Good Politics or Bad Law? The International Criminal Court, Bashir, and South Africa

Posted on July 21, 2017 by

Presidents Zuma and al-Bashir meet in Khartoum in 2015 (Photo: DoC)

It came as quite the surprise. To be sure, observers of South Africa’s relationship with the International Criminal Court (ICC) fully expected that the Court’s Judges would eventually find that Pretoria had failed to cooperate in arresting and surrendering Sudanese President Omar al-Bashir to The Hague when he visited in 2015. But few could have guessed that the Court’s Judges would decide that no further action was necessary, that South Africa would not be referred to either the United Nations Security Council nor the ICC’s Assembly of States Parties (ASP) for additional sanction.

Some view this decision as a betrayal of justice, a finding of criminality without punishment, and a legally precarious proposition. The most cogent and eloquent critic of the ruling, Angela Mudukuti, has argued that “it may do the ICC more harm than good as far as being taken seriously as a legal institution”. In this post, I will argue that the ICC’s decision was, in fact, good politics and law, and that it remains unclear, at best, whether it will hurt the institution.

Firstly, the core of South Africa’s concerns with the ICC remains unsettled. This is far too often and too easily overlooked. Human rights and international justice advocates rightly want to see al-Bashir held to account for atrocities committed in Darfur. However, while South Africa clearly had obligations to arrest Bashir (which was made clear in successive court rulings in the country), it is not clear whether ICC member-states have an obligation to do away with the immunity of heads of state of non-member states like al-Bashir of Sudan. Even when the UN Security Council is involved and refers a non-member state of the ICC to the Court, the legal consequences of such a referral are debatable. This debate is often caricatured as one between proponents of justice and advocates of impunity. But the legal scholars and diplomats concerned with the legal status of head of state immunity of non-member states are not endorsing impunity. They are recognizing a reality: that states and courts have been purposefully ambivalent on this issue and it thus remains unsettled. It does not push the accountability ball forward to neglect this fact. It would be better, as that some observers (including myself) have previously argued, to refer this issue to the International Court of Justice.

Second, a concern among critics of the ICC’s ruling is that a “message has been sent to all states parties: non-compliance has no consequences.” But is it really the case that South Africa has faced no consequences? While South Africa has not been punished or sanctioned by the ICC, it has faced numerous consequences, both domestically and internationally as a result of its decision to host al-Bashir. Pretoria has had to explain itself to the international community and to its own citizens on innumerable occasions and do so very publicly. It has also had to muster legal reasons for its actions.

Indeed, an all-too-apparent consequence is that South Africa has engaged the Court on the issue of head of state immunity. The form and substance of that engagement will never satisfy those who only see one outcome as appropriate: full legal compliance from Pretoria, punishment of the South African government, and the surrender of al-Bashir to the ICC. And fair enough. But what South Africa has done is, nonetheless, engage to the ICC throughout this process. As Allan Ngari rightfully points out: “South Africa has engaged constructively with the ICC, proposing procedures that states parties should take when consulting with the court on cooperation requests.” Moreover, part of the reasoning of the Judges in not referring South Africa to the ASP or Security Council was based on their acknowledgement of South Africa’s positive engagement with the Court. That can’t be said for many, indeed any, member-states that have previously hosted al-Bashir.  Continue reading →

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Posted in African Union (AU), Darfur, International Court of Justice, International Criminal Court (ICC), International Criminal Justice, Omar al-Bashir, South Africa, Sudan | 1 Comment

Non-Compliance But No Referral – The ICC Muddies the Waters

Posted on July 20, 2017 by

Angela Mudukuti joins us for this take on the decision by the International Criminal Court (ICC) regarding South Africa’s failure to arrest and surrender sudanese President Omar al-Bashir to the ICC. Angela Mudukuti is an international criminal justice lawyer with experience in advocacy and strategic litigation gained from her time in civil society, the ICC, and in private practice. The piece was written in Angela’s personal capacity and does not necessarily reflect the views of the Wayamo Foundation. Look out for a response to this piece tomorrow – and, as always, share your own thoughts!

South African President Jacob Zuma with his Sudanese counterpart Omar al-Bashir (Photo: Mohamed Nureldin Abdallah / Reuters)

Last week, the judges at the International Criminal Court (ICC) handed down their long-awaited judgment regarding South Africa’s failure to arrest Sudanese President Omar al-Bashir. The Court was tasked with determining whether South Africa failed to comply with its obligations and, in the case that it had, if a formal finding of non-compliance and a referral to the Assembly of States Parties (ASP) and/ or the United Nations Security Council (UNSC) was warranted. The ICC found that South Africa had indeed failed to comply with its obligations, yet curiously, the judges failed to make a referral to the ASP or the UNSC. Not only is this a significant departure from previous rulings on non-compliance with respect to Bashir’s presence in signatory states, but it may do the ICC more harm than good as far as being taken seriously as a legal institution.

Bashir’s June 2015 arrival in South Africa for the 25th African Union Summit is where South Africa’s woes began. Legally obligated in terms of domestic and international law to arrest Bashir, the South African government chose instead to welcome him.  Not only was this a breach of domestic and international law as well as the beginning of what many referred to as a constitutional crisis, it was also a significant departure from South Africa’s previous stance on Bashir’s presence in the country.

In 2009 Bashir was invited to the inauguration of President Jacob Zuma. He was told behind closed doors that should he arrive, he would be immediately arrested and subsequently surrendered to The Hague. The then director general of the Department of International Relations and Cooperation made this very clear in a public statement released by the government.

Unfortunately, in 2015, the government chose to disregard its domestic and international obligations. The South Africa based non-governmental organisation, Southern Africa Litigation Centre (SALC) took action to address this blatant disregard for the rule of law (as SALC’s international criminal justice lawyer at the time, this case was my responsibility). They approached the domestic courts seeking the implementation of the arrest warrant. The High Court began by issuing an order to prevent Bashir from leaving the country and later, it ruled that failure to arrest Bashir was unlawful. The Supreme Court of Appeal made a similar finding.

Having lost the battle at the domestic level, South Africa still had to face the proverbial music before the Pre-Trial Chamber on 7 April 2017.

A non-compliance hearing of this nature, though unprecedented, provided a vital opportunity for the South African government to defend its actions. In addition to questioning the Article 97 consultation process, the South African government submitted that the ICC’s previous judgments in this regard were inconsistent and that head of state immunity in terms of customary international law prevented South Africa from arresting Bashir.   Continue reading →

Posted in Darfur, Guest Posts, International Criminal Court (ICC), International Criminal Justice, Omar al-Bashir, South Africa, Sudan | 9 Comments

Symposium: Doing Justice to Truth in International Criminal Courts and Tribunals

Posted on July 3, 2017 by

Today marks the launch of a symposium that I have convened with Jakob Holtermann on Humanity’s blog platform. Entitled Doing Justice to Truth in International Criminal Courts and Tribunals, the symposium should be of interest to readers of Justice in Conflict. Below is the introduction to our opening post, which should give you an idea of the main themes that will be examined:

Continue reading →

Posted in Archives, Historical Justice, ICTY, International Criminal Court (ICC), International Criminal Justice, International Criminal Tribunal for Rwanda (ICTR), Justice, Legacy, Nuremberg Trials, Special Court for SIerra Leone (SCSL), Symposium, Transitional Justice, Uncategorized | Tagged , , | Leave a comment

The Road Ahead — Building Momentum for Justice in the Central African Republic


Posted on June 7, 2017 by

Patryk I. Labuda joins JiC for this post on the ongoing challenges of achieving justice and accountability for mass atrocities in the Central African Republic. Patryk is a Ph.D. Candidate in International Law at the Graduate Institute of International and Development Studies and a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights. You can read Patryk’s previous contributions to Justice in Conflict here. 

(Photo: UN Peacekeepers Tumblr)

The Central African Republic (CAR) is the new international justice frontier. After a French-led intervention brought the country back from the brink of genocide in 2013, international efforts have focused on restoring law and order in what the International Crisis Group once called a ‘phantom state’. In recent weeks, attention has turned to the Special Criminal Court (SCC), a new hybrid tribunal tasked with breaking the cycles of violence that have plagued CAR since independence.

In April 2015, the Central African Parliament passed a landmark bill establishing the SCC, a hybrid tribunal led by a mix of Central African and international judges and prosecutors. The establishment of the SCC has run into myriad problems since then, but in the last few months the CAR authorities and the UN have gradually selected candidates for the tribunal’s key positions: in addition to five national and two international staff, on May 26 the tribunal’s chief prosecutor finally arrived in Bangui. A career military prosecutor from the Democratic Republic of Congo, Toussaint Muntazini will be tasked with launching the SCC’s investigations in the coming months.

Immediate Challenges

It is safe to say that Special Prosecutor Muntazini faces a Herculean task. Fighting impunity in CAR was always going to be difficult, but his appointment coincides with a worrying surge in violence in many parts of CAR. Hundreds have been killed and thousands displaced in just the past few weeks. Particularly troubling is the fact that UN peacekeepers have been repeatedly targeted and have responded with force, raising the possibility of an active armed conflict between the UN and armed groups. Muntazini and his staff depend on the UN peacekeeping mission, known by its French acronym MINUSCA, for security and logistics, so the UN’s involvement in hostilities could create both operational and legitimacy challenges for the SCC. In the immediate term, Muntazini will also have to deal with more prosaic obstacles such as the unavailability of infrastructure and delays in establishing a special police unit.

Despite these and other challenges, a major step toward justice was taken last week. After months of investigations, MINUSCA released an eagerly awaited Mapping Report on serious crimes committed in CAR between 2003 and 2015. Although not a substitute for the Special Prosecutor’s investigations, the Report catalogs 620 incidents that could fall under the SCC’s jurisdiction, which – it must be emphasized – covers not just war crimes, crimes against humanity and genocide but also a wide range of serious violations of human rights and international humanitarian law.

Partly in response to the SCC’s broad subject-matter and temporal mandate (2003-present), the Office of the High Commissioner of Human Rights and international NGOs have encouraged Muntazini to announce a prosecutorial strategy explaining which types of violations will be prioritized and why. As is customary at such tribunals, there is broad agreement that the SCC should focus on those bearing the greatest responsibility. In practice, however, reconciling the expectations of victims, local actors and the international community will be a daunting task. Given the vast scale of criminality reflected in the Mapping Report, fighting impunity in CAR will necessarily have to be selective. Investigating and adjudicating complex crimes committed over the past fifteen years is likely to take (much) longer than the SCC’s (renewable) five-year mandate.

Long-term justice strategy

The real challenge facing the international community is how to translate the SCC’s successes into long-term gains. With a little luck, MINUSCA should be able to apprehend a few high-level suspects (some are already in the UN’s custody), and the SCC will then establish criminal responsibility in a handful of cases. But the SCC is a temporary fix by design. International donations have trickled in, despite the UN and the European Union’s reservations about a hybrid tribunal in CAR. But two concerns remain high on the international community’s agenda: what will be the SCC’s relationship to, on the one hand, the ordinary justice system and, on the other, the International Criminal Court (ICC)? Continue reading →

Posted in Central African Republic (CAR), Guest Posts, International Criminal Court (ICC), International Criminal Justice, Special Criminal Court | 1 Comment

Fatalism, Denialism and the Protection of Human Rights

Posted on May 17, 2017 by

Aidan Hehir joins JiC for this post examine the state of contemporary human rights advocacy and offering a preview of his co-edited volume, Protecting Human Rights in the 21st Century. Aidan is a Reader in International Relations at the University of Westminster. He has previously written for JiC on the new Kosovo hybrid tribunal.

(Photo: Ghrnpostgradcluster)

The evidence is widespread and unequivocal: human rights are under attack across the globe. A 2015 report by the UN High Commissioner for Refugees, pointed to the “rapid acceleration” of “spiraling crises”, evidence of an evolving “paradigm change” characterized by “an unchecked slide” into a new era of violence and human suffering. In his 2016 report on the Responsibility to Protect (R2P), the UN Secretary General admitted that “the frequency and scale of atrocity crimes have increased”. Freedom House’s 2017 annual report recorded the 11th consecutive year of decline in global freedom. Amnesty International’s latest report likewise lamented the “unrelenting misery and fear” spreading across the world. The number of major civil wars has increased three-fold in the past decade with an attendant increase in war-related crimes against civilians. For the first time in seventy years, famines are on the increase as a direct consequence of the increase in “war and atrocities”. Add to this the spread of insular, xenophobic populism in Europe, the election of Donald Trump in the US, and the ongoing travails of the International Criminal Court (ICC), and the picture looks decidedly bleak. Surely, the proverbial “something” must be done?

Protecting Human Rights in the 21st Century is a response not just to this precipitous decline in respect for human rights, but also to the two dominant responses to this trend, which Robert W. Murray and I have termed fatalism and denialism. Motivated by our belief that both are not just illogical, but ultimately unhelpful, we offer a collection that addresses what has gone wrong since the end of the Cold War, what has worked, and what may work in future.

Remember the “End of History”?

The end of the Cold War inspired many effusive analyses predicting the dawn of a new era for human rights. While these perspectives were far from homogeneous, the widespread optimism then prevalent, coalesced around one central theme: the inevitability of progress. This was a time when people believed in the “End of History”, in the exponential spread of liberalism, democracy and respect for human rights; a time when “global civil society” was touted as a force that would increasingly compel states to act when “something” had to be done; when the UN was, according to the then US President, “poised to fulfil the historic vision of its founders” and usher in, “A world in which freedom and respect for human rights find a home among all nations”.

The debacle in Somalia, the bloody dissolution of Yugoslavia, and the Rwandan genocide deflated this teleological fervor somewhat. But, by the end of the 1990s, the adoption of the Rome Statute of the International Criminal Court (ICC) and the interventions in Kosovo and East Timor restored faith in the “progress” narrative; indicatively, in their 2000 World Report Human Rights Watch celebrated a “new willingness” on the part of the international community to act in defense of the oppressed, and heralded “a new era for the human rights movement”. Suffice to say, this optimism has since vanished.

Fatalism and Denialism

Today, Human Rights Watch’s (not unique) faith in the international community of course looks hopelessly naïve. Clearly the efficacy of “global civil society” was greatly exaggerated as indeed was the inherent benevolence of Western states. Commitments to protect human rights have certainly permeated to the very center of international political discourse but, ultimately, talk is cheap. As Amnesty International noted bitterly in its 2016 report, while governments have increasingly employed the language of human rights, “….the gap between rhetoric and reality, was stark and at times staggering”. Continue reading →

Posted in Guest Posts, Human Rights, Humanitarian Intervention | 1 Comment

How Three Words Could Change the ICC-Africa Relationship

Posted on May 9, 2017 by

(Photo: Getty Images)

Much of the fraught relationship between the International Criminal Court (ICC) and African states hinges on perceptions and misperceptions of the Court’s role on the continent. There are so many conflicting narratives of the ICC’s impact in Africa, so many divergent views, such little transparency, and such varied commitment from African governments, that it is hard for the most ardent of followers to make sense of the ‘core’ of the issues.

Think back to October and November of 2016. Burundi signalled that it would withdraw from the ICC. Not to be outdone, the South African government frenetically elbowed its way in front of Burundi in order to be the first state to leave the Court. The Gambia soon followed suit. States had previously dropped hints, and at times threatened that they would withdraw from the ICC. But no one predicted this spate of withdrawals or this rather awkward grouping of states abandoning the Court. Everyone wanted to know why, all of a sudden, these three states were leaving the ICC. What was at the core of their beef with the institution?

Burundi made some sense. It was threatened by the very real possibility of an ICC investigation and its brutal president, Pierre Nkurunziza, likely acted out of fear for what the Court’s ongoing preliminary examination might bring. The Gambia, then ruled by Yahya Jammeh, who is now exiled in Equatorial Guinea after being deposed earlier this year, also fit the profile of a dictator opposed to global justice. But, at the same time, The Gambia was no where near the Court’s radar; unlike Nkurunziza, Jammeh had nothing to fear from the ICC. South Africa made even less sense. Sure, they had their issues with the ICC over the visit of Sudanese President Omar al-Bashir and their obligations to arrest and surrender him to the ICC. But the issue didn’t — and doesn’t — seem pressing enough to risk the diplomatic, legal, and political fall-out of ditching the Court altogether. Other issues, like concerns over the effects of the ICC on peace processes and conflict resolution, or anger that the Court hasn’t taken African concerns seriously, are important. But they also don’t seem to justify such dramatic action. Fast-forward six months and all of this is only more peculiar today. The Gambia has re-stated its commitment to remaining in the ICC, and South Africa has, at least for the moment, decided not to withdraw from the Court. That leaves Burundi as the sole flag-bearer of the ICC withdrawal movement. Moreover, states that everyone predicted would be filing out the door — Kenya, Namibia, and Uganda in particular — haven’t moved an inch towards the ICC withdrawal door.

On some level, it may be that there simply isn’t any neat-and-tidy explanation for why the states that decided to withdraw did so. In international relations, we tend to assume that states act consistently as rational actors following heaps of cost-benefit analyses to determine their policy preferences. It isn’t clear that this transpired so neatly in the withdrawal countries. There were undoubtedly long-standing concerns held by African states. Many also felt those concerns were being actively ignored by the Court and many of its states, many of which were left festering by a community of ICC proponents that preferred to blame “bad apples” for African dissent. Some form of confrontation with the Court has long been brewing. But decisions on the ICC are often driven by politics and sentiment and only subsequently justified legally. This, of course, makes it challenging for those proponents who agree that the ICC can be improved and want to work with a constituency of African states to address their legitimate concerns. They need something to work with.

Somewhat counter-intuitively, the clearest glimpse into the state-of-mind of African governments didn’t actually come from any of those states that initiated their withdrawals from the Court in 2016. It came from the Open-Ended Committee on the ICC at the African Union (AU). This past January, at the AU’s summit in Addis Ababa, African heads of state passed a motion endorsing a so-called “ICC Withdrawal Strategy”. The strategy document had been requested by the AU and, in advance of the 2017 summit, it was drawn up by legal officers employed by the AU. It spelled out a laundry list of concerns regarding the functioning of the ICC. Despite its inflammatory name, the document is extremely useful for those interesting in ‘problem-solving’ tensions between the ICC and Africa. Not all of the proposals within it are feasible or desirable for the ICC. Outright jettisoning the warrant for al-Bashir comes to mind. But a lot of the proposals are useful, including but not limited to: dealing with the relationship between the ICC and the UN Security Council; addressing the prickly question of head of state immunity for indicted leaders of non-ICC member states; expanding complementarity to take into consideration regional courts; and ensuring that Article 16 requests to temporarily defer ICC investigations or prosecutions are taken seriously and thoroughly responded to. Continue reading →

Posted in Africa, African Union (AU), International Criminal Court (ICC), International Criminal Justice, South Africa, UN Security Council | 1 Comment

Five Things to Know about the ICC’s Latest Target in Libya

Posted on May 2, 2017 by

(Photo: AFP)

There has long been speculation that the International Criminal Court (ICC) wasn’t done with its work in Libya. Earlier this week, the Court unveiled an arrest warrant for Al-Tuhamy Mohamed Khaled, the former Libyan security chief under Muammar Gaddafi. Prosecutors at the ICC have charged Khaled with four counts of crimes against humanity and three counts of war crimes for his role in the 2011 Libyan civil war. The Court originally issued the arrest warrant four years ago but only made it public this month. Here are five things to know about the warrant for Khaled.

This is only the second public arrest warrant issued under the current Prosecutor

The current chief Prosecutor of the ICC, Fatou Bensouda, has held her office since mid-2012. Until the warrant for Khaled was publicly disclosed, she had only issued one arrest warrant for international crimes in those five years. There are reasons for this. It is widely held that part of Bensouda’s mandate has been to clean the slate after a number of bungled investigations and prosecutions whilst pursuing more diligent investigations and building more thorough cases. Her style is certainly more under-stated and careful than cavalier and gung-ho.

Moreover, the ICC’s Office of the Prosecutor under Bensouda appears increasingly strategic and opportunistic in its decision-making. Its only other arrest warrant to date was issued against Ahmad al-Faqi al-Mahdi. Prosecutors alleged that al-Mahdi was guilty of the war crimes for his part in destroying historic and UNESCO-protected sites in Timbuktu, Mali. When they sought his arrest, the Ansar Dine extremist had already toiled in a prison in Niger for a year and had pledged to cooperate with prosecutors. Within a year of his surrender, al-Mahdi plead guilty to war crimes. His case exemplified how the prosecutors now seek to identify opportunities to pursue targets that will be effectively surrendered, prosecute individuals for crimes that resonate with the international community, and build cases that can be adjudicated efficiently.

Where does the warrant for Khaled fit into this? For the moment, it isn’t clear. The former senior Gaddafi regime figure resides in Egypt, which is not a member-state of the ICC, and the prospects of his surrender to The Hague appear dim.

Sealing and Dealing

There has been a long-standing debate in international criminal justice circles as to whether prosecutors should seek public or secret arrest warrants. The arguments on either side are understandable.

Some believe that the Court should issue warrants as publicly as possible. One NGO working on Libyan accountability issues, for example, has urged the ICC to publicly disclose arrest warrants because their existence may deter the commission of additional international crimes.

Others believe that the Court should use its ability to issue sealed arrest warrants if doing so would increase the prospects of those arrest warrants being executed. Any deterrence impact of the ICC surely relies on the Court’s targets being in the dock and surely suffers from languishing public arrest warrants.

The Office of the Prosecutor of the ICC struggles with the question of public versus sealed arrest warrants. In the case of Sudanese President Omar al-Bashir, for example, the Office decided that issuing a public warrant was most appropriate because, while it might undermine the prospects of surrender, it would openly signal to states that the Court was targeting Bashir and not seeking to have a secret warrant fulfilled thus leaving Sudan with an unstable political power vacuum. In some instances, the ICC be compelled to publicize its warrants in order to be seen to be active in a particular situations. In other cases, the dominant consideration for prosecutors will be the prospects of surrender.

Opposition Impunity

The ICC first intervened in Libya following a referral from the United Nations Security Council in 2011. That referral came in response to palpable fears that Gaddafi was preparing to slaughter civilians in order to quell Libya’s Arab-spring inspired uprising. The Court subsequently issued warrants of arrest for three regime figures — Gaddafi, his son Saif al-Islam, and spy chief Abdullah al-Senussi.  Continue reading →

Posted in Al-Tuhamy Mohamed Khaled, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Libya | 2 Comments