In a previous post written soon after Ms Fatou Bensouda's election as the ICC's new prosecutor, I noted that she assumes office with a heavy burden on her shoulders. I suggested that this burden consists of balancing a number of often competing objectives: cultivating waning support for the ICC in Africa by presenting the Office of the Prosecutor in a less abrasive way; remaining focused on her job while navigating a mined geopolitical terrain and; pushing forward current situations and cases while reorienting the direction ICC in order to truly internationalize its operations.
I argued that while her election was rightly celebrated in Africa, those who expect her to be soft on Africa or to make drastic changes would be disappointed. I noted that while it is accurate that she got the job partly because there was a need to keep AU members in the fold, she confronts challenges of a structural nature that she will not be able to change. Equally, I suggested that she could be compelled to act tough on Africa precisely because she would like to avoid criticism that she was going easy on Africa (because she is African). In this regarded, I noted that:
There is no doubt the AU will watch her every move, and I will not be surprised if some demands are made on her in the Al Bashir matter. She may have no choice but to rebuff these overtures. Her burden clearly is do her job in a way that does not open her to criticism globally for being ‘soft’ on Africa, merely because she is African. My suspicion is that it is precisely for this reason that she could be firmer than Ocampo, although in a more diplomatic and accommodating way.
My words are turning out to be prescient. In a recent speech that has been analyzed in an interesting post by Alana Tiemessen on Justiceinconcflict Blog, Ms Bensouda has fired the first salvo. Her comments suggest - as I speculated in my earlier post - that it would not only be business as usual (a la Ocampo), but she would actually be tougher on African states than her predecessor. Interesting times ahead. The ceasefire could have been breached. The honeymoon is over.
Tuesday, May 29, 2012
Saturday, April 14, 2012
Is Ocampo Taking Sides in Cote d'Ivoire?
Louis Moreno-Ocampo, the outgoing Prosecutor of the ICC, has apparently sent a letter to Guillaume Soro congratulating him for his election as the Speaker of the National Assembly in Cote d'Ivoire. Mr Soro is the immediate former Prime Minister, an ally of President Ouattara, and (former) leader of Forces Nouvelles (FN), an armed group that once controlled the North of the Country. FN were part of the coalition of armed forces that removed Laurent Gbagbo from power. Reports have linked FN, under the leadership of Soro, to serious crimes committed in the recent conflict that the ICC should at least investigate.
Kevin Jon Heller of Opinio Juris analyses this, and other previous missteps by Ocampo., Read HERE.
Does this gesture indicate that the Office of the Prosecutor has taken sides, in ways that would suggest bias against Gbagbo's side? Is victors justice at work in Cote d'Ivoire?
Kevin Jon Heller of Opinio Juris analyses this, and other previous missteps by Ocampo., Read HERE.
Does this gesture indicate that the Office of the Prosecutor has taken sides, in ways that would suggest bias against Gbagbo's side? Is victors justice at work in Cote d'Ivoire?
Saturday, April 7, 2012
The ICC and the Limits of Deterrence
An interesting piece on JIC regarding the deterrent effect of the ICC. This analysis examines whether, in the context of the ICC's work in the DRC and the recent conviction on 14th March 2012 of Lubanga, the ICC's work a deterrent effect.
Read here.
Read here.
Thursday, February 23, 2012
Is the ICC and International Justice Racist?
A few days ago, Courtenay Griffiths, Charles Taylor's defence lawyer at the Special Court for Sierra Leone sitting in the Hague injected a-not-so-new but previously unspoken claim against the ICC, and international criminal justice in general:that the ICC is racist. this adds a new strand to the the accurate, yet not universally accepted criticism of international justice as selective justice.
Mr Griffiths, is reported to have stated as follows:
“If one goes down to the Old Bailey… on any given day if you troll around the court, you’ll find that roughly ninety percent of all the defendants on trial in that Court are, guess what? Black. … What we’re seeing in terms of international law currently is the replication of that association between criminality and black-ness which one sees at the national level not only here in the United Kingdom but in any significant Western country with a black population.”
This claim is already generating debate among scholars. In response to this claim - Mark Kersten of JusticeinConflict Blog, one of the more informative blogs on the subject, has taken the issue head on. Kersten's rather problematic argument that while the ICC can rightly be criticized for selectivity but not as racist because African states joined willingly has rightly provoked vigorous responses.
Read the blog post here, and be sure to read the comments at the end!
Mr Griffiths, is reported to have stated as follows:
“If one goes down to the Old Bailey… on any given day if you troll around the court, you’ll find that roughly ninety percent of all the defendants on trial in that Court are, guess what? Black. … What we’re seeing in terms of international law currently is the replication of that association between criminality and black-ness which one sees at the national level not only here in the United Kingdom but in any significant Western country with a black population.”
This claim is already generating debate among scholars. In response to this claim - Mark Kersten of JusticeinConflict Blog, one of the more informative blogs on the subject, has taken the issue head on. Kersten's rather problematic argument that while the ICC can rightly be criticized for selectivity but not as racist because African states joined willingly has rightly provoked vigorous responses.
Read the blog post here, and be sure to read the comments at the end!
Sunday, January 22, 2012
Impact of ICC Confirmation of Charges Decisions on Kenyan Life
As we await the decisions of the ICC tomorrow (23 January 2012) on whether any or all of the six Kenyans facing ICC charges have a case to answer and will thus be committed to trial, two interesting reports - one by the International Crisis Group (ICJ) and the other by the Brookings Institution in the USA - consider the impact of the decisions on politics and other aspects of life in Kenya. Access the ICG report here and the Brookings one here.
Tuesday, January 10, 2012
Sunday, December 18, 2011
Al Bashir arrest warrant judgement by Kenyan High Court bad in law
The brief post below appeared as an op ed in the Kenyan daily, Standard on 18th December 2011. See here
The judgement by Justice Ombija issuing an order of arrest against President Al Bashir of Sudan has been subject of contestation for several weeks now. I only offer a brief scholarly critique of the judgement in light of my own reading of the law, which is that the judge erred in law: the judge was wrong to issue the order. To summarise Judge Ombija’s decision, he says that Kenya has an obligation to arrest Al Bashir because we ratified the Rome Statute, passed a law domesticating it and have in any case a Constitution that applies every treaty ratified by Kenya as part of our law.
But, can the applicants, ICJ-Kenya actually apply for an arrest warrant as they did? I have difficulty identifying what basis they were allowed to address the court on substance. Under the International Crimes Act that domesticates the Rome Statute, only the Minister can approach the High Court for an arrest warrant. Under our law, there are only two possibilities for a private citizen to come to court on this matter: for judicial review asking the court to issue orders compelling the Minister to approach the court for a warrant, or rely on the generous provisions on standing in the constitution by alleging that the constitution, in particular the bill of rights has been violated. Neither of this was done by the ICJ. In short, the judge improperly allowed a private citizen to act as the Minister.
According to the judgement, the crucial link between Kenya’s obligations to the ICC and the duty Al Bashir to arrest is universal jurisdiction. According to the judge’s reading of this principle, any state can arrest, prosecute or extradite anyone who commits an international crime anywhere. The problem with this view is twofold. First, with utmost respect to the judge, a discussion of universal jurisdiction on which he bases his decision should never have been conducted because it is irrelevant: the Rome Statute does not include universal jurisdiction. In my view, the judgement can fall on this score alone.
Secondly, although the judge discusses universal jurisdiction at length and he is broadly right on the principle, he does not consider or discuss the fact that current case law — all of it developed by leading Western courts — is that a sitting head of state is immune from arrest or prosecution by national courts abroad. I argue — again with utmost respect to the judge — that he only arrives at the conclusion that Kenya has an obligation to arrest by considering arguments that should not be relevant to the discussion, but more crucially, by not considering the most crucial issue. This central issue, on the basis of which the warrant issue should be resolved — and on which his decision stands or falls — is regrettably not dealt with by the judge.
The issue is: even when there is an ICC arrest warrant, can a sitting head of state be arrested abroad and handed over the ICC? The judge simply says in a couple of lines that no one benefits from immunity in respect of the ICC. Although he doesn’t cite the provision, this position is represented in article 27(2) of the Rome Statute. It is true that the ICC can indict anyone. However, it is not the correct approach to base Kenya’s obligation to arrest on article 27. If the Rome Statute forms part of our law, one must go on to see what else the Rome Statute says. The judge correctly does that, but he stops at article 91 and 92 which regulate procedure for arrest. By doing that, the judge misses the fact that a sitting head of state is subject to a different procedure of arrest, under article 98(1).
My reading of article 98(1) — which is not uncontroversial — is that because under international law of diplomatic relations and state immunity a sitting head of state ordinarily enjoys immunity from the actions of foreign organs of state — including the Judiciary — a Kenyan court can only properly order arrest of Al Bashir if one of three things exist: Sudan waives his immunity (through national law) or he is removed from office or Kenya removes its recognition of him as the legitimate Sudanese President. The cases of Milosevic of the former Yugoslavia, Charles Taylor of Liberia, and former Ivorian strongman Laurent Gbagbo who now sits in a cell in The Hague months after leaving office all support this view. Until there is a new rule of international law — introduced perhaps by an amendment of the Rome Statute, saying a sitting head of state indicted by the ICC can be picked up when visiting a foreign nation, we are stuck with what we have. It is for this reason that I fault the ICC judges’ ruling made several days ago on this issue (a decision involving Malawi’s refusal to arrest Al Bashir), which I will address, in a future post. However, I have serious doubts that a rule allowing arrest of a sitting head of state will emerge soon. The immunity enjoyed by heads of state and foreign ministers when traveling abroad to conduct diplomacy for their nations — is one of a handful of rules that form the cornerstone of the international system. I cannot visualise a different world — other than an anarchic one — where the legal equality of states did not exist.
My interpretation of article 98 of the Rome Statute does not mean a President cannot be tried: we just have to wait until he/she leaves office. Gbagbo is now in The Hague, seven months after his ouster. Too bad if a country is not a democracy or if — as is the case in Sudan – other states are unwilling, because of their national interests, to remove recognition of the sitting head of state that would enable them arrest him without breaching international law. Right now, resolution of the Bashir issue does not lie in the law: it is political.
The judgement by Justice Ombija issuing an order of arrest against President Al Bashir of Sudan has been subject of contestation for several weeks now. I only offer a brief scholarly critique of the judgement in light of my own reading of the law, which is that the judge erred in law: the judge was wrong to issue the order. To summarise Judge Ombija’s decision, he says that Kenya has an obligation to arrest Al Bashir because we ratified the Rome Statute, passed a law domesticating it and have in any case a Constitution that applies every treaty ratified by Kenya as part of our law.
But, can the applicants, ICJ-Kenya actually apply for an arrest warrant as they did? I have difficulty identifying what basis they were allowed to address the court on substance. Under the International Crimes Act that domesticates the Rome Statute, only the Minister can approach the High Court for an arrest warrant. Under our law, there are only two possibilities for a private citizen to come to court on this matter: for judicial review asking the court to issue orders compelling the Minister to approach the court for a warrant, or rely on the generous provisions on standing in the constitution by alleging that the constitution, in particular the bill of rights has been violated. Neither of this was done by the ICJ. In short, the judge improperly allowed a private citizen to act as the Minister.
According to the judgement, the crucial link between Kenya’s obligations to the ICC and the duty Al Bashir to arrest is universal jurisdiction. According to the judge’s reading of this principle, any state can arrest, prosecute or extradite anyone who commits an international crime anywhere. The problem with this view is twofold. First, with utmost respect to the judge, a discussion of universal jurisdiction on which he bases his decision should never have been conducted because it is irrelevant: the Rome Statute does not include universal jurisdiction. In my view, the judgement can fall on this score alone.
Secondly, although the judge discusses universal jurisdiction at length and he is broadly right on the principle, he does not consider or discuss the fact that current case law — all of it developed by leading Western courts — is that a sitting head of state is immune from arrest or prosecution by national courts abroad. I argue — again with utmost respect to the judge — that he only arrives at the conclusion that Kenya has an obligation to arrest by considering arguments that should not be relevant to the discussion, but more crucially, by not considering the most crucial issue. This central issue, on the basis of which the warrant issue should be resolved — and on which his decision stands or falls — is regrettably not dealt with by the judge.
The issue is: even when there is an ICC arrest warrant, can a sitting head of state be arrested abroad and handed over the ICC? The judge simply says in a couple of lines that no one benefits from immunity in respect of the ICC. Although he doesn’t cite the provision, this position is represented in article 27(2) of the Rome Statute. It is true that the ICC can indict anyone. However, it is not the correct approach to base Kenya’s obligation to arrest on article 27. If the Rome Statute forms part of our law, one must go on to see what else the Rome Statute says. The judge correctly does that, but he stops at article 91 and 92 which regulate procedure for arrest. By doing that, the judge misses the fact that a sitting head of state is subject to a different procedure of arrest, under article 98(1).
My reading of article 98(1) — which is not uncontroversial — is that because under international law of diplomatic relations and state immunity a sitting head of state ordinarily enjoys immunity from the actions of foreign organs of state — including the Judiciary — a Kenyan court can only properly order arrest of Al Bashir if one of three things exist: Sudan waives his immunity (through national law) or he is removed from office or Kenya removes its recognition of him as the legitimate Sudanese President. The cases of Milosevic of the former Yugoslavia, Charles Taylor of Liberia, and former Ivorian strongman Laurent Gbagbo who now sits in a cell in The Hague months after leaving office all support this view. Until there is a new rule of international law — introduced perhaps by an amendment of the Rome Statute, saying a sitting head of state indicted by the ICC can be picked up when visiting a foreign nation, we are stuck with what we have. It is for this reason that I fault the ICC judges’ ruling made several days ago on this issue (a decision involving Malawi’s refusal to arrest Al Bashir), which I will address, in a future post. However, I have serious doubts that a rule allowing arrest of a sitting head of state will emerge soon. The immunity enjoyed by heads of state and foreign ministers when traveling abroad to conduct diplomacy for their nations — is one of a handful of rules that form the cornerstone of the international system. I cannot visualise a different world — other than an anarchic one — where the legal equality of states did not exist.
My interpretation of article 98 of the Rome Statute does not mean a President cannot be tried: we just have to wait until he/she leaves office. Gbagbo is now in The Hague, seven months after his ouster. Too bad if a country is not a democracy or if — as is the case in Sudan – other states are unwilling, because of their national interests, to remove recognition of the sitting head of state that would enable them arrest him without breaching international law. Right now, resolution of the Bashir issue does not lie in the law: it is political.
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