, rather than dismissing it or at least reconciliating with its own new position. To offer the best protection to child soldiers who were forcibly recruited, the Trial Chamber in Lubanga originally ruled that ‘[t]hose who participate actively in hostilities include a wide range of individuals, from those on the front line (who participate directly) through to the on behalf of Mr Ntaganda against Trial Chamber VI’s ‘Decision on the Defence’s challenge to the jurisdiction’, 4 January 2017, ICC-01/04-02/06-1707; Judgment on the appeal of Mr Ntaganda against the “Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9”, 15 June 2017, ICC-01/04-02/06 OA5. 165 ICC, The Prosecutor v Bosco Ntaganda, Appeal on behalf of Mr Ntaganda against Trial Chamber VI’s ‘Decision on the Defence’s challenge to the jurisdiction’, 4 January 2017, ICC-01/04-02/061707, paras 51–53. 166 Ibid., para 47. 167 Ibid., para 51. 168 See also Uhlíˇrová 2019, p. 99. 169 ICC, The Prosecutor v Bosco Ntaganda, Judgment on the appeal of Mr Ntaganda against the “Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9”, 15 June 2017, ICC-01/04-02/06 OA5, para 2. 170 See McDermott 2017; Svaˇ cek 2017; Heller 2017. 171 Heller 2017.

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boys or girls who are involved in a myriad of roles that support the combatants.’172 According to the Chamber, ‘active’ and ‘direct’ participation in hostilities refer to two different concepts: the decisive factor in deciding if an ‘indirect’ role is to be treated as active participation in hostilities being whether the support provided by the child to the combatants exposed him or her to real danger as a potential target.173 At the time, Urban highlighted that the Trial Chamber’s decision conflicted with existing rules of IHL and opined that such interpretation could have unintended consequences, including the risk of excluding children from the protection of Common Article 3 and Article 8(c) of the Rome Statute (which refer to ‘acts committed against persons taking no active role in the hostilities’) or of having acts considered illegal under the Rome Statute but permitted under IHL.174 On 1 December 2014, the Appeals Chamber confirmed the distinction between ‘active participation in hostilities’ in Article 8(2)(e)(vii) and the terms ‘active’ or ‘direct’ participation in IHL175 , but rejected the risk-based approach adopted by the Trial Chamber to define active participation.176 Instead, the Chamber adopted a link-based approach, according to which the link between the activity for which the child is used and the combat in which the armed force or group of the perpetrator is engaged should be analysed.177 Despite representing a positive shift, the Chamber however failed to provide a clear list of activities falling under the new definition, creating risks of inconsistent jurisprudence between the Chambers.178 Regrettably, to reconcile the interpretation of active participation in hostilities to the need to protect children against unlawful recruitment, as well as against sexual violence crimes they are subject to, the Chamber, in the Ntaganda decision, brushed off the position of the judges in Lubanga and further departed from IHL by simply ruling that the legal status of the victim of sexual violence was irrelevant. Even if the judges were motivated by the wish to offer the best protection to victims of sexual violence in armed conflict, the interpretation of the Rome Statute shall not be carried out in a vacuum without assessing the entire legal framework in which ICL operates. The ICC must ensure that its interpretation of the Rome Statute be in line with IHL. Such ambiguities, despite the positive outcome, undermine the field and the protection it is meant to offer and more importantly conflicts with the principle of legality. Another significant case, The Prosecutor v Ongwen in the situation in Uganda, marks a further step towards a more focused approach of the Office of the Prosecutor 172

ICC, The Prosecutor v Thomas Lubanga Dyilo, Judgment Pursuant to Article 74 of the Statute, 5 April 2012, ICC-01/04-01/06-2842, para 628. 173 Ibid. 174 Urban 2012. 175 The Prosecutor v Thomas Lubanga Dyilo, Public redacted Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction, 1 December 2014, ICC-01/04-01/06-3121-Red, para 324. 176 ICC, The Prosecutor v Thomas Lubanga Dyilo, Judgment Pursuant to Article 74 of the Statute, 5 April 2012, ICC-01/04-01/06-2842, para 340. 177 Ibid., para 335. 178 See for example Yuvaraj 2016; Harwood 2014.

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and their intent to make good use of the large list of SGBC in the Rome Statute. Dominic Ongwen is an alleged senior commander in the Lord’s Resistance Army (LRA) and former child soldier who is accused of, inter alia, abducting girls and women to serve as domestic servants, forced exclusive conjugal partners and sexual slaves. Originally, his arrest warrant of 8 July 2005 only contained seven counts, none of which related to sexual violence.179 After further investigation, several charges were added in the Document Containing the Charges in 2015.180 Ongwen was charged with total of seventy counts, nineteen of which related to SGBV (acts of forced marriage, torture, rape, sexual slavery, enslavement, forced pregnancy, and outrages upon personal dignity), demonstrating a radical change in the Office of the Prosecutor’s strategy. Out of the nineteen SGBV charges, eleven relate to crimes he directly committed.181 On 23 March 2016, all the counts were confirmed,182 making it the case with the highest number of charges and the broadest range of SGBV charges.183 And on 4 February 2021, Ongwen was finally found guilty on sixty-one counts, including the nineteen SGBV counts.184 Beyond this impressive list of crimes, Ongwen is the first person to be found guilty of forced marriage as a crime against humanity of “other inhumane acts” at the ICC185 and of forced pregnancy under ICL generally.186 By contrast, in the Katanga case, third ICC judgement, which will be addressed below,187 forced marriage in the Democratic Republic of Congo was labelled as sexual slavery by the Prosecutor,188 departing from the established understanding of forced marriage developed under ICL at the SCSL189 and the Extraordinary Chambers in the Courts of Cambodia.190 In the Brima, Kamara and Kanu case for example, the Prosecutor charged forced marriage as other inhumane acts under Article 2(i) of the SCSL Statute. While the Trial Chamber dismissed the count on the ground that the crimes 179

ICC, Situation in Uganda, Warrant of Arrest for Dominic Ongwen, 09 July 2005, ICC-02/0401/05-57. 180 ICC, The Prosecutor v Dominic Ongwen, Decision on the confirmation of charges against Dominic Ongwen, 23 March 2016, ICC-02/04-01/15-422-Red. 181 Ibid., paras 117, 124. 182 ICC, The Prosecutor v Dominic Ongwen, Decision on the confirmation of charges against Dominic Ongwen, 23 March 2016, ICC-02/04-01/15-422-red. 183 De Vos 2016a. 184 ICC, The Prosecutor v Dominic Ongwen, Trial Judgement, 4 February 2021ICC-02/04-01/151762-Red. The verdict may still be appealed by either party. 185 Uhlíˇrová 2019, p. 98. 186 De Vos 2016a; Minkova 2021. 187 See below Sect. 9.5.1. 188 ICC, The Prosecutor v Germain Katanga, Decision on the confirmation of charges, 14 October 2008, ICC-01/04-01/07-717, para 431. 189 See SCSL, The Prosecutor v Sesay, Kallon and Gbao, Appeal Judgement, 26 October 2009, SCSL-04-15-A, paras 735–737; SCSL, The Prosecutor v Brima, Kamara and Kanu, Appeal Judgment, 22 February 2008, SCSL-2004-16-A, para 196. 190 Extraordinary Chambers in the Courts of Cambodia, Case 002, Closing Order, 15 September 2010, 002/19-09-2007-ECCC-OCIJ, paras 1442–1443.

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of “other inhumane acts” must be interpreted to exclude crimes of a sexual nature and forced marriages were completely subsumed by the crime of sexual slavery,191 the Appeals Chamber found that the ‘Trial Chamber erred in law by finding that “Other Inhumane Acts” under Article 2.i must be restrictively interpreted’ and that forced marriage can be subsumed by the crime against humanity of sexual slavery due to their different material elements.192 In the Ongwen case, the Prosecution abandoned its original position in Katanga and finally charged forced marriages as other inhumane acts, expressly referring to the SCSL.193 Although the Defence argued that the crime of forced marriage was subsumed by the crime of sexual slavery rather than amounting to a category of other inhumane acts, the Trial Chamber endorsed the Prosecution’s argument.194 Oosterveld heralded such change as an example of ‘the Prosecutor’s willingness to alter her strategies around gender-based crime’ and stressed that such revisability was ‘key to reinforcing the expressive function of international criminal law, particularly in recognising the gendered nature of specific crimes.’195 The case has also been presented as ‘a firm break with past setbacks in terms of accountability for [SGBV] at the Court’.196 Additional positive developments in the case include the use of testimony prior to trial. For the first time, the Office of the Prosecutor took testimony of witnesses before the start of trial, pursuant to Article 56 of the Rome Statute.197 In September and November 2015, eight witnesses were heard via video-link before a single judge, to preserve their testimonies, thus preventing societal pressure and re-traumatisation. One of the most recent emblematic example of the Prosecution’s renewed strategy for SGBV at the ICC, relates to the situation in Mali in the case of The Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud. Al Hassan is the second Malian member of Ansar Dine to appear before the court. His case is particularly important in that it departs from the Al Mahdi case which did not include a single SGBC charge and in that it contains the first successful charge of gender-based crimes at the ICC.

191

SCSL, The Prosecutor v Brima, Kamara and Kanu, Trial Judgment, 20 June 2007, SCSL-200416-T, paras 697, 713. 192 SCSL, The Prosecutor v Brima, Kamara and Kanu, Appeal Judgment, 22 February 2008, SCSL2004-16-A, paras 186, 196. 193 ICC, The Prosecutor v Dominic Ongwen, Prosecution’s Pre-Trial Brief, 6 September 2016, ICC-02/04-01/15, paras 510–511. 194 The Prosecutor v Dominic Ongwen, Decision on the confirmation of charges against Dominic Ongwen, 23 March 2016, ICC-02/04-01/15-422-Red, para 95. 195 Oosterveld 2016. 196 De Vos 2016a. 197 Ibid., Grey 2019b, p. 175.

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Representing significant progress, Al Hassan is facing thirteen charges,198 seven of which are SGBC (other inhumane acts including forced marriages, sexual slavery, rape, and persecution on gender grounds).199 Although the crime of gender-based persecution was one of the best advancements of the Rome Statute, the Office of the Prosecutor had failed to ever successfully charge it,200 contrasting with the attention given to the persecution on other grounds, such as ethnicity and religion by the Office.201 Our analysis below will show that, although gender-based persecution had been charged in the Mbarushimana case,202 the Prosecutor Luis Moreno-Ocampo ‘utterly failed to substantiate many of the crimes charged’,203 leading to the collapse of the case at the confirmation of charges phase due to a lack of evidence.204 In Al-Hassan, the Document Containing the Charges alleges: Members of the organisation […] specifically targeted women and girls of Timbuktu and its region on gender grounds by imposing their own ideological and religious vision and discriminatory view of women.205

On 30 September 2019, the Pre-Trial Chamber confirmed the charges against Al Hassan, making it the first international tribunal to consider gender-based persecutions.206 In addition to its historical importance, the case illustrates a recent shift in practice at the Office of the Prosecutor. On 31 January 2020, the Prosecutor sought to amend the charges between the confirmation of charges decision and the first day of trial to include additional factual allegations under existing charges,207 including other inhumane acts in the form of forced marriages, sexual slavery, rape, and persecution. 198

ICC, The Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Version publique expurgée de la “Version amendée et corrigée du Document contenant les charges contre M. Al HASSAN Ag ABDOUL AZIZ Ag Mohamed Ag Mahmoud”, 2 July 2019, ICC-01/12-01/18-335Corr-Red, para 1058. He was charged with crimes against humanity (torture, rape, sexual slavery, persecution on religious and gender grounds and other inhumane acts including forced marriages) and war crimes (torture, cruel treatment, rape, sexual slavery, outrage on personal dignity, imposition of a sentence by an improper court, and attacking religious buildings). 199 Ibid., paras 1075 et seq. 200 Chertoff 2017, p. 1071. 201 Kersten 2020. 202 ICC, The Prosecutor v Mbarushimana, Prosecution’s document containing the charges submitted pursuant to Article 61(3) of the Statute, 3 August 2011, ICC-01/04-01/10-330-Conf-AnxA. 203 Chertoff 2017, p. 1093. 204 ICC, The Prosecutor v Mbarushimana, Decision on the Confirmation of Charges, 16 December 2011, ICC-01/04-01/ 10-465-Red, paras 293–303. 205 ICC, The Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Version publique expurgée de la “Version amendée et corrigée du Document contenant les charges contre M. Al HASSAN Ag ABDOUL AZIZ Ag Mohamed Ag Mahmoud”, 2 July 2019, ICC-01/12-01/18-335Corr-Red, para 1091 (free translation). 206 Grey 2019a. 207 Torture, inhumane acts, cruel treatment, outrages upon personal dignity, passing of sentences without previous judgement pronounced by a regularly constituted court, other inhumane acts in the form of forced marriages, sexual slavery, rape, and persecution.

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The Prosecutor explained that, since the confirmation hearing, she obtained additional information from witnesses and upon additional review of the Islamic reports and Islamic judgments.208 Such request seems to be a consequence of the Bemba judgment, in which the Chamber found that ‘criminal acts that were added after the Confirmation Decision had been issued did not form part of the “facts and circumstances described in the charges”—to the extent that the document containing the charges was not amended to reflect them—and Mr. Bemba could therefore not be convicted of them”’209 In short, the Prosecution can only rely on acts specified in the charges confirmed. As a result, on 23 April 2020, the Pre-Trial Chamber partially granted the Prosecutor’s request to modify the charges against Al Hassan and agreed to include additional facts in relation to all the SGBC charges.210 Regrettably, the changes highlighted above have not materialised in all the cases at the ICC. Even in some cases where SGBC were charged, the lack of prosecutorial strategy and focused investigations led to the collapse of the charges, pointing out an inconsistent practice with regards to SGB.

9.4.3 Long Lasting Negative Effects Despite the above-mentioned positive outcomes, a worrying trend continues to plague the prosecution of SGBC in several cases, making such charges ‘most vulnerable to dismissal at the pre-trial and trial stages’.211 More particularly, initial failures related to the investigation of SGBC have had lasting negative results and inevitably resurfaced at later stages of proceedings.212 Such observation had already been made at the ad hocs.213 Oosterveld, referring to the ICTR, highlighted that the inconsistency in prosecutorial focus on sexual

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ICC, The Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Public redacted version of “Prosecution Request for corrections and amendments concerning the Confirmation Decision”, 30 January 2020, ICC-01/12-01/18-568-Conf, 17 February 2020, ICC-01/12-01/18568-Red, para 1. 209 ICC, The Prosecutor v Jean-Pierre Bemba Gombo, Judgment on the appeal of Mr. Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute”, 08 June 2018, ICC-01/05-01/08-3636-Red, para 115. 210 ICC, The Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Version publique expurgée du Rectificatif de la Décision portant modification des charges confirmées le 30 septembre 2019 à l’encontre d’Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, 23 avril 2020, ICC-01/12-01/18-767-Conf, 08 May 2020, ICC-01/12-01/18-767-Corr-Red. More generally, the Chamber granted the request for the charges of crime against humanity: sexual slavery, rape, persecution, and other inhuman acts; as well as the following charges of war crimes: cruel treatment, sexual slavery, rape, outrages upon personal dignity and passing of sentences without previous judgement. 211 Grey et al. 2020. 212 Hayes 2013, p. 32. 213 SáCouto and Cleary 2009, p. 353.

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violence crimes not only led to inconsistent charging practices, but also to the disconnection between the charges in the indictment and the prosecution case itself.214 Such pattern was already identified as a challenge at the ICTY where several accused were acquitted of sexual violence incidents due to a lack of evidence.215 For example in the Prli´c case,216 the Prosecutor did not present any evidence of rape and sexual assault as inhuman treatment in the Vojno Detention Centre even though it was charged. Similarly, the Prosecution failed to present any evidence regarding the accused’s participation in sexual assault in Omarska camp, as alleged in the Indictment against Tadi´c.217 Even more surprising, in Mrksi´c and Deli´c, although the accused were charged with sexual abuse at Ovˇcara, the Prosecution failed to provide any evidence of the allegation, and instead, provided evidence of abuse in a hospital in Vukovar not covered by the indictment.218 Such pattern has unfortunately been repeated at the ICC. Four cases will be highlighted in this section: Mbarushimana, Muthaura, Kenyatta, and Hussein Ali, Gbagbo and Blé Goudé, and Yekatom and Ngaïssona. Such trend has also been identified in the Katanga and Bemba cases, which are addressed in another section below.219 A key example is the case of The Prosecutor v Callixte Mbarushimana in the situation in the Democratic Republic of Congo, which covered crimes committed in the Kivu provinces between 2009 and 2010 by the Forces Démocratiques pour la Libération du Rwanda (FLDR). In the case, the arrest warrant220 contained the broadest range of SGBC charged in the history of the ICC at the time, and covered rape, torture, mutilation, other inhumane acts, inhuman treatment, and persecution on gender grounds.221 Regrettably, the Pre-Trial Chamber refused to confirm a single charge against Mbarushimana.222 The Chamber stressed that the Prosecution was forced to reframe the charges in a coherent manner and to provide sufficient detail of the factual allegations underlying each of the charges.223 Notwithstanding, it found that the charges were still vaguely articulated, preventing them from determining the factual ambit of a number of the charges.224 After reminding the Prosecution of its very basic duty to 214

Oosterveld 2005, p. 127. Jarvis and Vigneswaran 2016, p. 64. 216 ICTY, The Prosecutor v Prli´ c et al, Trial Judgment, 29 May 2013, ICTY-04-74-T, vol. 3, para 778. 217 ICTY, The Prosecutor v Tadi´ c, Opinion and Judgment, 7 May 1997, ICTY-IT-94-1-T, para 427. 218 ICTY, The Prosecutor v Mrkši´ c, Judgement, 27 September 2007, IT-95-13/1-I, paras 519–522. See also Ginn 2013, p. 588. 219 See Sect. 9.5. 220 ICC, The Prosecutor v Mbarushimana, Warrant of Arrest for Callixte Mbarushimana, 11 October 2010, ICC-01/04-01/10. 221 Hayes 2013, p. 38; Grey 2019b, p. 160. 222 ICC, The Prosecutor v Mbarushimana, Decision on the Confirmation of Charges, 16 December 2011, ICC-01/04-01/ 10-465-Red. 223 Ibid., para 111. 224 Ibid., para 110. 215

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‘inform the Suspect of the factual allegations underlying the charges against him’,225 the Chamber concluded that ‘the evidence is so scant that the Chamber cannot properly assess, let alone satisfy itself to the required threshold, whether any of the war crimes charged by the Prosecution were committed’.226 If the Mbarushimana case was not enough to draw attention to the failures of the Office of the Prosecutor towards SGBV, the case of The Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali in the situation in the Republic of Kenya, further illustrates another missed opportunity caused by a series of investigative and prosecutorial failures. In the case, the accused were initially charged with rape and other forms of sexual violence constituting a crime against humanity in or around locations including Kibera, Nakuru town, and Naivasha town in Kenya. The Prosecution’s strategy regarding these crimes proved to be extremely weak and unfocused at every stage of the proceedings. Such shortcomings started from the very beginning of the case where Prosecutor Ocampo applied for summonses to appear in 2011. Although he successfully introduced SGBC charges, the Pre-Trial Chamber found that the Prosecutor ‘failed to provide evidence substantiating his allegation that rape was committed as part of the attack’ in one of the locations.227 They stressed that no evidence was presented in support of the rape charge in Naivasha and therefore concluded that ‘there [were] no reasonable grounds to believe that rape as an act constituting crimes against humanity was committed’.228 The Chamber also found that, in relation to the events in two other locations, Kisumu and Kibera, where allegations of sexual violence were made, the Prosecution failed to (1) prove that the acts committed were part of an attack pursuant to or in furtherance of a State policy; and (2) to provide reasonable grounds to believe that the events can be attributed to the accused.229 The Prosecution justified their lack of evidence related to Naivasha by arguing that ‘many other cases of rape and other forms of sexual violence went unreported due to the trauma caused by such crimes and societal stigma’,230 argument difficult to sustain when Kenyan NGOs had already uncovered and shared evidence of rape in that location.231 Luckily, the charge of rape in Naivasha was reinstated at the confirmation of charges stage in 2012, where the Chamber concluded that the evidence advanced by

225

Ibid., para 112. Ibid., para 113. 227 ICC, The Prosecutor v Muthaura et al, Decision on the Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, 8 March 2011, ICC-01/09-02/11-1, para 26. 228 Ibid. 229 Ibid., paras 31–32. 230 ICC, The Prosecutor v Muthaura et al, Decision on the Confirmation of Charges, 23 January 2012, ICC-01/09-02/11-382, para 255. 231 Ibid., para 259. 226

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the Prosecutor finally ‘reach[ed] the threshold required at this stage of the proceedings’.232 The judges however declined to confirm charges against Hussein Ali. The charges against Muthaura were in turn withdrawn in March 2013233 and against Kenyatta in March 2014.234 The Prosecution stated that the evidence remained insufficient to prove their alleged criminal responsibility beyond reasonable doubt.235 Apart from the overall challenges faced by the Prosecution during their investigation, especially the lack of compliance from the side of the Kenyan government, this case clearly highlights the Prosecution’s strategic failure towards SGBV. Even where proper charges have been introduced in the indictment, the Office of the Prosecutor still failed to adequately reference and compile the necessary crime-base and linkage evidence at the very early stage of the procedure, when the evidentiary threshold was at its lowest.236 In the situation in the Republic of Côte d’Ivoire, the case of The Prosecutor v Laurent Gbagbo and Charles Blé Goudé shall also be highlighted. Gbagbo was charged as an indirect co-perpetrator for the crimes against humanity of murder, rape, other inhumane acts, and persecution, committed during the period between 16 December 2010 and 12 April 2011.237 Despite the lessons learnt from the Mbarushimana case, which did not advance past the confirmation stage due to the lack of evidence, the Prosecution in Gbagbo presented again a case too weak. The case suffered from grave failures that even led to it being adjourned due to insufficient evidence.238 In 2011, the day of Gbagbo’s transfer to The Hague, the Pre-Trial Chamber already highlighted several weaknesses and shortcomings in the Prosecution’s application for a warrant of arrest. More particularly, the Chamber stressed that the Prosecutor failed to refer to any witness statements, witness summaries, or affidavits in support of the count of rape and other

232

Ibid. ICC, The Prosecutor v Muthaura et al, Decision on the withdrawal of charges against Mr. Muthaura, 18 March 2013, ICC-01/09-02/11-696. 234 ICC, The Prosecutor v Uhuru Muigai Kenyatta, Decision on Prosecution’s applications for a finding of non-compliance pursuant to Article 87(7) and for an adjournment of the provisional trial date, 31 March 2014, ICC-01/09-02/11-908. 235 ICC, The Prosecutor v Francis Kirimi Muthaura and Uhuru Muigai Kenyatta, Prosecution notification of withdrawal of the charges against Francis Kirimi Muthaura, 11 March 2013, ICC01/09-02/11-687, para 10; The Prosecutor v Uhuru Muigai Kenyatta, Notice of withdrawal of the charges against Uhuru Muigai Kenyatta, 5 December 2014, ICC-O1/09-02111-983, para 2. 236 Hayes 2013, pp. 36–37. 237 ICC, The Prosecutor v Laurent Gbagbo, Decision on the confirmation of charges against Laurent Gbagbo, 12 June 2014, ICC-02/11-01/11-656-Red, para 17. Other forms of sexual violence, which were originally mentioned in the arrest warrant were removed. See ICC, The Prosecutor v Laurent Gbagbo, Warrant of Arrest For Laurent Koudou Gbagbo, 23 November 2011, ICC-02/11-01/11-1, para 7. 238 ICC, The Prosecutor v Laurent Gbagbo, Decision adjourning the hearing on the confirmation of charges pursuant to Article 61(7)(c)(i) of the Rome Statute, 3 June 2013, ICC-02/11-01/11-432. 233

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forms of sexual violence constituting a crime against humanity.239 Luckily, ‘given the low evidential threshold’ at this stage, the Chamber decided to proceed with this count.240 In 2013, once again, the Pre-Trial Chamber criticised the Prosecution’s approach towards the evidence, especially for relying heavily on hearsay evidence. The Chamber highlighted that ‘[o]f these 45 incidents, the majority of them are proven solely with anonymous hearsay from NGO Reports, United Nations reports and press articles.’241 It further explained that the Chamber was presented with an incomplete picture of many alleged facts.242 Instead of declining to confirm the charges, the judges decided to provide the Prosecution with a chance to submit further evidence, especially for the allegations of sexual violence, and adjourned the hearing.243 Notwithstanding, the charges were later confirmed on 24 January 2014, and on 11 March 2015 the cases against Gbagbo and Blé Goudé were joined. But on 15 January 2019, by oral decision, the Trial Chamber acquitted Gbagbo and Blé Goudé of all charges. Despite the repeated early warnings from the Chamber, the Prosecutor still failed to adduce sufficient evidence, including evidence of sexual violence, at the trial phase and to satisfy ‘the burden of proof in relation to several core constitutive elements of the crimes as charged’.244 A final case shall be highlighted, The Prosecutor v Alfred Yekatom and PatriceEdouard Ngaïssona in the situation in the Central African Republic II. Respectively former caporal-chef in the Forces Armées Centrafricaines commanding a group operating within the Anti-Balaka and senior leader of the Anti-Balaka, Yekatom and Ngaïssona were held responsible for crimes committed in various locations between December 2013 and August 2014. The investigation, which opened in 2014, resulted in arrest warrants against the accused in 2018. Even through the arrest warrants did not originally contain any charges of SGBV, Ngaïssona was finally charged with hundred and eleven counts in August 2019, including fourteen sexual violence charges in several locations (rape and attempted rape as a crime against humanity and a war crime, and the crime against humanity of persecution, related to counts of sexual violence).245 Yekatom was charged with 21 counts, none for SGBC.246

239

ICC, The Prosecutor v Laurent Gbagbo, Decision on the Prosecutor’s Application Pursuant to Article 58 for a Warrant of Arrest Against Laurent Koudou Gbagbo, 30 November 2011, ICC02/11-01/11, para 59. 240 Ibid. 241 Ibid., para 36. 242 Ibid. 243 Ibid., para 44. 244 ICC, The Prosecutor v Laurent Gbagbo and Charles Blé Goudé, Reasons for oral decision of 15 January 2019 on the Requête de la Défense de Laurent Gbagbo afin qu’un jugement d’acquittement portant sur toutes les charges soit prononcé en faveur de Laurent Gbagbo et que sa mise en liberté immédiate soit ordonnée), 16 July 2019, ICC-02/11-01/15-1263, para 28. 245 ICC, The Prosecutor v Alfred Yekatom and Patrice-Edouard Ngaïssona, Public redacted version of “Document Containing the Charges”, ICC-01-14/01-18-282-Conf-AnxB1, 19 August 2019, 18 September 2019, ICC-01/14-01/18-282-AnxB1-Red. 246 Ibid.

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In December 2019, the Pre-Trial Chamber only confirmed a smattering of charges against the accused.247 And out of the fourteen counts of sexual violence, only three survived (the rapes as a war crime and crime against humanity and persecution as a crime against humanity committed in the context of the attack on Bossangoa).248 This unfortunate outcome resulted from the Chamber’s finding that the evidence submitted by the Prosecutor in relation to most of the counts, yet again, did not allow for the establishment of a link between the events and the suspect, ‘due to its being flimsy, inconsistent or otherwise inadequate’.249 Whereas the counts remaining covered allegations of rape against two victims, the Chamber underlined that the Prosecution had failed to provide information as to the identity of one of the victim and/or the perpetrators. Concluding that the evidence was indirect and too vague, the Chamber found that the factual allegation was not established to the relevant standard.250 After the confirmation of charges in March 2020, the Prosecutor attempted to remedy its failure by amending the charges of rape to insert once again the second instance of rape in Bossangoa.251 In justifying its request, the Prosecution explained that it had now obtained additional evidence in the form of a detailed witness statement from the victim.252 The Prosecution argued that, at the time, it ‘did not have sufficient time to interview her and to perform other necessary steps to be able to integrate her evidence into the DCC ahead of the (…) deadline’.253 The Pre-Trial Chamber denied the request in May 2020 and found that none of the circumstances listed by the Prosecutor in support qualifies as a “proper justification”, which would warrant allowing triggering the procedure leading—via new, albeit limited, confirmation proceedings—to an extension of the facts and circumstances of the case against Ngaïssona through the addition of one charge of rape to the case.254

Taking a firm stance against the Prosecutor’s request, the Chamber explained that it cannot be construed in such a way as to allow the Prosecutor to “remedy” evidentiary lacunae which might affect part of an otherwise confirmed case: besides the uncertainty and 247

ICC, The Prosecutor v Alfred Yekatom and Patrice-Edouard Ngaïssona, Public Redacted Version of ‘Decision on the confirmation of charges against Alfred Yekatom and Patrice-Edouard Ngaïssona’, 20 December 2019, corrected on 14 May 2020, ICC-01/14-01/18-403-Red-Corr. 248 Ibid., p. 106. Only 30 out of the 111 total charges against Ngaïssona were confirmed. 249 Ibid., para 59. 250 Ibid., para 107. 251 ICC, The Prosecutor v Alfred Yekatom and Patrice-Edouard Ngaïssona, Public Redacted Version of “Prosecution’s Request to Amend Charges pursuant to Article 61(9) and for Correction of the Decision on the Confirmation of Charges, and Notice of Intention to Add Additional Charges (ICC-01/14-01/18-XXX-Conf)”, 31 March 2020, ICC-01/14-01/18-468-Red. 252 Ibid., paras 1–2. 253 Ibid., para 9. 254 ICC, The Prosecutor v Alfred Yekatom and Patrice-Edouard Ngaïssona, Decision on the ‘Prosecution’s Request to Amend Charges pursuant to Article 61(9) and for Correction of the Decision on the Confirmation of Charges, and Notice of Intention to Add Additional Charges’, 14 May 2020, ICC-01/14-01/18-517, para 31.

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precariousness which this would add to the contours of each confirmed case, this would be tantamount to making the rejection of one or more charges virtually meaningless.255

The Pre-Trial Chamber emphasised on the importance to respect the rights of the accused, especially the right to be tried expeditiously,256 as it was concerned that allowing the amendment would require the holding of a new hearing for the confirmation of charges.257 This decision shall be contrasted with the recent decision in the Al Hassan case,258 which granted the Prosecution its request to amend the charges against the accused to include additional factual allegations under existing charges. The Chamber opined that the additions would not delay the start of the trial, while assenting that it would impact the Defence and its preparation for the trial. Highlighting the small amount of new evidence to be added, the Chamber explained that such impact on the right of the Defence was outweighed by the necessary search for the truth by the Prosecutor.259 Surprisingly, the Prosecutor also manifested in its request that it intended to add charges against Yekatom to include rape and sexual slavery, which were originally omitted from the Document Containing the Charges submitted for the Confirmation of Charges.260 The Prosecution explained that it ‘anticipate[d] being in a position (…) to disclose all supporting material promptly, once all necessary security measures are implemented in accordance with Article 68(1)’.261 Referring to this request as “unusual”, the Pre-Trial Chamber explained that such an attempt will have an impact both on the Defence and the preparation of the trial as a whole and rejected the request.262 Such regrettable outcomes demonstrate that a comprehensive strategy from the investigation stage throughout the whole trial is necessary to ensure successful prosecutions of SGBC.263 Without an effective strategy from the very beginning,

255

Ibid. Ibid., paras 32–33. 257 Ibid., para 16. 258 See Sect. 9.4.2. 259 ICC, The Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Version publique expurgée du Rectificatif de la Décision portant modification des charges confirmées le 30 septembre 2019 à l’encontre d’Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, 23 avril 2020, ICC01/12-01/18-767-Conf, 08 May 2020, ICC-01/12-01/18-767-Corr-Red, para 33. 260 ICC, The Prosecutor v Alfred Yekatom and Patrice-Edouard Ngaïssona, Public Redacted Version of “Prosecution’s Request to Amend Charges pursuant to Article 61(9) and for Correction of the Decision on the Confirmation of Charges, and Notice of Intention to Add Additional Charges (ICC-01/14-01/18-XXX-Conf)”, 31 March 2020, ICC-01/14-01/18-468-Red, para 4. 261 Ibid., para 13. 262 ICC, The Prosecutor v Alfred Yekatom and Patrice-Edouard Ngaïssona, Decision on the ‘Prosecution’s Request to Amend Charges pursuant to Article 61(9) and for Correction of the Decision on the Confirmation of Charges, and Notice of Intention to Add Additional Charges’, 14 May 2020, ICC-01/14-01/18-517, para 21. 263 Ginn 2013, p. 588. 256

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the evidence collected will too often be ‘insufficient, poorly pleaded and therefore incapable of supporting the charges sought’.264 When this is compounded by a frequently deficient charge selection and inappropriate mode of liability, it can result in the attrition of charges and factual circumstances at the various pre-trial procedural stages and, in some cases, the complete failure of a case to proceed to trial.265

Without properly investigating sexual violence, the shift in the charging practice at the Office of the Prosecutor will remain in vain and fail to produce the expected results, that is, the survival of the charges at subsequent stages of the trial and alleviating their vulnerability. Of course, the Prosecution’s failures are not the only element responsible for the poor record related to SGBV at the ICC. Even with a flawless prosecution, SGBC charges still suffer from a lack of “judicial receptiveness”266 and an unjustifiable higher degree of scrutiny compared to other charges.267

9.5 Judicial Conservatism During trial, even if proper charges were introduced and sufficient evidence collected, SGBV charges are still subject to conservative judging, including (A) a lack of “judicial receptiveness”268 , (B) a higher degree of scrutiny than other charges,269 coupled with the reluctance to find non-physical perpetrators, such as political leaders or military commanders, guilty of SGBC. Although these challenges and barriers had already been encountered and successfully identified and addressed by the first international criminal tribunals, they have been unnecessarily repeated at the ICC.

9.5.1 A Regrettable Lack of “Judicial Receptiveness” While the previous section highlighted the errors, struggles, but also efforts of the Office of the Prosecutor in prosecuting SGBC, this section will demonstrate that despite the efforts undertaken in recent years, these have not necessarily been met with satisfactory adjudication. Indeed, adjudication of such crimes also suffers from some limitations, mainly due to the conservatism of the chambers and their reluctance to interpret the Rome Statute in a progressive manner and to rely on the legacy of other 264

Hayes 2013, p. 32. Ibid. 266 Ibid., p. 41. 267 Uhlíˇrová 2019, p. 97, citing Chappell. 268 Hayes 2013, p. 41. 269 Uhlíˇrová 2019, p. 97; citing Chappell. 265

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tribunals. Two cases will be highlighted in the section below: Muthaura, Kenyatta, and Hussein Ali and Bemba. In the Muthaura, Kenyatta, and Hussein Ali case, in addition to the Prosecution’s strategic failure during the investigation highlighted above,270 the judges adopted a rather conservative approach towards SGBV. In the decision on the issuance of an arrest warrant and the decision on the confirmation of charges, the Pre-Trial Chamber refused twice the Prosecution’s argument to characterise the acts of forcible circumcision of Luo men as “other forms of sexual violence”, qualifying them instead as “other inhumane acts”.271 According to the Pre-Trial Chamber ‘acts of forcible circumcision cannot be considered acts of a “sexual nature” as required by the Elements of Crimes’.272 In the confirmation of charges,273 the Pre-Trial Chamber explained that ‘not every act of violence which targets parts of the body commonly associated with sexuality should be considered an act of sexual violence’ and that ‘the determination of whether an act is of a sexual nature is inherently a question of fact’.274 The PreTrial Chamber misconstrued acts of mutilation of a sexual organ as not necessarily of a sexual nature and, as a result of their flawed premise, concluded instead that ‘the acts were motivated by ethnic prejudice and intended to demonstrate cultural superiority of one tribe over the other.’275 The debate continued during the trial until the termination of the case in 2014.276 Such a position does not however find any support in caselaw or scholarly writings. For example, the ICTY already highlighted that ‘[s]exual violence would also include such crimes as sexual mutilation’,277 as well as the SCSL which found that ‘sexual mutilations, with the rebels slitting the private parts of several male

270

See Sect. 9.4.2. ICC, The Prosecutor v Muthaura et al, Decision on the Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, 8 March 2011, ICC-01/09-02/11-1, para 27. ICC, The Prosecutor v Muthaura et al, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 23 January 2012, ICC-01/09-02/11-382-Red, paras 264–266. 272 ICC, The Prosecutor v Muthaura et al, Decision on the Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, 8 March 2011, ICC-01/09-02/11-1, para 27. ICC, The Prosecutor v Muthaura et al, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 23 January 2012, ICC-01/09-02/11-382-Red, para 27. 273 ICC, The Prosecutor v Muthaura et al, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 23 January 2012, ICC-01/09-02/11-382-Red, para 264. 274 Ibid., para 265. 275 Ibid., para 266. 276 Grey 2019b, p. 212. 277 ICTY, The Prosecutor v Kvoˇ cka et al, Judgment, 2 November 2001, ICTY-IT-98-30/1-T, n 343. See also ICTY, The Prosecutor v Brdanin, Judgment, 1 September 2004, IT-99-36, paras 517– 518 (a women’s breast being cut off with a knife was characterised as a sexual assault); ICTY, Prosecutor v Tadi´c, Appeals Judgment, 15 July 1999, IT-94-1-A, para 198 (similar for a victim who was compelled sexually to mutilate another victim by biting off one of his testicles). 271

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and female civilians with a knife’ was a form of sexual violence.278 The decision was also highly criticised, as an ‘restrictive and unsupported interpretation’ and was received as a rather surprising outcome.279 It underlined as well that SGBV, especially against men, were still ‘misconceptualized, mischaracterized and even trivialised at an international level’. 280 Uhlíˇrová for example wondered ‘what would satisfy the evidentiary requirements of the Pre-Trial Chamber if not acts that undeniably “have devastating and permanent impact on an individual’s sexual integrity”.’281 Hayes opined that it was, perhaps, […] one of the most retrograde developments at the ICC to date, and one which gives rise to frustration, regret and a weary suspicion that, despite all the effort expended, the accumulated effects of the Court’s activities have contributed more to pushing the rock back down the hill than to edging it further up.282

While the decision in the Muthaura, Kenyatta, and Hussein Ali case has been fustigated for its lack of logic, the case of The Prosecutor v Jean-Pierre Bemba Gombo in the situation in the Central African Republic, is ever more emblematic in the failure of the chambers to make use of the progressive provisions of the Rome Statute and to adhere to well-established case law. Bemba, President and Commander-in-chief of the Mouvement de libération du Congo (MLC), was charged with crimes against humanity and war crimes, including rape committed by the MLC troops in the Central African Republic from on or about 26 October 2002 to 15 March 2003. Bemba was the first person to ever be convicted by the ICC on the basis of command responsibility and of SGBC—more particularly rape as a crime against humanity and war crime—in 2016.283 On 21 March 2016, the Chamber found that ‘perpetrator(s) [knowingly and intentionally], by force, invaded the bodies of [28] victims by penetrating their vaginas and/or anuses, and/or other bodily openings with their penises’.284 It found beyond reasonable doubt that MLC soldiers committed the war crime of rape and the crime against humanity of rape in the CAR between on or about 26 October 2002 and 15 March 2003.285 Finally, the Trial Chamber found Bemba guilty, especially because the measures he took were

278

SCSL, The Prosecutor v Sesay, Kallon and Gbao, Judgement, March 2009, SCSL-04-15-T, para 1208. 279 Uhlíˇrová 2019, p. 94. See also Hayes 2013, pp. 43–44; Jurasz 2014, p. 5. 280 Jurasz 2014, p. 6. 281 Uhlíˇrová 2019, p. 94 (footnote omitted). 282 Hayes 2013, p. 45. 283 ICC, The Prosecutor v Jean-Pierre Bemba Gombo, Judgment pursuant to Article 74 of the Statute, 21 March 2016, ICC-01/05-01/08-3343. 284 Ibid., paras 633, 637. 285 Ibid., para 638.

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‘a grossly inadequate response to the consistent information of widespread crimes committed by MLC soldiers in the CAR.’286 He was however acquitted in 2018.287 Following the backlash of the Lubanga trial, which failed to include SGBV charges, the Office of the Prosecutor adopted a different approach in the Bemba case.288 In its arrest warrant application, the Prosecution included a total of seven charges related to sexual violence, out of the ten charges (rape, other forms of sexual violence, and torture as crimes against humanity and war crimes, the war crime of outrage on personal dignity).289 A similar approach was adopted in Ngudjolo Chui and Katanga, another case in the situation in the Republic Democratic of Congo, discussed below. Despite this shift in the Prosecution’s strategy, the Chamber failed on three occasions to adopt a progressive stance regarding SGBV. First, in the 2008 Decision on the Prosecutor’s application for a warrant of arrest, the Pre-Trial Chamber refused to qualify forcing women to undress in public in order to humiliate them as “other forms of sexual violence”. The Chamber explained that ‘the facts submitted do not constitute forms of sexual violence of comparable gravity to the other crimes set forth in Article 7(1)(g) of the Statute.’290 The ICC departed from the ICTR landmark case, which already addressed such acts and successfully tried them as “other forms of sexual violence”.291 In the Akayesu case, the judges found that ‘sexual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact.’292 It should be noted that the Pre-Trial Chamber failed to refer or even acknowledge the ICTR’s finding, which, according to Hayes, could be attributed to a judicial oversight and not to an attempt at distinguishing the case from Akayesu.293 In 2009, at the confirmation of charges stage, the judges issued another disappointing decision. Surprisingly, they refused to confirm two separate charges of rape and torture and outrages on personal dignity for being detrimental to the rights of the Defence,294 once again disregarding the existing body of international criminal jurisprudence,295 and showing that it was less willing to allow cumulative charges 286

Ibid., para 727. ICC, The Prosecutor v Jean-Pierre Bemba Gombo, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute”, 8 June 2018, ICC-01/05-01/08-3636-Red. 288 Mwangi 2017, p. 49, citing Fatou Bensouda. 289 Grey 2019b, p. 192. 290 ICC, The Prosecutor v Jean-Pierre Bemba Gombo, Decision on the Prosecutor’s Application for a Warrant of Arrest Against Jean-Pierre Bemba Gombo, 10 June 2008, ICC-01/05-01/08-14, para 40. 291 Uhlíˇrová 2019, p. 97. 292 The Prosecutor v Akayesu, Judgment, 2 September 1998, ICTR-96-4-T, para 688. 293 Hayes 2013, fn 134. 294 ICC, The Prosecutor v Jean-Pierre Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, ICC-01/05-01/08, paras 204–205. 295 Hayes 2013, p. 42. 287

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than the ICTY and ICTR.296 The Pre-Trial Chamber found that rape was the ‘most appropriate legal characterisation’ since the material elements of the acts of torture were already covered by the specific element of the act of rape, the difference being that the act of rape requires the additional specific material element of penetration. It concluded that the act of torture was ‘fully subsumed by the count of rape’.297 For the crimes of outrages upon personal dignity, the Pre-Trial Chamber also concluded that the acts were subsumed by the count of rape.298 As a result, only two out of the seven SGBV charges made it to trial. More deplorably, the choice by the Pre-Trial Chamber to only focus on rape and not to recognise other forms of sexual violence eclipsed the diversity of sexual violence that occurred during the conflict in the Central African Republic.299 Finally, on 8 June 2018, Bemba’s conviction was reversed by the Appeals Chamber.300 The acquittal came as a surprise and was widely criticised. According to the Chamber, although the crimes were established, the Trial Chamber’s conclusion that Bemba failed to take all necessary and reasonable measures in response to MLC crimes, was materially affected by several errors, the more significant being that he was a “remote” commander.301 It found that ‘the Trial Chamber paid insufficient attention to the fact that the MLC troops were operating in a foreign country with the attendant difficulties on Mr Bemba’s ability, as a remote commander, to take measures.’302 SáCouto and Viseur Sellers stressed that the judges’ analysis of command responsibility ‘significantly narrow[ed] the prospects for successful prosecution of SGBC at the ICC’.303 They further opined that [a]bsent reconsideration, the court’s jurisprudence on modes of liability will remain a major obstacle to the successful prosecution of cases involving SVGB crimes, especially for highranking accused who either did not clearly order the crimes or were not physically present during the commission of those crimes.304

Among their many criticisms of the decision, the authors explain that the Appeals Chamber did not make any observations about the quality of the investigations with respect to sexual-violence allegations, especially about the adequacy of said measures in light of the types of crimes and the amount of rapes compared to murders or acts 296

Carson 2012. ICC, The Prosecutor v Jean-Pierre Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, ICC-01/05-01/08, paras 204–205. 298 Ibid., para 312. 299 Mwangi 2017, pp. 52–53. 300 ICC, The Prosecutor v Jean-Pierre Bemba Gombo, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute”, 8 June 2018, ICC-01/05-01/08-3636-Red. 301 Ibid., paras 189–194. 302 Ibid., para 171. 303 SáCouto and Viseur Sellers 2019, p. 3. 304 Ibid., p. 4. 297

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of pillaging.305 As a result, the judgement’s failure to examine and conceptualise acts of sexual violence and their importance when assessing command liability highlighted ‘an absence of the kind of insight that a critical gender-competent (or feminist international law) analysis of command responsibility would have offered’.306 Despite these disappointing results, the Bemba case has also brought some positive advancements regarding the legal and procedural framework of the Rome Statute concerning SGBC, albeit undermined by the acquittal. For example, Bemba was the first case to hear male victims in relation to a rape charge.307 When addressing the invasion of the body, the Trial judgment ‘reiterate[d] many of the Rome Statute’s gender sensitive legal standards,’ emphasising that ‘rape under the Rome Statute is a gender-neutral crime (…) and can thus encompass both male and female perpetrators and victims’.308 The Chamber also recalled that the anal or genital opening of the victim with any object or any other part of the body constituted rape under the Rome Statute.309 It further highlighted that rape included oral penetration by a sexual organ, recognising that it could be ‘as humiliating and traumatic as vaginal or anal penetration’.310 In making this finding, the Chamber relied on the jurisprudence of ˇ the ICTY in the Furundžija and Celebi´ ci cases.311 Referring to the circumstances in which rape occurs, second element of rape, the Chamber also explained that the invasion of the body of a person can constitute rape if the acts were committed by force, threat of force or coercion, taking advantage of a coercive environment; or against a person incapable of giving genuine consent.312 The Chamber reiterated that: the victim’s lack of consent is not a legal element of the crime of rape under the Statute. The preparatory works of the Statute demonstrate that the drafters chose not to require that the Prosecution prove the non-consent of the victim beyond reasonable doubt, on the basis that such a requirement would, in most cases, undermine efforts to bring perpetrators to justice.313

Finally during the trial, the Chamber ‘displayed sensitivity to the impact of the rapes on victims, and the need to consider this during testimony and in evaluating the evidence’.314 For instance, one victim had been inconsistent regarding her age at 305

Ibid., p. 17. Ibid., p. 23. See also Grey 2019b, pp. 203–205. 307 Mannix 2014, p. 22; McDermott 2016. 308 De Vos 2016b. 309 ICC, The Prosecutor v Jean-Pierre Bemba Gombo, Judgment pursuant to Article 74 of the Statute, 21 March 2016, ICC-01/05-01/08-3343, para 99. 310 Ibid., para 101. 311 ICTY, The Prosecutor v Furundžija, Judgment, 10 December 1998, ICTY-IT-95-17/1-T, paras 183–185; and ICTY, The Prosecutor v Muci´c et al, Judgment, 16 November 1998, IT-96-21-T, para 1066. 312 ICC, The Prosecutor v Jean-Pierre Bemba Gombo, Judgment pursuant to Article 74 of the Statute, 21 March 2016, ICC-01/05-01/08-3343, para 102. 313 Ibid., para 105. 314 De Vos 2016b. 306

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the time of the events; the Chamber explained that these discrepancies did not undermine the victim’s credibility, and instead explained that such inconsistencies ‘can be explained by the lapse of time between the events and the testimony, the traumatic circumstances, and her difficulties discussing such personal scenes in court’.315 All in all, the Bemba case is representative of the ICC’s approach towards SGBV at every level and stage of the proceedings, in that it brought both promising and disappointing results. In addition to the lack of ‘judicial receptiveness’, cases involving SGBV charges, including Bemba, also suffered from an unjustified higher degree of scrutiny compared to other crimes.

9.5.2 An Unjustified Higher Degree of Scrutiny Another main factor hindering the adjudication of SGBV is the high degree of scrutiny employed by judges. Such a pattern has been identified in two main cases, Mathieu Ngudjolo Chui and Germain Katanga in the situation in the Republic Democratic of Congo, and Bemba in the situation in the Central African Republic. Ngudjolo Chui, leader of the Front des nationalistes et intégrationnistes, and Katanga, commander of the Force de résistance patriotique en Ituri, were the first accused at the ICC to be charged with rape and sexual slavery. Notwithstanding this very encouraging start, the case is known today for its setback related to SGBV316 and for illustrating ‘the difficulties in establishing criminal responsibility for sexual violence crimes’.317 The case dealt with crimes committed during an attack on the village of Bogoro, in the Ituri district of the Democratic Republic of Congo on 24 February 2003. The accused were charged in 2008, among others, with the crimes of rape and sexual slavery as crimes against humanity and war crimes, and the war crime of outrage on personal dignity.318 First, the prosecution of SGBC was not without any difficulties. After the Pre-Trial Chamber excluded the statements of two witnesses supporting SGBV charges due to the lack of protection, the Prosecutor dropped the charges of sexual slavery as both a war crime and a crime against humanity.319 The charges were finally reinstated after the witnesses were accepted into the court’s Witness Protection Programme, and 315

ICC, The Prosecutor v Jean-Pierre Bemba Gombo, Judgment pursuant to Article 74 of the Statute, 21 March 2016, ICC-01/05-01/08-3343, para 482. 316 Grey 2019b, p. 148. 317 Ibid., p. 156. 318 ICC, The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, Submission of Amended Document Containing the Charges Pursuant to Decision ICC-01/04-01/07-648, 26 June 2008, ICC01/04-01/07-649-Anx1A. 319 ICC, The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, Corrigendum to the Decision on Evidentiary Scope of the Confirmation Hearing, Preventive Relocation and Disclosure under Article 67(2) of the Statute and Rule 77 of the Rules, 26 April 2008, ICC-01/04-01/07-428Corr, para 39. See also SáCouto and Cleary 2009, pp. 343–344.

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additional allegations of rape as a war crime and a crime against humanity were also added.320 Both charges of rape and sexual slavery were confirmed by the Pre-Trial Chamber in 2008, while the charge of outrage on personal dignity was dropped due to the lack of evidence as to the accused’s mens rea.321 Their charges were then severed on 21 November 2012 after the closing statement. Ngudjolo Chui was acquitted in December 2012.322 And on 27 February 2015, his verdict was upheld by the Appeals Chamber.323 On 7 March 2014, Katanga was finally convicted as an accessory, within the meaning of Article 25(3)(d) of the Rome Statute, but was acquitted of all the allegations of SGBC.324 Although the Chamber found that rapes had been committed by Ngiti combatants,325 it could not conclude, on the basis of the evidence, that such crimes were also part of the common purpose326 and thus established the accused’s responsibility for these crimes. In the first case where SGBC charges reached the trial stage, the judges seemed reluctant to hold someone who did not physically commit SGBC responsible and required that sexual violence be an explicit part of the common plan. Chappell denounced the ‘higher degree of scrutiny’ for such charges. Askin also condemned such ‘appalling double standard’ which ‘perpetuates the view that rape is a byproduct of war, instead of an instrument of warfare’.327 Again, such a requirement that the Prosecution meet higher evidentiary standards was already an obstacle widely discussed and criticised at the ICTY and ICTR. An analysis of their practice shows that the ad hoc tribunals tended to prefer direct evidence that a superior either ordered SGBV or was present during the crime.328 In the absence of explicit orders or the accused physical presence, judges were often reluctant to link the perpetrator with the crime.329 For example, in the Kajelijeli case at the ICTR, recognising that rapes were committed by members of the Interahamwe 320 ICC, The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, Decision on Prosecution’s Urgent Application for the Admission of the Evidence of Witnesses 132 and 287, 28 May 2008, ICC-01/04-01/07-523. 321 ICC, The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, Decision on the confirmation of charges, 30 September 2008, ICC-01/04-01/07-717, paras 211–212. 322 ICC, The Prosecutor v Mathieu Ngudjolo Chui, Judgment pursuant to Article 74 of the Statute— Concurring Opinion of Judge Christine Van den Wyngaert, 20 December 2012, ICC-01/04-02/12-4. 323 ICC, The Prosecutor v Mathieu Ngudjolo Chui, Judgment on the Prosecutor’s appeal against the decision of Trial Chamber II entitled “Judgment pursuant to Article 74 of the Statute”, 7 April 2015, ICC-01/04-02/12-271-Corr. 324 ICC, The Prosecutor v Germain Katanga, Judgment pursuant to Article 74 of the Statute, 7 March 2014, ICC-01/04-01/07-3436-tENG. 325 Ibid., paras 999, 1023. 326 Ibid., para 1664. 327 Askin 2014. See also Grey 2019b, p. 272. 328 SáCouto and Cleary 2009, p. 359. 329 The ad hocs have for example accepted that an order, even if implicit, may be inferred from the circumstances, for other crimes such as targeting civilians. SáCouto and Cleary 2009, p. 359, citing ICTY, The Prosecutor v Gali´c, Judgment, 5 December 2003, IT-98-29-T, para 741.

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in the Ruhengeri Prefecture between 7 and 10 April 1994, the judges refused to find the accused guilty of ordering the rape of victims on the ground that he was not physically present during any of the acts,330 and so despite its own finding that he held and maintained effective control over Interahamwe.331 While most judges seem to accept that leaders and others can be convicted of crimes such as killings, torture, and pillage even when they are far from the crime scenes, there is great reluctance to holding individuals accountable for sexual crimes unless they are the physical perpetrators, they were present when crimes were committed, or they can be linked to evidence encouraging the crimes.332 Despite such analysis and findings, the ICC opted to continue such conservative approach, rather than breaking old habits and building a progressive body of jurisprudence. The chamber’s conservatism is however not all to blame. In its judgement, the Chamber highlighted several flaws in the investigation that potentially prevented the Chamber from making a fully informed decision.333 It highlighted for example the late start of the investigation, three years after the facts, the absence of forensic findings regarding the identification of victims, their failure to visit places where the accused lived and where preparations for the attack on Bogoro were made before the opening of trial, or the absence of testimonies of some of the commanders who played a key role before the attack, during combat and thereafter. In short, a more thorough investigation could have led to a completely different outcome.334 As a result, this decision, coupled with Bemba’s acquittal, confirms the need to strengthen the articulation between modes of liability and SGBV charges on the part of the Prosecution. In most cases that reached the trial stage, with the exception of Ntaganda, the accused have been acquitted of such charges, if not of all charges.335

9.6 Conclusion Bassiouni rightly held that: ‘if we cannot learn from the lessons of the past and stop the practice of impunity, we are condemned to repeat the same mistakes and to suffer their consequences.’336 This statement sadly resonates with the ICC’s practice and approach in terms of SGBV. Our analysis showed that the twenty-year old court is far from fulfilling its objective of stopping the practice of impunity in relation to SGBC. With the most advanced legal and procedural framework, the ICC still suffers from 330

ICTY, The Prosecutor v Kajelijeli, Judgment and Sentence, 1 December 2003, ICTR-98-44A-T, para 683. 331 Ibid., para 780. 332 Askin 2014. 333 ICC, The Prosecutor v Germain Katanga, Judgment pursuant to Article 74 of the Statute, 7 March 2014, ICC-01/04-01/07-3436-tENG, paras 59–74. 334 See Mannix 2014, p. 22. 335 Ibid., p. 23. 336 Bassiouni 2013, p. 981, paraphrasing Santayana.

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individual resistance to change, from the Office of the Prosecutor to the Chambers. The court is still repeating the errors of the past and struggling to show positive and consistent outcomes for the fight against impunity for SGBV. To date, unfortunately, SGBC remain the most vulnerable types of crimes.337 Whereas the shortcomings highlighted in this chapter had already been encountered, successfully addressed, or had been at least identified by the ad hoc tribunals, they have been unnecessarily repeated at the ICC.338 And so, the challenges and barriers that existed before the establishment of the court continue to impair gender justice. The many mistakes committed by the first two Prosecutors at every stage, especially the lack of a focused approach from the outset, trickled down to finally lead to the collapse of too many SGBC charges, and even cases, either at the confirmation or the trial stages. More recently, for example, the Prosecutor was reminded that once the Document Containing the Charges has been submitted for confirmation, the Prosecutor has very limited chances to amend it and no chance of adding any new charges. The successive reforms undertaken at the Office of the Prosecutor since 2012 have brought noticeable changes and will likely continue to do so if maintained. However, there is still a lot to do, as demonstrated by the inconsistent practice between cases, and their varying outcomes. Recovering from a lacklustre start, the court must now, more than ever, focus on providing gender justice for victims and double its efforts. Equipped with a wide range of tools and unprecedented expertise, the incoming new Prosecutor can hardly do worse and must build on the efforts undertaken to erect a legacy of meaningful changes for survivors of SGBV, especially in the situations in Ukraine and Nigeria, for which Fatou Bensouda announced their decision to proceed with an investigation in December 2020. In both situations, allegations of sexual violence were made,339 more significantly the Prosecution encountered evidence of a wide range of SGBV, such as forced marriage, forced pregnancy, sexual slavery, and persecution on gender grounds in Nigeria.340 Results of the shift in the Office of the Prosecutor have yet to be seen in its latest case as well, The Prosecutor v Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”), whose accused was transferred to the ICC on 9 June 2020. Charged with five counts of sexual violence (rape, outrage upon dignity, attacking civilian population, and persecution),341 Ali Kushayb’s confirmation of charges hearing took place from 24 to 26 May 2021. 337

Carson 2012. Hayes 2013, pp. 23, 46. 339 ICC, Office of the Prosecutor, Report on Preliminary Examination Activities (2020), 14 December 2020, para 280 (in relation to Ukraine). 340 ICC, Office of the Prosecutor, Report on Preliminary Examination Activities (2020), 14 December 2020, paras 254–257 (in relation to Nigeria). 341 ICC, The Prosecutor v Ahmad Muhammad Harun (“Ahmad Harun”) and Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”), Warrant of Arrest for Ali Kushayb, 27 April 2007, ICC-02/05-01/07-3-Corr; ICC, The Prosecutor v Ahmad Muhammad Harun ("Ahmad Harun") and Ali Muhammad Ali Abd-Al-Rahman ("Ali Kushayb"), Public redacted version of ‘Second warrant of arrest for Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”)’, 16 January 2018, ICC-02/05-01/07-74- Secret-Exp, 11 June 2020, ICC-02/05-01/07-74-Red. 338

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Van Shack justly highlighted that ‘strong positive law is irrelevant where a commitment to gender justice does not infuse all stages of the development and implementation of a prosecutorial strategy.’342 Proper selection regarding the scope and focus of investigations or prosecutions is therefore essential,343 as well as the integration of SGBV to the investigation strategy from the outset. Effective cooperation with civil society actors, bridge between the court and the local communities and the survivors, shall be also explored and strengthened.344 Initiatives shall not be left to the “good will” of individual investigators or prosecutors, and instead shall be part of a mandatory and comprehensive strategy requiring, for example, the presence of SGBV experts at every stage of the procedure, until positive and consistent outcomes are shown, and sustainable expertise has been developed internally. Similarly, an analysis of the ICC jurisprudence also demonstrates a limited understanding of SGBV issues from the bench. Efforts shall therefore be conducted at every level, by every actor. Continuous advocacy, capacity building, training, and gender mainstreaming within the court will hopefully continue bearing fruit.

References Askin KD (2003) Prosecuting Wartime Rape and other Gender-Related Crimes under International Law: Extraordinary Advances, Enduring Obstacles. Berkeley Journal of International Law 21(2):288. Askin KD (2014) Katanga Judgment Underlines Need for Stronger ICC Focus on Sexual Violence. International Justice Monitor. www.ijmonitor.org/2014/03/katanga-judgment-underlines-needfor-stronger-icc-focus-on-sexual-violence/. Accessed 12 January 2021 Bassiouni MC (2013) International Criminal Justice in the Age of Globalization. In: Bassiouni (ed) Introduction to international criminal law, 2nd edn. Koninklijke Brill, Leiden Carson KE (2012) Reconsidering the Theoretical Accuracy and Prosecutorial Effectiveness of International Tribunals’ Ad Hoc Approaches to Conceptualizing Crimes of Sexual Violence as War Crimes, Crimes Against Humanity, and Acts of Genocide. Fordham Urban Law Journal 39. www.thefreelibrary.com/Reconsidering+the+theoretical+accuracy+and+prosecutorial...-a03 01181029. Accessed 12 January 2021 Chappell L (2014a) “New”, “Old”, and “Nested” Institutions and Gender Justice Outcomes: A View from the International Criminal Court. Politics & Gender 10(4):572. Chappell L (2014b) Conflicting Institutions and the Search for Gender Justice at the International Criminal Court. Political Research Quarterly 67(1):183. Chappell L (2016) The Politics of Gender Justice at the International Criminal Court, Oxford Studies in Gender and International Relations. EJIL: Talk!. www.ejiltalk.org/the-politics-of-gender-jus tice-at-the-icc-legacies-and-legitimacy/. Accessed 12 January 2021 Chappell L, Durbach A (2014) The International Criminal Court. International Feminist Journal of Politics 16(4):533. Chertoff E (2017) Prosecuting Gender-Based Persecution: The Islamic State at the ICC. The Yale Law Journal 126(4):1050.

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Copelon R (2000) Gender Crimes as War Crimes: Integrating Crimes against Women into International Criminal Law. McGill Law Journal 46:217. Dallman A (2009) Prosecuting conflict-related sexual violence at the ICC. Stockholm International Peace Research Institute Insights on Peace and Security 009/1. https://www.sipri.org/publicati ons/2009/sipri-insights-peace-and-security/prosecuting-conflict-related-sexual-violence-intern ational-criminal-court. Accessed 12 January 2021 De Vos D (2016a) A day to remember: Ongwen’s Trial Starts on 6 December. IntLaw-Grrls. https:// ilg2.org/2016a/12/05/a-day-to-remember-ongwens-trial-starts-on-6-december/. Accessed 12 January 2021 De Vos D (2016b) ICC Issues Landmark Judgment: Bemba Convicted as Commander-in-Chief for Sexual Violence Crimes (Part 1/2). IntLawGrrls. https://ilg2.org/2016b/03/21/icc-issueslandmark-judgment-bemba-convicted-as-commander-in-chief-for-sexual-violence-crimes-par t-12/. Accessed 12 January 2021 FIDH (2015) The hearing of Al Mahdi before the ICC is a victory, but charges must be expanded. Press Release. www.fidh.org/en/issues/international-justice/international-criminalcourt-icc/mali-the-hearing-of-abou-tourab-before-the-icc-is-a-victory-but. Accessed 12 January 2021 FIDH (2019) The Impact of Litigation on Combating Sexual Violence and its Consequences in Africa Sharing experience and practical advice. www.fidh.org/IMG/pdf/fidh-lhr_compendium_i mpact_of_litigation_on_combating_sgbv_in_africa_nov2019.pdf. Accessed 12 January 2021 Ginn C (2013) Ensuring the Effective Prosecution of Sexually Violent Crimes in the Bosnian War Crimes Chamber: Applying Lessons from the ICTY. Emory International Law Review 7(1):565. Glassborow K (2008) ICC Investigative Strategy Under Fire’ Institute for War and Peace Reporting Grey R (2019a) Gender-based Crimes: A Monumental Day for the ICC. IntLawGrrls. https:// ilg2.org/2019a/07/08/gender-based-crimes-a-monumental-day-for-the-icc/. Accessed 12 January 2021 Grey R (2019b) Prosecuting Sexual and Gender-Based Crimes at the International Criminal Court: Practice, Progress and Potential. Cambridge University Press, Cambridge Grey et al (2020) The ICC’s Troubled Track Record on Sexual and Gender-Based Crimes Continues: The Yekatom & Ngaïssona Case (Part 1). OpinioJuris. https://opiniojuris.org/2020/07/03/theiccs-troubled-track-record-on-sexual-and-gender-based-crimes-continues-the-yekatom-ngaiss ona-case-part-1/. Accessed 12 January 2021 Harwood C (2014) Guest Post: A Matter of Distinction Part II: participation of children in hostilities following the Lubanga Appeal Judgment. Spreading the Jam. https://dovjacobs.com/2014/12/ 19/guest-post-a-matter-of-distinction-part-ii-participation-of-children-in-hostilities-followingthe-lubanga-appeal-judgment/. Accessed 8 July 2021 Hayes N (2013) Sisyphus Wept: Prosecuting Sexual Violence at the International Criminal Court. In: Schabas et al (eds) The Ashgate Research Companion to International Criminal Law: Critical Perspectives. Routledge Handbooks Online. https://www.routledgehandbooks.com/doi/10.4324/ 9781315613062.ch3. Accessed 12 January 2021 Heller KJ (2017) ICC Appeals Chamber Says A War Crime Does Not Have to Violate IHL. Opinio Juris. http://opiniojuris.org/2017/06/15/icc-appeals-chamber-holds-a-war-crime-does-not-haveto-violate-ihl/#:~:text=No%20more.,as%20the%20AC%20openly%20acknowledges. Accessed 12 January 2021 International Nuremberg Principles Academy (2017) Cooperation between Civil Society Actors and Judicial Mechanism in the Prosecution of Conflict-Related Sexual Violence: Guiding Principles and Recommendations Jarvis M, Vigneswaran K (2016) Challenges to Successful Outcomes in Sexual Violence Case. In: Brammertz S, Jarvis M (eds) Prosecuting Conflict-Related Sexual Violence at the ICTY. Oxford University Press, Oxford Jarvis M (2016) Prosecuting Conflict-Related Sexual Violence Crimes: How Far Have We Progressed and Where Do We Go from Here? Some Thoughts Based on ICTY Experience.

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In: Stephens D, Babie P (eds) Imagining Law: Essays in Conversation with Judith Gardam. University of Adelaide Press, Adelaide Jurasz O (2014) Gender-based Crimes at the ICC: Where is the future? 108th Annual Meeting of the American Society of International Law, Washington DC. http://oro.open.ac.uk/46123/. Accessed 12 January 2021 Kersten M (2020) Writing the Jurisprudence of Gender-Based Persecution: Al Hassan on Trial at the ICC. Justice in Conflict. https://justiceinconflict.org/2020/07/15/writing-the-jurisprudenceof-gender-based-persecution-al-hassan-on-trial-at-the-icc/. Accessed 12 January 2021 Lupig D (2009) Investigation and Prosecution of Sexual and Gender-Based Crimes Before the International Criminal Court. Journal of Gender, Social Policy & the Law 17(1). https://dig italcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1030&context=jgspl. Accessed 12 January 2021 MacKinnon C (2008) The ICTR’s Legacy on Sexual Violence. New England Journal of International and Comparative Law 14(2):101. Mannix B (2014) A Quest for Justice: Investigating Sexual and Gender-based Violence at the International Criminal Court. James Cook University Law Review 21:7. McDermott Y (2016) The Bemba Trial Judgement—A Memorable Day for the Prosecution of Sexual Violence by the ICC. PhD Studies in Human Rights. http://humanrightsdoctorate.blo gspot.com/2016/03/hayes-bemba-trial-judgement-memorable.html. Accessed 12 January 2021 McDermott Y (2017) ICC Extends War Crimes of Rape and Sexual Slavery to Victims from Same Armed Forces as Perpetrator. IntLawGrrls. https://ilg2.org/2017/01/05/icc-extends-war-cri mes-of-rape-and-sexual-slavery-to-victims-from-same-armed-forces-as-perpetrator/. Accessed 12 January 2021 Meron T (1993) Rape as a Crime under International Humanitarian Law. American Journal of International Law 87(3):424. Minkova LG (2021) Guilty on 61 Counts—What the Ongwen Verdict Indicates about the Limitations of Individual Criminal Responsibility for Mass Atrocities. Opinio Juris, http://opiniojuris. org/2021/02/09/guilty-on-61-counts-what-the-ongwen-verdict-indicates-about-the-limitationsof-individual-criminal-responsibility-for-mass-atrocities/. Accessed 12 January 2021 Mwangi NW (2017) Continuity and Change: Prosecution of Sexual Violence in the International Criminal Court. Master Thesis of Arts in Development Studies, International Institute of Social Studies O’Connell S (2010) Gender Based Crimes at the International Criminal Court. The Plymouth Law & Criminal Justice Review 3(1):69. Oosterveld V (2005) Gender-Sensitive Justice and the International Criminal Tribunal for Rwanda: Lessons Learned for the International Criminal Court. New England Journal of International and Comparative Law 12(1):119. Oosterveld V (2016) Gender Justice Legacies at the ICC. Book Discussion. EJIL: Talk!. www.eji ltalk.org/gender-justice-legacies-at-the-icc-book-discussion/. Accessed 12 January 2021 Orentlicher D (2020) The Tokyo Tribunal’s Legal Origins and Contributions to International Jurisprudence as Illustrated by Its Treatment of Sexual Violence. In: Dittrich VE et al (eds) The Tokyo Tribunal: Perspectives on Law, History and Memory. Nuremberg Academy Series, Nuremberg, Nuremberg, 3:97 Phelps AR (2006) Gender-Based War Crimes: Incidence and Effectiveness of International Criminal Prosecution. William & Mary Journal of Race, Gender, and Social Justice 12(2):499. SáCouto S, Cleary K (2009) Importance of Effective Investigation of Sexual Violence and GenderBased Crimes at the International Criminal Court. Journal of Gender, Social Policy & the Law 17(2):337. SáCouto S, Viseur Sellers P (2019) The Bemba Appeals Chamber Judgment: Impunity for Sexual and Gender-Based Crimes? William & Mary Bill of Rights Journal 27 Schabas WA (2008) Prosecutorial Discretion v. Judicial Activism at the International Criminal Court. Journal of International Criminal Justice 6(4):744

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Seelinger KT et al (2011) The Investigation and Prosecution of Sexual Violence: A Working Paper of the Sexual Violence & Accountability Project. University of California Berkeley Human Rights Center Working Paper Series, 2. www.law.berkeley.edu/wp-content/uploads/2015/04/The-Invest igation-and-Prosecution-of-Sexual-Violence-SV-Working-Paper.pdf Accessed 12 January 2021 Svaˇcek O (2017) Brothers and Sisters in Arms as Victims of War Crimes: Ntaganda Case before the ICC. Czech Yearbook of Public & Private International Law 8. https://papers.ssrn.com/sol3/ papers.cfm?abstract_id=3106339. Accessed 12 January 2021 Uhlíˇrová K (2019) Contribution of the International Criminal Court to the Prosecution of Sexual and Gender-Based Crimes: between Promise and Practice. In: Šturma (ed) The Rome Statute of the ICC at Its Twentieth Anniversary. Koninklijke Brill, Leiden, p 83 Urban N (2012) Direct and Active Participation in Hostilities: The Unintended Consequences of the ICC’s decision in Lubanga. EJIL: Talk!. www.ejiltalk.org/direct-and-active-participation-inhostilities-the-unintended-consequences-of-the-iccs-decision-in-lubanga/. Accessed 12 January 2021 Van Schaack B (2009) Obstacles on the Road to Gender Justice: The International Criminal Tribunal for Rwanda as Object Lesson. Journal of Gender, Social Policy & the Law 17(2):355. Viseur Sellers P (2008) The Prosecution of Sexual Violence in conflict: The Importance of Human Rights as Means of Interpretation. OHCHR Paper. www.ohchr.org/Documents/Issues/Women/ WRGS/Paper_Prosecution_of_Sexual_Violence.pdf. Accessed 12 January 2021 Yates P (2009) The Reckoning [film]. Skylight Pictures, Brooklyn NY, USA Yuvaraj J (2016) When Does a Child ‘Participate Actively in Hostilities’ under the Rome Statute? Protecting Children from Use in Hostilities after Lubanga. Utrecht Journal of International and European Law. https://utrechtjournal.org/articles/10.5334/ujiel.321//. Accessed 12 January 2021

Natacha Bracq works as the Senior Officer for Training and Capacity Building at the International Nuremberg Principles Academy (Nuremberg Academy). She is also the founder and editor-in-chief of the first blog entirely dedicated to international criminal law in the French language: Blog—Droit international pénal. The Nuremberg Academy released the Sexual Crimes in Conflict Database (www.nurembergacademy.org/resources/sexual-crimes-in-conflict-database/) and published a report entitled Cooperation between Civil Society Actors and Judicial Mechanism in the Prosecution of Conflict-Related Sexual Violence: Guiding Principles and Recommendations (www.nurembergacademy.org/projects/detail/5f381e4f7b21b17c2e9db09e45db2847/ cooperation-in-the-prosecution-of-conflict-related-sexual-violence-16/). In the last four years, the Nuremberg Academy also organised trainings and workshops on sexual and gender-based violence in Côte d’Ivoire, Nigeria, Nuremberg, Rwanda, and Uganda. Views expressed in this chapter do not necessarily represent the views of the International Nuremberg Principles Academy.

Chapter 10

The Marginalization of Slavery in International Criminal Justice: Untapping Its Potential in the Fight Against Modern Slavery Vanessa Hernández Soto

Humanity is something that we still need to humanize –Mistral 2021.

Contents 10.1 The Role of International Law in the Transatlantic Slave Trade and Modern Slavery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2 The Marginalization of Modern Slavery in International Criminal Justice . . . . . . . . . . . . 10.3 Untapping the Potential of International Criminal Justice in the Fight against Modern Slavery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3.1 Targeted International Prosecutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3.2 The Role of National Prosecutions and the Use of Universal Jurisdiction in the Fight against Modern Slavery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3.3 A Global Mechanism to Tackle Modern Slavery . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3.4 Beyond Criminal Accountability: Reparations for Victims of Contemporary Forms of Slavery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3.5 Follow the Money: Disrupting Financial Flows Associated with Contemporary Forms of Slavery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter explores the role international criminal justice can and should play in the fight against modern slavery. It argues that slavery is not an alien concept in international criminal justice, on the contrary, slave-trading counts among the first international crimes and lies at the origins of the emergence of international criminal law. Section 10.1 briefly outlines its historical, social, and broader legal context, setting into perspective the dual role that international law has played in the history of slavery as a facilitator and only for the last two hundred years as a remedy V. Hernández Soto (B) International Criminal Court, The Hague, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 T. B. K. Sendze et al. (eds.), Contemporary International Criminal Law Issues, https://doi.org/10.1007/978-94-6265-555-3_10

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against it. Despite achieving peremptory status and the complex legal and policy framework to prevent, criminalize and punish slavery crimes, these practices persist and even thrive in many countries. Section 10.2 aims to discuss why the international crimes of slavery remain underutilized and whether international criminal law is fit for purpose to respond effectively to the contemporary forms of slavery which are widespread today. Section 10.3 sets out a few strategies through which international criminal justice actors along with other interlocutors can significantly contribute to broader efforts in the global fight against contemporary forms of slavery. Finally, in Sect. 10.4, this chapter argues that while slavery remains one of the least prosecuted international crimes, international justice actors can and should play a greater role as part of a larger effort to fight modern slavery. Keywords International Criminal Justice · international law · modern slavery · slave trade · Third World Approaches to International Law (TWAIL) · colonialism

10.1 The Role of International Law in the Transatlantic Slave Trade and Modern Slavery Various forms of slavery existed throughout the world before the development of the transatlantic slave trade in the sixteenth century, with only the last two hundred years being the anomaly of anti-slavery. For thousands of years, slavery has constituted the rule, not the exception in human history, and not only persisted but was fundamental to the economic and social structures of many societies.1 Law, legal scholars, and practitioners have been central to it. From Roman law through to the early Nineteenth Century, slavery was justified as jus gentium. As Mohsen al Attar has emphasized: “to study international law is to study violence and its legalization. That violence is widely excluded from legal textbooks is down to Eurocentrism and continued European denial of the barbarism of European behaviour, both historically and contemporaneously.”2 International law developed from the encounter between Europeans and the so-called Third World, the non-European societies and territories which were colonized from the sixteenth century onwards by European Empires.3 International jurists and scholars provided the legal foundations and thus legitimacy to the transatlantic slave trade, the driving force that shaped the world’s greatest empires.4 The slave trade was fundamental to the evolution of international law. Crucially, today’s international law and the current international architecture are built on the basis of the power relations and social structures of the past. Colonial injustice rather than a distant wrong is an everyday reality that reproduces itself.5 Consequently, if we ought to attempt to use international 1

Westbrook and Cohen 2002. Al Attar 2021. 3 Anghie 2005. 4 Allain 2021. 5 Stahn 2020. 2

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law and international criminal justice to successfully combat contemporary forms of slavery, we must be keenly aware of the fact that the colonial origins of international law have an impact on the present. Early modern empires were built upon the outstanding revenues of large-scale slave trade, which was fundamental to their economies,6 creating a network of global relations that would transform their cultural and economic structures. The system of slavery created the greatest accumulation of wealth ever seen at that time. In the 15th century, a major historical change took place, with the fall of Constantinople and the closing of the old trade routes, the geographical origin of slaves radically changed. Slaves will no longer come from the Balkans but from Africa. In this context, colonial powers sought to racialize their subjects in order to dispossess, enslave and colonize them.7 The transatlantic slave trade differed from the old-world practices as it was a racialized institution that created the racial categories where slaves were black and the “masters”, the slave owners, white.8 Law and legal scholars were instrumental in channelling these global relationships of domination, giving them a legal and moral articulation, and deploying them in the service of the emerging commercial empires. European colonial powers used international law to authorize and justify the ownership of human beings.9 Spanish imperial scholastics, generally regarded as the precursors of Hugo Grotius and the originators of international law, developed a legal and political vocabulary of private rights (dominium) accompanied by the notions of ius gentium and bellum iustum with which they legitimized and naturalized the control over indigenous peoples in order to extract resources and create wealth for the Spanish crown.10 Similarly, Hugo Grotius often considered the ‘father of international law’ and who was also a corporate counsel to the Dutch East India Company, not only did support slave trade but sought to cast its net wide in that “not only do the prisoners of war themselves become slaves, but also their descendants forever.”11 In a similar fashion, in 1452, Pope Nicholas V issued the papal bull Dum Diversas, granting the King Afonso V of Portugal the right to reduce any ‘Saracens, pagans and any other unbelievers’ to hereditary slavery, which served to legitimize and give a legal framework to the slave trade under Catholic beliefs of that time. This endorsement of slavery was reaffirmed and extended in his Romanus Pontifex bull of 1455, which gave exclusive rights to the King in the African exploration and trade. The papal bulls came to serve as a justification for the subsequent era of slave trade and European colonization of Africa12 that had vast consequences for the people that 6

According to the classic estimate by Eltisthe, the Dutch Republic would have been the fifth largest trader in slaves after Portugal (5.8 million), Great Britain (3.3 million), France (1.4 million) and Spain (1.1 million). Fatah-Black and van Rossum 2014, p. 5. 7 Obregón 2018. 8 Cottias 2019. 9 Martínez 2012. 10 Koskenniemi 2011a. 11 Allain 2021. See also Cairns 2001. 12 Ajala 2013.

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came into contact with the colonizers. The pivotal early role of the Iberian kingdoms in the transatlantic slave trade is illustrated by the pioneering role that São Tomé had in the emergence of the first plantation economy based on sugar monoculture and slave labour. The 15th-century Portuguese predatory exploitation in São Tomé is commonly regarded as the model of European colonialism, which was later exported to Brazil and the Caribbean, imitated by the other colonial powers.13 These journeys marked the beginning of what was probably one of the darkest chapters in human history not only because of its brutality but also in terms of their magnitude, organized nature, and the dehumanization of the victims. The transatlantic slave trade constituted an international crime against humanity. Despite brave resistance by the millions of enslaved peoples, it lasted over 400 years. While no one will ever know the exact number of victims, historians and other experts nevertheless continue to attempt to assess the magnitude of the demographic, economic, political, and social consequences of the transatlantic slave trade. It is estimated that between 15 and 20 million people, men, women, and children, were deported from their homes and sold as slaves in the different slave trading systems.14 Between famine, massacres, epidemics, and those who died during transport,15 it caused the death of at least 50 million Africans, direct and indirect victims of this massive globalization of violence in the name of profit. Similarly, in the Americas, 150 years after Columbus, an estimated 50 million inhabitants of South and Central America had been reduced to just 3 million.16 Despite its massive scale and lasting consequences on contemporary forms of slavery, racism, and discrimination, the international legal system has often failed to adequately engage with its past. This has in turn contributed to the further marginalization of the crime of slavery in international criminal justice. As the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia, and related intolerance, Tendayi Achiume, recently emphasized, international law has “played a central role in consolidating and furthering global structures of racial domination and discrimination.”17 The expert noted that “international legal doctrine has a longer history of justifying and enabling than it does of guaranteeing equal rights to all human beings.” More importantly, the expert called for recognition and condemnation of the instances in which contemporary law perpetuates neo-colonial dynamics, including the failure to eradicate the legacies of slavery and colonialism. Among these enduring legacies, the deafening silence of international criminal justice in the fight against contemporary forms of slavery should be addressed.

13

Caldeira 2011. United Nations Office on Drugs and Crime 2012. 15 Miller 1981. 16 Scheidler 2020. Other data-driven estimate a death toll of 56 million by the beginning of the 1600s—90% of the pre-Columbian Indigenous population and around 10% of the global population at the time causing a drop in atmospheric CO2 that cooled the planet. See further: Koch et al. 2019. 17 Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and racial intolerance 2019, UN Doc. A/74/321, para 18. 14

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However, even with the rise of contemporary debates and broader public consciousness about colonialism and slavery legacies, European colonial narratives and concepts such as “civilized and uncivilized nations” and “colonial notions of development” continue to dominate in international law and international relations, underpinning enduring norms, institutions, discourses, and societal hierarchies.18 As Ntina Tzouvala argues, notions such as “standard of civilization” are Eurocentric notably because of their world-making aspirations and effects. By describing the (legal) world as divided between civilized, semi-civilized, and uncivilized states the “standard of civilization” assisted in the construction of a new, global hegemony: that of European capital.19 Despite the important progress in Third World Approaches to International Law (TWAIL) recently made by critical and postcolonial scholars in discussing slavery and colonial legacies and its impact in our present and interrogating Eurocentrism in international law, the views at the mainstream of the discipline remain geographically Western-centric and epistemologically Euro-centric. This has had a significant impact on the strategies and approaches employed in the combat against modern slavery. This comes as no surprise as “European stories, myths and metaphors continue to set the conditions for understanding international law’s past as it does for outlining its futures.”20 Crucially, as Ntina Tzouvala rightly notes, at the heart of post-colonial critiques of international law Eurocentrism lies international law’s complicity with Indigenous dispossession, statism, capitalist expansion, and racist domination.21 It is consequently argued that by failing to adequately grapple with these legacies, international lawyers continue to further contribute to the maintenance of structural injustices in a profoundly unequal world. To better understand the links between historic and contemporary forms of slavery as well as to successfully combat modern slavery, international lawyers and practitioners can and should engage with approaches beyond the narrow limits of Western-centric international law. In this connection, it is worth noting that colonial narratives are often prevalent in contemporary discourses and historiography of the former colonial powers and colonized nations. Although 150 years after Columbus, an estimated 50 million inhabitants of South and Central America have been reduced to just 3 million, as Fabian Scheidler points out, “since the beginning of the Conquista, historians have repeatedly tried to deny or trivialize this genocide.”22 Although slavery accounts and experiences are often written out from history textbooks, a quick search of historical archives shows the systematic nature of the enslavement of indigenous people and Africans in the Americas. This exclusion can be partly explained due to the fear of the ruling classes: inclusion of slavery accounts and experiences in history books would imply recognition of the historical injustices and consequently undermine their privileges which are premised on the exploitation of colonized peoples, territories 18

Scheidler 2020, pp. 189, 207, 249. See also Tzouvala 2020. Tzouvala 2021. 20 Koskenniemi 2011b. 21 Ibid., p. 417. 22 Scheidler 2020. 19

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and resources. These privileges persist to the present day through multifaceted forms of discrimination and the dispossession of indigenous peoples of their territories.23 As the historian Fernando Rosas has noted “you still hear the idea that Portuguese colonialism was different, benevolent, gentle. The idea is still common, but it’s far from the reality.” Similarly, many of us who grew up in countries that have endured colonialism were taught since primary school that the “Black Legend” was merely anti-Spanish and anti-Catholic propaganda. Colonial historiography had long depicted violent excesses perpetrated by Spanish conquerors and encomenderos during the Spanish conquest in the Americas as aberrations committed by individual rogue commanders rather than a feature of the Spanish imperial rule.24 The narrative that despite any excesses, the Spanish conquest brought after all “Christianity and civility” to indigenous peoples was for a long time predominant and often within the backbone of colonized nations’ educational systems.25 Today, new analysis and historical evidence offer a more comprehensive and critical view of the colonization of Hispanic America.26 In this regard, Fabian Scheidler notes that the motive behind attempts to downplay the facts is obvious: “to admit to genocide would destroy the European myth of moral superiority that has been used to justify Western expansion for the last 500 years.”27 Scholars such as Kehinde Andrews further interrogate the self-congratulatory myths that the West was founded on the three great revolutions of science, industry, and politics. Instead, he argues that genocide, slavery, and colonialism are the key foundation stones upon which the West was built, and we are still living under this system today.28 Colonial narratives are very much alive and well, not only in most of the former colonial powers but also in the formerly colonized countries. States that have been colonized in the past, predominantly through their dominant classes, continue to reproduce in the present the relations of domination with the ethnic minorities that were originally subdued in colonialism and continue to shape racial and gender hierarchies.29 Arguably, consciousness of the continuing effects of colonial injustice and slavery legacies in the present is necessary to create structural changes that prevent the reproduction of inequalities or harms that perpetuate conditions leading to the exploitation of millions of people, subjected to modern forms of slavery. Colonial and slavery legacies have had consequences well into the current century as illustrated by Obregón in the case of Haiti’s onerous indemnity debt to France as compensation for the property loss of French slaveholders and landowners as a result 23

Domínguez and Luoma 2020. Yeager 1995. 25 Restall 2020. 26 Known in Spanish as “La Leyenda Negra”. See Livi-Bacci 2006. 27 Scheidler 2020, p. 114. 28 Kehinde 2021. 29 Pablo González Casanova coined the concept of “internal colonialism”. Scholars such as the Bolivian Aymaran sociologist Silvia Rivera Cusicanqui have further developed this concept in contemporary Latin American thought, adding a cultural and social dimension. See Casanova 1963. See also Rivera Cusicanqui 2017. 24

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of the slaves’ freedom.30 The legacies of colonialism, slavery, and racism linger in our societal structures and institutions. Many effects of colonial injustice and the transatlantic slave trade are still ongoing and experienced by individuals, peoples, and communities. Scholars are only beginning to grapple with the vast demographic, economic, political, and social consequences of the transatlantic slave trade and its legacies in an array of areas, such as the impact of decolonization and late colonial money panics on the expansion of tax havens in the 1950s and 1960s, which arguably allowed the continuity of a colonial-style extraction from the Global South, among other areas.31 While slavery may have arguably played an important role in catalysing the emergence of the modern international humanitarian law wherein lies the origins of international criminal law as we know it today, anti-slavery efforts and its abolition were far from being a neat and straightforward process. On the contrary, as the institution of slavery was so deeply entrenched in all societies and a key feature of the colonial powers’ economic success, the abolition of slavery was unsurprisingly a protracted process that elicited resistance and took centuries to accomplish.32 In this regard, it has been noted that one of the reasons why slave-owners and slave-traders were able to stave off the growing attacks of abolitionists in the eighteenth and early nineteenth centuries was that practically every set of legal or religious traditions in the world gave it some degree of legitimacy.33 In many instances, such as in the uprising of Saint Domingue—Haiti, the first Black republic and the first nation to permanently ban slavery— it was largely due to slave revolts, colonial insurrections, and developments in the colonies, far more than pressure groups or the Enlightenment ideology in western metropoles, that politicians in the metropoles were forced to live up to their ideals when confronting the “colonial question”. As Anthony Anghie has noted, the abolition of slavery is often presented as an outcome of the valiant battles waged by enlightened and humane Europeans and Americans—usually white men—to liberate the slaves, and legal histories inevitably reproduce this approach as they deal with law-making and reform, spheres of activity that slaves were deliberately and forcefully excluded from.34 Contrary to colonial self-congratulatory narratives that have often downplayed and distorted the relevance of economic factors as well as the agency and the influence of enslaved and colonized peoples themselves on the abolition of slavery,35 it was the rebels who compelled France to abolish slavery throughout its colonies rather than the other way around.36 The ‘Haitian’ defeat of French, British and Spanish armies, and their achievement of national independence in 1804, was a stark reminder that the living conditions of the slave societies in the ‘New World’ represented a complete and hypocritical negation 30

Obregón 2018. Ogle 2020. 32 Kelly 2009. 33 Anghie 2017. 34 Ibid., p. 13. 35 Michael 2020. 36 Trouillot 1995. 31

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of the ideals of the French Revolution of “liberté, égalité, fraternité” for those with dark skin.37 The Haitian Revolution set off the process of liberation in the Americas. Ensuing this outbreak, the largest revolts in slavery’s 350-year history in the ‘New World’ occurred during a half-century, marking the beginning of the destruction of the slavery system, the slave trade, and the colonial system. Although, it was not until 1888 that Brazil, which had the largest and most continuous system of slavery of all the slave societies in the Atlantic world, abolished slavery.38 It was revolutions across the Third World that forced the West to abandon the brutally violent forms of colonial domination.39 It was enslaved African people who rose against racism, slavery, and colonialism, signalling that the European institution of slavery was not sustainable and no longer profitable. Only thanks to the bravery of those enslaved, the slave trade prohibition became one of the first recognized international offenses that seized the global community. In this regard, it is argued that is problematic that current anti-slavery initiatives and legal practitioners rely on a sanitized, unproblematic narratives of the nineteenthcentury abolitionist movement,40 coupled with imagined linear progressivist narratives of mainstream Eurocentric international law. Dismissing the violence that international law made possible41 while simultaneously side-stepping discussions about the role that global capitalism has played on historical and modern-day slavery can only lead to piecemeal ineffective approaches that will ultimately fail to eradicate modern slavery, a tragic reality to more than 40 million human beings. It is further argued that TWAIL, critical and postcolonial approaches to international law can help us to correct this bias and identify gaps in our strategies to combat modern slavery more effectively. Further, this approach can allow us to question the status quo that uncritically and normatively internalizes Eurocentric subtle and deceptive hierarchies and tolerates extreme forms of inequality and exploitation and can further allow us to reset the terms of the debate itself. Against this background, it is important to note that it is often overlooked that it was precisely in the aftermath of the abolition of slavery that forced labour was systematically used in European colonies. Forced labour was legitimized by the colonial powers in the name of the abolition of slavery: The Berlin Act of 1885 included a provision suppressing slavery and the slave trade, and indeed, more broadly, imperial European powers justified their expansion and occupation of Africa on the grounds that they were furthering civilization and ending the slave trade.42 As the scramble for Africa gained momentum, by virtue of the same treaty, colonial rulers such as King Leopold II of Belgium put an anti-slavery guise on the colonial occupation 37

Greggus 1989. According to historian Emilia Viotti da Costa, 40% of the 10 million African slaves brought to the New World came to Brazil, that is 10 times more than all those sent to the United States. For estimates, see the Slave Voyages (undated) www.slavevoyages.org. Accessed 20 March 2021. 39 Kehinde 2021, p. 206. 40 Diptee 2018. 41 Al Attar 2021. 42 Anghie 2017. 38

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and exploration of Africa that killed thousands of African laborers.43 Colonial rule in the post-slavery period was simply another variant in a continuum of levels of exploitation.44 The ancient routes of slavery soon became those of forced labour to meet increasing demands for cacao, coffee, cotton, rubber, among other resources in western metropoles. To some extent, the abolition of slavery had the effect of accelerating the transition to other forms of exploitation of African and indigenous people’s resources. In less than two decades (1884–1898), the lion’s share of the vast African continent was partitioned among a handful of European powers.45 After all, colonial empires were first and foremost economic undertakings. The pursuit of profit was the economic basis of the slave trade and continues to be one of the main drivers of contemporary slavery.46 Although the end of transatlantic slavery is often viewed as a historical endpoint for the practice of slavery, an unfortunate episode that has long since been overcome and relegated slavery to a distant past, tragically, slavery still exists and thrives in modern days in various parts of the world. Where legally abolished, other forms of extreme exploitation such as forced, bonded, and indentured labour persist. Present approaches in the fight against modern slavery often obscure the historical and systemic roots of contemporary problems. Understanding these processes of denial can offer means to better understand and address contemporary and emerging forms of slavery. Notably, in this connection, some authors have argued that “by framing the memory of the transatlantic slave trade and colonial slavery as a ‘tragic, and never-to-be-repeated error in human history’ ignores the ‘normalcy and mundanity’ under which it took place and so makes no parallels to the normalcy of human trafficking and enslavement today.”47 Similarly, Ariela Gross and Chantal Thomas argue that this framing of two distinct eras of slavery, the “old” and the “new”’ and then drawing on the ‘history of abolitionism to connect the two,’ conceals the systemic and structural inequalities that facilitate human trafficking and modern-day slavery.48 Research has only begun to explore the connections between these legacies and contemporary slavery.49 Transatlantic slavery caused profound transformations, which account for a large number of geopolitical and socio-economic changes that have shaped today’s world. Unequal North-South relations are manifestly a legacy of colonialism, while imperialist social and economic relations continue today.50 As Aimé Césaire, the Martinican intellectual and poet, and other scholars have exposed, we are hardly in a “postcolonial” moment. The official apparatus might have been

43

Miers 1998. See also Hochschild 1999. Ralph 1997. 45 Frankema et al. 2018. See also Wesseling 1996. 46 Baptist 2014. 47 Bravo 2010. 48 Gross and Thomas 2016. 49 Quirk 2009. 50 Brown 2019. 44

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removed, but the political, economic, and cultural links established by colonial domination still remain with some alterations.51 In other words, there are structural connections between the transatlantic slavery and contemporary forms of slavery that are prevalent today. In this regard, it is fundamental to interrogate how contemporary forms of slavery connect to macro forms of inequality, global capital, socio-economic relations, and colonial legacies. Arguably, ignoring these enduring legacies in modern institutions, socio-economic relations, and international law constitutes of itself an obstacle to the fight against modern slavery. A deeper comprehension of these legacies can help us to better fight against new forms of slavery that continue to affect millions of people.

10.2 The Marginalization of Modern Slavery in International Criminal Justice Nowadays no State supports slavery. However, despite the complex international legal, and international policy obligations to prevent, criminalize, and punish slavery crimes,52 these practices persist and even thrive in many countries. By the best available estimates, about 40 million individuals are currently caught in modern slavery, which disproportionately affects girls and women who make up 71% of the total victims.53 152 million children are trapped in child labour around the world. These figures reveal the deep-seated discrimination and inequalities in our world today, coupled with a shocking tolerance and wilful blindness towards exploitation. With millions of men, women, and children affected globally by some form of slavery crimes, these figures also show a wide gap between the theoretical protection offered by international law and the reality of non-enforcement. Despite the fact that international criminal law already recognizes both slavery and enslavement, and various related practices such as sexual slavery, as crimes, prosecutions of slavery crimes remain only marginal and sporadic. As Cockayne and Grono have noted, this status quo suggests a tragic hypocrisy: even as international criminal justice condemns slavery in no uncertain terms, it tolerates millions of people living in these conditions.54 This tragic state of affairs begs the questions: why slavery persists, why the international crime of slavery remains under-utilized and under-charged, and whether international criminal law is fit for purpose to respond effectively to the contemporary forms of slavery which are widespread today.

51

Césaire and Kelley 2000. Today, the proscription of the slave trade exists as a peremptory norm, a crime under customary international law, a prohibition under international humanitarian law, and a non-derogable human right. See Viseur Sellers and Getgen Kestenbaum 2020a. 53 International Labour Office (2017) https://www.ilo.org/global/publications/books/WCMS_5 75479/lang--en/index.htm. Accessed 2 August 2021. 54 Cockayne et al. 2016. 52

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International law has arguably played and still plays a central role in consolidating and legitimizing global structures that contribute to modern slavery. Economic international law and modern-day legal frameworks such as those enabling transnational companies to rely on the disarticulation of the supply chain to insulate consumers, and themselves, from the role of slavery in the production of consumer goods,55 as well as legal structures enabling the operation of tax havens allowing the profiting from it, arguably continue to consolidate and further exploitation, slavery, and slaverylike practices. To some extent, these legal frameworks have enabled a continuation of the capitalist desire of sourcing cheap or free labour and resource appropriation. In this regard, some authors have noted that modern slavery, far from being an aberration, is rather a logical outcome of the way our political-economic system is organized and its historical origins in the colonial enterprise.56 While today States are infrequently directly involved in acts of modern slavery, they are often indirectly implicated through acts or omissions and by turning a blind eye to the commission of modern slavery offenses.57 Remarkably “the financialization of trans-Atlantic slavery also sustained a system that resonates in some respects with our modern era. Indeed, the use of complex financial instruments—including securitized slave-backed mortgages—created long value chains putting considerable moral and emotional distance between the dirty, violent reality of slavery in the Western Hemisphere and the enjoyment of the resulting profits, including in Europe. This distance made it easier for the system’s beneficiaries to ignore its costs and risks.”58 This system although no longer in place, strongly resonates with today’s realities. While significantly different in scale and nature, there are nonetheless, certain similarities between the transatlantic slave trade and presentday slavery. A globalized economy characterized by opaque supply chains and sub-contracting that obscures the involvement of companies in slavery and creates significant challenges to the attribution of corporate or individual responsibility. As it did in the past, profit continues to be a powerful incentive that underpins modern slavery.59 According to the International Labour Organization (ILO), modern slavery alone generates some $150 billion annually in profits to those relying upon it.60 In this context, it is hardly surprising that modern slavery and other egregious forms of exploitation prevail and even thrive across borders and industries where economic, legal, and moral responsibility has been deliberately diffused and diluted. In this connection, it is worth noting Mohsen Al Attar’s thought-provoking reflections in his essay on understanding international law through the analytic concepts of misery and poverty: “[I]nternational law is shaped by an economic project which, at 55

Ibid. Banerjee 2021. 57 Of the 24.9 million victims of forced labour in 2016, 16 million were in the private sector, another 4.8 million were in forced sexual exploitation, and 4.1 million were in forced labour imposed by State authorities. International Labour Organization 2017; Webb and Garciandia 2019, p. 541. 58 Liechtenstein Initiative 2019, p. 40. 59 Bales 2012. 60 International Labor Organization 2014. 56

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its core, legalizes the private accumulation of wealth. In a world beset with scarcity and inequality, accumulation is not benign. As some accumulate more, less is available for everyone else, producing much misery for those who are incapable of leveraging market power to their advantage. That is the logic of capital and markets, and, by extension, it is also the logic of international law.”61 Against this background, arguably, piecemeal efforts currently in place are unlikely to address the core problem of modern slavery: “the relentless pursuit of low-cost manufacturing to maximize profits and the pressure on suppliers to deliver their products as cheaply as possible. If modern slavery has to be eradicated, that business model has to be changed.”62 As many have noted, modern slavery is an extreme form of inequality. Arguably, to end modern slavery deep economic, social and political change is needed. To reduce slavery from over 40 million to zero, we must address the economic systems perpetuating modern slavery around the world. As Urmila Bhoola, the former UN Special Rapporteur on contemporary forms of slavery emphasized: “contemporary forms of slavery are complex products of the way our global political, social and economic systems work; to end slavery, the way those systems work must be changed.”63 In light of the above, one cannot but conclude that international criminal justice alone cannot deal with the root causes of modern slavery. Among a myriad of factors, firstly, and most notably, its marginalization can be partly explained by the fact that international criminal justice as we know it is not designed to deal with the before mentioned structural forces that produce and perpetuate extreme forms of global inequality. This forms part of broader structural critiques of international law that have long criticized the risks of reducing structural atrocities to questions of individual agency,64 punishing the individuals and leaving the structures untouched, and thus neglecting its socio-economic causes. As Tor Krever notes, international criminal law neglects, and arguably as a consequence absolves, the role of international institutions and transnational economic processes in exacerbating conflict and creating environments conducive to violence.65 The author argues that to challenge the broader context we must consider the conditions under which international crimes occur, the material context of violence, and social conflict. Secondly, as a number of commentators have noted, the range of conduct that can likely be successfully prosecuted within international criminal jurisdictions and within the International Criminal Court (ICC) is quite narrow given that today slavery out of armed conflict is much more significant, whilst international criminal justice tends to focus on investigating and prosecuting cataclysmic crimes that meet a certain threshold of scale and systematic occurrence of ‘core crimes’, especially those associated with armed conflict, political violence, and mass atrocity.66 Today modern slavery occurs more frequently outside of armed conflict and largely outside the 61

Al Attar 2021. Banerjee 2021. 63 UN Human Rights Council 2019. 64 Drumbl 2005, p. 545. See also Tallgren 2002. 65 Krever 2013, p. 703. 66 Viseur Sellers and Getgen Kestenbaum 2020a. 62

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realm of atrocity crimes. Thirdly, despite the complex international legal obligations that criminalize and punish slavery crimes, only half of the countries across the world criminalize slavery in their domestic jurisdictions. Fourthly, some scholars have argued that policy approaches in the latest decades to the umbrella term “slaverylike practices” and human trafficking have lessened the visibility of the crime of slavery and further contributed to its underutilization.67 Fifth, an additional factor that further compounds the under-charging of slavery crimes in international criminal justice, relates to a number of practical obstacles to international prosecutions of slavery. Most importantly, many slavery crimes occur in remote, private, often clandestine, or conflict-affected contexts, which make investigation and witness protection a significant challenge. Often, the extreme vulnerabilities and marginalization to which victims of modern slavery and other forms of exploitation are exposed make it extremely difficult for them to reach out and denounce the crime. Lack of firewalls between migrant victims and local authorities, coupled with precarious immigration status, language barriers, and discrimination also stand in the way of accountability. In these contexts, modern slavery is vastly underreported. In some instances, the governments themselves may have difficulties in exercising jurisdiction to investigate and prosecute slavery crimes. While the above provides a snapshot of some common difficulties faced by international criminal tribunals or prosecutions at the international level that partly explain the marginalization of the crime of slavery in international criminal justice, the list is by no means exhaustive. In this regard, it is also important to note that the investigation and prosecution of enslavement, sexual slavery, and other crimes related to slavery, remain regrettably under-utilized and under-charged at both domestic and international levels. In fact, while there have been advances in criminalizing slavery at the domestic level, important gaps remain. Although about half of all countries criminalize slavery, only a minority criminalize forced labour or servitude, and substantial gaps remain in the translation of international definitions and obligations into domestic law. Only 12 states appear to explicitly set out a national definition of slavery that reflects the international one.68 Similarly, while rates of prosecution and conviction are increasing, the absolute numbers of convictions remain very low, and therefore its deterrent effect is limited.69 Furthermore, research shows that the number of prosecutions on the national level for slavery crimes addresses only a tiny fraction of the offenses committed.70 There are a number of possible reasons that explain some common difficulties faced by national slavery prosecutions. A non-exhaustive list of challenges includes the complexity of slavery crimes that have transnational components, the social acceptance of slavery in some countries despite its formal illegality,71 and the 67

Ibid., p. 532. See further Siller 2016. Anti-slavery in domestic legislation: https://antislaverylaw.ac.uk/. Accessed 2 August 2021. 69 UN Human Rights Council 2019, para 25. 70 Tolbert and Smith 2016. 71 As Helen Duffy noted in Hadijatou Mani’s case: “Niger’s Constitution prohibits slavery. The Nigerian Criminal Code was amended in 2003 to make slavery a crime, and as a matter of law 68

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involvement of corporate actors over which jurisdiction may be complex or political and commercial interests translate on a lack of political. In this regard, it is important to note that some of the obstacles to effective criminal prosecution that domestic criminal actors face, such as low awareness and the complexity of investigations given the transnational and clandestine nature of the crime, also remain problematic at the international level.

10.3 Untapping the Potential of International Criminal Justice in the Fight against Modern Slavery Against the reality of the continuing effects of slavery in the present day, despite its abolishment, Anthony Anghie poses a valid question: How should law respond to this? What doctrines in law and what theoretical tools would be adequate to enable us to even understand the nature of those continuities, let alone address them?72 And in this connection, what role does international criminal justice have to play in the fight against modern slavery? Indeed, while modern slavery affects millions of people worldwide, regrettably, we continue to fail to punish those who perpetuate the system. Although international criminal justice cannot on its own deal with the root causes of modern slavery, as it is not designed or adapted to address the push factors that cause slavery nor with the systemic and structural conditions that make people vulnerable to it, it is nonetheless a necessary component in the global fight against modern slavery. As the causes and faces of contemporary forms of slavery are varied, arguably so should be the strategies to close the impunity gap and bring meaningful remedies for victims of modern slavery. This section sets out a few strategies, by no means exhaustive, through which international criminal justice actors along with many other interlocutors can significantly contribute to broader efforts in the global fight against contemporary forms of slavery.

10.3.1 Targeted International Prosecutions Arguably, even a few strategic and effective international prosecutions are likely to have a significant deterrent effect. In this context, it is the real prospect of being held criminally liable for these crimes that may contribute to constraining the impunity with which perpetrators often operate.73 As Urmila Bhoola has noted, serious penalties attach to this crime. However, prosecutions for slavery are not pursued in practice”. The author further noted that Mani’s case was not an isolated one, but emblematic of a pervasive phenomenon affecting over 40 thousand persons in Niger alone. Duffy 2009. 72 Anghie 2017. 73 See e.g., Prosecutor v Dragan Nikolic, Judgment on Sentencing Appeal, 4 February 2005, ICTY94-2-a, para 45 citing Prosecutor v Stevan Todorovic, Sentencing Judgment, 31 July 2001, IT-959/1-S, para 30 (‘the penalties imposed by the International Tribunal must…have sufficient deterrent

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increased enforcement of individual criminal liability is a key mechanism that can be used alongside mechanisms for ensuring state accountability and responsibility, to encourage compliance with international human rights norms and standards.74 This may be especially true for cases that involve conflict-related enslavement or enslavement as a crime against humanity, whose gravity has shocked the conscience of humanity. Boko Haram in Nigeria, ISIL in Iraq and Syria, the Yazidi in Iraq,75 and the DPRK are just a few examples. It is argued that targeted and strategic international prosecution of slavery crimes may help to catalyse prosecutions at both domestic and international levels in meaningful ways. Members of the international community should spare no efforts in ensuring accountability for these terrible crimes and send a clear message that no one may perpetrate them with impunity. Although international criminal justice efforts alone cannot defeat slavery, they can certainly make a substantial contribution. Nonetheless, several authors have noted that the vast majority of the victims of slavery and forced labour are subjected to coercion in the informal and mainstream economic sectors, in peacetime, rather than during armed conflict or in the context of mass atrocities. Due to their inherently limited jurisdictions, international prosecutions of slavery and slavery-related crimes at existing international criminal courts and tribunals may have a limited impact and deterrent effect on the broader phenomenon of contemporary forms of slavery and related forms of exploitation.76 Notably, under the Rome Statute, the International Criminal Court can only prosecute certain slavery-related practices, including enslavement,77 sexual slavery, and forced labour, if they occur in the context of large-scale violence (requirements also known as contextual elements), such as a widespread or systematic attack directed against any civilian population or an armed conflict, thus qualifying as crimes against humanity or as war crimes. Nonetheless, as Florian Jessberger has noted, the Elements of Crimes give examples of additional manifestations of enslavement, thus expanding the definition of enslavement as enshrined in Article 7 of the Rome Statute,78 including purchasing, selling, lending, or bartering a person or persons, or ‘similar’ deprivation

value to ensure that those who would consider committing similar crimes will be dissuaded from doing so’). See also Drumbl 2007. 74 Bhoola and Panaccione 2016. 75 United Nations, Human Rights Council 2016, paras 55, 75. 76 Cockayne 2016. 77 The legal definition of the Rome Statute is based on the definition of the Slavery Convention of 1926 and the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956, according to which the so-called contemporary forms of slavery (servitude, servile marriage, debt bondage, forced labour as well as trafficking in persons) can be regarded as slavery if these acts pass the threshold of exercising ‘the powers attaching to the right of ownership’. 78 Under the Rome Statute, the Crime against humanity of enslavement is defined as the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.

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of liberty.79 Even though the deterrent impact of prosecutions in international criminal tribunals would be likely limited in ‘out of conflict’ and ‘peacetime contexts’, some scholars have pointed out that international criminal justice efforts may still hold a relevant normative role and the potential of reinforcing and extending the taboo around slavery. While recognizing these limitations, some authors have rightly pointed out that international criminal prosecutions at international courts and tribunals have had and may certainly continue to have an important impact on the manner in which slavery is conceptualized, illuminating, in turn, the content of states’ human rights responsibilities,80 with relevant normative implications in the way that national, regional and other human rights and criminal justice mechanisms understand domestic criminal law relating to slavery. In examining slavery prosecutions in international criminal jurisdictions, Harmen van der Wilt has noted that the resulting jurisprudence has significantly clarified the nature of international criminal norms relating to slavery and related practices in a wide variety of contexts and circumstances.81 Notably, he points out that the existing jurisprudence has clarified the essence of slavery as an international crime to be the exercise of powers attaching to the right of ownership— an approach that has followed through to regional human rights bodies and domestic courts. Similarly, international criminal jurisprudence has continuously clarified the legal contours and the relationship of various crimes related to slavery such as enslavement, forced labour, forced and child recruitment, sexual slavery, forced marriage, and other related crimes. This has been exemplified by the decision in Kunarac which has helped international, regional, and domestic courts such as in R v. Tang to clarify the definition of slavery in international law.82 This shows that the jurisprudential value of international criminal tribunals may well transcend the prosecution of the crime slavery and slavery-like crimes in the realm of armed conflict or as a crime against humanity, as they may shed light on the requisite actus reus and mens rea of the crime of slavery as such.83 Professor Van der Wilt further notes that “international criminal tribunals have indirectly contributed to the law enforcement with respect to enslavement and slavery by expanding and elucidating these concepts. Moreover, the refined differentiations serve the goal of norm expression”.84 Accordingly, international criminal jurisprudence may arguably have a transformative impact in shaping 79

Jessberger 2016, p 332. See Element of Crimes for Article 7(1)(c) ICC St., fn 11: It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labor or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children. The same footnotes appear in relation to the elements of sexual slavery as a crime against humanity and a war crime under Articles 7(1)(g), 8(b)(xxii), and 8(2)(e)(vi). 80 Bhoola and Panaccione 2016. 81 van der Wilt 2016. 82 The Queen v Tang, 28 August 2008, HCA 39. 83 van der Wilt 2016, p. 270. 84 Ibid., p. 269.

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human rights law, domestic criminal justice, and potentially international business regulations and policy. Prosecutor v. Kunarac et al., was an ICTY case in which the Tribunal convicted several accused for enslavement as a crime against humanity based upon the defendants’ sexual control of detained Bosnian Muslim females during the war in the former Yugoslavia.85 At Kunarac et al. Appeal Judgment, the Appeals Chamber clarified that enslavement is not limited to de jure slavery (i.e., chattel slavery) but includes modern de facto forms of slavery as well. It held that the traditional concept of slavery has evolved to encompass various contemporary forms of slavery which are also based on the exercise of any or all of the power attaching to the right of ownership. It further added that, in the case of these various contemporary forms of slavery, the victim is not subject to the exercise of the more extreme rights of ownership associated with “chattel slavery”, but in all cases, as a result of the exercise of any or all of the powers attaching to the right of ownership, there is some destruction of the juridical.86 In other words, enslavement encompasses factual relations of power and control over persons that are treated as commodities. In this decision, the Appeals Chamber recognized forced labour as a possible crime against humanity and clarified its requirements. As Florian Jessberger noted, given that many of the contemporary forms of slavery are based on more subtle forms of exploitation than legal ownership this is of great relevance. Similarly, Van der Wilt also noted that while International Criminal Tribunals are, through the limitations of their jurisdictional mandate, confronted with structural and systematic injustice that is sanctioned or condoned by the state, the ICTY Appeal Chamber acknowledged that enslavement does not by definition require such involvement of public authorities, nor the existence of an armed conflict. Consequently, despite the jurisdictional differences in their mandates, these findings provide an important guideline for domestic courts and human rights bodies.87 This interpretation of enslavement has been confirmed in a number of decisions by the Special Court for Sierra Leone, the International Criminal Court as well as regional and domestic courts as highlighted above.88 More recently, the Habré Trial Chamber cited the Kunarac judgment’s reasoning that enslavement could comprise acts of a sexual nature and that such sexual control could be the means by which to carry out enslavement. Consequently, the Chamber concluded that international customary law recognized sexual slavery as a factual indicator of the crime of enslavement.89 Moreover, the Habré Trial Chamber concluded that, under international humanitarian law, sexual slavery, indeed, is a form of slavery. Remarkably, after a meticulous review of the applicable law and international jurisprudence, the Chamber concluded 85

Viseur Sellers and Getgen Kestenbaum 2020b. Kunarac et al., Appeal Judgment, 12 June 2002, IT-96-23 & IT-96-23/1-A (‘Kunarac Appeal Judgment’), para 117. 87 van der Wilt 2016, p. 276. 88 Jessberger 2016, p. 332. 89 Viseur Sellers and Getgen Kestenbaum 2020b, p. 5 citing Ministère Public v. Hissène Habré, Judgment 30 May 2016, paras 1490–1491. 86

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that the safeguards of jus cogens and customary international law condemned sexual slavery as both a crime against humanity and a war crime.90 While these jurisprudential developments have refined our understanding of enslavement as crime against humanity and of slavery as a war crime, some legal questions remain. For instance, Patricia Viseur Sellers and Jocelyn Getgen Kestenbaum have noted that sexual slavery is often mischaracterized as a recent or modern form of slavery, while chattel slavery during the Transatlantic and East African Slave Trades and elsewhere have inherently included all forms of proprietary rights over a slave’s body. The authors note that the predominant concept of slavery emerged as a result of these historic large-scale slaves trades and “[o]wnership over slaves extended to whatever labor or service that masters forced slaves to render; thus, slave ownership included complete sexual and reproductive proprietorship.”91 Accordingly, Viseur Sellers and Getgen Kestenbaum eloquently argue that sexual violence or assaults on sexual integrity are integral to slavery in many—if not all— its forms. Furthermore, they posit that, more precisely, sexual violence—as opposed to “sexual slavery”—is part of the actus reus or indicia of slavery and enslavement.92 At the same time, the authors regret that “[w]artime female slavery, which often includes sexual enslavement, has received pithy legal attention, even with the increased focus on conflict-related sexual and gender-based violence.”93 They further note that “[e]ven today, criminal conduct referred to as “sexual slavery” struggles against invisibility and impunity.”94 Indeed, more generally, accountability for sexual violence directed at both females and males, while a reality in many ongoing conflicts today, remains the exception rather than the rule. In appraising Habré’s judgment and missed opportunities, the authors reflect that “the Court might have examined the gender dimensions of slavery, including what is now codified as “sexual slavery”, by explaining the ways in which female and male slaves experience slavery. These nuanced analyses are fundamental to rectifying the discriminatory application of the law on slavery. A lack of further exploration of sexual slavery as the actus reus or indicia of any and all forms of slavery under customary international law, for instance, generally neglects gendered roles of women, girl, men and boy-victims of sexualized violence and slavery.”95 It is hoped that international criminal tribunals will address this and other questions leading us to a more nuanced understanding of the crimes of slavery and enslavement, fleshing out their elements, clarifying their definitions, and the factual scenarios in which they apply. In this context, some authors have reflected on the role that the International Criminal Court (ICC) could play in the larger effort by the international community to combat slavery crimes. In this sense, Karen Corrie, argues that the Court’s role could be to conduct a few significant investigations and prosecutions, with the purpose of 90

Ibid., The Prosecutor v Hisènne Habré Trial Judgment, 24 March 2017, paras 1494–95. Viseur Sellers and Getgen Kestenbaum 2020b, p. 11. 92 Ibid., p. 2. 93 Ibid., p. 10. 94 Ibid. 95 Ibid., p. 16. 91

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demonstrating to slavers and human traffickers that they cannot escape prosecution for their crimes. Karen Corrie further notes that the International Criminal Court’s involvement might also draw more international attention to the issue and encourage efforts from others.96 This may be especially true when it comes to accountability for sexual and gender-based violence, crimes affecting children, sexual slavery, and related crimes. Under the Court’s legal framework, sexual slavery may qualify both as a crime against humanity and a war crime, provided that the contextual elements are fulfilled. Sexual slavery is a specific manifestation of enslavement, the mens rea of this crime, requires that the perpetrator intend to impose a deprivation of liberty and cause the victim to engage in one or more acts of a sexual nature.97 It has been categorized as a separate crime to highlight the sexual aspect of serious violations of human rights and acknowledge that sexual slavery is a denial of individual autonomy through sexual means.98 While the recent conviction of Dominic Ongwen for crimes against humanity and war crimes, including slavery crimes is commendable in advancing accountability for sexual and gender-based crimes,99 more nuanced legal questions remain as to the legal characterization of the precursory acts of abduction and transport of victims of enslavement.100 It is foreseeable that during the next years, through its SGBC Policy,101 the Office of the Prosecutor will have the opportunity to carry out successful prosecutions of individuals for sexual and gender-based violence crimes, including perhaps for sexual slavery. Through these cases, it is hoped that the Court may further contribute to the development and understanding of the crime of sexual slavery and to build a strong body of law and jurisprudence on sexual crimes at the international level.

10.3.2 The Role of National Prosecutions and the Use of Universal Jurisdiction in the Fight against Modern Slavery Some commentators also have noted that the widespread adoption of the Rome Statute by a significant number of countries where slavery crimes have occurred or are occurring has created a potentially important impetus for the investigation and 96

Corrie 2016. See Katanga and Ngudjolo Chui, Decision on the Confirmation of Charges, 30 September 2008, ICC-01/04-01/07-717, para 433 (‘Katanga and Ngudjolo Chui’). 98 van der Wilt 2016, p. 277. See also Oosterveld 2004. 99 ICC (2021) https://www.icc-cpi.int/news/dominic-ongwen-declared-guilty-war-crimes-and-cri mes-against-humanity-committed-uganda. Accessed 2 August 2021. 100 Viseur Sellers and Getgen Kestenbaum 2021. See also Viseur Sellers and Getgen Kestenbaum 2020a. 101 ICC Office of the Prosecutor (2014) https://www.icc-cpi.int/sites/default/files/iccdocs/otp/OTPPolicy-Paper-on-Sexual-and-Gender-Based-Crimes--June-2014.pdf. Accessed 2 August 2021. 97

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prosecution of slavery crimes in those countries.102 David Tolbert and Laura A. Smith rightly noted that for these crimes to meaningfully be investigated and prosecuted in domestic courts, strengthening the capacity of national judicial institutions is critical to ensuring accountability, deterrence, and prevention of slavery crimes in the future. While expanding and strengthening the domestic prosecution of modern slavery and slavery-like practices remains unquestionably fundamental to narrow this impunity gap, arguably international criminal justice mechanisms such as international criminal tribunals and the use of universal jurisdiction can make a substantial contribution to the fight against slavery and bridging the accountability gap. States can assert universal jurisdiction over a handful of crimes as a matter of customary law including piracy, slave trade, genocide, crimes against humanity, war crimes, and torture.103 The expansion of universal jurisdiction cases worldwide as well as the numerous Special War Crimes Units that have been created throughout Europe during the last decade to prosecute international crimes underscores the potential for such initiatives to also prosecute slavery crimes.104 Along with the other strategies proposed, universal jurisdiction will be essential to filling accountability and justice gaps where the ICC is unable to address serious crimes due to jurisdictional or other limitations. Recent cases under the principle of universal jurisdiction in Germany and elsewhere, although so far mostly focusing on low-level perpetrators, provide a crucial opportunity to reveal the system behind the crimes committed against the Yazidi. As Alexandra Lily Kather has highlighted there is an urgency to account for the predominance and role of the slave trade and Yazidi female enslavement committed in the context of genocide and persecution as a crime against humanity on intersecting grounds of gender and religion.105 The international community is only beginning to reap the benefits of these efforts. It is hoped that other national jurisdictions can benefit from this experience and more States engage in universal jurisdiction investigations and prosecutions for slavery crimes so that perpetrators of slavery crimes are increasingly held to account.

10.3.3 A Global Mechanism to Tackle Modern Slavery All these approaches are certainly steps in the right direction that can meaningfully improve the global accountability for slavery crimes. In addition to these efforts, it is argued that in light of the few enforceable mechanisms in the fight against slavery, a welcome approach may be to develop a global mechanism that could fill that void. In cases where States are unwilling or unable to take action to combat contemporary 102

Tolbert and Smith 2016, pp. 429–430. Addis 2009. 104 During the last 15 years over 43 countries have become involved in the prosecutions of perpetrators of international crimes. More than 10,000 perpetrators have been brought to justice in such countries. Bergsmo 2010, p. 80. See also Langer and Eason 2019. 105 Kather 2021. 103

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forms of slavery, it is argued that an international mechanism could be established, mandated, adequately capacitated, and resourced to tackle and eradicate modern slavery beyond the realm of systemic crime. Such special court or mechanism would include in its subject matter jurisdiction slavery and slavery-like crimes outside of conflict and systemic repression. This mechanism could take the form of an international or hybrid tribunal, a quasi-judicial body, or other similar formats where victims can seek accountability and reparations. While primarily focusing on the most responsible for crimes within the mechanism jurisdiction, such mechanism could also refer appropriate cases (those involving intermediary and lower-level perpetrators) to national jurisdictions and in coordination with existing institutions (i.e.: UNODC, INTERPOL, and Europol) devoted to facilitating international criminal justice cooperation, it could provide technical and other assistance to individual States in order to strengthen domestic criminal justice responses in the global fight against slavery, creating a synergy between its work and modern slavery prosecutions at national courts. Given that at times enslavement and slavery-like practices can occur across borders, such mechanism should envisage strategies and frameworks to foster greater cooperation between states, joint investigations teams, and information.106 During the last decades, a key lesson learned from ad hoc tribunals and mechanisms has been the great potential for international mechanisms to function as a springboard for facilitating accountability processes at the national level.107 As a result, over the years, it has become increasingly apparent that building capacity for core crimes has to be prioritized by the international community. A mechanism with jurisdiction over the crime of slavery or more broadly designed to combat contemporary forms of slavery should include a capacity-building mandate and work towards increased cooperation, knowledge, and expertise sharing with its regional and national counterparts, including with national prosecutions. Such a mechanism would have an important opportunity to strengthen the justice process for slavery crimes and to promote a more integrated accountability strategy that reflects and reinforces the role of many different actors at both national and international levels.

10.3.4 Beyond Criminal Accountability: Reparations for Victims of Contemporary Forms of Slavery Alongside the pursuit of individual criminal accountability for slavery crimes reparations are a vital aspect of the global fight against contemporary forms of slavery. Prosecutions and inquiry mechanisms that are victim and survivor-centred may help to lay the ground for reparations and can in turn empower and transform the lives 106

van der Wilt 2016, p. 283. Boister 2012. Report of the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic 2018, A/72/764, p. 6, para 12.

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of victims of contemporary forms of slavery. Although criminal prosecutions are a necessary component in the global fight against slavery, nonetheless, it is important to note that reparations sought through criminal proceedings are limited by nature. The inherent selectivity of situations, cases, perpetrators, incidents, and charged crimes due to legal, structural, and political limitations in international prosecutions necessarily limits the eligibility of victims. In these settings, reparations are usually dependent on criminal conviction and if awarded at all, the result of lengthy procedures. In addition, the primary function of judicial remedies is to rectify a wrong done to a victim not to address larger problems that predate the infliction of the harm. For this reason, judicial reparations sought through criminal proceedings should be only one among other responses but not the primary tool to deliver reparations for victims of contemporary forms of slavery. In this regard, it is worth noting that for many victims of contemporary forms of slavery, as it might often be the case for survivors of atrocity crimes and human rights violations, holding perpetrators accountable is part but not the same thing as justice. Survivors and victims often look beyond criminal accountability and see truth-telling along with reparations as equally important forms of justice.108 In many cases, compensation and reparations are among the first and most urgent needs to be addressed. Arguably, reparations are crucially important for victims of contemporary forms of slavery which are often marginalized in their communities as they can have the potential of transforming the victim’s socio-economic conditions and to some extent the conditions that contribute to their vulnerability and enable abuses. In the particular context of victims of contemporary forms of slavery, which is driven by vulnerability, marginalization, and inequality, the concept of ‘transformative reparations’ seems more apposite to transform the lives of victims as well as the power structures that sustain unequal relationships. Modern slavery is an extreme form of inequality, which disproportionately affects girls and women who make up 71% of the total victims. Moreover, gender inequalities and discrimination are the primary drivers of slavery for women and girls. As Urmila Bhoola, former Special Rapporteur on contemporary forms of slavery, highlighted “women and girls form the overwhelming majority of people whose rights are violated through forced labour, servitude, forced marriages and slavery-like practices. Research shows that contemporary forms of slavery are clearly gendered in nature.” Similarly, Professor Helen Duffy noted that “slavery, in particular sexual slavery, is inherently linked to the question of equality. Discrimination underpins slavery, and slavery is in turn the clearest manifestation of inequality.”109 In this context, it becomes evident that it would be ineffectual to place marginalized victims back in positions of marginalization following serious harm, which has been the traditional aim of reparations, that is to place the victim back in the position they would have been in had the harm not occurred (to re-establish the status quo

108

International Center for Transitional Justice (2021) https://www.ictj.org/sites/default/files/ ICTJ_Report_CAR_EN.pdf. Accessed 29 July 2021. 109 Duffy 2009, p. 164.

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ante).110 This is hardly a satisfactory outcome from the point of view of the victims of contemporary forms of slavery. Accordingly, it is argued that transformative reparations would be a suitable approach to reparations for victims of contemporary forms of slavery, adopting measures that go beyond restitution and compensation and that include measures aimed at societal change, such as guarantees of non-repetition through legal and economic reforms, as well as measures focusing on the individual such as rehabilitation. Such measures should be aimed not only to repair the harm done to the victim but to offset the vulnerabilities that can push people into modern slavery. As regards to remedies for the victims, this would include, among others: redress and rehabilitation for victims of modern slavery through the provision of psychological, medical, legal, and social assistance. Empowering victims through capacity-building activities and vocational training so that they may regain selfsufficiency and their livelihoods and integrating victims back into society by restoring their dignity and independence. An international claims commission or adjudication body could be considered to award reparations to victims of contemporary forms of slavery with a complementary mandate to State Parties international human rights obligations towards victims and to better coordinate efforts from existing funds such as the UN Slavery Fund. Nonetheless, as highlighted by Professors Fraser and Leyh, transformative reparations potential but only when: (i) requested by victims and victim communities; (ii) designed together in an inclusive process with victims and victim communities; and (iii) the State or implementing authority has a mandate and is in a position to actually deliver upon the promise of transformation.111 Consequently, to deliver reparations to victims of contemporary forms of slavery that can make a real difference in their lives, victims, survivors, and their community members must be the drivers and at the centre of these strategies. Such reparations should also recognize the gendered impacts of slavery. Reparation proceedings must be made accessible, public, and transparent and must be fully informed by the perspective of victims. In this connection, the authors rightly note that while there is a role for outside or international actors to play in societal transformation, it should be a complementary and supportive role rather than a leading one. Notably, a number of reparation measures that are regarded to be transformational in nature such as guarantees of non-repetition, legal and economic reforms are the ones that a State can take and is obliged to take under international human rights treaties.112 Arguably, this kind of reparations are beyond the reparation mandates of most international bodies, except for regional human rights courts.113 Thus, for reparations to serve as a catalytic device for transformation, any efforts in this regard effected by an international body or regional human rights courts must be complemented by broader State actions addressing structural reforms. Arguably, local and 110

Fraser and Leyh 2019. Ibid., p. 56. 112 Ibid., p. 54. 113 Regional human rights mechanism may offer an important avenue for litigation of slaver and slavery-like practices. See further Duffy 2016. 111

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bottom-up approaches by internal reform actors are best placed to deliver societal change that may require changing societal cultural norms, practices, and structures that support inequalities. In addition, accessibility to victims, participation, and ownership of the process also militate in its favour. By way of illustration, take, for instance, the reparations ordered in the Hadijatou case. As noted by Professor Duffy: “while far from a perfect judgement the impact of the judgement was striking and multi-dimensional. It gave the victim an opportunity to state her case, and to receive recognition, vindication and damages, enabling her to establish a modest self-sufficient life. By sitting in Niamey and conducting a public hearing, the case catalysed debate, throwing open the conspiracy of silence that had long surrounded the issue. It appears to have prompted other victims to emerge from the shadows and perhaps given some of the tens of thousands held in slavery and servitude in Niger and neighbouring countries reason to hope.”114 Reparations should be regarded as one of the many tools to bring about positive change to victims of contemporary forms of slavery. As the authors suggest “[v]ery likely, any type of broader transformation will require a full array of development or reform initiatives. As such, if the transformative potential of reparations is to occur, a combination of approaches and actors is necessary.”115 Given the multifaceted nature of modern slavery, and the fact that it is present virtually in every country across the world, eradicating it, would certainly require a multi-faceted approach that addresses the array of forces and drivers—economic, social, cultural, and legal—that contribute to vulnerability and enable abuses. As the causes of contemporary forms of slavery are varied, accordingly, responses need to be adapted to the diverse environments in which modern slavery still occurs. To eradicate modern slavery, we need a more strategic and holistic response. This will only be achieved by utilizing all of the levers at the international community’s disposal.

10.3.5 Follow the Money: Disrupting Financial Flows Associated with Contemporary Forms of Slavery As several practitioners and scholars have noted “slavery exists where the costs of slavery are externalized onto victims, families, and communities (and their environments), who cannot protect themselves, because governance is weak and the rule of law diluted.”116 Today, victims and survivor bear the costs of modern slavery and that must be changed. It is thus argued that contemporary forms of slavery will only be used as long as it makes “business sense” to do it. Some argue that just as financial interests accompany war crimes, mass atrocities, and gross human rights abuses, financial investigations should accompany core crimes and other gross violations. 114

Ibid., p. 392. Fraser and Leyh 2019, p. 58. 116 Cockayne 2015, p. 4. 115

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Given that, arguably, perpetrators or those complicit in the context of global capitalist structures who profit from modern slavery, may largely and more effectively respond to what interrupts the generation of profit, any prosecution and accountability efforts should be coupled with complementary strategies that make it impossible for companies and other actors to continue to profit and operate legally whenever they found to be responsible for contemporary forms of slavery. One crucial approach would be to involve financial institutions in detecting and disrupting financial flows associated with human contemporary forms of slavery—to “follow the money”. The potential of financial investigations remains largely untapped. They can potentially be a powerful tool for disrupting, and perhaps deterring slavery crimes. Financial investigations can demonstrate the profit motive of perpetrators, provide valuable information relating to slavery crimes and open the door to broader charging and higher penalties. In addition, it can provide the basis for asset confiscations. Moreover, profiting from slavery and slavery-like crimes can entrench the inequalities and vulnerabilities that made the exploitation possible, leading to further exploitation. As highlighted by the former Special Rapporteur on contemporary forms of slavery “inequality contributes specifically to the continued widespread existence of contemporary forms of slavery. Inequality creates significant barriers to the most vulnerable within society preventing them from finding ways out of deeply exploitative situations where they have no protection.”117 In this context, the financial sector has arguably an important role to play to address contemporary forms of slavery. More significantly, in this connection, the Special Rapporteur on contemporary forms of slavery has noted that criminal asset recovery and confiscation of criminal proceeds could be one effective way to tackle modern slavery. As noted earlier, illegal profits from forced labour (including modern slavery) amount to $150 billion every year. This makes modern slavery and human trafficking one of the top three international crimes, alongside drug trafficking and trade in counterfeit goods.118 If confiscated, these criminal proceeds could be channelled to ensure access to justice, remedy, compensation, and protection for victims and to enhance the capacity and capability of law enforcement to tackle these crimes.119 This is particularly relevant given that when it comes to reparations States often cite financial constraints as the main reason for not implementing reparations.120 These types of efforts can be further complemented by domestic legislation and policy that comprehensively and sustainably support and reintegrate survivors of modern slavery and related crimes, thus helping to restore dignity to the victims and survivors. Another aspect related to financial investigations that have the potential to accelerate the efforts being made to fully eradicate all contemporary forms of slavery is the use of sanctions. Financial sector actors have a key role to play in enforcing 117

United Nations General Assembly (2017), p. 10, para 32. https://documents-dds-ny.un.org/doc/ UNDOC/GEN/N17/216/32/PDF/N1721632.pdf?OpenElement. Accessed 2 August 2021. 118 Liechtenstein Initiative 2019. 119 Obokata (2020), p. 13, para 52. https://digitallibrary.un.org/record/3878470?ln=fr. Accessed 2 August 2021. 120 Fraser and Leyh 2019, p. 58 citing Waldorf 2012.

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international sanctions targeting slavers and traffickers. They can help by identifying, freezing, and facilitating the confiscation of assets. In this regard, some actors have proposed to develop a network of sanctions enforcement actors to strengthen sanctions implementation by enhancing cooperation and information-sharing between governments and financial institutions. Thus, it is argued that in both national or international criminal prosecutions of slavery and slavery-like crimes, prosecutors should prioritize parallel financial investigations as crucial to the structures that allow the commission of these crimes. Financial investigations can bring several advantages to the prosecution of slavery and slavery-like crimes as they can expand the scope of accountability, develop stronger evidence for core crimes and liability theories, and better fund reparations programs.121 Prosecutions should consider bringing financial expertise, where necessary set up an economic crimes unit, and develop strategies for investigating financial networks. In this regard, it is argued that leaving financial networks and illegal assets untouched for crimes such as slavery and slavery-like practices that have a manifest economic logic and motivation is a missed opportunity. Similarly, laundering the proceeds of modern slavery and human trafficking is also a crime in most jurisdictions. Regrettably, enforcement of that norm is weak. Accordingly, it is argued that coupled with network sanctions and anti-money laundering measures, addressing the financial dimensions of slavery crimes—as in atrocity crimes cases—will strengthen interventions into transnational illicit financing.122 Financial investigations and prosecutions are essential to ensure that crimes do not pay. In this connection, Amol Mehra and Katie Shay noted that while many companies are taking positive steps in examining their responsibility for the impact of human rights in their supply chains, including for contemporary forms of slavery, many other lags behind. While these efforts are steps in the right direction, however, it is increasingly clear that voluntary codes and non-official means of monitoring compliance should be complemented by legal rules and legal accountability. In the absence of such a framework of legal accountability, voluntary approaches will remain ineffective and contested.123 Today the reality is that contemporary forms of slavery persist, and businesses continue to be involved in the perpetration of such harm. Thus, the authors argue that “[i]ncreased enforcement and the prospect of legal liability is key to ensuring companies comply with their responsibility to respect human rights or their legal duties to do so when regulation exists. Domestic prosecutors must be empowered to examine and bring cases involving corporate use of, or complicity in, using trafficked and slave labor.”124 Such efforts can be the first of many steps leading to comprehensive, holistic, and survivor-centric reparation programs for victims of contemporary forms of slavery. Taken together, these approaches could be the first steps towards an overdue eradication of contemporary forms of slavery, promising an end to the impunity that 121

Dranginis 2019 p. 26. Ibid. 123 International Council on Human Rights Policy 2002, p. 159. 124 Mehra and Shay 2016. 122

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perpetrators of slavery crimes have long enjoyed. As put by Cockayne and Grono, international prosecutions will not eradicate modern slavery, but they will get us closer to that goal.125 Thus, it is argued that international prosecutions and other accountability efforts can help to catalyse and to bring about transformational change, ensuring that perpetrators of gross violations and abuses of human rights and international crimes are held accountable and preventing recurrence. Accountability for core international crimes usually depends on complementary approaches across and between national, regional, and international jurisdictions. The combined efforts of international justice actors (tribunals or mechanisms), national jurisdictions, and civil society are essential to ensure an appropriate measure of justice for victims of slavery.

10.4 Conclusion In this chapter, I have attempted to examine the fraught and at times contradictory relationship between international law, the transatlantic slave trade, and its structural connections with enduring forms of exploitation and modern slavery. If we ought to attempt to use international law and international criminal justice to successfully combat contemporary forms of slavery, we must be keenly aware of the fact that the colonial origins of international law have an impact on the present. In the words of Anthony Anghie: “if we understand how colonialism has shaped the fundamental structures of international law, then it might become possible, having recognized this fact, for us to rethink a system of international law that might in some way make good on its promise to further international justice.”126 It is thus argued that consciousness of the continuing effects of colonial injustice and slavery legacies in the present is indispensable to create structural changes that prevent the reproduction of inequalities or harms that perpetuate conditions leading to the exploitation of millions of people, subjected to modern forms of slavery. It is further argued that TWAIL, critical and postcolonial approaches to international law can help us to correct this bias and identify gaps in our strategies to more effectively combat modern slavery. Further, this approach can allow us to question the status quo that uncritically and normatively internalizes Eurocentric subtle and deceptive hierarchies and tolerates extreme forms of inequality and exploitation and can further allow us to reset the terms of the debate itself. Thus, it is posited that present-day strategies to tackle modern slavery that disregard the ways in which modern-day international law continues to consolidate and legitimize global structures that contribute to modern slavery—by enabling illicit profits, financial flows, and diluting responsibility—and side-steps or gloss over discussions about the role of global capitalism has played on historical and modern-day slavery can only led to piecemeal ineffective approaches that will ultimately fail to eradicate modern

125 126

Cockayne et al. 2016. Anghie 2017, p. 12.

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slavery. Modern slavery is a by-product of our present-day global capitalist structures that maximize profit at the expense of the marginalized and vulnerable. For this reason, current approaches to fight modern slavery seem inadequate and inapposite, remaining insufficient to the task of its eradication. Arguably, to end modern slavery deep economic, social and political change is needed. To reduce slavery from over 40 million to zero, we must address the economic systems perpetuating modern slavery around the world. Against this background, one cannot but conclude that international criminal justice alone cannot deal with the root causes of modern slavery as it is not designed to deal with the before mentioned structural forces that produce and perpetuate extreme forms of global inequality. In addition, the limited jurisdictional scope of most hybrid and international criminal tribunals means that currently, they can only deal with forms of slavery arising out in the context of armed conflict and mass atrocity, which represent only a fraction of the contemporary forms of slavery which are widespread today. As discussed in Sect. 10.2, in addition to these structural challenges, a number of practical obstacles may have further contributed to the marginalization of modern slavery from international criminal justice. Despite this admission, it is nonetheless argued that international criminal justice can make a substantial contribution in the fight against modern slavery and that international justice actors can and should play a greater role as part of a larger effort to fight modern slavery. It is further argued that international justice can be a useful tool to bridge accountability gaps for slavery and related crimes by constraining the impunity with which perpetrators often operate. Given that, arguably, perpetrators or those complicit in the context of global capitalist structures who profit from modern slavery, may largely and more effectively respond to what interrupts the generation of profit, any prosecution and accountability efforts should be coupled with complementary strategies that make it impossible for companies and other actors to continue to profit and operate legally whenever they found to be responsible for contemporary forms of slavery. Targeted international criminal prosecutions, the expansion of slavery, and related crimes prosecutions through the use of universal jurisdiction are some of the different ways scholars have proposed to improve global accountability for slavery crimes. In addition to these approaches, it is argued that in light of the few enforceable mechanisms in the fight against slavery, a welcome approach may be to develop a global mechanism that could fill that void. In cases where States are unwilling or unable to take action to combat contemporary forms of slavery, it is argued that the establishment of an international mechanism mandated, adequately capacitated, and resourced to tackle and eradicate modern slavery could strengthen the global fight against slavery. Prosecutions and inquiry mechanisms may lay the ground for victims and survivor-centred reparations which can, in turn, empower and transforms the lives of victims of contemporary forms of slavery. These types of efforts can be further complemented by domestic legislation and policy that comprehensively and sustainably support and reintegrate survivors of modern slavery and related crimes. Taken together, these approaches could be the first steps towards an overdue eradication of contemporary forms of slavery.

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As Kevin Bales has noted, despite many differences between old and modern slavery, contemporary forms of slavery are still slavery: the basic fact of one person totally controlling another remains the same. Slavery is primarily a form of economic exploitation. Yet, slavery, like many illegal activities, adapts rapidly to changing legal, economic, and social conditions. “Once officially abolished, slavery was transformed: adopted as an illicit enterprise, it has mirrored changes in the general economy. No longer viewed as property, people today are seen merely as disposable inputs into production.”127 As Bales argues, contemporary and emerging forms of slavery are not just outcomes of economic globalization, they are part of the globalization process itself. Today, the deregulation of world markets adds significantly to the economic vulnerability of a large proportion of the world’s poor.128 In this context, contemporary forms of slavery continue to disproportionately affect the poorest, most vulnerable, and marginalized in the Global South with the complicity of international law, whilst its illegal profits continue to be concentrated in the Global North through large scale capital flows, and the social and environmental costs of modern slavery, forced labour, and other forms of exploitation are hidden ‘out of plain sight’ for Northern consumers, constituting part of our everyday lives. As seen throughout this chapter, these unequal vulnerabilities are traceable to historical and contemporary imperialist social and economic relations whose ongoing effects are seen today. Furthermore, modern slavery disproportionally affects women and girls in the so-called developing world,129 to an overwhelming extent because of where they happen to be born. Thus, fighting modern slavery is not just about social and economic justice, it is also about racial and gender equality, making it a moral imperative that we can no longer ignore. As James Cockayne and others have noted, at its root, the persistence of slavery signals blindness not only to the suffering of others but also to the loss of human potential that this represents. It represents not only a failure of empathy but also a collective failure of imagination and ambition.130 For way too long, international law has been a tool for exploitation. However, as demonstrated throughout history, international law can be both a culprit and a potential remedy to colonial injustices,131 and its legacies. It is thus argued that it can also open pathways towards transformation.132 In this sense, the metamorphosis that international legal scholarship is undergoing with the rise of TWAIL, critical 127

Bales 2000, p. 462. Ibid., p. 472. 129 Women and girls are disproportionately affected by modern slavery, with over 71% of victims being female. UN Human Rights Council 2019. 130 Cockayne et al. 2016. 131 Stahn 2020. 132 On the anniversary of the abolition of slavery, nearly 200 years ago, in a landmark decision, the General Assembly on 2 August 2021 established a 10-member subsidiary organ that will serve as a standing forum to hear the voices of people of African descent and help eliminate all forms of discrimination against them. The creation of this forum represents a step in the right direction to uproot the systems of racial inequality resulting from centuries of discrimination, dispossession and enslavement. See United Nations (2021) https://documents-dds-ny.un.org/doc/UNDOC/GEN/ N21/213/97/PDF/N2121397.pdf?OpenElement. Accessed 5 August 2021. 128

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and postcolonial approaches to international law133 may arguably be a catalyst to the global fight against slavery. As rightly put by Anthony Anghie, slavery is the complete negation of human dignity and a phenomenon that international law must demonstrably act against. As such, “it presents itself as a test, a challenge to international law’s commitment to protecting human dignity […]. Slavery, like genocide, is an abhorrence against which international law can demonstrate its commitment to protecting human dignity and furthering the cause of international justice.”134 Thus, he argues, the experience of slavery offers us an epistemology, a framework for imagining a different world, and a lens from which to continue to think of how oppression operates in the world.135 Often, throughout history, pursuing what seemed unreachable has transformed perceptions and realities.136 This is possible: after all, surely, five hundred years ago the notion that slavery would be abolished worldwide would have appeared entirely fantastic.137 Moreover, today, unlike at the height of transatlantic slavery, stopping modern slavery would not disrupt any economy as was the case with, for instance, the American South in 1850. The value of slave labour is relatively small in our current world economy, a reason by which one may argue there is ground for optimism and hope in the fight against modern slavery.138 While human beings may plausibly find new ways to enslave and exploit and commodify others and while it may be that slavery may never be completely eradicated, slavery might nonetheless be suppressed and controlled as new forms emerge. The prohibition of slavery is a jus cogens norm of international law.139 The obligation to prevent, criminalize and punish slavery is one that every state owes to all others (erga omnes).140 As Kevin Bales has rightly noted, this consensus has been codified into several international instruments,141 and while these instruments have few enforceable mechanisms, they represent an important beginning, a step in the right direction. In this sense, Kevin Bales notes that this may be the first generation to have developed a general consensus against slavery and to have the opportunity to develop global mechanisms to root out and eradicate slavery.142 Slavery, like poverty 133

Al Attar (2021) http://opiniojuris.org/2021/03/03/subverting-racism-in-international-law-sch olarship/. Accessed 5 August 2021. 134 Anghie 2017, p. 13. 135 Ibid., p. 23. 136 By the way of analogy and in the words of Ursula K. Le Guin: “We live in capitalism, its power seems inescapable—but then, so did the divine right of kings. Any human power can be resisted and changed by human beings. Ursula K. Le Guin (2014) https://www.ursulakleguin.com/nbf-medal. Accessed 5 August 2021. 137 Anghie 2017, p. 22. 138 Bales 2012, p. 484. 139 Ibid. 140 Barcelona Traction, Judgment, ICJ Reports 1970, paras 33–34. See also Mme Hadijatou Mani Koraou v The Republic of Niger, 27 October 2008, ECW/CCJ/JUD/06/08. 141 By way of illustration, at the time of writing, the 1948 Genocide Convention has 152 parties, the four 1949 Conventions have been ratified by 196 states and the Rome Statute has 123 states parties. 142 Bales 2012, p. 484.

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and exploitation, is a man-made tragedy that can and must be resisted and changed. To eradicate modern slavery is our shared duty. International justice actors can and should play a greater role as part of a larger effort to fight modern slavery.

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Other Documents Anti-slavery in domestic legislation, https://antislaverylaw.ac.uk/. Accessed 2 August 2021 Report of the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011(2018), A/72/764 Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and racial intolerance (2019) UN Doc. A/74/321 UN Human Rights Council, Special Rapporteur on contemporary forms of slavery, including its causes and consequences 2019, A/HRC/42/44 United Nations Office on Drugs and Crime (2012) Remembering the victims of slavery and the Transatlantic Slave Trade. https://www.unodc.org/unodc/en/human-trafficking/2012/rememb ering-the-victims-of-slavery-and-the-transatlantic-slave-trade.html. Accessed 1 August 2021 United Nations, Human Rights Council (2016) “They came to destroy”: ISIS Crimes Against the Yazidis, A/HRC/32/CRP.2

Vanessa Hernández Soto is an international criminal and human rights lawyer. She works as a lawyer at the Office of the Prosecutor, International Criminal Court. The views contained in this chapter do not represent the position or policies of their affiliated institutions.

Chapter 11

The Evolution and Practice of Guilty Pleas in International Criminal Law Charles A. Adeogun-Phillips

Contents 11.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.2 Legal Framework for Guilty Plea Bargaining in International Criminal Law . . . . . . . . . 11.2.1 Plea Bargaining . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.2.2 Plea Bargain Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.3 The Divergence in the Number of Pleas at the ICTY and ICTR . . . . . . . . . . . . . . . . . . . . 11.4 Guilty Pleas—The Pre-completion Strategy Phase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.4.1 ICTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.4.2 ICTR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.4.3 Summary of First Phase at the ICTY and the ICTR . . . . . . . . . . . . . . . . . . . . . . . . 11.5 The Completion Strategies of the ICTY and ICTR—An Incentive to Plea Bargaining? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5.1 ICTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5.2 Summary and Conclusion on Guilty Pleas at the ICTY . . . . . . . . . . . . . . . . . . . . . 11.6 The Second Phase Guilty Pleas at the ICTR: 2004–2007 . . . . . . . . . . . . . . . . . . . . . . . . . . 11.7 The Evolving Post Completion Strategy Trend at the ICTR . . . . . . . . . . . . . . . . . . . . . . . 11.8 Guilty Pleas in Hybrid Criminal Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.9 Admissions of Guilt at the International Criminal Court (ICC) . . . . . . . . . . . . . . . . . . . . . 11.10 Conclusions on the ICTY, ICTR and ICC Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.11 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The author traces the evolution of the concept of guilty pleas in international criminal law as developed by the jurisprudence of the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia. These international tribunals, alongside their sister hybrid criminal courts, not only irreversibly changed the landscape of international law but played a pioneering role in establishing a credible international criminal justice system, by producing the main body of jurisprudence on guilty pleas in the context of widespread international crimes. As a foundation member of the Office of The Prosecutor, in one of two ad hoc international criminal tribunals established since the end of the

C. A. Adeogun-Phillips (B) International Criminal Court Bar Association, The Hague, The Netherlands e-mail: [email protected]; [email protected] © T.M.C. ASSER PRESS and the authors 2023 T. B. K. Sendze et al. (eds.), Contemporary International Criminal Law Issues, https://doi.org/10.1007/978-94-6265-555-3_11

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Second World War, the author was not only privy to many of the challenges encountered by international prosecutors but was also uniquely placed to discuss the pleabargaining processes adopted by these international criminal courts. Having led the negotiations in three of nine guilty pleas obtained by prosecutors at the International Criminal Tribunal for Rwanda, the author examines the development and practice of guilty plea negotiations in the context of large-scale international crimes. Well apart from the cost, duration, scale and complexity of prosecuting international crimes, the author concludes that the divergence in legal cultures of various actors in the transitional justice system contributed to the complexity of negotiating guilty pleas before international criminal courts. Nevertheless, the surrounding political circumstances made it imperative for various stakeholders operating therein to embrace the concept of guilty plea negotiations to avoid lengthy and expensive international trials. Keywords Guilty pleas · International Criminal Tribunal for Rwanda (ICTR) · International Criminal Tribunal for the former Yugoslavia (ICTY) · Plea bargain negotiations and agreements · International criminal law

11.1 Introduction The Security Council of the United Nations (UNSC), pursuant to Chapter VII of the UN Charter in May 1993, established the International Criminal Tribunal for the former Yugoslavia (ICTY) in response to mass atrocities then taking place in what used to be the Socialist Federal Republic of Yugoslavia. The seat of this Tribunal was at The Hague, Netherlands. Those indicted by the ICTY included heads of state, prime ministers, army chiefs-of-staff, interior ministers and many other high- and mid-level political, military and police leaders from various parties to the Yugoslav conflicts. The ICTY indictments addressed crimes committed from 1991 to 2001 against members of various ethnic groups in Croatia, Bosnia and Herzegovina, Serbia, Kosovo, Montenegro, and the Former Yugoslav Republic of Macedonia. Barely 18 months after the establishment of the ICTY, the UNSC, in November 1994, established the International Criminal Tribunal for Rwanda (ICTR) to prosecute persons responsible for genocide and other serious violations of international law in Rwanda, or by Rwandan citizens in nearby states, between 1 January and 31 December 1994. The seat of this Tribunal was in Arusha, Tanzania and its Appeals Chamber was shared with the ICTY and therefore located in The Hague, The Netherlands. Those indicted by the ICTR included the prime minister, cabinet ministers, army chiefs, members of the Mouvement Républicain National pour la Démocratie et le Développement (MRND) ruling political party, the leadership of the civilian militia and provincial administrators, religious leaders, businessmen and other members of civil society. The ICTR indictments addressed crimes committed against members of the Tutsi ethnic group and those perceived as moderate Hutus in Rwanda. The Office of the Prosecutor (OTP) of the ICTR/ICTY was one of the three principal organs at the Tribunals. It was responsible for the investigation and prosecution

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of persons indicted before the Tribunals. In that regard, up until 2004, the work of the OTP was shared between the ICTR in Kigali and the ICTY at The Hague, under the leadership of the Chief Prosecutor.1 The OTP also had field offices in Rwanda, Bosnia and Herzegovina, and Croatia. Following the completion of their respective mandates in 2010, both Tribunals were succeeded by the United Nations International Residual Mechanism for Criminal Tribunals2 (Mechanism) based in The Hague and in Arusha. During the currency of the ICTY and the ICTR, the Rome Statute establishing the International Criminal Court (ICC) came into effect in 2002. Hybrid courts such as the Special Court for Sierra Leone3 (SCSL), the Extraordinary Chambers in the Courts of Cambodia4 (ECCC), and the Special Tribunal for Lebanon5 (STL) were also established after the ICTR and ICTY, as were the unique experiments of internationalised domestic criminal courts such as the Kosovo6 and the East Timor7 Panels

1

United Nations Security Council 2003, Resolution 1503. Established by the UN Security Council 2010, Resolution 1966: to continue the “jurisdiction, rights and obligations and essential functions” of the ICTY and ICTR; to maintain the Tribunal’s legacy. 3 The Special Court for Sierra Leone (“Special Court”, SCSL) was established by an agreement between the United Nations and the Sierra Leonean government pursuant to Security Council Resolution 1315 (2000). The Court’s mandate was to “prosecute persons who bore the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law” committed in Sierra Leone after 30 November 1996 and during the Sierra Leone Civil War. On 26 September 2013, former Liberian President Charles Taylor was convicted on appeal, the first African head of state to be convicted for war crimes. 4 The Cambodia Tribunal or Khmer Rouge Tribunal (Extraordinary Chambers in the Courts of Cambodia) was established pursuant to an agreement between the United Nations and the Cambodian government in 2003 to try “senior leaders of Khmer Rouge and those most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and customs, and international conventions recognized Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979.” The ECCC is still part of the Cambodian court structure and receives assistance through the UN Assistance to the Khmer Rouge Trials (UNAKRT). Because there are both local and foreign judges on the bench, of whom local judges form a majority, it is also considered a hybrid court. 5 The Special Tribunal for Lebanon (STL) or “Hariri Tribunal”, is an international criminal tribunal mandated to prosecute those responsible for the killing of late Lebanese President Rafiq Hariri on 14 February 2005. An Agreement between the United Nations and the Lebanese Republic established the STL pursuant to Security Council Resolution 1664 (2006). It is not a UN court, but an independent judicial organisation. 6 The “64-panels” in Kosovo’s local courts, were first established in December 2000 by United Nations Interim Administration Mission in Kosovo (UNMIK) reflecting concerns about the impartiality of the local judiciary. Following UNMIK “re-configuration” in 2008/9, its judicial functions were handed over to the new EU Rule of Law Mission, EULEX, to investigate and prosecute ethnic and war crimes. These panels are named after the regulation, that established them. 7 United Nations Transitional Administration in East Timor (UNTAET) in 2001 established the Special Panels for Serious Crimes (Special Panels), granting it jurisdiction to prosecute those accused of genocide, war crimes, and crimes against humanity, along with certain violent domestic crimes, such as murder, sexual offenses, and torture. 2

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as well as the Extraordinary African Chambers.8 The OTP9 at these hybrid courts were established on structures similar to those of the ICTR, ICTY and Mechanism. Of the 161 individuals indicted by the OTP at the ICTY, 109 defendants were tried by the Tribunal between 1996 and 2017. Of that number, 90 defendants were convicted and 19 others, acquitted. Of the 90 defendants convicted, 20 of them pleaded guilty to some or all the crimes they were charged with. Similarly, during its mandate, the OTP at the ICTR indicted a total of 93 individuals. Of the 93 individuals indicted by the OTP, a total of 76 defendants were tried by the Tribunal between 1997 and 2012. Of that number, a total of 62 defendants were convicted and 14 others acquitted. Of the 62 defendants convicted, nine of them pleaded guilty to some or all the crimes they were charged with. Of the 28 individuals indicted by the OTP at the ICC since its inception, three defendants were convicted and four others acquitted. To date, the ICC has recorded only one guilty plea. Between 1996 and 2020 of a total of 230 defendants that were indicted by the OTP at the various international criminal courts and/or tribunals, guilty pleas were obtained from only 30 defendants, 29 of which were at the ICTY/ICTR. Having myself led the complex guilty plea negotiations in the Rutaganira, Bisengimana and Rugambarara cases at the ICTR between 2004 and 2007, I examine in this chapter the institutional and practical challenges encountered in the negotiations of such plea agreements. Regardless of their structure, location, and/or mode of operation, two things were consistently unique to the operations of international criminal courts and tribunals. These are the staggering costs associated with running them and the delay in their operations, caused by the complexity and length of the trials before them. This in my opinion, is one of the incredibly unique aspects of practice before international criminal courts and tribunals. Others, such as the divergence in legal cultures and languages of various actors in the transitional justice system, all of which in my view contribute to the complexity of international criminal trials. More importantly, the initial ad hoc and hybrid tribunals—the ICTY, ICTR, SCSL, ECCC and STL—had pre-established deadlines for the conduct of their work, thus making the efficient disposition of the cases before them an absolute necessity. The complexity, length and expense of international criminal investigations and prosecutions involving extensive witness protection programmes and language support services, made it all the more logical for these courts to provide for and/or encourage the principal stakeholders operating therein to embrace the concept of guilty plea negotiations and agreements recognised by the courts to avoid the lengthy and expensive international trials. 8

On 22 August 2012, the African Union (AU) and the Government of Senegal signed an agreement establishing a special court with international elements within the Senegalese judicial system. On 8 February 2013, the Extraordinary African Chambers (EAC) was inaugurated to prosecute and try the person or persons most responsible for international crimes (genocide, crimes against humanity, war crimes and torture) committed in Chad between 7 June 1982 and 1 December 1990. Former Chadian President Hissène Habré was on 30 May 2016, convicted of crimes against humanity, war crimes, and torture, including sexual violence and rape, by the EAC and sentenced to life in prison. 9 The Serious Crimes Unit (SCU) was the equivalent of the OTP at the Special Panels.

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International criminal tribunals and courts, be they UN and/or donor funded, do not come cheap. Although the quest for securing justice for the victims and survivors of widespread international crimes is the cardinal aim of the transitional system of justice, the costs incurred in the pursuit of justice cannot be open-ended. This is especially so when one considers that the cost of running some of the trials before these institutions is perhaps almost equal to the Gross Domestic Product (GDP) of many of the countries where such widespread atrocities occurred. I therefore seek to place these costs in some perspective. During the first 10 years of its operations, the ICC spent appropriately EUR 750 million on running costs during a period when its total workload consisted of the conduct of investigations in seven (7) situations, the initiation of pre-trial proceedings against 29 persons and the completion of a single trial involving one defendant. Indeed, in my view, the ICC is yet to achieve any significant impact in, arguably its most important function, promoting complementarity.10 But the ICC’s expenditure fell way short of the ginormous $1.2 billion (EUR 762 million) and $1 billion (EUR 635 million) spent by the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) respectively during the first ten years of their operations. This translated to a unit cost of between $10–15 million (EUR 6.4–9.5 million) per accused/defendant.11 A total of $106,068,100 ($97,473,400 net)12 was approved for the Mechanism, which succeeded the ICTY/ICTR for the biennium 2014–2015, and $196,000,000 was approved for the Mechanism13 in 2018–2019 by the United Nations General Assembly (UNGA). In contrast to the average annual budgets of the ICTR and ICTY14 of about $120 million (EUR 63.5 million), the budget of the Special Panels in the Courts of Bosnia and Herzegovina (BiH) in Sarajevo’s 2001 was only $6.3 million (4 million euros), out of which $6 million (EUR 3.8 million) was allocated to the OTP and only $300,000 (EUR 190,000) for the rest of the court.15 10

O’Donohue 2013, pp. 269–270. Skilbeck 2008, Article 2. 12 United Nations, 17 February 2016, A/RES/70/241. General Assembly Distr.: General Seventieth Session Agenda item 144 15-16995 (E) *1516995* Please recycle Resolution adopted by the General Assembly on 23 December 2015 [on the report of the Fifth Committee (A/70/632)] 70/241. Financing of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January and 31 December 1994. 13 United Nations, 5 July 2018, A/RES/72/258 B General Assembly Distr.: General 19 July 2018 18-11295 (E) 200718 *1811295* Seventy-second session Agenda item 148 Resolution adopted by the General Assembly on 5 July 2018 [on the report of the Fifth Committee (A/72/669/Add.2)] 72/258. Financing of the International Residual Mechanism for Criminal Tribunals. 14 Regular Budget of the ICTY: 2014–2015: $179,998,600; 2012–2013: $250,814,000; 2010–2011: $286,012,600 15 Cohen 2002 cited in Skilbeck 2008, Article 2. 11

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The hybrid SCSL was projected to complete its work within three years at a total of $56.2 million, less than half of the original budget prepared by the UN SecretaryGeneral.16 In March 2008, the hybrid ECCC, with only five defendants, budgeted $180 million (EUR 114 million) as its running cost, which translated to an allocation of $36 million (EUR 23 million) per accused/defendant. The ICTY and the ICTR were in fact the first war crimes court created by the UN and the first international war crimes tribunal since the Nuremberg and Tokyo tribunals. In leading the pioneering prosecution of 12 genocide cases before the ICTR, one of the two ad-hoc international criminal tribunals established since the end of the second world war, I was not only privy to many of the challenges encountered therein, but also tackled several novel issues never addressed before in international law. One of such challenges was that of procuring guilty pleas in the context of largescale international crimes. Noting that only a single defendant has pleaded guilty at the ICC since its inception in 2002,17 this challenge clearly still exists to this day. The inability of these international courts to secure guilty pleas from defendants charged before them must be seen in the context of the vast financial resources expended by the UN and the international donor community in prosecuting international crimes. In this regard, the ICTR Trial Chamber in sentencing Georges Ruggiu following his guilty plea in 2000, went to great lengths to applaud Ruggiu’s courage in pleading guilty and “sparing the ICTR a lengthy investigation and trial into his crimes”.18

11.2 Legal Framework for Guilty Plea Bargaining in International Criminal Law The plea-bargaining regime at the main international criminal courts and tribunals who have contributed to the development of the jurisprudence in this area19 is not only identical but derived mostly from the criminal procedure in common-law jurisdictions. In many civil law jurisdictions at the time,20 the admission of guilt by the defendant is simply part of the evidence to be considered and evaluated by the court.

16

The original budget proposal for the Special Court for Sierra Leone, which was prepared again by the UN Secretary-General with ICTY and ICTR in mind, was $114.6 million ($30.2 million for the first year, and US$84.4 million for the following two). When it became clear that voluntary contributions would not even come close to this figure, the budget was scaled down to half of that, or $56.2 million for the first three years of operation. 17 ICC, Prosecutor v. Ahmad Al Faqi Al Mahdi, Sentencing Judgment, 27 September 2016, ICC01/12-01/15. 18 ICTR, Prosecutor v. Gorges Ruggiu, Sentence Judgement, 1 June 2000, ICTR-97-32, para 188. 19 ICTR, ICTY and SCSL Rules of Procedure and Evidence 1994, Rule 62 bis; see also Rome Statute International Criminal Court 1998, Article 20, pp. 64–65. 20 French Criminal Code of Procedure (CCP) 2004, pp. 495–497; see also Taleb-Karlsson 2017.

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In fact, the two legal systems couldn’t differ more on this procedure.21 To that end, as a compromise in creating a blended solution to this issue, the Statute of the ICC makes reference to a procedure for the “admission of guilt”22 as opposed to a “guilty plea” which is used in the Statute of the ad-hoc Tribunals23 and identical Rules 62 of the Rules of Procedure and Evidence of both international tribunals. The provision for guilty pleas within these legal instruments, was designed to avoid lengthy and expensive international trials, involving complex and costly investigations and extensive witness protection and language support services. By pleading guilty to the crimes charged, the defendant, in most cases, obtains some concessions, which are beneficial to them and/or their immediate family. That said, such procedural short- cut cannot be allowed to infringe upon his/her rights to a fair trial. The waiver of the right to a trial by a defendant, is therefore only accepted when a Tribunal is satisfied that certain conditions have been met.24 For example, that the plea was made in full cognisance of its legal implications and ramifications and did not vitiate the defendant’s right to the presumption of innocence.25 The rules further provide for the defendant’s plea to be unequivocal. In other words, the Tribunal must be satisfied that the defendant is not, on the one hand, pleading guilty and on the other, raising a valid defence in law, which seeks to exculpate him and would in practical terms, nullify his plea.26 In this regard, Dražen Erdemovi´c pleaded guilty to a crime against humanity before the ICTY, following which, the Trial Chamber sentenced him to ten years imprisonment.27 The defendant appealed this sentence.28 In upholding his appeal, the Appeals Chamber remitted the case to a new Trial Chamber, holding that Erdemovi´c’s guilty plea was not informed. Similarly, Joao Fernandes pleaded guilty to murder before the East Timorese Special Panels having admitted to killing a village chief but asserted that he did so on the orders of a militia commander. Having accepted his guilty plea, the Special Panel sentenced him to 12 years imprisonment.29 In appealing both his conviction and sentence, Fernandes argued that he and his legal representative were unfamiliar with the guilty plea procedure and/or the consequences of pleading guilty. In particular, Fernandes challenged his conviction on the grounds that the factual allegations which formed the basis upon which the prosecution had accepted his guilty plea was that

21

ICC Prosecutor v. Ahmad Al Faqi Al Mahdi, Sentencing Judgment, 27 September 2016, ICC01/12-01/15, paras 21–26. 22 See Rome Statute of the International Criminal Court 1998, Article 65. 23 ICTR/ICTY. 24 ICTY, Dražen Erdemovi´ c, Appeal Judgement, 7 October 1997, IT-96-22-A. 25 In other words that the plea was made voluntarily and in full cognizance of the nature of the charge and its consequences. 26 ICTR, Dražen Erdemovi´ c, Appeal Judgement, 7 October 1997, IT-96-22-A. 27 ICTR, Dražen Erdemovi´ c, Sentencing Judgment, 29 November 1996, IT-96-22-A. 28 See Notice of Appeal of 23 December 1996. 29 Special Panel for Serious Crimes at Dili District Court, Prosecutor v. Joao Fernandes, Judgment, 25 January 2001, 01/00. C.G.2000, supra note 225, paras 12–15.

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he had acted under orders, and in that regard, the killing for which he was eventually convicted by the Panel did not result from his deliberate and premeditated action.30 In affirming Fernandes’ conviction, the Appeals court held that the fact that the defendant claimed that he had acted under someone else’s orders did not exclude his individual criminal responsibility for the crime charged.31 In a separate opinion, Appeals court Judge, Egonda-Ntende, found that the presiding judge in the lower court had failed to ensure that Fernandes understood the consequences of his guilty plea. In that regard, Egonda-Ntende observed that the presiding judge had merely asked Fernandes, who was an illiterate, if he understood the consequences of the plea, and the judge was satisfied when Fernandes responded, “yes, I am aware”. In Judge Egonda-Ntende’s view, merely repeating the words of the statute was insufficient to satisfy itself of the unequivocal nature of the plea; rather, EgondaNtende held that the presiding judge should have asked Fernandes a series of questions, the responses to which would have revealed whether Fernandes understood the consequences of his guilty plea.32 Judge Egonda-Ntende was also critical of the presiding judge’s conduct in ensuring that Fernandes’s plea was voluntary and informed. In that regard, Judge Egonda-Ntende held that the presiding judges’ questions relating to the voluntariness of the plea “could have been better framed.33 In addition, the Trial Chamber must satisfy itself that the facts agreed upon by the parties provide a true and sufficient basis for the crimes charged, and that the defendant participated in the commission of the said crimes. Examples of this can be found in the Milan Babi´c,34 Michel Bagaragaza35 and Joni Marques36 cases which are discussed further in this chapter. Finally, the Tribunal must be satisfied that the plea presented by the defendant is voluntary and not obtained following inducements made to the defendant by the OTP.

30

Ibid., para 13. Court of Appeal of East Timor, Joao Fernandes v. Prosecutor, Criminal Appeal, 29 June 2001, 2001/02, paras 4–5, 8. 32 Ibid. 33 Ibid. 34 ICTY, Prosecutor v. Babi´ c, Sentencing Judgment, 29 June 2004, IT-03-72. 35 ICTY, Prosecutor v. Bagaragaza, Sentencing Judgment, 5 November 2009, ICTR-05-86-S. 36 East Timor Special Panels for Serious Crimes, Prosecutor v. Joni Marques, Sentencing Judgment, 11 December 2001, 09/2000 supra note 702, paras 70, 892. Marque’s admissions even with respect to that count did not precisely match the prosecution’s allegations because Marques denied that he was the commander of Team Alfa, para 67. The panel apparently considered the charges and the admissions a close-enough fit, however, and it made its own finding that, despite his protestations to the contrary, Marques was in fact a commander, para 921. 31

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11.2.1 Plea Bargaining It is perfectly normal for a defendant to plead guilty to the crimes charged without seeking any corresponding concessions from the OTP.37 This is often referred to as an implicit plea bargain which is an established judicial practice where courts would impose a lower sentence on a defendant who pleads guilty rather than opt for a trial. With this type of plea, there is no need for an overt bargaining to take place between the parties. Until recently, “plea bargaining” was completely foreign to many civil law legal systems.38 In contrast, their system recognises the desire of defendants to make admissions of guilt.39 In these situations, especially before courts in national jurisdictions, defendants plead guilty on the expectation that the court or tribunal may discount their sentences based on pre-established sentencing tariffs.40 As is discussed further in this chapter, I find that the absence of sentencing tariffs in the international courts during their formative years, was a major dis-incentive on the part of the defendants to enter into plea-bargaining negotiations with prosecutors before these courts. For example, in April 1998, Jean Kambanda the former Prime Minister of Rwanda, executed a plea agreement with the OTP at the ICTR and indicated his willingness to plead guilty to genocide and crimes against humanity. His plea agreement clearly stated that, “no agreements, understandings, or promises had been made to

37 ICTY, Prosecutor v. Dražen Erdemovi´ c, Sentencing Judgment, 29 November 1996, IT-96-22. See also ICTY, Prosecutor v. Goran Jelisi´c, Sentencing Judgment, 14 December 1999, IT-95-10 “Br´cko”. 38 Recently, many civil law countries have adopted the guilty plea procedure. See for example the “Comparition sur reconnaissance préalable de culpabilité” (CRPC) is a pre-trial guilty plea procedure that was introduced in France in 2004. As enshrined in French Criminal Code of Procedure (CCP) 2004, Articles 495-7 to 495-16, this form of criminal prosecution for offences which carry a prison sentence up to 10 years, entitles the prosecutor to impose a sentence on the offender who has consented to the procedure and pleaded guilty beforehand. The guilty plea can be initiated by the prosecutor, the offender or his/her counsel. However, if the prosecution and the defence disagree, the decision rests with the prosecutor who thus has the final word in the matter. Once the offender has accepted the sentence—or ‘the plea-bargain’—a request is filed to the Court for the judge’s approval or rejection of the whole procedure. 39 ICC, Prosecutor v. Ahmad Al Faqi Al Mahdi, Sentencing Judgment, 27 September 2016, ICC01/12-01/15, paras 21–26. 40 See UK’s Criminal Justice Act of 1991, Section 28(1); see also UK’s Criminal Justice and Public Order Act 1994, Sections 48(1), 48(2). In R v Fearon (19J96) Crim. L.R 212, the British Court of Appeal held that it was highly desirable in every case where the defendant pleaded guilty for the sentencing Judge invariably to say in his remarks that his plea was considered. British case law further suggests that in determining the extent of the discount, the court may have regard to the strength of the case against the offender. Davis, 1980, 2 Cr App R (s) 168; see also Rwandan Organic Law No 08/96, 30 August 1996. Therefore, an offender who voluntarily surrenders and who admits to a crime which could otherwise not be proved, may be entitled to more than the usual discount. See Hoult 1990, 12 Cr App R (s) 180.

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Kambanda with respect to the sentence”.41 In other words, his plea agreement did not contain any recommendation for a discount in sentence for either his timely plea42 or indeed his proposed cooperation with the OTP.43 In addition, it is not always true that a defendant who pleads guilty will receive a lenient sentence. It is well accepted practice that there are situations where public policy considerations require that a lengthy sentence be imposed on a defendant even after a guilty plea.44 For instance, following Jean Kambanda’s guilty plea before the ICTR, in April 1998, the OTP recommended that the Tribunal impose a life sentence on the former Prime Minister of Rwanda. To my mind, the reasoning behind such a recommendation was that, if anyone were to get a life sentence following a plea to genocide, it should have been the prime minister and head of government in Rwanda at the time. Rather than request the Tribunal to impose a reduced sentence on Kambanda on account of his plea, the OTP, to ensure that other defendants would not be discouraged, suggested to the Tribunal that, it would be willing to support any application brought by Kambanda for pardon and/or commutation of his sentence on the basis of past current and future cooperation with the Prosecutor. In addition, it is trite that in cases where a defendant pleads guilty to secure a tactical advantage—often referred to as a tactical plea, such a defendant cannot expect to receive a generous sentence discount. Examples of tactical pleas could be seen in the Stevan Todorovi´c45 case and the Sikirica Case46 involving three defendants Dusko Sikirica,47 Damir Došen and Dragen Kolundžija. Similarly, where the defendant is caught red-handed and a plea of guilty was certain, it would be unusual for such a defendant to secure a discount.48 That said, in my experience, most guilty pleas to international crimes are obtained following a process of plea-bargaining which can take one of two forms: charge bargaining and/or sentence bargaining. What is however central to this pleabargaining process between the defendant, his legal representatives, and the OTP, is an implicit expectation that the Tribunal will display some leniency—in the form of 41 ICTR, Prosecutor v. Jean Kambanda, Sentencing Judgement, 4 September 1998, ICTR-97-23-A. See also Plea agreement between the OTP and Jean Kambanda 1998, paras 23–40. 42 It must be noted that Kambanda’s plea agreement was executed prior to the completion of any case before the ICTR Trial Chambers. Kambanda’s timely plea and his position as the head of government was therefore capable of setting a good example to others to follow and like was held in the Plavši´c case, would have aided and enhanced the reconciliatory value of such a plea. 43 He had provided over 90 hours of interview which the prosecutor described as invaluable to them in subsequent trials of other high-ranking government officials. 44 ICTR, Prosecutor v. Jean Kambanda, Sentencing Judgement, 4 September 1998, ICTR-97-23-A. 45 ICTY, Prosecutor v. Todorovic, Sentencing Judgment, 31 July 2001, IT-95-9/1-S. 46 ICTY, Prosecutor v. Sikirica, Sentencing Judgement, 13 November 2001, IT-95-8. 47 He admitted to the murder of one detainee, torturing and raping others, harassing, and confining others in inhumane conditions. 48 See Court of Appeal, R v Costen, 4 April 1989, 514/A2/88 ((1989) 11 Cr App R (S)); see also Court of Appeal, R v Hastings 1996, 1 Cr. App R (s) 167; Court of Appeal, Hollington 1985 82 Cr. App. R 281.

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sentence discount—in exchange for the defendant’s guilty plea. This in my experience, can be somewhat uncertain as the imposition of sentences on the defendant is completely at the discretion of the Tribunal. In any event, experience has shown that with international crimes, several factors, other than sentence discounts, are capable of motivating defendants to plead guilty. Factors such as the nature of the crimes themselves, the prosecution criteria, the background of defence counsel, the status, cultural and educational backgrounds of defendants themselves, are factors which may affect the likelihood of obtaining a guilty plea from defendants to international crimes. My experience at the ICTR was indicative of the fact that international prosecutors who seek to encourage defendants charged with international crimes to plead guilty, must assess a multiplicity of factors and in many cases, be strongly motivated to extend their concessions beyond the traditional promise of sentence discounts.49 A plea bargain between the OTP and the Defendant can take several forms. Sentence and charge bargaining are typical and the most widely utilised forms of this process. In a typical charge bargain, the OTP would agree to withdraw some charges—usually the most serious, in exchange for a plea to others with the aim of the defendant receiving a reduced sentence. Charge bargaining is common in domestic situations where criminal legislation classifies crimes into well-defined and distinct categories of crimes and prescribes a range of sentences for crimes.50 Most of the earliest pleas at the ICTY and ICTR, were devoid of charge bargaining and involved only sentence bargaining. It is my belief that this had a major impact on the outcome of such plea negotiations. To that end, it is as clear as night and day that, a defendant cannot expect to achieve a generous sentencing discount if he or she has not in fact obtained concessions with respect to the charges levelled thereof. To my mind, it is of little wonder that the former Prime Minister of Rwanda, Jean Kambanda, ended up with a life sentence having pleaded guilty to the crime of genocide. I am of the opinion that this was almost tantamount to professional negligence and/or a fundamental misunderstanding of the principles of criminal law or procedure to allow a defendant to plead guilty to the most severe offence known to mankind and expect him to receive concessions from judges in sentencing him for the said crime. Indeed, the only ICTR defendant who got away with the very lenient sentence of 15years imprisonment, having pleaded guilty to the crime of genocide was, Omar Serushago. That said, his cooperation with the OTP had resulted in the capture of most of the high-profile defendants by the OTP, including Jean Kambanda himself. He had also agreed to testify in the high-profile media trial involving four defendants, in line with his plea agreement. An important aspect of charge bargaining lies in the intrinsic link that exists between the bargained charge(s) and the factual allegations agreed upon by the parties as providing a true and sufficient basis for the crimes the defendant has agreed to 49

ICTR, Prosecutor v. Vincent Rutaganira, Sentence Judgment, 14 March 2005, ICTR-95-IC. The distinction between genocide and complicity in genocide; extermination and murder as crimes against humanity; also murder and manslaughter.

50

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plead to, and/or his or her mode of participation in the commission of the said crimes. Whilst this was not particularly problematic for the initial wave of guilty pleas at both the ICTY and ICTR, it became more prevalent in plea agreements in later years.51 This would be addressed as part of the discussions on the plea negotiations in the Rutaganira case where the defendant pleaded guilty based on facts which were less serious to those previously adduced in support of the charges.52 As the jurisprudence of the Tribunals evolved, this intrinsic link and the need to amend indictments to reflect the agreement of the parties as regards the defendant’s alleged culpable conduct and/or his/her mode of participation in the commission of crimes, became more apparent.53 Another issue that arose at the ICTR in the context of charge bargaining concerned the practical effect of the withdrawal by the OTP, of the charges in the indictment following a charge bargain, vis-a-vis the application of the non bis in idem (Double Jeopardy) principle,54 as was evident from differing positions held by the Trial Chambers in the Rutaganira and Nzabirinda cases. Whilst one Trial Chamber found that the said principle was applicable to charges withdrawn following a guilty plea, another found that the parties could not invoke the said principle based on the charges which had been withdrawn without a trial on the merits.55 When involved in sentence bargaining, the OTP would usually recommend that a Tribunal impose a narrow range of sentences in exchange for a plea and or the defendants’ cooperation in ongoing investigations and trials. Indeed, unless the Trial Chamber agrees to sentence a defendant within the range proposed by the OTP, the OTP will be unable to engage in such a process, as his recommendations are only as valuable to the extent that the Trial Chamber adheres to them. For example, in the 12-month period between October 2002 and 2003, judges at the ICTY began to impose much stiffer sentences outside the scope of those recommended by the parties. This was particularly true of the quite severe sentences imposed in the Obrenovi´c,56 Momir Nikoli´c,57 Dragan Nikoli´c58 and Milan Babi´c59 cases at the ICTY during the latter part of 2003. Consequently, the pleas before the ICTY started to reduce because defendants no longer had guarantees that they would receive the sentence discounts promised by the OTP.

51

ICTY, Prosecutor v. Babi´c, Sentencing Judgment, 29 June 2004, IT-03-72. ICTR, Prosecutor v. Rutaganira, Sentence Hearing, 7 January 2005, ICTR-95-1C-T, para 8. 53 Plea Agreement between the OTP and Vincent Rutaganira, 7 December 2004, paras 22–30, 35. 54 See Statute of the ICTR 1994, Article 9. 55 ICTR, Prosecutor v. Joseph Nzabirinda, Sentencing Judgment, 23 February 2007, ICTR-200177-T, p. 11. 56 ICTY, Prosecutor v. Dragan Obrenovi´ c, Sentencing Judgment, 10 December 2003, IT-02-60/2. 57 ICTY, Prosecutor v. Dragan Nikoli´ c, Sentencing Judgment 18 December 2003, IT-94-2. 58 Ibid. 59 ICTY, Prosecutor v. Babi´ c, Sentencing Judgment, 29 June 2004, IT-03-72. 52

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The evolution in the practice of the ICTY and to a limited extent the ICTR, also involved the commissioning and enhanced use of sentencing reports prior to the imposition of sentences on defendants, following their guilty pleas.60 The practice of the international criminal tribunals as reviewed in the next section of this chapter, is indicative of the fact that they have utilised a combination of all three forms of plea-bargaining procedures in securing guilty pleas from defendants. As already pointed out, the first phase of guilty pleas at both the ICTR and the ICTY featured implicit plea bargains. However, following the formulation of their respective completion strategies between 2003 and 2004, there was a shift from implicit to a more explicit form of charge and sentence bargaining featuring generous concessions from the OTP. In that regard, due to the pressure on both international tribunals to dispose of their cases more expeditiously in line with the said strategy, international prosecutors realized that the only way that they could provide defendants with adequate certainty that they would receive sentence discounts in exchange for their guilty pleas was to withdraw charges and factual allegations in their indictments which would fundamentally alter, both the factual and legal descriptions of their alleged criminal conduct.

11.2.2 Plea Bargain Agreements A plea bargain agreement is an agreement between the parties, reached at their own initiative without the contribution or encouragement of the Trial Chamber. Written plea agreements also ensure transparency, allowing the Judges (and in appropriate cases the public) to see what has been agreed between the Prosecution and the Defence. The plea agreement has no binding effect on a Trial Chamber, although submissions recommending it are made by both the OTP and the Defence. Whilst the agreement in no way binds the Trial Chamber, most Trial Chambers would take it into careful consideration in determining the sentence to be imposed on the accused. A typical plea agreement will outline the basis upon which the defendant admits guilt. To this end, the parties may reach an agreement regarding all of the charges in a case, or only with respect to some charges and not to others. An agreement may also include an admission of individual criminal responsibility pursuant to one or more applicable modes of liability, but not pursuant to other modes of liability. This would be discussed further in this chapter. As would become apparent from the discussions in this chapter, a typical plea agreement would recite the elements of the crimes charged and which the Prosecution would be required to establish at trial, the mode or modes of liability alleged by the 60

ICTY, Prosecutor V. Stevan Todorovi´c, Sentencing Judgement, 31 July 2001, IT-95-9/1-S, para 18. See also ICTY, Prosecutor v. Predrag Banovi´c, Sentencing Judgement, 28 October 2003, IT-0265/1-S, paras 77–80. See also ICTY, Prosecutor v. Milan Simi´c, Sentencing Judgement, 17 October 2002, IT-95-9/2-S, para 100. See also ICTY, Prosecutor v. Dragan Nikoli´c, Sentencing Judgment, 18 December 2003, IT-94-2, para 42.

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Prosecution and accepted by the defendant, and a list of rights waived by the accused. It would also contain a declaration by the defendant that he or she enters into the plea agreement voluntarily and after sufficient consultation with his or her counsel. A typical plea agreement would confirm that the accused has been represented by counsel at all stages of his or her discussions with the Prosecution unless the accused has voluntarily waived his or her right to counsel on the record. As has been the practice at the ICTY and ICTR, plea agreements may also contain details outlining the defendant’s cooperation with the OTP’s investigations and prosecutions. Typically, most plea agreements will address the issue of sentencing. The parties to such an agreement may propose and/or agree to jointly recommend a particular sentence or a sentence within a particular range, or to not oppose a certain sentence or a sentence within a particular range. Most importantly, plea agreements may also address the facts that the defendant accepts as a factual basis for his plea. In rejecting the initial plea agreement reached by the parties in the Milan Babi´c case, having examined the said agreement and the statement of facts attached thereto, the Trial Chamber “expressed doubts about the accuracy of the legal characterisation of the Appellant’s acts in the plea agreement as an aider and abettor”.61 Consequently, the parties met again and agreed to file a new plea agreement, in which the appellant’s participation in the crimes charged in the Indictment was qualified as co-perpetratorship.62 This was also true of the Paul Bisengimana guilty plea agreement which I negotiated in 2005. In that regard, the Trial Chamber had initially refused to accept Bisengimana’s guilty plea agreement with the OTP, holding that the factual discrepancies between allegations contained in the amended indictment and those outlined as the factual basis upon which his plea agreement was based had “an impact on the equivocal or unequivocal nature of the plea,”63 resulting in a further amendment to the indictment, wherein I withdrew allegations of Bisengimana’s direct participation in the killing of Tutsi civilians and substituted them with those that were indicative of his role in aiding and abetting the crimes charged in order to reflect his culpable conduct as agreed by the parties.64 In practical terms, in order to protect the fair trial rights of the defendant pleading guilty, the Trial Chamber must ensure that by entering into a plea agreement with the OTP, the defendant understands that, he is giving up the right to plead not guilty and require the OTP to prove charges in the indictment beyond a reasonable doubt at a fair and impartial public trial; the right to prepare and put forward a defence to the charges at a public trial; the right to be tried without undue delay; the right to be tried in his presence and to defend himself in person or through legal assistance of his own choosing at trial; the right to examine at trial, or have examined, witnesses against him and to obtain the attendance and examination of witnesses on his behalf at trial under the same conditions as witnesses against him; the right not to be compelled 61

ICTY, Prosecutor v. Babi´c, Sentencing Judgment, 29 June 2004, IT-03-72. ICTY, Prosecutor v. Babi´c, Appeal Judgment, 18 July 2005, IT-03-72, para 3. 63 ICTR, Prosecutor v. Bisengimana, 17 November 2005, ICTR-2000-60-I, p. 26. 64 Ibid. Amended Indictment, 23 November 2005. See also Transcripts of 17 November 2005, p. 26. 62

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to testify against himself or to confess guilt; the right to testify or to remain silent at trial; and the right to appeal a finding of guilt or to appeal any pre-trial rulings.65

11.3 The Divergence in the Number of Pleas at the ICTY and ICTR In my view, unlike in domestic jurisdictions, guilty pleas in the context of international crimes are relatively rare in occurrence. The reason for this is obvious. International crimes are often derived from deep rooted extremist political, religious, or ethnic ideologies. To that end, defendants who plead guilty are often viewed as betraying such ideologies. It must be noted that there was a complete absence of such pleas in the International Military Tribunal at Nuremberg66 and/or the International Military Tribunal for the Far East.67 With little to no precedent guiding us, my colleagues and I were involved in pioneering the plea-bargaining negotiations at the ICTY and the ICTR between 1996 and 2010. It is with this backdrop that the evolution of the practice of plea-bargaining in the context of wide-spread international crimes must be viewed. Even though, for the most part, the sister tribunals shared the same prosecutor68 and were until 2003,69 one and the same office,70 the experience of the OTP at the two international criminal tribunals—the ICTY and the ICTR—could not have been more different. This was not only evident from the number of guilty pleas obtained by the OTP before the two courts, but also in the calibre of defendants offering such pleas therein. Other variables included: the divergence in the concessions offered by the OTP to the defendants in return for such pleas; the various methods utilised by the OTP in charge and sentence bargaining during plea negotiations; and reaction of the judges to proposals by the parties as to sentencing as contained in the various plea agreements executed between the OTP, the defendants and their legal representatives. In the following paragraphs, I seek to examine several factors behind the divergence in the approach of the OTP, that of the defendants, their legal representatives and/or that of the judges, in connection with the plea agreements negotiated by the 65

ICTY, Prosecutor v. Darko Mrða, Sentencing Judgement, 31 March 2004, IT-02-59. Germany. 67 Tokyo, Japan. 68 Mrs. Carla Del Ponte (Switzerland) was Prosecutor of the ICTR and ICTY September 1999 to 2003. Mrs. Carla Del Ponte succeeded, Justice Louise Arbour (Canada) who served in that capacity between September 1996 and 1999. Arbour had succeeded Justice Richard Goldstone (South Africa) who served as Prosecutor of the ICTY and ICTR between August 1994 and September 1996. 69 On 28 August 2003, the Security Council by its Resolution 1503 amended Article 15 of the Statute of the ICTR so that as of 15 September 2003 the International Criminal Tribunal for Rwanda had its own Prosecutor. Justice Hassan Jallow (The Gambia) served as the ICTR Prosecutor between 2003 and 2015, and as Prosecutor of the International Residual Mechanism for Criminal Tribunals from 2012 to 2016. 70 De Wet 2008. 66

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OTP before international tribunals over a period of 20 years,71 specifically from 1996, when the OTP obtained its first guilty plea from Dražen Erdemovi´c72 at the ICTY, to 1998, when the ICTR obtained its first guilty plea from the former Prime Minister of Rwanda, Jean Kambanda,73 and 2009, when the ICTR obtained its last guilty plea from Michel Bagaragaza.74 I trace the evolution of guilty pleas at the hybrid criminal courts namely: The Kosovo and the East Timor Panels and seek to examine whether they faced the same challenges faced at the ad-hoc Tribunals. I also examine the only guilty plea obtained by the OTP at the ICC against Ahmad Faqi Al Mahdi in 2016.75 I have divided the guilty pleas obtained by the OTP at the two international tribunals into two distinct periods: the guilty pleas during the pre-completion strategy phase and the guilty pleas during the post-completion strategy phase. I make the point that the initial pleas presented by the defendants were essentially implicit plea bargains, devoid of any concessions by the OTP. With the passage of time, the pleabargain process at the Tribunals evolved to include both the charge and the sentence bargaining, following the realization that there exists an intrinsic link between the two. I trace this evolution in the jurisprudence of international criminal law as formulated by the ICTR and the ICTY where, as a formative member of the OTP, I was uniquely placed to gain the necessary insight into the plea-bargaining process adopted therein during my 12-year long career which spanned from 1998 to 2010. During the first phase of guilty pleas76 at the ICTY, seven defendants pleaded guilty over a nine-year period77 whereas over a period of two years,78 three defendants pleaded guilty at the ICTR.79 During the second phase of guilty pleas at the ICTY,80 eleven defendants pleaded guilty over a three-year period,81 whereas, during the second phase of guilty pleas at the ICTR,82 six defendants pleaded guilty over a three-year period.83

71

The ICTY, ICTR and ICC. ICTY, Prosecutor v. Dražen Erdemovi´c, Sentencing Judgment, 29 November 1996, IT-96-22. 73 ICTR, Prosecutor v. Jean Kambanda, Sentencing Judgement, 4 September 1998, ICTR-97-23-A. 74 ICTY, Prosecutor v. Bagaragaza, Sentencing Judgment, 5 November 2009, ICTR-05-86-S. 75 ICC, Prosecutor v. Ahmad Al Faqi Al Mahdi, Sentence Judgement, 27 September 2016, ICC01/12-01/15. 76 1993–2002. 77 Dražen Erdemovi´ c, Goran Jelisi´c, Stevan Todorovi´c, Sikirica et al. 78 They were: Jean Kambanda, Omar Serushago, and Georges Ruggiu. 79 1998–2000. 80 2002–2005. 81 Biljana Plavši´ c, Predrag Banovi´c, Momir Nikoli´c, Dragan Obrenovi´c, Dragan Nikoli´c, Darko - Miodrag Joki´c, Miroslav Deronji´c, Ranko Ceši´ ˇ c, Milan Babi´c, Miroslav Bralo. Mrda, 82 2004–2009. 83 Vincent Rutaganira, Paul Bisengimana, Joseph Serugendo, Joseph Nzabirinda, Juvenal Rugambarara and Michel Bagaragaza. 72

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11.4 Guilty Pleas—The Pre-completion Strategy Phase 11.4.1 ICTY The first guilty plea at the ICTY was obtained from Dražen Erdemovi´c.84 Erdemovi´c had voluntarily surrendered to the OTP in 1996, following which, he pleaded guilty to crimes against humanity at the very first opportunity he had to do so.85 Erdemovi´c was, in essence, a relatively low-ranking foot soldier in the Bosnian Army who admitted to his role in the massacre of 7000 Bosnian Muslims at Srebrenica. He did not request an offer of leniency and the OTP did not offer him any. On 29 November 1996, the Trial Chamber sentenced him to (10) ten years imprisonment.86 Having successfully appealed the sentence imposed on him by the Tribunal, the Appeals Chamber directed that the defendant be allowed to replead with full knowledge of the consequences of his plea before another Trial Chamber.87 On 14 January 1998, a new Trial Chamber took a fresh plea from the defendant following which, he pleaded guilty to the charge of a violation of the laws or customs of war and was on 5 March 1998, sentenced to a term of 5 years imprisonment.88 This in my view was extremely lenient considering the high number of victims affected by this crime. That said, it must be highlighted that the uniqueness of the sentence imposed on this defendant centred around the fact that Erdemovi´c pleaded duress, and in conceding to the plea, the OTP accepted that the existence of duress would have entailed his immediate execution had he refused to kill. The second guilty plea at the ICTY was obtained from Goran Jelisi´cin October 1998.89 Jelisi´c was the de facto commander of the Luka prison camp. He was arrested in January 1998 following which, he pleaded guilty to 31 counts of war crimes and crimes against humanity at the earliest opportunity. No offer of leniency was requested or offered. The OTP recommended that he be sentenced to life imprisonment. The defendant was sentenced to 40 years imprisonment on 19 October 1999.90 Jelisi´c’s plea was followed by that of Stevan Todorovi´c91 who was a former Chief of Police and member of the Bosnian Serb Crisis Staff for Bosanski Sama´c municipality. Having challenged the legality of his arrest, Todorovi´c had requested and obtained an order92 against the OTP, compelling the disclosure of some 84

ICTY, Prosecutor v. Dražen Erdemovi´c, Sentencing Judgment, 29 November 1996, IT-96-22. Ibid. 86 Ibid. 87 ICTY, Prosecutor v. Dražen Erdemovi´ c, Appeal Judgement, 7 October 1997, IT-96-22-A. 88 ICTY, Prosecutor v. Dražen Erdemovi´ c, Sentencing Judgment, 5 March 1998, IT-96-22-Tbis. 89 ICTY, Prosecutor v. Goran Jelisi´ c, Trial Judgement, 19 October 1999, IT-95-10-T. 90 ICTY, Prosecutor v. Goran Jelisi´ c, Sentencing Judgement, 14 December 1999, IT-95-10. 91 ICTY, Prosecutor v. Stevan Todorovi´ c, Sentencing Judgement, 31 July 2001, IT-95-9/1-S. 92 ICTY, Prosecutor v. Todorovi´ c, 13 December 2000, IT-95-9/1, transcripts at 786. 85

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confidential material from the NATO/SFOR forces on the circumstances of his arrest.93 His request triggered a plea bargain with the OTP wherein he was offered generous concessions in return for his plea to one count of persecution as a crime against humanity94 and the subsequent withdrawal of his request for disclosure of confidential material. The Trial Chamber imposed a 10-year sentence on him, having acknowledged his publicly articulated statement of remorse to the effect that he desired to channel his remorse into positive action by contributing to reconciliation in Bosnia and Herzegovina.95 The Todorovi´c plea was interesting in that, in my view, the inability of the OTP to fulfil its disclosure obligations to the defendant in this case, should in fact have resulted in the complete withdrawal of the charges levelled against him and not in a plea bargain. Todorovi´c’s plea was followed by what can best be described as a tactical plea of those other three defendants charged in the Sikirica case.96 Dusko Sikirica,97 was the prison commander at the Keraterm detention camp. Damir Došen and Dragen Kolundžija were shift leader and commander at the Keraterm camp, respectively. The trio pleaded guilty to all and/or some of five forms98 of persecution as a crime against humanity having admitted to varying levels of culpability almost at the end of their trial.99 In sentencing Dusko Sikirica, the Trial chamber found that as commander, he failed in his duty to prevent outsiders from coming into the camp to mistreat those detained therein. In addition, the Tribunal found that Sikirica was aware of the inhumane conditions at the camp, including insufficient food and water, inadequate medical care and treatment, overcrowding and lack of opportunities for fresh air and exercise, and lack of proper hygiene arrangements in the camp. The Trial Chamber further found that Sikirica knew that detainees were being beaten, raped, sexually assaulted, and killed and consequently sentenced him to 15 years imprisonment.100

93

Todorovi´c had been kidnapped following which he was handed over to the NATO/SFOR forces in Bosnia. 94 In connection with the murder one person, the beating of 12 others, ordering and participating in the un-lawful detention of non-Serb civilians, ordering subordinates to torture and interrogate detainees, and ordering 6 men to perform fellatio on one another on three different occasions. 95 ICTY, Prosecutor v. Stevan Todorovi´ c, Sentencing Judgement, 31 July 2001, IT-95-9/1-S; the OTP’s recommendation was for a range between 3 and 12 years. 96 ICTY, Prosecutor v. Sikirica, Sentencing Judgement, 13 November 2001, IT-95-8. 97 He admitted to the murder of one detainee, torturing and raping others, harassing, and confining others in inhumane conditions. 98 There were charged with persecution as a crime against humanity through the following enumerated acts; murder, torture and beating, sexual assault and rape, harassment humiliation, and psychological abuse, and confinement in inhumane conditions. 99 The trial had been conducted for 33 sitting days during which 34 witnesses were called by the OTP and 31 by the Defence. 86 Exhibits had been produced in the case. 100 10 May 2002, transferred to Austria to serve the remainder of his sentence; credit was given for time served since 25 June 2000; early release granted on 21 June 2010.

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Having found that co-defendant, Damir Došen had permitted the persecutions of, and condoned violence towards detainees in the camp, including beatings, rape, sexual assaults, and killings, as well as harassment, humiliation and psychological abuse and therefore, abused his position of trust, the Trial Chamber, sentenced him to five years.101 Dragan Kolundzija pleaded guilty to one count of persecution, a crime against humanity, on 4 September 2001 as part of a plea agreement with the OTP. Pursuant to the agreement, the OTP agreed to drop the other four counts against Kolundzija. The Trial Chamber found that by continuing as a shift leader at the camp, despite being aware of the conditions therein, Kolundžija abused his position of trust and sentenced him to three years imprisonment.102 In terms of the concessions granted to these three defendants by the OTP, the plea agreement was indicative of the fact that the OTP had recommended that the Trial Chamber impose the following sentences on them: Dusko Sikirica, 10–17 years; Damir Došen, five-seven years; and Dragen Kolundzija, three-five years.103 As the pleas came at a late stage and did not save the OTP any time and/or resources, the OTP did not offer the defendants any significant concessions. In my view, the OTP’s recommended sentence following a plea by Dusko Sikirica and his co-defendants in the Sikirica case, was somewhat severe, especially when compared to some of the sentences imposed on some of those who worked in prison camps following full blown trials. For example, Zilatko Aleksovsk,104 a Croatian prison camp commander was sentenced to only two and a half years following his conviction for war crimes for the unlawful treatment of Muslim prisoners at Kaonik prison in the Lašva Valley area in Bosnia and Herzegovina. His sentence was subsequently increased to seven years imprisonment on appeal.105 The OTP’s recommended sentence of between five and seven years following a plea by Damir Došen, was, in my view, harsh when contrasted with Aleksovsk’s seven-year sentence following a full-blown trial. Regarding his culpable conduct, Aleksovsk was found to have subjected approximately 500 non-Croat prisoners to physical and psychological maltreatment. In addition, he was found to have ordered and/or aided and abetted violent acts and participated in the selection of detainees to be used as human shields and trench diggers, knowing that he was putting the lives of those entrusted to his custody at risk. Furthermore, he was found to have participated directly having provided additional encouragement to his subordinates to commit similar acts. As a superior, the 101

10 May 2002, transferred to Austria to serve the remainder of his sentence; credit was given for time served since 25 October 1999; 28 February 2003, granted early release. 102 Credit was given for time served since 7 June 1999; 5 December 2001, granted early release. 103 See Plea Agreement between OTP and Dragen Kolundzija, 7 September 2001. 104 ICTY, Prosecutor v. Zlatko Aleksovski, Trial Judgement, 25 June 1999, IT-95-14/1. 105 ICTY, The Prosecutor v. Zlatko Aleksovski, Appeal Judgment, 24 March 2000, IT-95-14/1-A. The Appeals Chamber also agreed with the Prosecution that Trial Chamber I should have found Aleksovski responsible not only for the mistreatments that occurred inside the Kaonik prison but also for those that occurred outside of it. The Appeals Chamber revised the sentence to 7 years of imprisonment.

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Trial Chamber found that he was aware of the offences being committed, yet he failed to take any steps either to prevent them from occurring or to punish the perpetrators thereof. However, unlike Aleksovsk, Damir Došen’s culpable conduct was limited to a finding that he permitted the persecutions of, and condoned violence towards detainees in the camp, including beatings, rape, sexual assaults, and killings, as well as harassment, humiliation and psychological abuse thus rendering the OTP’s recommendation somewhat severe. ˇ Similarly, Hazim Deli´c,106 the deputy commander of Celebi´ ci prison camp was sentenced to 20 years imprisonment having been convicted of murdering two prisoners and raping and torturing two others. On 20 February 2001, sentencing was remitted by the Appeals Chamber to a new Trial Chamber for possible adjustment following which, his sentence was reduced to 18 years imprisonment.107 Therefore, the OTP recommended sentence of between 10 and 17 years for Dusko Sikirica was only one year lower than that which was imposed on Hazim Deli´c following a full trial. In addition, the evidence adduced in the case was indicative of the fact that Dusko Sikirica’s involvement in the commission of crimes at the Keraterm detention camp were a lot more serious than those of Hazim Deli´c which ˇ took place at Celebi´ ci prison camp which involved a lesser degree of harm to the victims. In any event, the general conditions prevailing at the Keraterm detention ˇ camp were far worse than those at the Celebi´ ci prison camp. 108 Like Dragen Kolundzija, Dragoljub Prcac109 also held a position of authority as an administrative aide at the Omarska camp. He was convicted and sentenced to fiveyears imprisonment for having participated as a member of a joint criminal enterprise for the crimes committed in Omarska following a 14-month trial.110 The five-year term of imprisonment imposed on Prcac was in fact within the range proposed by the OTP for Dragen Kolundzija in the Sikirica case. Dragoljub Prcac had in fact been called out of retirement to serve as the former deputy commander of the Omarska camp, in the opstina of Prijedor. In his capacity as deputy, Prcac held a position of authority and was superior to all others in the camp except the commander. Prcac was accused of being criminally responsible for the acts of his subordinates in committing crimes against humanity, including murder, torture, rape, inhumane acts, and unlawful detention in violation of the laws and customs of war. Although Prcac argued that his tasks at the camp were strictly administrative, the Trial Chamber found that he was fully aware of the violence in the camp and of the crimes being committed there and that he almost never intervened, thereby actively contributing to the system of persecution which had been set up therein. 106

ICTY, Prosecutor v. Hazim Delic, Appeal Judgement, 20 February 2001, IT-96-21-A. ICTY, Prosecutor v. Hazim Delic, Sentencing Judgement, 9 October 2001, IT-96-21-Tbis-R117. 108 ICTY, Prosecutor v. Dusko Sikirica, Damir Dosen, Dragen Kolundzija, Sentencing Judgement, 13 November 2001, IT-95-8-S. 109 ICTY, Prosecutor v. Miroslav Kvocka et al., Trial Judgment, 2 November 2001, IT-98-30/1-T. 110 Ibid. 107

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Following the pleas in the Sikirica case, Stevan Todorovi´c’s co-defendant, Milan Simi´c,111 a paraplegic with grave health issues which had a delaying effect on his joint trial, pleaded guilty to two counts of torture as a crime against humanity for encouraging and participating in the killing of five men. Following Todorovi´c’s plea, a trial had commenced against the remaining four co-accused persons. Milan Simi´c pleaded guilty eight months after the said trial began. In exchange for his plea, the OTP agreed to recommend that he should be sentenced to a term of not more than five years and chose to withdraw seven counts against him,112 following which, he was sentenced to five years imprisonment. Simi´c had demonstrated his remorse in a public statement before the Tribunal where he stated as follows: “Although it was immediately clear to me that it was impossible to make up for what I have done, my conscience led me to at least extend my apologies to the people whom I had hurt. I have done that, but in addition to my sincere regret and remorse and personal apology that I extended to them, I was still haunted by guilt and it continues so until this day.”113 At first sight, Dražen Erdemovi´c’s five-year sentence in 1998 for war crimes, having admitted his role in the massacre of 7000 Bosnian Muslims at Srebrenica, was, in my view, almost scandalous, especially when compared to the one imposed on Goran Jelisi´c, barely six months later. Goran Jelisi´c had admitted to killing five persons at the Brˇcko police station and another eight persons at the Luka camp, shooting a male detainee in the back of the head with a "Scorpion" pistol, systematically killing Muslim detainees at the Brˇcko police station and the Luka camp, including hitting a female victim with a police baton after which he shot and killed her. He was sentenced to 40 years imprisonment, which to my mind was somewhat severe.114 Even though Goran Jelisi´c held a position of authority as the de facto commander at the Luka camp, the gravity of his offences as indicative from the number of victims affected by his crimes, could be considered as relatively small/when compared to those of Dražen Erdemovi´c. That said, the acceptance by the OTP that Erdemovi´c was, in essence, a foot-soldier who was acting under some form of duress, may, in my view, have played a significant role in the low sentence he received.115 The 40-year sentence imposed on Goran Jelisi´c was even more difficult to reconcile, when contrasted with the 15-year sentence imposed on Dusko Sikirica, the prison commander at the Keraterm detention camp, who admitted to having known

111

ICTY, Prosecutor v. Milan Simi´c, Sentencing Judgement, 17 October 2002, IT-95-9/2-S. The OTP withdrew the charge of persecution as a crime against humanity for his role as the administrative head in Bosanski Sama´c where several non- Serb civilians were held in inhumane conditions. 113 ICTY, Prosecutor v. Milan Simi´ c, Sentencing Hearing, 4 May 2001, IT-95-9/2-S. 114 The OTP’s recommendation was that he be sentenced to life imprisonment. 115 ICTR, Prosecutor v. Omar Serushago Appeal Judgement, 6 April 2000, ICTR-98-39-A, paras 7, 27. 112

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that detainees gathered therein, were being beaten, raped, sexually assaulted, and killed.116 Dusko Sikirica’s 15-year sentence following his guilty plea, was quite severe when compared to that of Zilatko Aleksovsk, another prison camp commander who was sentenced on appeal to only seven years imprisonment, following his conviction for war crimes, for the unlawful treatment of Muslim prisoners at Kaonik prison in the Lašva Valley area in Bosnia and Herzegovina.117 The 40-year sentence imposed on Goran Jelisi´c was even more difficult to reconˇ cile when compared to that of Hazim Deli´c, the deputy commander of Celebi´ ci prison camp who was sentenced to 18 years imprisonment on appeal, having been convicted of murdering two prison detainees and raping and torturing two other detainees. The fact that Goran Jelisi´c had only offered his guilty plea after the closure of the OTP’s case against him, may have had some bearing on the sentence eventually imposed on him. In addition, the Trial Chamber seemed to have lowered the weight of Goran Jelisi´c’s guilty plea on the basis that he failed to demonstrate genuine remorse. As was the case with the former Rwandan Prime Minister, Jean Kambanda at the ICTR, Goran Jelisi´c’s conduct in this regard proved very costly. It was clear that despite the compelling nature of the evidence in the case, the OTP’s desire to speed up the trial remained its primary focus. When compared with that of Damir Došen and Dragen Kolundzija, Simi´c’s sentence was quite severe considering that the most serious crime he pleaded to was being involved in the beating of five men. In addition, although this could be viewed as a tactical plea by the defendant, it was clearly one that was of immense benefit to the OTP and the Tribunal as a whole, and which in my view, should have been viewed by the Trial Chamber as deserving of a more generous concession.

11.4.2 ICTR Unlike the seven (7) pleas at the ICTY, during the first phase of guilty pleas at the ICTR,118 only three (3) defendants pleaded guilty. Each guilty plea was unique in terms of the calibre, and stature of the defendants. The trial chambers’ approach to each of them was also unique. Jean Kambanda, who was the Prime Minister in the interim government that presided over Rwanda during the 1994 genocide, admitted to actively implementing the genocide through a variety of ways.119 After his arrest in Kenya in July 1997, he immediately started negotiations with OTP officials. In April 1998, he executed a plea agreement with the OTP following which, he indicated his willingness to plead guilty to genocide and crimes against humanity. 116

The OTP’s recommended sentence range following a plea was between 10 and 17 years. He had initially been sentenced to only 2 and a half years following his trial. 118 1998–2000. 119 ICTR, Prosecutor v. Jean Kambanda, Sentencing Judgement, 4 September 1998, ICTR-97-23-A. 117

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Jean Kambanda received a life sentence which he appealed and lost. However, the previous review of guilty pleas tendered at the ICTY prior to that of Kambanda, leaves one with the distinct impression that Kambanda did not attempt to negotiate nor help himself in securing a generous sentencing concession at his sentencing hearing. In that regard, when given the opportunity by the judges at his sentencing hearing to explain in public, his views on reconciliation in Rwanda and role he could play in it as outlined in his “manifesto for peace and reconciliation”, he refused to avail himself of that opportunity—which of course was well within his right, but not terribly endearing to a sentencing bench.120 The importance of a public display of remorse by defendants pleading guilty in the context of widespread international crimes, becomes more apparent further in this chapter. In my view, Kambanda’s apparent indifference at his sentencing hearing sent the wrong signals to the Trial Chamber presided over by a Senegalese judge from a civil law system, completely unfamiliar with the practice of guilty pleas and/or the role of counsel in the common-law system, representing and speaking on behalf of the defendant in mitigation. When compared to Simi´c and Todorovi´c above, by refusing the opportunity to display remorse and contrition at his own sentencing hearing, despite being given the opportunity to do so, Kambanda conveyed the distinct impression that he lacked genuine remorse. The Appeals Chamber upheld both his conviction and sentence and the future of securing such guilty pleas at the ICTR became very grim. Kambanda’s plea was followed by that of Omar Serushago,121 a low-ranking militia leader who had been exiled in Kenya following the genocide. Serushago had been cooperating with the OTP prior to his voluntary surrender to the custody of the ICTR in July 1998. In fact, based on information provided by Serushago, the ICTR arrested fugitives residing in Kenya including Jean Kambanda and Georges Ruggiu. On 14 December 1998, Serushago pleaded guilty at his initial appearance to the crimes of genocide; murder, extermination, and torture as crimes against humanity. Unlike Kambanda’s, Serushago’s plea agreement contained an element of charge bargaining, as the defendant refused to plead guilty to rape as crime against humanity following which the OTP withdrew the said charge.122 However, like Kambanda’s, Serushago’s plea agreement did not contain any overt recommendations by the OTP to the Trial Chamber regarding a range of sentences. The prosecutor indicated that this was at the discretion of the Tribunal. However, in its sentencing brief and during the sentencing hearing, the OTP provided the Tribunal with some basis for consideration for leniency. In so doing, the OTP outlined to the Tribunal that the defendant’s cooperation had been substantial and recommended a sentence of not less than 25 years imprisonment. This 25-year

120

Cruvellier 2010, p. 43. ICTR, Prosecutor v. Omar Serushago, Sentencing Judgement, 5 February 1999, ICTR-98-39-S. 122 ICTR, Prosecutor v. Omar Serushago, Appeal Judgement, 6 April 2000, ICTR-98-39-A, para 2. 121

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recommendation was made at a time when the prosecutor had concurrently recommended a life sentence for each of the three accused persons whose trials had just ended.123 By contrast, the OTP’s 25-year recommendation seemed like a very generous discount at the time, considering the accused had pleaded to having committed genocide, the “crime of crimes”. On 5 February 1999, Omar Serushago was convicted on four of the five counts charged and sentenced to a single term of 15 years imprisonment. His sentence was upheld on appeal. Thereafter, he testified in the media trial at the ICTR, in line with the undertakings in his plea agreement. In my view, the imposition of a 15-year sentence on Serushago translated to three things—his voluntary surrender, his substantial assistance to the OTP in effecting the arrest of other high-profile suspects in Kenya and his willingness to testify in the media trial. Indeed, only two ICTR defendants—Seromba and Ntakirutimana had received shorter sentences following their convictions for genocide at the end of a full-blown trial. Serushago appealed the sentence imposed on him on the basis that in imposing the said sentence, the Trial Chamber did not recognise the true importance of his guilty plea serving as an “encouragement to other suspects or unknown perpetrators to come forward, contribution to the settlement of the wider issues of accountability, reconciliation and the establishment of the truth, and judicial economy”.124 Serushago’s plea was followed by that of Georges Ruggiu,125 a Belgian/Italian journalist employed at the RTLM radio station in Kigali during the genocide. Ruggiu was the first non-Rwandan to be detained by the OTP at the ICTR in connection with the Rwandan genocide. During the events of 1994, in various RTLM broadcasts, Ruggiu incited members of the civilian Hutu population to kill their Tutsi counterparts. Ruggiu thereafter published a book in which he claimed that the broadcasts were in fact geared towards mobilising Rwandans against the RPF and not members of the civilian Tutsi population. Ruggiu had initially joined ranks with his co-defendants in the media case, having claimed to be convinced of his innocence. He however claimed to have heard a fellow detainee at the detention centre in 1999, addressing other detainees therein, to the effect that the genocide had in fact been planned. According to him, this revelation caused him to reflect on and recognise his responsibility to plead guilty. Having entered into a plea agreement with the OTP, Ruggiu was severed from the indictment charging him along with his co-defendants, following which, on 15 October 2000, he pleaded guilty to direct and public incitement to commit genocide; and persecution as crimes against humanity. In return, the OTP withdrew several other charges against him. 123

ICTR, Prosecutor v. Clément Kayishema and Obed Ruzindana, Appeal Judgement, 1 June 2001, ICTR-95-1-A; ICTR, Prosecutor v. Jean-Paul Akayesu, Trial Judgement, 2 September 1998, ICTR-96-4-T. 124 ICTR, Prosecutor v. Omar Serushago, Appeal Judgement, 6 April 2000, ICTR-98-39-A, para 7. 125 ICTR, Prosecutor v. Gorges Ruggiu, Sentence Judgement, 1 June 2000, ICTR-97-32.

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Like those of Serushago and Kambanda, Ruggiu’s plea agreement contained no overt promises as to possible recommendations by the OTP to the Trial Chamber on sentence. However, in exchange for his cooperation in the trial of his former coaccused in the media case, Ruggiu’s plea was clearly motivated by the Prosecutor’s commitment to support his application to serve his prison sentence in Italy, his home country. As with the Serushago sentencing hearing, the OTP requested for the imposition of a sentence of not less than 20 years imprisonment. The 20-year recommendation by the OTP in the Ruggiu case, was by far the most lenient recommendation by the OTP and was indicative of a clear discount from the life sentences, which had become the norm at the ICTR following a trial.126 On 1 June 2000, Ruggiu was sentenced to a term of 12 years imprisonment, making it the lowest sentence ever received by a defendant at the ICTR as at that time. Indeed, the 12-year sentence was a significant discount considering that all the other three co-defendants in the media trial were imprisoned for the remainder of their lives following a 3-year long trial. Clearly, following Serushago, the Trial Chamber in the Ruggiu case intended to distinguish Kambanda from other defendants at the ICTR, and therefore encouraged more guilty pleas therein. Whilst the Serushago Trial Chamber did not expressly indicate that the discount granted was attributable to his timely plea and/or his cooperation with the OTP in securing the arrest of several high-profile targets, the Ruggiu Trial Chamber, went to great lengths to applaud Ruggiu’s courage in pleading guilty and “sparing the ICTR a lengthy investigation and trial into his crimes”. More importantly, to distinguish it from that of Kambanda, the Trial Chamber also commented on Ruggiu’s acknowledgement of his mistakes, which according to it, constituted “a healthy application of reason and sentiment”. In that regard, unlike the case of Kambanda who refused to express remorse in person, the Trial Chamber in the Ruggiu case was obviously impressed by his statements of remorse and regret.127 Surprisingly, the Trial Chamber sent a clear signal that it intended to use Ruggiu as a model and a signal to others that “some form of consideration” would be given to defendants who pleaded guilty “in order to encourage other suspects at large to come forward”.128 Unlike Kambanda, the Serushago and Ruggiu pleas indicated a clear willingness by the OTP to consider substantial sentence bargaining discounts for timely guilty pleas. Ruggiu and Serushago cases also indicated that the OTP was willing to offer additional benefits to defendants in return for cooperation. Furthermore, the statements by the Trial Chamber in Ruggiu were designed to encourage other defendants with misgivings, to come forward with pleas. Despite this, it took the ICTR almost five years to obtain its next guilty plea

126

ICTR, Prosecutor v. Gorges Ruggiu, Sentence Judgement, 1 June 2000, ICTR-97-32 pp. 188– 190. 127 Ibid., paras 69–82. 128 Ibid., para 188.

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11.4.3 Summary of First Phase at the ICTY and the ICTR The first phase of guilty pleas at the ICTY, spanning the first nine years of its mandate, was indicative of the fact that the OTP did not grant any generous concessions to defendants who pleaded guilty to crimes. Out of the seven defendants who pleaded guilty, the first two, Erdemovi´c and Jelisi´c, received no concessions and in fact, they did not request any. Only two defendants, Todorovi´c and his co-defendant, Simi´c, received substantial sentence discounts but these were cases where the OTP was constrained by both practical and logistical reasons to offer such discounts. Proceeding to trial with Simi´c, would have resulted in long delays to a joint trial involving four other accused persons which the OTP was eager to avoid. Similarly, Todorovi´c’s trial would have resulted in breaches of confidentiality based on existing agreements between the OTP and NATO at the time. By all accounts, it is my view that the other three (3) defendants in the Sikirica case, did not receive terribly good deals from the OTP as it was reluctant to offer such low ranking accused persons generous sentence discounts. In any event, none of the accused persons agreed to cooperate with the OTP in any future investigations or prosecutions. In my view, not only was the OTP reluctant to grant generous concessions during this first phase, but it also practically got away with murder, in the Simi´c guilty plea following its reluctance to fulfil its disclosure obligations to the defendant. The non-existent disclosure of evidentiary material which arose in the Todorovi´c case, unearths some of the challenges the OTP faced in prosecuting international crimes—need to protect sources and/or witnesses. In this regard, in certain circumstances, confidential information provided to the OTP by third parties and institutional organizations such as the NATO for example, were provided on conditions incompatible with requirements of a fair trial. In these circumstances, as was the case in Todorovi´c, the OTP might have had access to information which it was unable to disclose to the defence based on ‘public interest immunity’ issues. However, from my experience as a criminal defence lawyer in the UK, the ethical thing for the OTP to have done in such circumstances would have been to withdraw the charges against the defendant rather than enter into a plea bargain with him.129 Usually, failure on the part of the prosecution in the UK, to comply with its disclosure obligations would have amounted to an abuse of process and might have been considered by UK courts as so serious an infringement, that, to allow the proceedings to continue against such a defendant, would offend the court’s sense of justice and propriety and/or would undermine public confidence in the criminal justice system and bring it into disrepute.

129

See UK Attorney General’s Guidelines on Disclosure for investigators, prosecutors, and defence practitioners (2013) https://www.gov.uk/government/publications/attorney-generals-gui delines-on-disclosure-2013. Accessed 28 April 2021.

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In DPP v Petrie,130 it was noted that in some cases: “A wholesale failure on the part of the prosecution to comply with its disclosure obligations may require the prosecution to offer no evidence, in accordance with the professional code for prosecutors and the guidance set out in the CPS/ACPO Disclosure Manual.” “The possibility of such an outcome serves to illuminate that only rarely will recourse to an abuse of process argument be necessary or appropriate.” The UK Court of Appeal in The Crown vs. R & Ors131 concluded that, courts must ensure that those charged with criminal offences do not simply procrastinate and seek to undermine the prosecution by creating hurdles to overcome all in the hope that, at some stage, a particular hurdle will cause it to fail. With regards to the first phase of guilty pleas at the ICTR, it is my view that many defendants and their counsel were somewhat wary of the process. Some of their misgivings may be attributed to perceived lack of sentence discounts in Kambanda’s case. It could also be attributed to the existence of an ideology and strong belief held by such high calibre defendants at the ICTR that they were not guilty of the crimes charged. Clearly, the severe sentence imposed on Kambanda discouraged many defendants who might have considered entering a plea from doing so. That said, it is my view that, it was incumbent of the Trial Chamber in Kambanda to have gone to great lengths to distinguish the severe sentence imposed on him following his guilty plea, from those of others likely to follow in his footsteps. Indeed, it was clear from the subsequent pleas in Todorovi´c and Simi´c, that defendants and their counsel had recognised the importance of public statement of remorse following guilty pleas. This trend became a major feature of sentencing hearings at the ICTY during the second phase of guilty pleas therein. Indeed, the circumstances of the Serushago and Ruggiu pleas were quite unique and could hardly be compared to any other. Omar Serushago was an OTP informant prior to becoming a defendant and the outcome of the Kambanda plea was unlikely to deter him. Serushago brought himself to the attention of the Tribunal and offered to help in apprehending others when he voluntarily surrendered to the OTP. Serushago’s appeal against his sentence following the low sentence imposed on Erdemovi´c at the ICTY, was rejected by the Appeals Chamber based on Serushago’s own admission in his plea agreement that he was the de facto leader of the Interahamwe, and an elite member of society who commanded respect, engendered fear and exerted power in his community. This was not the case with Erdemovi´c, who to all intents and purposes, had been accepted by the OTP as having functioned as a foot soldier.132 Ruggiu on the other hand, being the only foreigner detainee at the ICTR, obviously had no real stake in the genocide and had been misled by others into believing the extremist Hutu ideology. Additionally, during the three plea agreements of the first phase of ICTR pleas, the Prosecutor was unwilling to exercise discretion in 130

DPP v Petrie, [2015] EWHC 48 (Admin). The Crown vs. R & Ors [2016] 1 Cr.App.R. 20, CA. 132 ICTR, Prosecutor v. Omar Serushago, Appeal Judgement, 6 April 2000, ICTR-98-39-A, paras 7, 27. 131

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negotiating explicit charge or sentence bargains and never offered charge withdrawal or sentence bargains in exchange for pleas. Similarly, it was apparent from all plea agreements during this phase that the OTP was not, at least openly, willing to agree to propose a range of sentences to the Trial Chamber. Therefore, it must be said that the Prosecutor’s ability to propose a range of sentences to the Trial Chamber at this time would have been greatly curtailed because of the dearth of concluded cases and lack of reliable jurisprudence that the parties could base proposals for sentences for the offences in the Statute. Obviously, the idea then, and justifiably so, was to leave the matter to the broad discretion of the judges.133 In spite of his naivety and/or that of his counsel in not displaying remorse publicly, I find that the sentence imposed on Kambanda despite his timely plea should have reflected a discount, if only on account of the “insider” information he was acknowledged to have provided to the OTP on the interim government’s role in the implementation of the genocide which the OTP acknowledged as being “invaluable”.134 On the other hand, it is arguable that the same factors which justified a reduced sentence might have also convinced the OTP to recommend a harsh one. As head of government, Kambanda was the second highest-ranking Rwandan political authority during the genocide and consequently, was involved in the planning and implementation of the genocide. It can therefore be argued that if anyone deserved a life sentence, it was Kambanda. It must be said that the timing of his plea may also have been a factor responsible for the severe sentence imposed on him. Having been convicted at the very outset of the mandate of the Tribunal, his case generated much media publicity.135

11.5 The Completion Strategies of the ICTY and ICTR—An Incentive to Plea Bargaining? 11.5.1 ICTY During the second phase of guilty pleas at the ICTY, 136 13 defendants pleaded guilty over a five-year period.137 133

Combs 2007. ICTR, Prosecutor v. Jean Kambanda, Sentencing Judgement, 4 September 1998, ICTR-97-23-A, p. 12. 135 Combs 2006. 136 2002–2007. 137 Biljana Plavši´ ˇ c, Predrag Banovi´c, Momir Nikoli´c, Dragan Obrenovi´c, Dragan c, Ranko Ceši´ - Miroslav Bralo, Ivica Raji´c Nikoli´c, Milan Babi´c, Miodrag Joki´c, Miroslav Deronji´c, Darko Mrdja, and Dragan Zelenovi´c. 134

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Clearly the highest profile defendant at the ICTY at the time, Biljana Plavši´c138 was co-president of the then Serbian Republic. In that regard, just like with Jean Kambanda, she was very instrumental in promoting and implementing the Bosnian Serbs ethnic cleansing campaign, which resulted in the expulsion and death of hundreds of thousands of Bosnian Muslims and Croats. In October 2002, she pleaded guilty to persecution as a crime against humanity following which, the OTP withdrew charge of genocide against her. The OTP recommended a sentence of between 15 and 25-years imprisonment following which, the Trial Chamber sentenced her to 11 years in prison.139 This sentence was, in my view, extremely lenient. ˇ c,140 who was a member Plavši´c’s guilty plea was followed by that of Ranko Ceši´ of the Bosnian Serb Police Unit, which was tasked with arresting specified nonSerbs and bringing them to the Br´cko police station or to the Luka Prison Camp. He admitted to having killed 10 people and forcing two brothers to perform fellatio on one another. The defendant was charged with six (6) counts of crimes against humanity, five (5) of which, charged murder and rape. Six (6) others charged him with violations of the laws or customs of war (which concern the same events), including murder and humiliating and degrading treatment. The OTP recommended between 13 and 18 years imprisonment. He pleaded guilty to all 12 counts and was sentenced to a term of 18 years.141 ˇ c’s plea was followed by that of Predrag Banovi´c,142 who was a guard at Ceši´ the Keraterm camp. He pleaded guilty to persecution as a crime against humanity, having admitted to assisting others to beat five (5) prisoners to death and participating in 27 other fatal beatings and shootings. The OTP recommended eight (8) years imprisonment, which the Trial Chamber imposed, despite having found Banovi´c’s position of superiority over the detainees, the vulnerability of the victims, and the context in which the crimes were committed, as reflecting the gravity of the offence. Relevant mitigating factors were Banovi´c’s guilty plea, his expression of remorse, and his personal circumstances.143 Momir Nikoli´c was an assistant commander for security and intelligence in the Bosnian Serb army.144 Nikoli´c was at the centre of the crimes that took place following the fall of Srebrenica in July 1995. He pleaded guilty to persecution, as a crime against humanity, having admitted to participating in the murder of over 7000 Bosnian Muslims, the cruel and inhumane treatment of Bosnian Muslim civilians, including beatings in and around Potocari and in detention facilities in Bratunac; the terrorising of Bosnian Muslim civilians in Srebrenica and Potocari on 13 July 1995; the destruction of personal property and effects belonging to the Bosnian Muslims; and the forcible transfer of the entire Bosnian Muslim population from 138

ICTY, Prosecutor v. Biljana Plavsic, Sentencing Judgement, 27 February 2003, IT-00-39&40/1. Ibid. 140 ICTY, Prosecutor v. Ranko Ceši´ ˇ c, 11 March 2004, IT-95-10/1. 141 Ibid. 142 ICTY, Prosecutor v. Predrag Banovi´ c, Sentencing Judgement, 28 October 2003, IT-02-65/1-S. 143 Ibid. 144 ICTY, Prosecutor v. Momir Nikolic, Sentencing Judgement, 2 December 2003, IT-02-60/1-S. 139

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the Srebrenica enclave. The OTP recommended a sentence range of between 15 and 20 years following which, the Trial Chamber sentenced him to a term of 27 years imprisonment.145 His sentence was however reduced to 20 years by the ICTY Appeals Chamber.146 Dragan Obrenovi´c was a former Bosnian Serb senior officer and commander in both the Yugoslav People’s Army (JNA) and the Bosnian Serb Army (VRS).147 He was also Momir Nikoli´c’s co-defendant. He pleaded guilty to persecution, as a crime against humanity, for his involvement in implementation of the VRS leadership’s plan to kill mostly Bosniak civilians and prisoners of war in Srebrenica. He was sentenced to a term of 17 years imprisonment which was within the 15–20-year range recommended by the OTP.148 Dragan Nikoli´cwas the commander of the Sušica detention camp in the municipality of Vlasenica, eastern Bosnia and Herzegovina.149 He pleaded guilty to persecution, murder, rape and torture as crimes against humanity, having admitted to participating in the killing of nine (9) persons while serving as the commander of the Susiša Prison Camp. In December 2003, the Trial Chamber sentenced him to a term of 23 years imprisonment despite the OTP’s recommendation of 15 years.150 In determining Nikoli´c’s sentence, the Trial Chamber considered that the acts of the accused were of enormous brutality and continued over a relatively long period of time. In addition, the Trial Chamber found that they were not isolated acts, but an expression of systematic sadism, which the accused apparently enjoyed. Furthermore, the Trial Chamber found that Nikoli´c abused his power, particularly vis-à-vis female detainees by subjecting them to humiliating conditions in which they were emotionally, verbally, and physically assaulted and forced them to fulfil the accused’s personal whims. Due to the seriousness and viciousness of the beatings carried out by Nikoli´c, the Trial Chamber considered his conduct as being tantamount to the highest level of torture. The said sentence was nonetheless reduced on appeal to 20 years imprisonment.151 Milan Babi´c,152 a Croatian Serb politician who served as the first president of the Republic of Serbian Krajina, pleaded guilty to persecution as a crime against humanity following which, he was sentenced to 13 years imprisonment in June 2004. This was despite a recommendation by the OTP for imprisonment for a term of 11 years.153 His 13-year sentence was upheld on appeal.154 145

Ibid. See Appeals judgment of 8 March 2006. 147 ICTY, Prosecutor v. Dragan Obrenovi´ c, Sentencing Judgment, 10 December 2003, IT-02-60/2. 148 Ibid. 149 ICTY, Prosecutor v. Dragan Nikoli´ c, Sentencing Judgment, 18 December 2003, IT-94-2. 150 Ibid. 151 ICTY, Prosecutor v. Dragan Nikoli´ c, Appeal Judgment, 5 February 2005, IT-94-2. 152 ICTY, Prosecutor v. Babi´ c, Sentencing Judgment, 29 June 2004, IT-03-72. 153 Ibid. 154 ICTY, Prosecutor v. Babi´ c, Appeal Judgment, 18 July 2005, IT-03-72. 146

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Miodrag Joki´c155 was the commander of the Ninth Naval Sector (VPS) Boka, Montenegro. He had previously surrendered voluntarily to the Tribunal on 12 November 2001 and was on 20 February 2002 granted provisional release. On 27 August 2003, he pleaded guilty to six (6) counts of aiding and abetting six war crimes. In exchange for his guilty plea, his cooperation with the OTP, and the fulfilment of all his obligations under the Plea Agreement, the OTP recommended the imposition of a single sentence of 10 years imprisonment. He was sentenced to seven (7) years of imprisonment.156 Miroslav Deronji´c157 was a leading Bosnian Serb political figure in and around the Bosnian town of Bratunac. He gave the orders to the Bratunac Territorial Defence, including the police forces, to attack and partially burn the nearby, undefended village of Glogova. As a result, 65 Muslim civilians were killed, Bosnian Muslim homes, private property, and the mosque were destroyed, and a substantial part of Glogova was razed to the ground. He cooperated with the OTP having testified in proceedings before the Tribunal, including the cases against Momir Nikoli´c, Radislav Krsti´c, Vidoje Blagojevi´c et al., as well as in the cases against Momˇcilo Krajišnik and Slobodan Miloševi´c. He pleaded guilty to persecution as a crime against humanity in 2004 and was sentenced to 10 years imprisonment as recommended by the Prosecutor.158 - 159 was a member of the so-called “intervention squad”, a special Darko Mrda Bosnian Serb police unit in the town of Prijedor, Bosnia and Herzegovina. On 24 July 2003, he pleaded guilty to war crimes and persecution as a crime against humanity for participating in the executions of more than 200 Bosnian Muslims. Together with the - personally participated in the unloading, guarding, other members of the squad, Mrda escorting, shooting, and killing of more than 200 unarmed men at Kori´canske Stijene. Only 12 men survived the massacre. He agreed to cooperate with the OTP and his plea helped to establish the truth surrounding the crimes committed against non-Serbs. On 31 March 2004, he was sentenced to 17 years imprisonment.160 Miroslav Bralo161 was a member of the “Jokers”, a military police unit of the Croatian Defence Council, which operated primarily in the Lašva Valley region in central Bosnia and Herzegovina. On 19 July 2005, he pleaded guilty to seven counts of war crimes and crimes against humanity. Bralo admitted to having committed a range of appalling crimes including killing five (5) people and assisting in the killing of 14 Bosnian Muslim civilians, nine of whom were children. He admitted to having brutally raped and tortured a Bosnian Muslim woman and imprisoned her for approximately two months to be further violated at the whim of her captors. The Trial 155

ICTY, Prosecutor v. Miodrag Joki´c, Sentencing Judgement, 18 March 2004, IT-01-42/1. Ibid. ICTY, Prosecutor v Miodrag Jokic, Appeal Judgement, 30 August 2005, IT-01042/1-A. 157 ICTY, Prosecutor v. Miroslav Deronji´ c, Sentencing Judgement, 30 March 2004, IT-02-61. 158 ICTY, Prosecutor v. Miroslav Deronji´ c, 30 March 2004, IT-02-61. See Dissenting Opinion of Judge W. Schomburg. 159 ICTY, Prosecutor v. Darko Mrða, Sentencing Judgement, 31 March 2004, IT-02-59. 160 ICTY, Prosecutor v. Darko Mrða, Sentencing Judgement, 31 March 2004, IT-02-59. 161 ICTY, Prosecutor v. Miroslav Bralo, Sentencing Judgment, 7 December 2005, IT-95-17-S. 156

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Chamber believed that it was noteworthy that Bralo admitted to crimes that he was not originally charged with and made efforts to atone for his crimes by engaging in community work and assisting in the location of the remains of some of his victims. Bralo was sentenced to 20 years imprisonment.162 Ivica Raji´c163 was a former commander of units of Bosnian Croat soldiers based in Kiseljak, Bosnia and Herzegovina. He commanded forces that attacked and looted the village of Stupni Do, which resulted in the murder of at least 37 Bosnian Muslim civilians and the destruction of the village. The forces Raji´c commanded also attacked the nearby town of Vareš and detained about 250 Bosnian Muslim men, physically and mentally abusing their families and other inhabitants, and sexually assaulting the women. On 26 October 2005, he pleaded guilty to seven (7) counts of war crimes. He significantly cooperated with the OTP providing and authenticating key documents and confirming numerous important facts.164 Raji´c was sentenced to 12 years imprisonment.165 Dragan Zelenovi´c166 was a Bosnian Serb soldier and de facto military policeman in the town of Foˇca, Bosnia and Herzegovina. On 17 January 2007, he pleaded guilty to seven charges of torture and rape as crimes against humanity and as violations of the laws or customs of war, against several Bosnian Muslim women and girls following the take-over of Foˇca by Serb forces. In that regard, he admitted to having raped and tortured several detained Muslim women and girls, including a 15-year-old. Zelenovi´c also admitted to personally committing nine further rapes, eight of which were qualified by the Trial Chamber as both torture and rape. He further admitted to two instances of rape through co-perpetratorship, and one instance of torture and rape through aiding and abetting. Four of the rapes he admitted to having taken part in, were gang rapes, committed together with three or more other perpetrators. In one of those instances, he participated as aider and abettor in the gang rape of a victim by at least ten soldiers, which was so violent that the victim lost consciousness. As part of the plea agreement in February 2007, Dragan Zelenovi´c agreed to provide truthful and complete information and to testify at any proceedings before the ICTY. He was sentenced to 15 years imprisonment.167

11.5.2 Summary and Conclusion on Guilty Pleas at the ICTY It is plausible to conclude that the guilty plea agreements negotiated and executed between October 2002 and 2003 coincided with the intense pressure brought to bear

162

Ibid. ICTY, Prosecutor v. Ivica Raji´c, Sentencing Judgement, 8 May 2006, IT-95-12. 164 See Plea Agreement between the OTP and Ivica Rajic, 25 October 2005. 165 ICTY, Prosecutor v. Ivica Raji´ c, Sentencing Judgement, 8 May 2006, IT-95-12. 166 ICTY, Prosecutor v. Dragan Zelenovic, Sentencing Judgment, 4 April 2007, IT-96-23/2-S. 167 ICTY, Prosecutor v. Dragan Zelenovic, Sentencing Judgment, 4 April 2007, IT-96-23/2-S. 163

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by the international community on both ICTY/ICTR to complete their work by preestablished deadlines, thus making the efficient disposition of the cases before them, an absolute necessity. Between the end of 2002 and 2003, many, if not all these guilty pleas, involved lenient sentence recommendations by the OTP, which the Trial Chambers for the most part, acceded to. This period, at least as far as the ICTY was concerned, also saw the OTP giving generous concessions to defendants in return for substantial cooperation with on-going investigations and trials. ˇ c’s168 crimes were committed at the Br´cko police station and the Ranko Ceši´ Luka Prison Camp where Goran Jelisi´c served as de facto commander. The crimes he admitted to committing were in fact comparable to those committed by Jelisi´c. However, the OTP requested for life imprisonment following Jelisi´c’s plea, whilst ˇ c’s plea agreement, the OTP recommended between 13 and 18 years in Ranko Ceši´ imprisonment following which, he was eventually sentenced to 18 years imprisonˇ c, whose position in the chain of command was somewhat lower ment. Granted, Ceši´ to that of Jelisi´c, had agreed to cooperate by providing information to the OTP. That said, to my mind, these reasons still could not account for the vast difference in the tariffs both men received. The 11-year sentence imposed on Biljana Plavši´c169 who was by far the highest profile defendant at the ICTY at the time, was completely inconsistent with her role in promoting and implementing the Bosnian Serbs ethnic cleansing campaign, which resulted in the expulsion and death of hundreds of thousands of Bosnian Muslims and Croats. Similarly, the OTP’s reluctance to reflect the totality of her alleged criminal conduct by not proceeding on the genocide charge against her, beggars belief, talk less of the OTP’s recommendation of a sentence of between 15 and 25- 17-year sentence in years imprisonment. The same could be said of Darko Mrda’s July 2003, for his involvement in the executions of more than 200 Bosnian Muslims which was the subject of widespread criticism from victim groups.170 Predrag Banovi´c’s crimes had been committed at the same location where Dusko Sikirica and Damir Došen, two of the three co-defendants in the Sikirica case had committed theirs. However, the disparity between the 17 years recommended by the OTP for Dusko Sikirica, having only admitted to killing one person at the same location and that of eight years recommended for Banovi´c, whose crimes were significantly more serious in gravity, was, in my view, completely inconsistent with the jurisprudence prevailing at the time. Banovi´c’s crimes were not only clearly more serious, but they involved multiple victims. The only logical explanation why the OTP would have recommended a term of eight years in this case would have been to distinguish Banovi´c diminished authority in the pecking order at the Keraterm camp, from that which was held by Dusko Sikirica. In addition, Banovi´c’s 8-year sentence for his direct participation in the killing at least five people at the Keraterm camp was a little more than that which Damir

ˇ c, 11 March 2004, IT-95-10/1. ICTY, Prosecutor v. Ranko Ceši´ ICTY, Prosecutor v. Biljana Plavsic, Sentencing Judgement, 27 February 2003, IT-00-39&40/1. 170 Combs 2006, p. 98. 168 169

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Došen received for his passive role in killing at the same camp.171 In that regard, the Trial Chamber sentenced Damir Došen to a term of five years imprisonment having only found him to have condoned violence towards detainees in the Keraterm camp. In addition, it must be observed that, Banovi´c’s plea agreement required him to cooperate with the OTP, an obligation, which was not required of the three defendants in the Sikirica case. That said, despite the fact that the plea agreement had indicated that Banovi´c would provide substantial assistance to the OTP’s investigations, during the sentencing hearing, the OTP had in fact disclosed to the Trial Chamber, that the cooperation they had received from Banovi´c172 was not substantial. In truth, the sentencing recommendations by the OTP between the end of 2002 and the early part of 2003 were so lenient that, by the end of 2003, those recommendations ceased to have any influence on the Trial Chambers. Consequently, shortly after it handed Momir Nikoli´c a 27-year jail term, the same Trial Chamber sentenced his co-defendant Dragan Obrenovi´c173 to a term of 17 years imprisonment following his guilty plea. This was within the 15–20-year range recommended by the OTP. Shortly after that, a different ICTY Trial Chamber handed down a 23-year prison sentence to Dragan Nikoli´c174 following his guilty plea to participating in the killing of nine persons in his capacity as the commander of the Susiša Prison Camp. This was outside the 15-year sentence recommended by the OTP. Similarly, the Trial Chamber in Milan Babi´c exceeded the 11-year recommendation of the OTP by two years. In departing from the OTP’s recommended sentences in the Momir Nikoli´c, Dragan Nikoli´c and Milan Babi´c cases outlined above, the Trial Chamber went to great lengths to explain why it had, on each occasion, departed from the recommended sentence range. In the Momir Nikoli´c case, the Trial Chamber emphasized that the defendant had been evasive when testifying in the trial of his co-defendants.175 In Milan Babi´c, having sentenced him to 13 years imprisonment, Trial Chamber held that a term of no more than 11 years “would not do justice”.176 Similarly, the Trial Chamber in the Dragan Nikoli´c case indicated that it was imposing a more severe sentence because the “brutality, the number of the crimes committed and the underlying intention to humiliate and degrade would render a sentence such as that recommended by the prosecution unjust”.177 In a deliberate attempt to encourage future pleas, the Trial Chamber went out of its way to state that the defendant, Dragan Nikoli´c would have received a life sentence had he not 171 At the same time, another ICTY defendant, Mitar Vasiljevi´ c who like Banovi´c participated in the killing of 5 persons were sentenced to 20 years having been convicted following a trial. 172 ICTY, Prosecutor v. Predrag Banovi´ c, Sentencing Judgement, 28 October 2003, IT-02-65/1-S, para 59. 173 ICTY, Prosecutor v. Dragan Obrenovi´ c, Sentencing Judgment, 10 December 2003, IT-02-60/2. 174 ICTY, Prosecutor v. Dragan Nikoli´ c, Sentencing Judgment, 18 December 2003, IT-94-2. 175 ICTY, Prosecutor v. Momir Nikolic, Sentencing Judgement, 2 December 2003, IT-02-60/1-S, para 156. 176 ICTY, Prosecutor v. Babi´ c, Sentencing Judgment, 29 June 2004, IT-03-72. 177 ICTY, Prosecutor v. Dragan Nikoli´ c, Sentencing Judgment, 18 December 2003, IT-94-2, para 281.

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pleaded guilty.178 Clearly outraged at the feeling that his client had been betrayed by the OTP’s failure to support the defendant’s subsequent appeal against the sentence imposed, counsel for the defendant, observed that the OTP’s conduct in that regard, “will be noted by those whose duty it is to advice on the issue of making a plea agreement with the Prosecutor”.179 Based on the previous rate of guilty pleas at the ICTY between 2003 and early 2004, it is fair to opine that the diminished interest in guilty pleas at the ICTY since mid-2004 could be traced to sentences imposed in the Momir Nikoli´c, Dragan Nikoli´c and Milan Babi´c cases between the end of 2003 and early 2004. Indeed, this was a clear sign from the Trial Chamber that there was some displeasure at the parties’ recommendations in the various plea agreements. In Momir Nikoli´c’s case, the Trial Chamber indicated that the enhanced sentence imposed was due to the lack of candour displayed by the defendant whilst testifying for the OTP in other cases. Consequently, defendants no longer had the requisite certainty that they will receive the sentence discounts they had bargained for. To that end, what was of paramount importance for defendants intending to plead guilty, was the ability to reduce, as far as possible, their likely terms behind prison bars. It was clear that once recommendations by the OTP to the Trial Chambers no longer provided them with any certainty as to the sentence they might receive, defendants will opt to take their chances at trial. Following the sentencing of Miroslav Deronjic, Judge W. Schomburg, in his separate opinion concluded that the defendant deserved a sentence of not less than 20 years imprisonment on account of the facts presented by the OTP, which indicated that he was “clearly a high ranking perpetrator who had committed heinous and long planned crimes”.180 Such sentiments may, in my view, have been responsible for the disparity in the sentences imposed on Momir Nikoli´c and his co-defendant, Dragan Obrenovi´c. In July 2005, another guilty plea was obtained from a low-level offender Miroslav Bralo181 whose case would probably have been transferred to the internationalised war crimes courts in Bosnia and Herzegovina, had he not pleaded guilty. Like many defendants at the ICTR and ICTY, the mere prospect of a trial in Rwanda or Bosnia would have been most undesirable and Miroslav Bralo and his lawyers would have been very eager to avoid that. Interestingly, Miroslav Bralo’s plea agreement with the OTP contained no recommendations on sentencing. Following his plea to eight counts of crimes against humanity, the Trial Chamber found that his crimes are of an extremely serious and brutal nature. Therefore, in the absence of any mitigating circumstances, the Trial Chamber would have sentenced him to at least 25 years imprisonment. However, considering his timely guilty plea prior to trial, the Trial Chamber sentenced him 178

ICTY, Prosecutor v. Dragan Nikoli´c, Sentencing Judgment, 18 December 2003, IT-94-2. Combs 2006, p. 99. 180 ICTY, Prosecutor v. Miroslav Deronji´ c, Sentencing Judgement, 30 March 2004, IT-02-61. See Dissenting Opinion of Judge W. Schomburg. 181 ICTY, Prosecutor v. Miroslav Bralo, Sentencing Judgment, 7 December 2005, IT-95-17-S. 179

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to a term of 20 years imprisonment, which was subsequently upheld on appeal.182 It would seem as though the defendant managed to obtain a sentencing discount of only five years following his guilty plea. The Trial Chamber’s comments regarding the timing of Bralo’s guilty plea prior to his trial must be contrasted to the Trial Chamber’s comments in Dragan Nikoli’s case. In Dragan Nikoli, the OTP submitted that he voluntarily entered a plea of guilty prior to the commencement of trial proceedings”, although not at the very first opportunity available. Having been arrested in 2000, Dragan Nikoli pleaded guilty only after three years of detention and just prior to the hearing of the testimonies by six deposition witnesses, some of whom were old and in poor health. However, the Trial Chamber held that an accused is under no obligation to plead guilty and held that the “lateness” of Dragan Nikoli´c’s guilty plea could not be considered to be to his detriment.183 The Trial Chamber further held that in contrast, his “late” change to a guilty plea, i.e. 11 years after commission of the crimes, could be regarded as a consequence of a thorough analysis and reflection by the Accused of his criminal conduct, which reveals his genuine awareness of his guilt and a desire to assume responsibility for his acts. Arguably, the stiffer sentence regime imposed by the Trial Chamber in late 2003 was partially due to the extremely critical and negative publicity engendered by the guilty pleas and generous sentencing discounts in the 12-month period between October 2002 and 2003, particularly that of President Biljana Plavši´c. Indeed, victim groups were extremely critical of the lenient sentences imposed on Plavši´c, who, by virtue of her position, was seen by many to have borne the greatest responsibility for the crimes in the Serbian Republic.184 Consequently, such a huge responsibility should have been reflected in the sentence imposed upon her, as was the case with the former Rwandan Prime Minister, Jean Kambanda in 1998. With the notable exception of the Miroslav Bralo plea in 2005, it was evident from at least seven of the plea agreements negotiated at the ICTY between mid-2003 and 2007, that the OTP had begun to struggle with the evidence and credibility of prosecution witnesses in many of the ongoing trials of high profile defendants and in that regard, had actively sought to enter into plea bargaining negotiations with low ranking defendants in return for insider information and intelligence which would be useful to them in concluding these trials. This was particularly true of the Banovi´c case in 2003, wherein the OTP stated that the defendant would provide substantial assistance to their investigations. Similarly, ˇ c’s plea agreement in 2004, indicated that he was willing to cooperate with Ranko Ceši´ the OTP. Also, Miodrag Joki´c’s185 plea agreement in August 2004 was in exchange for his cooperation with the OTP, and the fulfilment of all his obligations under the

182

Ibid. ICTY, Prosecutor v. Miroslav Bralo, Appeal Judgment, 2 April 2007, IT-95-17-A. ICTY, Prosecutor v. Dragan Nikoli´c, Sentencing Judgment, 18 December 2003, IT-94-2, para 234. 184 Sito-Sucic 2003; Kebo 2003; Combs 2006. 185 ICTY, Prosecutor v Miodrag Jokic, Appeal Judgement, 30 August 2005, IT-01042/1-A. 183

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Plea Agreement.186 Similarly, in 2014, Miroslav Deronji´c187 cooperated with the OTP having testified in proceedings before the Tribunal, including the cases against Momir Nikoli´c, Radislav Krsti´c, Vidoje Blagojevi´c et al., as well as in the cases against Momˇcilo Krajišnik and Slobodan Miloševi´c. - 188 also agreed to cooperate with the OTP and his In March 2004, Darko Mrda plea was found to have helped establish the truth surrounding the crimes committed against non-Serbs. In 2005, Ivica Raji´c189 significantly cooperated with the OTP providing and authenticating key documents and confirming numerous important facts.190 Finally, in 2007, Dragan Zelenovi´c191 agreed to provide truthful and complete information and to testify at any proceedings before the ICTY. Contrary to the negative trend established by the Trial Chambers at the end of 2003, of not keeping within the OTP recommended sentence range, it was clear that in exchange for their cooperation with the OTP, and the fulfilment of all their obligations under their various plea agreements, the Trial Chambers in the seven sentencing trials outlined above, kept well within the range of sentences recommended by the OTP. This was significant and was in keeping with the recognition of the use of insider witnesses in the prosecution of complex international crimes. In that regard, the OTP recommendation in 2003 that Banovi´c be sentenced to ˇ c was eight years imprisonment, was imposed by the Trial Chamber. Ranko Ceši´ 192 sentenced to a term of 18 years, which was within the OTP recommended sentence of between 13 and 18 years imprisonment. Following the OTP’s recommendation for the imposition of a single sentence of 10 years imprisonment on Miodrag Joki´c, the Trial Chamber sentenced him to a much lower sentence of seven years imprisonment.193 Similarly, Miroslav Deronji´c was sentenced to 10 years imprisonment as recommended by the Prosecutor.194 The - was within the range 17-year sentence imposed by the Trial Chamber on Darko Mrda 195 of 15 to 20 years recommended by the OTP. Ivica Raji´c was sentenced to 12 years imprisonment, which was within the range of 12–15 years recommended by the

186

The OTP recommended the imposition of a single sentence of 10 years imprisonment. ICTY, Prosecutor v. Miroslav Deronji´c, Sentencing Judgement, 30 March 2004, IT-02-61. 188 ICTY, Prosecutor v. Darko Mrða, Sentencing Judgement, 31 March 2004, IT-02-59. 189 ICTY, Prosecutor v. Ivica Raji´ c, Sentencing Judgement, 8 May 2006, IT-95-12. 190 See Plea Agreement between the OTP and Ivica Rajic, 25 October 2005. 191 ICTY, Prosecutor v. Dragan Zelenovic, Sentencing Judgment, 4 April 2007, IT-96-23/2-S. 192 ICTY, Prosecutor v. Ranko Ceši´ ˇ c, 11 March 2004, IT-95-10/1. 193 ICTY, Prosecutor v Miodrag Jokic, Appeal Judgement, 30 August 2005, IT-01042/1-A Sentencing Judgment of 18 March 2004; Judgment on Sentencing Appeal 30 August 2005. 194 ICTY, Prosecutor v. Miroslav Deronji´ c, Sentencing Judgement, 30 March 2004, IT-02-61; see Dissenting Opinion of Judge W. Schomburg. 195 ICTY, Prosecutor v. Darko Mrða, Sentencing Judgement, 31 March 2004, IT-02-59. 187

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OTP.196 Finally, the 15 year sentence imposed on Dragan Zelenovi´c197 was within the range of 10 to 15 years recommended by the OTP.198

11.6 The Second Phase Guilty Pleas at the ICTR: 2004–2007 While awaiting the next round of guilty pleas at the ICTR, the United Nations Security Council passed resolution 1503 of August 2003 encouraging the ICTR to: “formalise a detailed strategy, modeled on the ICTY Completion Strategy, to transfer cases involving intermediate and lower rank accused to competent national jurisdictions, as appropriate, including Rwanda, in order to allow the ICTR to achieve its objective of completing investigations by the end of 2004, all trial activities at first instance by the end of 2008, and all of its work in 2010.”199 A month later, following the separation of the OTP at the ICTY and ICTR and the appointment of the new ICTR Prosecutor, Hassan Bubacar Jallow on 4 September 2003, the new ICTR Prosecutor, during his very first appearance before the Security Council on 9 October 2003, pledged his commitment to do everything to meet the deadlines set by the Council for the conclusion of investigations and trials.200 The transfer of low-level perpetrators to national jurisdictions and the negotiation of guilty pleas with all defendants in ICTR custody, became some of the main objectives of the new Prosecutor’s completion strategy. This background informed the next phase of ICTR guilty pleas which were procured at the end of 2004. Vincent Rutaganira had voluntarily surrendered to the Tribunal in February 2002. On 8 December 2004, exactly four and a half years after the last ICTR guilty plea and following 12 months of plea negotiations, Vincent Rutaganira,201 the former conseiller of Mubuga secteur, Kibuye préfecture pleaded guilty to having abetted, as an accomplice by omission, the crime of extermination as a crime against humanity. The original charges against Rutaganira were in connection with the massacre of over 5000 Tutsi civilians that took place at the Mubuga Parish church in Kibuye Prefecture. He was originally charged with having ordered and personally participated in the attack on Tutsi gathered at the church. Consequently, he was charged with genocide, extermination, murder, inhumane acts as crimes against humanity, and two war crimes. In his plea agreement, Rutaganira denied having ordered and personally participated in the attack on Tutsi civilians gathered at the church, but rather to being aware that Tutsi civilians had sought refuge in the church, and that assailants armed with 196

ICTY, Prosecutor v. Ivica Raji´c, Sentencing Judgement, 8 May 2006, IT-95-12. ICTY, Prosecutor v. Dragan Zelenovic, Sentencing Judgment, 4 April 2007, IT-96-23/2-S. 198 Ibid. 199 United Nations, 28 August 2003, S/RES/1503. 200 United Nations, 7 October 2003, S/PV.4838, p. 14. 201 ICTR, Prosecutor v. Vincent Rutaganira, Sentence Judgment, 14 March 2005, ICTR-95-IC. 197

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weapons had assembled near the church prior to the commencement of the attack on those gathered therein. He further admitted that as conseiller of Mubuga secteur, he omitted to protect the Tutsi who had sought “refuge” in the church.202 Consequently, the OTP agreed to withdraw the allegation that the defendant personally participated in the attack at the Mubuga Catholic Church in Kibuye as alleged in the indictment. In return for his guilty plea, the OTP withdrew five charges in the indictment203 and following the insistence of the defendant and his counsel, requested that the Trial Chamber acquit the defendant in relation to these charges due to insufficient evidence.204 Indeed, it was the OTP’s position that we did not possess enough evidence to obtain a conviction against Rutaganira for the crime of genocide which would have involved proving that he possessed the special intent or dolus specialis to commit the said crime which was not required for the crime of extermination. The OTP further conceded not to refer his case to any other jurisdiction, nor present at the sentencing hearing, any aggravating circumstances beyond those already outlined by the parties in the plea agreement. Further, the parties agreed that there would be no challenge by the OTP to any character evidence presented by the defendant in mitigation, in particular, the fact that his omission to act, which formed the basis of his guilty plea, could have been further mitigated by the prevailing conditions under which he found himself at all times.205 In addition, by not requiring Rutaganira to cooperate in ongoing investigations or future trials, the OTP ensured that there was no possibility of the defendant being viewed by his fellow detainees as a traitor. In any event, by agreeing to cooperate with the OTP in ongoing investigations or future trials, the defendant would simply have enhanced his standing as an “insider” which he very much sought to diminish at the time. The OTP agreed to recommend to the Trial Chamber that the defendant be sentenced to a term of imprisonment in the range of six to eight years.206 The OTP further agreed to support the defendant’s application to serve his sentence in a prison facility either in Europe or in the Kingdom of Swaziland.207 On 13 March 2005, the Trial Chamber convicted him on one count and sentenced him to imprisonment for a term of six years.208 Rutaganira’s guilty plea was a first in many respects. It was the first guilty plea at the ICTR which featured an overt sentence bargain, with the OTP committing to recommend a range of sentences in exchange for the said plea. It was also a first in which the OTP had engaged in a charge bargain, in the sense that, the defendant

202

Plea Agreement between the OTP and Vincent Rutaganira, 7 December 2004, paras 22–30. Ibid., para 33. 204 ICTR, Prosecutor v. Rutaganira, Sentence Hearing, 7 January 2005, ICTR-95-1C-T, paras 2–3. 205 Plea Agreement between the OTP and Vincent Rutaganira, 7 December 2004, para 35. 206 Ibid., para 36. 207 Ibid., para 37. 208 ICTR, Prosecutor v. Rutaganira, Sentence Judgement, 14 March 2005, ICTR-95-1C-T. 203

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pleaded guilty based on facts which were less serious to those previously adduced in support of the charges.209 Having admitted to possessing insufficient evidence capable of obtaining a conviction on the genocide, and war crimes charges, the rationale behind the decision to withdraw other enumerated acts comprising crimes against humanity, was that, a plea to aiding and abetting by omission the crime of extermination as a crime against humanity—a crime which involved mass killings, was enough to encompass all the other less severe enumerated acts committed as part of the same attack at Mubuga church as charged in the indictment; namely murder and inhumane acts. In any event, in charging the defendant with all these crimes, the OTP had relied on the same factual allegations and/or culpable conduct which formed the basis of the extermination charge. The OTP’s position was reinforced by the character witnesses relied on by the defence during the sentencing hearing. This included Tutsi survivors of the attacks in Mubuga who testified to the defendant’s role in saving several Tutsi lives during the genocide. The OTP’s decision to withdraw the genocide charge against the defendant was further reinforced by the fact that following the genocide, Rutaganira’s spouse had returned to Mubuga to serve within the local administration as an assistant Mayor in charge of Women’s Development in a Tutsi led government. In addition, the OTP’s very controversial decision to accede to Rutaganira’s request that the Trial Chamber acquit him of the five charges which had been withdrawn, in spite of the fact that no trial on the merits had been held, was in conformity with the terms of the plea agreement to abide by the non bis in idem (Double Jeopardy) principle.210 While the OTP was not terribly convinced that there existed a sound legal basis to proceed with such an application, seeing that such deadlock in the negotiations was likely to be a deal-breaker, the OTP resigned to the fact that the ultimate decision was not theirs to make. Eventually, the Rutaganira team were successful in their non-bis in idem application. Their success was however very short-lived. Barely six months after Rutaganira’s sentencing trial, Paul Bisengimana,211 the former bourgmestre of Gikoro commune in Kigali-Rural Prefecture, pleaded guilty to aiding and abetting extermination and murder as crimes against humanity. Bisengimana was originally charged with genocide; complicity in genocide; murder, extermination, and rape as crimes against humanity. Bisengimana had clearly been much encouraged by the very generous concessions that the OTP had granted to Rutaganira and in that regard had initiated the plea negotiations with the OTP. On 7 December 2005, after several months of extensive and drawn-out plea negotiations between the OTP and his legal representatives led by Maître Catherine Mabille,212 Bisengimana agreed to plead guilty. In return, the OTP agreed to withdraw three of the charges against Bisengimana in exchange for his guilty plea to two 209

ICTR, Prosecutor v. Rutaganira, Sentence Hearing, 7 January 2005, ICTR-95-1C-T, para 8. See Rome Statute of the International Criminal Court 1998, Article 9. 211 ICTR, Prosecutor v. Bisengimana, 17 November 2005, ICTR-2000-60-I. 212 From the Paris Bar. 210

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others. We also agreed to recommend to the Trial Chamber that he be sentenced to a term of imprisonment in the range of 12–14 years following which, he was subsequently sentenced to 15 years imprisonment. Bisengimana’s plea was the 5th at the ICTR and second since the formulation of the completion strategy in 2003. Unlike that of Rutaganira, Bisengimana’s plea agreement involved a typical charge and sentence bargain. In spite of the availability of sufficient eye-witness evidence capable of sustaining a conviction at trial on all five counts, the OTP not only agreed to withdraw three of the charges against him, but also to modify the factual allegations adduced in support of the remaining charges, to reflect his culpable conduct as agreed by the parties. In addition, the OTP agreed to support Bisengimana’s request that he be permitted to serve his sentence in a European prison. The reasons that motivated the OTP’s decisions in that regard will be discussed later in this chapter. Although, Bisengimana was convicted of having aided and abetted the murder of one person as outlined in the plea agreement, both the crimes of murder and extermination alleged against him, were perpetrated as part of the same attack. The evidence in the case was to the effect that the individual who was murdered was killed during an attack on civilians who sought refuge at the Musha church, which formed the basis of the extermination charge. Unlike Rutaganira’s plea to an omission, Bisengimana’s conduct in aiding attackers, was a lot more direct. As in Rutaganira, at the instance of the defendant’s counsel, and in compliance with the OTP’s obligations in the plea agreement, the OTP unsuccessfully requested the Trial Chamber to acquit Bisengimana in connection with the genocide and rape charges. Having granted the OTP’s request to withdraw the said charges, the Trial Chamber held that there was not “adequate reason to justify an acquittal.”213 Indeed, Bisengimana’s insistence on an acquittal was essentially designed to forestall any possibility of him facing prosecution in Rwanda in connection with the genocide and rape charges. This was especially so, considering the Rwandan government’s condemnation of the OTP for agreeing to withdraw the genocide and rape charges.214 In a clear exercise of its independence, the Trial Chamber refused to keep within the 14-year term of imprisonment that the OTP had recommended. Unlike with Rutaganira, the sentence imposed on Bisengimana was slightly outside the range proposed by the parties in the plea agreement. The Trial Chamber found that, “in considering the official position of the accused and the number of persons killed - more than one thousand - in his presence …and many others with his knowledge …a higher sentence than the range proposed by the parties is justified.”215 The Trial Chamber’s reasoning was similar to that of the dissenting judge in Deronjic.216 The OTP was particularly concerned that the harsher-than-agreed-upon 213

ICTR, Prosecutor v. Paul Bisengimana, Sentencing Judgement, 13 April 2006, ICTR 00-60-T, para 202, pp. 13–14, 18. 214 See ICTR and Rwanda Argue over Plea Bargains, Hirondelle News Agency 2005 cited in Combs 2007. 215 ICTR, Prosecutor v. Paul Bisengimana, Sentencing Judgement, 13 April 2006, ICTR 00-60-T, para 202. 216 ICTY, Prosecutor v. Miroslav Deronji´ c, Sentencing Judgement, 30 March 2004, IT-02-61-S. See Dissenting Opinion of Judge W. Schomburg.

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sentence would have the most undesired effect of discouraging other defendants at the ICTR from pleading guilty.217 Joseph Serugendo,218 a former technical director of the Radio Television Les Mille Collines (RTLM), was originally charged with conspiracy to commit genocide; genocide; complicity to commit genocide; direct and public incitement to commit genocide; and persecution as a crime against humanity. Following his arrest, he began discussions with the OTP towards offering his full cooperation and pleading guilty. Serugendo agreed to plead to two charges of, direct and public Incitement to commit genocide and persecution as a crime against humanity.219 He also agreed to cooperate fully with the OTP in relation to other investigations.220 In exchange for his plea and cooperation, the OTP recommended a prison term in the range of 6–10 years,221 following which, on 2 June 2006, he was sentenced to six years imprisonment, in keeping with the lower end of the sentence range proposed by the parties.222 Serugendo’s poor health condition had played a major role in motivating both his plea, the generous concession he received from the OTP and the lenient sentence he received from the Trial Chamber. Joseph Nzabirinda,223 a former organiser of “Biroto”, a youth movement, was also the Managing Director of the SECOBE firm in Kigali. He was initially charged with genocide, complicity in genocide, extermination, and rape as crimes against humanity. Having concluded a plea agreement with the OTP on 9 December 2006, he agreed to plead to aiding and abetting murder as a crime against humanity, by omission. Although not expressly stated in the plea agreement, the OTP agreed to take steps to protect his immediate family because of his timely plea and cooperation. On 23 February 2007, Nzabirinda was sentenced to seven years imprisonment which was within the OTP recommended range of five to eight years imprisonment.224 Another guilty plea was procured from Juvenal Rugambarara,225 former bourgmestre of Bicumbi commune, in Kigali-Rural Prefecture. He was charged with genocide; complicity in genocide; conspiracy to commit genocide; direct and public incitement to commit genocide; extermination, torture, and rape as crimes against humanity; and war crimes. On 13 June 2007, after plea negotiations with him and

217

See Sentence against Bisengimana to Discourage Further Confessions, Hirondelle News Agency 2005 cited in Combs 2007. 218 ICTR, Prosecutor v. Joseph Serugendo, Sentencing Judgement, 12 June 2006, ICTR-2005-84-I. 219 See Plea Agreement between the OTP and Joseph Serugendo, 12 January 2006, para 2. 220 Ibid., paras 51–53. 221 Ibid., para 59. Range proposed was revised from 14 to 10 years. 222 ICTR, Prosecutor v. Joseph Serugendo, Sentencing Judgement, 12 June 2006, ICTR-2005-84-I, p. 19. 223 ICTR, Prosecutor v. Joseph Nzabirinda, Sentencing Judgment, 23 February 2007, ICTR-200177-T. 224 Ibid., p. 22. 225 ICTR, Prosecutor v. Juvénal Rugambarara, Sentencing Judgement, 16 November 2007, ICTR00-59-T.

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his legal representatives led by Maître Maroufa Diabira,226 the parties filed a plea agreement wherein the OTP agreed to withdraw eight of the nine charges previously confirmed against him in exchange for his guilty plea to extermination as a crime against humanity, pursuant to his responsibility as a superior. This was also the first guilty plea negotiation I had conducted pursuant to Article 6(3) of the Statute. To that end, Rugambarara admitted to the fact that, having known that his subordinates had committed criminal acts within Bicumbi commune, he failed, in his capacity as Mayor of the said commune, to take necessary and reasonable measures to commission an investigation into the said crimes, with a view to apprehending and referring the perpetrators thereof to the competent authorities for appropriate punishment.227 The OTP recommended a sentence ranging between 9 and 12 years,228 following which he was sentenced to 11 years imprisonment.229 It was clear that the Trial Chamber was eager to distinguish his criminal responsibility as superior from that of others before him. The last guilty plea at the ICTR was that of Michel Bagaragaza,230 who was officially the Director General of OCIR/Thé, the government office that controlled the tea industry in Rwanda. The tea industry was one of the most important industrial enterprises in the country. In this capacity, Bagaragaza controlled eleven tea factories which employed approximately 55,000 persons. He was also the vice president of the Banque Continentale Africaine au Rwanda (“BACAR”) and a member of the comité préfectoral of the MRND in Gisenyi préfecture, which established the Interahamwe militia group in this prefecture. Bagaragaza was also the brother-in-law231 of former Rwandan President Juvénal Habyarimana, and, consequently, a prominent member of his kitchen cabinet, otherwise known as the “Akazu”.232 Other members of “Akazu” included members of the political elite such as Protais Zigiranyirazo, militia leaders, such as Wellars Banzi and Leon Mugesera, and high-ranking military officers, such as Major Protais Mpiranya, Colonel Théoneste Bagosora, and Colonel Anatole Nsengiyumva.233

226

Of the Mauritanian Bar. He was also co-counsel to Francois Roux in the Bagilishema case in 2000. 227 See Plea Agreement between the OTP and Juvénal Rugambarara, 13 June 2007, and the joint motion for consideration of a plea agreement of the same date. 228 Ibid., para 56. 229 ICTR, Prosecutor v. Juvénal Rugambarara, Sentencing Judgement, 16 November 2007, ICTR00-59-T. 230 ICTY, Prosecutor v. Bagaragaza, Sentencing Judgment, 5 November 2009, ICTR-05-86-S. 231 He is brother to Agathe Kanziga who was married to late President Juvenal Habyarimana. 232 The Akazu comprised of the family of Agathe Kanziga, spouse of President Habyarimana, and a tight circle referred to as Le clan de Madame, a tight circle of extended family members and persons who were bound by intermarriage or economic ties. They hailed almost exclusively from Rwanda’s northern préfecture of Gisenyi as well as Ruhengeri, and this is what was known as the Bushiru region. 233 ICTR, Prosecutor v. Protais Zigiranyirazo, 3 October 2005, ICTR-2001-73-T, p. 1.

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The defendant was originally charged with genocide, complicity in genocide, conspiracy to commit genocide and war crimes.234 Prior to his surrender, he agreed to cooperate with the OTP on the condition that his case be transferred to a national jurisdiction for prosecution.235 However, the Trial Chamber denied the OTP’s application for the referral of his case to Norway for prosecution, having found that the Kingdom of Norway lacked jurisdiction over the crimes.236 The OTP then embarked on another charge bargain with Bagaragaza which included an agreement that the OTP would seek a further referral of his case to another national jurisdiction, this time, The Netherlands. To that end, on 13 April 2007, the Trial Chamber referred the case to The Netherlands for prosecution.237 However, shortly after the decision was rendered, the District Court of The Hague in the case of the Public Prosecutor v. Joseph Mpambara, had ruled that Dutch courts lacked jurisdiction over the crime of genocide committed by non-Dutch nationals on foreign territory prior to 2003.238 Consequently, on 8 August 2007, the OTP filed a motion requesting the Trial Chamber to revoke its referral to The Netherlands.239 On 17 August 2007, Trial Chamber granted the Prosecution’s request, following which, the Registrar requested The Netherlands to surrender and return the defendant to the ICTR for prosecution. Having rescinded the referral of the case to The Netherlands, the defendant pleaded guilty to complicity in genocide for having substantially contributed to the killings of more than 1000 members of the Tutsi ethnic group who sought refuge in Kesho hill and Nyundo cathedral. On 17 November 2009, he was sentenced to eight years imprisonment. In so doing, the Trial Chamber found that the defendant had demonstrated genuine remorse and had provided invaluable assistance to the OTP. He was subsequently transferred to Sweden,240 following a decision by the ICTR President,

234 ICTY, Prosecutor v. Bagaragaza, Sentencing Judgment, 5 November 2009, ICTR-05-86-S; Prosecutor v. Bagaragaza, Decision on Confirmation of an Indictment Against Michel Bagaragaza (TC), 28 July 2005, ICTR-2005-86-1. See also Prosecutor v. Bagaragaza, Bagaragaza, Decision on the Prosecutor’s Application for Leave to Amend the Indictment (TC), 30 November 2006, CTR-2005-86-1. 235 See Joint Motion for Consideration of a Guilty Plea Agreement, 18 August 2009, para 4; Exhibit D6, as considered in ICTY, Prosecutor v. Bagaragaza, Sentencing Judgment, 5 November 2009, ICTR-05-86-S. 236 See decision Bagaragaza, Decision on the Prosecution Motion for Referral to the Kingdom of Norway (TC), 19 May 2006, para 16. 237 Pursuant to Rule 11bis of the Rules of Procedure and Evidence of the ICTR, which permits the transfer of a case to a State in whose territory the crime was committed, in whose territory the Accused was arrested or a State who has jurisdiction and is willing and adequately prepared to accept such a case. 238 When was when the international crimes under the Rome Statute were domesticated under Dutch law. 239 Bagaragaza, Decision on Prosecutor’s Extremely Urgent Motion for the Revocation of the Referral to the Kingdom of the Netherlands pursuant to Rule 11 bis (F) and (G) (TC), 17 August 2007. 240 On 19 July 2010.

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designating Sweden as the State where the defendant would execute the remainder of his sentence. He was granted early release.241

11.7 The Evolving Post Completion Strategy Trend at the ICTR The guilty plea agreements negotiated at the ICTR between December 2004 and July 2007, like in the case of the ICTY between 2002 and 2003, coincided with the pressure brought to bear on both ad hoc international criminal tribunals by the international community to complete their work by pre-established deadlines, thus making the efficient disposition of the cases before them an absolute necessity.242 The inability of the OTP to obtain more guilty pleas between the Ruggiu and Rutaganira cases pleas was not due to a lack of effort. In many cases, during this period, plea negotiations in several cases were initiated, with offers of generous concessions and even a willingness by the OTP to negotiate other ancillary matters of interest to the defendants.243 The overly generous concessions offered by the OTP to Rutaganira, Nzabirinda, Serugendo, and Bagaragaza with respect to their respective charges, mode of participation, and sentences, was indicative of the clear endorsement at the highest international levels for the OTP to embrace a more liberal approach to plea bargaining with defendants. This was absent from the guilty pleas negotiated during the pre-completion strategy phase. To that end, the OTP’s willingness to accommodate Rutaganira and Bagaragaza in the manner and to the extent that it did, must be placed in some context. By December 2004 when the OTP was negotiating the Rutaganira plea with his legal team led by Maître Francois Roux,244 the Kibuye trial team245 which I led had concluded the trials of nine defendants in seven separate trials for their respective roles in the killing of

241

On 1 December 2011. See United Nations Security Council 2004, Resolution 1534. 243 Combs 2006. 244 Francois Roux of the Montpellier and Paris Bars. 245 As Senior Trial Attorney (STA) and Head of the Kibuye and Kigali-Rural trial teams at the OTP between 2000 and 2010, I led the prosecution of defendants the worst massacres in the Kibuye and Kigali-Rural prefectures, the two main Tutsi strongholds in Rwanda. 90% of Kibuye’s Tutsi population were massacred in just two days during the genocide, making it one of the worst atrocities that took place in Rwanda. Similarly, of the 59,000 Tutsis who lived in the then Bugesera province of the Kigali-Rural prefecture, 50,000 were killed during the genocide. Among them, 10,000 Tutsi were slain in the Nyamata Catholic church in Ntarama on 15 April 1994. I had responsibility for a caseload of over 16 genocide case files which were at various stages of the criminal trial process. These cases involved charges of genocide, crimes against humanity and war crimes. 242

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Tutsi civilians at various locations within Kibuye prefecture-the same prefecture where Rutaganira’s crimes had been committed.246 The seven “Kibuye trials” had not only covered all the massacre sites in the prefecture but had reflected the entire spectrum of “genocidaires” charged with having participated in attacks therein. By the end of 2004, the OTP had in fact succeeded in bringing to justice, all the ringleaders from the Kibuye prefecture in custody at the ICTR. The three defendants remaining on the Kibuye trial docket were at large and presumed dead.247 Of the nine defendants prosecuted, the OTP obtained convictions for genocide and crimes against humanity against eight of them248 out of which, five defendants were sentenced to life imprisonment,249 two to imprisonment for 25 years each,250 while one received a 10-year term.251 Indeed, by December 2004, the Kibuye trials had, in their entirety, become an ICTR “success story” and indeed the “flagship of the international court”.252 In contrast, having literally bent over backwards to accommodate Rutaganira’s request in furtherance of his proposed plea following a 5-year lull in guilty pleas at the ICTR, the OTP was under no such pressure during the plea negotiations with Paul Bisengimana and his lawyers, several months later. Following the successful completion of the Kibuye trial docket in 2005, I was assigned responsibility of leading the prosecution of persons responsible for the genocidal killings in the Kigali-Rural prefecture of Rwanda. The Kigali-Rural prefecture had recorded the second highest number of causalities during the genocide after the Kibuye prefecture.253 The Kigali-Rural trial docket consisted of three cases. Those of François Karera, the former préfet, Paul Bisengimana the former bourgmestre of Gikoro commune and Juvenal Rugambarara, the former bourgmestre of Bicumbi commune. As at early 2005, when the plea negotiations in the Bisengimana case commenced, the

246

Clement Kayeshima, (Préfet of Kibuye); Obed Ruzindana (former businessman in Kibuye), Gérard Ntakirutimana, (Medical Director, SDA Hospital Mugenero Kibuye), Pastor Elizaphan Ntakirutimana, (Pastor Seventh Day Adventist (SDA) Church Mugenero Kibuye), Alfred Musema (Director, Gisovu Tea Factory (OCIR-thé), Kibuye), Ignace Bagilishema, (Bourgmestre of Mabanza Commune, Kibuye), Mikaeli Muhimana, (Counseiller of Gishyita secteur, Kibuye), Eliézer Niyitegeka (Minister of Information), Emmanuel Ndindabahizi, (Minister of Finance) and Vincent Rutaganira, (Counseiller of Mubuga secteur, Kibuye). 247 Charles Sikubwabo, Aloys Ndimbati and Ryandikayo. 248 Ignace Bagilishema, (Bourgmestre of Mabanza Commune, Kibuye) was acquitted. 249 Clement Kayeshima, Alfred Musema, Emmanuel Ndindabahizi, Eliézer Niyitegeka and Mikaeli Muhimana. 250 Obed Ruzindana and Dr. Gérard Ntakirutimana. 251 Elizaphan Ntakirutimana. 252 See Cruvellier 2004. 253 Among the 59,000 Tutsis who lived in the then Bugesera province of the Kigali-Rural prefecture, over 50,000 of them were killed during the genocide. Among them, were 10,000 Tutsi civilians slain in the Nyamata Catholic church in Ntarama on 15 April 1994.

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OTP had only tried Laurent Semanza254 in connection with crimes committed in the Kigali-Rural prefecture. In finding Semanza criminally responsible for the attacks on Tutsi civilians gathered at the Musha church, the Trial Chamber found that he had participated in those attacks alongside Bisengimana.255 Therefore, despite the imminent ICTR completion strategy, there was really no incentive for the OTP to grant Bisengimana the sort of generous concessions we had accorded to Rutaganira during the previous year. Consequently, the OTP’s recommended range of sentence of between 12 and 14 years, may have been considered by many observers as somewhat severe. This was particularly so considering that, barely eight months after Bisengimana’s sentence, Athanase Seromba a Catholic Priest, was sentenced to only 15-years256 imprisonment, having been convicted of genocide and extermination as a crime against humanity, following a 21-month long trial. That said, it must be noted that Seromba’s sentence was later drastically increased to life imprisonment two years later, following a successful appeal by the OTP.257 Bisengimana’s sentence may also have been seen as severe, when compared to Predrag Banovi´c’s 8-year sentence, following his guilty plea at the ICTY to his direct participation in the killing of at least five people at the Keraterm camp.258 To my mind, it however represented a massive discount on account of a guilty plea, considering that his co-preparator, Semanza had been sentenced to 35 years, following a trial only three years earlier. Unlike with Rutaganira, in the Bisengimana case, the OTP was not willing to concede to the withdrawal of charges, based on insufficient evidence. In fact, we did not lack the evidence. Rather, perhaps what we lacked was the confidence that the proposed evidence would be found credible by the Trial Chamber at trial. In that regard, the reality the OTP faced was that it had planned to rely on many of the same prosecution witnesses who had been presented by the OTP against Semanza in 2002. However, by 2003, many of these witnesses had already been discredited by the Trial Chamber in the Semanza case, leaving the OTP with the dilemma of deciding whether to rely on them in a trial against Bisengimana three years later or to accede to overtures by the defendant to enter into plea negotiations with the OTP. On the other hand, Bisengimana’s plea was motivated by the grim prospect of receiving a 35-year sentence upon conviction following a trial as was the case with his co-perpetrator, Semanza. 254

ICTR, Prosecutor v. Laurent Semanza, Sentencing Judgement, 15 May 2003, ICTR-97-20TICTR-97-20. Laurent Semanza was sentenced to 35 Years imprisonment on 15 May 2003. Both his conviction and sentence were upheld on Appeal on 20 May 2005. 255 ICTR, Prosecutor v. Laurent Semanza, Sentencing Judgement, 15 May 2003, ICTR-97-20TICTR-97-20, para 207. 256 ICTR, Prosecutor v. Athanase Seromba, Trial Judgement, 13 December 2006, ICTR-2001-66-I, p. 90. 257 ICTR, Prosecutor v. Athanase Seromba, Appeal Judgement, 12 March 2008, ICTR-2001-66-A. He was sentenced to life imprisonment on appeal on 12 March 2008. 258 ICTY, Prosecutor v. Predrag Banovi´ c, Sentencing Judgement, 28 October 2003, IT-02-65/1-S.

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Except for Rutaganira, Serugendo was the only other defendant at the ICTR to have secured such a lenient sentence following a guilty plea. This seemed largely due to the following factors: his timely plea, demonstration of genuine remorse, extensive cooperation with the OTP and an existing health condition- the Trial Chamber found that Serugendo had recently been diagnosed with a terminal illness capable of reducing his life expectancy.259 However, unlike with the Rutaganira case, the OTP’s request to the Trial Chamber to acquit and discharge Nzabirinda and Bisengimana in relation to the former charges against them which had since been withdrawn, based on the non bis in idem (Double Jeopardy) principle, was denied.260 Departing from the jurisprudence in Rutaganira, the Trial Chamber in Nzabirinda held that, the non-bis in idem principle was only applicable to cases which had been tried at the ICTR or a national jurisdiction, following a violation of international humanitarian law. In that regard, the Trial Chamber took the view that a trial following a guilty plea was not a trial in which a final judgement had been rendered. Accordingly, the Trial Chamber held that the parties could not invoke the said principle to prevent the defendant from being tried, at a later stage, on the charges which had been withdrawn.261 The Trial Chamber in Nzabirinda seemed to have followed that in Bisengimana, which, following the OTP’s application inviting the Chamber to acquit the defendant of the genocide and rape charges had previously held that there was no “adequate reason to justify an acquittal”.262 The reasoning in both Bisengimana and Nzabirinda seemed more logical and consistent with the practice in several common law jurisdictions around the world. In addition, unlike with the Rutaganira and Bisengimana cases, having offered to cooperate with the OTP in the future, Nzabirinda’s request to have the Trial Chamber consider his proposal in this light as a mitigating factor, was also rejected. Although the Trial Chamber did not doubt Nzabirinda’s willingness to cooperate with the OTP, it declined to consider it as a mitigating factor at that stage of the trial.263 Barely two weeks after the OTP concluded the Français Karera trial, Juvenal Rugambarara agreed to plead guilty to extermination as a crime against humanity, following protracted plea negotiations between the OTP and Rugambarara’s his legal representatives. Consequently, the OTP withdrew eight of the nine charges against him. However, unlike with the Rutaganira case, the Rugambarara plea agreement did not include any request by the defence, for the OTP to support the defendant’s application to serve his sentence in a prison facility at a particular location264 nor did 259

ICTR, Prosecutor v. Joseph Serugendo, Sentencing Judgement, 12 June 2006, ICTR-2005-84-I, para 61. 260 See Rome Statute of the International Criminal Court 1998, Article 9. 261 ICTR, Prosecutor v. Joseph Nzabirinda, Sentencing Judgment, 23 February 2007, ICTR-200177-T, p. 11. 262 ICTR, Prosecutor v. Bisengimana, 7 December 2005, ICTR-2000-60-I, pp. 13–14, 18. 263 ICTR, Prosecutor v. Joseph Nzabirinda, Sentencing Judgment, 23 February 2007, ICTR-200177-T, paras 73–74. 264 See Plea Agreement between the OTP and Vincent Rutaganira, 7 December 2004, para 37.

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it require the defendant to cooperate with the OTP, either in ongoing investigations or in future trials. The willingness of the OTP to accommodate Rugambarara in the manner we did, must again, be placed in some perspective. As at June 2007, the OTP was finalising the plea negotiations with Rugambarara’s lawyers, we had already obtained the conviction of Paul Bisengimana for crimes against humanity and had completed the trial of préfet Francois Karera, who by all accounts, was considered the ringleader of the genocidal killings in KigaliRural prefecture. The OTP was not only confident of securing a conviction against Karera for genocide but certain that, following his conviction, he would receive a life sentence. This turned out to be the case. In addition, as the OTP was now less than a year away from the 2008 deadline set by the UNSC for conclusion of all trials, the OTP was under pressure to complete all the cases in the Kigali-Rural trial docket. Therefore, with the completion of the François Karera trial on 1 June 2007, and the guilty plea obtained in the Juvenal Rugambarara case two weeks later, coupled with conviction of Paul Bisengimana, the year before, the OTP had obtained convictions against all the three defendants in the Kigali-Rural trial docket who were in the custody of the ICTR.265 The only defendant remaining on the Kigali-Rural docket was the subject of an OTP transfer request to the Republic of Rwanda in line with the completion strategy of the ICTR.266 Finally, the OTP’s willingness to accommodate Bagaragaza in the manner and to the extent it did, must be placed in some context. Bagaragaza had negotiated the terms of his guilty plea, in anticipation of his surrender to the OTP. He was a long-standing informant to OTP investigators, at least, that was how he was portrayed by members of the OTP’s Tracking Team who were his handlers, during my tenure as head of special investigations.267 Following his surrender, Bagaragaza was immediately sent to the ICTY’s detention facilities in The Hague because his cooperation with the prosecution would have rendered it far too dangerous for him to be detained with the other ICTR defendants in Arusha. Members of his immediate family were dispatched to the United States at the expense of the ICTR. In addition, Bagaragaza was said to have provided intelligence that proved invaluable in the apprehension of several high-profile detainees, including fellow members of the Akazu like Juvenal Uwilingiyimana.268 He had also assisted investigators in connecting the links between roles played by several members of the “Akazu” during the genocide. In addition, he volunteered to testify as an “insider witness” in the trials against some prominent members of the “Akazu”, including that of Protais Zigiranyirazo,269 the brother-in-law to President Habyarimana. 265

One defendant was sentenced to life imprisonment, another to imprisonment for a term of 15 years and another to an 11-year term. 266 ICTR, Prosecutor v Jean Uwinkindi, Decision on Prosecutor’s Request for Referral to the Republic of Rwanda, 28 June 2011, ICTR-2001-75-R11bis. 267 For a period of 18 months between 2008 and 2009. 268 Former minister of commerce and director of Rwanda’s Office of Tourism and National Parks during the genocide. 269 Also known as Monsieur Z.

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That said, to my mind, Bagaragaza’s usefulness to the OTP, either as a well-paid informant and/or an insider witness, was somewhat overexaggerated. The usefulness of Bagaragaza’s insider testimony for the OTP in the Protais Zigiranyirazo trial was extremely doubtful, the Trial Chamber found that his status as a detainee at the ICTR and/or an alleged accomplice to defendant, Protais Zigiranyirazo, meant that his testimony had to be treated with some caution, especially in the absence of independent corroboration.270 The Trial Chamber further found that because the OTP had provided him with perquisites, including direct monetary payments in return for the intelligence obtained, met the cost of supporting his family, including but not limited to, relocating them overseas, coupled with the promises made by the OTP to Bagaragaza himself, in connection with both the venue of his impending trial and his relocation to serve his sentence following his trial, such benefits required that they approached his testimony with great caution.271 In fact, Bagaragaza agreed to testify in the Protais Zigiranyirazo trial, five months after the closure of the Prosecution case, which had to be re-opened just to accommodate his testimony in the hope that he would be able to repair some of the damage caused to the OTP’s case by several witnesses who had been discredited during the currency of the prosecution’s case. In any event, the conditions attached to Bagaragaza guilty plea, which had arisen in the twilight of the mandate of the ICTR, was a precondition of Bagaragaza’s surrender to the OTP namely that he would not be tried at the Tribunal in other to avoid having to serving his sentence on the African continent, upon his conviction. To that end, having fulfilled his part of the bargain by testifying in ongoing trials, the OTP literally had to ‘pull out all the stops’ to fulfil its part of the bargain. The Bagaragaza case was perhaps the only case where the ICTR had utilised to a remarkably high degree, the transnational criminal law concept of mutual legal assistance and international cooperation in plea-bargaining negotiations.

11.8 Guilty Pleas in Hybrid Criminal Courts272 I am of the view that most, if not all, of the challenges faced by the ICTR and ICTY between 1996 and 2009 were also confronted by the other hybrid criminal courts, 270

ICTR, Prosecutor v. Protais Zigiranyirazo, Sentencing Judgment, 18 December 2008, ICTR01-73-T, paras 137, 147. 271 Ibid. 272 Hybrid internationalized or mixed criminal tribunals are those tribunals which are half national, half international in nature. This can be discerned from (1) the way they were established (e.g., agreement between the host State and the UN), (2) their subject matter-jurisdiction (both international crimes and national crimes) and (3) their staff (both local judges/prosecutors and international staff). Examples are The Kosovo Panels, The Special Court for Sierra Leone, The East Timor Panels, The Extraordinary Chambers in the Courts of Cambodia, the Special Tribunal for Lebanon, and the Extraordinary African Chambers.

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namely the ECCC, STL, SCSL, and the Extraordinary African Chambers. Except for the Kosovo Panels273 and Special Panels for Serious Crimes in East Timor,274 all the guilty pleas before these categories of courts have been for contempt of court and not for serious violations of international criminal law.275 The concept of plea bargaining was first introduced into Kosovo law in 2004276 and was later refined in 2013.277 As with the situation in Rwanda which resulted in the creation of the “Gacaca” in order to fast track the administration of criminal justice, Kosovo also experienced a large number of the unsolved court cases following the conflict of 1993, resulting in the plea bargaining procedure being considered as a necessary tool in improving efficiency in the administration of criminal justice system. Although the Kosovo procedural law confers on both defendants and prosecutors the right to initiate the plea-bargaining process in criminal proceedings, in reality, just as the case in international criminal courts and tribunals, the process has been grossly under-utilised in resolving criminal matters. United Nations Transitional Administration in East Timor (UNTAET) in 2001, established the Special Panels for Serious Crimes (SPSC), granting it jurisdiction to prosecute those accused of genocide, war crimes, and crimes against humanity, along with certain violent domestic crimes, such as murder, sexual offenses, and torture. The Serious Crimes Unit (SCU) was the equivalent of the OTP at the Special Panels. The Special Panels, whose mandate was to prosecute crimes relating to East Timor’s 1999 vote of independence from Indonesia, completed its work in 2005. Eighty-four defendants were convicted by the Special Panels, a large proportion of which were procured through guilty pleas.278 One of the major features of the work of the East Timorese Special Panels was that almost all the defendants convicted before the court consisted of low-level Timorese militia members. The Imposition of lenient sentences by the East Timorese Special Panels, following trials, in fact undermined the efforts of the SCU to obtain guilty 273

Kosovo War and Ethnic Crimes Court (KWECC). After the Kosovo war ended, the UN Interim Administration Mission in Kosovo (UNMIK) Regulation 2000/64 provided for panels consisting of at least two international judges and one judge from Kosovo to take up the prosecution of those responsible for crimes committed in Kosovo in 1999, where it is “necessary to ensure the independence and impartiality of the judiciary or the proper administration of justice”. Generally, these are cases involving serious crimes. By April 2005, the Regulation 64 Panels had completed 55 trials, convicting 84 defendants, 24 of which pleaded guilty. 275 Shefqet Kabashi, a former member of the Kosovo Liberation Army (KLA), pleaded guilty to contempt of court for refusing to testify in the trial at a United Nations war crimes tribunal of former Kosovo prime minister Ramush Haradinaj. Similarly, the Special Court for Sierra Leone had guilty pleas to charges of contempt. Among them were, Anifa Kamara, SCSL-05-03, Margaret Fomba Brima, Neneh Binta Ba Jallow and Ester Kamara, SCSL-OS-02. 276 The Provisional Criminal Procedure Code of the Republic of Kosovo 2004. http://www.diritto.it/ system/docs/29068/original/Criminal_procedure_code_of_Kosovo.pdf. Accessed 6 August 2022. 277 The Criminal Procedure Code of the Republic of Kosovo 2013. 278 A total of 391 individuals were indicated by the Special Panels of that number, 87 defendants were prosecuted, which resulted in 84 convictions and 3 acquittals. 274

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pleas from defendants and this was in turn, found to have been detrimental to the mandate of the Special Panels, considering that it had a great need to dispose of its cases based on the limited time it had to conclude and discharge its mandate. The early guilty pleas to international crimes at the Special Panels were essentially devoid of any bargaining with prosecutors. In that regard, defendant Joao Fernandes entered the first guilty plea, before the Special Panels’.279 His plea was followed by that of Joni Marques, whose guilty plea to one count was accepted by the Special Panels. That was then followed by those of Marcurious José de Deus280 and Augusto Dos Santos in April 2002.281 Subsequent pleas involved some element of bargaining as was indicative from the use of plea agreements on the same lines as those used at the ad hoc tribunals discussed earlier in this chapter. However, unlike with the ad hoc courts, the Special Panels hardly imposed sentences in excess of those recommended by the prosecution. In addition, unlike with the ad hoc tribunals, the Special Panels operated under a strict sentencing tariff regime which outlined the ranges of sentences for guilty pleas made before and after trial. On certain occasions, the parties found themselves negotiating outside the remit of the established ranges.282 In any event, as was indicative from the Jhoni Franca case, some element of charge bargaining occurred in cases before the Special Panels.283 In addition, as was the case in the Rutaganira and Bisengimana cases at the ICTR, the prosecutor at the Special Panels also withdrew charges reflecting an alleged conduct which was different from that which formed the basis of facts underpinning the guilty plea. This was particularly true of the Benjamin Sarmento, Abilio Mendez Correia, and

279

The panel gave Fernandes credit for his guilty plea which it accepted as constituting a mitigating factor. The panel also considered the superior orders pursuant to which Fernandes committed the said crime as a mitigating factor, following which it sentenced him to twelve years imprisonment. 280 SPSC Dili Dist. Ct., Prosecutor v. Marcurious Jose de Deus, Sentence, 18 April 2002, Sentence, 18 April 2002, PID.C.G/13/2001, III.1.22. 281 SPSC Dili Dist. Ct., Prosecutor v. Augusto Dos Santos, Judgement, 14 May 2002, 06/2001, paras 60, 66. 282 In the Ludji & Pereira case, for instance, prosecutors agreed to recommend a mere three-year sentence after Jose Pereira pled guilty to one murder as a crime against humanity. 283 Having pled guilty to four counts of imprisonment and one count of torture as crimes against humanity, the prosecutor withdrew one count of persecution and two counts of inhumane acts as crimes against humanity, since the latter counts were found to be subsumed under the same conduct that formed the basis of the former counts.

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Martins and Goncalves trials.284 This was also the case in the Correia and de Carvalho trials.285 In terms of the discount applied by the special panels following guilty pleas, it would seem as though the Panel often discounted sentences upon guilty pleas by an average of between 20 and 30 percent of what the defendant would otherwise have obtained following a full trial. In that regard, defendants Carlos Soares, Manuel Bere, Agustinho da Costa, and Augusto Tavares were sentenced to 15.5, 14, 15 and 16 respectively,286 having been convicted for murder as a crime against humanity following a trial. They all claimed to be following orders from their superiors. Similarly, defendant Jose Valente, who was convicted of murder as a crime against humanity following a full trial, received a sentence of 12.5 years imprisonment. Valente’s sentence was only six months longer than that imposed on Fernandes following his guilty plea. Valente also did not have the benefit of claiming that he acted in response to superior orders.287 Joseph Leki, who was convicted of committing four murders, received a sentence of 13 years imprisonment, which was just a year longer than that which was imposed on Fernandes following a guilty plea. Leki also claimed in mitigation to have been following orders from his superiors.288 The Los Palos case involved 10 members of the Team Alfa militia group, which was led and commanded by Joni Marques, who pleaded guilty to his involvement in the killing of nine clergy and journalists. A trial took place in relation to the remaining nine co-defendants. The panel sentenced Marques to 19 years imprisonment for this count, which is the same sentence that the panel imposed on two of Marques’ co-defendants, neither of whom had a leadership role in the operation. It was therefore hard to see what, if any, discount Marques received in exchange for his plea. It would seem as though Marques’ role as commander in charge of the implementation of the killings played heavily on the panels’ mind and almost negated any discount, he would have been entitled to receiving following his guilty plea. The

284

In the Benjamin Sarmento and Abilio Mendez Correia cases, the prosecution withdrew charges of murder as crimes against humanity for the killing of two people whose deaths were not otherwise represented in the guilty plea. Prosecutors maintained that such withdrawals were not driven by a desire to secure guilty pleas but came about because the evidence supporting the charges was insufficient. In Martins, the prosecutor withdrew one count of murder as a crime against humanity for the killing of three people and one count of deportation as a crime against humanity. Although these withdrawals appeared to be part of a plea bargain, the panel observed that they “could not [have been] wiser, since [it] is clear that a similar case would not have much hope of a positive result for the Prosecutor, given the vagueness of the statements on the issues.” 285 Combs 2006, p. 120. 286 The facts of the cases were in fact remarkably similar to that of Fernandes and each had the benefit of adducing superior orders as a mitigating factor. 287 The Public Prosecutor v. Jose Valente Judgement, United Nations, Special Panel for Serious Crimes. Original: Bahasa Indonesia Case No. 03/2001. 19 June 2001. Paras 11–12. 288 The Prosecutor v. Joseph Leki Judgment, Special Panels for Serious Crimes (District Court of Dili), East Timor. Case No. 05/2000. 11 June 2001, paras 11–12.

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comparison becomes further blurred when compared to the sentence imposed on two of his co-defendants.289 The Special Panels sentencing practice in guilty-plea cases appeared to undergo a dramatic change following the guilty plea of Marcurious Jose De Deus.290 To that end, the guilty plea entered by defendant De Deus was based on fact allegations which were not dissimilar to those present in the Fernandes, Soares, Bere, Agustinho da Costa, and Tavares cases. However, for the first time, like with the cases at the ICTY discussed earlier herein, a public display of remorse by the defendant seemed to have earned him an incredibly significant sentencing discount of 5 years imprisonment.291 Similarly, in sentencing the defendant Augusto Dos Santos to a 5-year term of imprisonment following his guilty plea to one murder as a crime against humanity, the Special Panel took cognisance not only of his guilty plea, and superior orders, but of the remorse expressed thereof, as mitigating factors in favour of the imposition of a lenient sentence.292 The Special Panels took advantage of the Agustinho Atolan case,293 to define and articulate, the existence of a formal sentencing tariff to be expected by defendants pleading guilty. Such evolution in the practice of guilty pleas in the context of largescale international crimes was hitherto absent in the operations of the two ad hoc tribunals. To that end, Atolan pleaded guilty to one count of murder as a crime against humanity, and the parties agreed to recommend the imposition of a 7-year prison sentence thereof. Having conducted a scrutiny of the jurisprudence of the Special Panels, the Panel was of the view that the Special Panels’ practice was to sentence defendants convicted of one count of murder as a crime against humanity following a trial, to a prison term of between 12 and 16 years. In so doing, the Panel went on to acknowledge the conduct of defendants who, having “being regretful, opted for a procedure which spared the time and resources of the Court”. Consequently, such defendants were entitled to receive an appropriate “advantage” in exchange for their guilty plea, culminating in a discount of 50% off their sentences. Having found that Atolan would have earned a fourteen-year prison

289

For example, Marques was convicted for ordering a murder, while co-defendant Joao da Costa was convicted of physically assisting in that murder. The panel considered Marques’ supervisory role as an aggravating factor, and he received a nineteen-year sentence, while da Costa, who was not considered a supervisor, received a seventeen-year sentence. 290 SPSC Dili Dist. Ct., Prosecutor v. Marcurious Jose de Deus, Sentence, 18 April 2002, PID.C.G/13/2001, III.1.22; Dili District Court, Special Panels for Serious Crimes, Prosecutor v. Marcurious Jose de Deus, Sentence, 18 April 2002, PID.C.G/13/2001, III.1.22, 291 The panel considered as mitigating factors not only de Deus’s guilty plea and superior orders but also his apology to the family of the victim. 292 In fact, the prosecutor asked for a “high” sentence, noting that the defendant murdered an old man and did so in a cruel manner. 293 SPSC Dili Dist. Ct., Prosecutor v. Agustinho Atolan, Judgement, 9 June 2003, 3/2003, para 6. Without further explanation, the panel asserted that the sentences imposed on three defendants that fell outside this range were justified by “specific reasons”, para 7.

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term had the case proceeded to trial, the panel sentenced him to seven years, as recommended by the SCU. The precedent established in Atolan was subsequently applied in the Martins and Goncalves cases.294 In that case, Anastacio Martins pleaded guilty to one count of murder as a crime against humanity following his admission to his involvement in the killing of three people. In contrast, his co-defendant, Domingos Goncalves, who proceeded to trial, was subsequently convicted of one count of murder as a crime against humanity for the killing of three people along with one count of deportation as a crime against humanity. To that end, the Panel found that based on the sentencing tariff, a single brutal murder would warrant a 16-year prison term following a trial, which when translated to three murders would have resulted in a 23-year sentence. Having applied the 50% sentencing discount on account of his guilty plea, the panel sentenced Martins to 11.5 years imprisonment, which was within the eight to 12-year range recommended by the SCU. Having not plead guilty, co-defendant Goncalves was in line to receive a 23year sentence having been convicted of three murders, plus an additional year of imprisonment on account of the deportation count. He was however sentenced to 15 years imprisonment, on account of his rank and his personal circumstances including the fact that he had lost a leg, following an attack launched upon him by his spouse who was found to have been suffering from mental illness. Despite the potential benefits of a clear rule, such as the 50% discount articulated in Atolan, the rule did not appear to have been followed in a substantial number of subsequent cases. However, limiting the effect of the 50% discount rule, its very articulation reflected the Special Panels’ keen interest in encouraging guilty pleas. Setting forth a clear range of sentences that would be imposed after a trial and promising defendants who pleaded guilty, a substantial discount from those sentences, were steps, well-calculated to motivate a large number of defendants to enter guilty pleas. Despite these lofty moves as conveyed by the panel in Atolan, the subsequent arbitrary nature of sentencing practices by the Special Panels as pointed out above, sought to undermine such efforts. For example, having been convicted of two counts of murder as crimes against humanity and one count of persecution as a crime against humanity following a full trial, Damiao Da Costa Nunes was sentenced to 10.5 years imprisonment.295 This was barely a month after the sentencing judgment in the Martins and Goncalves trial. The fact remains that the imposition of lenient sentences following full trials undermined efforts by the SCU to obtain more guilty pleas and was particularly detrimental to the work of the Special Panels which sought an enhanced need for summary dispositions of cases as their operations ended. In anticipation of the May 2005 closure of the Special Panels, the Security Council required the prosecution to

294

SPSC Dili Dist. Ct., Prosecutor v. Anastacio Martins and Domingos Goncalves, Judgement, 13 November 2003, 11/2001, paras 3–4. 295 SPSC Dili Dist, Prosecutor v. Damiao Da Costa Nunes, 12 October 2003, 04a/2001.

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complete its investigations by November 2004 and trials by May of the following year. Although investigations had been completed well in advance of the said deadline, the issuance of indictments in these cases was held back because there was not sufficient time to hold trials before May 2005. The SCU could have proceeded with many of these new cases if the ones pending before the panels had been resolved through guilty pleas.

11.9 Admissions of Guilt at the International Criminal Court (ICC) Unlike the guilty plea regime at the ICTY and ICTR which was more skewed to the common-law procedure, the “admission of guilt” procedure at the ICC is less encouraging of the use of an overt plea bargaining.296 Whilst the use of plea agreements is implicitly authorized, the procedure currently utilised at the ICC seems to suggest that the admission of guilt must be made at the commencement of trial and that the Trial Chamber must in fact be satisfied that the admission corresponds with the evidence in the case and/or any additional factual allegations adduced thereof.297 Therefore, the ICC Rules require a sufficient factual and evidentiary basis to establish the truth of the charges against the accused. Although the ICC provisions298 clearly afford an accused the opportunity to make an admission of guilt at the commencement of the trial, the Statute does not address the timing of agreements regarding the admission of guilt. It is therefore assumed in principle that such agreements could be reached at any time prior to or even during trial. This in my view would include, in particular, an examination of the mode of participation of the defendant in the crimes alleged in the charges in order to ensure that they correspond with the admission being made thereof, making the procedure more akin to a summary trial traditionally associated with civil law systems. Only one defendant at the ICC has made an admission of guilt. On 12 November 2020, the OTP of the ICC released its Guidelines for Agreements Regarding Admissions of Guilt.299 The Guidelines which are derived essentially from the jurisprudence of the ad hoc tribunals, are in my view, a welcomed framework for plea negotiations in the context of large-scale international crimes. The said Guidelines contain a broad set of relevant factors for the OTP to consider in engaging in plea negotiations with the defendants. As would be discussed later in this chapter, the said Guidelines are however not without blemish. 296

See Rome Statute of the International Criminal Court 1998, Articles 64(8) (a), 65. Ibid., Article 65. 298 Ibid., Articles 64(8)(a), 65. 299 See Guidelines for Agreements Regarding Admission of Guilt 2020. 297

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The relevant factors for consideration by the OTP include the need for the proposed plea agreement to be consistent with the Rome Statute of the ICC. 300 Other provisions therein centre on the need for the OTP, during plea negotiations, to adhere to the charges confirmed by the Pre-Trial Chamber against the defendant, in order to avoid excessively distortive plea bargains.301 The said Guidelines address the need for the OTP to discourage plea negotiations that involve the withdrawal of charges to under-prosecuted crimes.302 The Guidelines outline the significance of the OTP obtaining, during plea negotiations, detailed and thorough statements of corroborating facts,303 and outlines the need for the OTP to respect the interests of victims and witnesses during plea negotiations with defendants.304 Finally, the Guidelines set parameters for the OTP in proposing sentencing recommendations in plea agreements and require that such recommendations take into account, not only the usefulness of the cooperation provided by the defendant to ongoing investigations, but also the timeliness of the admissions of guilt itself.305 Despite these factors, the said Guidelines recognises the need for the exercise of some level of discretion by the OTP, during plea negotiations on a case-by-case basis.306 In stark contrast to the Rutaganira plea negotiations at the ICTR, the Guidelines stipulate that the OTP shall not enter into any agreement in which the defendant disputes the essential facts establishing his or her guilt, namely, the facts underlying the elements of the crimes charged and the applicable modes of liability. To that end, the Guidelines stipulate that the OTP should insist, as a condition of every plea agreement regarding admission of guilt, that the accused person provide the OTP with a full and truthful account of his or her own conduct relevant to the charged crimes.307 As was the case with the first phase of guilty pleas at the ICTR and ICTY, the Guidelines further stipulate that the OTP should ordinarily insist, as part of any plea negotiations, that the defendant make admissions with respect to all confirmed

300

Ibid., para 17. Ibid., para 19. 302 Ibid., para 20. 303 Ibid., para 23. 304 Ibid., paras 25–26. 305 Ibid., para 27. 306 Following the conviction of Miroslav Bralo on 8 counts of crimes against humanity, the Trial Chamber found that his crimes were of an extremely serious and brutal nature and were deserving of a 25 years’ sentence. Considering his timely guilty plea before the commencement of trial, he was sentenced to 20 years’. Whereas following Dragan Nikoli´c guilty plea after 3 three years on remand, but prior to the commencement of trial, it was held that the “lateness” of Dragan Nikoli´c guilty plea could not be to his detriment but rather, as a consequence of a thorough analysis and reflection of his criminal conduct, which reveals his genuine awareness of his guilt and a desire to assume responsibility for his acts. 307 Guidelines Agreements Regarding Admission of Guilt 2020, para 19. 301

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charges.308 This was true of the Kambanda plea at the ICTR and those of Erdemovi´c and Jelisi´c at the ICTY, during the first phase of pleas. However, the said Guidelines also recognise that there may be instances in which amendment and/or withdrawal of charges during plea negotiations will be appropriate, such as was the case in the second phase of pleas at the ICTR and ICTY. Drawing from the experience in the Rutaganira, Nzabirinda and Bisengimana cases at the ICTR, the Guidelines recognise that where discussions between the Prosecution and Defence elicit facts that cause the Prosecution to revise its view of the defendant’s criminal responsibility or its ability to prove charges at trial, it would be acceptable in those circumstances for the OTP to agree to the withdrawal or amendment of charges.309 In so doing, the Guidelines encourage the OTP to exercise caution before agreeing to the withdrawal or amendment of charges which have been traditionally underprosecuted, such as crimes against or affecting children, sexual and gender-based crimes, attacks against cultural, religious, historical, and other protected objects, as well as attacks against humanitarian and peacekeeping personnel.310 Except for Kambanda, none of the defendants at the ICTR agreed to plead guilty to the crime of rape either as a crime against humanity or a war crime. This is off course was in stark contrast to the defendants at ICTY were four defendants during the second phase, agreed to plead guilty to charges of rape as a crime against humanity and/or as a war crime.311 The Guidelines further stipulate that, wherever appropriate, the OTP should require, as a condition in any plea agreement, that the defendant, agree to cooperate and/or assist the OTP in ongoing investigations and/or prosecutions, as was the case in Ruggiu, Serushago and Bagaragaza pleas at the ICTR and many of the guilty pleas during the second phase of pleas at the ICTY.312 That said, the Guidelines however recognise that there may be instances where it would be appropriate and/or in the interests of justice to proceed with a plea agreement that excludes the 308

The OTP/ICTY’s reluctance to reflect the totality of Biljana Plavši´c’s criminal conduct by not proceeding on the genocide charge against her, was the subject of widespread criticism by the international community. 309 Guidelines for Agreements Regarding Admission of Guilt 2020, para 20. 310 Ibid. 311 Unlike at the OTP/ICTR, the OTP/ICTY was able to obtain guilty pleas to rape as a crime against humanity and/or a war-crime in the following cases: Prosecutor v. Dragan Nikoli´c; Prosecutor v. Miroslav Bralo; Prosecutor v. Ivica Raji´c and Prosecutor v. Dragan Zelenovi´c. In contrast, rape as a crime against humanity charges were withdrawn by the OTP/ICTR against Omar Serushago, Paul Bisengimana, Joseph Nzabirinda and Juvenal Rugambarara. 312 The point has been made that in 2003, as the OTP/ICTY begun to struggle with the credibility of prosecution witnesses in many of the high-profile ongoing trials, they actively sought to enter plea bargaining negotiations with low-ranking defendants in return for insider information and intelligence which would be useful to them in concluding these trials. This was the case with Banovi´c - (2004), ˇ c (2004), Miodrag Joki´c (2004), Miroslav Deronji´c (2004), Darko Mrda (2003), Ranko Ceši´ Ivica Raji´c (2005), and Dragan Zelenovi´c (2007). The same was true of Omar Serushago (2000), Georges Ruggiu (2001) and Joseph Serugendo (2006) who testified for the OTP/ICTR in the Media trial and Michel Bagaragaza (2007) who testified in the Protais Zigiranyirazo trial.

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defendant’s cooperation in other cases. The Guidelines recommend that only defendants who agree to cooperate with the OTP will be entitled to receive the maximum sentencing discount at sentencing.313 This, in my view, not only stands to reason, but in conformity with the jurisprudence of the ad hoc international criminal tribunals.314 The Guidelines stipulate that, any recommendation proposed to the Trial Chamber by the OTP on sentencing, must reflect the gravity of the crime and the defendant’s role therein315 and in that regard, the OTP is required to balance all relevant circumstances in recommending a sentence—or a range of sentences—that reflect the overall culpability of the accused.316 Regarding the factual basis upon which the plea is entered, the Guidelines stipulate that the OTP should seek to ensure that all plea agreements contain a detailed and thorough statement of the facts underlying the admission of guilt. Typically, such facts should address all the essential elements required for a conviction, had the case proceeded to trial. The said Guidelines caution that in no circumstances should the OTP agree to withhold from the Trial Chamber any fact, which is material to the determination of the defendant’s criminal conduct.317 Even though the plea agreement is essentially between the OTP and the Defence, the Guidelines stipulate that, in negotiating an admission of guilt, the OTP shall consider the interests of the victims, as well as their views and concerns and to the extent feasible, encourages the OTP to consult with their legal representatives.318 Finally, as with all guilty plea negotiations, the Guidelines encourage the OTP, prior to and/or during plea negotiations with defendants, to consider the contribution of the defendant to the efficient use of resources at the ICC, particularly where such an admission of guilt, will eliminate the need for a lengthy trial involving the use

313

Guidelines for Agreements Regarding Admission of Guilt 2020, para 21. The ICC rules expressly recognises an accused’s cooperation with the Court as a mitigating factor, and acceptance of responsibility is generally viewed as a factor warranting some reduction in sentence. 315 Guidelines for Agreements Regarding Admission of Guilt 2020, para 22. 316 In sentencing Milan Babi´ c to 13 years imprisonment, the Trial Chamber held that a term of no more than 11 years as recommended by the OTP “would not do justice” in the case. Similarly, Schomburg J, held that Miroslav Deronjic deserved a sentence of not less than 20 years on account of the facts which indicated that he was “clearly a high ranking perpetrator who had committed heinous and long planned crimes”. The 11-year sentence imposed on Biljana Plavši´c was criticized as being completely inconsistent with her role in promoting and implementing the Bosnian Serbs ethnic cleaning campaign, resulting in the expulsion and death of thousands of Bosnian Muslims and Croats. By virtue of her position, Plavši´c was seen to have borne the greatest responsibility for the crimes in the Serbian Republic and such a huge responsibility should have been reflected in the sentence imposed upon her, as was the case with the former Rwandan Prime Minister Jean Kambanda in 1998. 317 Guidelines for Agreements Regarding Admission of Guilt of 2020, para 23. 318 Ibid., para 26. 314

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of those resources.319 As pointed out earlier, plea bargains are intrinsically linked to the timeliness of such an admission of guilt.320 Four years before the said Guidelines were published, Ahmad Faqi Al Mahdi,321 who was a member of an armed group known as Ansar Dine admitted his guilt before the ICC on 22 August 2016. Ahmad Al Faqi Al Mahdi, also known as Abu Turab, was charged with intentionally directing attacks against 10 buildings of a religious and historical character in Timbuktu, Mali, between around 30 June 2012 and 11 July 2012. The Chamber convicted him of the war crime of attacking protected objects as a co-perpetrator and sentenced him to nine years of imprisonment.322 Al Mahdi was not a high-ranking officer of the armed group, but rather, a local resident who found an opportunity to rally himself into a position of power gaining effective control over his region through an Islamist group. He expressed public remorse which seemed to have been directed at members of the population in the hope that his confession will contribute to their healing. This in my view, was strategic, mindful of the fact that he would most likely return to reside amongst the population, upon the completion of his sentence. It is also worth highlighting that the crimes he confessed to did not include any physical harm to any individual.

11.10 Conclusions on the ICTY, ICTR and ICC Cases Unlike at the ICTY with 20 guilty pleas since its inception in 1993, only nine defendants pleaded guilty at the ICTR between 1995 and 2009. Michel Bagaragaza’s plea in July 2009 was the ninth and last guilty plea at the ICTR, but the sixth since the formulation of its completion strategy in 2004, a year after that of the ICTY. Only one defendant has made an admission of guilt before the ICC since its inception in 2002. The Trial Chambers decision at the ICTY and ICTR to impose sentences within the proposed range agreed by the parties was a clear indication, as was evidenced in Ruggiu, of their resolve to encourage guilty pleas especially in view of their newly 319

In sentencing Georges Ruggiu to 12 years imprisonment, the Trial Chamber applauded his courage in pleading guilty and “sparing the ICTR a lengthy investigation and trial into his crimes”. The Trial Chamber also commented on his acknowledgement of his mistakes, which constituted “a healthy application of reason and sentiment”. Goran Jelisi´c’s 40-year sentence was imposed following his guilty plea after the closure of the OTP’s case which could not have entitled him to any credit. In addition, the lack of remorse exhibited by Jelisi´c may have been held against him by the Trial Chamber. In appealing his 15-year sentence at the ICTR following his plea to genocide, Omar Serushago argued that the Trial Chamber did not recognise that his guilty plea served as an “encouragement to other suspects or unknown perpetrators to come forward, contribution to the settlement of the wider issues of accountability, reconciliation and the establishment of the truth, and judicial economy”. 320 Guidelines for Agreements Regarding Admission of Guilt 2020, para 27. 321 ICC, Prosecutor v. Ahmad Al Faqi Al Mahdi, Sentencing Judgment, 27 September 2016, ICC01/12-01/15. 322 Ibid.

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formulated completion strategies. To that end, only a single defendant appealed his sentence at the ICTR following a guilty plea,323 as opposed to 10 defendants who appealed at the ICTY.324 Four guilty pleas in the two-year period spanning March 2005 and July 2007325 followed the Rutaganira guilty plea. Unlike the earlier cases of Kambanda, and Ruggiu where the defendants pleaded to their initial charges and agreements were made only in relation to likely sentence, later cases, like those in the second phase of pleas at the ICTY, featured broad recommendations on the range of sentences to be imposed. Unlike the ICTY, the ICTR did not experience any major decline in the plea-bargaining process, and indeed, except for Bisengimana, sentences imposed on defendants have been within the ranges recommended by the parties. The import of this is that, although defendants had no guarantees that a Trial Chambers will impose sentences within the recommended range, by virtue of the fact that judges at the ICTR had imposed life sentences following full-blown trials, meant that even if they did not get precisely what they have bargained for, they were still likely to benefit from entering a guilty plea. The sentences imposed in the two trials involving members of the clergy—Seromba and Ntakirutimana326 are indeed exceptional and unique examples of lenient sentences following convictions after full trials at the ICTR. In any event, the 15-year sentence imposed on Revered Father Seromba following his conviction for genocide was increased on appeal to life imprisonment. Unlike at the ICTY, the Statute of the ICTR provided for the Tribunal to send convicted persons to Rwanda to serve their sentences. Other options were the ICTR prisons in Mali, Bénin and Swaziland. In that regard, the OTP’s ability to offer additional benefits such as its willingness to support applications by defendants to serve their sentences at a particular location as was the case in Rutaganira, may also have served as an additional incentive to defendants at the ICTR to plead guilty. The reason the ICTY obtained more guilty pleas than the ICTR was possibly due to the fact that, many defendants at the ICTR shared a strong extremist ideology which prevented them from admitting that a genocide had occurred in Rwanda. Instead, it was their position that the violence in Rwanda was due to a long-standing civil war between government forces and the invading RPF which resulted in a spontaneous reaction of the Hutu populace, culminating in the massacre of thousands of Tutsi civilians. In addition, the fact that the OTP had not prosecuted any members of the Tutsi-led Government was an indication to defendants at the ICTR that they were victims of 323

ICTR, Prosecutor v. Jean Kambanda, Sentencing Judgement, 4 September 1998, ICTR-97-23-A. Dražen Erdemovi´c, IT-96-22-A; Milan Babi´c, IT-03-72-A; Miroslav Bralo, IT-95-17-A; Miroslav Deronji´c, IT-02-61-A; Miodrag Joki´c, IT-01-42/1-A; Goran Jelisi´c, IT-95-10-A; Goran Jelisi´c, IT-95-10-A; Momir Nikoli´c, IT-02-60/1-A; Dragan Zelenovi´c, IT-96-23/2-A; Stevan Todorovi´c, IT-95-9/1-A. 325 Paul Bisengimana; Joseph Serugendo; Joseph Nzabirinda; Juvenal Rugambarara. 326 Seromba was sentenced to 15 years following a conviction for genocide. Pastor Ntakirutimana was sentenced to 10 years on account old age (76) having been convicted of aiding and abetting genocide. 324

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‘victor’s justice’ and that they were only being prosecuted because their side just happened to have lost the war. Consequently, many ICTR defendants were determined to string out the administration of the justice system by using the proceedings to elucidate and propagate their extremist political views. Another notable feature in the evolution of the practice of charge bargaining in plea agreements at ICTR was the complete reluctance of defendants at the ICTR to plead guilty to charges of rape either as a crime against humanity or as a war crime.327 This was in complete contrast to the ICTY. Although there were initially no pleas to rape during the first phase, four defendants pleaded guilty to rape as a crime against humanity during the second phase.328 In contrast to the ICTR, there were no pleas to the crime of genocide at the ICTY, not even from Biljana Plavši´c329 who was the former Co-President of the then Serbian Republic, along with Slobodan Miloševi´c. In the three guilty pleas I negotiated between 2004 and 2007, all three defendants insisted on avoiding the brand or label of “genocidaire” or “rapist”. This in part, was in keeping with the historical and cultural view of the conflict as outlined above. In addition, in most cases, the realisation that a conviction for genocide by an international court, would almost guarantee that the defendant would be unable to secure any country in which to reside having served his/her sentence, deterred several defendants at the ICTR from agreeing to plead to that crime. This was particularly true of both the Bisengimana and Nzabirinda guilty pleas. Unlike the low-level defendants at the ICTY, many of the defendants at the ICTR had a relatively higher profile, having held incredibly significant political positions in Rwanda, prior to their detention. Consequently, apart from having strong social ties with each other, they lived in complete solidarity making it exceedingly difficult for the OTP to break their ranks. In this regard, Jean Kambanda was seen very much as a sell-out for pleading guilty. This was not terribly surprising as Kambanda was never really a strong politician prior to his appointment as Prime Minister. Ruggiu was a foreigner who had no business being there in the first place. The others like Rutaganira, Serushago and Nzabirinda were low ranking defendants in the general scheme of things. Rutaganira and Nzabirinda were so low ranking politically that they would most probably have been the subject of a Rule 11bis transfer application to Rwanda in line with the OTP’s completion strategy. In any event, the concessions given to them by the OTP were so good that they were unlikely to refuse to plead. Serugendo was not an extremist and had indicated that he was willing to cooperate with the OTP. The only requests he made to the OTP was that they assist in protecting his immediate family. This was not dissimilar to Nzabirinda’s request during his negotiations with the OTP.

327

ICTR, Prosecutor v. Omar Serushago, Sentencing Judgement, 5 February 1999, ICTR-98-39S; see Prosecutor v. Joseph Nzabirinda; Prosecutor v. Paul Bisengimana; Prosecutor v. Juvenal Rugambarara where are all originally charged with rape. 328 Ranko Ceši´ ˇ c, Dragan Nikoli´c, Miroslav Bralo and Dragan Zelenovi´c. 329 ICTY, Prosecutor v. Biljana Plavsic, Sentencing Judgement, 27 February 2003, IT-00-39&40/1.

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Rutaganira and Nzabirinda were represented by the same lawyer,330 who, having negotiated the Rutaganira plea with the OTP in 2004, had secured a sentence for his client beyond his wildest expectations. He returned two years later to represent Nzabirinda and had from the outset, indicated his clients’ willingness to plead. It is clear from the above, that the willingness of many defendants to plead guilty also depended largely on the lawyers representing them. It was previously thought that many lawyers from the civil law system being unfamiliar with the plea-bargaining process were unlikely to encourage their clients to plead guilty. However, save for Kambanda,331 Serushago332 and Serugendo,333 all the defendants who pleaded guilty at the ICTR were in fact represented by lawyers from the civil law system In other cases, apart from sharing in their clients’ extremist political views and not encouraging them to plead guilty, the impact of legal representatives stringing out hopeless cases in other to earn professional fees, could not also be ruled out. Finally, a good number of detainees at the ICTR were in effect terminally ill. In those circumstances, a generous sentencing offer by the OTP in exchange for a guilty plea, would have had little or no value, in that, a guilty plea would only have hastened the transfer of such defendants from the UN detention facilities which was well equipped to regular prisons in places such as Mali, where both health and weather conditions were so much tougher. Regarding more recent developments in the area of guilty pleas, experience has shown that the success of any plea-bargaining regime as contained in the lofty guidelines at the ICC will ultimately depend on the ability of the OTP to retain its credibility with defendants during plea negotiations. The point has already been made earlier in this chapter that this can only be achieved if the Trial or Appeals Chambers are willing to adhere to the OTP’s sentencing recommendations. In truth, consistent failure by the Tribunal to adhere to the OTP’s requests in this regard, will ultimately affect and/or undermine the OTP’s credibility and impede in the conduct of plea negotiations. The ICC’s experience in this regard, will not be dissimilar to that of the ad-hoc Tribunals that came before it. Another factor which again is not unique to the ICC, is the potential opposition by the State Parties whose situation is the subject of referral to the ICC to the idea of plea bargaining with defendants.334 Both the ICTY and the ICTR faced similar

330

Francois Roux of the Montpellier and Paris Bars. Oliver Michael Inglis of the Cameroonian Bar; Tjarda van der Spoel of the Dutch Bar on the Appeal. 332 Mohamed Ismail of the Tanzanian Bar. 333 Cecil Maruma of the Tanzanian Bar (Serugendo), Mohammed Aouini of the Tunis Bar (Ruggiu), François Roux of the Montpellier and Paris Bars (Nzabirinda & Rutaganira), Maroufa Diabira of the Mauritanian Bar (Rugambarara), Catherine Mabille of the Paris Bar (Bisengimana), and Geert-Jan Alexander Knoops of the Dutch Bar (Bagaragaza). 334 The OTP/ICTY’s reluctance to reflect the totality of Biljana Plavši´ c’s criminal conduct by not proceeding on the genocide charge against her, was the subject of widespread criticism by the international community. 331

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challenges. Such opposition, as in the case of Rwanda and the ICTR, could lead to severe consequences which could disrupt the court activities in general. In addition, unlike at the ICTY and the ICTR, the ability of victims to participate in proceedings before the ICC, gives rise to questions about the victims’ role in plea negotiations before the said Court. In this regard, the Guidelines do not expressly provide for the involvement of the legal representatives for victims to participate in the negotiations with defendants. Rather, they encourage the OTP to consider the interests of such victims, as well as their expressed views and concerns. Further, the OTP is further encouraged to consult with the legal representatives of victims.335 Representatives of victims can also participate in the plea hearings wherein they can express their views on the terms outlined therein. In this regard, the Guidelines further encourages the OTP to prioritize admissions of guilt which are more valuable to victims, and those that are accompanied by an expression of remorse.336 Intricately linked to the issue of victims is the possibility of plea negotiations between the OTP and the Defence covering reparations proceedings which involve only the defence counsel and the legal representative of victims, to the exclusion of the OTP. It is submitted that since the OTP’s role ends at the determination of the defendant’s culpability and sentence, its competence to bargain with the Defence should be limited exclusively to matters surrounding these aspects and not include reparations. That said, as orders for reparations have a causal link to the defendant’s criminal liability, guilty plea negotiations will ultimately have an indirect impact on such orders.

11.11 Conclusion In conclusion, perhaps the clearest statement outlining the importance of guilty pleas and/or admissions of guilt in criminal proceedings before international courts and tribunals, is that which can be found in the Ahmad Al Faqi Al Mahdi trial, the first and only trial involving the admission of guilt at the ICC, wherein the Trial Chamber opined as follows: “such admissions, when accepted by the Chamber, can have a multitude of benefits to the Court and the interests of justice more generally. An admission of guilt can lead to a swifter resolution of a case, giving much needed finality in an otherwise unmatchable timeframe. While there may be victims who prefer to testify, others may wish to be spared the stress of having to testify to their personal tragedies and being exposed to cross-examination. Accused admitting guilt pursuant to an agreement to testify in subsequent trials can contribute to the search for the truth as insider witnesses in cases against others. Perhaps most importantly, 335 336

Guidelines for Agreements Regarding Admission of Guilt 2020, para 26. Ibid., para 25.

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the speed at which cases can be resolved following admissions of guilt saves the Court both time and resources, which can be otherwise spent advancing the course of international justice on other fronts”.337

References Books, Chapters in Books and (Online) Articles Bohlander M (2001) Plea-Bargaining before the ICTY. In: May R et al. (eds) Essays on ICTY Procedure and Evidence in Honour of Gabrielle Kirk McDonald. Kluwer Law International, The Hague, the Netherlands Chande Othman M (2003) The Framework of Prosecutions and the Court System in East Timor. In: Ambos K, Othman M (eds) New Approaches in International Criminal Justice: Kosovo, East Timor, Sierra Leone and Cambodia (Freiburg, Germany) Chande Othman M (2005) Accountability for International Humanitarian Law Violations: The Case of Rwanda and East Timor. Springer Publishers, Heidelberg Chande Othman M (2006) Defense Practices and the Khmer Rouge Tribunal. In: Bohlander M, Boed R, Wilson RJ (eds) Defense in International Criminal Proceedings. Transitional Publishers Inc., N.Y Cruvellier T (2004) Kibuye, a Successful Legal Saga. International Justice Tribune 19 July to 5 September 2004 Cohen D (2002) Seeking Justice on the Cheap: Is the East Timor Tribunal Really a Model for the Future? East-West Centre, Honolulu Combs NA (2006) Procuring Guilty Pleas for International Courts: The Limited Influence of Sentence Discounts. Vanderbilt Law Review Vol 59:7, 69, 69-151 Combs NA (2007) Guilty Pleas in International Criminal Law: Constructing a Restorative Justice Approach. Stanford University Press, California Cruvellier T (2010) Court of Remorse, Inside the International Criminal Tribunal for Rwanda. University of Wisconsin Press, Wisconsin Damaška M (1973) Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study. 121 U. Pa. L. Rev., 506–589 De Wet E (2008) The Relationship between the International Criminal Court and Ad Hoc Criminal Tribunals: Competition or Symbiosis? Die Friedens-Warte Vol 83:433-57 Guariglia F, Hochmayr G (2016) Proceedings on an Admission of Guilt. In: Triffterer O, Ambos K (eds) Rome Statute of the International Criminal Court – A Commentary, 3rd edn. C.H. Beck/Hart/Nomos, Germany Hirondelle News Agency (2005) Many Questions in Arusha after the Announcement of Uwilingiyimana’s Death. All Africa, 23 December 2005 https://allafrica.com/stories/200512310166.html. Accessed 6 August 2022 Kebo A (2003) Regional Report: Plavši´c Sentence Divides Bosnia. IWPR’S Tribunal Update, No. 302, 24–28 Ng L (2014) The Transfer Cases of the ICTR to the Republic of Rwanda: The Challenges of Implementing Rule 11. Master’s Thesis submitted at the Faculty of Law, Public International Law, University of Helsinki, May 2014 O’Donohue J (2013) Financing the International Criminal Court. Int’l Crim. L. Rev. Vol. 13269-296 Palmer K (2006) Justice in Jeopardy. Toronto Star, 27 March 2006 337

ICC, Prosecutor v. Ahmad Al Faqi Al Mahdi, Sentence Judgement, 27 September 2016, ICC01/12-01/15, para 28.

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Reiger C, Wierda M (2006) The Serious Crimes Process in Timor-Leste: In Retrospect. International Center for Transitional Justice Sito-Sucic D (2003) Muslim Victims Outraged, Say Plavsic Sentence Low, Reuters (27 February 2003) Skilbeck R (2008) Funding Justice: The Price of War Crimes Trials. Human Rights Brief 15:3 6–10 Tahiraj F (2018) Incorporation of the Negotiated Pleas of Guilty in Kosovo Legislation and Its Application in Practice. Acta Universitatis Danubius Vol. 14:2, 74-84 Taleb-Karlsson A (2017) Pleading Guilty: an Overview of the French Procedure. Penal Reform International, 9 January 2017 https://www.penalreform.org/blog/pleading-guilty-overview-french-pro cedure/. Accessed 6 August 2022 Weinberg De Roca I M, Rassi C M (2008) Sentencing and Incarceration in the ad hoc Tribunals. Stanford Journal of International Law Vol. 44:1, 1-62

Other Documents 4838th Meeting of the Security Council, United Nations (9 October 2003) S/PV.4838 Attorney-General’s Office (2013) United Kingdom Attorney General’s Guidelines on Disclosure for Investigators, Prosecutors, and Defence Practitioners. London, UK https://assets.publis hing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/262994/AG_Dis closure_Guidelines_-_December_2013.pdf. Accessed 6 August 2022 International Criminal Court (2020) Guidelines for Agreements Regarding Admission of Guilt. The Hague, Netherlands Plea Agreement between OTP and Dragen Kolundzija (7 September 2001) Plea Agreement between the OTP and Ivica Rajic (25 October 2005) Plea Agreement between the OTP and Joseph Serugendo (12 January 2006) Plea Agreement between the OTP and Juvénal Rugambarara (13 June 2007) Plea Agreement between the OTP and Vincent Rutaganira (7 December 2004) Resolution 1503 (2003) / adopted by the Security Council at its 4817th meeting, on 28 August 2003, United Nations (28 August 2003) S/RES/1503 Resolution 1534 (2004) Adopted by the Security Council at its 4935th meeting, on 26 March 2004, United Nations Security Council (2004) Resolution 1534 Resolution 1966 (2010) Adopted by the Security Council at its 6463rd Meeting, on 22 December 2010, United Nations Security Council (2010) Resolution 1966 Resolution adopted by the General Assembly on 23 December 2015, United Nations (17 February 2016) A/RES/70/241 Resolution adopted by the General Assembly on 5 July 2018, United Nations (5 July 2018) A/RES/72/258 Rome Statute of the International Criminal Court adopted at Rome on 17 July 1998, in force on 1 July 2002, United Nations, Treaty Series, vol. 2187, No. 38544, Depositary: Secretary-General of the United Nations United Kingdom’s Criminal Justice Act 1991 United Kingdom’s Criminal Justice and Public Order Act 1994

List of Cases English Cases DPP v Petrie, [2015] EWHC 48 Hollington, 1985 82 Cr. App. R 281

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Hoult (1990) 12 Cr App R (s) 180 R v Costen (24 April 1989a) 514/A2/88 R v Costen, 4 April 1989b, 514/A2/88 ((1989b) 11 Cr App R (S)) R v Fearon (1996) Crim. L.R 212 R v Hastings (1996) 1 Cr. App R (s) 167 The Crown vs. R & Ors [2016] 1 Cr.App.R. 20, CA Indonesian Cases Joao Fernandes v. Prosecutor, Criminal Appeal, Court of Appeal of East Timor, (29 June 2001) 2001/02 SPSC Dili Dist Ct Prosecutor v. Agustinho Atolan, Judgement (9 June 2003a) 3/2003a SPSC Dili Dist Ct Prosecutor v. Anastacio Martins and Domingos Goncalves, Judgement (13 November 2003b) 11/2001 SPSC Dili Dist Ct Prosecutor v. Damiao Da Costa Nunes (12 October 2003c) 04a/2001 SPSC Dili Dist Ct, Prosecutor v. Joao Fernandes Judgment, (25 January 2001) 01/00. C.G.2000 SPSC Dili Dist. Ct. Prosecutor v. Augusto Dos Santos Judgement (14 May 2002) 06/2001 SPSC Dili Dist. Ct. Prosecutor v. Marcurious Jose de Deus, Sentence (18 April 2002) PID.C.G/13/2001 International Courts’ Cases ICC Prosecutor v. Ahmad Al Faqi Al Mahdi, Sentencing Judgment (27 September 2016) ICC01/12-01/15 ICTR Prosecutor v. Athanase Seromba Appeal Judgement (12 March 2008) ICTR-2001-66-A ICTR Prosecutor v. Athanase Seromba Trial Judgement (13 December 2006) ICTR-2001-66-I ICTR Prosecutor v. Clément Kayishema and Obed Ruzindana Appeal Judgement (1 June 2001), ICTR-95-1-A ICTR Prosecutor v. Dražen Erdemovi´c Appeal Judgement (7 October 1997a) IT-96-22-A ICTR Prosecutor v. Dražen Erdemovi´c Sentencing Judgment (29 November 1996a) IT-96-22-A ICTR Prosecutor v. Gorges Ruggiu, Sentence Judgement (1 June 2000) ICTR-97-32 ICTR Prosecutor v. Jean Kambanda Sentencing Judgement (4 September 1998) ICTR-97-23-A ICTR Prosecutor v. Jean Uwinkindi (28 June 2011) ICTR-2001-75-R11bis ICTR Prosecutor v. Jean-Paul Akayesu Trial Judgement (2 September 1998) ICTR-96-4-T ICTR Prosecutor v. Joseph Nzabirinda Sentencing Judgment (23 February 2007a) ICTR-2001-77-T ICTR Prosecutor v. Joseph Serugendo Sentencing Judgement (12 June 2006) ICTR-2005-84-I ICTR Prosecutor v. Juvénal Rugambarara Sentencing Judgement (16 November 2007) ICTR-0059-T ICTR Prosecutor v. Laurent Semanza Sentencing Judgement (15 May 2003) ICTR-97-20-T ICTR Prosecutor v. Omar Serushago Sentencing Judgement (5 February 1999) ICTR-98-39-S ICTR Prosecutor v. Paul Bisengimana Sentencing Judgement (13 April 2006) ICTR 00-60-T ICTR Prosecutor v. Protais Zigiranyirazo Sentencing Judgment (18 December 2008) ICTR-01-73-T ICTR Prosecutor v. Protais Zigiranyirazo, (3 October 2005), ICTR-2001-73-T ICTR Prosecutor v. Rutaganira, Sentence Hearing (7 January 2005) ICTR-95-1C-T ICTR Prosecutor v. Rutaganira, Sentence Judgement (14 March 2005) ICTR-95-1C-T ICTR Prosecutor v. Vincent Rutaganira Sentence Judgment (14 March 2005) ICTR-95-IC ICTY Prosecutor v. Babi´c Appeal Judgment (18 July 2005a) IT-03-72 ICTY Prosecutor v. Babi´c Sentencing Judgment (29 June 2004) IT-03-72 ICTY Prosecutor v. Bagaragaza, Sentencing Judgment (5 November 2009) ICTR-05-86-S ICTY Prosecutor v. Biljana Plavsic Sentencing Judgement (27 February 2003) IT-00-39&40/1 ICTY Prosecutor v. Darko Mrða Sentencing Judgement (31 March 2004) IT-02-59 ICTY Prosecutor v. Dragan Nikoli´c Appeal Judgment (5 February 2005b) IT-94-2 ICTY Prosecutor v. Dragan Nikoli´c Sentencing Judgment (18 December 2003a) IT-94-2 ICTY Prosecutor v. Dragan Zelenovic Sentencing Judgment (4 April 2007b) IT-96-23/2-S ICTY Prosecutor v. Dragan Obrenovi´c Sentencing Judgment (10 December 2003) IT-02-60/2 ICTY Prosecutor v. Dražen Erdemovi´c Appeal Judgement (7 October 1997b) IT-96-22A ICTY Prosecutor v. Dražen Erdemovi´c, Sentencing Judgment (29 November 1996b) IT-96-22

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ICTY Prosecutor v. Dusko Sikirica, Damir Dosen, Dragen Kolundzija, Sentencing Judgement (13 November 2001) IT-95-8-S ICTY Prosecutor v. Goran Jelisi´c Sentencing Judgement (14 December 1999) IT-95-10 ICTY Prosecutor v. Goran Jelisi´c Trial Judgement (19 October 1999) IT-95-10-T ICTY Prosecutor v. Hazim Delic Appeal Judgement (20 February 2001a) IT-96-21-A ICTY Prosecutor v. Hazim Delic Sentencing Judgement (9 October 2001) IT-96-21-Tbis-R117 ICTY Prosecutor v. Ivica Raji´c Sentencing Judgement (8 May 2006) IT-95-12 ICTY Prosecutor v. Milan Simi´c Sentencing Hearing (4 May 2001) IT-95-9/2-S ICTY Prosecutor v. Milan Simi´c Sentencing Judgement (17 October 2002) IT-95-9/2-S ICTY Prosecutor v. Miodrag Jokic Appeal Judgement (30 August 2005) IT-01042/1-A ICTY Prosecutor v. Miodrag Joki´c, Sentencing Judgement (18 March 2004) IT-01-42/1 ICTY Prosecutor v. Miroslav Bralo Sentencing Judgment (7 December 2005) IT-95-17-S ICTY Prosecutor v. Miroslav Deronji´c Sentencing Judgement (30 March 2004) IT-02-61-S ICTY Prosecutor v. Miroslav Kvocka et al Trial Judgment (2 November 2001b) IT-98-30/1-T ICTY Prosecutor v. Momir Nikolic Sentencing Judgement (2 December 2003) IT-02-60/1-S ICTY Prosecutor v. Predrag Banovi´c Sentencing Judgement (28 October 2003b) IT-02-65/1-S ˇ c (11 March 2004) IT-95-10/1 ICTY Prosecutor v. Ranko Ceši´ ICTY Prosecutor V. Stevan Todorovi´c Sentencing Judgement (31 July 2001) IT-95-9/1-S ICTY Prosecutor v. Zlatko Aleksovski Trial Judgement (25 June 1999) IT-95-14/1 ICTY Prosecutor v. Zlatko Aleksovski, Appeal Judgment (24 March 2000) IT-95-14/1-A ICTY, Prosecutor v. Sikirica, Sentencing Judgement (13 November 2001), IT-95-8

Charles A. Adeogun-Phillips is an accomplished international lawyer and former lead international prosecutor. He founded the cross-border law firm of Charles Anthony LLP, following a distinguished legal career at the UN, wherein he successfully led teams of international prosecutors in 12 precedent-setting genocide trials before the United Nations International Criminal Tribunal for Rwanda, making him arguably one of the most experienced and successful genocide prosecutors in history. In 2021, he was called to the Bar of England and Wales as a transferring Solicitor, by the Honourable Society of Lincoln’s Inn, and practises as a Barrister from the prestigious Guernica 37 (International Justice) Chambers in London and The Hague. In 2022, he was the awarded the degree of Doctor of Laws (honoris causa) by his alma mater, Warwick University, in recognition of his outstanding contribution to the development of international criminal law. He contributed to the book International Criminal Investigations, Law, and Practice—“The Challenges of International Investigations and Prosecutions: Perspectives of a Prosecutor” published by Eleven International, The Hague in 2018. He is the focal point for Nigeria at the ICC Bar Association.