National Accountability for International Crimes in Africa 3030880435, 9783030880439

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National Accountability for International Crimes in Africa Edited by

e m m a c h a r l e n e lu b a a l e n t om bi zoz u ko dya n i-m h a ng o

National Accountability for International Crimes in Africa

Emma Charlene Lubaale · Ntombizozuko Dyani-Mhango Editors

National Accountability for International Crimes in Africa

Editors Emma Charlene Lubaale Faculty of Law Rhodes University Grahamstown/Makhanda South Africa

Ntombizozuko Dyani-Mhango Faculty of Law University of Pretoria Pretoria, South Africa

ISBN 978-3-030-88043-9 ISBN 978-3-030-88044-6 (eBook) https://doi.org/10.1007/978-3-030-88044-6 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. 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. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Foreword

International crimes such as genocide, war crimes, crimes against humanity and aggression shock human conscience and necessitate action from individual states and the international community of states as a whole. Sadly, there is a historical account of these atrocities occurring in the African Continent. Therefore, national accountability for international crimes remains high on Africa’s agenda. However, it remains a concern whether African states are committed to preventing and halting these crimes from occurring in their respective territories as reports of atrocities in Tigray, Ethiopia, Mozambique and Eswatini, just to mention a few, are ongoing. These concerns necessitate a critical reflection on the progress made, challenges encountered and the prospects for accountability for international crimes in Africa. With close to two decades since the establishment of the International Criminal Court (ICC) when states ratified the Rome Statute, and considering that 60% of African states have ratified it, it became important to embark on such a reflection by the editors of this volume. As the ICC exercises jurisdiction over perpetrators of international crimes based on the complementarity principle, this volume provides a comprehensive analysis and latest research, from a perspective of African scholars, on national accountability for international crimes in Africa. This edited volume brings together original material from diverse perspectives developed by legal practitioners, political scientists, criminal

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justice experts and scholars from different criminal justice traditions operating on the African Continent. Case studies from West, East, Central, North and Southern Africa have been reviewed, thus making the edited volume a comprehensive collection of continent-wide perspectives on the topic. The volume blends the use of case studies and doctrinal legal research approaches that adopt the current approaches to the subject of accountability for international crimes in Africa. In addition to case studies, the volume has adopted a comparative approach that highlights the gaps and good practices in a manner that provides a rich authoritative source for promoting an intra-African dialogue about international criminal justice in Africa. Given the dearth of research in the thematic focus of this volume and the unique African lens through which the volume is approached, the volume makes a worthwhile contribution to literature on national accountability for international crimes. Effectively, the volume ensures that the African voice is heard on issues pertaining to the application of the complementarity principle in Africa. The contextual insights, practices and accounts on the application of the complementarity principle in Africa will help to inform research and practice-based reforms to law and policy on issues of international criminal justice in Africa. Therefore, this edited volume will be relevant to international criminal justice practitioners on the continent, the ICC and other international criminal tribunals. The volume will also be a valuable resource for academics and research students of international criminal justice, political science, international law, African legal studies and criminal justice generally. States in whose territory the alleged international crimes have been or are being committed will find this volume useful as it explores ways to not only hold the alleged perpetrators responsible for committing the crimes, but it also suggests various ways in which these states can achieve justice for the victims, and national healing, reconciliation and lasting peace. The focus of the book and the voices emerging from the various chapters make this a very timely publication since in 2022 the Rome Statute’s complementarity regime will have been in existence for two decades. Chatting the way forward at this juncture is critical in debates pertaining to national accountability for international crimes in Africa and this volume offers just that. I, therefore, strongly recommend this volume

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edited and authored by these scholars from Africa. I am certain that many will find it useful. July 2021

Professor Tawana Kupe Vice-Chancellor and Principal University of Pretoria Pretoria, South Africa

Acknowledgements

The editors of this book (Professor Lubaale and Professor DyaniMhango) wish to extend their gratitude to all the authors for their commitment to this project from the time of inception to its conclusion. Their patience adherence to strict deadlines and openness to engaging with the comments made by the independent/blind reviewers of chapters made this project worthwhile. Special thanks go to the team at Springer Nature for their courtesy emails and dedication to ensuring that the book is published on time. We also appreciate the encouragement and invaluable support we received from our colleagues at the Faculty of Law at Rhodes University, the Faculty of Law at University of Pretoria, and the various leadership structures in these two institutions. Sincere appreciation is also extended to the academics and experts in international criminal law who took time to read through drafts of this volume and writing blurbs on it. Importantly, the chapters in this book could not have been finalized without the independent reviewers’ incisive comments. We acknowledge the vital role of all these reviewers: Advocate Tekane Maqakachane Doctor Michael Addaney Doctor Simangele Daisy Mavundla Doctor Martha Bradley Doctor Sylvie Namwase Doctor Rufaro Mavunga Doctor Bonita Meyersfeld ix

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ACKNOWLEDGEMENTS

Doctor Itumeleng Shale Doctor Carol Chi Ngang Doctor Nomalanga Mashinini Doctor Mispa Roux Doctor Kesolofetse Olivia Lefenya Doctor Dr. Khulekani Moyo Doctor Sanele Sibanda Doctor Robert Doya Nanima Doctor Akinola Akintayo Doctor Caroline Nalule Doctor Mwiza Nkhata Doctor Ellah Siang’andu Doctor Dr. Swikani Ncube Ms. Angela Mudukuti Ms. Samantha Barkley Mr. Audu Mgbede Echono Professor Jeremy Julia Sarkin Professor Bonolo Dinokopila Professor Angelo Dube Professor Funmi T Abioye Professor John-Mark Iyi Professor Mtendeweka Mhango Professor Avitus Agbor Professor Lilian Chenwi Professor Ouma Ba Professor Vinodh Jaichand

Contents

Introduction: Relevance of Debates on National Accountability for International Crimes in Africa Emma Charlene Lubaale and Ntombizozuko Dyani-Mhango

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African Union’s Perspectives on the Complementarity Principle in Africa ‘An Effective Complement to National Criminal Justice Systems, Operating Within the Highest Standards of International Justice’? African States, the International Criminal Court & Complementarity Christopher Gevers and Linda Mushoriwa Appraising the Regime of Cooperation Under the Malabo Protocol Suzgo Lungu Universal Jurisdiction as a Tool in Promoting Accountability for International Crimes in Africa: Exploring the Significance of Hissene Habre’s Conviction Innocent Mung’omba Complementarity and Criminal Liability of Companies in Africa: Missing the Mark? Charmika Samaradiwakera-Wijesundara

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The Complementarity Principle and Prospectives Expanding the Scope of Complementarity? Towards Institutionalised Complementarity Between the International Criminal Court and National Criminal Justice Systems in Africa Evelyne Owiye Asaala

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African Restorative Justice Approaches as Complementarity: The Case of Libya Emma Charlene Lubaale and James Carkeek

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Now Available but Still Not Accessible to the ICC: Bashir and Africa’s Politics Emma Charlene Lubaale

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Ongoing Prospectives and Challenges of National Accountability for International Crimes in Africa Complementarity and Federalism: Prosecuting International Crimes Under the Rome Statute Complementarity Principle in Nigeria as a Federal State Muyiwa Adigun Accountability for Violations Against Internally Displaced Persons in Nigeria: Finding a Nexus Between International Criminal Justice and Human Rights Violations Azubike Chinwuba Onuora-Oguno, Oluwabunmi Niyi-Gafar, and Ikebundu Francis Ekene The Establishment of the Hybrid Court for South Sudan and the Special Criminal Court for Central African Republic: Challenges and Prospects Kasaija Phillip Apuuli

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A Critical Assessment of the International Crimes Division of the High Court of Uganda Josephine Ndagire

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Wild Goose Chase, or a Quest for Genuine Prosecution? Lessons from Uganda’s Ongoing Trial of Thomas Kwoyelo Daniel Ronald Ruhweza

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Reflecting on National Accountability for Pre-Rome Statute International Crimes South Africa’s Accountability for International Crimes: Revisiting the (Non) Prosecution of Perpetrators of Apartheid for Crimes Against Humanity Ntombizozuko Dyani-Mhango A History of Atrocity: Patterns, Perpetrators and Prospects for Accountability for International Crimes in Zimbabwe Siphosami Malunga Unpacking Gukurahundi Atrocities Against the Ndebeles of Zimbabwe: What Are the Possibilities for Individual Criminal Responsibility of the Perpetrators Under International Criminal Law? Siphosami Malunga

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Conclusion: Where to, Now? Ntombizozuko Dyani-Mhango and Emma Charlene Lubaale

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Index

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Notes on Contributors

Muyiwa Adigun holds an LL.B. (First Class Honours) and an LL.M. (Distinction) both from University of Ibadan, Ibadan, Nigeria. He received his Doctor of Philosophy degree in law from the University of the Witwatersrand, Johannesburg. His research interests include jurisprudence, public law, international law and comparative law. He is the author of: The International Criminal Court and Nigeria: Implementing the Complementarity Principle of the Rome Statute (Abingdon, UK: Routledge/Taylor and Francis 2018). Between 2007 and 2015, he was in private legal practice as a Barrister and Solicitor of the Supreme Court of Nigeria. He was also a Post-doctoral Research Fellow, Department of Public and International Law, School of Law, University of Venda, Thohoyandou, South Africa between 2019 and 2020. He is currently a Senior Lecturer in the Faculty of Law, University of Ibadan, Ibadan, Nigeria. Kasaija Phillip Apuuli is an Associate Professor of Political Science in the Department of Political Science and Public Administration, Makerere University Kampala. He holds a Doctor of Philosophy (D.Phil.) degree in International Law, University of Sussex at Brighton, UK. He was a British Academy Visiting Scholar at African Studies Centre, University of Oxford (2010); and a Fulbright Scholar-in-Residence, University of South Florida (St Petersburg) and Stetson School of Law (Gulfport), Florida, USA (2016). He specialized in the areas of International Criminal Law, Conflict Mediation, and Regional Integration (especially the xv

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AU and EAC). He is the author of several book chapters and articles in refereed journals including African Security Review; Criminal Law Forum; Journal of International Criminal Justice; Leiden Journal of International Law, African Security; African Yearbook of International Law; and Journal of Contemporary African Studies among others. Evelyne Owiye Asaala is a Lecturer of law at the University of Nairobi, she holds a Ph.D. from the University of Witwatersrand (South Africa), a Master of Laws degree from the University of Pretoria (South Africa) and a Bachelor of Laws degree from the University of Nairobi (Kenya). Evelyne has published widely in the area of international criminal law. She has previously consulted with the Trust Fund for Victims of the International Criminal Court, Saferworld International, the International Nuremberg Principles Academy, Truth Justice and Reconciliation Commission of Kenya (TJRC) and the Bail and Bond Task Force in Kenya. James Carkeek obtained his Bachelor of Arts degree from Rhodes University, he then went on to complete his Honours degree jointly at Rhodes University and Utrecht University before returning to Rhodes to complete his LL.B. He went on to complete his Masters of Advanced Studies in Transitional Justice, Human Rights and the Rule of Law at the Geneva Academy. He has worked as an Intern and then later an Independent Contractor at the International Criminal Court and is currently a Pupil Member of the Pretoria Society of Advocates. His research interests include International Criminal Law, Human Rights Law and Rule of Law Jurisprudence in African states. Ntombizozuko Dyani-Mhango holds LL.B. and LL.M. degrees from the University of the Western Cape (UWC) and Doctor of Juridical Science (SJD) degree from the University of Wisconsin-Madison. She is a Full Professor and Head of the Department of Public Law at the Faculty of Law of the University of Pretoria. She is rated as an established researcher by the National Research Foundation of South Africa. She is also an Admitted Advocate of the High Court of South Africa. Until recently, she held academic positions up to Associate Professorship at the University of the Witwatersrand teaching public international law, international criminal law and constitutional law to both undergraduate and graduate students. She has also clerked for former Chief Justice Ngcobo at the Constitutional Court of South Africa and was an

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intern (legal research) in the Chambers Section at the International Criminal Tribunal for Rwanda. It, therefore, is no surprise that her areas of specialization fall under International Law and Constitutional Law, with a focus on African Union Law, in particular member states obligations in international criminal justice, and South Africa’s international and constitutional obligations. She has published widely and presented papers in about 30 international and national conferences in these areas. She is a sole contributing editor of a well-received Special Issue (book formatted) titled Twenty-First Century Constitutional Jurisprudence of South Africa: The Contribution of Former Chief Justice S Sandile Ngcobo, published in the Southern African Public Law 2017 (issues 1&2) volume. DyaniMhango was recently appointed as an inaugural fellow of the Pan African Scientific Research Council. She is also a member of the Law and Society Association (a member of its Governance Committee 2019-2021) and the African Society of International Law. She is a Managing Editor for the South African Chapter— International Association of Women Judges Law Journal to be launched in late 2021, a member of the Editorial Committee of the Comparative & International Law Journal of Southern Africa, and of the Editorial Board of the Southern African Public Law. She is also a member of the Advisory Board of the African Centre for Transitional Criminal Justice based at UWC’s Faculty of Law. DyaniMhango was recognized as one of South Africa’s Mail & Guardian Top 200 Young South Africans in 2013. Ikebundu Francis Ekene studied Law at University of Nigeria, Nsukka (UNEC), in 2010. He was called to Nigerian Bar in 2012. Francis served the National Youth Service Corps (NYSC), Ilorin, Kwara State, upon the completion of service year he joined the firm of Chief Ayo Ajomole & Co. Chambers where he rose to become the Head of Chambers (HOC). He holds an LL.M. in common Law from University of Ilorin and currently a Ph.D. candidate under the supervision of Dr. Azubike Chinwuba OnuoraOguno. Christopher Gevers teaches international law and legal theory in the School of Law, University of KwaZulu-Natal. His research focusses on Black Internationalism, Third World Approaches to International Law, Critical Race Theory, and Law and Literature. Since 2015 he has been a faculty member of the Institute for Global Law & Policy at Harvard Law School and has been a visiting Fellow at the University of Oxford and Harvard Law School. His most recent publications appear in Craven,

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Pahuja & Simpson (eds.) International Law and the Cold War (2019), Heller et al. (eds.) Oxford Handbook of International Criminal Law (2020) and the London Review of International Law. Emma Charlene Lubaale is an Associate Professor at the Faculty of Law of Rhodes University. She has previously taught law at the University of Venda. Prior to this, she taught and researched law in the capacity of a Post-doctoral Research Fellow at the University of Pretoria’s Institute of International and Comparative Law in Africa. She holds LL.D. and LL.M. degrees from the University of Pretoria. She obtained an LL.B. from Makerere University, a post-graduate diploma in legal practice from Uganda’s Law Development Center and a post-graduate diploma in Higher Education from the University of KwaZulu-Natal. Her current areas of interest are: criminal law, international human rights law, international criminal law, women and children’s rights. She is currently a member of the Organization of Women in Science for the Developing World, a member of the South African Young Academy of Science (SAYAS), a rated researcher by the National Research Foundation (NRF) of South Africa, a Fellow with the African Science Leadership Program and a member of the Research and Publication Committee of the Black Lawyers Association of South Africa. In January 2020 she was appointed by the NRF to serve on the NRF Standing Panel for the Humanities and Social Sciences (HSS) from 2020 to 2023. She has served as a law reviewer for publishers including Springer Nature, the Pretoria University Law Press, the Journal of Sexual Aggression, Speculum Juris, De Jure, South African Crime Quarterly and Journal of Law, Society and Development. She is widely published and has made several presentations at national and international conferences on critical issues in her fields of interest. Suzgo Lungu has over 17 years of professional experience in the provision of legal advice to government in the area of public international law including international criminal law, international humanitarian law, international trade law, development law and international human rights law and various contexts of domestic law at both national and international levels. He has experience of working in 11 SADC countries on international criminal justice and business and human rights. He is currently a Programme Consultant for the Southern Africa Litigation Centre (SALC) in the International Justice and Business Human Rights Programme. Suzgo holds a Doctorate of Philosophy in Law from the University of

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Witwatersrand, an LL.M. in Commercial Law (Cardiff University, UK), an LL.M. in International Human Rights Law (Notre Dame, USA), a Bachelor of Laws (Hons) degree (University of Malawi) and a certificate in Parliamentary Drafting (International Law Institute, Uganda). Suzgo is an appointed public notary and prescribed Legal Practitioner. He was called to the Malawi bar in 2003. He has litigation experience at both domestic and international settings including Courts of Malawi, South Africa, Zambia, Lesotho and Zimbabwe and also before international tribunals including the International Criminal Court and the African Court on Human and People’s Rights. Suzgo’s expertise includes contract and treaty negotiations and analysis, legal research and advisory, programme development or design and implementation. His research interests are in the area of public international law, international human rights law, development law, international humanitarian law, international trade law and international criminal law. Siphosami Malunga is the Executive Director of the Open Society Initiative for Southern Africa (OSISA) and a human rights lawyer with extensive experience in justice and governance in Africa. He took the helm of OSISA in August of 2013; having previously worked with the United Nations Development Program (UNDP) as the senior governance advisor and regional program manager in the Regional Bureau for Africa. He managed UNDP’s democratic governance program for Africa providing policy analysis and intellectual leadership to governance advisors in UNDP’s Africa offices. Malunga joined the Department of Peacekeeping Operations in the UN’s Transitional Administration in East Timor in 2000 as an advisor to the transitional minister of justice, and later as senior defence trial attorney with the UN Serious Crimes Tribunal. From 2003 to 2006 he worked with the UN in Afghanistan to rebuild the justice sector, before moving to UNDP’s Governance Centre in Oslo where he led UNDP’s effort to integrate conflict prevention in democratic governance policy and programming. In 2008, he moved to Johannesburg to work in UNDP’s East and Southern Africa office until 2011. Malunga earned his LL.B. at the University of Zimbabwe in 1994 and a Masters in International Law (Cum Laude) from the University of Oslo, Norway in 2007. He is currently studying towards a doctoral degree in law (LL.D.) at the University of Witwatersrand. He is regular contributor on political and economic governance as well as human rights and accountability issues in national, regional and global publications.

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Innocent Mung’omba is a Legal Assistant at Musa Dudhia and Company, a top tier law firm in Zambia which is part of the Africa Legal Network. He has a Bachelor of Laws Degree from the University of Zambia. As an emerging writer in the area of International Law, he continues to take keen interest in issues regarding the prosecution of international crimes on the African Continent. His 2019 undergraduate dissertation titled “The Application of Universal Jurisdiction in Africa: Exploring the Implications of Hissene Habre’s Conviction in Senegal” has been hailed as a “great piece of scholarly writing” by academicians at the University of Zambia. Notable among these academicians are Dr. Ellah Siang’andu, the principal lecturer of International Law at the University of Zambia and Dr. O’Brien Kaaba, the Assistant Dean for legal research at the University of Zambia. Linda Mushoriwa is a Post-doctoral Research Fellow at the University of Johannesburg, affiliated to the South African Research Chair in International Law. She obtained her Ph.D. degree from the University of KwaZulu-Natal. Her research interests are international criminal justice; international legal theory; postcolonial theory; women and children’s rights and law and literature. Josephine Ndagire is a Lecturer at the School of Law, Makerere University. Dr Ndagire worked with a number of local and international organizations, most recently, as Head of Training at the International Nuremberg Principles Academy (Germany), Director of Legal Services at the Foundation for Human Rights Initiative (Uganda) and as a Senior Researcher at the Max Planck Institute for Foreign and International Criminal Law (Germany). Her publications include a book titled National Redress for ‘Gendered’ International Crimes: Uganda, Germany and the International Criminal System, Verlag Dr. Kovac, Hamburg, 2015.1 She also conceptualized and co-published Cooperation between Civil Society Actors and Judicial Mechanisms during Prosecution of Conflict-Related Sexual Violence: Guiding Principles and Recommendations, International Nuremberg Principles Academy, April 2017. She holds a Doctor of Juridical Science (SJD) degree from Emory University (US), a Master of Laws (LLM) degree from the University of Notre Dame (US) and a Bachelor of Laws degree from Makerere University. Oluwabunmi Niyi-Gafar is currently a Senior Lecturer at the department of Jurisprudence and International law, in the Faculty of Law,

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University of Ilorin, Ilorin Kwara state. Bunmi, as she is commonly referred to, holds an LL.D. (2017) from the University of Pretoria, South Africa and an LL.M. (2008) from the University of Ibadan, Oyo State Nigeria. Her areas of research interest are access to domestic water in Africa, Disability Rights, International Human rights and Criminal Justice. Azubike Chinwuba Onuora-Oguno holds an LL.D. from the Centre for Human Rights at the University of Pretoria. He is a graduate of the Prestigious LL.M. in Human Rights and Democratisation in Africa at the University of Pretoria. Azubike was a former law clerk in the Information and Evidence Unit of the Office of the Prosecutor, International Criminal Court. He is fellow of the Visiting Professional Program at the OSgoode Hall Law School Canada. He delivered the Dean’s Lunch time Lecture at the Thurgood Marshal Law School, Houston, Texas and a Speaker at the American Society of International Law. Azubike coordinates an International Research Collaboration group of the Law and Society Association. He is the Secretary General of the International Public Law Society, Nigeria Chapter and the Assistant Secretary of the Nigerian Society of International Law. He is currently a Senior Lecturer at the Department of Jurisprudence and International Law, Faculty of Law University of Ilorin and a teaching research fellow at the International Institute of Social Studies, The Netherlands. Daniel Ronald Ruhweza is a Ugandan and UK trained Attorney and Lecturer at Law. Daniel obtained his Bachelor of Laws Degree from Makerere University, Master of Laws Degree from the University of Cambridge in England and Doctor of Philosophy from the University of Kent at Cambridge in England. He also received a Higher diploma in Peace and Security from Uppsala University in Sweden. He is a Lecturer with the Department of Law and Jurisprudence at law at Makerere University where he teaches constitutional law, international law and the law of treaties. He serves as the Chair of the Committee of Rule of Law and Strategic Litigation of the Uganda Law Society as well as representing the Uganda Law Society on the Committee on Legal Education and Training of the Uganda Law Council. Charmika Samaradiwakera-Wijesundara is a Lecturer at the University of the Witwatersrand, Johannesburg (Wits) School of Law. Prior to which she was a Research and Teaching Associate at the Wits School of Law

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and associated researcher of the Business and Human Rights Programme of the Centre for Applied Legal Studies. She completed her articles of clerkship in the Corporate and Commercial Law Department of Edward Nathan Sonnebergs Inc (subsequently ENSafrica) and is an admitted attorney of the High Court of South Africa. She graduated her LL.B. (with distinction) and LL.M. (by dissertation) at Wits. She is currently a Ph.D. candidate on a joint programme with Wits and the International Institute of Social Sciences in The Hague. She was the vice-president of the Law Students’ Council and awarded the Law School Endowment Appeal Prize by Wits. She is an Abe Bailey Fellow, member of the Golden Key International Honour Society and a graduate of the Robben Island Young Leaders Academy.

Abbreviations and Acronyms

AC ACJHPR AFISM-CAR/MISCA African Charter APII

ARCSS ASP ATCS AU AU PSC AZAPO BHR CAR CC CFRN CID CIO CNT CoM CPA CSOs DEIC

African Commission African Court of Justice and Human and Peoples Rights African-Led International Support Mission in the Central African Republic African Charter on Human and Peoples Rights Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts Agreement on the Resolution of the Conflict in the Republic of South Sudan Assembly of State Parties to the Rome Statute Alien Tort Claims Statute African Union AU Peace and Security Council Azanian People’s Organization Business and Human Rights Central African Republic Constitutional Court Constitution of the Federal Republic of Nigeria Criminal Investigation Department Central Intelligence Organisation National Transitional Council Committee of Ministers Criminal Procedure Act Civil Society Organizations Dutch East India Company xxiii

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ABBREVIATIONS AND ACRONYMS

DRC EAC ECCAS

ECOWAS ECtHR EIC GoU HCSS HRW HURIWA IActHR ICC ICCPR ICD ICJ ICL ICRC ICTJ ICTR ICTY IDPs IGAD IHAT IHL ILC IMT IMTFE LOCJ LRA Malabo Protocol

MINUSCA MoI MONUSCO MOSOP MP NCFR

The Democratic Republic of the Congo Extraordinary African Chambers Extra-Ordinary Summit of Heads of State and Government of the Economic Community of Central African States Court for the Economic Community of West African States European Court on Human Rights East India Company Government of Uganda Hybrid Court for South Sudan Human Rights Watch Human Rights Writers Association of Nigeria Inter-American Court of Human Rights International Criminal Court International Covenant on Civil and Political Rights International Crimes Division International Court of Justice International Criminal Law International Committee of the Red Cross The International Centre for Transitional Justice International Criminal Tribunal for Rwanda International Criminal Tribunal for Former Yugoslavia Internally Displaced Persons Intergovernmental Authority on Development Iraq Historic Allegations Team International Humanitarian Law International Law Commission International Military Tribunal International Military Tribunal for the Far East Law on the Organization, Functioning and Jurisdiction of the Courts Lord’s Resistance Army Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic Memorandum of Intent Mission in the Democratic Republic of the Congo Movement for the Survival of the Ogoni People Member of Parliament National Commission for Refugees

ABBREVIATIONS AND ACRONYMS

NDPP NEMA NGOs NIACs NPA NPC NPRC OAS OAU OTP PRC PTC RDP RNC Rome Statute/Statute

RoSS RPE RS RTGoNU SADC SCC SEMA Shell SPDC SPLM/A-IG SPLM/A-IO STL TRC/TC UAC UFDR UK UN UNC UNCAT

UNICEF UNMISS

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National Director of Prosecutions National Emergency Management Agency Non-Government Organisations Non-International Armed Conflicts National Prosecuting Authority Nigerian Petroleum Company National Peace and Reconciliation Commission Organisation of American States Organization of the African Unity Office of the Prosecutor Permanent Representative Committee Pre-Trial Chamber Royal Dutch-Petroleum Royal Niger Company The Rome Statute of the International Criminal Court, 17 July 1998, came in force on 1 July 2002, United Nations, Treaty Series, vol. 2187, No. 38544 Republic of South Sudan Rules of Procedure and Evidence Rome Statute Revitalized Transitional Government of National Unity South African Development Community Special Criminal Court State Emergency Management Agency Royal Dutch Shell Shell Petroleum Development Corporation Sudan People’s Liberation Movement/Army-In Government Sudan People’s Liberation Movement/Army-In Opposition Special Tribunal of Lebanon Truth and Reconciliation Commissions (also known as Truth Commissions) United Africa Company Union of Democratic Forces for Unity United Kingdom United Nations United Nations Charter United Nations Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, 1984 United Nations Children’s Emergency Fund The United Nations Mission in South Sudan

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ABBREVIATIONS AND ACRONYMS

UNSC USA UTMs WTO WWII ZANU ZAPU ZNA

United Nations Security Council United States of America Urgent Temporary Measures World Trade Organisation World-War II Zimbabwe African National Union Zimbabwe African Peoples Union Zimbabwe National Army

Introduction: Relevance of Debates on National Accountability for International Crimes in Africa Emma Charlene Lubaale and Ntombizozuko Dyani-Mhango

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Introduction

In this new age of accountability, those who commit the worst of human crimes will be held responsible. Whether they are rank-and-file foot soldiers or military commanders … whether they are lowly civil servants following orders, or top political leaders … they will be held accountable.1

1 See, United Nations General Assembly, Secretary-General’s ‘Age of Accountability’

address to the Review Conference on the International Criminal Court, Kampala, 31 May 2010, SG/SM/12930L/3158, available at https://www.un.org/sg/en/content/sg/spe eches/2010-05-31/address-review-conference-international-criminal-court-age (accessed on 11 July 2021).

E. C. Lubaale (B) Faculty of Law, Rhodes University, Grahamstown, South Africa e-mail: [email protected] N. Dyani-Mhango Faculty of Law, University of Pretoria, Pretoria, South Africa e-mail: [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. C. Lubaale and N. Dyani-Mhango (eds.), National Accountability for International Crimes in Africa, https://doi.org/10.1007/978-3-030-88044-6_1

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E. C. LUBAALE AND N. DYANI-MHANGO

These are the words of the then United Nations (UN) SecretaryGeneral, Ban Ki Moon, uttered in Kampala, Uganda, when Assembly of States Parties to the Rome Statute of the International Criminal Court (ICC) met in the review conference of the Rome Statute. These words echo the international criminal justice expectation for individual criminal responsibility of perpetrators including commanders and subordinates,2 and confirming that international crimes are not perpetrated by abstract entities but by individuals.3 International criminal tribunals,4

2 See, for example, arts 25 (on individual criminal responsibility) and 28 (on the ‘[r]esponsibility of commanders and other superiors’) of the Rome Statute of the International Criminal Court, 17 July 1998, 2187 U.N.T.S. 90 (entered into force on 1 July 2002) (Rome Statute). 3 See, IMT Judgment (1947) 41 American Journal of International Law 172 221,

holding that ‘[c]rimes 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’. 4 The International Criminal Tribunal for the former Yugoslavia (the ICTY) was established to prosecute ‘Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991,’ S.C. Res. 827 (25 May 1993). The Statute of the ICTY is contained in UN Doc. S/25704, Anne, x (3 May 1993), and the International Criminal Tribunal for Rwanda (the ICTR) was established 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 Violations in the Territory of Neighboring States, between 1 Jan. 1994 and 31 Dec. 1994,’ SC Res. 955 (8 Nov. 1994). The Statute of the ICTR is attached to SC Res. 955 as an annex. The notable cases from the ICTY are Prosecutor v Dusko Tadic, Judgment, IT-94-1-T, 7 May 1997 (war crimes and crimes against humanity); Prosecutor v Kunarac, Judgment, IT-96– 23 &-IT-96–23/1-A, 12 June 2002 (war crimes, crimes against humanity in the form of torture and rape); and Prosecutor v Furundžija, IT-95–17/1-T, Judgment, 10 December 1998 (war crimes in the form of rape and torture); and the notable cases of the ICTR are Prosecutor v Akayesu, Judgment, 2 September 1998, ICTR—96-13-T (convicted of genocide and crimes against humanity including rape); and Prosecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza, and Hassan Ngeze, Judgment, 3 December 2003, ICTR-99-52-T (convicted of genocide and crimes against humanity).

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special courts5 and the International Criminal Court (ICC)6 have held accountable perpetrators of these crimes. But that is just one side of national accountability for international crimes. States are also accountable to their citizens by ensuring that the perpetrators of international crimes are prosecuted and convicted, and to prevent their reoccurrence. In his explanation of the meaning of accountability in relation to those who exercise public function, Okpaluba opines that. [accountability] means an obligation that one is bound in law or in justice to perform. In effect, accountability is an elastic, all embracing word such that where a functionary is said to be accountable, it means that they must be answerable and responsible both politically and legally as well as being morally bound. Above all, the functionary is liable in terms of the law…7

At the heart of national accountability for international crimes is the principle of complementarity that is found in the Rome Statute provisions. Newton has argued that this principle ‘is designed to serve as a pragmatic and limiting principle rather than an affirmative means for an aggressive prosecutor to target the nationals of states that are hesitant to embrace ICC jurisdiction and authority’.8 Accordingly, the ICC acts as a supranational court as the principle of complementarity gives states 5 The Special Court for Sierra Leone (the SCSL) was established through an agreement between the United Nations and the Government of Sierra Leone by UN Security Council Resolution 1315 (2000), 14 August 2000, S/RES/1315 (2000), ‘to try those who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996’ (art 1(1) of the Statute of the SCSL). The notable conviction from the SCSL is Prosecutor v Charles Ghankay Taylor, Judgment, 26 September 2013, SCSL-03-01-A (war crimes including rape). 6 See, for example, Prosecutor v Bosco Ntaganda, Judgment, 8 July 2019, CC-01/0402/06-2359 (war crimes and crimes against humanity, including rape and sexual slavery). 7 CM Okpaluba ‘The Constitutional Principle of Accountability: A Study of Contemporary South African Case Law’ (2018) 33(1) Southern African Public Law 1, 7. 8 MA Newton ‘The Complementarity Conundrum: Are We Watching Evolution or Evisceration?’ (2010) 8 Santa Clara Journal of International Law 115, 123. See also Xavier Philippe ‘The principles of universal jurisdiction and complementarity: how do the two principles intermesh?’ (2006) 88: 862 International Review of the Red Cross 375, 381, where he explains the complementarity principle as ‘a means of attributing primacy of jurisdiction to national courts but includes a “safety net” allowing the ICC to review the exercise of jurisdiction if the conditions specified by the Statute are met’.

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primary jurisdiction9 to deal with the prosecution of international crimes dependent on certain conditions as outlined in the Rome Statute.10 As the court of last resort, the ICC makes the final determination on the inadmissibility of the case before it.11 There are three factual scenarios the ICC will look at when making its determination. Firstly, the ICC will determine whether ‘the case is being investigated or prosecuted’ by the state in question.12 Secondly, the ICC will determine whether ‘[t]he case has been investigated by [the state concerned] and the [s]tate has decided not to prosecute the person concerned’.13 Lastly, the ICC will determine whether ‘the person concerned has already been tried for conduct which is the subject of the complaint’.14 The first two scenarios follow a two-prong process: firstly, the ICC determines if there is an investigation or prosecution, and whether once the investigation was done the state decided not to prosecute. If the answer is in the affirmative, the second stage moves to determine whether the state in question is ‘unwilling or unable genuinely to carry out the investigation or prosecution’,15 or ‘the decision resulted from the unwillingness or inability of the State genuinely to prosecute’.16 This two-prong process was confirmed in the Katanga Appeal Judgment.17 The third scenario applies when the state in question has already tried a person in its jurisdiction for an international crime. The ICC determines whether the trial in question dealt with a similar conduct as that which

9 See art 1 of the Rome Statute, which further reinforce that the national courts will be given primacy over the ICC to deal with perpetrators of international crimes. 10 See art 17 of the Rome Statute titled: ‘Issues of admissibility’. 11 Art 19(1) of the Rome Statute enjoins the ICC to ‘satisfy itself that it has jurisdiction

in any case brought before it’ and ‘may, on its own motion, determine the admissibility of a case in accordance with article 17 [of the Rome Statute]’. 12 Art 17(1)(a) of the Rome Statute. 13 Art 17(1)(b) of the Rome Statute. 14 Art 17(1)(c) of the Rome Statute. 15 Art 17(1)(a) of the Rome Statute, 16 Art 17(1)(b) of the Rome Statute. 17 The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, Judgment on the

Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, Case No. ICC-01/04-01/07 OA 8, 25 September 2009, para 78.

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is under an investigation by the ICC Prosecutor. In this regard, the ICC Appeals Chamber in the Gaddafi Admissibility Judgment explained that: The real issue is, therefore, the degree of overlap required as between the incidents being investigated by the Prosecutor and those being investigated by a State - with the focus being upon whether the conduct is substantially the same. Again, this will depend upon the facts of the individual case. If there is a large overlap between the incidents under investigation, it may be clear that the State is investigating substantially the same conduct; if the overlap is smaller, depending upon the precise facts, it may be that the State is still investigating substantially the same conduct or that it is investigating only a very small part of the Prosecutor’s case. … Alternatively, they may be very minor when compared with the case as a whole.18

The ICC may also consider issues of due process such as shielding the perpetrator; undue delays; and judicial independence and impartiality to determine whether the affected state is unwilling to prosecute.19 The above discussion demonstrates that there are specific circumstances under which the ICC may claim jurisdiction over alleged perpetrators. Other than those circumstances, states have primacy to investigate and prosecute perpetrators of international crimes.20 The principle of complementarity makes logical sense from a practical point of view. Notably, national criminal jurisdictions are better placed to preside over proceedings considering their proximity to evidence, witnesses and the scenes of crimes in comparison with the ICC. And as Oko aptly submits, ‘nothing emphasises legitimacy of a new regime and deepens the rule of law more than criminal prosecutions undertaken in venues where the crimes occurred’.21 Moreover, the ICC does not have the resources to prosecute all the international crimes committed globally. As Kleffner has argued, accountability for international crimes 18 Gaddafi Admissibility Judgment “Judgment on the appeal of Libya against the decision of Pre-Trial Chamber I of 31 May 2013 entitled ‘Decision on the admissibility of the case against Saif Al-Islam Gaddafi’”, ICC-01/11-01/11-547- Red, para 72. 19 Art 17(2) of the Rome Statute. 20 See Preamble to the Rome Statute which ‘affirm[s] that the most serious crimes of

concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level’. 21 O Oko ‘The Challenges of International Criminal Prosecutions in Africa’ (2007)31 Fordham International Law Journal 372.

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under the Rome Statute can hardly be realised if states leave the burden of prosecution to the ICC.22 Worthy to note, the establishment of a permanent international criminal court meant that the Court’s intervention in the affairs of African states was imminent. This brought sharply into focus the issue of state sovereignty.23 While the Court’s intervention at first glance came as a threat to state sovereignty, these concerns were soothed by the principle of complementarity which balanced sovereignty with the ICC’s intervention. The strong presumption in favour of states exercising jurisdiction over crimes in their territories meant that there would be limited interference by an international criminal court into the affairs of a state as long as there was commitment to investigation and prosecution of crimes in national jurisdictions. Stahn explains that states were open to the idea of a permanent international criminal court under the Rome Statute regime because the ICC would remain a court of last resort, with the bulk of prosecutions taking place in national courts.24 In this regard, Okuta describes the notion of complementarity as a tool that ‘aims to recognise but at the

22 J Kleffner ‘Auto-Referrals and the Complementary Nature of the ICC’ In C Stahn and G Sluiter, The Emerging Practice of the ICC (2009) 41–53. 23 The right to exercise criminal jurisdiction within a state’s territory is a key element of state sovereignty. It must be noted; however, that this right is subject to exceptions, with states’ commitment to the Rome Statute being one such instance when this right may be limited. Moreover, state sovereignty comes with obligations towards citizens and responsibilities regarding protection of citizens. On this see F Deng et al., Sovereignty as responsibility (1996); R Cyer ‘International Criminal Law vs State Sovereignty: Another Round?’ (2005)16 European Journal of International Law 979–1000. However, see works of authors who conceptualise international criminal justice as antagonistic to state sovereignty. B Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law (2003) viii and 215; Lattimer, M and Philippe S (eds) Justice for Crimes Against Humanity (2003) xv and 512; Nadya SL The International Criminal Court and the Transformation of International Law: Justice for the New Millennium (2002) xviii, 566; Sands, P (ed) From Nuremberg to the Hague: The Future of International Criminal Justice (2003) 192; Ward, I Justice. Humanity and the New World Order (2003) 183; M Alkrisheh & W Mahameed ‘The International Criminal Court Statute and State Sovereignty: The Implicit Impact of the Complementarity Principle’ (2020) 6 Multicultural Education 1–7. 24 C Stahn, ‘Complementarity: A tale of Two Notions’ (2008)19 Criminal Law Forum 87–113.

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same time set limits to state sovereignty.’25 This position finds confirmation in the Report of the Ad-Hoc Committee on the Establishment of the ICC providing that: The principle of complementarity reconciles two competing features and jurisdictions. The first is State sovereignty, which claims national jurisdiction over its citizens or those crimes committed on its territory, even though these crimes are of an international character and may fall under the international jurisdiction. The second feature only functions in exceptional circumstances and gives an international tribunal jurisdiction over these heinous crimes.26

Based on the premise that ICC would only intervene when there was no accountability at the national level, the complementarity framework was well-received by states, including those on the African continent. Complementarity became a motivation for states’ commitment to and support for the Rome Statute regime. Indeed, African states played a key role in the establishment of the ICC. They featured prominently in the ratification of the Rome Statute which saw the ICC come into operation in 2002. Senegal is on record for being one of the countries that first ratified the Rome Statute.27 Several other African states followed suit, and currently, 33 African states (representing 60% of the African continent) are party to the Rome Statute.28 With such wide ratification, Africa also has the biggest representation of parties to the Rome Statute globally. Demonstrating their preparedness to make the Rome Statute regime operational in national courts, several African states such as Uganda, Kenya and South Africa have taken steps to domesticate the Rome

25 AA Okuta, Smallest share of the pie? Accountability for international crimes at the domestic level: case studies of Kenya, Uganda and Côte d’Ivoire (2016 PhD Thesis Amsterdam Center for International Law) 46. 26 Report of the Ad-Hoc Committee on the Establishment of an International Criminal Court, UN GAOR, 50th Session, Supp No 22, at p. 50, UN Doc. A/50/22(1995), 905. 27 International Criminal Court, “The States parties to the Rome Statute”, https:// asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to% 20the%20rome%20statute.aspx, (accessed on 8 July 2021). 28 As above.

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Statute.29 A considerable number of African states have also established judicial structures for the prosecution of international crimes, with proceedings ongoing in some states.30 For example, Uganda established a judicial structure devoted to prosecution of international crimes, namely the International Crimes Division of the High Court.31 The division has jurisdiction over crimes including genocide, war crimes, crimes against humanity, terrorism, piracy and human trafficking.32 The case against Thomas Kwoyelo, a former Lord’s Resistance Army commander, is thus far before the International Crimes Division. The Central Africa Republic also established a judicial structure in the form of the Special Criminal Court, and South Africa has been confirmed to be capable of investigating and prosecuting international crimes in her territory.33 African states have also shown support for the work of the ICC by referring cases to the ICC for trial.34 Uganda’s referral of its situation to the ICC, for example, was one of the cases that gave life to the operations of the ICC in its early stages.35 While the intentions of African states in referring cases to the ICC may be questionable, it is undeniable that African states have, in this regard, cooperated with the ICC.36 Africa’s commitment to supporting the ICC and the Rome Statute regime, at 29 See, e.g., domesticating laws of Uganda, Kenya and South Africa, i.e. The International Criminal Court Act 2010 of Uganda, International Crimes Act 2008 of Kenya and the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 of South Africa. 30 See, e.g., the International Crimes Division of the High Court of Uganda established

in 2008 and the Hybrid Special Criminal Court of the Central African Republic established in 2015. 31 International Crimes Division of the High Court (formerly War Crimes Division), established by an administrative decree in 2008, Legal Notice Number 10 of 2011. 32 High Court (International crimes Division) Practice Direction, 2011 para 6. 33 National Commissioner of the South African Police Service v Southern African Human

Rights Litigation Centre and Another 2015 (1) SA 315 (CC); 2015 (1) SACR 255 (CC). 34 International Criminal Court, Situations and cases, (2021), https://www.icc-cpi.int/ pages/situation.aspx (accessed on 8 July 2021). As per the ICC website, up to 5 situations before the ICC including Uganda’s, the Democratic Republic of the Congo’s, the Central African Republic’s, Mali’s and Cote d’ Ivoire’s are self-referrals. 35 As above. 36 O Ba States of Justice: The politics of the international criminal court (2020

Cambridge University Press) 8. Ba is of the view that ‘most of the ICC cases in African states were initiated by the states themselves, when their respective gov