D-Day Looming for South Africa
Next week on 6 July, the International Criminal Court (ICC) will announce its ruling on whether South Africa’s failure to arrest President Bashir constitutes an act of non-compliance. In reality findings of non-compliance have had little impact on other nations in the past, but in South Africa’s case- could the outcome determine whether South Africa withdraws from the Rome Statute?
On 7 April 2017 South Africa was provided with a crucial opportunity to explain its actions before the ICC judges. Some would say, an opportunity to justify the unjustifiable. The Pre-Trial Chamber of the ICC must ascertain whether South Africa failed to comply with its obligations and if so, is a formal finding of non-compliance and a referral to the Assembly of States Parties (ASP) and/ or the United Nations Security Council (UNSC) warranted.
The Bashir saga marks the point of no return on the road that has brought South Africa before the ICC. Bashir’s June 2015 visit triggered South Africa’s domestic and international law duty to arrest him pursuant to an ICC arrest warrant. South Africa’s status as a member of the founding treaty of the ICC, the Rome Statute, combined with the fact that South Africa domesticated the Statute provided a basis for his arrest. Unfortunately, the government failed to comply with its duties.
Failure to arrest Bashir who is wanted for genocide, war crimes and crimes against humanity, was successfully challenged in court by the Southern Africa Litigation Centre. The High Court, and the Supreme Court of Appeal found that failure to arrest Bashir was unlawful. Despite both these rulings, at its hearing at the ICC on 7 April 2017, the South African government justified its actions by stating that there is no international law duty to arrest Bashir and thus no cause to refer South Africa to the ASP or the UNSC. Whether the ICC judges will find this argument convincing remains to be seen.
Should the ICC rule against South Africa, it would not be the first finding of non-compliance. Unfortunately, a number of states, some on more than one occasion, have been found non compliant. Djibouti, Uganda, the Democratic Republic of Congo, Kenya, Malawi, and Nigeria have all been referred to ASP and/ or the UNSC for Bashir related issues.
There are several problems with this picture.
Nations failing to fulfil their obligations as members of the Rome Statute is one problem, but the fact that findings of non-compliance have little or no real consequence is another. The ASP and the UNSC are mandated to act in this regard but to date very little action has been taken against states found to be non-compliant.
Whilst presumed innocent until found guilty, Bashir should not hide from the law. The fact that Bashir continues to put his fellow African leaders in a precarious position by visiting signatory states and refusing to answer charges brought against him is another problem. His visits continue to jeopardise the rule of law in these nations and compromise the quest for international justice and accountability. The events that unfolded in South Africa are a clear indication of the extent of damage left in his wake.
After his visit to South Africa an unprecedented meeting was held between the judiciary and the executive. The executive blatantly disregarded a direct court order when Bashir was allowed to leave the country. Facilitating and permitting his escape despite being strictly instructed by the court that Bashir ought to remain in South Africa pending the finalisation of the legal proceedings caused massive uproar and generated concern about governance and the rule of law in South Africa.
Bashir’s visit and hasty departure had massive legal and political consequences including encouraging the ANC to call for withdrawal from the ICC. Due to procedural irregularities, the domestic courts came to the rescue earlier this year and prevented the government from abandoning the ICC. However, should the ICC make an adverse ruling, the government could decide to initiate the withdrawal process all over again. Unlike the last attempt that was riddled with unconstitutional steps, this time round, the government could succeed in its shortsighted quest to abandon the ICC.
That being said, the ICC should not be held hostage by threats of withdrawals and must rule without fear or favour in accordance with the law. Perhaps the South African government will recognise that valuable opportunities for engagement will be missed should South Africa withdraw from the ICC.
The ICC is not beyond reproach but avenues for engagement and dialogue should be pursued to improve the ICC and make it a court that the international community as a whole can be proud of. Whether they are found non-compliant or not, the South African government should work to improve the Court they helped establish 19 years ago at the Rome Conference.
**This article appeared in the Star newspaper on 28 June 2017.
Universal Jurisdiction for Liberian Torture Victims
Earlier this month, Liberian Agnes Reeves Taylor was arrested by UK Metropolitan Police- War Crimes Unit, and charged with torture committed during the First Liberian Civil War. Due to the existence of universal jurisdiction, suspected perpetrators of such crimes will find no safe haven. This case could be of huge significance for victims and a vital step to clear the cloud of impunity that hovers over the Liberian Civil wars.
51 year old, Agnes Reeves Taylor, a Coventry University lecturer based in London and former wife of convicted war criminal Charles Taylor, was arrested on 1 June. She has been charged with torture allegedly committed between 1989 and 1991 in Liberia by Taylor’s National Patriotic Front of Liberia (NPFL). Reeves Taylor appeared before a magistrate on 3 June 2017 and denied all charges.
The First Liberian Civil war, which began in 1989 and ended in 1997, resulted in the deaths of approximately 600 000 people as Charles Taylor and other armed insurgents sought to overthrow President Samuel Doe. Whilst all parties to the war committed grave violations, Taylor’s NPFL was notoriously brutal. Taylor’s troops used torture, mass murder, and arbitrary detention to instill fear and to gain ground in the battle for control of Liberia. Very few of their leaders have been held accountable for the atrocities committed. Charles Taylor himself is currently serving a 50-year prison sentence for war crimes and crimes against humanity committed in neighboring Sierra Leone, not Liberia.
Domestic accountability in Liberia leaves a lot to be desired, however, the use of universal jurisdiction in other countries has provided a measure of hope for the victims.
Universal jurisdiction is premised on the understanding that certain crimes, for example genocide and torture, are deeply harmful to the international community as a whole. Thus, regardless of: where the crime was committed; the nationality of the perpetrator; and who the victims were, should a suspected perpetrator be found on the territory of a nation that has broad universal jurisdiction laws- they can be investigated and prosecuted by that nation’s courts.
The arrest of Reeves Taylor is in line with the UK’s Criminal Justice Act, which includes an element of universal jurisdiction, though not labeled as such. It states that, “ A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties…”
There have been a few others who have been caught by the net of universal jurisdiction. Martina Johnson, a Liberian citizen and former artillery commander of the NPLF was arrested in September 2014 in Belgium. She was one of the first people to be charged with war crimes and crimes against humanity for her role during the civil war. Former commander of the United Liberation Movement for Democracy in Liberia, (ULIMO), a group which fought against Taylor’s faction, was also arrested and charged with war crimes in Switzerland in 2014.
The use and understanding of universal jurisdiction varies from jurisdiction to jurisdiction but it provides great potential for justice and accountability, particularly in the case of the Liberian civil war.
Universal jurisdiction is not without its controversy, as politicians fear its impact and lack of boundaries. In 2001 Belgium sought to prosecute Ariel Sharon for the massacre of civilians in Lebanon in 1982. A few years later in 2003 Belgium attempted to bring George H.W Bush to account for the reckless bombing of Baghdad during the first Gulf War. These two cases inspired the US and NATO to take action to curtail the use of universal jurisdiction. They threatened to remove their NATO base from Brussels, should Belgium fail to limit the reach of their universal jurisdiction laws. Belgium capitulated and amended their laws in 2003.
The UK is no stranger to universal jurisdiction including using it to convict Belarusian Nazi-collaborator Anthony Sawoniuk for his involvement in the persecution of Jews. At the time of his trial Sawoniuk was a British citizen. Faryadi Zardad, an Afghan warlord, living in the UK at the time of his arrest, was also charged and convicted for the commission of torture under UK universal jurisdiction laws.
One need not look far for others suspected perpetrators who continue to evade justice in their own countries, however, universal jurisdiction could significantly change what is hopefully a temporary state of impunity for “crimes that shock the conscience of humanity”.
26 years after the crimes allegedly committed by Reeves Taylor, justice has come calling. Perhaps others suspected perpetrators will also have their day in court should universal jurisdiction be constructively utilised to bring justice for the victims.
** This article appeared in the Star Newspaper on 15 June 2017.
Democracy and International Justice- the people have spoken
Last week, Zambians voted on whether they would like to remain within the Rome Statute system or not. A majority, 93.3% of those asked voted in favour of remaining with the International Criminal Court. Given the tension between the African Union and the ICC and the persistent threats of withdrawal-the significance of the results and the fact that such a process took place, cannot be over stated. It is not just a simple vote, it is actually about justice, transparency and democracy- three essential elements currently in short supply in many African countries.
The Zambian Ministry of Justice spent a reported 2 million Zambian Kwacha to conduct this vote. The Minister of Justice reportedly indicated that it was a necessary step in preparation for next AU Summit in June 2017.
The AU and the ICC have been at odds since the indictment of Sudanese President Omar al Bashir in 2009. Of the view that heads of state should be immune from prosecution during their time in office, the AU has encouraged its members not to comply with the ICC’s request for the arrest and surrender of Bashir. Since then, the relationship between the two entities has steadily deteriorated.
At almost every AU Summit in the recent past, the AU has called for its members to abandon the Rome Statute. The January 2017 Summit also included a “withdrawal strategy” as per its title, however the contents interestingly enough, provided options for further engagement with the ICC.
Be that as it may, for as long as the ICC continues to exercise its mandate without fear or favour, including following evidence that leads to the indictment of senior government officials and heads of state - the AU will continue to agitate for withdrawal.
The AU’s grievances with the ICC extend to various other issues including AU’s belief that the ICC is targeting African leaders whilst it leaves powerful western nations to wage war and engage in crimes against humanity. The AU also has problem with unfettered powers of the permanent United Nations Security Council members when it comes to the ICC. The controversial United Nations Security Council (UNSC) referral is a major bone of contention. The UNSC referral allows the UNSC to refer situations to the ICC. The permanent 5 members have the power to veto referrals, yet three of those 5 are not members of the Rome Statute. Granted, some of the AU’s concerns are valid, for example, the UNSC referral is highly problematic, but the AU should be encouraged to constructively engage instead of trying to orchestrate a mass African withdrawal.
It is too soon forgotten that African states were integral to the creation of the ICC. African states also fought to protect the independence of the prosecutor during the negotiations that eventually provided the final text of the Rome Statute. Today the African block is still the largest regional block of signatories to the Rome Statute, which could positively influence and change the ICC from within. The AU seems to overlook this untapped potential.
The AU has noble objectives including ensuring that African institutions can grapple with African problems, however dismantling the only permanent international justice mechanism without establishing a viable alternative is toying with access to justice and could result in the promotion of impunity.
The ICC was designed as a court of last resort, meaning it can only intervene when a member state is unwilling or unable to tackle crimes committed. Thus, building strong domestic capacity to investigate and prosecute international crimes in Africa is vital and complementary to the vision of the ICC. Building regional courts that have criminal jurisdiction is also an important endeavour, but it is far from being a viable option at the moment.
In light of this, the AU, and the African leaders themselves should be encouraged to be constructive in their dealings with the ICC, instead of engaging political stratagem that will only harm the average citizen when all is said and done. It is the citizens, not the leaders in power, who will suffer should a justice vacuum be created by leaving the ICC, hence why the consultative process embarked on by Zambia is crucial.
The Zambian vote naturally reminds one of South Africa’s ill-conceived and hasty attempt to withdraw from the ICC without following the Constitution and proper parliamentary procedures including public consultation. The comparison is disturbing and uncomfortable when one considers that solid constitutional democracy that forms the backbone of the nation and the state of governance today.
Having recently commemorated the 54th Africa Day, it is time African leaders prioritise the needs of the people instead of focusing on shielding themselves from prosecution. Justice, transparency and democracy in Africa are under threat, but the example set in Zambia, provides hope.
** This article originally appeared in the Star Newspaper on 1 June 2017 under the title Zambia's shining example
Iraqi ghosts return to haunt Blair
In 2003, the UK and the US charged into Iraq on the basis of faulty intelligence pointing to the housing of weapons of mass destruction and allegations that Saddam Hussein was supporting Al Qaeda. The consequences of these actions have come back to haunt former Prime Minister Tony Blair who is currently being pursued for allegedly committing the crime of aggression. Reports from the UK Guardian Newspapers indicated that this week, a judge is to decide whether the case will move forward.
A private criminal prosecution was brought against Tony Blair in 2016 where a Westminster Magistrates Court judge ruled that Blair had immunity from criminal charges relating to the invasion of Iraq. The prosecution was brought in the name of General Abdul-Wahid Shannan ar-Ribat, who is a former Iraqi army official. Lawyers representing Ar Ribat have taken that decision on judicial review and a senior judge of the High Court will decide whether to grant judicial review. The UK attorney general is seeking to intervene in the matter to block such a review allegedly on the basis that the crime of aggression is not, strictly speaking, on the UK domestic statute books. However, it is a crime under customary international law.
Before the early 20th century, waging war was not a crime under international law. The crime of aggression began to crystallize under the Covenant of the League of Nations in 1919, where it was recognised that respecting and maintaining “territorial integrity and political independence of Members of the League” was important. Later, under the Charter of the United Nations, the use of force challenging the territorial integrity of any state was prohibited. Individual liability for aggression, as opposed to state liability, only attained recognition thanks to the laws governing the Nuremberg Trials, where individuals were held liable for the crime of aggression.
Many British families who lost loved ones during the war have expressed the need for legal recourse, be it against the Ministry of Defence or Blair himself. In the eyes of the bereaved families, the invasion of Iraq was senseless, reckless and ill conceived. The July 2016 Chilcot Report, otherwise known as the Iraq Inquiry Report, seemed to add fuel to the calls for legal action as it too, among other important conclusions, indicates that all peaceful options had not been exhausted at the time the UK decided to join the invasion.
The Inquiry, established during Former Prime Minister Gordon Brown’s tenure in office, required its Committee to examine the UK’s involvement in Iraq, “including the way decisions were made and actions taken, to establish as accurately and reliably as possible what happened and to identify lessons that can be learned.”
As pointed out in the Chilcot Report, the UK’s participation in the invasion marked the first time since the Second World War that such a drastic course of action was taken against a sovereign country.
Granted, the invasion removed a despot from power, but it also resulted in the deaths and displacement of thousands of people. It left the nation of Iraq in ruins. Iraq today is ravaged by suicide bombs and debilitated by the rise of militant Islamist groups.
For many Iraqis, and those who have grown weary of the precipitous attacks conducted by the US and the UK, justice is essential. The UK’s conduct in Iraq is under preliminary examination at the International Criminal Court, but that examination pertains only to war crimes and not the crime of aggression.
UK troops have been accused of torturing and ill treating Iraqi detainees in Iraq. Acts of torture include, battery, food and sleep deprivation, sexual assault and rape, the use of stress positions and electrocution. They have also been accused of unlawfully killing 319 people.
This situation has been under preliminary investigation since May 2014 and it is unclear if it will indeed move to the investigation phase. If the ICC did have sufficient grounds to move to the investigation phase, it would have a massive impact on international criminal justice and would do a great deal of good for the ICC’s reputation. The ICC has been accused, somewhat unfairly, of selective justice and of prosecuting “weaker” states only. A trial involving one of the major western powers could significantly shift this perception. However, the principle of complementarity must be obeyed. Thus, if the British show that they are genuinely willing and able to prosecute war crimes -then the ICC will have to give precedence to credible domestic prosecutions.
It is unclear when the verdict in the Blair case will be revealed to the public. Should this trial take place, it too will have a massive impact on the discussions and decisions that govern British foreign policy. It could also set a very interesting precedent which might inform and influence future military engagement.
** This article originally appeared in the Star Newspaper on 18 May 2017
Challenges of international justice in Libya
Last week the ICC unsealed an arrest warrant for Gaddafi’s former security chief Al-Tuhamy Mohamed Khaled who has been accused of war crimes and crimes against humanity perpetrated in Libya in 2011. The arrest warrant was issued under seal in 2013 and Khaled remains at large. The Libya situation is one that reflects the myriad of challenges faced by the ICC, in particular, the reliance on member states to enforce arrest warrants (and the hope that non-member states will cooperate) as well as the effects of the ever-controversial United Nations Security Council referral.
The UNSC referred the situation in Libya to the ICC in February 2011. A month later the ICC Prosecutor decided to open an investigation. Muammar Gaddafi, his son Saif al Islam Gaddafi, his brother in law and Intelligence Chief, Abdullah Al Senussi were indicted by the Court, and now we learn that Khaled was also on the list.
Gaddafi’s arrest warrant was withdrawn in November 2011 upon confirmation of his death.
Al Senussi’s ICC case ended in July 2014 when the Appeal Chamber confirmed that his case was inadmissible due to the then Libyan government presenting sufficient evidence demonstrating that they were capable of holding an impartial and fair trial for Senussi. Given that the ICC is designed to be a court of last resort, only intervening when states are unwilling or unable, this should be a victory for the principle of complementarity. However, the decision to let Senussi stand trial domestically has been criticised, particularly due to the fact that he has been sentenced to death by firing squad, pending the outcome of an appeal.
Saif al-Islam, the infamous son, was captured in 2011 by a militia group. He has been charged with two counts of crimes against humanity. This includes the murder and persecution of innocent civilians. The ICC would very much like to put him on trial in the Hague, however, there are rightfully no trials in absentia at the ICC and all efforts to secure his transfer have failed.
The complexity of Saif’s situation lies in the fact that he is reportedly still being held by the Zintan militia group who do not recognise the authority of the Tripoli government or that of the ICC. In addition, the Tripoli government is of the opinion that Saif should be tried domestically. To that end, they held a trial in absentia for Saif, and they sentenced him to death for war crimes in July 2015. That did little to persuade the Zintan militia group to hand him over. The UK Guardian newspaper reported in July 2016 that, according to Saif’s lawyer, Saif had been granted amnesty and was no longer in custody. However, there is still no confirmation of this.
That leaves the latest unsealed arrest warrant for Khaled and brings us to the main challenge to the administration of international justice. The system depends on cooperation by states. Whilst this is, in many ways, a virtue and it is true that there is something poetic and philosophically stimulating about a global system of justice where nations volunteer (instead of succumbing to some form of coercion) to tackle crimes that shock the conscience of humanity. However, it also constitutes one of the system’s biggest flaws. Without stating the obvious, if suspects are not apprehended, there can be no trial and no justice for victims. Currently, the ICC has a total of 14 suspects at large.
It also results in claims about the unfair distribution of justice as not every nation makes the decision to join the international justice system. Of the 195 countries in the world only 124 are signatories to the Rome Statute. Even those who have joined have on occasion failed to cooperate with the Court. The notable absence of the global super powers continues to fuel these claims. Russia, China, the US are not signatories to the Statute and they are an integral part of the next challenge to the ICC’s legitimacy, a problem also reflected in the Libya situation: the notorious UNSC referral.
UNSC has the power to refer cases to the ICC. The 5 permanent members also have the power to veto referrals. The UNSC is a political animal regulated by national interest and political stratagem. The interests of justice, or prevention of impunity clearly do not govern the decisions made at that level. As mentioned above, 3 of these 5 permanent members are not signatories to the Rome Statute. This has been a bone of contention since the UNSC first exercised this power in 2005 with the referral of Sudan. The Libyan referral has attracted just as much dissension.
For as long as the UNSC wields such power and while states refuse to cooperate with the ICC, the ICC will continue to face an uphill battle.
**This article originally appeared in the Star newspaper on 4 May 2017 under the title: ICC hunts Gaddafi aid
Horrific tale of sexual abuse by UN peacekeepers
Last week, the Associated Press went public with yet another scandal detailing the sexual abuse of children at the hands of United Nations peacekeepers in Haiti. Whilst allegations existed previously, the extent of the abuse is far greater than initially reported a few years ago. Those sent to protect civilians continue to exploit innocent women and children with insufficient oversight, monitoring and accountability from the UN itself and its member states.
According to the reports, UN peacekeepers in Haiti, sexually abused nine children over a period of three years. From 2004 to 2007, 134 Sri Lankan peacekeepers, allegedly, systematically lured children with promises of food, sweets and money, in exchange for sexual favours. When the information became public several peacekeepers were sent home, but allegedly, no prosecutions have taken place.
Young boys and girls have been preyed on and exploited. One victim told UN investigators that between the ages of 12 and 15 she had been forced to have sex with more than 50 UN peacekeepers. Another young victim indicated that whenever there were new peacekeepers in town, her phone number would be distributed and she would receive phone calls to organise the next sordid sexual encounter.
Another young boy stated that he had sex with an average of four UN soldiers a day. This started when he was only 15 years old.
Other nationalities implicated in the abuse in Haiti include Uruguayan peacekeepers. In 2011 they allegedly gang-raped a teenage boy and filmed the brutal violation using a mobile phone.
There are also reports from dozens of women who claim they were raped by UN peacekeepers. Many of these women, fell pregnant as a result and have been looking after their children with no support from the UN or the nations of the suspected perpetrators.
The UN peacekeepers, a mission known as United Nations Stabilization Mission In Haiti (UNSTAMIH), have been in stationed there since 2004. Their mission was to protect innocent civilians and to stabilise the country after a rebellion. The UNSTAMIH was mandated to concentrate on increasing security and “to assist with the restoration and maintenance of the rule of law, public safety and public order in Haiti.” Unfortunately, many peacekeepers did the exact opposite.
This is unfortunately not the first time peacekeepers have been accused of sexual abuse. According to the Associated Press, over 2000 allegations have been brought against UN peacekeepers, over the past 12 years.
Sexual abuse by UN peacekeepers was documented first in Bosnia and Kosovo in the early 1990s. Reports of abuse have drastically increased since then. The numbers of cases that probably go unreported adds to this already devastating picture.
In 2014, allegations of the sexual abuse of children in Central African Republic emerged. An independent report by three experts who formed the External Independent Review Panel, details that the UN’s response to the allegations was “seriously flawed”. Including that the head of the UN mission in CAR failed to take any action. In addition, both UNICEF and UN human rights staff in CAR failed to ensure that the children received adequate medical attention and failed to protect other potential victims identified by the victims who came forward.
To make matters worse, the whistle-blower and former UN Field Operations Director in the Office of the United Nations High Commissioner for Human Rights, Anders Kompass, who brought the allegations to the French government’s attention, (given that the alleged perpetrators were French nationals) was suspended. Kompass was accused of breaching the UN rules of conduct by sharing the information with the French.
The suspension was later overturned, but the impunity regarding the allegations and his treatment by the UN, were enough to make him leave the organisation.
Part of the challenge is that the UN cannot hold perpetrators accountable, it is up to the nations to which the perpetrators belong.
However, it is UN’s the failure to investigate, report and respond in other ways that attracts warranted criticism.
Though the UN mission in Haiti will be winding down, the negative impact made by some of the peacekeepers will not be forgotten. In addition to the horrendous child abuse, in 2010, a UN battalion of Nepalese peacekeepers introduced a deadly strain of cholera to Haiti.
More than 9000 people have died as a result of the spread of cholera. The UN only admitted its role in the outbreak in 2016 and has allegedly only raised a portion of the funds required by the victims.
Blaming the UN is warranted, but the 193 member states of this organisation must also face tough questions about their contribution to the problems and solutions. Without funding from states, the victims of the cholera outbreak will continue to suffer. Without member states holding their peacekeepers accountable for gross human rights violations, many more innocent women and children will be violated.
** This article originally appeared in the Star newspapers on 20 April 2017 under the title Horrific Tale of UN Sexual Abuse
South Africa faces the music at the ICC
The dubious cabinet reshuffle has stolen headlines for very valid reasons. However, the fact that South Africa must appear before the International Criminal Court on Friday this week for its failure to arrest Sudanese President Omar al Bashir, should not fall off our news radars. Could it influence whether the current government decides to remain as member of the ICC or is it merely a matter of procedural formality for the government? To understand the impact this hearing could have, reflecting on how South Africa ended up in this position is necessary.
It all started with Bashir’s visit. His presence in South Africa, and South Africa’s failure to arrest him can be added to the long list of failures of the Zuma era. Bashir is wanted by the ICC for genocide, war crimes and crimes against humanity perpetrated against his own people in Darfur. He has been a fugitive since 2009.
That same year, South Africa domesticated the arrest warrant pertaining to war crimes and crimes against humanity charges, reinforcing that fact that he is a wanted man. It was also that very year when Bashir was invited to President Zuma’s inauguration, yet it was made publically and privately clear that South Africa would have to arrest him should he be found on South African soil. Naturally, Bashir declined the invitation.
Fast forward to 2015, Bashir is invited to attend the African Union Summit in Johannesburg. Despite clear domestic and international obligations, the South African government facilitated Bashir’s arrival and his surreptitious escape, bringing the rule of law into question and severely damaging the nation’s international reputation. The failure to arrest Bashir was deemed unlawful by both the High Court and the Supreme Court of Appeal. That did not stop the government from taking the matter on appeal to the Constitutional Court.
Less than two months before the scheduled Constitutional Court hearing, the government withdrew its appeal thus signalling its acceptance of the Supreme Court of Appeal judgment that government had acted unlawfully. A positive realisation one would think, however, the plot thickens.
The executive then unilaterally sent an invalid notice of withdrawal from the ICC to the United Nations Secretary General signalling the termination of its ICC membership. But due to procedural irregularities, including failing to consult parliament and the general public about such a drastic move, that notice was challenged in the High Court and deemed invalid.
The government was ordered to revoke the notice.
However, at this point they had already introduced the bill seeking to repeal the domestic legislation that, amongst other factors, regulates South Africa’s cooperation with the ICC. Parliament issued calls for public comment and many organisations sent detailed comments revealing the debilitating shortcomings of the Repeal Bill.
In a surprise twist the ANC withdrew the Repeal Bill. Though it was a positive development, it is not entirely clear why they did so as they were not ordered to by the High Court. Be that as it may, South Africa must still explain itself to the ICC. Some commentators have suggested that a less harsh outcome could encourage South Africa to stay within the system, whilst others are convinced that South Africa remains hell-bent on leaving the ICC regardless of the outcome of the hearing.
The ICC is expecting relevant authorities “ to submit their views on the events surrounding Bashir’s attendance to the African Union summit in Johannesburg ...with particular reference to their failure to arrest and surrender Bashir”.
The ICC Pre Trial Chamber will then have to determine, whether South Africa failed to comply with its obligations under the Statute by not arresting Bashir. If they did in fact fail in their duties, is a formal finding of non-compliance and referral of the matter to the ICC Assembly of States Parties and/or the United Nations Security Council warranted?
The ICC has previously made findings of non-compliance in the cases of Chad, and Malawi who, for different reasons, also failed to arrest Bashir when he darkened on their doorsteps.
Given the importance of the matter, other interested states parties have been permitted to make written submissions, as has the Southern Africa Litigation Centre-the organisation at the heart of seeking the arrest of Bashir during his visit.
There have been reports that the government intends to reintroduce the Repeal Bill and continue the withdrawal process regardless of the outcome of this hearing. However, like everything with the current government, one never quite knows what they will do next.
Perhaps it is only a matter of time before South Africa abandons the ICC, setting a dangerous precedent and limiting forums of justice South African citizens can access. Or perhaps we will all be pleasantly surprised and the government will opt for a more rational, measured approach, favouring constructive engagement designed to perfect the imperfect ICC.
**This article originally appeared in the Star newspaper on 6 April 2017 under the title SA case over Bashir must not fall of news radars
Consequences of impunity
Impunity has long lasting and severe consequences. South Sudan, Africa’s newest independent state, is a prime example of this. South Sudan has been plagued by challenges for several years and the recently released UN Commission Report on Human Rights in South Sudan depicts a devastating and grim situation. Whilst there are many explanations for the on going conflict, it is clear that decades of impunity have played a key role in the state of the nation today.
South Sudanese people fought long and hard for their independence from the North. Their efforts paid off in 2011 but since then ethnic conflict, famine, corruption and gross human rights violations have characterised the first 6 years of this nation’s independence.
The tension in newly independent South Sudan came to a head in 2013 when President Kiir accused his former deputy Riek Machar and ten others of attempting to overthrow him. This ignited a conflict that has fallen largely on ethnic lines. Kiir is from the Dinka group and Machar is from the Nuer group. Their forces continue to fight for control of the country. The Dinka and the Nuer constitute two of the largest ethnic groups in South Sudan and the rift between the two continues to widen with no end in sight.
The conflict has been brutal including gruesome massacres of innocent civilians. Homes have been destroyed, hospitals and schools have been razed to the ground and thousands have fled or perished. Arbitrary arrest and detention, sexual violence and torture are rampant.
Women and children continue to be amongst the most vulnerable. For example, the United Nations Children’s Fund estimates that a staggering 17 000 children have been recruited as child soldiers since December 2013.
The humanitarian crisis has intensified and as a result South Sudan is one of the biggest sources of displaced people.The UNHCR estimates that 1.5 million South Sudanese refugees live in neighbouring countries with half of them having fled in 2016 alone. Famine and spread of diseases constitute additional push factors.
To make matters worse it appears that the government is blocking humanitarian aid from reaching opposition controlled areas and shutting down non-governmental organisations. Considering that 70 per cent of all humanitarian assistance in South Sudan comes from non-governmental organisations, clamping down on their activities is dangerously pushing the country to the edge. Combined with the fragile economy, inflation and a decline in oil production – South Sudan is on the brink of implosion.
Underlying, compounding, and contributing to the crisis is the culture of impunity. Decades of violence and heinous crimes, perpetrated during the fight for independence from Sudan, remain unaddressed. Many suspected perpetrators form part of the upper echelons of the new government and lead opposition movements. It is the same individuals who continue to encourage gross human rights violations. The provision of amnesty has not assisted with the pestilence that is impunity.
Though the government has announced a variety of measures including special courts and investigation committees to address the accountability gap, none of these have yielded any tangible results.
The African Union was tasked with establishing a Hybrid Court for South Sudan but there has been very little movement. The August 2015 Agreement on the Resolution of the Conflict in the Republic of South Sudan provides for the establishment of a hybrid court “to investigate and prosecute individuals suspected of committing genocide, war crimes and crimes against humanity...” The AU has recently stated that the Hybrid Court should be operational in 2019. In the meantime evidence, victims, witnesses and perpetrators disappear.
Other measures discussed in the Agreement include the establishment of a commission for truth, reconciliation and healing. A compensation and reparations authority is also in the pipelines but the issue of compensation and reparations is contested by the President as he prefers that funds be diverted elsewhere. Truth and reconciliation are important as are reparations and compensation but they must be used to complement not substitute
justice.
Justice serves a multitude of purposes including providing closure for the victims as well as deterring potential perpetrators. South Sudanese victims have been denied justice and this has significantly contributed to the state of affairs today. The UN Commission itself notes that, “the lack of accountability for decades of violence during the struggle for independence from the Sudan has helped to fuel the current conflict in South Sudan.”
Without justice and accountability communities cannot truly move forward and establishing respect for the rule of law becomes impossible. Good governance, democracy and free and fair societies cannot be built when the wounds of injustice remain open.
Merely sweeping guilt under the rug and hoping that the violated and the persecuted will forget is unsustainable. Whilst South Sudan grapples with its present atrocities, let us hope it will not continue to ignore its past atrocities.
** This article originally appeared in the Star Newspaper on 16 March 2017 under the title, South Sudan still plagued by impunity
Next Steps: South Africa and the International Criminal Court- anyone’s guess…
The dubious cabinet reshuffle has stolen headlines for very valid reasons. However, the fact that South Africa must appear before the International Criminal Court on Friday 7 March, this week for its failure to arrest Sudanese President Omar al Bashir, should not fall off our news radars. Could it influence whether the current government decides to remain as member of the ICC or is it merely a matter of procedural formality for the government? To understand the impact this hearing could have, reflecting on how South Africa ended up in this position is necessary.
It all started with Bashir’s visit. His presence in South Africa, and South Africa’s failure to arrest him can be added to the long list of failures of the Zuma era. Bashir is wanted by the ICC for genocide, war crimes and crimes against humanity perpetrated against his own people in Darfur. He has been a fugitive since 2009.
That same year, South Africa domesticated the arrest warrant pertaining to war crimes and crimes against humanity charges, reinforcing that fact that he is a wanted man. It was also that very year when Bashir was invited to President Zuma’s inauguration, yet it was made publically and privately clear that South Africa would have to arrest him should he be found on South African soil. Naturally, Bashir declined the invitation.
Fast forward to 2015, Bashir is invited to attend the African Union Summit in Johannesburg. Despite clear domestic and international obligations, the South African government facilitated Bashir’s arrival and his surreptitious escape, bringing the rule of law into question and severely damaging the nation’s international reputation. The failure to arrest Bashir was deemed unlawful by both the High Court and the Supreme Court of Appeal. That did not stop the government from taking the matter on appeal to the Constitutional Court.
Less than two months before the scheduled Constitutional Court hearing, the government withdrew its appeal thus signalling its acceptance of the Supreme Court of Appeal judgment that government had acted unlawfully. A positive realisation one would think, however, the plot thickens.
The executive then unilaterally sent an invalid notice of withdrawal from the ICC to the United Nations Secretary General signalling the termination of its ICC membership. But due to procedural irregularities, including failing to consult parliament and the general public about such a drastic move, that notice was challenged in the High Court and deemed invalid.
The government was ordered to revoke the notice.
However, at this point they had already introduced the bill seeking to repeal the domestic legislation that, amongst other factors, regulates South Africa’s cooperation with the ICC. Parliament issued calls for public comment and many organisations sent detailed comments revealing the debilitating shortcomings of the Repeal Bill.
In a surprise twist the ANC withdrew the Repeal Bill. Though it was a positive development, it is not entirely clear why they did so as they were not ordered to by the High Court. Be that as it may, South Africa must still explain itself to the ICC. Some commentators have suggested that a less harsh outcome could encourage South Africa to stay within the system, whilst others are convinced that South Africa remains hell-bent on leaving the ICC regardless of the outcome of the hearing.
The ICC is expecting relevant authorities “ to submit their views on the events surrounding Bashir’s attendance to the African Union summit in Johannesburg …with particular reference to their failure to arrest and surrender Bashir”.
The ICC Pre Trial Chamber will then have to determine, whether South Africa failed to comply with its obligations under the Statute by not arresting Bashir. If they did in fact fail in their duties, is a formal finding of non-compliance and referral of the matter to the ICC Assembly of States Parties and/or the United Nations Security Council warranted?
The ICC has previously made findings of non-compliance in the cases of Chad, and Malawi who, for different reasons, also failed to arrest Bashir when he darkened on their doorsteps.
Given the importance of the matter, other interested states parties have been permitted to make written submissions, as has the Southern Africa Litigation Centre-the organisation at the heart of seeking the arrest of Bashir during his visit.
There have been reports that the government intends to reintroduce the Repeal Bill and continue the withdrawal process regardless of the outcome of this hearing. However, like everything with the current government, one never quite knows what they will do next.
Perhaps it is only a matter of time before South Africa abandons the ICC, setting a dangerous precedent and limiting forums of justice South African citizens can access. Or perhaps we will all be pleasantly surprised and the government will opt for a more rational, measured approach, favouring constructive engagement designed to perfect the imperfect ICC.
** This article originally appeared in the South African Star Newspaper on 6 March 2017
South Africa's High Court restores order: SA and ICC withdrawal
On 22 February, the High Court handed down an important and definitive judgment reminding the executive that the Constitution of this nation cannot be ignored or bypassed. Finding that the executive’s notice of withdrawal from the International Criminal Court was unconstitutional and invalid, the High Court restored a sense of order. The Court took matters further and ordered that the notice of withdrawal be revoked. A humbling and painful admonition for the government.
Sudanese President Omar al Bashir’s arrival in South Africa in June 2015 exposed the government’s inability to adhere to domestic and international law and led to the situation South Africa finds itself in today with regard to the ICC.
Bashir is wanted by the ICC for crimes against humanity, genocide and war crimes. South Africa, as a signatory to the Rome Statute and having domestically endorsed the arrest warrant for Bashir, was legally obligated to arrest the Sudanese president. Citing all manner of political and unfortunate excuses, the South African government failed to arrest him and was taken to task by the Southern Africa Litigation Centre (SALC).
Both the High Court and the Supreme Court of Appeal found that South Africa’s failure to arrest the man allegedly responsible for the deaths of over 300 000 people was unlawful. The government of South Africa disregarded the rule of law and failed the victims of egregious crimes.
Following the Bashir saga, the ruling party issued calls for withdrawal from the ICC. Without the necessary consultation- the executive sent a notice of withdrawal to the United Nations Secretary General commencing the one-year count down till withdrawal would be deemed effective.
The government cannot unilaterally make such decisions, particularly without repealing the domestic legislation that makes the Rome Statute of the ICC, domestic law in South Africa- the Implementation of the Rome Statute of the ICC Act. As provided for by the Constitution, such a move requires that certain parliamentary procedures (which include public participation) be followed as these decisions have serious implications for the South African people. To give effect to the Constitution, and rein in the executive, legal action was required yet again.
The Democratic Alliance challenged the constitutionality of the notice of withdrawal and the High Court agreed that the notice was unconstitutional and invalid. Calling the executive’s actions “irrational” the judgment reinforced the importance of the separation of powers and may have temporarily halted the country’s gradual unraveling into a state of constitutional disarray.
Whilst the government can of course appeal the judgment, essentially the executive must go back to the drawing board. The Repeal Bill that seeks to repeal the ICC Act is already before parliament and is open for public comment. Should the state forgo an appeal, the executive will have to wait for the outcome of the parliamentary procedure before it can contemplate sending a new notice of withdrawal.
The implications of withdrawal are serious with nothing but negative consequences for the South African people, for justice and accountability. If the ICC Act is repealed, the seminal piece of legislation that governs the domestic prosecution of genocide, crimes against humanity and war crimes will no longer exist. This will significantly hamper domestic justice efforts and potentially make South Africa a safe haven where suspected perpetrators of heinous crimes are welcomed with a red carpet and a VIP escort.
Regionally, there is currently no African Court with criminal jurisdiction and thus justice for crimes that shock the conscience of humanity does not exist at that level.
Internationally, should South Africa successfully leave the ICC, there will be no international justice for South Africans either.
The ICC is far from perfect and there are several challenges that need to be addressed. South Africa should seize the opportunity to lead constructive engagement efforts instead of abandoning the only permanent international accountability mechanism. Given its history, post 1994 commitment to human rights and justice, who better to lead efforts to improve the international justice system from within?
Today, apartheid is a crime under the Rome Statute and one cannot help but wonder how things could have been different if an international criminal court existed during those dark days. Courts not only deliver justice but they can also serve as strong deterrent mechanisms to potential perpetrators.
Burundi, South Africa and the Gambia all announced their intention to leave the ICC in 2016. Gambia, under new leadership has opted to stay within the ICC and perhaps South Africa has a chance to do the same. This judgment may have created a crucial opportunity for reflection.
Whilst the parliamentary process seems to be running its course, last week’s judgment may positively influence the outcome and encourage more public participation in the fight for international justice and accountability.
**This article originally appeared in the Star newspaper on 2 March 2017 under the title Unprecedented victory for justice