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inteRnational sYMposiuM

afrIca GrouP for JusTIce and accounTabIlITy

Towards a sysTem
of InTernaTIonal
JusTIce
18 - 19 ocTober 2016
ARUSHA | TANZANIA
Towa rd s a Sy st em of Int e r n at i on al Ju st i c e

inteRnational sYMposiuM

afrIca GrouP for JusTIce and accounTabIlITy

Towards a sysTem
of InTernaTIonal
JusTIce
18 - 19 ocTober 2016
ARUSHA | TANZANIA

rationale for an to international crimes and systemic human construct such a system?
rights abuses.
international symposium: the Wayamo foundation decided to
toWarDs a systeM of yet, as things currently stand, the question convene a public symposium in arusha,
international JUstiCe that still remains is whether a system of tanzania, on 18-19 october 2016 to
international justice truly exists. for such address these very questions.
the past two decades have witnessed a system to exist, it must be dependable, the symposiums panels and participants
remarkable developments in international consistent, and permanent. nevertheless, were asked to delve into key themes and
criminal justice, including the birth of the there is a significant gap between the issues facing international criminal justice
ad hoc tribunals for the former yugoslavia supply of international criminal justice today. these included the tumultuous
and rwanda, the establishment of hybrid and the demand for it, leaving millions relationship between the iCC and africa,
tribunals in sierra leone and Cambodia, across the world with unmet expectations. the apparent rebirth of hybrid and ad
the prosecution of terrorist acts in lebanon, accountability for international crimes hoc tribunals, the domestic prosecution of
and the creation of the first-ever permanent war crimes, crimes against humanity, international crimes, and the importance of
international Criminal Court (iCC) in the and genocide remains piecemeal and a more holistic approach to international
Hague to conduct investigations and trials partial. it only happens in some places, for and transitional justice. the goal of these
of crimes perpetrated across the world. some people, some of the time. for every panels was to make a critical assessment of
situation in which a degree of justice is the challenges and obstacles on the road
the presence of international criminal meted out, there are a dozen others which towards a system of international justice
justice is stronger now than ever. today, are overlooked or find themselves outside which delivers on its promise to ensure that
calls for international criminal justice the reach of global justice. Both critics and accountability for mass atrocities is the
immediately follow in the wake of political proponents of international criminal justice, rule, and not the exception.
violence, irrespective of where it erupts. and the iCC in particular, can agree on
institutions such as the iCC are seen as first these realities. so where does the project it was hoped that doing so would yield
responders to violence and conflict around of international criminal justice currently feasible recommendations and a way
the world. Justice is not only an expectation stand? What barriers stand between where forward to the day when a system of
of victims and survivors of mass atrocities we are and the possibility of a coherent, global justice is a reality of international
around the world, but also an indelible part consistent system of international justice? law and international politics.
of the international communitys response What is needed and what can be done to
Towa rd s a Sy st em of Int e r n at i on al Ju st i c e

AFRICA GROUP FOR JUSTICE


AND ACCOUNTABILITY
Towards a System of
International JusticE
DAY I
TUESDAY | 18 OCTOBER 2016

launched at The Hague in November 2015: not, then what needed to be done to construct
- Master of Ceremonies - indeed it was only four weeks short of its first such as system. What obstacles had still to be
anniversary. Arusha marked the Groups second overcome?
Joseph Roberts-Mensah bi-annual meeting, with the first having been
held in Cape Town in March. In addition to its HBJ noted that six of the AGJAs full complement
strategic meeting and symposium, it would also of 12 members were present.
- Opening session - be hosting a 2-day capacity-building workshop Aside from himself, these were Athaliah
on crime scene investigation. Molokomme, Catherine Samba-Panza,
Welcoming remarks Why, she asked, had the symposium been Mohamed Chande Othman, Richard Goldstone
entitled Towards a System of International and Femi Falana. The holding of the symposium
Hassan Bubacar Jallow Justice? On the one hand it was necessary to followed the previous days meeting, at which a
former Prosecutor at the International recognise the tremendous progress that had set of principles -to be known as the Kilimanjaro
Criminal Tribunal for Rwanda and been made in this direction; on the other hand, Principles- had been drawn up, in line with the Bettina Ambach, Mohamed Chande Othman and Hassan Bubacar Jallow
International Residual Mechanism for however, one had to ask whether a system Groups stated mission of supporting justice and
Criminal Tribunals of international justice genuinely existed, and if accountability. These read as follows:

Bettina Ambach The meeting had also reviewed the situation Group for Justice and Accountability and sovereign rights. One could even venture to
Director, Wayamo Foundation, Berlin The Kilimanjaro Principles on in Burundi. The AGJA was very concerned Wayamo for organising this well-structured conjecture whether Brexit does not fit into
International Justice and Accountability at the Parliaments decision to revoke and professional encounter. such mode of thinking and reaction!
the Rome Statute and would be issuing a The Founding Prime Minister of Singapore,
- Keynote address - statement to that effect. Distinguished participants, Lee Kuan Yew observed back in 1962
The Africa Group for Justice and Accountability will: The theme of this conference is not that the acid test of any legal system is
Hon. Mohamed Chande Othman HBJ now introduced the days keynote altogether novel. Its recurrence and tenacity not the greatness or the grandeur of its
Chief Justice of Tanzania 1. Champion Justice and Accountability speaker, and remarked that, in view of is a clear reflection of its importance and ideal concepts but whether, in fact, it is
Promote efforts to ensure justice and accountability for perpetrators of the Chief Justices long experience and even sensitivity for evident reasons. able to produce order and justice. An apt
---------- international crimes. commitment, there could not have been a statement when one considers the state of
better choice of speaker for the occasion. Even with an unparalleled development the system of international justice - and the
After welcoming all those present and explaining of international criminal justice since theme of the symposium: Towards a system
2. Enhance Complementarity by Building Capacity
that this was to be the second symposium of its Nuremberg, the international community of international justice.
kind to be held by the Africa Group for Justice Enhance complementarity by providing expertise, promoting the Keynote address* continues to face the challenge of how
Accountability (AGJA), Master of Ceremonies, establishment and strengthening of effective domestic and regional best to legitimate international justice in Thus, if we revert to Lee Kuan Yews
Joseph Roberts-Mensah, handed over to justice mechanisms. Hon. Mohamed Chande Othman an environment where there is an ever- precept, we may additionally ask if
opening-session Chairman, Hassan Bubacar Chief Justice of Tanzania growing sense that national sovereignty is todays international justice is indeed
Jallow (HBJ). 3. Support the International Criminal Court and Universal being relegated and subjected to the rigid producing order and justice. This dictum,
Ratification of the Rome Statute I wish to thank the organisers for inviting me strictures of supra-national institutions. if I may call it that, exposes us to one
HBJ briefly explained that, with the help of to honour this international symposium with rather subjective question, namely, what is
its distinguished guests, the Wayamo/AGJA Encourage a positive and co-operative relationship between African a keynote address. Before I do so, allow And it is not just in matters of justice in the order? That is international criminal order.
symposium proposed to discuss how to states and the International Criminal Court as well as advocate universal me to extend a word of warm and cordial strict legal sense. As far back as January Yet it is a fundamental inquiry which has
enhance and facilitate international criminal ratification of the Rome Statute. welcome to distinguished participants, to 1980, the founder President of Tanzania, often emboldened the tension between
justice. As the judicial capital of Africa and site Tanzania and to this exotic city of Arusha. Mwalimu Julius Nyerere, in an unusual international justice and state sovereignty,
of so much jurisprudence, he felt that Arusha 4. Promote Facilitation, Mediation and International Co- I hope the serenity of this area will energise reaction to how the International Monetary especially in Africa.
was an extremely appropriate venue. He operation your minds and spirits for a profitable Fund was exercising its powers and authority
then called on Wayamo Foundation Director, Support international co-operation and offer independent expert advice, engagement. I wish to recognise the eminent on the economies of the developing Distinguished Participants,
Bettina Ambach (BA) to say a few words panellists who have kindly accepted to countries, observed that the IMF was not I think it is important for this symposium to
facilitation and mediation to African states, the African Union, the
of introduction. join this symposium and to share their vast an international ministry of finance! To interrogate further this question about
International Criminal Court, and the international community. experience. I understand they will also be Nyerere, the issue was not about Tanzania order as it goes to the heart of what Nobel
BA began by thanking the Chief Justice and sharing the trade secrets of mass-crime being a State Party to the IMF Articles of Laureate, Amartya Sen, in his magisterial
his staff for all their help and co-operation. 5. Foster Transparency and Open Dialogue criminal investigations at the capacity Agreement; it was about IMFs exercise of its book entitled, The Idea of Justice, describes
The symposium, which would be discussing Foster open, transparent dialogue on the role and impact of building workshop. I sincerely thank the Africa authority without due regard to Tanzanias as the importance of impulses and mental
themes around the subject of international international justice in Africa, provide open forums where African states,
criminal justice, would not have been possible citizens and organisations can discuss African and global perspectives on
without the generous support of its funders.
justice and accountability.
The AGJA had originally come together as
* NOTE: Owing to a technical hitch, the public address system rendered much of the Chief Justices address barely audible. Accordingly, for
an independent body and been formally
the benefit of those who had difficulty in hearing it in full, it is now reproduced from his notes

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Towa rd s a Sy st em of Int e r n at i on al Ju st i c e

attitudes in assessing and examining the in accountability for atrocity crimes? The Protocol has been ratified by 30 of the 54 is the establishment in April 2015 of the
advancement of justice and the removal of President of the ICC could not have said it African States. Following the withdrawal of SCC within the national court system of the
injustice in the world. It seems that there is any better in her opinion in the Guardian (19 Rwanda in 2016, it is worth observing that Central African Republic, charged with the
wide approval that an effective and efficient April 2016): States establish it, but they must currently only 7 of the 54 African States investigation and prosecution of crimes in
system of international justice should also be respect its judicial independence. (Benin, Burkina Faso, Cte dIvoire, Ghana, the CAR since 2003. These developments
part of a local DNA; otherwise it turns into an Mali, Malawi and Tanzania) have made a represent a rebirth of hybrid tribunals and
anti-body and can potentially be rejected. Another interconnected issue on international declaration under Article 34 (6) of the Protocol renewing of transitional justice. They are a
What all this means, I think, is that an justice which has emerged at times and granting competence to the Court to receive piece of good news.
understanding of justice should not escape which has touched raw nerves in Africa, is applications from individuals and NGOs. This
its being contextualised with national roots. the relationship between peace, security jurisdiction, of course, is in addition to that of As jurists and human rights activists, we must
and justice. It invites close consideration. The States, which have automatic access to and sustain the search for a more acceptable,
One may even interrogate: is it not the subject has assumed prominence in Africa competence at the ACHPR. holistic and legitimate system of international
question of order in the sense of state because conflicts do occur. It is a fact that justice, one that has room for cross-fertilisation
sovereignty rights succumbing or being some are ongoing. However it is not an One finds it edifying that as of 11 October, of justice. As I stated at the beginning of
subjected to controlling supra-national African monopoly. It has also emerged in the 2016, of the 119 applications to the Court, 110 my remarks, State sovereignty is gaining
instances and authority such as the ICC, (92%) we relodged by individuals, 5 by NGOs momentum as a radical form of nationalism.
that is one of the central questions which and 3 by the African Commission on Human Brexit is one of its recent symptoms. It seems
currently partly bedevil the relationship Mohamed Chande and Peoples Rights (Banjul Commission). NGOs that nation-states will increasingly seek to
between the ICC and the African Union (AU) Othman: In international have also sought 9 Advisory Opinions. What reclaim and retain control over economic,
(in which 34 African States have ratified the is also most instructive is that while no AU legal and judicial matters. Already, we
Rome Statute) and its leaders. The AU and its
and criminal justice, per- Member State has filed an application against witness how, in a number of countries,
leadership have asked and are looking for a ceptions are most critical. another State for an alleged human rights populist ideas about nationalism, including its
satisfactory response: why, for example, if the They affect legitimacy. The violation, applications by individuals and NGOs aggressive and ethno-centric kind, are in the
ICC is legitimate, have Russia, China and the account for 97.47% of the Courts cases. Mohamed Chande Othman ascendancy: in the United States, as clearly
USA yet to sign the Rome Statute?, the very question is not whether Independent corroboration of this trend is also manifested in the character of the ongoing
States which are members of the UN Security the perceptions are false to be found in the European Court for Human presidential campaign, in Europe (France and
Council that has referral and deferral powers Rights (ECHR), where inter-State applications the Netherlands, in particular), and Africa is no
under the Rome Statute.
but whether stakeholders are similarly lodged very seldom. I should also longer the exception.
have a responsibility to think that it is for the generous price rather than The question here, as properly posed by Distinguished Participants,
In the words of former President of South address them. No doubt the penalty of being the host State that 80 Sehan Aref, is not whether the perceptions Going forward, it is important for this The future of a more viable and effective
Africa, Thabo Mbeki, when the African Union is of the 119 (67%) applications by individuals are false; the more penetrating question symposium to reflect on the system of system of international justice must quickly
not asking for charges to be dropped against they have. before the Court spring from Tanzania. is whether the ICC and other stakeholders international justice as it begins to extend its move towards striking a delicate balance
an ICC indictee, it is puzzling to the African have a responsibility to address them. No role beyond what African Governments may between its legitimate contribution to the rule
Union why the Security Council did not defer recent peace process in Colombia, which One of the clear and pertinent issues that doubt they have. The power of the social view as its traditional mandates. of law, accountability and the fight against
a situation of an ongoing conflict in Africa for has undergone half a century of armed emerges from the above is the whole question media is an important factor to be borne out impunity and respect for the pursuit of greater
a year, in the quest for peace. If this window conflict. The thorny question often posed in of limited access of individuals and groups to in perception. Justice, at whatever level, must Distinguished Participants, nation-state jurisdictional control over atrocity
for non-State Parties, not only to influence, but terms of ending hostilities, stopping atrocities, regional and international judicial instances, continuously enjoy and retain the full trust and Inasmuch as there have been numerous crimes. For one, as highlighted in the ICC
also to have a decisive input in a court it is peace-making and accountability is whether and in particular by victims of international confidence of the African public. International dialogues and conversations, at different Prosecutors own policy paper (2003), the
to be fully appreciated, a need for deeper justice should triumph over peace or peace- humanitarian and human rights violations. justice cannot exists or flourish without public fora, about international justice, the role of ICCs effectiveness and major success is to be
reflection, understanding and consensus is making should momentarily supersede justice On the ACHPR, the siren calls by Prof. Makao buy-in, engagement and participation. the ICC, the position of domestic courts in through the absence of trials by the ICC, as a
called for. or transitional justice arrangements. Posed Mutua that it is an assault on the human rights A glance at the existing material on adjudicating international crimes against consequence of the effective functioning of
another way, if the two are complementary, system to condition access of individuals and perceptions of international justice in Africa humanity, issues of complementarity, national systems. The Prosecutor too correctly
There are certain situations (Afghanistan, how can the two be mutually reinforcing? NGOS to the Court to a State Party making is that it is seen in some constituencies as including positive [complementarity], acknowledges that ending impunity is not the
Georgia, Sri Lanka, Syria, Yemen) and, in Again, the symposium is best posed to a declaration to that effect are telling; as being selective, employing double standards, where support for devolution of judicial preserve of any one institution.
particular, regions that ought to have been or address this recurrent challenge, with a view are those of Dan Jama that to rely on the insensitive to national and local needs, distant, authority for atrocity crimes is best assured States and their accountability institutions
to be at the ICC and to have already matured to enhancing the rule of law, combating predator State to institute cases before the expensive, imposed, externally driven and and reinforced, the establishment of ad hoc must in the final analysis be willing and
(and yet are not or have not). To add to impunity and the establishment of durable African Court may well be a case of a poacher dominated. Examples of these perceptions and hybrid tribunals and transitional justice able through effective national systems to
David Boscos observations, why is it that the and sustainable peace. turned gamekeeper. Is the time not ripe for abound. It has been proposed by the AGJA mechanisms such as Truth, Reconciliation hold responsible all, including those with the
ICC has no desire to provoke Washington, permitting individual and group automatic that some of these perceptions are the and Compensation Commissions, and the greatest responsibility for mass atrocities.
Beijing or Moscow or to act in cases in which Distinguished Participants, competency before the Court, rather than result of misinformation, misrepresentation or deployment of International and National The words of U.S. President Barack Obama
geopolitics are intense? The symposium African States are parties to dozens of subjecting it to an optional regime? I flag this misunderstanding. IHL and HRs Commissions of Inquiry, the to both the Ghanaian Parliament and
offers an appropriate platform for an informed international and regional humanitarian and issue purposely in the hope that it may interest interconnected themes of the seven panels the AU Assembly of Heads of State and
conversation on all these and other pertinent human rights conventions. Their Constitutions your deliberations and particularly as regards Distinguished Participants, of the symposium invite your close scrutiny. Governments echo a similar message, Africa
issues, with the caveat that there may not be enshrine and guarantee human rights and the competence of the anticipated African For the symposium these concerns and issues doesnt need strongmen; it needs strong
a monolithic African stand on each and every fundamental freedoms. Justice is among Court of Justice and Human Rights and the arise: does international justice truly enjoy Distinguished Participants, institutions. To achieve this, law enforcement
subject. the purposes of the African Union, whose architecture and substance of regional and wide public confidence and trust in Africa? It would be felonious on my part if I did agencies in African States require increased
core values include the rule of law, human international justice. What about that of victims and survivors? not briefly share these additional remarks, public expenditure at sustained levels
Distinguished Participants, and peoples rights and the fight against Has the best of outreach efforts been made being in Arusha, the seat of the East by African Governments. Political will is
One of the major issues concerning account- impunity. Article 4 (h) of the Constitutive Act of Distinguished Participants, when, for example, a renowned African African Community, with a population of imperative. Partnership in capacity building is
ability and justice, which I am sure will not dodge the African Union is progressive to the extent The propensity is very high when we converse political-liberation party avows that the ICC 167 million inhabitants. On 17th August indispensable.
your critical deliberations is the independence, that it incorporates the right of the Union to in a symposium of a like-minded conclave is no longer useful for the purposes it was 2015, its newest member, the Republic
impartiality and integrity of national, regional interfere in a Member State, pursuant to the such as this distinguished one, to be self- intended? The ICC, remarked UN Deputy of South Sudan, formally committed itself The AGJA and Wayamo look forward to your
and international judicial institutions, and their decision of the Assembly in respect of grave convincing on the virtues of international Secretary-General, Lord Mark Malloch-Brown, to the establishment of transitional justice, counsel and recommendations on the way
organs and members in particular, in the face circumstances, namely, war crimes, genocide justice and its instances, including the ICC. got itself on the wrong side of a PR (and accountability, reconciliation and healing forward towards international justice, so that
of interference with and politicisation of their and crimes against humanity. Any informed student of science or legal logic political) campaign in Africa. How can this mechanisms as part of the resolution of the one day we may witness a system of global
mandates and processes. Can international can postulate that proposition. In international symposium be a guide, so that it arrives on recurring conflict in Southern Sudan. These justice as a reality in international law and
justice be truly apolitical? Is the politicisation It is most befitting that the symposium will justice as in national justice, the perception the right side of public relations in Africa? Why include the Hybrid Court for Southern Sudan international politics.
of justice not open to a legitimacy crisis? How also examine regional judicial institutions, one of the public, witnesses and survivors affected has the African Fourth Estate not been very (HCSS) to be established by the African Union
can international justice be better insulated of which is the African Court on Human and by atrocity crimes is most critical. It affects audible, when it is more vocal and virulent on and the Truth, Reconciliation and Healing I WISH YOU SUCCESSFUL DELIBERATIONS!
from undue political or external pressure Peoples Rights (ACHPR), whose establishing legitimacy. other democratic fronts? Commission (TRHC). Also worthy of applause I THANK YOU.

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Towa rd s a Sy st em of Int e r n at i on al Ju st i c e

THE PANELS birth to the concept of international justice,


which had been protected under Article 6
of the Genocide Convention but had then
for international bodies such as the ICC.
Specifically, when the permanent 5
Security Council members could not agree,
demonstrated the necessity of a Court
with a global mandate or showed that the
ICC itself was ready to exercise a broader
some fragile states, and also disagreed
with the ICC over the interpretation of
the Rome Statute as regards immunity
The flipside was the reaction to that
call because, for the first time in
recent memory, the July 2016 summit
been reduced to deep slumber for half a the ICC was unable to assume jurisdiction mandate. In terms of the relationships that and sovereignty. These divergences had had witnessed some African States
PANEL I: century, mainly as a result of the Cold War. over situations that involved countries (or the ICC could establish or re-establish with impacted negatively on AU/ICC relations. Parties joining Botswana (hitherto the
The promise and limitations of the It had been resuscitated by the two ad hoc country nationals) which had not ratified those African States Parties most opposed lone voice) in expressing vocal
International Criminal Court: improving the tribunals and judicial processes mounted the Rome Statute. Furthermore, when to the Court (in which civil society would APRMs role support for the ICC, standing up and
relationship be-tween Africa and the ICC in the aftermath of the conflicts in the the UN Security Council had previously play a very important part), and in terms of How could the APRM contribute towards rejecting a push for mass withdrawal.
former Yugoslavia and Rwanda, and the referred situations to the Court (Darfur and the international community being able to improving these relations? How could the These included Nigeria, Cte dIvoire,
emergence of mixed or hybrid tribunals, as Libya), disagreements on the Council had heal its wounds, the next five years would APRM complement the ICC and AU actions Senegal and Tunisia. One could not
- Moderator - in Sierra Leone. These developments had meant it was failing to give the Court the determine the trajectory of the ICC for a for the achievement of the common goals underestimate the potential significance
culminated in the adoption of the Rome necessary support. Indeed, the Court was very long time to come. of promoting peace, security and stability of this development in a climate where,
Mark Kersten Statute in 1998 and the setting-up of the unlikely to exercise jurisdiction in a number in Africa? aside from Botswana, there had been
Munk School of Global Affairs, University much acclaimed ICC. There was ample of instances, leading to a perception of a Since the APRM shared the same no vocal support for the ICC. In addition,
of Toronto; Research Director, Wayamo evidence to show that the world today two-tier system of justice. Jean Yves Adou (JYA) objectives and vision with the ICC, it Burkina Faso, Cabo Verde, the Democratic
Foundation could not do without the institution of the The ongoing war on terror was making As an economist sitting among lawyers, could be used as a bridge between the Republic of the Congo (DRC) and Senegal
ICC and its 124-strong membership of it harder for international criminal JYA saw this as an opportunity to learn two approaches to reach the ultimate had also entered reservations to the July
sovereign nations. justice to seem to have any traction, about issues outside his area of expertise. goal of promoting peace, security and 2016 summit AU decision on the ICC.
- Panellists - i.e., with actions committed by the USA, stability in Africa. Through experience
Limitations: UK, France, Russia, Syria and Saudi Arabia APRM and ICC: sharing, reinforcement of best practices, This presented both a challenge and
Jean Yves Adou On the limitations side, it had to be often looking like egregious breaches of shared objectives and vision and peer pressure, common goals an opportunity. The challenge was the
Head of Division, Knowledge Management, acknowledged that there were obvious international criminal and/or humanitarian The African Peer Review Mechanism (APRM) could be achieved without recourse to ongoing push for consideration of a mass
Monitoring & Evaluation and Review and understandable objections by the law yet possibly being within the law or sought primarily to foster the adoption of punishment. withdrawal. For all states, groups and civil
Support, African Peer Review Mechanism accused to facing justice, and so there unlikely to be adjudicated in a court. policies, standards and practices which led society committed to advancing justice,
secretariat, Johannesburg were problems in apprehending and One body count had put the number of to political stability, high economic growth, The APRM had served as an early-warning the key question was how this work could
bringing such criminals to book, in that they casualties in the US-led war on terror at 1.3 be reinforced, cultivated, supported and
Kirsten Ainley went into hiding or exile, and engaged in million but there was almost no chance of other States brought in, e.g., by helping to
Assistant Professor of International Relations what RG termed, contortions to avoid an international body ever examining the Richard Goldstone: The ICCs greatest limitation is build up a West African core of states in
and Director of the Centre for International justice, e.g., Miloevi, Karadi, etc. USAs actions. its complete and utter reliance on governments, support of international criminal justice.
Studies, London School of Economics However, the ICCs greatest limitation
was its complete and utter reliance Although the ICC was supposed to be
without whose co-operation it is powerless. EK had taken to heart the Chief Justices
Richard Goldstone on governments, without whose co- supported by its Assembly of State Parties, words about the need to reflect on the
Former Chief Prosecutor of the United operation it was powerless. This was another consequence of division in the sustainable development, and accelerated and conflict-prevention instrument. In real problems of international justice and
Nations International Criminal Tribunal for both a limitation of and challenge to the international system in the shape of a regional and continental economic some countries, its findings had not only the ICC, and have those conversations.
Rwanda and the former Yugoslavia Court. lack of clear leadership meant that the integration, by promoting transparency, warned of impending crisis (e.g., Kenya, However this could only happen in an
ASP had failed and was likely to continue accountability and public participation in South Africa, Burkina Faso, Mali, etc.), environment where withdrawal was off the
Rod Rastan failing to give meaningful support to the four areas, i.e., democracy and political but when these crises had erupted, the table; and without the necessary vocal
Legal Advisor, Office of the Prosecutor, Kirsten Ainley (KA) Court and enforce the duties of States governance, economic governance and APRM findings had also provided a useful support from some African governments
International Criminal Court said that she wanted to say something Parties (e.g., in the upcoming Kenya management, corporate governance, and framework for conflict resolution and this would be very difficult indeed. More
about the contemporary environment from referral). The repeated invitations to socio-economic development. subsequent reforms. information was needed on how those
---------- the perspective of international politics. Sudanese President al-Bashir from States states had been able to come to the fore
What we were seeing was, in her opinion, Parties was also undermining the ICCs In the context of democracy and political APRM and ICC: building co-operation and support the ICC, and what could be
the most challenging environment the credibility. governance, APRM assessments and The ICC might consider the expediency of done to further strengthen that activity.
Mark Kersten (MK) ICC had yet faced. reviews focused, inter alia, on respect for working with the APRM: close collaboration
Remarking that these were difficult All this meant that the ICC had been left human rights, constitutional democracy and co-operation between the two could
times for international justice considering Great power division was more marked without powerful backing in the face of and the rule of law. The ICC, for its part, help improve relations by bringing back Rod Rastan (RR)
Burundis initiative to withdraw from the than it had been for some considerable an upsurge in sovereignty claims, and sought to ensure that the worst perpetrators Africas trust. He would focus on the relationship with
ICC, MK also noted that there were some time, e.g., the USA and Russia in particular some 10 years and a lot of hard work were held accountable for their crimes; Africa from the perspective of the ICC.
good developments, in as much as the ICC were finding it difficult to co-ordinate policy later, was still in danger of looking it served as a court of last resort that
was looking outside Africa at situations in in Syria. Even so, the general US-Russian ineffective at best and like a tool of the could investigate, prosecute and punish Elise Keppler (EK) As regards the Courts apparent anti-Africa
countries such as Syria, the Philippines and relationship had been deteriorating for great powers at worst. The Court was perpetrators of genocide, crimes against EK chose to focus her remarks on two focus and non-co-operation from African
Gaza. After quickly introducing the panel some time, as shown by the antagonism now facing its most challenging period. humanity and war crimes in an endeavour competing and important dynamics that states, in reality there had generally
members, MK went on to explain the rules in the US election debate. Moreover, Could it, KA asked, assert its relevance in to help promote peace and security. One had emerged in the ICCs relationship with been very good co-operation from
of the game, which were to apply for the China was expanding its influence on a world of escalating atrocity crimes, with could therefore say that the two institutions Africa in 2016, and how to respond. African countries, most recently Gabon,
duration of the symposium, namely that the international stage, an example of a UNO that seemed unable to prevent were pursuing shared objectives. On the one hand, there had been a real on a whole range of issues, ranging from
panellists would each have a maximum this being its growing engagement with or confront them, or support the Court intensification of the assault on the ICC referrals and arrests of ICC suspects to the
of 5 minutes to address the designated UN peacekeeping missions (by supplying to prosecute them? Re-establishing the Moreover, alignment between the ICC emanating from the AU, represented provision of judicial assistance in the form
topic before answering questions from the more troops, police and observers to UN Courts appeal to the broadest possible and AUs stated goals meant that African by the January 2016 decision of the of permitting access to official records and
Moderator and the floor. operations than did the USA, UK or Russia). number of African states (who had been countries had been supportive of the ICC African Summit deriving from Kenyas summoning witnesses, etc. The campaign
These moves mattered both at a general so powerful as advocates of a Court) from the outset and were well represented last-minute proposal to empower the AU waged at the AU level had basically
and more specific level. Generally, there would therefore be an important move. in the ICCs Assembly of State Parties. Ministerial Committee on the ICC to look been about one case and recently, two
Richard Goldstone (RG) were many fissures in the international This, she felt, was still possible. In terms of at a comprehensive strategy that would to three more (i.e., initially involving al-
Taking his cue from the title, RG stated system (there were some who even monitoring crises and wars, the attention include ICC withdrawal. Although this Bashir in Sudan and then Kenyatta and
he would make four points, two dealing claimed that the UN system of collective of the international community (and the Deterioration in AU/ICC relations was not technically possible, inasmuch as Ruto in Kenya). Apart from these instances,
with the promises and two dealing with security and human rights promotion was ICC) had expanded beyond the borders Relations between African governments the AU had no authority to effectuate a there were no complaints from either
limitations of the ICC. collapsing, particularly because of failures of the African continent: the situations in and the ICC had, however, deteriorated withdrawal, it was nonetheless a significant the remaining states or even from the
over Syria). As liberal international projects Syria and Yemen, the ICC investigation as a result of differences over the ICCs development, since an AU call for AU. Hence, it was only when the Court
Promises: suffered or stalled, there had been a in Georgia (the first outside Africa), the perceived approach to Africa. The AU withdrawal would have a chilling effect looked at sitting government officials
Looking back in modern times, the surge in claims around the importance statement by the ICC Prosecutor on the was concerned about the sequencing on the role that African States Parties that the system did not seem to work.
Nuremberg tribunals had essentially given of sovereignty, which meant less support Philippines the preceding week, either of prosecutions undertaken by the ICC in could play. This might well be a matter for reflection.

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The perception of the voice of Africa was MK: There seemed to be two different things,
sometimes caricatured: Africa was not one Before opening up the discussion namely, perception and reality, i.e., on the one Q&A Angela Mudukuti and Chris Gitari
country, Africa was no monolith. There was to the floor, Mark Kersten asked hand, public condemnation of and opposition
a significant range of divergence of views. each panellist a question. to the ICC, and on the other, the perception
Moreover, the voices of civil society and that RR had offered, one of co-operation
victims were also important. In essence, behind the scenes. If this was indeed true, why
the differences would appear to be driven MK: It seemed that a lot of the criticisms being was that cleavage so significant, and what
by one or two states. levied against the ICC were similar to those could be done to close the gap?
he had personally experienced in the past. RR: He agreed with RG that often the criticisms
Part of the reality of the discourse was Were these simply a rehash of old criticisms or were just an excuse. Officials would always
shaped by the true fact that the ICC something new? come up with a case, e.g., PR firms were hired
had indeed been primarily engaged RG: His experience at the ICTY was in parallel to play the neo-colonial card. Some states
in Africa, so that this criticism was with what was currently happening with the ICC. were willing to speak up; and, though
A brief sampling of comments on some
correct. However, this was partly due In his case, he had been accused of prejudice it was obviously important for African
points of interest from the floor
to history, i.e., the date when the Court against the Serbs. His reply at the time had been states to show solidarity and not show
had become operational., e.g., if the that, if Serbia alone was being targeted, the divisions, their statements were often
Court had started its work in the 1970s, criticism might be justified, but if other trials were purely political and had no legal force,
its focus might have been on Cambodia, being pursued, this would show that there was no impact. In this regard, it was also vital While the ongoing Gbagbo case was an
and if it had started in the 1990s, its focus no prejudice. In point of fact, the accusation for prosecutors to talk to senior government advancement of the complementarity
would have been on the former Yugoslavia of bias was only a pretext, so that even the officials. principle, in reality the Cte dIvoire had
and then Rwanda. Apart from history, existence of other cases would not mollify refused to co-operate with the Court.
another reason for having begun in Africa the critics. What was really the problem, MK: How were important developments to be Further investigation would require co-
was the requirement of complementarity, however, was unfairness, when other moved into more acceptable news forms? operation. Had the ICC relented in the
in that the ICC stepped in where there was countries were being kept off the radar. EK: Not only had Nigeria and Cte dIvoire face of pressure?
an absence of national proceedings. So, opposed the AU in the closed door sessions,
when it came to comparing the situations MK: If it was true that the ICC only reflected but some like Nigeria had even reinforced RR: There was a new dynamism on the part
in Uganda, the DRC and Colombia, the the global balance of power, how did one re- and explained their stance publicly in their of African states to pursue these kinds of
difference was that national proceedings establish its appeal? local media. The fact that they had been cases (e.g., Habr). It was ICC policy not to
were under way in the latter. KA: The ICC did inevitable reflect power but willing to go on record was important. oppose any prosecution that was genuine.
it was also able to push back, e.g., Fatima However, the issue of coverage was a The Court would therefore wait and see
Not only were things changing in Africa Bensouda wanted the members of the UN huge challenge. They were working on what happened. It did indeed pose a
but, in the normal course of events, the Security Council to get behind issues and giving a counterweight to the AU attacks challenge to the Rome Statute system but
Court would inevitably be moving into had reminded them of their responsibility. This on the ICC but had found it very difficult to he nevertheless trusted that co-operation EK: This was a good point but, rather than
other areas, such as Georgia, Afghanistan, helped towards re-establishing the Courts get into the media because the impact of would continue. focusing on what states expected, it would be Finally, Mark Kersten asked all
Syria and Iraq. Half musingly, RR wondered appeal. Things were going at a very different the AUs allegation was immense. Individuals better to concentrate on the victims. The AGJA panellists to make one recommen-
whether this might mean that, in a few pace in, say, Colombia and Uganda. The ICC and NGOs would never achieve the same As regards the tension between Africa could issue a monthly column and highlight dation to the ICC to improve its
years time, the ICC would find itself facing should be thinking about what kind of justice coverage as the AU could, thanks to its and the ICC, was there any possibility contentious issues. relationship with African states, and
criticism for unduly focusing on the Middle was possible in conflict/post-conflict situations, expertise and level. In essence, there was a of reconciling two very different one recommendation to African
East or Central Asia. even if imperfect. It could, for example, engage relentless need for further information to be conceptualisations about sitting heads RR: While he agreed that expectations could states to improve their relationship
with the domestic process. put out there. of state account for some referrals, the ICC was not with the ICC.
RR: In domestic courts sitting government bound by a referral, e.g., Uganda. In Kenya,
officers were immune: the exception to the ICC had intervened and taken on both
this was in international courts where sitting sides. Another example was Afghanistan: here KA: The ICC should give as much room as
officers were not immune. Hence, for the ICC powerful countries were involved but the ICC possible to regional and domestic courts.
this was not a controversial matter. African had decided to go in nonetheless. The ICCs Furthermore, the ICC should move its
states were entitled to take their own fight was often a lonely one when it found itself operations on Africa to Africa. African states
course but the ICC did not regard sitting confronting government machinery. The Court could think about how to host trials.
heads of state as being immune. only had criminal jurisdiction. However, the more
cases the Court initiated, the more difficult it JYA: The ICC should work with AU institutions
EK: This issue had also been debated at would be for someone to say, why me? and African countries should open up to the
the ASP but there was no broad-based ICC.
consensus to amend the Rome Statute. KA: States were unlikely to refer unless it suited
African states, she noted, had taken a them and they controlled the media, etc. The RG: The ICC should be more understanding
different approach to the African courts. Court should thus be aware of its political about imbalances of concern to Africa.
role as a strategy to colour opinion. In Syria, The ICC should be more critical of the UN
KA: It was sometimes very useful not to Assad might end up with some kind of role and Security Council for its lack of support.
have heads of state protected: however, this would look extremely unfair, yet this was
even where they were not protected, it realpolitik. EK: She wished to reinforce the point and
was difficult to prosecute them. The African stress the need for more transparency from
Courts attitude ultimately meant that the RG: All self-referrals were political! the ICC. States needed to work with other
ICC was required to step in, something that like-minded states to address and engage
might enable the situation to move forward. Bias on concerns, and get withdrawal off the
RG: In Yugoslavia, when accused of bias by a table.
Parties expectations of the ICC: might Serbian, he had said that being even-handed
the ICC not be used by governments as meant dealing with comparable crimes evenly: RR: The ICC should focus on its mandate
a tool against their opponents. Was it Serbia had committed the worst crimes, and build up its caseload. States had to
not true that many African governments and that was why the Serbians were being break their silence.
were accusing the ICC of manipulation prosecuted. Notwithstanding this, prosecutors
when they themselves were attempting had to be sensitive and explain any apparent
Kirsten Ainley, Jean Yves Adou, Richard Goldstone, Mark Kersten, Elise Keppler and Rod Rastan to manipulate matters? imbalance.

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only step in as a court of last resort where to describe complementarity were national shopping. Justice, remarked PA, was not hybrid tribunal over another. Moreover, this reach of justice and accountability. If there
PANEL II: there was a lack of capacity or will. Counting jurisdiction, state and national judicial about comfortable solutions but about was compounded by the fact that states was any competition as such, it should revolve
The revival of hybrid tribunals: competing the cases off, SR noted that: in Uganda, system. Hence, the wording of the Statute the most just solution for both victims and funding strategies were often short-sighted, around ensuring independent, impartial, fair
with or complementary to the International where there was a complementary court pointed in a certain direction, i.e., at whatever perpetrators. in that they only envisaged a period of 1-2 and effective processes, which guaranteed
Criminal Court of sorts, there was just one upcoming case; state authorities were doing or not doing to years, when in reality longer-term funding was the rights of accused persons to a fair trial
in the DRC, there were mobile courts and follow up on their own duty to investigate and This policy argument put the ICC at the end required. This was an element of competition and the right of victims and witnesses to a fair
military justice; in Guinea, there was a case prosecute international crimes. of the line because of its limited capacity, that certainly did merit being addressed. hearing. One had to bear in mind that courts
- Moderator - under investigation; and then there was the How then did hybrid courts relate to this? Firstly inasmuch as it could only process a handful were judicial, not political.
Colombia situation. However, there was not it should be noted that, though they tended of cases and, at that, only the highest level of There were two incorrect assumptions at work.
Mark Kersten a great deal beyond that in the way of to be lumped together, these were in fact of perpetrators. Brenda Hollis (BH) On the one hand, there was the implication
Munk School of Global Affairs, University complementarity. In essence, commitment different types, ranging from, say, the Special From a legal stance, the wording of Article 17 began by stating her position as follows: firstly, that the ICC was somehow intended to
of Toronto; Research Director, Wayamo to complementarity at the national level Court for Sierra Leone, the Extraordinary did not point in any clear direction in terms of hybrid courts could be and had been an be the global court of the international
Foundation was somewhat limited. Chambers in the Courts of Cambodia how to design the framework without having important mechanism; secondly, there community... which it was not! It was a treaty-
attached to the national legal system, to the a conflict. Perhaps clarification was therefore was indeed a system of international based court, whose jurisdiction depended
The approach of mixed or hybrid courts Kosovo Tribunal, seemingly the most national required. justice and, though it might sometimes on its connection to States Parties, to other
- Panellists - was, he submitted, a better model for of these courts which had international staff. manifest itself in an ad hoc form, it did states that accepted ICC jurisdiction over
accomplishing our ends. In a conflict So, there were varying degrees of national Funding nonetheless exist; thirdly, there would not a given matter, or to a UN Security Council
Philipp Ambach situation, national courts did not function elements. One had therefore to look at Turning to what he called the controversial use seem to be anything essentially wrong referral. Moreover, even where ICC did have
Special Assistant of the President, properly, examples being the CAR and Cte Article 17 to see whether there was of the term competition, some had claimed in the phenomenon of forum shopping, jurisdiction, it was not in competition with
International Criminal Court dIvoire. They had no capacity to deal with conflict in terms of complementarity or that the ICC would diminish in importance provided that the fora in question could other courts but rather the court of last
powerful individuals and protect witnesses, whether a hybrid court established in if too many hybrid tribunals were created. guarantee the rights of the parties. resort.
Brenda J. Hollis or even handle international cases, and so the national system would in fact be a However, this was not truly a discussion about
Prosecutor, Residual Special Court for Sierra this was where there was a space for special national effort, Then there was the problem complementarity at all: it was rather about Similarly, she could not see that the potential As the ICC did not have jurisdiction over
Leone courts and bringing in international capacity of some hybrid courts which did not come universality, namely, how states could be resurgence of hybrid courts posed a problem. all crimes worldwide, even all international
and skills. within the definition of Article 17 (e.g., the convinced to join the Rome Statute system. Discussion on the issues of complementarity crimes, in that there were intentional limitations
Stephen Rapp Then there was the issue of will, and more Special Court for Sierra Leone, and even Lastly, there might also be competition in and competition was often based on on its jurisdiction, hybrids could fill the gaps
former Ambassador-at-Large for War Crimes terms of funding because, when it came to erroneous interpretation, inasmuch as created by such limitations.
Issues, Office of Global Criminal Justice,
Department of State, United States of
Stephen Rapp: In essence, commitment to comple- the ICC, states were boxed in by having
to make their respective contributions to
competition among courts was not the best
characterisation of the existence of different
When it came to UN Security Council referrals,
the current political environment meant that
America mentarity at the national level is somewhat limited. The ever rising budgets. Similarly, hybrid tribunals courts having jurisdiction to try the same it might become far more difficult for future
approach of mixed or hybrid courts is a better model for suffered from selfsame problem, i.e., that of matters or having different jurisdictions. It referrals to be made. In the absence of such
--------- obtaining the necessary funds. States might was not -and should never be- a question of referral, there were a number of limitations:
accomplishing our ends. be reluctant to fund both the ICC and hybrid rivalry, of one court trying to be superior to
tribunals -an attitude which could favour another, but rather of separate courts simply the ICC had limited territorial jurisdiction;
Mark Kersten (MK) to the point, the question of the will to do the Extraordinary Chambers in the Courts of one over the other, or alternatively, one trying to end impunity and further extend the
Some would say there was no real system precisely what? Ideally, this would be the will Cambodia).
of international justice but rather a market to ensure a genuine, independent process. In
place of possible institutions for investigating reality however, while there might be sufficient Perhaps one had to look at what the founding
and prosecuting international crimes. In -or even an abundance of- will to prosecute fathers thought when drafting Article 17 in
addition, since 2014 a number of hybrid those who had been overthrown, developing the late 1990s, but this would at best be
tribunals had been proposed. How did this fit the requisite will to prosecute ones own inconclusive, partly because there were fewer
in with a system of international justice: did it was a far more difficult proposition. This was hybrid courts at the time (the East Timor and
complement or compete with the ICC? where international institutions, even on a Kosovo internationalised chambers). Possibly
temporary basis, could move forward, as the founding fathers did not have hybrid
for example in Sierra Leone, where it would solutions in mind, or alternatively had wished
Stephen Rapp (SR) have been difficult to meet the challenge to exclude them. There was no conclusive
The challenge of a system as such was without international participation: indeed, it evidence either way.
how limited the ICC system was at the had even been hard to get the witnesses
present time in reaching situations where to come forward. Moreover, it was not Policy
there were atrocity crimes. Personally, he was necessary for international institutions to be How then was the problem to be resolved?
an advocate of hybrid tribunals: they were present on a permanent basis, e.g., as in One solution might be found on the policy
consistent with complementarity in the ICC. the former Yugoslavia, where mixed courts side. Complementarity pointed in two
There were limitations to the Rome Statute, had developed the capacity and the will to directions: firstly, at states that had to do
in terms of events prior to 2002 and in prosecute individuals on all sides. fulfil their duty to investigate and prosecute
terms of the jurisdiction of the ICC. In Arusha, international crimes; and secondly, at the
85 of the 93 people charged had been If the need for independence and the ICC as the court of last resort. Yet, no matter
brought to justice in The Hague. In the former standards of international justice were to what solution was found (be it national with
Yugoslavia, every one of the 161 cases had be met, this would call for something like international elements, regional, or partly
been resolved. The ICC, however, was far hybrid or mixed courts. internationalised), it would fit within the
more limited in terms of the volume of cases: general policy perspective. So, if such a
indeed, only four were currently pending on solution worked, the ICC would step back
appeal. It was an institution that was only Philipp Ambach (PA) provided that there were assurances:
dealing with nine individuals on whom a final PA began by stressing that he would have to
judgment of conviction could be passed. Was speak in a private capacity, and, as lawyer, that the minimum requirements -legal
this, SR asked, really sufficient for a system of would be looking at complementarity as standards, transparency and fair trial- were
international justice in the broader sense? defined in the Rome Statute. respected;
that there was no possibility of circumventing
Complementarity under Article 17 meant Letter of the law the Rome Statute, e.g., immunity for heads of
that there should be a genuine process at The words and terms used in the Preamble, state; and, Stephen Rapp, Brenda Hollis, Mark Kersten and Philipp Ambach
the national level, and that the ICC would Article 1 and, more specifically, Article 17, that there was no leeway for forum

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similarly, it had limited personal jurisdiction; if so, what kind of principles would be voluntary funding was not a good scheme justice lay at the local level. It was extremely
required? for hybrid tribunals, due to the perception difficult to ensure justice and accountability in
there were limitations on the forms of SR: Standards were important when it came of undue influence and the fact that such post-conflict situations, characterised initially
individual criminal responsibility falling within its to the composition of hybrids courts. It would funding was intrinsically uncertain. by weak and subsequently by destroyed
purview, e.g., in this connection, she noted that be very useful to have international standards judicial systems. International hands-on
the nationality of the victims of the crimes was in situations such as South Sudan and Iraq, to Were hybrid tribunals being romanticised? experience and assistance were invaluable
not a basis for ICC jurisdiction; avoid any perception of victors justice. The Were we going in circles? and could add to capacity. On the whole
AGJA should take this up. Surely the intention was that the prosecution question of independence, he agreed with
the Court had very limited temporal of international crimes should the contention that more often than not
jurisdiction (as from 1 July 2002); and lastly, Did the key lie in the proximity of hybrid be local? there was a circle of goodness, but it was
tribunals to the weak and needed support.
the subject matter of its jurisdiction was scene of the Bringing in international
likewise limited (international core crimes, such crime and the Brenda Hollis: Where the ICC has jurisdiction, it is participation strengthened
as crimes against humanity, war crimes and importance local ability, and even
genocide). to victims of not competing with other courts but is the court of though such participation
seeing the last resort. There are intentional limitations on its might be temporary, it
Accordingly, there were and would be perpetrators nonetheless left domestic
situations in which the ICC could not being tried?
jurisdiction and hybrids can fill the gaps. structures bolstered and
act, and hybrids might fill these gaps to PA: Proximity, improved. One did not get
ensure a fair, independent and impartial while obviously desirable, was not always PA: No, we were not going in circles! The this from a court that was sitting in The Hague.
judicial process .An example of this was possible, whether for financial or security simultaneous presence in the CAR of a special Herein lay the benefit of mixed institutions,
Syria, where, for a range of reasons, BH saw Ephrem Rugiririza, Joseph Roberts-Mensah and audience reasons. court alongside the ICC was altogether novel. even in difficult situations such as Sierra Leone
it as being unlikely that the ICC would ever and Cambodia. In Colombia, provisions had
become involved. Then again, the ICC was BH: Where possible, proximity to the BH: There was no romanticisation involved: been made for international involvement
necessarily restricted in terms of the scene of the crime was good, both in the former Yugoslavia, Rwanda and Sierra because that was what the people wanted
number of cases it could handle, the type for investigation purposes and for the Leone, these types of courts had only been in order to ensure greater independence and
or level of offender it could or should the matter of the Courts jurisdictional reach would thus possibly prove less tempting when witnesses themselvesprovided that it was brought into existence when the national resist political pressure.
target (essentially the major perpetrators), was determined by statute rather than how it came to attracting the requisite staff. safe and did not undermine the stability courts had proved unwilling or unable to hold
and the forms of liability it could address. many countries were a party to it. At present, of the country, e.g., in the case of Liberia independent, fair and impartial trials.
In all such instances, hybrid courts could step in. hybrid tribunals were created in situations that Q&A and Sierra Leone, people had been brought SR: On the subject of romanticisation of hybrid
lay beyond the ICCs reach. Accordingly, such to The Hague to witness proceedings. In courts, he took up the point raised from the floor
To sum up, therefore, the creation of initiatives should be applauded. Secondly, addition, lots of lessons had been learnt, e.g., to the effect that the future of international
hybrid, or other international or even in cases where the ICC had jurisdiction, the
regional courts, should be seen, not Statute indicated that it was not intended to
as competition, but rather simply be the dominant power. It was possible that a
as separate courts in the international hybrid/national system would cover mid-level
constellation of criminal justice. perpetrators. The Special Court for the CAR
was a good example of somewhere where
this was working in practice, i.e., in the form of Howard Varney (HV) to international criminal justice. The
Before opening up the discussion a two-tiered, co-operative system. PANEL Remarking that he foresaw the days International Criminal Tribunal for Rwanda
to the floor, Mark Kersten asked A brief sampling of comments on some III: discussion as being lively and topical, HV (ICTR) had resulted in 61 convictions for
MK: Hybrid tribunals had been criticised for points of interest from the floor A holistic approach to justice: began by giving a broad overview of some the staggering cost of nearly US $2 billion.
each panellist a question.
the level of political interference received The limitations of international criminal of the concepts involved. Criminal justice, In contrast, the Gacaca courts in Rwanda
from those that funded them. Why should we justice as a response to mass atrocities and both domestic and international, was had dealt with just under 2 million cases
MK: Why were hybrid tribunals making a believe that these hybrid tribunals would be Was there an overly strict interpretation the role of transitional justice traditionally seen as the primary or only real at an estimated cost of around US $40
come-back now when both hybrid and ad any different in this respect? of the ICCs mandate? Why, for example, means of securing justice or accountability million, though serious questions had been
hoc tribunals had been dismissed not so long SR: On the question of whether there might in a Nigerian case of crimes against for serious human rights violations. Yet it raised as to whether due process had
ago? be a danger of donors turning off the tap humanity could the courts reach not - Moderator - often fell short of expectations, with very been respected. Both courts had been
BH: Many factors were involved. There were in an attempt to control decision-making be made to extend to money that had few cases being pursued before the criticised for pursuing only one side of the
lots of criticisms but Sierra Leone had helped by prosecutors, he had not really seen that been clearly earmarked for arms and Patryk l. labuda criminal courts and few convictions being conflict. Despite being viewed as more
to serve as an example of how hybrid courts happen, e.g., Japan, the largest donor, had not munitions? Geneva Academy of International obtained. Sometimes criminal justice faced efficient, the Special Court for Sierra Leone
should act. There was a realisation that the stepped back in the case of Cambodia, nor Humanitarian Law and Human Rights insurmountable obstacles. had nonetheless cost hundreds of millions.
ICCs reach was limited, and so hybrid courts had the United Kingdom in the case of Sierra PA: He wondered whether prosecutors He wished to address the following three
had come to be seen as an alternative. This Leone when the respective courts were intent strategy might be too tight, and then questions: Domestic criminal justice
was not a negative reflection on the ICC but on courses of action that were unpopular with answered his own question by conceding - Panellists - At the domestic level enormous challenges
rather a realisation that it was not the global their sponsors. On the other hand, it had to that this might indeed be so! On the other (i) What were the main limitations of remained. They largely related to a lack of
court and other ways had to be found to be said that raising funds was a real problem, hand, while it was true that the conduct of Sarah Kasande Kihika criminal justice? political will and capacity. While Uganda
bring accountability and justice to victims in as in the CAR where finding voluntary funding economic actors could sometimes be caught Program Associate, International Centre for had set up an International Crimes Division
situations that the ICC could not reach. posed a difficult challenge for the court under the caption of aiding and abetting, Transitional Justice (ICTJ) Kampala, Uganda (ii) What constituted a holistic approach in the High Court, the only major case on
officials. Some donors were only prepared prosecutors were nonetheless required to accountability? its books -Thomas Kwoyelo- had been
MK: The Chief Prosecutor of the ICC had made to support specific types of prosecutions. In to look into how such activities could Allan Ngari marred by delays over questions of amnesty,
positive comments about hybrid tribunals. Was Kosovo, fortunately there was a European contribute to a provable international Researcher, Transnational Threats and (iii) How could the different pursuits of jurisdiction and funding. In Kenya, local efforts
this re-emergence of hybrid tribunals due to Union budget: in the CAR, the peacekeeping crime. He agreed however, that this could International Crime, Institute for Security accountability complement each other in at pursuing justice for the post-election
the failure and limitations of the ICC, in the light mandate required peacekeepers to co- be viewed as a somewhat strict interpretation Studies (ISS), Pretoria attaining the end goal? violence had ground to a halt with nobody
of which the international community was now operate, which had enabled the UN to make of the mandate. in authority being held to account.
ready to explore other options? a budget appropriation to cover the first few Howard Varney Limitations of international The criminal justice system in the DRC
PA: There were two main points. Firstly, the years of operation. Unless ways of raising funds BH: The ICC had very specific jurisdiction; it Senior Consultant, International Centre criminal justice struggled with a lack of funding and skills,
major problem of the ICC had been and were found, it would be hard to have strong could not create crimes. for Transitional Justice, Advocate of Criminal justice was neither cheap nor e.g., the Minova trial of 39 soldiers of
continued to be universality: where this was justice. Similarly, at a national level, fees for Should there be a set of principles for Johannesburg Bar quick, nor did it have an extensive reach the Congolese army had resulted in the
present there was no problem because then international personnel would be lower and hybrid courts? Would this be useful, and ---------- in most contexts, particularly in relation conviction of only two low-level soldiers,

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despite funding and significant international prosecutions were not possible. ability in contexts where the alleged Victims at the centre
support. Summing up, HV felt that there was place perpetrators continued to wield The victims themselves should be at
for locating criminal justice within political power, e.g., Kenya, Sudan the centre of a properly constituted
His own country, South Africa, was another an integrated or holistic approach to and even Uganda. Efforts to hold Bashir, accountability mechanism. Otherwise,
sorry saga with an equally poor record of accountability. Depending on the local Kenyatta and Ruto accountable had these processes were not meaningful.
prosecuting past human rights atrocities. factors, a parallel or sequenced approach triggered a continent-wide campaign to Consultations had indicated that other forms
Less than a handful of cases had been might be called for. entrench immunities for heads of state. of accountability also provided some form
taken forward. Indeed they had been Meanwhile the statute of limitations was of satisfaction to victims. Acknowledgment,
forced to litigate to compel the prosecutors ticking away! reparations and institutional reform were
to act. The previous year, the Chief Sarah Kasande Kihika (SKK) other complementary mechanisms for
Prosecutor had only agreed to prosecute Limited impact of criminal justice in Africa The lack of effective enforcement achieving transitional justice. A coherent and
in a 34-year-old case of abduction, torture Africa had witnessed mass atrocities in the mechanisms meant that the ICC had effective transitional justice programme
and murder after a substantive application past decades, e.g., in Rwanda, Burundi, to rely on state co-operation, though the would therefore include truth and justice
had been filed in the High Court. There Uganda, Kenya and the DRC, among truth was that states largely co-operated mechanisms, reparations and structural
had been gross political interference, with others. While there had been a degree of only when it was in their interest, e.g., when reform. Moreover, there had to be real
midnight meetings at which prosecutors response, criminal justice in itself suffered rebels or former leaders were before the consultation with affected groups and links
had been instructed to drop cases. from limitations and was incapable of ICC. with other transitional mechanisms. Such Howard Varney, Patryk Labuda, Sarah Kasande Kihika and Allan Ngari
addressing the complex challenges Not only were international criminal trials a strategy had to be designed as part of
Nevertheless, domestic prosecutions involved and of tackling the historical and remote and inaccessible, but victims were an overall, ongoing process, i.e., a single
could have considerable impact, as political factors underlying such situations. often not familiar with or even interested mechanism would not suffice.
had been seen in Latin America, where In many cases, perpetrators had not been in legalistic command structures. They
Argentina had tried over 600 individuals, held accountable for their actions. A wanted to see the actual perpetrators held Reparations
and Guatemala was currently holding message had to be sent out to signal accountable. They wanted reparations The current challenge with reparations
significant trials involving war crimes, crimes that impunity would not be tolerated. that would ameliorate their suffering and programmes lay in implementation.
against humanity and genocide. Even so, restore their dignity. This included states political unwillingness
there was a massive impunity gap. Turning to some examples of different to implement existing obligations using
accountability mechanisms, SKK made the questionable economic arguments. There
following points: Allan Ngari (AN) was nothing wrong with a post-conflict/post-
Accountability Stating that he intended to build on the authoritarian states pursuing development
The concept included but was not In the case of Sierra Leone, experience foundations laid by his fellow panellists, AN but development projects were not Don Deya Rod Rastan
confined to criminal justice. Measures had shown that some victims were began by noting that criminal prosecution reparations. Furthermore, failing to tie support
of accountability could also be secured dissatisfied with the trials because was not the sole avenue for achieving for development programmes to reparations
through other processes. Essentially a these had not helped them meet their accountability. It was one of the most would amount to a missed opportunity.
degree of accountability was delivered immediate socio-economic needs developed pillars of transitional justice, Lastly, reparations did not necessarily have
when perpetrators were held to account (housing, food, jobs, etc.). They were more and contributed to social reconciliation in to be monetary: they could take the form Before opening up the discussion PL: SKK had said that victims had a passive
in some official format, and where some interested in receiving reparations for the cases of gross violations of human rights. In of an apology, as in the case of Namibia to the floor, Patryk Labuda asked role. How could one integrate victims in a
measures and steps were taken to show harm suffered. practice, only a small percentage of those where Germany had formally apologised for each panellist a question. way that contributed to the process without
that it was not business as usual. Other who bore responsibility for such violations the killing of Herero people. slowing it down?
forms of accountability included: The ICC had made efforts to give would ever be investigated, let alone Other challenges included the exclusion SKK: The question of whether or not to take
victims a more prominent role through prosecuted. Among the main reasons for of entire categories of victims on the basis PL: How did one effectively integrate these an integrated approach depended on the
truth-seeking mechanisms, including extensive victim outreach programmes this were: of political considerations, leading to the processes in practice? In terms of a shift context. It was important to recognise that
commissions of inquiries, truth commissions and processes for participation. Yet, not perception of biased reparation favouring from transitional to criminal justice, there no single mechanism could address the
and other forms of non-judicial fact seeking, enough had been done: victims were the high number of suspected only one side; and the gender insensitivity of were limited resources, so how was this to be problem. Political analysis would inform the
such as naming and shaming, giving still assigned a passive role as survivors perpetrators; a majority of reparation programmes, which achieved realistically? process. She agreed with HV that it was easier
victims a voice to share their experiences rather than as rightholders, there was resulted in too few victims of gender-related HV: There was no particular formula for to include victims in a non-judicial process:
and suffering, and recommending reform limited consultation and outreach was the relative scarcity of financial and violations receiving any redress. effective integration: there was only a range nevertheless, it was also necessary to keep
measures, as well as prosecutions; inadequate. . human resources, capacity and political of issues of which one had to be keenly aware. victims informed of judicial proceedings.
will; and GUARANTEES OF NON-RECURRENCE OF He agreed that criminal justice took the lions Although most of us came from systems to
community justice and reconciliation International justice had often CONFLICT share of attention, e.g., in Sierra Leone, there which victim participation was alien, this was
processes; contributed more to norms and the growth the fact that in many cases, some The 2015 Report of the UN Special had been a budget mismatch as between gradually being included, both domestically
of international law than to bringing justice measure of control remained in the hands Rapporteur on the promotion of truth, the Truth Commission and the Special Court, and at the ICC. Similarly, victim participation
institutional reforms and vetting. Despite to victims. A place like the Congo was in of the perpetrators. justice, reparation and guarantees of non- with the Truth Commission being viewed as would be given a more prominent role in the
being an administrative rather than a a perpetual cycle of conflict, so what was recurrence, conceptualised guarantees of the poor relation. However, there had been International Crimes Division.
criminal sanction, barring and removal needed was implementation of measures Limitations non-recurrence to include: an attitudinal shift. Interestingly, some, such
from public office could have a measure to put an end to the historical factors Perhaps the most glaring limitation of the as Judge Robertson, had seen the Truth PL: Victim participation: how was one to
of punitive impact, as in El Salvador, responsible. international criminal justice system was (i) justice and security sector reform: Commission as possibly interfering with justice. distinguish between real victims and the
where vetting had been used as part of that only a handful of individuals, at most, the importance of an independent and broader population because in some sense
negotiated political solutions; In Uganda, there were practical in any given situation would be prosecuted. effective judiciary in securing rights could not The starting point was to strategise rather everyone was a victim? How was one to
limitations in the shape of the countrys Even where successful prosecutions did be overstated. than adopt an ad hoc approach. One avoid inflating the budget?
reparations, whether tangible and/or in selective approach and failure to tackle occur, was a verdict and a sanction had to ask how one was going to operate,
the form of an apology; structures of impunity, e.g., prosecuting sufficient?, e.g., had the ICTR contributed (ii) changes in security legislation; namely, in parallel or not, i.e., by taking a AN: Consultation with stakeholders and
rebel combatants and yet turning a to improving the lot of survivors in Rwanda? sequenced or staggered approach. So involving what local people wanted, even
civil litigation, such as claims for damages, blind eye to crimes committed by state (iii) constitutional reform; and timing, capacity, finance and resources had if unconventional, should be integrated. The
restraining orders to prevent abuse, or troops. Indeed, there had been instances The absence of prosecutions in Liberia and to be borne in mind. In a conflict situation mechanism used should not be in competition
actions to compel the authorities to take wherethe ICC itself had been used to post-apartheid South Africa had cast a (iv) legal empowerment and the creation marked by fragility, such as that of South but should instead be mutually reinforcing and
action; and, serve the political goals of the regime. shadow over the serious efforts made by of an enabling environment in order for civil Sudan, one had to ask whether sequencing complementary. Victims got a raw deal, e.g.,
Victims therefore continued to demand the Truth and Reconciliation Commission society to discharge its crucial role. was required. Victims should be actively a number of years had passed since a verdict
judicial inquests or coroner inquiries justice. (TRC), leading, in this latter case, to rather than passively involved; and it was had been handed down in the Lubanga case
could make findings in relation to Archbishop Desmond Tutus remark about The core function of guarantees of non- easier to involve them in a non-judicial and yet reparations were still pending. A host
unnatural deaths, in cases where criminal It was difficult to pursue account- unfinished business. recurrence was preventive in nature. process. of things remained to be done.

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Q&A HV: Capacity and resources were Femi Falana (FF) Chris Maina Peter (CMP) conclusion that, at a continental level,
formidable challenges but political will PANEL IV: The human rights regime in Africa had The state of human rights in Africa was states had to be pushed to walk the
was the most difficult of them all. It was The state of human rights in Africa: improved to some extent since the 1970s chaotic. Chaotic, because in Africa there talk, and at a national level, they
ultimately a question of mobilising public what can international commissions of and 80s when the likes of Idi Amin had was a tendency to wanting to be perceived had to be pushed to establish and
opinion to convert it into a political force. inquiry, national human rights organisations, been in power. Victims were now able to call as protecting human rights, following rules, fund institutions, and implement their
Currently, there was an ongoing human- ombudsmen and public protectors do to leaders to account. In West Africa, apart from etc., but in practice states did just the decisions.
rights documentation exercise in Uganda: address serious human rights violations? The Gambias disregard for the Economic opposite.
the ensuing reports might possibly provide Community of West African States (ECOWAS) He wished to look at 2 levels, i.e., continental Thomas Probert (TP)
ammunition for arguing for more coherent Court of Justice, human rights violations could and national There were two fundamental conceptions of
interventions. - Moderator - be challenged at a supranational level. the right to life: prospective and retrospective.
Investigations by human rights organisations (i) Continental level Prospective meant preventative, in the
A brief sampling of comments on some On the subject of amnesty clauses (the Patryk I. Labuda and international bodies had attempted African governments were very quick sense of protection and respect, while
points of interest from the floor questioner being specifically concerned Geneva Academy of International to expose human rights violations, and to establish institutions, draft and sign retrospective referred to accountability.
with Zimbabwe), what practical rewards Humanitarian Law and Human Rights victims had been enlightened to challenge documents, and set up instruments, but This related to the fundamental principle
could be expected? governments. International bodies had with no real intention of implementation. As that there needed to be consequences
- Panellists - been able to share information with national an example, CMP mentioned the fraught for violations of human rights norms. The
The ICC had been trying to find the HV: An amnesty process boiled down to human rights commissions and NGOs. In a relationship between Africa and the ICC. failure of the state to pursue and enforce
best modality for victim participation in practical rewards versus accountability. Chris Maina Peter few instances, governments had been able This had led the continent to rush to accountability for violations of the right
proceedings, i.e., internal or external. The conditional amnesty granted in South Professor of law at the University of Dar es to take advantage of the recommendations prepare the Malabo Protocol, which was to life in a transparent manner was in
What technical advice would the Africa had been seen as justifiable in the Salaam and reports of international human rights supposed to amend another protocol, the itself a violation of that right.
panellists give from where they were early 1990s. Transition was not what it commissions. National human rights Merger Protocol, that had been intended
looking at it? had been painted: there had been an Femi Falana commissions and ombudsmen had been to join two existing courts -the Arusha-based In the case of unlawful killings, the States
incredibly violent period of 4 years that Human rights activist, lawyer and AGJA established by law: experience had African Court on Human and Peoples Rights obligation was to investigate and, where
AN: When it came to victim participation, had led to a limited compromise which member shown, however, that the conclusions/ and the African Court of Justice - to form necessary, prosecute. At the international
the ICC website was wonderful but it was the security forces could buy into. However recommendations level, such death
not clear where victims who were willing the country had paid a price for this. It had Thomas Probert of such national investigations had
to participate should direct themselves. For resulted in a sense of entitlement to lenient Senior Researcher - Unlawful Killings Unit, human rights com- Femi Falana: The human rights regime in Africa has been guided by a
people who for the most part came from treatment, which meant that in some way Centre for Human Rights (University of missions had not
rural areas and had low literacy levels, accountability had been defeated. South Pretoria) Research Associate - Centre of been taken very
improved to some extent since the 1970s and 80s. Victims document drafted
in the late 1980s
the application process was extremely Africa had let victims down, in that there had Governance and Human Rights (University seriously by the have been enlightened to challenge governments. But if and known as the
complicated and needed simplifying. been no methodical pursuit of those cases in of Cambridge) governments that there is no justice at home, it is only natural that people Minnesota Protocol.
Many of the functions were currently which amnesty had not been granted. HV had put them in The old version
performed by CSOs. The ICC had a major saw amnesty as a last resort. The situation ---------- place. Similarly, the will look abroad. of the Minnesota
role to play in outreach, and if that meant in Sierra Leone had been similar. reports of the African Protocol had
negotiating with the ASP to increase the Commission on Human and Peoples Rights one, namely, the African Court of Justice carved out significant space for commissions
Courts outreach budget allocation, so had generally been ignored by governments. and Human Rights. However, the Merger of inquiry as a means of investigating
be it! Furthermore, this spilled over into In the case of the African Court on Human Protocol, which was the basis of Malabo extrajudicial executions. However, as national
reparations because, if victims expectation Sarah Kasande Kihika: Not only are international and Peoples Rights, FF noted that, currently, and dated from 2008 was not yet in commissions of inquiry all too often acted as
were properly managed, they would then criminal trials remote and inaccessible, but victims only 7 African states had made a declaration force!: indeed, as of April 2016 it had smokescreens, TP and his colleagues had
know what they would be likely to receive. to allow individuals and NGOs to access the 30 signatures and only 5 ratifications. decided to undertake a parallel investigation
are often not familiar with or interested in legalistic Court. In practice therefore, only citizens of The Malabo Protocol itself had 9 signatures into commissions of inquiry in Africa.
SKK: Sufficient resources should be command structures. They want to see perpetrators those countries enjoyed access, meaning and not one single ratification. And yet
assigned to victim participation, e.g., in turn that access was denied to the vast there was this push to leave the ICC. To go At best, commissions of inquiry had a
currently, victims without collective
held accountable and reparations that will ameliorate majority of victims of human rights violations where?, he asked. To Malabo?, which was broader capability than did courts when
representation were not receiving support. their suffering and restore their dignity. across Africa (despite an attempt to itself dependent on another protocol that it came to fact-finding. Criminal courts could
How was it possible, she asked, that the challenge the provision in question, i.e., Article was not yet in force! Was this then a serious convict only on proof beyond reasonable
Court should seek in this way to dictate 34 (6) of the Protocol). proposition? doubt, and only consider evidence relevant to
who their representatives should or should When it came to protecting human rights, the alleged perpetrator: commissions, on the
not be? The ECOWAS Court was unique in that there one could not have institutions that were other hand, could investigate and document
HV: Not only did he endorse SKKs input, was no need to exhaust domestic remedies. hanging, as an alternative to the ICC. Even truth revealed about the perpetration of human
but he was excited to hear that about the The protocol establishing the Court had been in the case of the Arusha court, there were rights violations. Unlike courts, commissions of
developments in Ugandas ICD regarding amended in 2005 to expand the mandate only 8 declarations out of a possible total of inquiry could determine underlying causes,
victim participation. In common law of the Court, which had assisted citizens of 54 to allow access by individuals and NGOs. motives and perspectives of perpetrators or the
countries, a victims role was basically West Africa to challenge their governments in If governments were genuinely serious about role of institutions, and their findings could play
limited to being a witness. Indeed, in South the courts. It appeared to be the only regional human rights, one would have expected a valuable role when it came to policy decision-
Africa, the victims role was essentially court on the continent able to uphold human more than half of the signatory states to making.
limited to that of writing letters because rights. In municipal courts, the enforcement of have made the necessary declaration. Even so, criteria of effectiveness were
they were unable to address the court. human rights remained restricted to political required. These included:
and civil rights. (ii) National level
Uganda now had its ICD but how Once again, because countries wished to be Independence/impartiality. Investigators had
could political will be ensured? Moreover, the ECOWAS Court had forced perceived as protecting human rights, they to be impartial and act at all times without
the Nigerian government to comply with set up human rights and good governance bias, analysing all evidence objectively. They
AN: Political will was very difficult to build. the Articles of African Charter on health, commissions. However, what actually had to consider and pursue exculpatory and
Nonetheless, policy makers could be education, control of resources,and the right happened in practice was that these same inculpatory evidence.
sensitised by activists keeping at it. to a safe environment (oil pollution). In the governments provided the running costs
latter instance, while the objection raised (salaries, etc.) but no funding for programmes. Uncompromised independence. Funding
SKK: She saw this as complicated but felt by the oil drilling companies was allowed Furthermore, when recommendations could be used as a weapon, e.g., a financing
that, in the case of political will, sustained (inasmuch as they were not signatories to the were proposed, his experience was that state could easily bring pressure to bear to
advocacy was needed in order to build Femi Falana, Patryk Labuda, Thomas Probert and Chris Maina Peter protocol setting up the Court), the Nigerian governments did not put these into practice. prevent a commission from undertaking certain
critical mass. government itself was held liable. Accordingly, CMPs had arrived at the investigative activities

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be an international criminal case, e.g., as Q&A FF: When it came to rigour, one could not
in Kenya, where witnesses had suddenly make a case for irresponsible African leaders
found themselves becoming part of an who had contempt for the rule of law. If one
international criminal case. Qualitatively did not want the ICC to process African
these were different types of investigations. leaders, one had to ask what had been
While a national commission of inquiry done in Africa. It was only natural that if there
could be helpful, it could not necessarily be was no justice at home, people would look
subsumed into the subsequent process. abroad.
Secondly, there was the issue of forensic
evidence and how national commissions of TP: In international justice conversations one
inquiry should use it. As national commissions tended to talk about complementarity. In
of inquiry tended to be set up first, this meant A brief sampling of comments on some connection with what he had said about the
that, when seizing physical evidence (e.g.,via points of interest from the floor states ongoing duty to investigate human
exhumations), they had to do so in such a rights violations, he wondered to what extent
way that it did not invalidate the evidence. Don Deya from the floor: international justice advocates could helpfully
While seizing physical or bodily evidence While agreeing in essence with FF and pursue both of our causes simultaneously
was sometimes imperative, e.g., to prevent it CMPs analysis, he suggested that more by paying more attention to that ongoing
from disappearing, there were other times rigour was nonetheless required. He duty, since the state action that would have
when it could prove unwise, e.g., as in the said that here had been an ascendency impact on ending impunity and the pursuit
Hissne Habr case, where the exhumations of demagogic politicians and asked of justice was less the conduct of diplomats
Chris Maina Peter and audience Femi Falana were poorly handled. In situations of this what could be done to combat this? within the ASP and more about having the
nature, a better-advised course would be He challenged CMPs analysis of the necessary domestic structure for rigorous
to have the task performed by some other evolution of African Courts: if more investigation of such violations.
specialised, better-resourced organisation context were injected into his analysis,
with more time. Accordingly, the rule of one would then see why the courts had The Commission had never taken a
Investigatory powers. These were needed of principles, TP said that one of the aims was PL: In connection with access to the thumb was, If you are going to do it, do been generated. CMPs analysis lacked case to court: why?
to compel witness and perpetrators alike to to come up with a set of guidelines, and in that African Court on Human and Peoples it well. Lastly there was the question of rigour and nuance.
collaborate. way the policy brief would hopefully serve as a Rights, Rwanda had already withdrawn whether criminal investigations should be CMP: The Act establishing the Commission
reference point for future investigations. its declaration. On the aspect of human sequenced or proceed in parallel. The real CMP: He stood by his assertion, saying If allowed the Commission to go to court, and
Transparency. Aside from the needs of rights enforcement in Africa, could CMP danger here was that of pre-empting or you want to establish an institution, make in fact it had done so but the government
confidentiality for the protection of victims or Before opening up the discussion perhaps speculate, by commenting on the skewing the impartiality of a commissions it work! There was a lack of seriousness in had not enforced the decision.
witnesses, a commissions investigation should to the floor, Patryk Labuda asked way forward? Would there be any major work. taking things to their logical conclusion, e.g., if
be as transparent as possible, i.e., open to public each panellist a question. challenges? the first Protocol had not been enforced in 8
scrutiny. This promoted the rule of law and years, why then make a new Protocol?
public accountability, and enabled external PL: As regards the challenges faced by CMP: Rwandas withdrawal of its declaration
monitoring of the efficacy of investigations. human rights organisations generally, could was of no importance. African rulers did
FF bring this back to the situation in Nigeria. not like courts. Indeed, when drafting the
Participation of victims and witnesses. What was the impact in the broader Charter there had been a move to have a
sense of the ICC in Nigeria?: was it commission rather than a court. In Tanzania,
There were tacit conclusions to be drawn contributing to deterrence in general? for many years it had been impossible
from all this. Firstly, to the extent to which a to sue the government: one first had to
commission of inquiry yielded unexpected FF: The necessary instruments for obtain the governments permission to do
outcomes, an accountability process would enforcement of human rights were in so! This had subsequently been held to be
be that much more credible. Secondly, one of place in Nigeria but governments had to unconstitutional.
the most tangible indicators of a commissions be compelled to fulfil their commitments.
success as an accountability mechanism was In 2009, they had sat down with the PL: The ICC had been criticised for using
a published report,which could be used in Chief Justice, who was empowered by evidence supplied by human rights
subsequent proceedings (a report might go the Constitution to lay down rules for the organisations, since the standards were not
unpublished because it had never been drawn enforcement of human rights. Insofar as the same as those demanded of a criminal
up or because the government in question had enforcement of these rights was concerned, investigation. How often did a commission
decided against making it public). this had led to the anachronistic doctrine of inquirys findings translate into full-blown
Under these circumstances, commissions of of locus standi, and issues such as leave of prosecutions?
inquiry could be effective mechanisms court and limitation periods all being done
within an accountability process, but away with. As a result, Nigerian human rights TP: In terms of thresholds of evidence, there
responsibility for enforcing accountability victims did not have to rush to the African were two broad areas. Firstly, there was
ultimately rested with the state, which or ECOWAS courts to seek redress but could the issue of victim and witness testimony
was external to the commission. One now use the local courts. An example of given to those conducting human rights
could therefore not blame a commission this was that damages awarded by human investigations, and given and received by
for a governments failure to implement its rights commissions could be registered in national commissions of inquiry, and the way
recommendations. Hence, while a commission court and were enforceable in the same in which this might make the investigations
of inquiry could help achieve accountability, it way as any other judgement. or inquiries more sensitive to victims
could not achieve accountability on its own. The ICC had had a very positive impact on needs at the time but might subsequently
In this sense, a commission of inquiry could be Nigeria. Fear of the ICC among the political compromise the testimony given. In some
said to have a role to play within a system of class had led to wisdom, e.g., elections instances, commissions conducted cross-
justice. worked, inasmuch as the loser would hand examinations, and in others they issued a
over power for fear of meeting the same synthesis of information received. In this
TP explained that these tacit assumptions were fate as Laurent Gbagbo. Moreover, Nigeria connection, there was also the important
going to form the basis of a policy brief of what had played a role in arresting the movement issue surrounding consent of witnesses to
a well-constituted commission of inquiry might led by Kenya at the AU to withdraw from the participate in a national commission of
look like. As to the possibility of having a series ICC. inquiry at a time when there might also Macharia Gaitho and audience

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AFRICA GROUP FOR JUSTICE


AND ACCOUNTABILITY
Towards a System of
International JusticE
DAY 2
WEDNESDAY | 19 OCTOBER 2016

Division (subsequently, the International and Rome Statute Act, to seek justice for victims
- Master of Ceremonies - Organised Crimes Division/IOCD) of the High of crimes against humanity. In terms of the
Court. Though initiated, this process had Implementation Act, universal jurisdiction for
Joseph Roberts-Mensah been hijacked. international crimes existed, and that avenue
had given rise to what had become known as
A subsequent assessment of existing evidence the Zimbabwe Torture Case.
PANEL V: and status update had shown that, of the total
Domestic justice, universal jurisdiction: the number of cases identified, a huge amount In 2007/2008, Zimbabwe had been in the
role of domestic courts in prosecuting had not been prosecuted and/or had not throes of civil unrest and politically motivated
international crimes, and the merits and been properly investigated. In essence violence. Torture committed as a crime
flaws of universal jurisdiction there had been shoddy investigation and against humanity (electrocution, severe
prosecution. beating, etc.) had been perpetrated against
The approach taken to setting up the subjects arrested on the basis of their political
- Moderator - proposed IOCD was that it would prosecute affiliations. The SALC had compiled a dossier
cases under the countrys International Crimes of evidence, including affidavits from victims
Mark Kersten Act (ICA), which had domesticated the Rome and witnesses, and presented it to the South
Munk School of Global Affairs, University Statute and codified the core international African National Prosecuting Authority.
of Toronto; Research Director, Wayamo crimes as crimes prosecutable in Kenya. Charles Kaamuli, Manuel Vergara, Mark Kersten, Angela Mudukuti and Chris Gitari
Foundation However, the question was whether conduct Given the presence of the victims and the
in 2007 could be prosecuted under the fact that the suspected perpetrators were
Rome Statute, in view of the fact that the ICA known to come to South Africa (SA), the SA
- Panellists - was not applicable to acts committed before authorities had a duty to investigate under the
1 January 2009 and that any attempt to Implementation Act, and specifically under
Angela Mudukuti apply the countrys Constitution retroactively the provision governing universal jurisdiction. strong advocacy this included sharing had to be used instead. Ultimately, Kwoyelo Kwoyelo, and was thus filling the gap.
International Criminal Justice Lawyer, would be unviable. Nonetheless they declined. The SALC took this lessons learnt; had been charged with a range of crimes, Moreover, unlike the ICC, which was far
Southern Africa Litigation Centre (SALC) refusal on judicial review, and the High Court, including common penal code violations, and away in The Hague, the ICD was bringing
Somewhat ruefully noting that concern Supreme Court of Appeal and Constitutional engagement dialogue and discussions with indicted on a total of 72 counts. justice to the ground. As an example of
Manuel Vergara seemed to concentrate on the crimes and Court all ruled that such a duty did exist, with all stakeholders were essential. Litigation was The ICDs jurisdiction extended beyond war this, he cited the fact that local people from
Head of Legal Advisory Section, Baltasar not necessarily on the victims, CG turned to the result that, after eight years, investigations the last resort; and, crimes and, among other things, covered Gulu in Northern Uganda, where most of the
Garzn International Foundation (FIBGAR) the possibility of invoking universal jurisdiction were finally initiated. genocide, crimes against humanity, terrorism, atrocities had been committed, were being
in order to address serious crimes under Zimbabwe was a good example of what AMU civil society space needed to be protected piracy, and any other international crimes invited to take part and become involved.
Charles kaamuli domestic law. The principles of territoriality termed a justice void, i.e., it was not a party it was rapidly shrinking in many countries. envisaged in the countrys statute book. In
Head of Prosecution at the International and equality of states had reinforced the to the Rome Statute, and the prospects of the case of Uganda, ICD activity had, for the As to Stephen Rapps criticism about the
Crimes Division, Uganda emergence of subsidiary universal jurisdiction, domestic justice and/or a UN Security Council Charles Kaamuli (CK) greater part, centred on terrorism, e.g., the Al Kwoyelo trial being unduly delayed, CK
and so pure universal jurisdiction would have referral were unlikely. Thankfully, a progressive The Ugandan International Crimes Division Shabaab bombing had been investigated explained that this had been instigated, not by
Chris Gitari to be tinkered with in order to be useful. He SA judiciary had been prepared to rule against (ICD), while facing challenges, was and 8 of the suspects had been convicted the prosecution, but by Kwoyelo himself, who
Head of Office Kenya, International Centre saw the ability to exercise universal jurisdiction the government. nevertheless up and running. To give the of terrorism. The Division was also active in the had first had recourse to the Constitutional
for Transitional Justice as vital. Moreover, where difficulties arose audience an idea of its background, CK investigation and prosecution of prostitution Court, which had initially found that he was
with universal jurisdiction, complementarity AMU concluded by making some practical explained that the ICD had come into being and human trafficking, both of which were a entitled to amnesty. Subsequently, when the
---------- could well offer a solution, i.e., by bringing in recommendations: following the failed 2008 Juba peace talks big problem in Uganda and in East Africa as Supreme Court had ruled that his trial was
the ICC. with the insurgents. One of the conditions a whole. indeed constitutional, he had then appealed
Chris Gitari (CG) legislative framework this had to be of those talks had been to create a system to the African Court on Peoples and Human
In a brief historical overview, CG explained Angela Mudukuti (AMU) improved, made internationally compatible whereby rebels would be tried locally. While CK disagreed with the contention that Africa Rights. Obviously his trial could not proceed
that in the wake of the post-election While firm believers in the work of the ICC, and brought in line with agreed and accepted the ICD itself had been set up within the High was not doing enough. Uganda was intent on until he had exhausted all available remedies.
violence that had swept Kenya in 2007, hybrid tribunals and courts, she and her human rights standards. The Rome Statute had Court, the task of war crimes investigation investigating war crimes. Turning specifically
an international commission of inquiry colleagues at the Southern Africa Litigation to be domesticated or penal codes amended had been assigned to the police. Thomas to the complementarity issue, he observed Lastly, CK informed his audience that the
[Commission of Inquiry on Post Election Centre (SALC) believed that in many instances to allow for the prosecution of genocide, war Kwoyelo had been arrested in 2009 in the that Uganda was not only co-operating, ICD Bill was pending and, if passed, would
Violence (CIPEV), better known as the justice was best served domestically. This was crimes and crimes against humanity; DRC and there had been strong evidence but did in fact have a good, two-way introduce the ICC standards and cover
Waki Commission] had been set up to a very important topic in the light of current to show that, though not indicted by ICC, he working relationship with the ICC. operations, funding and administration. As
investigate the events. Following pressures events. capacity building prosecutors, judges had been involved in war crimes. However, Whereas the ICC had gone for top-range things stood, however, some of the ICDs
caused by the ensuing ICC process and The SALC had made use of South Africas and lawyers required training in international there were legal challenges, since most of the commanders (e.g., Dominic Ongwen), current challenges still included finance, the
the so-called impunity gap, there had been progressive legislative framework, which criminal law and international humanitarian alleged atrocities had predated the Rome the Ugandan ICD was targeting their recent assassination of a colleague, and the
a move to create an International Crimes also included the Implementation of the law and human rights law; Statute, and so the Geneva Convention mid-range counterparts, such as Thomas whole area of witness protection.

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Manuel Vergara (MV) one understand Ugandas position when local system. One needed to indigenise always been aware of its duties. Moreover, have been misinterpreted, and expressing
Both the ICC and universal jurisdiction were the Before opening up the discussion there was so little consistency? the process, otherwise one would end up there had been domestic arrest warrant for his respect for the AU: he was confident
subject of commonly repeated presumptions. to the floor, Mark Kersten asked CK: Denying that Ugandan justice had having very complicated, very expensive al-Bashir. that the fight against impunity was in Latin
Rather than accepting them at face value, each panellist a question. been selective, CK insisted that Kwoyelo procedures that defeated the very purpose America and in Africa, and knew that the AU
these should be reviewed by reference to had been indicted because it was a big for which they had been introduced. When Rod Rastan from the floor: had expressed its commitment in a number
practice, case law, and comparative law MK: Was there international justice case involving 7 attacks, 113 witnesses and it came to domesticating international where there was a UN Security Council of ways. Indeed, the AU Model Law on
and doctrine, with special attention to Africa, fatigue in Kenya? Was there any hope over 150 exhibits. criminal justice, this should be localised referral the Court deemed the Rome Statute Universal Jurisdiction had been a
where the AU had issued several declarations for international justice in Kenya, and if so, as far as possible. Furthermore, adopting very good step. An important aspect of
concerning universal jurisdiction. Some of these where might one look for that source of MK: There needed to be some degree of Rules of Procedure often implied amending universal jurisdiction was raising awareness,
presumptions saw universal jurisdiction as hope? political space for universal jurisdiction to a whole series of laws: indeed, this had Don Deya: e.g., one of the most controversial cases
being an instrument of the strong against the CG: Kenya had created a toxic work. Furthermore, looking at the political been the case with the IOCD. One should It is not an easy time to in Spain involving a so-called exercise
weak, an instrument of a neo-colonial nature, environment locally and interfered with element, the presumptions that MV had be careful before assuming that an ICC of universal jurisdiction had been that of
or an instrument with political purposes; others witnesses. The country now wanted to move listed were essentially the same as those of procedure was superior to a local one. be optimistic in Africa. the DRC and, specifically, Rwanda, with
underscored the abusive/selective use of on. The government had sought to use the the ICC. So, why would African states view Strong institutions are the whole venture being caricatured as
universal jurisdiction or saw it as having no future, International and Organised Crimes Division universal jurisdiction any differently to the Where there were combatants the idea of one crazy Spanish judge.
being useless or simply representing an attack (IOCD) to bring cases home. As a result, way in which they viewed the ICC as being involved in cross-border operations,
needed to counter strong However this accusation had been wholly
against sovereignty. civil society had withdrawn its support from anything more than an imposition on them? what challenges were being faced? men at regional a national, inaccurate, as there had been nine Spanish
the nascent IOCD. Civil society was looking CK: In the case of Ugandans operating sub-regional, continental victims; and universal jurisdiction had
MV then proceeded to examine some of these to compile strong documentation on crimes MV: Addressing the political element, MV in the Congolese forests, there were been instrumentalised precisely because
presumptions in the light of cases. Citing the and their impact on victims, and on networks recounted how Belgium had changed its competing extradition requests with the and international level. there was no general provision for passive
Guantnamo, Iraq war, Tibet genocide and and how they operated. There had been a universal justice law following pressure from Congo. They were hoping to work with jurisdiction under Spanish law. There had
Falun Dafa cases, he showed how countries such steep learning curve domestically. Israel and the USA. Pressure from these victims in both the DRC and Uganda. been no attempt to revise the genocide.
as Spain, Belgium and Argentina had taken on same countries had subsequently led to (including Article 27) to be applicable. Neither was it true that the judge sought to
the likes of the USA and China. Was it, he asked, MK: By way of an update on the al-Bashir amendments to Spanish legislation, and Advocacy: What was the relationship When the ICC had jurisdiction, the ignore presidential immunity: the indictment
then really true that universal jurisdiction was an affair, what was the likelihood of criminal in 2104, after similar pressure from China, between AMUs organisation and whole package went in. had set out in detail why it could not be
instrument of the strong against the weak? charges being brought against government Spain had introduced a 5-page provision Zimbabwe? issued against the person of President
actors. Could domestic action push South that rendered implementation almost AMU: The Zimbabwe Torture Case was Diversity of opinion Paul Kagame. A universal jurisdiction case
While the claim that universal jurisdiction was a Africa to withdraw from the ICC? impossible. Thus, Spain had given in to the about South Africas obligations, and as a Adewale E. Iyanda from the floor: required the commission of an international
neo-colonial instrument used to control former result, advocacy was currently centred on it was important to have diversity at events crime, full impunity, use of universal
colonies might have some truth in a series of South Africa. Zimbabwe would follow. of this nature. jurisdiction as a last resort, and support from
cases where Spain had challenged Chile Angela Mudukuti: While I firmly believe in the work At this Bettina Ambach interjected from the victim, who needed to travel abroad to
(Pinochet), Argentina (Scilingo) and Morocco Head-of-State immunity and the al- the floor to make clear that Wayamo- choose the most feasible jurisdiction, where
(Sahara), or Belgium had challenged the DRC
of the ICC, hybrid tribunals and courts, I believe that Bashir case (insofar as one of the AGJA had made every attempt to ensure domestic legislation made provision for
(Yerodia), this could not be said of the Franco in many instances justice is best served domestically. arguments put forward by the South diversity and explained that in the case of universal jurisdiction. Without the exercise of
case, where the former colony, Argentina, had African government was that he had the Cape Town symposium, invitations had pure universal jurisdiction, the corner-stone
challenged its ex-colonial master Spain, or been invited by the AU and not by South been extended to all sides. She felt very case involving Pinochet would never have
another series of cases in which both parties AMU: In the al-Bashir case, the South African sort of economic pressure which he would Africa). strongly that it was essential for all voices taken place.
had been former colonies, e.g., Stroessner government had failed to comply with its describe as corruption or bribery but to be heard.
(Argentina vs. Paraguay), Mavi Marmara (Spain obligations to arrest him and had been taken which, at an international level, was called Adewale E. Iyanda from the floor:
vs. Israel) and Hissne Habr (Senegal vs. to court. This had ruled that, by letting al- diplomacy. A topic that had not been covered the Universal jurisdiction
Chad). Indeed, this so-called boomerang Bashir go, the government was in contempt previous day was immunity in the case of Adewale E. Iyanda from
(role-reversal) effect was in his opinion of the court order. The state had ultimately states that were not States Parties to the the floor:
one of the greatest things about universal taken the case on appeal to the countrys Q&A Rome Statute: the AU felt that al-Bashir had A common understanding
jurisdiction Constitutional Court, after losing in the not been on South African territory and, as of universal jurisdiction was
other courts. To bring a criminal contempt a result, the South African courts were not essential and the AU had thus
The assertion that universal jurisdiction was action, one would have to rely on the entitled to exercise jurisdiction. adopted a model law on the
a political tool whose use was abusive and national prosecuting authority: alternatively, CK: Trying to prosecute those who held matter. The same issue was
selective was only true in the sense that any the option of bringing a civil contempt suit power, as had happened in Kenya, was a before the UN.
instrument could be corrupted. Even so, there would have to wait for the Constitutional dead end. In Africa there were challenges
were safeguards against abuse, in the form of Courts judgement. As to whether South of false positives and false negatives, i.e., Stephen Rapp from the
the role of victims, presumption of innocence, Africa would withdraw from the ICC, a Bill a tendency to be strong on rhetoric alone. floor:
rights of the accused and compliance with had been tabled in Parliament, though A false negative existed where a state Universal jurisdiction was
international standards. that too was in abeyance, pending the announced that it would not join the Rome applied when the perpetrator
Constitutional Courts ruling. AMU pointed A brief sampling of comments on some Statute or be part of the international justice was present in person on the
While MV was willing to concede that no out that Al-Bashir had been warned off 2 points of interest from the floor system but nonetheless tried to prosecute territory of the state seeking
government was really happy to open or 3 time previously, and so there was really international criminal cases domestically to to exercise such jurisdiction
universal jurisdiction cases because these no doubt about South Africas obligation. the best of its ability. The false positive, on and was quite popular. Passive
were controversial, he nevertheless rejected She felt that the time had come to engage the other hand, was where the AU and jurisdiction also applied in
the contention that there was no future for in advocacy. Criticisms of the Ugandan ICD, from many African countries stood, which cases where nationals were
universal jurisdiction. Despite the legislative the floor consisted of professing allegiance to killed on another states
constraints introduced in Belgium (2003) and MK: On the subject of prosecutorial These included the fact that: capacity international criminal justice and yet territory. As opposed to pure
Spain (2014), universal jurisdiction was a discretion and consistency in prosecuting building was often defeated by rotation doing absolutely nothing domestically, universal jurisdiction, such extra-
tool at the service of victims world-wide. international crimes, the Ugandan ICD was of staff; the process was marked by i.e., passing a raft of model laws, as in territorial cases were becoming
The proliferation of cases showed that the prosecuting Thomas Kwoyelo, another selective prosecution; victims in field were Kenya, but doing nothing concrete in increasingly important.
future of universal jurisdiction lay in Africa and alleged offender, Okello, had been kept not convinced by the ICD, and in addition, real terms.
Latin America (South Africa, Senegal, Argentina, in military custody and protected from believed in traditional mechanisms. MV: He wished to begin by
Chile, etc.). Moreover there had been new prosecution, while the Dominic Ongwen AMU: There had been no AU-related clarifying any remarks about
efforts to develop universal jurisdiction to fight case had been sent to the ICC despite Rules of Procedure obligation to host a summit, e.g., Malawi the AU (as regards universal
impunity, as evinced by the Madrid-Buenos President Musevenis criticism of the Court. CK: One needed to think critically about had refused. In addition, a host nation jurisdiction having no future,
Aires Principles of Universal Jurisdiction (2015). Was Uganda forum shopping? How could procedures that were indigenous to the hosted on its own terms. South Africa had being useless, etc.) which might Athaliah Molokomme

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CSP dealt with the Special Criminal Court MAIN FEATURES OF THE SPECIAL CRIMINAL and financial partners to ensure political,
PANEL VI: under 4 heads, i.e., context, main features, COURT technical and financial support for the courts
African accountability for international main stages of implementation, and The SCC was a hybrid court, composed of operationalisation and proper functioning.
crimes: the SCC in the Central African challenges and problems lying ahead. 12 CAR and 11 international judges. Under To date, these were some of the preparatory
Republic, the Extraordinary African Article 3 of the Act, the SCC would investigate activities that had been carried out:
Chambers within the Senegalese courts, the most serious crimes and prosecute
and the African Court on Human and CONTEXT perpetrators of war crimes and crimes against identification and refurbishment of the SCCs
Peoples Rights and its proposed expansion Since the beginning of 2013, the Central humanity committed on CAR territory since proposed premises;
to include international crimes African Republic (CAR) had been in a 2003.
profound crisis characterised by widespread staff recruitment and selection;
violence that had claimed over 3,000 The SCC was unique in the world, in that
lives, including hundreds of victims of it was integrated into the CAR judiciary adoption of terms of reference and profiles
- Moderator - sexual crimes. The biggest challenge was and the applicable law was CAR law. By of national and international candidates to
to investigate and try those responsible combining referral to the ICC with the creation serve in the court;
Patryk I. Labuda for these abuses, which constituted grave of a specific and strengthened national
Geneva Academy of International violations of human rights and international mechanism, the CAR was paving the way for adoption of the draft budget for Phase 1,
Humanitarian Law and Human Rights humanitarian law. The impunity that had the fight against impunity. It was also the first covering the first 14 months. Five million of a
plagued the country for many decades time that a hybrid court had been established total of USD7 million had been mobilised, with
had enabled the commission of numerous in a situation where the ICC was active. the remainder yet to come.
crimes. Justice for serious crimes was an
- Panellists - imperative for a truly sustainable peace in MAIN STAGES OF IMPLEMENTATION However, priority actions need to be taken to
the CAR, and the holding of fair and just The implementation of the SCC was make the SCC operational in its first phase: Catherine Samba-Panza Richard Goldstone
Catherine Samba-Panza trials was not only an obligation to victims proceeding on an incremental basis. The there was the matter of the recruitment of the
Former Transitional President of the Central who had suffered atrocious crimes, but first stage would support the immediate International Special Prosecutor. It was hoped
African Republic and AGJA member would also send a strong signal that serious operationalisation of the judicial police and that this, plus the appointment of a deputy
crimes would no longer be tolerated. prosecutors, so that investigations could start as Special Prosecutor (a CAR national), could be
Adewale E. Iyanda However, the CARs judicial system had itself soon as possible. This initial three-phase stage, achieved in a short space of time.
Office of the Legal Counsel, African Union suffered from the consequences of this planned to last three years, would consist of: the question of the legacy of the court was By way of introduction, DD remarked that, it
Commission conflict and had limited means, in terms of support for investigations, prosecution and important, in order to strengthen the national was not an easy time to be optimistic in
staff and material resources, to investigate training; assistance and protection of witnesses CHALLENGES AND PERSPECTIVES judicial system in the long term; Africa. A lot of work had only yielded mixed
Don Deya complex crimes involving armed groups and victims; legal assistance; and public The AGJAs mission to Bangui in September had results: strong institutions were needed
CEO, Pan African Lawyers Union, Arusha that were still active. Accordingly, a special awareness-raising. been marked by a number of meetings and a the lack of sufficient, qualified staff, with the to counter strong men, at a national, sub-
tribunal had been created to combat conference to discuss the challenges that still concomitant danger of leaving the national regional, continental and international level.
Selemani Kinyuyu impunity and restore the rule of law. The second stage, which would focus on lay ahead in order for the court to become a caseload unattended. Capacity building was Division of labour was thus needed.
Advocate of the Tanzania High Court, and support for trials, would see the setting up of reality. Indeed, during the various meetings and thus required to draw on the experience of other
Chief Adviser to the Pan African Lawyers The 2015 Act which had set up the Special the assize and appeal chambers. This would discussions with the relevant actors, there had international tribunals; Echoing Angela Mudukutis reflections, DD
Union on Research and Advocacy on Criminal Court (SCC) was one of the take a further two years. The SCCs existence been a real enthusiasm for the court and the said that the quality of laws, institutions,
Governance and Human Rights signal achievements of the transition. The was thus for a term of five years, to be feeling that SCC should be operationalised as the challenges posed by the existence in the mechanisms or results achieved would be
transitional authorities wished to make the renewed if necessary. soon as possible. CAR of several jurisdictions, i.e., the ICC, SCC and directly proportional to the quantity and
Catherine Samba-Panza (CSP)* SCC a key tool in the fight against impunity, It also became apparent that SCCs ordinary courts, and the ensuing need for co- quality of African citizen engagement and
African responsibility for international crimes: something that showed the CARs strong The international community had played a operationalisation process faced several practical, ordination; work invested. In the context of the so-called
the Special Criminal Court in the Central commitment and willingness to bring the significant role in the process of establishing technical, legal and operational challenges. These shrinking CSO space, to what extent would
African Republic perpetrators of serious crimes to justice. the SCC, both through its technical support for included the following: the question of the rights of the accused and the African citizens and CSOs fully occupy the
the process of drafting and promulgating the defence, notably the problem of special defence space that existed, and -more importantly-
---------- law and through the mobilisation of technical the need to deliver justice to the greatest counsels and legal aid; create new spaces and opportunities?
number of victims while taking into account the
operational realities and real financial limitations. other issues included the problem of co- The African Human Rights System could
Hence, the importance of mapping victims needs ordination between the SCC and the ordinary contribute to:
to avoid raising false expectations; courts, which would be asked to play an important
role in bringing an end to impunity and so had to good entry points for African citizens to
effective outreach to sensitise and manage the be supported; and lastly, influence and make demands on how
expectations of the affected populations; conflicts (and other mass atrocities) were
the relationship between criminal justice and being prevented, mediated, resolved and
a prosecution strategy with objective and transitional justice, social justice (reconciliation) accounted for;
transparent criteria, so that the public knew why and amnesty had also been a concern.
certain crimes were or were not being prosecuted; state responsibility for mass atrocity crimes, at
In summary, it emerged that the SCC project was least to expose those most responsible and, in
a clear strategy to support victims, reliable being gradually implemented but that a number some instances, trigger actual accountability
funding to address both collective and individual of people had not been aware of the progress -criminal and civil- for individuals and institutions;
reparations; made in the establishment of the court. More and
needed to be done in this regard to reassure the
practical security needs for ensuring the public. The SCC was in need of support at the the broader spectrum of transitional justice
protection of victims and witnesses alike, as well national and international levels, and the AGJA measures, such as truth-seeking, reparations,
as that of other judicial actors, such as judges, could play a part in this. etc.
prosecutors and judicial police officers;
Selemani Kinyunyu, Catherine Samba-Panza, Patryk Labuda, Don Deya and Adewale E. Iyanda The Libyan case
the urgent need for more information and Don Deya (DD) DD now turned to a practical example
communication activities with stakeholders and African accountability for international crimes: in the shape of Libya. Libyan CSOs, with
national actors, to ensure national ownership of possibilities within the current African human rights their international partners had filed 2
* NOTE: Since Madame Samba-Panza read her address in full, accompanied by an informal translation by Patryk Labuda, what follows is an
the court; system communications at the African Commission
abridged version in English. Kindly see the Appendix for the complete, original, French-language version of her address]

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Q&A
on Human & Peoples Rights, in Banjul (The Selection and Prioritisation recently issued law and/or applicable South Sudanese law,
Gambia). The Commission then referred by the Office of the Prosecutor (OTP) of the committed from 15 December 2013 through
the matter to the African Court on Human ICC, the OTP would seek to co-operate with the end of the transitional period
& Peoples Rights in Arusha. In a ground- states as regards conduct amounting to
breaking decision, the Court had ordered serious violations of national law, such as the Conceptual framework
the Libyan Government to stop killing and illegal exploitation of natural resources, arms Noting that some matters were still highly
torturing its citizens forthwith, and to report trafficking, human trafficking, terrorism, financial sensitive, AEI said that he would restrict himself
back to the Court. Nobody had expected the crimes, land grabbing or the destruction of the to what was in the public domain. The Court
Gaddafi Government to take any heed, yet it environment. was to be established by the AU Commission
appointed an Ethiopian law firm to represent (AUC), which had to look at the type of
it, denied the charge, and pleaded that it (ii) An African court with criminal jurisdiction instrument required and how to domesticate
had been legitimately putting down an illegal opened up new avenues for protection and it under South Sudanese law, and provide A brief sampling of comments on some
insurrection redress for victims of human rights abuses. For guidelines on, inter alia, the Courts location, points of interest from the floor
the first time, victims and NGOs could trigger infrastructure, composition and funding
Two remarkable things had happened: the opening of a case. Working hand-in-hand mechanism, enforcement mechanism and
with the human rights section, the Prosecutor jurisprudence. The seat of the Court was to be AEI had said that proposed hybrid court in
(i) Libya had submitted to the jurisdiction of could thus receive evidence and information decided by the Chairperson of the AUC. the Sudan would not countenance immunity:
a young international court, thus setting a which could then be used in the criminal did this indicate a move by the AU to revisit
precedent; and, section. Civil society would be pleased to know the Malabo Protocol?
that immunity would not bar the Court from
(ii) this had been achieved, while the conflict (iii) The Criminal Section would have exercising its jurisdiction and official capacity AEI: In view of the fact that certain texts
was still ongoing. complementary jurisdiction with the ICC and would not exempt anyone from criminal had been adopted by heads of state and
other regional courts. Despite political tensions, responsibility. been the subject of intense negotiation, it
Despite the passing of the UN Security Council this opened up interesting possibilities for co- was felt that the provision for immunity and
Resolution and the end of the Gaddafi regime, operation at the judicial level. Catherine Samba Panza: the calls on the ICC to respect this could not
the Pan African Lawyers Union entered an In all, the inclusion of criminal jurisdiction could be ignored, and that not to have included
Amicus Curiae brief and argued the principle be viewed as a new dimension, marking a Justice for serious crimes it in the Malabo Protocol would have been
of continuity of state responsibility despite a shift from state to individual accountability in is an imperative for a hypocritical. However, it was an issue around
change of regime. the case of commission of grave human rights which there was ongoing debate and there
breaches.
truly sustainable peace in was a possibility of the Malabo Protocol being
The lesson learnt was how the continuum the CAR. Holding fair and revisited somewhere down the line.
of CSOs, the Commission and Court could just trials is an obligation
potentially work together in a very fluid and Adewale E.Iyanda (AEI) What were the lessons to be learnt from the
dynamic conflict/mass human rights violation The Hybrid Court for South Sudan to victims of atrocious ICC to ensure a strong African Court?
situation, using fact-finding missions, public crimes and will send a
hearings (e.g., as during the suspension of the Background DD: There was no equivalence with the Rome
Burundi talks) and treaty-reporting, in a way Hassan Bubacar Jallow South Sudan, the worlds newest nation
strong signal that serious Statute in terms of drafting. The key point was
whereby citizens could engage with states attained independence on 9 July 2011. crimes will no longer be the extraordinary summit called by Kenyatta
and the AU. What started as a political feud within the tolerated. in 2013, which had left no option but to obey.
Two of DDs recommendations included governing SPLM party in July 2011, had led to Politics did cast a long shadow over the law.
pushing for adoption and implementation a split, which in 2013 escalated into an almost One should therefore not treat the Malabo
of the draft African Union Transitional Justice 3-year, ethnic-based civil war, with devastating Lastly, the Hybrid Court was to leave a lasting Protocol any differently to the way in which
Policy Framework, and the possible use of the vested with criminal jurisdiction. Unfortunately, of serious concern to African states, including humanitarian consequences, in the form of legacy, by ending the culture of impunity, one treated the Rome Statute. They would
doctrine of recognition as a means of what this recommendation had been submitted at unconstitutional change of government, piracy, thousands of civilians killed, nearly 1.6 million promoting the rule of law, implementing prosecute whom they could, and make such
was tantamount to removing governments or the same time that the AU was considering terrorism, mercenarism, corruption, money internally displaced persons,1million refugees, judicial reforms and building institutional judicial amendments as they could, when they could.
heads of state. merging the African Court of Justice and laundering, people and drug trafficking, and and basic infrastructures destroyed. capacity. One had to acknowledge the duplicity and
Human Rights and the African Court on Human illicit exploitation of natural resources. double standards that were at work in the
and Peoples Rights, and was not followed. AU intervention Jurisdiction international system: this would serve to help
Selemani Kinyuyu (SK) Cases could be brought by States Parties, the The AU had been criticised for not responding The Court was to be independent from and dialogue.
A Continental African Criminal Justice System In 2007, the AU adopted Article 25(5) of the Assembly, the Parliament and other organs but just two weeks after the conflict erupted, enjoy primacy over the national courts. It was
African Charter on Democracy Election and of the Union authorised by the Assembly, the the AU Peace and Security Council met to to have jurisdiction over genocide, crimes The hybrid court was to be wholly staffed by
Genesis Governance, and in early 2009, it decided Peace and Security Council, the Office of the call for the establishment of a Commission against humanity, war crimes and serious Africans: would it not be desirable to benefit
SK began by a giving a quick historical to examine the implications of extending Prosecutor; and African individuals or African of Inquiry on South Sudan to investigate the crimes under international law and relevant from the experience/knowledge of people
review of the events leading up to the current the jurisdiction of the African Court to try NGOs with observer status before the AU. human rights violations and other abuses laws of the Republic of South Sudan, including from other continents?
situation. The genesis of a continental African international crimes. committed during the armed conflict and sexual- and gender-based violence.
criminal justice system emerged in 1981 Complementarity make recommendations on the best ways and AEI: The fact that under the Agreement,
during the conceptualisation of the African Tri-jurisdictional Court The Protocol provided for complementary,and means to ensure accountability, reconciliation Composition defendants had the right to choose their
Charter. Then, in 1989, Trinidad and Tobago Finally, in mid-2014 the International Crimes the possibility of seeking the co-operation or and healing among all the countrys Judges were to be from African States but own defence counsel might allow for the
requested the UN General Assembly to create Protocol was adopted: to date there had assistance of regional or international courts, communities. After a series of interviews and predominantly non-South Sudanese and participation of non-Africans.
a court to deal with drug trafficking and other been 9 signatures but no ratifications. The non-States Parties or co-operating partners of visits to camps, alleged crime scenes, etc., the would be selected and appointed by the
transnational criminal activities. In 1998, during Protocol had created a tri-jurisdictional court the AU. Commission found that there were reasonable Chairperson of the AUC. The Prosecutor and FEMI FALANA FROM THE FLOOR:
the drafting of the Ougadougou Protocol with 3 chambers. There was a General Affairs grounds to believe that certain crimes (murder, defence counsel had to be African other than With reference to the situation in Burundi, he
establishing the current African Court, the idea Section, Human and Peoples Rights Section What did this mean? rape and sexual violence, torture, etc.) though South Sudanese (though defendants had the had sent a petition to the AUC and made
of vesting the African Court with a criminal and an International Criminal Law Section, (i) There were different, evolving perceptions not genocide, had been committed. right to select their own defence counsel). an application to the African Court but had
jurisdiction was revisited without success. with a pre-trial chamber, trial chamber and about the scope of international criminal In line with the Commissions recommendations, received no response from either: what would
appeals chamber. justice. For a long time within Africa, there the 2015 Agreement on the Resolution of In view of subsequent political events, with one the panels advice be?
In early 2006, the AU appointed a committee had been a strong understanding of the the Conflict in the Republic of South Sudan of the main stakeholders no longer being in
to examine the question of Hissne Habr. One Jurisdiction relationship between enabling crimes such provided for an African Hybrid Court, to the country, an element of uncertainty had DD: The AUC had in fact acted on Burundi.
of its recommendations was the establishment The court had jurisdiction over international and as terrorism and financial crimes, and core investigate and prosecute individuals bearing been introduced into the situation. Furthermore, it was pointless to apply to the
of a single continental court that would be transnational crimes, as well as other crimes crimes. According to the Policy Paper on Case the responsibility for violations of international Court if Burundi had not made the necessary

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declaration. Hassan Bubacar Jallow (HBJ)


Both initiatives (i.e., Sudan and the CAR) PANEL VII: It had been just over 2 decades since
were important but had been under debate Towards a system of global justice: current the creation of a modern system of
for a long time: what could CSOs and human obstacles to consolidating a system of international justice, with the creation
rights groups do to support them? international justice and the way forward of the ICTY, ICTR and other tribunals. This
short space of time had been a very
AEI: There was civil society space in the productive period in terms of the quantity
AU, e.g., the AU had entered into a number - Moderator - and quality of people brought to account
of Memoranda of Understanding with for international crimes at international
CSO groups. In addition, CSOs could raise Athaliah Molokomme tribunals, i.e., a total of over 300 high-level
awareness in South Sudan, with a view to Attorney General of Botswana and AGJA personalities whom it would otherwise have
making the government accountable and member been almost impossible to try. In addition,
ensuring that procedures were in line with the there had been advances of other kinds,
law. - Panellists - including the generation of extensive
jurisprudence on international crimes, such
Was the current CAR government as Hassan Bubacar Jallow as genocide, and the development of best
enthusiastic as CSP about the Special Criminal Former Prosecutor, International Criminal practices for investigation, prosecution and
Court? Tribunal for Rwanda and International management. This had had a good impact
Residual Mechanism for Criminal Tribunals, on communities and made international
CSP: While it was true that the transitional and AGJA member justice an acceptable part of international
government had laid the foundations for relations.
the Court, it was nevertheless the current Catherine Samba-Panza
administration that was taking the project Former Transitional President of the Central Though many challenges still remained, he Catherine Samba-Panza, Mohamed Chande Othman, Athaliah Molokomme and Hassan Bubacar Jallow
forward, e.g., by adopting terms of reference African Republic and AGJA member would mention just 4 areas:
for hiring judges. The SCC remained a priority
of the current government, and indeed Hon. Mohamed Chande Othman (i) the need to consolidate and secure
the President had expressly mentioned Chief Justice of Tanzania the advances made to date in formulating
this at the UNO. CSOs could help when it best practices; the Rome Statute. Very important, powerful reason or another, were simply incapable Q&A
came to taking ownership of the project, ---------- states with influence that shaped the of prosecuting cases of genocide. This
by raising awareness, undertaking training (ii) ensuring universality in terms of law still remained outside the Statute. A translated as a lack of accountability and
and engaging in outreach at home, and membership of Rome Statute and dealing concerted international effort, a concerted the ensuing frustration felt by victims.
participating in international actions for Athaliah Molokomme (AM) with perceptions of bias; campaign, was thus needed to persuade
financial and technical support abroad. The focus of the panel was to bring such states to join the Rome Statute One had to be more elastic in ones
together the proceedings of the previous (iii) giving effect to complementarity; and, system. Sadly, there was also the issue of thinking, e.g., there was a need for regional
two days and determine whether a system perceptions, e.g., as to the biased nature courts that were willing to take on criminal
of justice was taking shape, what the (iv) the global political environment. of international justice. Such perceptions jurisdiction. Such regional courts could
challenges and obstacles to consolidation (whether right or wrong) mattered and become an important potential link in the
might be, where the way forward lay, and in Need to secure and consolidate were not to be dismissed: one had to look chain of complementarity.
essence, what the overall picture was. advances in national systems at them, otherwise the process, and the
A brief sampling of comments on some
There was very little reflection of these Africa/ICC relationship in particular, would Political environment
points of interest from the floor
advances at a municipal level, inasmuch be undermined. There had been a more conducive
as the jurisprudence of international justice environment at the time of the ICCs
had not trickled down and found its way Complementarity creation. Now, however, there was a lack of
onto national statute books, e.g., the There had been a shift in principles in the unanimity in the UN Security Council. There International justice.
definition of rape had been changed only administration of international criminal were many proposals for hybrid courts but The Tanzanian Constitution did
in Costa Rica. Yet, this was something that justice, away from primacy to co-operation these proposals just seemed to remain in not support the implementation of
made the prosecution of sex and gender- with national systems. The ICC was based on the pipeline. In a nutshell, the environment international law. Countries like India had
based violence much easier to accomplish. complementarity, which meant that primary now was less supportive. One needed to gone far enough to enable Parliament to
responsibility rested at the national level; work on improving that environment, on amend the constitution. If this were not
A Best Practices Manual on the Investigation rightly too, since national jurisdictions could referring situations, such as Syria, to the ICC; done, politicians would find a way of
and Prosecution of International Crimes handle a greater number of cases, with only so many people had died, yet it seemed to dodging international justice.
had been developed for use by national the most important and difficult being left be impossible to ensure accountability.
authorities. Similarly, other areas had also to the ICC. The future depended on how Though much had been done and CSP: International justice had started taking
been touched upon. Nevertheless, a lot effective complementarity became: achieved, more could be done to secure root only a few years ago in the form of
more had to be done. Not only did these without effective complementarity there past gains, give effect to the principle the ICC. Its judgement against Jean-Pierre
manuals need to be used for capacity was no way to ensure accountability at of complementarity, shape the global Bemba had reassured the population that
building at both an international and either the national or the international environment to be more sympathetic, something was being done. She was fully
national level, much also remained to be level. Only so much could be done at the and clear misperceptions. aware that the international justice system
done in the way of identifying, compiling international level. Complementarity did not could not deal with all crimes but was limited
and disseminating these recommended come ready-made: so what was actually to the big fish. Likewise, she was aware
practices. There were important lessons to being done to ensure that complementarity Athaliah molokomme (AM) that national courts were not equipped and
be learnt in how to establish, run, maintain was really effective? A concerted, Hassan Jallow had succinctly and had too many cases, which was why an
and manage international tribunals. A organised, international effort was comprehensively touched on the international mechanism had been chosen,
way had to be found to help national required to ensure that states had the challenges (noting here that she preferred even though it, in turn, had its own limitations.
jurisdictions incorporate the jurisprudence necessary means, laws, capacity and the term challenges to obstacles, since The best practices of other tribunals had
developed by international tribunals into institutions to perform this role. Nothing the latter inevitably transmitted the idea of been noted.
their legal systems. was happening at present, and so one insurmountability). If any challenges had not
Ka Yan Leung should not assume that each state was been touched on or there were suggestions MOC: It seemed that there was consensus
Universality able to do its part. Sometimes states -even to be made, she invited the public, including on the fact that international justice was
There should be universal membership of in Europe- were not unwilling but, for one the AU and CSOs, to put these forward. multi-layered and multi-structured. He

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Towa rd s a Sy st em of Int e r n at i on al Ju st i c e

agreed that there should be deference to and while these requests had been noted, interesting to ascertain what governments
national institutions. There was a need for finance was of course always the problem. were thinking. Similarly, he would give some
increased realisation at a national level This was why it was so important to thought to the recommendation to use the
that addressing international crimes was collaborate with other groups that had the Southern African Chief Justices Forum. Until
an area of specialisation. Countries were same objectives. now it had focused on national justice, and so
building capacity to address drug trafficking there was certainly scope for an international
and other international crimes. There was AM: The AGJA took advantage of its dimension.
a great deal of debate in Tanzania as to biannual meetings, such as that which had
whether such specialisation should be in the been held on the preceding Monday, to SUMMING UP
form a court or a special division. engage in its other activities. Some members AM: By way of summing up, AM said it had
Domestication was another issue. There would be meeting again in The Hague, been a very enriching two days during which
was a need for enlightenment when it where an ASP side event was to be held. The a lot had been learnt and shared. Noting that
came to addressing international law and Group was drawing up a long-term strategic Hassan Jallows presentation had been very
constitutional matters. Regional justice had plan. In addition, it had a comprehensive list positive and optimistic, she confirmed that a
great potential, with lessons to be learnt of experts on whom it could call. lot had indeed been done in the past two
from regional economic courts which had decades but she was nonetheless grateful
already tackled a number of issues, such as Some recommendations from the floor to hear that note of optimism. Reviewing the
sovereignty. Rather than being just another capacity- four areas he had identified and the points
Until now there had been no success story building organisation, the AGJA occupied raised by participants, she highlighted what
in terms of complementarity, so that current a unique place. High-level dialogue she saw as some of the most salient aspects:
situations such as the CAR were test cases. was important and it was essential to
consider how this should be conducted and Firstly, the need for the domestication,
AU, civil society and the AGJA structured. consolidation and alignment of laws
Adewale E. Iyanda from the floor: and the establishment of tribunals at a
This event had shown how imperative Dissemination of international criminal national level.
dialogue between civil society and justice: There were very few universities
government structures was. It was offering post-graduate courses. This was an Secondly, while capacity building was a
recognition that the international justice area to be looked at. somewhat broad concept, she acknowledged
system, albeit imperfect, did provide a the sentiments expressed from the floor, in
mechanism. Dialogue such as this made The AGJA should consider using the the sense that the AGJA should engage
it possible for recommendations to be Southern African Chief Justices Forum as more in outreach work, taking advantage Elise Keppler Bettina Ambach
heard and acted upon. Domestication and a platform. of and leveraging its expertise and
implementation of legal frameworks was networks to work with lobby advocates
one of the continents biggest challenges. The Group had a potential that many NGOs and raise awareness, using NGOs and
Civil society could CSOs to package
help through ad- the information.
vocacy. Indeed, the Adewale E. Iyanda: This event has shown how Continuous work Burundi Statement
AU had a platform was necessary, even
for that, where AU
imperative dialogue between civil society and where there were no
The Africa Group for Justice and Accountability is deeply concerned by and calls for further
representatives sat government structures is. The international crises: prevention,
at the highest level. justice system, albeit imperfect, does provide a she said, is better
engagement on Burundi decision to withdraw from ICC.
CSOs should be than cure.
using this possibility. mechanism. Dialogue such as this makes it possible The Africa Group for Justice and Accountability (AGJA) expresses its profound disappointment and concern at
Wayamo should for recommendations to be heard and acted upon. Thirdly, aside from
the government of Burundis decision to withdraw from the International Criminal Court (ICC).
hold an event in criminal jus-tice
Addis Ababa. and trials as a
did not have, and should therefore engage means of res-ponding to human rights The Africa Group views the move as a potential obstacle to achieving accountability for crimes committed in
HBJ: He thanked the AU for the proposal with decision-makers at a neuralgic violations, attention should also focus on Burundi. This decision deprives the victims of human rights violations in the country of a recourse to justice.
and was sure that the AGJA would level. other areas where there were gaps, such
welcome it. as reparations.
Justice systems were a little mysterious to The Africa Group strongly urges President Pierre Nkurunziza to use his good offices, and along with his
The AGJAs role: what was the AGJA victims and needed demystifying. Outreach in Fourthly, non-African States Parties had government, reconfirm Burundis commitment to the human rights of the people of Burundi and to the Rome
going to do that was impactful and the kind of traumatic situation epitomised by an important role to play, not only in
Statute.
would make a real difference? Kenya could make use of NGOs and CSOs to complementarity but also in lobbying.
package the information. Refraining from intervening was no less
HBJ: As regards roles, the idea was that than an abdication of responsibility: We also call upon the government to reconsider its decision to withdraw from the ICC. The Group also
the AGJA would be engaged in capacity The main aim of capacity building was they should not stand back. Similarly,
encourages other Member States of the ICC to work with the Burundi government to retain its membership in
building while its individual members entered complementarity, i.e., to enable local outreach work should also be done
into dialogue with the political leadership of personnel to address international crimes at a by them to ensure that the UN Security this very important mechanism for fighting impunity and defending human rights.
states. Not only was the Group ready and national level. This gathered resource people Council was much more responsive and
willing to do this, but hopefully it would be who would not normally sit together and responsible institution when it came to The people of Africa and the African Union embrace the principle of accountability for international crimes, as
doing so in the near future. served to build up networks. Ignorance of acting as a gatekeeper.
what others were doing had to be overcome. exemplified by the recent trial, conviction and punishment in Senegal of Hissne Habr for crimes committed in
CSP: The AGJA had been in existence for New initiatives could be born in this way, as Lastly, there was a need to identify those Chad. The AGJA therefore urges the government of Burundi to support this noble ideal.
less than a year. First its aims had to be had been seen by the invitation extended to areas where the AGJA had a comparative
made known, especially in the Francophone the AGJA by the AU. advantage.
In line with its Kilimanjaro Principles, the Africa Group offers its expertise in facilitation and mediation to Burundi,
region. In addition a needs assessment had Thanking the public for their ideas and
to be carried out. In the CAR, a great deal MOC: He was grateful for the suggestions, AM now brought the symposium the ICC, and other relevant actors to ensure that justice for the victims of crimes in Burundi is not sacrificed.
of expectation had been placed on the recommendation to engage in outreach at to a close by asking Master of Ceremonies,
Group. Judicial and civil society had asked the highest level. The Group would just have Joseph Roberts-Mensah, to read out the
the AGJA to undertake capacity building, to look for the right platform. It would be Burundi Statement on behalf of the AGJA.

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Towa rd s a Sy st em of Int e r n at i on al Ju st i c e

denquter sur les crimes les plus graves candidats nationaux aux fonctions de oprationnalise au plus vite possible. le problme de la scurit dautres acteurs attendu. Car la grande majorit des crimes
APPENDIX TO PANEL VI et de poursuivre les auteurs de crimes membres la Cour par arrt du Ministre Il est galement apparu que le processus de la justice (en dehors des victimes), commis en RCA tant de la comptence
Original, unabridged, French-language de guerre et de crimes contre lhumanit de la Justice. doprationnalisation de la CPS est savoir des juges, des procureurs et des des juridictions de droit commun qui
version of Madame Catherine Samba- commis sur le territoire de la Centrafrique Examen et adoption des termes de confront plusieurs difficults pratiques, au officiers de la police judiciaire; travaillent dans un environnement difficile,
Panzas address depuis 2003. rfrences et des profils des postes et des niveau technique, juridique et oprationnel. le besoin pressant de mener davantage il est important de renforcer leurs capacits.
La CPS est unique au monde; elle est candidats nationaux et internationaux aux Il sagit notamment des principaux dfis dactions dinformation et de communication La problmatique de la relation entre la
intgre dans lordre judiciaire centrafricain diffrentes fonctions la Cour. suivants: sur la CPS auprs des parties prenantes et justice pnale et la justice transitionnelle
La responsabilit africaine pour les crimes et le droit applicable est le droit centrafricain. Validation du document de Projet dappui le besoin de rendre justice au plus grand des acteurs nationaux afin dassurer une / justice sociale / amnistie a galement
internationaux: En combinant le renvoi la Cour pnale la CPS. nombre de victimes tout en tenant compte appropriation nationale de la Cour; fait lobjet de proccupations, tout en
internationale (CPI) et la cration dun Examen et ladoption du projet du budget des ralits oprationnelles et des limitations la question de lhritage de la cour pour comprenant que ces mcanismes sont
LA COUR PENALE SPECIALE EN mcanisme national spcifique et renforc, de la phase 1 du fonctionnement de la CPS financires relles de ce tribunal hybride; que le systme judiciaire national soit complmentaires et non pas contradictoires.
REPUBLIQUE CENTRAFRICAINE la RCA ouvre la voie en matire de lutte couvrant les 14 premiers mois et qui slve do limportance dune cartographie des renforc long terme; En rsum, il est apparu que le projet de la
contre limpunit. En effet, la loi sur la Cour USD 7.074.217. Un montant de USD victimes pour viter de fausses attentes; le manqu de personnel qualifi et CPS se met en place progressivement mais
CONTEXTE pnale spciale prvoit sa coopration 5.203.935 a t mobilis. Il comprend une les dfis dune sensibilisation efficace suffisant do la possibilit denvisager que plusieurs personnes ont t tonnes
La Rpublique centrafricaine est plonge avec la Cour pnale internationale (CPI), bonne partie de fonds programmatiques auprs des populations affectes et la lappui et recrutement des magistrats et de ne pas tre au courant des avances
dans une crise profonde depuis le dbut de qui a ouvert une seconde enqute en de la MINUSCA et les contributions des gestion des attentes des populations des greffiers trangers dans le cadre dune dans la mise en place de la Cour.
lanne 2013, caractrise par des violences Rpublique centrafricaine en septembre Pays-Bas, de la France, des Etats-Unis, du affectes pour permettre aux populations assistance technique; Il faut faire plus pour communiquer aux
grande chelle et de crimes graves contre 2014. Ce sera la premire fois galement Programme des Volontaires des Nations de savoir ce que peut et ne peut pas faire les dfis que pose lexistence sur le territoire gens les progrs dans loprationnalisation
les civils ayant fait plus de 3 000 victimes, quune cour hybride est tablie dans une Unies et du PNUD. Il reste mobiliser USD ce genre de tribunaux; centrafricain de plusieurs juridictions : la CPI, de la CPS afin de rassurer leurs attentes.
notamment des centaines de victimes de situation o la CPI est active. 1.870.281. Un financement supplmentaire la problmatique de la stratgie des la CPS et les juridictions ordinaires; La CPS a vritablement besoin de soutien
crimes sexuels. des Etats-Unis a t envisag. LUnion poursuites avec des critres objectifs et La question des droits des accuss et de la au niveau national et international.
Le plus gros dfi est celui de rechercher et de transparents pour que le public sache dfense, notamment le problme du corps Le Groupe Africain pour la Justice et
juger les responsables de ces exactions qui pourquoi certains crimes sont ou ne sont spcial davocats qui vont reprsenter les la Fin de lImpunit peut apporter sa
constituent des graves violations des droits Catherine Samba Panza: Il est en effet apparu au pas poursuivis; prvenus devant la CPS et la loi sur laide modeste contribution par des actions de
humains et du droit international humanitaire. cours des diverses rencontres avec les acteurs de la la ncessit dune stratgie claire et juridictionnelle qui nexistent pas; plaidoyer efficaces, par la mobilisation des
Limpunit qui svit dans le pays depuis des procdures ralistes pour appuyer la problmatique de lappui financier et partenaires techniques et financiers autour
plusieurs dcennies a permis et incit la Justice un enthousiasme palpable pour la CPS et le les victimes, un financement fiable pour technique de la CPS, de lappui politique, technique, juridique et
commission de nombreux crimes. Faire justice sentiment que a CPS doit tre oprationnalise au prendre en compte des rparations aussi Dautres questions se sont concentres sur financier ncessaire loprationnalisation
pour les crimes graves est un impratif pour bien collectives quindividuelles; les aspects substantiels et procduraux du et au bon fonctionnement de la CPS.
une paix vritablement durable en RCA. Ainsi,
plus vite possible. les besoins pratiques scuritaires des cadre juridique de la CPS. Je vous remercie pour votre aimable
des procs justes et quitables ne seraient diffrentes parties prenantes de la CPS, Il en a t ainsi du problme de la attention.
pas seulement une obligation envers les PROCESSUS DE LOPERATIONNALISATION Africaine, la Sude et le Nigeria pourraient savoir la protection des victimes et des coordination entre la CPS et les juridictions
victimes qui ont souffert de crimes atroces, DE LA CPS galement contribuer. tmoins; ordinaires dont lappui est fortement
mais enverraient aussi un signal fort indiquant La mise en place de la CPS seffectue selon Des actions prioritaires restent cependant
que les crimes graves ne seront plus tolrs. une approche progressive. La premire raliser pour rendre oprationnelle dans
Or le systme judiciaire centrafricain souffre phase appuiera loprationnalisation sa premire phase la Cour Pnale spciale.
des consquences de plusieurs annes de immdiate de la police judiciaire, des Il y a le recrutement du Procureur Spcial
conflits et ne dispose que de moyens limits, cabinets dinstruction et du Parquet afin International. A ce propos le Ministre
en termes de personnel et de ressources que les enqutes puissent dmarrer ds de la Justice a mis le vu que ce
matrielles pour enquter sur des crimes que possible. Cette premire phase recrutement se fasse le plutt possible,
complexes impliquant des groupes arms en trois tapes prvue pour durer trois de prfrence, avant la tenue de la table
encore actifs. ans consistera en: appui aux enqutes, ronde de Bruxelles, autrement dit, au mois
Pour lutter contre limpunit de ces exactions ouverture des poursuites et linstruction, doctobre au plus tard. Il semble que ce
commises et restaurer lEtat de droit, un assistance et protection des tmoins et recrutement sera bientt ou est presque
Tribunal Spcial a t cr. des victimes, assistance judiciaire, et la valid. Paralllement, le recrutement de son
Adopte par le Conseil National de sensibilisation de la population. adjoint qui est un national devra aussi se
Transition fin avril 2015, la loi organique n La seconde phase qui sera axe sur faire dans les tous prochains jours.
15.003 portant cration, organisation et lappui aux procs permettra linstallation Un chronogramme prcis des actions
fonctionnement de la Cour Pnale Spciale des chambres dassises et de la chambre mener dans la phase une est dj tabli.
a t promulgue le 03 juin 2015. dappel. Elle est prvue pour durer deux
La cration de la Cour Pnale Spciale est un ans. La dure dexistence de la Cour DEFIS ET PERSPECTIVES
des acquis de la Transition. Les autorits de la Pnale Spciale est donc de cinq ans, La mission du Groupe Africain pour la
transition ont en effet voulu faire de la Cour renouvelable en cas de besoin. Justice et la Fin de lImpunit Bangui en
Pnale Spciale un outil cl de la lutte contre La communaut internationale a jou un Rpublique centrafricaine (RCA) au mois
limpunit. Cette initiative, qui a tmoign de rle considrable dans le processus de de septembre dernier et la confrence
notre engagement fort traduire en justice cration de la CPS, tant par son appui organise par la mission cette occasion le
les auteurs des crimes graves commis technique au processus dlaboration et de 22 septembre 2016 sur le thme : Pourquoi
lencontre des populations, a t salue par promulgation de la loi que par la mobilisation la Cour pnale spciale? Contexte, dfis et
lensemble des organisations et institutions des partenaires techniques et financiers perspectives a t loccasion de rflchir
de protection et de promotion des droits autour de lappui politique, technique et sur loprationnalisation de la Cour pnale
humains. financier ncessaire loprationnalisation spciale et de relever les dfis qui restent
et au bon fonctionnement de la CPS. relever pour que cette Cour puisse devenir
A ce jour, les activits prparatoires une ralit, prte enquter et juger les
PRINCIPALES CARACTERISTIQUES DE LA suivantes ont t ralises grce lappui atrocits qui continuent dtre commises
COUR PENALE SPECIALE des partenaires internationaux: dans le pays.
La Cour Pnale Spciale (CPS) est une Identification des locaux destins Il est en effet apparu au cours des diverses
juridiction hybride: elle est compose recevoir les services de la Cour Pnale rencontres avec les acteurs de la Justice
de 12 magistrats centrafricains et 11 Spciale et des structures qui lui sont et des dbats lors de la confrence
internationaux. Aux termes de larticle 3 de rattachs; un enthousiasme palpable pour la CPS
la loi, la Cour pnale spciale sera charge Cration du comit de slection des et le sentiment que la CPS doit tre Stephen Rapp and Adewale E. Iyanda

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CONTACT
bettina aMbach
Director, Wayamo foundation
rietzestr. 21, 10409 Berlin, germany
tel. +49 30 921 455 45
info@wayamo.com www.wayamo.com
info@theafricagroup.org www.theafricagroup.org