Developments in international criminal justice in Africa during 2011

 Wambui Mwangi
 LLB (Bristol), LLM (Liverpool)
 Legal Officer, United Nations, New York, United States of America
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 Tiyanjana Mphepo
 LLB (Hons) (Malawi), LLM (Cambridge)
 Legal Officer, United Nations, New York, United States of America
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 Edition: AHRLJ Volume 12 No 1 2012
  Pages: 254 - 291
 Citation: (2012) 1 AHRLJ 254-291
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Summary

Africa experienced seismic political shifts in 2011 that had a significant effect on the development of international criminal justice on the continent. The year 2011 saw the finalisation of several noteworthy cases before the International Criminal Tribunal for Rwanda and the conclusion of the case against Charles Taylor before the Special Court for Sierra Leone. The International Criminal Court was also in the spotlight, because of new events – the second referral by the Security Council of a head of state before the ICC; the transfer of the former head of state of Côte d'Ivoire to the ICC; as well as existing events – a co-operation request in the ICC situation in Kenya against the background of an upcoming general election; the ongoing proceedings in the situation in the Democratic Republic of Congo and continuing complexities in the situation in Darfur. The article reviews the developments in these courts as well as the international community's response aimed at combating piracy off the coast of Somalia.

1  Introduction

In this review of the developments in international criminal justice in Africa during 2011, we address the implementation of international criminal law against a backdrop of dramatic political upheavals, particularly evident in the investigations of the prosecutor of the International Criminal Court (ICC). Although there was no progress in the cases before the ICC concerning the situation in Uganda, there were marked judicial developments in the situations in the Democratic Republic of the Congo (DRC) and Kenya. The article also examines the ongoing complexities surrounding the prosecution of President Omar Hassan Ahmad Al Bashir, as well as the two new situations before the ICC, concerning Libya and Côte d'Ivoire.

After over three years, 2011 also marked the historic conclusion of the trial against Charles Taylor before the Special Court for Sierra Leone (SCSL). The review of the SCSL examines some of the salient elements of the defence's final arguments in the case, as well as issues related to the SCSL's residual mechanism.

The review of the International Criminal Tribunal for Rwanda (ICTR) examines the jurisprudence in significant cases recently completed before the ICTR, as well as the groundbreaking developments in the prosecution's repeated requests for transfer of cases to Rwanda under Rule 11bis. This article touches on developments in the international community's continued fight against piracy.

2  Rwanda

In Resolution 1966 (2010), the United Nations (UN) Security Council requested that the ICTR make every effort to complete all its cases by the end of 2014. [1] The ICTR made considerable progress in 2011 by delivering six appeal judgments [2] and completing six trials: four lengthy and complex multi-accused cases – the Government II, Military II, Karemera and Others, and Butare cases, [3] and two single-accused cases – Gatete and Ndahimana. [4] In accordance with article 2 of the Transitional Arrangements for the ICTR and the Residual Mechanism, any cases in which the notice of appeal is filed before 1 July 2012 are to be heard by the ICTR, and any appeals filed after that date are to be heard by the Residual Mechanism. [5]

As of 31 December 2011 there were three trials in progress, one case awaiting trial, and seven cases on appeal. The ICTR had thus far completed trials involving 73 accused and appeals involving 41 persons, referred three cases to national jurisdictions, acquitted 10 persons, and released seven persons who had served their sentences. [6] There remain nine fugitives – Bernard Munyagishari having been arrested in the DRC in May 2011. Three of the nine fugitives, who are considered senior-level fugitives, will be tried by the Residual Mechanism. [7] The prosecution seeks to preserve evidence for the trials of these fugitives through Rule 71bis proceedings, to ensure that future cases do not fail due to the death of witnesses, memory loss, or the destruction of evidence. [8] The other six fugitives may be tried in a national jurisdiction upon referral by the ICTR or by the Residual Mechanism. [9] By the end of 2011 there were three pending applications for the referral of cases to Rwanda. [10]

Further, in 2011, the ICTR acquitted and ordered the immediate release of Casimir Bizimungu (a former Minister of Health) and Jerome-Clement Bicamumpaka (a former Minister of Foreign Affairs), [11] bringing the total number of acquitted persons to 10.

In December 2011, the General Assembly elected 25 judges to the roster of judges of the Residual Mechanism. [12] Many are former or serving ICTR/ICTY judges, greatly enhancing the maintenance of jurisprudential and institutional knowledge and continuity. [13] With the ICTR branch of the Residual Mechanism scheduled to commence operations on 1 July 2012, we look forward to seeing how the different challenges identified in the review of the developments in international criminal law in Africa during 2010 will be addressed by the ICTR, the Residual Mechanism and their parent body, the Security Council. [14]

2.1  Judicial developments

During 2011, the ICTR issued judgments in four major cases concerning senior members of the Rwandan government, political and military establishments. [15] In each of the cases, the Trial Chambers addressed charges of conspiracy to commit genocide and complicity in the genocide. Interestingly, in all four cases, the prosecution failed to demonstrate that a conspiracy to commit genocide existed prior to April 1994. Specifically, in Government II, the Trial Chamber held that the evidence was equivocal as to whether a genocidal plan existed, or was necessarily complete among members of the interim government when it was formed on 9 April 1994. [16] The prosecution struggled to meet the threshold mainly because it relied on circumstantial evidence which was open to inferences that were not consistent with a finding of a conspiracy to commit genocide against the Tutsi before April 1994. [17] Indeed, in Karemera, the Trial Chamber considered it reasonable to infer that the large-scale attacks on Tutsis began on 7 April 1994, possibly as a reaction to the assassination of President Habyarimana. [18]

However, the Trial Chambers made different findings as regards events after the assassination of the President, indicating that the massacres were planned, organised and co-ordinated. For example, in Butare, the Chamber found that Nyiramasuhuko, the only female accused at the ICTR, entered into an agreement with members of the interim government on or after 9 April 1994 to kill Tutsis within Butare préfecture with the intent to destroy in whole or in part the Tutsi ethnic group. [19] Mugenzi and Mugiraneza were also found liable in Government II for conspiracy to commit genocide and for direct and public incitement to commit genocide based on their participation in a public meeting in Butare, where President Sindikubwabo made an inflammatory speech and incited the killing of Tutsis. [20] In Karemera, the Trial Chamber held that a Joint Criminal Enterprise (JCE) materialised on 11 April 1994 and was composed of: political leaders, including Karemera and Ngirumpatse, persons of authority within the military, the Interahamwe, and the territorial administration, and influential businessmen, including Felicien Kabuga. The Trial Chamber was convinced that the common purpose was the destruction of the Tutsi population in Rwanda. [21] However, not every member of the interim government was found guilty of participating in the conspiracy. In Government II, the Chamber acquitted Bizimungu and Bicamumpaka on all counts, not having found any allegations proven against them. [22]

The trial judgments delivered in 2011 have also enriched the ICTR jurisprudence on sexual offences as crimes against humanity. Of particular note is Karemera, in which the Trial Chamber found that the rape and sexual assault of Tutsi women and girls by soldiers, gendarmes and militiamen, including the Mouvement républicain national pour la démocratie et le développement (MNRD) Interahamwe, was a natural and foreseeable consequence of a JCE to destroy the Tutsi ethnicity. Karemera and Ngirumpatse incurred liability in the extended form of the JCE for the rapes and sexual assaults committed after 18 April 1994 by the Interahamwe, soldiers and others. The fact that the perpetrators of the rapes and sexual assaults were not members of the JCE was irrelevant as it was foreseeable that these non-members would commit the rapes and sexual attacks as part of the destruction of the Tutsi population in Rwanda, which was the common purpose of the JCE. The Trial Chamber found that Karemera and Ngirumpatse were aware that the rapes and sexual assaults were possible consequences of the implementation of the JCE and they willingly took the risk that they would be committed. [23] In Butare, Nyiramasuhuko and her son Ntahobali were found guilty of rape as a crime against humanity. [24] They both bore superior responsibility for rapes committed by the Interahamwe. In addition, Ntahobali bore responsibility as a principal perpetrator for raping a Tutsi girl and Tutsi women, for ordering Interahamwe to commit rapes, and also for aiding and abetting rapes. [25] Finally, in Military II, the Trial Chamber convicted Bizimungu of rape as a crime against humanity and rape as a violation of article 3 common to the Geneva Conventions and of Additional Protocol II. [26]

At the appellate level, in Bagosora, the ICTR Appeals Chamber reversed some of Colonel Théoneste Bagosora's convictions and, as a result, reduced his sentence from life imprisonment to 35 years' imprisonment. [27] Being directeur de cabinet in the Ministry of Defence, Colonel Bagosora was the most senior official after the Minister in the Rwandan Ministry of Defence. In fact, he was in charge of the Ministry between 6 and 9 April 1994 when Augustin Bizimana, the Minister of Defence, was on an official mission in Cameroon. Colonel Bagosora was generally perceived to have been the mastermind of the genocide, and is reported to have said a few years earlier that he was planning the apocalypse. It is quite ironic that the person considered the chief villain by many will end up serving a shorter sentence than other less infamous and notorious persons convicted by the ICTR.

2.2  Referrals

After numerous unsuccessful attempts, the ICTR granted the prosecution its request to refer the case of Jean-Bosco Uwinkindi for trial in Rwanda under Rule 11bis of the ICTR Rules of Procedure and Evidence. [28] Only two cases had been transferred to a national jurisdiction since 2004 and this is the first time that the ICTR has referred a case to Rwanda and to an African country. [29] This referral decision provides helpful guidance as regards the necessary criteria that states must fulfil to receive referral cases from the ICTR.

The Uwinkindi Referral Decision sets out the reasons for the ICTR's change of heart, namely, (i) the fact that Rwanda's laws on sentencing are now consistent with the ICTR's rules on sentencing; [30] (ii) Rwandan judges are sufficiently qualified and experienced to handle referred cases and international or non-Rwandan judges will be able to participate in the adjudication of the referred cases; [31] (iii) Rwanda has improved its witness protection programme, including the creation of an additional witness protection unit under the auspices of the judiciary for transferred cases; [32] (iv) testimony may be given via deposition in Rwanda, via video link before a judge at trial or in a foreign jurisdiction, or via a judge sitting in a foreign jurisdiction; [33] and (v) the availability of competent Rwandan lawyers and government-funded legal aid, as well as the possibility of support from international non-governmental organisations (NGOs). [34]

Although the referral decision signifies confidence in Rwanda's ability to conduct fair trials, there are credible concerns, some of which were acknowledged by the ICTR Referral Chamber. For instance, the Referral Chamber accepted that there has been harassment, threats and the arrest of lawyers for accused charged with genocide. [35] It is also implicit in the Uwinkindi Referral Decision that there are concerns about the expansive interpretation and application of Rwanda's law on genocidal ideology, which could have a chilling effect on defence lawyers and witnesses, as they may be afraid of being prosecuted for pursuing a line of defence or giving testimony that goes against the accepted narrative of the genocide. [36] Further, the Referral Chamber noted that the new witness protection unit, created specifically for referred cases, had not yet been tested, and so its effectiveness could not be evaluated. [37] The Uwinkindi Referral Decision offers Rwanda an opportunity to show that the improvements it has made to its judicial and correctional system will be effective in practice, and that it is able to deal with the above concerns satisfactorily if they should materialise during the proceedings.

Pursuant to Rule 11bis, the Referral Chamber decided that the African Commission on Human and Peoples' Rights (African Commission) should monitor the proceedings of the transferred case in Rwanda. In addition to setting out monitoring guidelines for the African Commission, the Referral Chamber requested Rwanda to facilitate effective monitoring of not only the proceedings but also detention conditions. [38] The choice of the African Commission is not entirely surprising in light of previous referral decisions, whereby the ICTR held that the African Commission had the necessary 'qualifications' to monitor trials. [39] The African Commission's involvement demonstrates one of the roles that African regional organisations may play in advancing international criminal justice on the continent.

The African Commission or the accused may request the revocation of a referral or other remedial measures if they consider that there is a material violation of the rights of the accused. While an application for revocation, if granted, in itself would not stay the proceedings in Rwanda, Rwanda would be obliged to return the case to the ICTR or the Residual Mechanism. [40] Surprisingly, however, without basis in either the Statute of the ICTR or that of the Residual Mechanism, the Referral Chamber stated that it would only consider revocation as a remedy of last resort, because revoking a referral and restarting the proceedings elsewhere would affect the accused's right to an expeditious trial. [41] Although raised on appeal, the Appeals Chamber chose not to address the question. [42] While the right to an expeditious trial is a fundamental one, it should not be the only consideration in the determination of whether a case should be revoked. If other equally important fair trial guarantees are not met, it would surely be unreasonable to decline revocation solely on the grounds of protecting the right to an expeditious trial.

Of related interest is the extradition case from Sweden, currently before the European Court of Human Rights. [43] Sylvere Ahorugeze, a former head of the Rwandan Civil Aviation Authority, left Rwanda in 1994 and settled in Denmark. He was arrested in Sweden in 2008 in compliance with an international arrest warrant issued by the Rwandan government, according to which he was charged with genocide, complicity in genocide, conspiracy to commit genocide, murder, extermination, and formation, membership, leadership and participation in an association of a criminal gang, whose purpose and existence were to do harm to people or their property. The Swedish government decided to extradite him following a Supreme Court decision that there were no impediments to the extradition under Swedish law. Ahorugeze appealed to the European Court on 15 July 2009, claiming that his extradition to Rwanda would violate article 3 (torture and inhumane treatment) and article 6 (fair trial guarantees) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention). On 27 October 2011, the European Court held that there were no substantive grounds for believing that Ahorugeze faced a real risk of torture or inhuman or degrading treatment and punishment. It also found that he would not face a real risk of a flagrant denial of justice, that is, of a trial that is manifestly contrary to the fair trial guarantees in article 6 of the European Convention. In its decision, the European Court considered ICTR referral cases and specifically stated that the referral decision had to be given considerable weight. [44] The matter is now pending before the Grand Chamber of the European Court. The Ahorugeze judgment clearly illustrates that the Uwinkindi Referral Decision has already begun to soften previous reluctance to extradite suspects to Rwanda.

2.3  Acquitted persons

Five of the ICTR acquitted persons remain under the protection of the ICTR in Tanzania. They are unable to return to Rwanda because of personal security reasons, and the states in which their families reside are reluctant to grant them entry. There are no mechanisms or procedures under the ICTR Statute that would enable the Tribunal to compel any state to accept acquitted persons, or persons who have completed serving their sentences – even in cases of family reunification. Moreover, acquitted persons and persons who have completed serving their sentences currently are not considered refugees under the Convention Relating to the Status of Refugees of 1951 (1951 Refugee Convention). Article 1F of the 1951 Refugee Convention excludes from the Convention's protection any person in respect of whom there are serious concerns for considering that he or she committed a crime against the peace, a war crime, or a crime against humanity. A literal interpretation suggests that a person who has been acquitted still has to meet the other requirements for refugee status under the Convention, and may be excluded under article 1F in relation to crimes that were not covered by the indictment and subsequent acquittal. This is a real possibility for persons acquitted by the ICTR because they could be subject to other charges in Rwanda.

The problem will become increasingly acute when the ICTR closes because the Residual Mechanism will have neither the capacity nor the political weight to advocate effectively for the relocation of such persons. In 2011, the ICTR President raised this matter before the General Assembly and the Security Council [45] and called upon the Security Council to find a sustainable solution. [46] As the clock ticks, one possible solution could be the UN High Commission for Refugees revisiting its guidelines on the interpretation and application of the exclusion clauses under article 1F of the 1951 Refugee Convention, which currently appear not to address persons acquitted by international criminal tribunals. By failing to find a solution to this issue, the international community has relegated those acquitted and those who have completed their sentences to de facto imprisonment, in violation of those individuals' rights to family, privacy and freedom of movement. [47]

3  Sierra Leone

3.1  Charles Taylor case

In 2011, the lack of a Hollywood drama (that was exhibited in 2010) was compensated for when the SCSL achieved one of its most significant milestones: the conclusion on 11 March 2011 of the case against Charles Taylor after three and a half years, 115 witnesses, and approximately 1 110 exhibits. This marked the end of the first-ever trial of a former African head of state by an international court. [48]

One of the theories that the defence espoused from the very beginning of the case was that Taylor's prosecution was politically motivated. In its opening statement, the defence stated that Taylor had been indicted and arrested only because of the interests of, and pressure by, the US government. [49] Two months before closing arguments, the defence successfully persuaded the Court to admit into evidence two confidential and classified US cables leaked by Wikileaks, [50] which it claimed supported the theory that the prosecution of Taylor was politically motivated and deliberately designed to keep him out of West Africa. [51] Inevitably, the defence reiterated this theory in their closing arguments, asserting that the prosecution had turned the case into a twenty-first century form of neo-colonialism and that the trial was an abuse of legal process to achieve a predetermined end, namely, the conviction of Taylor and his lengthy imprisonment. [52] The defence further submitted that [53]

Not surprisingly, the presiding judge and the prosecution challenged the defence's submissions, and the Trial Chamber's views on these pronouncements may well feature in the final written judgment. [54] 

Attempts to question the impartiality of the Special Court have been dismissed in previous cases, and rightly so. [55] International criminal courts certainly have political elements. This is because they emanate from political decisions by states (expressed through either treaties or Security Council resolutions), they are funded by states (either by voluntary contributions or through the UN-assessed contributions), and their management is subject to the oversight of states (through the Management Committee in the case of the Special Court, the General Assembly and the Security Council in the case of the ICTY and ICTR, and the Assembly of States Parties in the case of the ICC). However, despite these political aspects, international criminal tribunals remain independent and impartial in the exercise of their judicial functions.

3.2  Residual mechanism

Upon conclusion of the Taylor trial, the SCSL will be replaced by a small Residual Special Court for Sierra Leone (RSCSL) established by an agreement between the UN and the government of Sierra Leone, which was ratified by the Sierra Leone Parliament in December 2011. [56] The RSCSL will have the same jurisdiction as the SCSL, and will continue the functions, rights and obligations of the SCSL. [57] Thus, the RSCSL will have the power to prosecute the only remaining fugitive, Johnny Paul Koroma, or to refer his case to a competent national jurisdiction. Even though Koroma is believed to be deceased, it was essential to make provision for a possible trial or referral of his case in order to avoid any impunity should he turn up alive after the closure of the SCSL. [58]

The RSCSL will initially be based in The Hague, with a small sub-office in Freetown, mainly for witness protection. [59] This will enable co-location with the archives of the SCSL, which are currently housed in the Dutch National Archives together with the archives of the International Military Tribunal at Nuremburg. Copies of all the public records will be accessible to the public, in print form and electronically, at the Peace Museum which is being established on part of the SCSL site. It is expected that the original archives will be returned to Sierra Leone when there is a suitable facility for the long-term preservation and security of the archives. [60]

4  International Criminal Court

4.1  General comments

As of December 2011, the ICC was conducting investigations and prosecutions in seven situations: three situations referred to the ICC by the states themselves – Uganda, the DRC and the Central African Republic; the situations in Libya and in Darfur, Sudan, referred to the ICC by the UN Security Council; and the situations in Kenya and Côte d'Ivoire, where the prosecutor proprio motu sought and was granted authorisation to initiate investigations concerning crimes against humanity. In addition, the ICC was conducting preliminary examinations in, amongst others, Guinea and Nigeria. [61] In the above situations, the prosecutor has brought charges against 23 individuals. There remain outstanding arrest warrants in the situations in Uganda, DRC, Sudan and Libya. By the end of 2011, there was no judicial activity in the situation in Uganda [62] and the prosecution continued to present its case in the case against Jean-Pierre Bemba Gombo in the situation in Central African Republic. [63]

4.2  Democratic Republic of the Congo

In 2011 in respect of the situation in the DRC, there were three active cases. The presentation of evidence in the case against Thomas Lubanga Dyilo was concluded, [64] the defence in the case against Germain Katanga and Mathieu Ngudjolo Chui commenced [65] and Callixte Mburashimana was transferred to The Hague where proceedings commenced against him. Bosco Ntanganda remains a fugitive. [66]

The case against Mburashimana never promised to be a conventional one, and this is starkly demonstrated in the Confirmation of Charges Decision analysed below. [67] On 4 January 2011, pursuant to article 627-10 of the French Code of Criminal Procedure, the French Court of Cassation authorised the surrender of Mburashimana to the ICC. [68] Mburashimana was charged under article 25(3)(d) of the Rome Statute as criminally responsible for five counts of crimes against humanity (rape, murder, torture, inhumane acts and persecution) and eight counts of war crimes (attacks against the civilian population, murder, mutilation, torture, rape, inhuman treatment, destruction of property and pillaging). In accordance with the Document Containing the Charges (DCC), the prosecution alleged that Mbarushimana was associated with the Forces Démocratiques de Libération du Rwanda (FDLR) in the DRC, a rebel group believed to be seeking to oppose the Rwandan government. Mbarushimana was considered the highest-ranking member of the FDLR as of 2010 and therefore responsible in part for the implementation of the strategy of bringing attention to the FDLR's claims by attacking civilian populations in the Kivu region in the DRC. [69] Mbarushimana was transferred to the ICC from France on 25 January 2011 and made his initial appearance before the ICC Pre-Trial Chamber on 28 January 2011.

In the lead-up to the Mburashimana Confirmation of Charges Decision, the Pre-Trial Chamber also examined the question of the identification of 72 'potentially privileged' documents seized at Mbarushimana's premises in France, within the meaning of rule 73(1) of the ICC Rules of Procedure and Evidence (Rules), Mbarushimana's repeated requests for interim release and his challenge to the jurisdiction of the Court pursuant to article 19(2) of the Rome Statute. [70] The Pre-Trial Chamber rejected the latter two and, specifically in relation to Mbarushimana's jurisdictional claim, held that the crimes contained in Mbarushimana's arrest warrant were 'sufficiently linked to the situation of crisis existing in the DRC at the time of and underlying the Referral', irrespective of the fact that the object of the prosecution's investigations was not 'active throughout the duration of the relevant time-frame'. Thus, the jurisdiction of the Court was triggered and the matter fell within the scope of the Court's jurisdiction. [71] On 11 August 2011 the Pre-Trial Chamber authorised the participation of 130 victim applicants in the proceedings. [72]

The confirmation of charges hearings were held from 16 to 21 September 2011. [73] On 16 December 2011, the Pre-Trial Chamber, with presiding judge Monageng dissenting, decided not to confirm the charges against Mburashimana, ordering his release from custody upon completion of the necessary arrangements. [74] This review includes a brief summary of Judge Monageng's dissenting opinion, which essentially turned on the interpretation of the standard of 'substantial grounds to believe' as provided for in article 61(7) of the ICC Rome Statute in light of the jurisprudence of the Court.

First, the Pre-Trial Chamber raised its concerns regarding the prosecution's attempt in the Document Containing the Charges to:

Accordingly, the Pre-Trial Chamber found that 'the location and dates of alleged crimes are material facts which, pursuant to regulation 52(b) of the Regulations, must be pleaded in the DCC'. The words 'include but are not limited to' were therefore considered 'meaningless' and the Pre-Trial Chamber decided to only assess charges related to locations specified under each count. [75]

Second, the majority noted that the charges and associated facts in relation to the eight counts of war crimes were 'articulated in such vague terms that the chamber had serious difficulty in determining or could not determine at all, the factual ambit of a number of charges'. [76] 

It added that the 'evidence was so scant that the Chamber cannot properly assess, let alone satisfy itself to the required threshold, whether any of the war crimes charged by the prosecution were committed by the FDLR' in the identified villages. [77] The majority, upon examination of the charges and the relevant evidence, found that there was sufficient evidence establishing grounds to believe that acts amounting to war crimes were committed in five out of the 25 occasions alleged by the prosecution. [78]

Third, the Pre-Trial Chamber examined the five counts of crimes against humanity allegedly committed. [79] Referring to the ICC Elements of Crimes, [80] the Pre-Trial Chamber first analysed whether the contextual elements of crimes against humanity were satisfied. In its findings, the majority was not satisfied that on the basis of the evidence, the threshold of substantial grounds to believe that the FDLR had pursued a policy of attacking the civilian population within the meaning of article 7 was met, and concluded that the attacks could not be considered part of a larger organised campaign specifically designed to be directed at a civilian population. [81] In this regard, the majority further noted that the four attacks against the civilian population that the Pre-Trial Chamber found to have been committed were retaliatory attacks against the FARDC/Mai Mai for attacks on the FDLR and/or Rwandese civilians, all launched with the aim of targeting FARDC military objectives, not civilian populations. Having found that the 'essential requirement that the crimes were committed pursuant to or in furtherance of an organisational policy to commit an attack directed against the civilian population, as set out in articles 7(1) and (2)(a) of the Statute', was absent, the majority found it 'unnecessary to analyse the remaining elements of the crimes against humanity charged by the prosecution'. [82] It is of note that although dissenting, Judge Monageng also declined to confirm torture and persecution as crimes against humanity. [83]

Judge Monageng, however, found that the majority 'attached too much weight to [evidential] inconsistencies' in their conclusions. He opined that 'relevant witness statements' as well as other indirect evidence, such as reports of Human Rights Watch, consistently referred to, or confirmed, FDLR orders to target civilian populations as a way to pressure the Rwandan government to discuss their political demands. [84] In his view, the majority incorrectly relied on evidence that the attacks were launched in retaliation, opining that there are substantial grounds to believe that there was an organisational policy to commit attacks against civilians [85] and that the crimes established in the case were part of a widespread and systematic attack on civilians. [86] With reference to the ICC Elements of Crimes, Judge Monageng held that there was sufficient evidence to establish substantial grounds to believe that murder, rape and other inhumane acts as crimes against humanity within the meaning of article 7 of the Rome Statute occurred. [87]

Fourth, the Pre-Trial Chamber examined Mbarushimana's individual criminal responsibility for the alleged crimes further to article 25(3)(d) of the Rome Statute. [88] In its deliberations, the Pre-Trial Chamber clarified the difference between joint criminal enterprise and liability under article 23(3)(d) and held that 'in order to be criminally responsible under article 25(3)(d) of the Statute, a person must make a significant contribution to the crimes committed or attempted', but could also be liable by 'contributing to a crime's commission after it has occurred, so long as this contribution had been agreed upon by the relevant group acting with a common purpose and the suspect prior to the perpetration of the crime'. [89] In relation to Mbarushimana, the majority took the view that there were no substantial grounds to believe that the FDLR leadership constituted 'a group of persons acting with a common purpose' within the meaning of article 25(3)(d) of the Statute, in particular in light of the requirement that the common purpose pursued by the group must have 'at least an element of criminality'. [90]

Notwithstanding, the majority nevertheless examined each of Mbarushimana's alleged contributions in view of his functions in the FDLR and concluded that Mbarushimana 'did not provide any contribution to the commission of such crimes, even less a "significant" one'. [91] The majority found that in accordance with article 25(3)(d), there was no evidence that Mbarushimana (i) had any power over the FDLR forces on the ground or that his role as leader of the FDLR significantly contributed to the commission of crimes by the FDLR; [92] (ii) denied crimes committed by the FDLR with knowledge of them in furtherance of a policy of the organisation; [93] (iii) in his role as the point of contact for external actors, contributed to the commission of crimes by the FDLR; [94] and (iv) encouraged FDLR 'troop' morale through his press releases and radio messages, thus contributing to the commission of crimes. [95]

Judge Monageng disagreed with the 'very foundation of the majority's conclusion with respect to a group acting with a common purpose'. He was of the opinion that there were substantial grounds to believe that (i) the FDLR had a common plan to direct attacks against the civilian population of the Eastern DRC to pressurise the governments of Rwanda and DRC; and to simultaneously conduct an international media campaign to conceal FDLR's responsibility for the attacks; [96] and (ii) there existed an identified 'group of persons' within the meaning of article 25(3)(d) of the Rome Statute, including Mbarushimana, who had the authority to exercise control over the FDLR forces on the ground and were aware of the crimes the FDLR committed. [97] Judge Monageng concluded that this group of persons, through the FDLR soldiers under their command, committed the crimes detailed by the prosecution within the meaning of article 25(3)(d). [98] Judge Monageng believed that the majority failed to discuss critical pieces of evidence, stating that there were substantial grounds to believe that (i) Mbarushimana used an international media campaign to conceal the criminal activities of the FDLR; [99] (ii) the media campaign was used to encourage FDLR forces to continue the military effort and remain faithful to the FDLR's goals; [100] (iii) Mbarushimana's conduct constitutes an intentional and significant contribution to the crimes committed to a degree that warrants individual responsibility; [101] and (iv) Mbarushimana acted with the aim of 'furthering criminal activity and criminal purpose of the FDLR leadership ... [and] ... in the knowledge of the intention of the FDLR leadership to commit the crimes within the scope of the common purpose'. [102] 

The Pre-Trial Chamber, by majority, declined to confirm the charges against Mbarushimana and ordered his release. The prosecution appealed the Mbarushimana Confirmation of Charges Decision and the Pre-Trial Chamber's rejection of its 'Request for stay of order to release Callixte Mbarushimana'. [103] On 20 December 2012, the Appeals Chamber dismissed the prosecution's appeal on all grounds. [104] In its reasons, the Appeals Chamber reaffirmed its jurisprudence that neither the Decision on the Confirmation of Charges nor the Decision on the Request for Stay of Release were 'decision[s] granting or denying release' and therefore could not be appealed under article 82(1)(b) of the Rome Statute. [105] Mbarushimana was released from ICC custody on 23 December 2011. [106] This decision by the Pre-Trial and Appeals Chambers appears to be a serious indictment of the manner in which the prosecution prepared the case against Mbarushimana. [107] On 26 December 2011 the Rwandan government indicated that it would file charges of genocide against Mbarushimana. [108]

Of interest will be the effect, if any, that this denial of confirmation of charges will have on two cases pending before the German national courts featuring the President of the FDLR, Ignace Murwanashyaka, and the Vice-President, Straton Musoni. Murwanashyaka and Musoni were arrested in Germany in November 2009 and the case against them commenced in Stuttgart, Germany, on 4 May 2011. Pursuant to the German Code of Crimes against International Law (CCAIL), perpetrators of grave human rights violations, such as crimes against humanity and war crimes, can be prosecuted in Germany under the principle of universal jurisdiction, even in the absence of a connection to the state where the crimes occurred. In the first case to be tried under the CCAIL, both Murwanashyaka and Musoni face 26 counts of crimes against humanity and 39 counts of war crimes allegedly committed by FDLR forces in Eastern DRC over a 22-month period between January 2008 and November 2009. They are also charged with being members of a terrorist group.  [109]

4.3  Darfur, Sudan

The ICC arrest warrant issued against President Bashir of Sudan continues to pose legal, political and diplomatic problems for African states. On the one hand, state parties to the Rome Statute have a general obligation under article 86 to co-operate fully with the ICC in its investigation and prosecution of crimes falling within its jurisdiction. In addition, article 89 of the Rome Statute provides that state parties shall comply with the Court's request for the arrest and surrender of a person found in their territory. [110] On the other hand, heads of state are entitled under customary international law to immunity, including immunity from arrest by other states. [111] To complicate matters further, members of the African Union (AU) are obliged to comply with decisions of the AU. [112] One such decision, adopted by the AU Assembly, is that AU member states shall not co-operate for the arrest and surrender of Bashir to the ICC. [113]

Against this legal background, in 2011 Bashir attended the inauguration ceremony of the President of Chad and a meeting of the Common Market for Eastern and Southern Africa (COMESA) in Malawi. Since both countries are state parties to the Rome Statute, the ICC Registrar reminded them of their obligations under the Rome Statute and asked for their co-operation for the arrest and surrender of Bashir. The Registrar also invited the two countries to consult with the Court if they were facing any difficulties in executing the co-operation request, as required by article 97 of the Rome Statute. [114] Chad and Malawi did not consult the Court and did not arrest Bashir. In observations submitted to the ICC, Chad stated that in view of the AU position on the arrest warrant against Bashir and Chad's membership of the AU, it could not implement the request to arrest and surrender Bashir and the provisions of article 87(7) of the Rome Statute could not be pursued. [115] Malawi justified its decision not to arrest Bashir on two grounds, namely, (a) that, as a sitting head of a state not party to the Rome Statute, Bashir enjoyed, under established principles of public international and under national law, immunity from arrest and prosecution; and (b) that as a member of the AU, Malawi fully aligned itself to the AU's position on the indictment of sitting heads of state and government of countries that are not party to the Rome Statute. [116]

In two separate decisions, [117] the Pre-Trial Chamber rejected these explanations and held that Malawi and Chad had failed to (i) comply with their obligations to consult with the Chamber by not bringing the question of immunity to the Chamber for its determination; and (ii) co-operate with the ICC by failing to arrest and surrender Bashir. The Pre-Trial Chamber held that, in accordance with article 119(1) of the Rome Statute, it had the sole authority to decide whether immunities are applicable in a particular case. [118] The Pre-Trial Chamber concluded that [119]

In explaining the consequences of its findings for state parties, the Pre-Trial Chamber took the view that 'the unavailability of immunities with respect to prosecutions by international courts applies to any act of co-operation by states which forms an integral part of those prosecutions'. [120] In both cases, the Pre-Trial Chamber decided to refer the matter to the Security Council and the Assembly of State Parties. It remains to be seen whether or not these bodies will take any action against the two countries.

Perhaps the only positive aspect of the ICC decisions on Chad and Malawi is a reinforcement of the principle that state parties must consult the ICC when they face difficulties in implementing a co-operation request. Otherwise, the decisions are far from satisfactory, for a number of reasons. First, it appears that the Pre-Trial Chamber conflated the issues of criminal responsibility and immunities and there is no sufficient legal basis for concluding that customary international law creates an exception to head of state immunity when an international court seeks the arrest of the head of state for international crimes. Second, there was no discussion of the effect, if any, of the Security Council referral on Bashir's immunity and the obligations of state parties to arrest and surrender him. [121] In particular, the Pre-Trial Chamber should have examined whether Security Council Resolution 1593 (2005), adopted under chapter VII of the UN Charter, implicitly waives Bashir's immunity – the resolution does not expressly address immunity. The Pre-Trial Chamber should also have considered whether, by urging all states to co-operate fully with the ICC in relation to the referral, Resolution 1593 (2005) imposes an obligation on states to arrest Bashir. [122] Such an obligation would prevail over any obligations under the Constitutive Act of the AU and the COMESA treaty by virtue of article 103 of the UN Charter, but would not affect head of state immunity accorded under customary international law. [123] Third, the Pre-Trial Chamber did not consider that the logical result of its conclusions rendered article 98(1) of the Rome Statute ineffective. And finally, while accepting the Pre-Trial Chamber's discretion in whether to schedule oral hearings to assist its deliberations, it is remarkable that these decisions were taken based solely on the written observations, without the benefit of hearing from the parties or relevant amici curiae. [124]

The Malawi and Chad decisions failed to resolve the legal conundrum faced by AU member states, namely, one of conflicting legal obligations which cannot be simultaneously complied with. [125] There is no hierarchy in international law between the obligations under the Rome Statute and the obligations under the AU Constitutive Act. Moreover, the conventional obligation to comply with an ICC request to arrest and surrender a person does not trump the customary international law rules granting a sitting head of state immunity from personal arrest. Article 27(1) of the Rome Statute regulates the vertical relationship between the ICC and an accused who is a national of a state party. As a general rule, it is not applicable to, and therefore not binding on, non-state parties, like Sudan and their nationals. [126] That is why, according to article 98(1) of the Rome Statute, in the case of a national of a non-state party who enjoys immunity, the ICC must first obtain the non-state party's co-operation and waiver of immunity before proceeding to request the surrender of its national by another state. [127] As it is not self-evident that the Security Council referral waives Bashir's immunity, or negates the requirement to seek Sudan's co-operation for a waiver under article 98(1), or imposes an obligation on states to co-operate in the arrest of Bashir, the question is whether the ICC acted consistently with article 98(1) when, without first obtaining Sudan's co-operation for the waiver of the immunity of Bashir, it requested Chad and Malawi to arrest and surrender him.

4.4  Case against Abdallah Banda Nourain and Saleh Mohammed Jerbo Jamus

Of note in the case of Nourain and Jamus in 2011 was the Joint Submission by the Office of the Prosecutor and the Defence Regarding the Contested Issues at the Trial of the Accused Persons on 16 May 2011, stating that the accused will only contest certain specified issues at trial, relating to the attack on the African Union Mission in the Sudan (AMIS) peacekeepers on 29 September 2007. [128] The case appears to turn on whether AMIS was a peacekeeping operation in accordance with the Charter of the United Nations at the time of the attacks. In the joint submission, the accused indicate that should the Chamber determine that AMIS was a peacekeeping mission established in accordance with the Charter of the UN, the attack itself was unlawful and that the accused persons were aware of the factual circumstances that established the unlawful nature of the attack, the accused persons will plead guilty to the charges against them without prejudice to their right to appeal the Chamber's decision on other issues specifically agreed. [129]

4.5  Domestic prosecutions in Darfur

In July 2011, the government of Sudan and the Liberation and Justice Movement signed a protocol agreement committing themselves to the Doha Document for Peace in Darfur (DDPD), a framework for the comprehensive peace process in Darfur. [130] In chapter V, on Justice and Reconciliation, the DDPD provides for the possibility of the Sudanese judiciary to establish a Special Court for Darfur (Special Court) with jurisdiction over gross violations of human rights and serious violations of international humanitarian law committed in Darfur since February 2003. [131] Under the DDPD, the Sudanese government is obliged to appoint a prosecutor of the Special Court, to create conducive conditions to enable the Special Court to undertake its functions in conducting investigations and trials, and to provide the Court with the necessary resources. [132] A team of specialised experts from the UN and the AU, selected in consultation with the government, shall observe the court proceedings to ensure that they meet the relevant international standards. [133] The Special Court will apply the Sudanese criminal law, international criminal law and international humanitarian and human rights laws. [134] Further, the DDPD provides that immunities enjoyed by persons by virtue of their official status or functions shall not obstruct the speedy dispensation of justice, nor shall they prevent the combating of impunity. [135]

This development should be seen against the background of previous attempts at domestic prosecutions, which have been ineffective. In 2009, the AU High-Level Panel on Darfur called for the establishment of a hybrid criminal court within the Sudanese justice system, which Sudan rejected, opting instead for the appointment of a Special Prosecutor. [136] However, no charges have been made, no trials involving serious international crimes have taken place, and the second Special Prosecutor resigned in 2011, citing personal reasons. The relationship between the existing Special Criminal Court on Events in Darfur and Special Prosecutor for Darfur and the new proposals under the DDPD remains to be clarified. Moreover, the creation of new institutions and offices will be meaningless if the Sudanese government has no real political will to prosecute the crimes.

4.6  Libya

The dramatic and revolutionary wave of the Arab Spring in 2011 resulted in the referral of the situation in Libya to the ICC. In accordance with article 13(1) of the Rome Statute, on 26 February 2011 the UN Security Council, acting under chapter VII of the Charter of the United Nations, unanimously adopted Resolution 1970, entitled Peace and Security in Africa, and referred the situation in Libya to the ICC. [137]

Six days later, the prosecution opened an investigation into the situation in Libya and after two months, on 16 May 2011, filed an application requesting the issuance of warrants of arrest for Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi. In the application, the prosecution alleged that the suspects were criminally responsible, through the Libyan state apparatus and security forces, for the commission of murder and persecution as crimes against humanity in violation of article 7 of the Rome Statute in Libya from 15 January 2011. It was alleged that the accused were also responsible as principals to those crimes in accordance with article 25(3)(a) of the Rome Statute. [138]

The Pre-Trial Chamber on 27 June 2011 issued its Decision on the Prosecutor's Application and issued arrest warrants for the three accused. [139] The Pre-Trial Chamber confirmed that the case fell within its jurisdiction, despite the fact that the case involved nationals of a state not party to the Rome Statute, one of whom was the de facto head of state. In this regard, referring to its jurisprudence in the Bashir case, the Pre-Trial Chamber held that 'the official position of an individual [irrespective of whether they are a national of a state party] has no effect on the Court's jurisdiction'. [140]

In determining whether the crimes alleged were within the jurisdiction of the Court, the Pre-Trial Chamber first found that, although Muammar Gaddafi did not hold an official title, there were reasonable grounds to believe that he was the de facto head of the Libyan state, organising and controlling the state apparatus in the regime that monitored and punished any expression of dissent against his regime. [141] The Pre-Trial Chamber found reasonable grounds to believe that, further to a state policy aimed at quelling the February 2011 demonstrations against the Gaddafi regime, a widespread and systematic 'attack' carried out by the Libyan security forces within the meaning of article 7(1) of the Statute occurred, targeted at members of the civilian population, and concluded that the contextual elements of the alleged crimes were satisfied. [142]

Upon examination of the materials provided by the prosecution, the Pre-Trial Chamber determined that there were reasonable grounds to believe murders constituting crimes against humanity were committed in various parts of Libya from 15 February 2011 by the Libyan security forces as part of an attack against the civilian demonstrators or alleged dissidents to the Libyan regime. The Pre-Trial Chamber also found that there was a campaign to cover up these events. [143]

The Pre-Trial Chamber further concluded that there were reasonable grounds to believe that acts of persecution constituting crimes against humanity were committed in Libya from February 2011. It noted that civilians were targeted and attacked by the Libyan security forces and subjected to inhumane acts that severely deprived them of their fundamental rights based on their political opposition to the Gaddafi regime. [144]

In this case, the Pre-Trial Chamber chose not to be bound by the prosecutor's legal characterisation of the conduct of the accused in its consideration of their culpability under article 25(3)(a) of the Statute. Referring to its consistent jurisprudence on the criterion of distinguishing between principal and accessorial liability, [145] the Pre-Trial Chamber found reasonable grounds to believe that (i) Muammar and Saif Gaddafi were mutually responsible as principals to the crimes committed in Libya pursuant to article 25(3)(a) of the Statute, as 'indirect co-perpetrators' of the alleged crimes due to their absolute control over the Libyan state apparatus and their contribution to the implementation of the plan to deter and quell, by all means, the civilian demonstrations against the regime which began in Libya in February 2011; [146] and (ii) Al-Senussi was responsible as principal to the crimes committed in Benghazi, Libya, as an 'indirect perpetrator' of the alleged crimes. The Pre-Trial Chamber added that the 'existence of a chain of command' and the fact that Al-Senissi was following orders did not prevent the 'attribution of principal responsibility' due to his position in the Libyan hierarchy. [147]

In conclusion, the Pre-Trial Chamber determined that the issuance of arrest warrants was necessary pursuant to article 58(1)(b) of the Statute. It concluded that, based on the positions held by each of the accused, it was unlikely that any of them would willingly appear before the Court unless arrested, and may continue to resort to their respective powers to direct further commission and destruction of evidence. [148] The warrants of arrest were issued the same day. [149]

However, on 20 October 2011, the Libyan people were deprived of the opportunity to make the once infamous dictator accountable for his alleged role in the commission of the alleged crimes. Muammar Gaddafi was confirmed dead, allegedly murdered by angry Libyan fighters in Sirte. [150] This naturally raises questions concerning Libya's transition from chaos to the rule of law and the treatment of Saif Al-Islam Gaddafi, who was reportedly captured and detained by anti-Gaddafi forces on 19 November 2011 in Southern Libya. [151] The Libyan National Transitional Council has indicated its intention to prosecute Saif Gaddafi domestically, triggering the debate on the principle of complementarity. [152] At this stage, it is important that Libya co-operates with the ICC and effects the transfer of Saif Gaddafi to the ICC. The transfer would not preclude the new Libyan government from prosecuting him for crimes allegedly committed before or after 15 February 2011. However, should Libya seek to prosecute Saif Gaddafi domestically for the alleged crimes committed since 15 February 2011, 'demonstrating an ability to fairly prosecute [him] would likely require swift and substantial reform of the [Libyan] judicial system'. [153] Moreover, it is 'indispensable that this discussion takes place before the Chambers of the ICC, and that it takes place not in the language of diplomacy, but in the language of law'. [154]

The doctrine of 'responsibility to protect' has been ubiquitously used to justify the use of force in 2011 in Libya, resulting in a debate on the selective use of the doctrine and its potential use for political as opposed to humanitarian grounds. [155] Observers warn that the biggest questions surrounding the mission in Libya are about its objectives, its command structure, and its likely duration. There is no clarity over end goals or criteria for success, and in the current civil war, 'there is little reason to be confident ... the opposition will be able to constitute a benign, national alternative'. [156]

4.7  Côte d'Ivoire

Côte d'Ivoire, which is not party to the Rome Statute, accepted the jurisdiction of the ICC on 18 April 2003 and, more recently, on 14 December 2010 and 3 May 2011 the Presidency of Côte d'Ivoire reconfirmed the state's acceptance of this jurisdiction. [157] The case against Laurent Koudou Gbagbo in the situation in Côte d'Ivoire was a result of post-electoral violence that ensued for a period of about six months following the presidential elections in 2011. On 3 October 2011, the Pre-Trial Chamber authorised the prosecution's request to proprio motu commence an investigation into the situation in Côte d'Ivoire pursuant to article 15 of the Rome Statute. [158] Pursuant to article 58 of the Rome Statute, the prosecution filed an application for a warrant of arrest against Gbagbo, alleging that the former head of state was criminally responsible pursuant to article 25(3)(a) of the Statute for crimes against humanity of murder, rape and other forms of sexual violence, persecution, and inhumane acts under article 7(1) of the Statute. Moreover, the prosecution alleged that Gbagbo adopted a policy of widespread and systematic attacks on his political opponents and his supporters, 'the objective being to retain power by all means, including by lethal force' (the 'policy'). This policy was apparently implemented through pro-Gbagbo forces, under the joint command of Gbagbo and his inner circle. [159]

The Pre-Trial Chamber determined that it had jurisdiction over the matter, based on Côte d'Ivoire's acceptance of the ICC jurisdiction, and reasonable grounds to believe that the crimes alleged against Gbagbo constituted crimes under article 7 of the Statute. [160] 

In determining whether the crimes alleged fell within the jurisdiction of the Court, the Pre-Trial Chamber concluded that there were reasonable grounds to believe that in the aftermath of the presidential elections in Côte d'Ivoire, pro-Gbagbo forces targeted and attacked civilian populations believed to be supporters of the political opposition, often directed at specific ethnic or religious communities, in various parts of the state, [161] and that these widespread and systematic [162] attacks were committed in furtherance to a 'state or organisational policy to commit such attack'. Regarding the latter, the Pre-Trial Chamber noted that there were reasonable grounds to believe that Gbagbo 'never intended to relinquish power' and adopted a policy to launch violent attacks against his opposition 'to retain [this] power by all means'.  [163] Accordingly, and based on the materials before it, the Pre-Trial Chamber concluded that there were reasonable grounds to believe that the four counts of crimes against humanity were committed in Côte d'Ivoire in the period between 16 December 2010 and 12 April 2011 against a civilian population within the meaning of article 7(1) of the Statute. [164] Although the prosecution had exclusively limited Gbagbo's criminal responsibility pursuant to article 25(3)(a) to 'indirect co-perpetrator', the Pre-Trial Chamber found it 'undesirable' at this stage to 'limit the options that may exist for criminal responsibility' under the Statute, not yet having heard all arguments from the parties. Nonetheless, the Pre-Trial Chamber found that the 'substantial test, as advanced by the prosecutor, is therefore made out' but cautioned that the Gbagbo's 'suggested liability ... may well need to be revisited in due course'. [165]

In conclusion, noting that although Gbagbo was already in detention in Côte d'Ivoire, he had the political contacts, economic resources and local support to abscond, the Pre-Trial Chamber determined that the continued arrest of Gbagbo was necessary pursuant to article 58(1)(b) of the Statute. In addition, the Pre-Trial Chamber was satisfied that the continued arrest of Gbagbo was necessary to ensure his appearance and that he would not use his political or economic resources to obstruct investigations or commit further crimes. [166] The Pre-Trial Chamber also acceded to the prosecution's request to issue its decision under seal to protect the ongoing investigations, victims and witnesses and to facilitate Gbagbo's transfer to the ICC. [167] The sealed warrant of arrest was issued on 23 November 2011. [168] On 30 November 2011, Gbagbo was transferred to the ICC and his initial appearance happened on 5 December 2011. [169]

Considering that Côte d'Ivoire consented to ICC jurisdiction in 2003 and in light of the use of his proprio motu powers in the referral of the situation in Kenya, it remains unclear as to why the prosecution appeared reluctant to flex its proprio motu muscle in the case of Côte d'Ivoire, seeking instead a 'safe' state referral from West African states. [170] It is also notable that there are currently no indictments related to crimes allegedly committed by Outtara's forces against Gbagbo's supporters. [171] As the prosecution considers other cases to try in this situation, it is hoped that the pursuit of justice will be blind to political partialities.

4.8  Kenya

On 7 and 8 April 2011, the accused in the situation in Kenya made their initial appearances before Pre-Trial Chamber II. [172] The highlight of the proceedings in the two cases in the situation in Kenya was the request for co-operation from the government of the Republic of Kenya.

On 21 April 2011, the government of Kenya filed a request for co-operation pursuant to article 93(10) and rule 194, in which it sought transmission of [173]

What followed was a series of submissions by the government of Kenya, the prosecution, Kosgey, Ruto, Sang and Ali. [174] On 29 June 2011, the Pre-Trial Chamber rejected the government of Kenya's request for co-operation. [175] On procedural matters, the Pre-Trial Chamber noted that the request for co-operation 'was filed in record of the situation' and not in the respective cases, and as such the accused lacked locus standi to reply to the prosecutor's response. [176] On the substantive issues, the Pre-Trial Chamber found that a literal reading of article 98(10) places the Chamber under no obligation to comply with a request for co-operation submitted by a state, and that requests for co-operation and assistance were only granted in relation to material or evidence in the possession of the ICC organ addressed in the request, in this case, the Pre-Trial Chamber. Accordingly, the Pre-Trial Chamber was not able to provide materials or evidence in the possession of the prosecution. [177] Secondly, in relation to the material in its possession, the Pre-Trial Chamber found that Kenya had not satisfied the necessary requirements, namely by demonstrating that there is or has been an ongoing investigation with respect to either 'conduct' constituting a crime set out in article 5 of the Statute, or in relation to a serious crime under the national law of the requesting state. The Pre-Trial Chamber dismissed Kenya's application. [178]

On 4 July 2011, Kenya appealed this Decision on Co-operation and, referring to its right of appeal under articles 82 and 19 of the Statute, claimed that the Decision constituted a decision on 'admissibility, which may be appealed as of right pursuant to article 82(1)(a) of the Statute'. [179] The Appeals Chamber clarified that the right to appeal specified in articles 19 and 82 of the Statute 'is intended to be limited only to those instances in which a Pre-Trial or Trial Chamber issues a ruling specifically on the jurisdiction of the Court or the admissibility of the case', [180] and it is the 'nature, and not the ultimate effect or implication of a decision, that determines whether an appeal falls under article 82(1) of the Statute'. [181] On this basis, the Appeals Chamber found that the Pre-Trial Chamber's Decision on Co-operation was based solely on the state's request for co-operation, and whether the state had met the requirements of article 93(1). It did not address issues of admissibility. Accordingly, the Appeals Chamber dismissed the Appeal, observing that in the event Kenya submits that 'refusal to decide on or grant the Request for Assistance constitutes a procedural error vitiating a decision with respect to admissibility', then it would be for Kenya to raise such an error in an appeal. [182]

On a lighter note, readers may be interested in the discussion on Sang's request that the proceedings be conducted in Kalenjin (a Kenyan local dialect) as a language that he was 'more familiar and comfortable with'. [183] In its decision, the Pre-Trial Chamber rejected the request, noting that the Registry's assessment of Sang's proficiency concluded that he had an advanced knowledge of English. It also observed that, based on open source video material, several broadcasts by Sang illustrated his 'near-native command of English' and the fact that his higher education was conducted in higher institutions where the language of instruction was English, including his current degree in journalism, was a compelling basis to conclude that he 'fully understands and speaks' English within the meaning of articles 67(1)(a) and (f). [184]

5  Piracy

Piracy off the coast of Somalia continues to be an international problem. According to the International Maritime Organisation (IMO), in 2011 there were 286 attacks against ships in the waters off the coast of Somalia, of which 31 were successful. In April 2011, after its consideration of the report of the Special Adviser to the Secretary-General on Legal Issues Related to Piracy off the Coast of Somalia, [185] the Security Council requested the Secretary-General to report on the modalities for the establishment of specialised Somali courts to try suspected pirates both in Somalia and in the region, including an extra-territorial Somali specialised anti-piracy court, consistent with applicable human rights law. [186]

The Secretary-General's report, issued on 15 June 2011, [187] neither addressed the feasibility of the establishment and operation of the courts, nor recommended particular action to the Security Council. Rather, it limited its analysis to legal, financial and other practical modalities for the establishment of specialised and piracy courts in Somalia and the region. From the discussions in the Security Council, and the absence of steps towards adopting a resolution on the way forward, it seems that there is no agreement between key members of the Council on the modalities of prosecuting persons suspected of piracy off the coast of Somalia. It appears that some members prefer the establishment of an extra-territorial Somali court, while others favour prosecutions by national courts in Somalia and regional states. [188]

The establishment of an extra-territorial court would have to be consistent with the provisions of the 1960 Somalia Constitution and the Somali Transitional Federal Charter. Somalia would also have to conclude an agreement with the host state to regulate their respective rights and obligations in relation to the extra-territorial court, including enforcement of sentences in Somalia. However, Somali authorities are opposed to the idea of an extra-territorial Somali anti-piracy court, preferring that capacity-building efforts are conducted in the state. [189] Tanzania would be willing to host an extra-territorial court under certain conditions, including the enforcement of sentences outside the state. As the ICTR draws down, existing facilities could be made available for such a court. However, there are security implications associated with this proposition and the distance between Arusha and the coast makes the transportation of suspects costly and problematic. [190]

The Secretary-General's report highlights UN efforts in building the capacity of the existing judicial and correctional structures in 'Somaliland' and 'Puntland' to ensure prosecutions of piracy and other serious crimes that meet minimum international standards, and enable the transfer of suspected pirates to these regions. It is not envisaged that additional anti-piracy courts at the federal or regional level will be established. [191] 

In the meantime, pending the metamorphosis of the judicial and correctional structures in Somalia, prosecutions of pirates continue in certain regional states, such as Kenya and the Seychelles. [192] In addition, Mauritius entered into an agreement with the European Union on 14 July 2011 to accept the transfer of pirates for prosecution [193] and the international community hopes that Tanzania will follow suit. Developments in the Seychelles are of particular note. Seychelles is currently in negotiations to host a regional prosecution centre. If Seychelles' conditions are met, which includes a post-trial transfer arrangement, this regional centre would act as a focal point for regional and international support for the prosecution of piracy suspects and provide a location offering relative logistical ease for their transfer by naval forces. Plans also include a Regional Anti-Piracy Prosecution and Intelligence Co-ordination Centre, under the auspices of the Indian Ocean Commission, to develop expertise for tracking piracy finances and develop cases capable of prosecution in Seychelles or elsewhere.

Of note also are the developments regarding piracy off the coast of West Africa, in particular the Gulf of Guinea and off the coast of Benin. In this case, concerned states in Central and West Africa have taken their own steps to counter the maritime crime. [194] There are no foreign navies operating in the area, no suggestions of extra-territorial courts, and no working groups focused on the problem. However, similar to Somalia, the UN has emphasised the importance of addressing the root causes of the problem and the development and implementation of regional strategies. [195]

6  Concluding remarks

The development of international criminal law jurisprudence in Africa in 2011 was phenomenal. Before the ICTR, judgments in four significant multi-accused cases were issued, convicting individuals that held the most senior positions in the former Rwandan interim government, the military and the ruling party. The trial of Charles Taylor, a former Liberian head of state, was concluded in The Hague. This was quickly followed by the issuance of ICC arrest warrants for two heads of state, resulting in a loud and resounding message that no-one is above the law or, in the words of article 6(2) of the ICTR Statute, '[t]he official position of any accused person, whether as head of state or government or as a responsible government official, shall not relieve such person of criminal responsibility nor mitigate punishment'. The ICTR and SCSL cases establish for the Rwandan and Sierra Leonean people a historical record of the extent to which the accused influenced and were involved in planning, executing and overseeing the serious crimes committed in Rwanda and in Sierra Leone. Such historical developments deserve accolades as the international courts and tribunals flex their judicial muscles and the international community is slowly ushered, often kicking and screaming, into a new era in the fight against impunity.

However, such achievements should not result in complacency. The perception that the ICC engages in selective persecution in situations such as those in the DRC and Uganda by not prosecuting state officials or officials of the armed forces who also allegedly committed serious crimes is not new. The similarities with the criticisms against the ICTR for not prosecuting members of the Rwandan Patriotic Front are evident. However, in order to resonate with the concerns of the victims and affected communities, justice needs to be seen to be done on all fronts. [196] As seen in the Mbarushimana case, if the case is not properly prepared, the scales of justice will reject it. Another area that deserves attention is the relationship between the AU and the ICC. The check-mate between these two bodies needs to be resolved, or the positions that certain member states will take, such as was the case with Malawi and Chad, will result in detrimental consequences in other aspects such as negotiations for aid, and may serve to entrench these differences further.

The fight against piracy appears to be causing waves on and off the waters off the coast of Somalia. While the number of attacks against ships off the coast of Somalia, as well as farther east and south, has increased, the international community does not appear ready to adopt a unified approach in addressing this scourge, let alone the prosecution of those suspected of having engaged in piratical acts. By the end of 2011, it was clear that discussions on the creation of an extra-territorial court had stalled, and the bulk of prosecutions were to be carried out in an ad hoc manner by national jurisdictions, primarily by states in the region. Arguably, the Seychellois initiative could play an important role in the prosecution of pirates. However, the establishment of extra-territorial courts and the ad hoc nature of the regional prosecutions of suspected pirates are not tenable solutions to this problem in the long run. It is therefore imperative that a more sustainable solution is identified if there is to be a consistent and effective approach to the prosecution of those suspected of piracy.

Finally, we close with an interesting question posed at the annual 2012 American Society of International Law meeting, [197] relating to the prospect of prosecuting companies for crimes that fall within the jurisdiction of the Rome Statute, and in particular prosecuting pillage as a war crime. [198] While the most important precedents derive from World War II, the potential for the prosecution of companies and individuals that illegally trade in conflict communities is evident when one examines the nature of the civil wars that have ravaged states rich in resources, such as Liberia, Sierra Leone, Angola, the DRC and the Central African Republic.