BookPDF Available

International Criminal Justice in Africa: Issues, Challenges and Prospects

Authors:
HJ van der Merwe
Gerhard Kemp
(eds)
International
Criminal Justice
in Africa
Issues, Challenges
and Prospects
Strathmore University Press is the publisher of Strathmore University, Nairobi.
INTERNATIONAL CRIMINAL JUSTICE IN AFRICA
Copyright © Konrad Adenauer Stiftung
ISBN 978-9966-021-16-8
Year of publication 2016
Cover design and Layout by John Agutu
Email: agutujo@yahoo.com
Printed by Colourprint Ltd., P.O. Box 44466 – 00100 GPO Nairobi
iii
CONTENTS
List of authors ................................................................................................. v
About the African Group of Experts on International Criminal Justice ......... vii
Abbreviations .................................................................................................. ix
List of Cases .................................................................................................... xi
Legal Instruments ............................................................................................ xvii
Introduction
HJ van der Merwe ................................................................................ 1
Pursuing Al Bashir in South Africa: Between ‘Apology and Utopia’
Jerusha Asin.......................................................................................... 5
Prosecuting Crimes Related to the 2007 Post-Election Violence
in Kenyan Courts: Issues and Challenges
Evelyne Owiye Asaala .......................................................................... 27
International Criminal Justice as Integral to Peacebuilding in Africa:
Beyond the ‘Peace v Justice’ Conundrum
Ottilia Anna Maunganidze .................................................................... 47
Foreign Aid toward Extraordinary Rendition: An African Perspective
Jeanne-Mari Retief ............................................................................... 63
The International Criminal Court and the Fight against Impunity in Africa:
Current Challenges
Eugène Bakama Bope ........................................................................... 85
Assessing the Role of Indirect Enforcement in the ‘Project’ of International
Criminal Justice: Some Lessons from South Africa
HJ van der Merwe ................................................................................ 115
Whither International Criminal Justice in Africa?
Emilia Siwingwa ................................................................................... 137
Bibliography ................................................................................................... 161
v
LIST OF AUTHORS
Asaala, Evelyne Owiye — LLB (Hons) (UON), LLM (UP), PhD Candidate
University of Witwatersrand and Lecturer, School of Law, University of Nairobi.
Asin, Jerusha — LLB (Moi), LLM (Exeter); Advocate of the High Court of Kenya,
Assistant Lecturer, Strathmore Law School.
Bakama, Eugène — LLB LLM (Congo Protestant University), PhD Candidate at
the University of Aix-Marseille (France), Chairman of the Club des amis du droit
du Congo, DRC.
Kemp, Gerhard — Professor of Criminal Law and International Criminal Law,
Stellenbosch University, South Africa; Director and Executive Committee Member,
Institute for Justice and Reconciliation, Cape Town; Advocate of the High Court of
South Africa.
Maunganidze, Ottilia Anna — LLB (Rhodes University), LLM (UNISA), PDIS
(Rhodes University), LLD Candidate (UNISA); Researcher on international
criminal justice and counter-terrorism in the Transnational Threats and International
Crime Division of the Institute for Security Studies.
Retief, Jeanne-Mari — LLB LLM (UP); Admitted Attorney; Legal Project
Facilitator and Researcher, CALIBRICS.
Siwingwa, Emilia — BSc (Howard), JD (W. Michigan), LLM (Turin) and Advocate
of the High Court of Tanzania.
Van der Merwe, HJ — BAcc, LLB, LLM, LLD (Stellenbosch University); Lecturer,
University of the Western Cape, Cape Town, South Africa.
vii
RULE OF LAW PROGRAMME
FOR SUB SAHARAN AFRICA
About the African Group of Experts on
International Criminal Justice
About the group:
The African Group of Experts on International Criminal Justice was formed in
2010 under the auspices of the Multinational Development Policy Dialogue of the
Konrad-Adenauer-Stiftung (KAS) based in Brussels, Belgium. In 2012, the group’s
activities were transferred to the Rule of Law Programme for Sub Saharan Africa
based in Nairobi, Kenya. The group meets annually to discuss matters related to
international criminal justice on the African continent. The members of the group
are drawn from various parts of Sub-Saharan Africa and consist of academics and
legalpractitionersholdingexpertiseintheeldofinternationalcriminallaw.
Mission statement:
The group’s primary focus is to produce a regular edited publication to serve as
an annual compendium of international criminal justice on the African continent.
The publication is created by Africans for a global readership and aims to provide
contemporaneous, diverse and critical perspectives from within Africa regarding
important developments and issues relating to the prosecution of international and
transnationalcrimesonthecontinent.Thepublicationaimstoreectthecharacter
of the modern, complementarity-centred international criminal justice system in
that its focus falls not only on supranational (continental and regional) develop-
ments, but also on developments at state level within Sub-Saharan Africa. Fur-
thermore,thepublication aimstoreectbothlegal andextra-legaldevelopments
in order to provide a holistic understanding of the project of international criminal
justiceasitaectsAfricaandAfricansaswellasthechallengesfacingthisproject.
‘The views expressed in these articles are solely those of the authors and do not
necessarily represent those of Konrad Adenauer Stiftung’.
ix
ABBREVIATIONS
ANC African National Congress (South Africa)
AU African Union
CAT Convention against Torture
CIA Central Intelligence Agency (US)
DPP Director of Public Prosecutions
DRC Democratic Republic of the Congo
GWOT Global War on Terror
ICC International Criminal Court
ICC-ASP Assembly of States Parties to the Rome Statute
ICD International Crimes Division of the High Court (Kenya or
Uganda)
ICJ International Court of Justice
ICL international criminal law
ICRC International Committee of the Red Cross
ICTJ International Centre for Transitional Justice
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the Former Yugoslavia
(International Tribunal for the Prosecution of Persons Responsible
for Serious Violations of International Humanitarian Law
Committed in the Territory of the Former Yugoslavia)
IDMC Internal Displacement Monitoring Centre
IHL international humanitarian law
xInternational Criminal Justice in Africa
IMT International Military Tribunal (Nuremberg)
KHRC Kenya Human Rights Commission
KNDRC Kenya National Dialogue and Reconciliation Committee
KPTJ Kenyans for Peace Truth and Justice
LRA Lord’s Resistance Army (Uganda)
ODM Orange Democratic (Movement) Party (Kenya)
OHCHR OceoftheUnitedNationsHighCommissionerforHuman
Rights
OTP OceoftheProsecutor
PCLU Priority Crimes Litigation Unit (South Africa)
PEV post-election violence (Kenya)
SALC Southern Africa Litigation Centre
SCSL Special Court for Sierra Leone
SGBV sexual and gender based violence
TJRC Truth Justice and Reconciliation Commission (Kenya)
UN United Nations
UNOCHA OceforCoordinationofHumanitarianAairsoftheUnited
Nations
UNGA United Nations General Assembly
UNSC United Nations Security Council
UNSG United Nations Secretary General
US United States of America
xi
LIST OF CASES
International Criminal Court (ICC)
Décision relative à la demande d’autorisation d’ouvrir une enquête dans le cadre
de la situation au Kenya, rendu en application de l’article 15, Chambre prélimi-
naire II, ICC-01/09-19-corr-tFRA.
Prosecutor v Al Bashir (Decision informing the United Nations Security Council
and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s
recent visit to Djibouti) ICC-02/05-01/09-129 (12 May 2011).
Prosecutor v Al Bashir (Decision informing the United Nations Security Council
and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s
presence in the territory of the Republic of Kenya) ICC-02/05-01/09-107 (27 Au-
gust 2010).
Prosecutor v Al Bashir, Decision following the Prosecutor’s request for an order
further clarifying that the Republic of South Africa is under the obligation to imme-
diately arrest and surrender Omar Al Bashir, (ICC-02/05-01/09), Pre-Trial Cham-
ber, 13 June 2015.
Prosecutor v Al Bashir, Decision informing the United Nations Security Council
and the Assembly of the State Parties to the Rome Statute about Omar Al Bashir’s
recent visit to the Republic of Chad (27 August 2010) ICC-02/05-01/09109.
Prosecutor v Al Bashir, Decision on the non-compliance of the Republic of Chad
with the cooperation requests issued by the Court regarding the arrest and surren-
der of Omar Hassan Al Bashir (20 March 2013) ICC-02/05-01/09.
Prosecutor v Al Bashir, Decision pursuant to Article 87(7) of the Rome Statute
on the failure by the Republic of Malawi to comply with the cooperation requests
issued by the Court with respect to the arrest and surrender of Omar Hassan Al
Bashir ICC-02/05-01/09-139 (12 December 2011).
xii International Criminal Justice in Africa
Prosecutor v Al Bashir, Decision regarding Omar Al Bashir’s potential travel to the
United States of America (18 September 2013) ICC-02/05-01/09.
Prosecutor v Al Bashir, On the cooperation of the Democratic Republic of the Con-
go regarding Omar Al Bashir’s arrest and surrender to the court ICC 02/05-01/09
(9 April 2014).
Prosecutor v Al Bashir, Prosecution’s urgent notication of travel in the case of The
Prosecutor v Omar Al Bashir (29 April 2014) ICC-02/05-01/09.
Prosecutor v Al Bashir, Second warrant of arrest for Omar Hassan Ahmad Al Ba-
shir (12 July 2010) ICC-02/05-01/09.
Prosecutor v Al Bashir, Warrant of arrest for Omar Hassan Ahmad Al Bashir (4
March 2009) ICC-02/05-01/09.
Prosecutor v Dominic Ongwen, Decision postponing the date of the conrmation of
charges hearing, ICC-02/04-01/15.
Prosecutor v Francis Karimi Muthaura, Uhuru Muigai and Mohammed Hussein
Ali, ICC-01/09-02/11, Pre-Trial Chamber II, Decision on the Conrmation of
Charges pursuant to Article 61 (7) (a) and (b) of the Rome Statute.
Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed
Hussein Ali, Decision on the application by the Government of Kenya challenging
the admissibility of the case pursuant to Article (19)(2)(b) of the Statute, (30 May
2011) ICC-01/09-02/11-96.
Prosecutor v Germain Katanga ICC-01/04-01/07.
Prosecutor v Jean Pierre Bemba Gombo ICC-01/05-01/08.
Prosecutor v Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen
ICC-02/04-01/05.
Prosecutor v Katanga and Ngudjolo, Ruling on conrmation of charges, ICC-
01/04-01/07-717.
Prosecutor v Kenyatta, Partially Dissenting Opinion of Judge Ozaki (18 October
2013) ICC-01/09-02/11.
Prosecutor v Lubanga, Prosecutor’s information on further investigations (28 June
2006) ICC-01/04-01-06-170.
Prosecutor v Lubanga, Résumé du jugement (14 March 2012) ICC -01/04-01/06-
2842-tFra.
xiii
List of Cases
Prosecutor v Mathieu Ngudjolo Chui, Judgment pursuant to Article 74 (18 Decem-
ber 2012) ICC-01/04-02/12-3.
Prosecutor v Mbarushimana, Decision on the conrmation of charges (16 Decem-
ber 2011) ICC-01/04-01/10.
Prosecutor v Mbarushimana, Decision on the conrmation of the charges (10 De-
cember 2011) ICC-01/04-01/10.
Prosecutor v Ntaganda, Decision pursuant to arts 61(7)(a) and (b) of the Rome
Statute on the charges of the Prosecutor against Bosco Ntaganda (9 June 2014)
ICC-01/04-02/06.
Prosecutor v Omar Hassan Al Bashir ICC-02/05-01/09.
Prosecutor v Saif Al-Islam Gadda and Abdullah Al-Senussi, Judgment on the ap-
peal of Mr Abdullah Al-Senussi against the decision of Pre-Trial Chamber I of 11
October 2013 entitled ‘Decision on the admissibility of the case against Abdullah
Al-Senussi,’ (24 July 2014).
Prosecutor v Sylvestre Mudacumura (13 July 2012) ICC-01/04-01/12.
Prosecutor v Thomas Lubanga Dyilo, Decision concerning Pre-Trial Chamber I
decision of 10 February 2006 and the incorporation of documents into the record of
the case against Mr. Thomas Lubanga Dyilo (24 February 2006) ICC-01/04-01/06.
Prosecutor v Thomas Lubanga Dyilo, Judgement on the appeal of Mr. Thomas
Lubanga Dyilo against his conviction (1 December 2014) ICC-01/04-01/06 A5.
Prosecutor v Thomas Lubanga Dyilo, Judgment pursuant to Article 74 (14 March
2012) ICC-01/04-01/06.
Prosecutor v Uhuru Muigai Kenyatta ICC 01/09-02/11.
Prosecutor v Uhuru Muigai Kenyatta, Decision on withdrawal of charges against
Kenyatta (13 March 2015) Trial Chamber V(B), ICC-01/09-02/11.
Prosecutor v William Samoei Ruto and Joshua Arap Sang ICC 01/09-01/11.
Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang,
Decision on the application by the Government of Kenya challenging the admissi-
bility of the case pursuant to Article 19(2)(b) of the Statute (30 May 2011) Pre-Trial
Chamber II, ICC-01/09-01/11-101.
Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang,
Decision on the conrmation of charges pursuant to Article 61(7)(a) and (b) of the
Rome Statute, Pre-Trial Chamber II, ICC-01/09-01/11.
xiv International Criminal Justice in Africa
Ruling of the Appeals Chamber, ruling of 13 July 2006, Judgment on the appeal
by the Prosecutor against the decision of Trial Chamber I entitled ‘Decision on the
prosecutor’s request for the issuance of arrest warrants under Article 58’.
Situation in the Republic of Kenya, Decision pursuant to Article 15 of the Rome
Statute on the authorization of an investigation into the situation in the Republic of
Kenya (31 March 2010) Pre-Trial Chamber II, ICC-01/09.
Decisions from other international jurisdictions
Prosecutor v Tihomir Blaškic, Judgment on the request of the Republic of Croatia
for review of the decision of Trial Chamber II of 18 July 1997 (29 October 1997)
IT-95-14-AR108bis.
El-Masri v The Former Yugoslav Republic of Macedonia (13 December 2012) Eu-
ropean Court of Human Rights, Application no 39630/09.
Questions relating to the obligation to prosecute or extradite (Belgium v Senegal),
ICJ, 20 July 2012.
Democratic Republic of the Congo v Belgium (The “Arrest Warrant” case), Judg-
ment, ICJ Reports 2002.
Municipal cases
Constitutional Reference Number 12 of 2010, High Court of Kenya at Mombasa,
23rd November 2010.
Geuking v President of the Republic of South Africa and Others 2004 (9) BCLR
895 (CC).
International Centre for Policy and Conict and 5 Others v the AG and 4 Oth-
ers Constitutional and Human Rights Division Petition 552 of 2012 (2013) eKLR
(Kenya).
Jeebhai and Others v Minister of Home Aairs and Another 2009 (5) SA 54 (SCA)
31 March 2009 (South Africa).
Jeebhai v Minister of Home Aairs and another 2007 (4) ALL SA 773 (T) (South
Africa).
Judgment in Göring et al before the International Military Tribunal (IMT) at
Nuremberg, 1946.
Minister of Justice and Another v Additional Magistrate, Cape Town 2001 (2)
SACR 49 (C).
xv
List of Cases
Nairobi High Court Criminal Case No 9 of 2008; (2010) eKLR.
National Commissioner of the South African Police v Southern African Human
Rights Litigation Centre and another (Dugard and others as amici curiae) 2014 (12)
BCLR 1428 (CC).
President of the Republic of South Africa v Quagliani 2009 (2) SA 466 (CC).
R v Bow Street Stipendiary Magistrate (Bartle) ex parte Pinochet Ugarte (No.2)
(1999) 1 All ER 577.
R v Bow Street Stipendiary Magistrate ex parte Pinochet Ugarte (1999) 4 All ER
897 (Pinochet I).
R v Bow Street Stipendiary Magistrate ex parte Pinochet Ugarte (No. 3) (1999) 2
All ER 97 (Pinochet III) 905H.
R v Eric Akeyo Otieno, Criminal Appeal No 10 of 2008.
R v Jackson Kibor, Nakuru Magistrate’s Court, CR 96/08 (Kenya).
R v James Wafula Khamala, Bungoma High Court Criminal Appeal No 9 of 2010.
R v John Kimita Mwaniki, Nakuru High Court Criminal Case No 116 of 2007.
R v Julius Cheruiyot Kogo, R v Erick Kibet Towett and Simion Kipyegon Chepk-
wony.
R v Paul Khamala, Kakamega High Court Criminal Appeal No 115 of 2008.
R v Peter Kipkemboi Rutto alias Saitoti, Nakuru High Court Criminal Case No 118
of 2008.
R v Philemon Kipsang Kirui, Kericho High Court Criminal Appeal No 59 of 2009.
R v Stephen Kiprotich Leting and others, Nakuru High Court Criminal Case No 34
of 2008.
South African Litigation Centre and Another v National Director of Public Pros-
ecutions and Others (North Gauteng High Court) Case No. 77150/09, 8 May 2012.
Southern Africa Litigation Centre v Minister of Justice and Constitutional Devel-
opment and others 2015 (9) BCLR 1108 (GP).
Supreme Court of Kenya Petitions 3, 4 and 5 of 2013; Reports on re-tally of 22
polling stations in Petition 5 of 2013 and Report of the scrutiny of 33 400 polling
stations.
The Kenya Section of the International Commission of Jurists v the Attorney Gen-
eral, The Minister of State for Provincial Administration and Internal Security,
Final Judgment, eKLR; 28 November 2011.
US v Khadr (2011) ONCA 358 Court of Appeal for Ontario (Canada).
xvii
LEGAL INSTRUMENTS
International conventions and agreements
(European) Convention for the Protection of Human Rights and Fundamental Free-
doms (1950) 213 UNTS 222.
African Charter on Human and Peoples’ Rights (1981) 1520 UNTS 217.
American Convention on Human Rights (1969) 1144 UNTS 123.
Charter of the United Nations (1945) 1 UNTS XVI.
Convention against Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment (1984) 1465 UNTS 85.
Convention on the Prevention and Punishment of the Crime of Genocide (1948) 78
UNTS 277.
European Council, Agreement between the International Criminal Court and the
European Union on Cooperation and Assistance (2006) OJ L115/50.
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick
in Armed Forces in the Field of 12 August 1949 (GC I) 75 UNTS 31.
Geneva Convention for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea of 12 August 1949 (GC II) 75
UNTS 85.
Geneva Convention Relative to the Protection of Civilian Persons in Time of War
of 12 August 1949 (GC IV) 75 UNTS 287.
Geneva Convention Relative to the Treatment of Prisoners of War of 12 August
1949 (GC III) 75 UNTS 135.
ICC-ASP, Assembly Procedures Relating to Non Cooperation.
ICGLR Pact on Security, Stability and Development for the Great Lakes Region
xviii International Criminal Justice in Africa
(Protocol for the Prevention and the Punishment of the Crimes of Genocide, War
Crimes and Crimes against Humanity and all Forms of Discrimination) (2006), 46
ILM 173.
ICTR Statute (UNSC Resolution 955 (1994) on establishment of an International
Tribunal for Rwanda and adoption of the Statute of the Tribunal).
International Covenant on Civil and Political Rights (ICCPR) 999 UNTS 171.
Negotiated Relationship Agreement between the International Criminal Court and
the United Nations (concluded 22 July 2004) ICC-ASP/3/Res.1.
Protocol Additional to the Geneva Conventions of 12 August 1949 Relating to the
Protection of Victims of InternationalArmed Conicts (Protocol I) (1977) 1125
UNTS 3.
Protocol Additional to the Geneva Conventions of 12 August 1949 Relating to the
ProtectionofVictimsof Non-InternationalArmed Conicts (Protocol II) (1977)
1125 UNTS 609.
Rome Statute of the International Criminal Court (1998) 2187 UNTS 90.
Statute for the Residual Special Court for Sierra Leone.
Statute for the Special Court for Sierra Leone (Agreement between the United Na-
tions and the Government of Sierra Leone on the Establishment of a Special Court
for Sierra Leone, 2178 UNTS 138, 145.
Universal Declaration of Human Rights G.A. Res. 217A (III) U.N. Doc A/810.
Vienna Convention on the Law of Treaties (1969) 1155 UNTS 331.
Municipal legislation
Agreement on Accountability and Reconciliation (between the Government of the
Republic of Uganda and the Lord’s Resistance Army/Movement).
Constitution of Kenya (2010).
Constitution of the Republic of South Africa (1996).
Criminal Procedure Act, 1977 (Act 51 of 1977) (South Africa).
Extradition Act 67 of 1962 (South Africa).
High Court (International Crimes Division) Practice Directions, Legal Notice No.
10 of 2011, Legal Notice Supplements, Uganda Gazette 38 (CIV) 31 May 2011.
Implementation of the Geneva Conventions Act 8 of 2012 (South Africa).
xix
Legal Instuments
Implementation of the Rome Statute of the International Criminal Court Act 27 of
2002 (South Africa).
International Crimes Act (ICA) (Kenya).
Penal Code of Kenya (Cap 63 Laws of Kenya).
Prevention and Combating of Torture of Persons Act 13 of 2013 (South Africa).
Protection of Constitutional Democracy against Terrorist and Related Activities
Act 33 of 2004 (South Africa).
ForeignAairsReformandRestructuringActof1998,PublicLaw105-277(US).
Truth Justice and Reconciliation Commission (TJRC) Act (Kenya).
Vetting of Judges and Magistrates Act of 2011 (Kenya).
1
INTRODUCTION
HJ van der Merwe*
This book contains a collection of papers by members of the Konrad Adenauer
Stiftung’s African Group of Experts on International Criminal Justice. The
book is the third of its kind1 and follows in the footsteps of its predecessors
by drawing together a number of wide-ranging and contemporaneous perspectives
relating to the prosecution of international crime on the African continent.2 This
year’s publication contains seven contributions from new and old members of
thegroup. Collectively,theyoeranAfricanperspective regardingtheprospects
and challenges facing the project of international criminal justice in Africa. The
contributions cover situations and cases from across the continent as well as
larger debates and contemporary issues aecting and shaping the application of
international criminal law in Africa.
This year, as in previous years, the project of international criminal justice
ndsitselfon the defensiveontheAfricancontinent.Atthecoreof this conict
lies the fractured relationship between the International Criminal Court (ICC or the
Court) and the African Union (AU) (spearheaded by a number of African states,
especially,Sudan, Kenya and, most recently, SouthAfrica). This state of aairs
would have been hard to predict in light of the amount of support for the ICC
among African states when the Court was established in 2002. But we have learned
* BAcc LLB, LLM, LLD (Stellenbosch University). Lecturer at the University of the Western Cape and
Coordinator/Lead Consultant of the Konrad Adenauer Stifting’s African Group of Experts on Interna-
tional Criminal Justice.
1 K Ambos and OA Maunganidze (eds) Power and prosecution: Challenges and opportunities for in-
ternational criminal justice in Sub-Saharan Africa (Universitätsverlag Göttingen 2012) and B van der
Merwe (ed) International criminal justice in Africa: Challenges and opportunities (Konrad Adenauer
Stiftung 2014).
2 Thecontributionsinthisboo�generallydonotreectondevelopmentsrelevanttointernationalcrimi-Thecontributionsinthisboo�generallydonotreectondevelopmentsrelevanttointernationalcrimi-
nal justice in Africa that occurred after 30 August 2015.
2International Criminal Justice in Africa
that the legal-political landscape can change very quickly. In June 2015, Navi Pil-
lay commented that ‘[…] it is extremely unlikely that South Africa or any African
country will withdraw from the ICC’ since ‘[a] majority of African countries played
an enormous role in asking for this court.’3 Many, including myself, would not
have hesitated to support this assertion. Yet, as of writing, the threat of withdrawal
remains a very real one.
The African continent seems to have split into two opposing camps, namely,
those criticising the way that international criminal law is enforced (especially en-
forcement of the Rome Statute of the ICC (Rome Statute)) and those defending it.
Thisis,o course, an oversimplicationofthematter.Nonetheless,itcannot be
denied that – as the calls of opponents and proponents alike become louder – the
calls of those of observers with a more objective and reconciliatory point of view
are drowned out. Crucially, what seems to be missing is a genuine, broad-ranging
and constructive debate between the opposing camps. The absence of such a de-
bateisperhapsbestexempliedbythedecisionoftheAfricanNationalCongress
(ANC), the ruling political party in South Africa (traditionally a strong proponent
of the ICC), to withdraw its support for the ICC – a decision that John Dugard has
called ‘defeatist, naïve and reactionary.’4
In a speech to the Assembly of State Parties, South Africa’s International Re-
lations Minister, Maite Nkoana-Mashabane, openly questioned the impartiality of
the ICC:
We ask ourselves, as have many, why no investigations have been opened in Afghanistan,
Iraq and Palestine after long periods of preliminary analysis, notwithstanding clear
evidence of violations. Is it because those investigations have the potential to implicate
the ‘great powers’?5
Hennie Strydom has argued that the ANC’s opposition to the ICC is disin-
genuous.6 In reality, this opposition is an expression of its dissatisfaction with the
UnitedNationssystem,particularlythepowerofvetoaordedtotheveperma-
nent members of the United Nations Security Council. Strydom also points out that
South Africa’s international legal obligations towards the prosecution of interna-
tional crime extend beyond the ICC. One is left with the impression that the South
African Government is trying to make a political point with its reaction. If so, the
3 FHaajee‘FormerICCjudgespea�sofOmarAlBashircase’News24 28 June 2015.
4 JDugard,‘HowAfricacanxtheInternationalCriminalCourt’AllAfrica 28 October 2015.
5 J Evans, ‘SA questions impartiality of International Criminal Court’ News24 20 November 2015.
6 H Strydom, ‘Leaving the ICC won’t absolve South Africa of its legal obligations’ ENCA 13 November
2015.
3
Introduction
only inference is that the making of political points is regarded as more important
that the interests of victims in Africa.
The ANC’s decision, and the manner in which it was reached, provides clear
evidence of the rift between opposing camps as well as the erosion of the common
groundbetweenAfricanstatesandtheICCthathadseemedsormlyestablished
when the ICC came into being. A remarkable and saddening feature of the African
critique of the ICC is that - while the debate revolves mainly around issues, such
as, political bias, immunity for African heads of state, Western imperialism and
African solidarity (not to mention the notable prevalence of political grandstand-
ing) – arguably the most important reasons for the establishment of an alternative
and internationalised system of criminal accountability, namely, rights and interest
ofvictims,hassomehowownoutthewindow.
The criticisms of the ICC from within Africa must not, however, be taken to
represent a wholesale abandonment of the ideals of international criminal justice
inAfrica.Thetruestateofaairsis,asalways,muchmorenuancedandcomplex
than it is often portrayed. Other developments from around the continent indicate
supportforeortstoensureaccountabilityinrespectofinternationalcrimes.Inthis
regard, the following developments deserve to be highlighted:7
• In January 2015, Lord’s ResistanceArmy leader Dominic Ongwen –
wanted by the ICC since 2005 – was surrendered to the ICC. Interesting-
ly,hissurrenderwastheresultofeortsbyinter alia the United States
and the AU, both of which are generally critical of the ICC.
• ThetrialofCongolesecommanderBoscoNtagandaopenedinSeptem-
ber 2015. Ntaganda has been charged with war crimes and crimes against
humanity, including, murder, rape and sexual slavery, committed in the
Ituri district of the Democratic Republic of Congo between 2002 and
2003.
• Alsoin September2015,AhmadAlFaqiAlMahdiwassurrendered to
theICCbyNigerandbecametherstpersonindictedforculturalcrimes
with an international element. He faces charges of war crimes for alleg-
edly directing attacks against buildings dedicated to religion and histori-
cal monuments in Timbuktu, Mali.
7 See generally Human Rights Watch, ‘Memorandum to African state parties of the International Crimi-See generally Human Rights Watch, ‘Memorandum to African state parties of the International Crimi-
nal Court for the Assembly of State Parties 14th Session’ <https://www.hrw.org/news/2015/11/17/mem-
orandum-african-states-parties-international-criminal-court-assembly-states> accessed 19 November
2015.
4International Criminal Justice in Africa
• Another signicant development from an African perspective is that
theOceof the Prosecutor(OTP)hasta�en positive stepstowardthe
investigation of international crimes committed outside of Africa. In
October 2015, the OTP made an application to the Court for the opening
of an investigation in relation to international crimes allegedly committed
in Georgia, raising the prospect of the rst ICC investigation beyond
Africa. The OTP has also continued its preliminary examinations in other
situations (Afghanistan, Colombia, Iraq, Palestine and Ukraine).
Once again, African conicts, situations and politics (many of which are
discussed in this book) have served to highlight the limitations of international
criminaljustice.Itissometimestooeasilyforgottenthattheeldofinternational
criminal law is, historically speaking, still very much in its infancy. From this per-
spective, it is understandable that rules and modes of enforcement of ICL are still
insomewhatofastateofux.Whilethereare,andwillbedisagreementsaboutthe
‘means,’ the ultimate ‘end’ of international criminal law – the underlying ideal of
putting an end to the culture of impunity for international crimes – should remain
as strongly supported as ever.Africa and Africans in particular stand to benet
fromtheattainmentofafairandecientsystemofinternationalcriminallaw.This
should be regarded as the fundamental consideration in any debate on the scope and
manner of application of international criminal law in Africa.
5
PURSUING AL BASHIR IN SOUTH AFRICA:
BETWEEN ‘APOLOGY AND UTOPIA
JerusHa asin*
Abstract
Few things elicit a more vehement response from the Oce of the Prosecutor (OTP)
of the International Criminal Court (ICC) than allegations that decisions made by
the Oce are subject to political considerations. The OTP publicly ascribes to the
ideological conception of the Court as a manifestation of uncompromising legalism.
Yet, the twin threads of legalism and realism were deliberately and closely woven
together into the fabric of the Rome system of justice and have found expression
in the continuing conundrum faced by the Court in securing state co-operation to
facilitate its judicial mandate, especially in the execution of arrest warrants. The
single most spectacular expression of the ‘reality decit’ of international criminal
law has been the staging of the ‘Great Escape’ by President Omar Al Bashir, the
subject of ICC arrest warrants, from Johannesburg, South Africa, in June 2015,
during an African Union Summit.
This paper considers that the inability of the ICC to persuade other state parties, third
states, the Security Council and even high ranking ocials of the United Nations
to apply consistent, sustained international pressure to execute outstanding arrest
warrants issued by the Court, even after referral by the Security Council points to
a deeper malaise permeating the state cooperation regime under the Rome Statute
of the ICC (Rome Statute). It is now apparent that the conict between law and
politics inherent in securing state cooperation with the Court cannot be mediated
by appeal to strictly legalist arguments. Accordingly, this study joins the dialogue
* LLB (Moi) LLM (Exeter); Advocate of the High Court of Kenya, Assistant Lecturer at Strathmore Law
School.
6Jerusha Asin
on the ICC by considering whether the state cooperation regime under the Rome
Statute enacts international politics within the classic Koskenniemian meaning.
Ultimately, the paper ponders whether the state cooperation regime under the
Statute and the record of state practice in cooperating with the Court to date
demands that the false necessities of uncompromising legalism be discarded in
favour of strategic legalism within the statutory frame of the Prosecutor’s mandate
to seek state cooperation with the Court.
1 Introduction
‘You are my creator, but I am your master; obey!’1
In contemporary literature on international institutions,2 the tale of Franken-
stein stands as a cautionary tale of the manner in which the agent does not always
heed the call of the principal and may eventually overreach the principal by means
of deeds, which are inimical to the interests of the principal.3 Logically, the re-
ceived wisdom is that once international institutions are imbued with legal person-
ality, their interests and those of their creators (member states) diverge.
With reference to the International Criminal Court (ICC or the Court), no-
where has this divergence in interests been more apparent than in the continuing
conundrum faced by the Court in securing state co-operation to facilitate its judicial
mandate,4 especially in the execution of arrest warrants, the most prominent of
which to date has been that of the serving head of state of the Republic of Sudan,
President Hassan Al Bashir.5 The referral of the situation in Darfur in 2005 by the
Security Council acting under the auspices of Chapter VII of the United Nations
Charter ostensibly created an agency relationship between the Security Council and
the Court, in which international judicial intervention was deemed by the Council
to be necessary in order to maintain international peace and security.6
1 MW Shelley, Frankenstein (1818) 205.
2 J Klabbers, An introduction to international institutional law (Cambridge University Press 2002) Pref-
ace.
3 Compare J Alvarez, International organizations as law-makers (Oxford University Press 2005) 585.
4 ICC-ASP, Report of the Court on cooperation (9 October 2013) ICC-ASP/12/35, paras 10-26.
5 Prosecutor v Al Bashir, Warrant of arrest for Omar Hassan Ahmad Al Bashir (4 March 2009) ICC-
02/05-01/09; Prosecutor v Al Bashir, Second warrant of arrest for Omar Hassan Ahmad Al Bashir (12
July 2010) ICC-02/05-01/09.
6 UNSC Res 1593 (31 March 2005) UN Doc S/RES/1593, para 1.
7
Pursuing Al Bashir in South Africa: Between ‘Apology and Utopia’
However, the agency relationship between the Court and the Security Coun-
cil has soured incredibly in the period since the initial issuance of the warrant
of the arrest for Omar Al Bashir and three others for crimes against humanity
on 4 March 2009 and subsequently on 12 July 2010 for genocide. To date, the
Prosecutor has issued a total of 21 reports to the Security Council on the situa-
tion in Darfur,7 with 10 of these communications trenchantly cataloguing various
instances of non-cooperation by the Government of Sudan and other states party
to the Rome Statute of the ICC (Rome Statute) and urging the Council to take the
appropriate action against these states.8 Indeed, in December 2014, the Prosecutor
mordantly observed that:
ItisbecomingincreasinglydicultformetoappearbeforeyoutoupdateyouwhenallI
am doing is repeating the same things I have said over and over again, most of which are
well known to this Council… In the almost ten years that my Oce has been reporting
to this Council, there has never been a strategic recommendation provided to my Oce,
neither have there been any discussions resulting in concrete solutions for the problems
we face in the Darfur situation. We nd ourselves in a stalemate that can only embolden
perpetrators to continue their brutality.9 [Emphasis added]
The Darfur referral, however, appears to have been overreached by other
conict resolution alternatives pursued by the Security Council in Sudan, all of
which depend upon the continued cooperation of the Sudanese Government headed
by President Al Bashir.10 The Security Council had proved either unwilling and/or
unable, within the ordinary meaning of those terms, to buttress the Darfur referral
by exacting state compliance in respect of the arrest and surrender of Al Bashir. The
recalcitrance, both by the Council and by states, has manifested itself in various
ways and has compelled even the Oce of the Prosecutor (OTP) to excoriate
high level United Nations (UN) ocials for their ‘unnecessary contact’ with Al
Bashir and members of his Government, even while they are subject to warrants
of arrest.11 For their part, the judges of the Court have all but termed the Council’s
referral of the Darfur situation as an exercise in futility because of the Council’s
7 ICC-OTP, 21st Report of the Prosecutor of the International Criminal Court to the UN Security Council
Pursuant to UNSCR 1593(2005) (29 June 2015).
8 Ibid.
9 ICC-OTP, Statement to the United Nations Security Council on the Situation in Darfur pursuant to
UNSCR 1593(2005) 12 December 2014.
10 K Rodman, ‘Justice as a dialogue between law and politics: Embedding the International Criminal
Courtwithinconictmanagement and peace building’(2014) 12 Journal of International Criminal
Justice 437, 447.
11 See ICC-OTP, 19th Report of the Prosecutor of the International Criminal Court to the United Nations
Security Council pursuant to UNSCR 1593 (2003) (23 June 2014), para 9.
8Jerusha Asin
lackadaisical approach to enforcing the Court’s requests for cooperation that have
gone unheeded.12
The above situation has been exacerbated by the current hostility between the
Court and numerous member states of the African Union (AU), spurred by the infa-
mous resolution of July 2009 that blatantly urged its members to refuse to cooperate
with the Court in respect of the arrest warrant issued against Omar Al Bashir.13 The
said AU resolution has visibly impacted on the execution of requests for coopera-
tion with the Court in connection with Al Bashir.14 The most recent manifestation
of this was the dramatic ‘Great Escape’ by Al Bashir from Johannesburg in South
Africa during the 25th AU Summit held in June 2015 with the apparent complicity
of the South African Government.15
This paper proceeds on the premise that the establishment of the Court as
a legalist institution has not enabled it to transcend the biases, compromises and
conictsinherentinthepoliticsofstatecooperation,16 where politics in that sense
refers to decision-making on the basis of rational calculations of self-interest.17
Further, the legalistic conception of the Court as an ‘empire of law’ secluded
from historical and political realities18 has obscured critical acknowledgment and
appraisal of its limitations19 and the contradictions that are built into its framework.20
For the sake of clarity, the term ‘legalist’ as used in this paper derives from
theterm legalism, persuasively dened by the politicaltheoristJudith Sh�lar as
‘the ethical attitude that holds moral conduct to be a matter of rule-following and
moral relationships to consist of duties and rights determined by rules.’21 The core
of legalism lies in the utter disavowal of any participation in political activity, such
12 Prosecutor v Al Bashir, Decision on the non-compliance of the Republic of Chad with the cooperation
requests issued by the Court regarding the arrest and surrender of Omar Hassan Al Bashir (20 March
2013) ICC-02/05-01/09, para 22.
13 Decision on the meeting of African states parties to the Rome Statute of the International Criminal
Court (ICC) of 1-3 July 2009, Doc. Assembly/AU/13(XIII).
14 ICC-ASP, Report of the Bureau on non-cooperation (7 November 2013) ICC-ASP/12/34, paras 22-
24 <http://www.icc-cpi.int/iccdocs/asp_docs/ASP12/ICC-ASP-12-34-ENG.pdf> accessed 1 January
2014.
15 P Greef, ‘Anatomy of Al-Bashir’s great escape’ Daily Maverick 29 June 2015.
16 See B Leebaw, Judging state-sponsored violence, imagining political change (Cambridge University
Press 2011) 24.
17 J Maogoto, War crimes and Realpolitik: International justice from World War I to the 21st Century
(Lynne Rienner Publishers 2004) 10-11.
18 J Shklar, Legalism: Law, morals and political trials (Harvard University Press 1986) 15.
19 Leebaw (n 16) 24-25.
20 BSchi,Building the International Criminal Court (Cambridge University Press 2008) 8-9.
21 Shklar (n 18) 1.
9
Pursuing Al Bashir in South Africa: Between ‘Apology and Utopia’
that legal institutions (as the epitome of the legalistic tradition) are deemed to be
hermeticallysealed-ofrompoliticalsociety.22
Themainobjectofthisstudyisnotonlytoillustratethespecicinterplayof
law and politics in connection to state cooperation, but also to contextualise the
glaring disparity between norms of international law and actual state behaviour (or
law’s‘realitydecit’).23
The paper is therefore structured as follows: The rst part is a conceptual
framework that describes the political factors that shape international law and in-
teractions of states with international institutions in order to explain the reality
decitfacingtheCourt.24 The second part builds on the conceptual framework by
outlining a theoretical framework whose primary postulate is that the state coopera-
tion regime under the Rome Statute enacts international politics within the classic
Kos�enniemianmeaning.Thethirdandnalpartadvancestheargumentforpoliti-
cal intelligence in the pursuit of state cooperation with the Court by reference to the
outstanding arrest warrants for Al Bashir and his dramatic exit from South Africa in
June 2015. It is worth noting at this point that for present purposes, the term politi-
cal intelligence as used in this study is an expansion of the concept of political judg-
ment developed by the political theorist Hannah Arendt, which I have assimilated
to advance my arguments and is not in any way synonymous with capitulation to
power politics.25 In all arguments, recourse is had, not to a utopian model by which
States freely and promptly cooperate with the Court, but to a model of state coop-
eration that does not render the Court nugatory and its Statute hollow.
2 Conceptual framework
There are four prominent theories in international relations, namely: the real-
ist, institutionalist, liberal and constructivist theories.26
States are the dominant actors in the realist narrative and constantly compete
with each other in the absence of any central government. International law and,
22 Ibid ix.
23 AM Slaughter et al., ‘International law and international relations theory and a new generation of inter-
disciplinary scholarship’ (1998) 92(3) American Journal of International Law 367, 371.
24 K Abbot, ‘International relations theory, international law and the regime governing atrocities in inter-K Abbot, ‘International relations theory, international law and the regime governing atrocities in inter-
nalconict’(1999)93(2)American Journal of International Law 361, 362.
25 Compare Prosecutor v Kenyatta, Partially dissenting opinion of Judge Ozaki (18 October 2013) ICC-
01/09-02/11, para 21. See also Leebaw (n 16).
26 Ibid 364-367.
10 Jerusha Asin
by extension, international cooperation are considered to be useful only when they
advance state interests. Realists place heavy emphasis on the interests of power-
ful states and denigrate the ability of international rules and institutions to con-
strain state behaviour. Goldsmith and Posner stand out in international criminal law
scholarship as realists for their assertion that the Statute of the International Crimi-
nal Tribunal for the Former Yugoslavia (ICTY) did not exert any ‘gravitational
pull’27toluredefendantssuchasformerPresidentSlobodanMiloševićfortrialbe-
fore the ICTY.28 Because realists conceive of sovereignty as predating international
law, international law cannot limit sovereignty.29
Institutionalists, on the other hand, acknowledge the competing interests in
international life, but consider that because states create international institutions
to impose order, institutions may modify state behaviour.30 Institutionalists identify
‘islands of cooperation’31 in which states are willing to cooperate in order to legiti-
misedierentformsofinter-stateaction.32 An example may be the decision of the
United States to abstain from voting on the Security Council resolution referring
the situation in Darfur to the Court because ‘of the need for the international com-
munity to work together to end the climate of impunity in Sudan.’33
Liberal theorists for their part do not discount the importance of states in inter-
national politics, but consider that state interests are determined more by domestic
politics than by considerations of relative power. In this conception, the fundamen-
tal actors in international politics are both individuals and private groups.34
Conversely, the constructivist theory holds that international actors socialise
within a context of shared norms, which constitute their identities and determines
appropriate forms of conduct.35 Therefore, fundamental concepts such as the state
and sovereignty can only be determined by reference to the rights and duties held by
27 J Goldsmith and E Posner, The limits of international law (Oxford University Press 2005) 116.
28 Ibid.
29 M Koskenniemi, From apology to utopia: The structure of international legal argument, Reissue with
New Epilogue (Cambridge University Press 2005) 254.
30 Alvarez (n 3) 25.
31 Ibid.
32 Ibid.
33 UN, ‘Security Council Refers Situation in Darfur, Sudan to Prosecutor of the International Criminal
Court: Resolution 1593(2005) adopted by Vote of 11 in Favour and None Against’ (5158th Meeting)
SC/8351 <http://www.un.org/News/Press/docs/2005/sc8351.doc.htm> accessed 21 June 2014.
34 Abbot (n 24) 366.
35 Ibid.
11
Pursuing Al Bashir in South Africa: Between ‘Apology and Utopia’
a State.36 This theory emphasises normative commitments and the internalisation of
these norms moving beyond the socialising institution in a ‘norm cascade.’37 Con-
structivists dispute the pre-dominance of states as analytical units in international
law and advance the development of individuals, local organisations and states
withininternationalinstitutionsinordertoinuencetheseinstitutionsbeyondthe
preferences of the powerful units within it.38 For instance, recall the role played by
the sheer numbers of non-governmental organisations involved in lobbying for the
Court during the Rome Conference39 and the subsequent statutory acknowledgment
of their role in propagating these norms within the Rome system of justice.40
It is apparent that the establishment of the Court best accords to the construc-
tive model because the Court was established on the basis of normative and legal
commitments by state parties to end impunity for the perpetration of atrocities41
and drawing from the Nuremberg precedent whereby sovereignty was purportedly
‘perforated.’42
In this regard, the contrasting perspectives on sovereignty under the realist
and constructivist schools are especially noteworthy. While realists consider that
neither international law nor international institutions can alter sovereignty, which
is a structural concept incapable of delimitation,43constructivistsuidlydenesov-
ereignty as being constituted by the international legal order in accordance with
rights and duties held by the state.44
Itisworthnotingthattheediceuponwhichtheentirebodyofinternational
criminal law is built is the active delimitation of state sovereignty.45 The paradox,
36 Koskenniemi (n 29) 245-455.
37 See K Sikkink, The justice cascade: How human rights prosecutions are changing world politics (Nor-
ton & Co 2011) 5-28. See also José Alvarez (n 3) 44.
38 Ibid.
39 K Barrow, ‘The role of NGOs in the establishment of the International Criminal Court’ (2004) 2(1)
Dialogue 11, 17.
40 Rome Statute of the International Criminal Court, (1998) 2187 UNTS 90 (hereinafter the �Rome Stat-Rome Statute of the International Criminal Court, (1998) 2187 UNTS 90 (hereinafter the �Rome Stat-
ute”), art. 15(2).
41 Rome Statute, preamble para 4.
42 GMettraux,‘Judicialinheritance:ThevalueandsignicanceoftheNurembergTrialtocontemporary
war crimes tribunals’ in G Mettraux (ed) Perspectives on the Nuremberg trial (Oxford University Press
2008) 604.
43 Alvarez (n 3) 29-30.
44 J Goldsmith, ‘Sovereignty, international relations theory and international law’ (2000) 52 Stanford Law
Review 959, 960.
45 B Broomhall, International justice and the International Criminal Court: Between sovereignty and the
rule of law (Oxford University Press 2003) 56-57.
12 Jerusha Asin
which is the scope of inquiry in this paper, is that sovereignty reappears in the form
of states failing to cooperate with the Court and when the international community
fails to exact compliance.46
3 Theoretical framework
Upon the conclusion of the constitutive treaty of the Rome Statute in 1998,
CourtocialsandtheProsecutorinparticular,47 gloried in proclaiming the Court’s
apolitical nature, averring that it would subordinate politics to the law and speak
‘law to power’48 by establishing legal realities that constrained, if not bound other
entities.49
Theseviewsspea�tothetheoryoflegalism,earlierdenedasarule-centred
approach that eschews the role of politics in any legal activity.50 In the present con-
text, legalism refers to a conception of global norms that seeks the separation of law
from politics for the promotion of human rights.51
However, there appear to be two primary types of legalism, distinguished pri-
marily on the basis of their approach to the role of politics in international justice.52
Therstisideologicallegalism,whichrestsontheuncompromisingandrigidchar-
acter of just action and disparages any other kind of social policy.53 In this concep-
tion, politics is a ‘dirty’54 word because it is the child of competing interests and
ideologies and has a disreputable recourse to expediency that must by necessity
be inferior to the law.55 By parity of reasoning, law is superior because it aims at
justice, which is the sum of all legalistic aspirations56 and is therefore neutral and
objective. Therefore, to maintain the distinction between legal order and political
chaos, law is magically lifted and elevated beyond politics, which then becomes
46 Ibid.
47 L Moreno-Ocampo, ‘Statement’ (ICC Review Conference, Kampala, 31 May 2010).
48 S Nouwen and W Werner, ‘Doing justice to the political: The International Criminal Court in Uganda
and Sudan’ (2011) 21(4) European Journal of International Law 941, 965.
49 Ibid.
50 Shklar (n 18) 1.
51 Rodman (n 10) 439.
52 Leebaw (n 16) 36.
53 Shklar (n 18) 111-122.
54 Leebaw (n 16) 38.
55 Ibid 111.
56 Ibid 113.
13
Pursuing Al Bashir in South Africa: Between ‘Apology and Utopia’
embattled with the law.57 For the law to subdue politics, it becomes necessary to
insist on a policy of uncompromising rules and rule-following.58
This ideological conception of legalism, which presents the law as a com-
plete monolithic structure with no limitations is the one most commonly advocated
inconnection with the ICC. It is dicult, however, to contest that the legalistic
conception of justice as the impartial execution of existing laws59 that eschews
arbitrariness,60 is the very essence of the law.
Adierentapproachadvancedbycriticaltheorist,MartiKos�enniemi,argues
that a rule-centred approach that maintains a strict distinction between law and
politics does so because of the perceived normative strength of the law,61 which
needs to be shown to bind states regardless of their behaviour or interests.62 Not-
withstanding that international law is the product of international politics and di-
plomacy, legalism assumes that the law mysteriously transcends these to bind states
regardless of their interests or opinions when it is invoked against them. However,
the dilemma in the ideological conception of legalism in completely severing law
from politics, power and state interest is that it is tantamount to reverting to doc-
trines of natural and divine law, whereas international law positively derives from
state behaviour (custom), will and interests.63 Certainly, the negotiated nature of
the Rome Statute proves this point. All international criminal tribunals without ex-
ception owe their existence to the expressed will of states.64 Therefore, the legalist
consequences of maintaining the rigid distinction between law and politics is that,
when state behaviour fails to conform to legal rules because of an outright refusal
to accept certain standards for any number of reasons, legalists ascribe this failure
to politics. Koskenniemi describes this phenomenon as an apology for politics.65
In that event, the idiosyncrasy of the uncompromising approach to rule-fol-
lowing constrains legalists to emphasise that despite the changes in state behaviour
andinterestsoutofadesiretoescapetheconstrainingeectofinternationallawin
any particular situation,66 the legal rules are still binding on states. To the extent that
57 Ibid 122.
58 Ibid.
59 Leebaw (n 16) 37.
60 Ibid 111.
61 Koskenniemi (n 29) 184.
62 Ibid 17-18.
63 Ibid.
64 See generally Maogoto (n 17).
65 Koskenniemi (n 29) 17-18.
66 Ibid 19-21.
14 Jerusha Asin
states decline to modify their behaviour to comply with the law, it becomes discon-
nected from state behaviour and connotes utopia.67
Indeed, it is possible to discern both the apology and utopia in a number of
the Prosecutor’s statements to the UN Security Council in connection to the Darfur
referral, in which she states that no meaningful steps have been taken to apprehend
the Darfur suspects and bring them to justice (apology)68 and that arrests, which can
onlybeeectedbyinternational cooperation to enforce thearrestwarrants(cur-
rently utopia), are needed to implement the Court’s processes.69
This paper therefore adopts the analytical lens of the second form of stra-
tegic or creative legalism that discards the myth that law can be magically and
mysteriously separated from its political antecedents. Strategic legalism consid-
ers the political provenance of the law in propounding that law and politics are
inextricably intertwined in one social continuum70 and that legalism can be modi-
edandguidedbypoliticaljudgment.71 However, Shklar’s conception of political
judgmentdiersfromthatadvancedinthispaper,whichispredicatedonHannah
Arendt’s conception of political judgment and is of important utility in so far as
it underscores the fact that, in analysing international institutions, the question is
not whether the law is political, but rather to question the sort of interests that are
supported by the law.72
TheICCisreectiveofcreativeorstrategiclegalismbyreferencetothenor-
mative and legal commitments lying side by side with the diplomatic bargains,
political interests and compromises enacted into the provisions governing state co-
operation under the Rome Statute during the Rome Conference.73
This paper analyses state cooperation with the ICC within the prism of Ko-
skenniemi’s critical theory that the ‘politics of international law is what competent
international lawyers do,’74 and avers that far from being the ‘unfolding of law’s
master plan,’75 the state cooperation regime under the Rome Statute enacts interna-
67 Ibid.
68 F Bensouda, ‘Statement of the Prosecutor of the International Criminal Court to the United Nations
Security Council on the situation in Darfur pursuant to UNSCR 1593 (2005) New York, 17 June 2014’
para 3.
69 Ibid.
70 Shklar (n 18) 169.
71 Leebaw (n 16) 40.
72 Shklar (n 18) 144.
73 Schi(n20)3.
74 Koskenniemi (n 29) 571.
75 F Mégret, ‘The politics of international criminal justice’ (2002) 13 European Journal of International
15
Pursuing Al Bashir in South Africa: Between ‘Apology and Utopia’
tional politics and creates both a legal and political mandate for the Prosecutor to
seek state cooperation.76
4 The state cooperation regime under the Rome Statute
The establishment of the Court on the basis of a multilateral treaty
encompassing diplomatic bargains,77 political interests and ‘hard fought political
compromises’78 in addition to legal commitments has inevitably coloured the
state cooperation provisions under the Statute establishing the Court. The parallel
veins of legalism and realism enacted into the Statute in the course of its drafting
history have impacted on the content of the legal duty to cooperate with the Court.
Because the Court’s focus was not bound to discrete situations like that of the ad
hoc tribunals, the trigger mechanisms were a procedural safeguard to limit the
reach of the Court’s jurisdiction over particular conict situations to the three
mechanisms under Article 13,79 namely; by state party referral,80 by referral of the
Security Council under Chapter VII measures of the United Nations Charter81 and
the initiation of an investigation by the Prosecutor proprio motu.82
The principle of complementarity where the Court functions as a court of last
resort83constitutesthemostsignicantcompromisetosovereigntyandpractically
stays the exercise of jurisdiction if the case is being addressed within the domestic
jurisdiction.84Theeectisthat,contingentonthetriggermechanism;85 cooperation
obligations are stayed or stopped altogether because of challenges to the admis-
Law 1261, 1269; T Hansen, ‘The International Criminal Court and the legitimacy of exercise’ in Ander-
sen et al. (eds) Law and legitimacy (DJOEF Publishers 2014); W Schabas, ‘The banality of international
justice’ (2013) Journal of International Criminal Justice 1, 7; C Ryngaert, ‘Arrest and detention’ in L
Reydams et al. (eds) International prosecutors (Oxford University Press 2012).
76 See GJ Knoops and R Amsterdam, ‘The duality of state cooperation within international and national
criminal cases’ (2006) 30(2) Fordham International Law Journal 260, 272.
77 Schi(n20)3-4.
78 P Mochochoko, ‘International cooperation and judicial assistance’ in R Lee (ed) The International
Criminal Court: The making of the Rome Statute - issues, negotiations, results (Kluwer 1999).
79 W Schabas, An introduction to the International Criminal Court (Cambridge University Press 2011)
157.
80 Rome Statute, art. 13(a).
81 Rome Statute, art. 13(b).
82 Rome Statute, art. 13(c).
83 Rome Statute, preamble para 10, art. 1.
84 Schabas (n 79) 190.
85 Ibid 192.
16 Jerusha Asin
sibility of a case.86Thepracticaleect of challenges to admissibility means that
urgentrequestsoropportunitiestoeectanarrestorseizeanavailablewindowof
opportunity might be lost in addition to long periods of time spent making comple-
mentarity assessments of situations under the Statute.87
4.1 DierentiatedcooperationobligationsundertheStatute
Third states that are not party to the Rome Statute are under no obligation to
cooperate with the Court, save for voluntary ad hoc arrangements to do so,88 which
apply mutatis mutandis to intergovernmental organisations.89 This means that the
Court has a chequered jurisdiction over states, practically witnessed with regard to
the outstanding arrest warrant for Al Bashir, which non-state parties like Ethiopia
are not bound to execute beyond the Security Council’s ‘encouragement’ to do so
in Resolution 1593 of 2005.90 Indeed, a statement issued by the Chinese Foreign
Ministry on the invitation extended to Al Bashir to visit China in September 2015
states that ‘as China is not a member of the ICC, relevant issues will be handled on
the basis of the basic principles of international law.’91
4.2 ThelegalbasesofthedutytocooperatewiththeCourt
The obligation to cooperate with the Court derives from the statutory provi-
sion to ‘fully cooperate with the Court.’92 The means by which the Court is seized of
a situation determines the legal basis of the cooperation obligation, as in the case of
the Security Council referral of Libya93 and Darfur94 to the Court. Neither of these
states were party to the Statute hence their obligation to cooperate with the Court
was grounded under the resolution and the duty to implement Council decisions
under the Charter of the United Nations.95 A further basis for cooperation between
86 Knoops and Amsterdam (n 76) 276.
87 B Swart, ‘General problems’ in A Cassese et al. (eds) The Rome Statute of the International Criminal
Court: A commentary (Oxford University Press 2002) 1596.
88 Rome Statute, art. 87(5).
89 Rome Statute, art. 87(6). See also European Council, Agreement between the International Criminal
Court and the European Union on cooperation and assistance (2006) OJ L115/50, art. 4.
90 See Prosecutor v Al Bashir, Prosecution’surgentnoticationoftravelinthecaseofTheProsecutorv
Omar Al Bashir (29 April 2014) ICC-02/05-01/09.
91 ‘China welcomes Sudan’s war-crime accused Leader as �old friend”’ Reuters 1 September 2015.
92 Rome Statute, art. 86.
93 UNSC Res 1970 (26 February 2011) UN Doc S/RES/1970.
94 UNSC Res 1593 (31 March 2005) UN Doc S/RES/1593.
95 Charter of the United Nations (1945) 1 UNTS XVI, art. 25.
17
Pursuing Al Bashir in South Africa: Between ‘Apology and Utopia’
the Court and the UN in the event of Council referral is the Relationship Agreement
negotiated between these institutions.96
4.3 EnforcementofthedutytocooperatewiththeCourt
Similar to the ad hoc tribunals, the ICC does not have the residual power to
take enforcement measures against states.97 The net sum of enforcement proce-
dures is contingent on the source of the legal duty to provide support.98 Where a
stateparty refusestocomplywitharequestforcooperation,ajudicialndingof
non-cooperation is made against the state party and referred to the Assembly of
State Parties (ASP)99 or to the Security Council in the event of a Council referral.100
Where the basis of cooperation was a voluntary ad hoc arrangement with non-state
parties,thendingofnon-complianceisreferredtotheASP.TheASPProcedures
Relating to Non-Cooperation101 states categorically that the remit of the ASP under
the Statute is to undertake ‘political and diplomaticeortstopromotecooperation
in response to non-cooperation.
Therefore,noenforcementmechanisms beyondthejudicialndingsofnon-
compliance are provided for in the Statute. This is at once the Court’s Achilles’ heel
and continuation of the now familiar pattern of re-enacting international politics in
international law, reminiscent of the truth that ‘[i]nternational law is still limited
by international politics and we must not pretend either can live and grow without
the other.’102 Situating enforcement within the political and diplomatic realm of
the ASP sends the clearest possible signal that the Rome Statute does not create an
‘empire of law,’103 but is instead embedded in the very midst of the international
political universe.104
96 ICC, Negotiated relationship agreement between the International Criminal Court and the United Na-ICC, Negotiated relationship agreement between the International Criminal Court and the United Na-
tions (2004) ICC-ASP/3/Res.1.
97 Prosecutor v Tihomir Blaškic, Judgment on the request of the Republic of Croatia for review of the
decision of Trial Chamber II of 18 July 1997 (29 October 1997) IT-95-14-AR108bis, para 25.
98 G Sluiter, ‘Cooperation of states with international criminal tribunals’ in A Cassese (ed.) The Oxford
companion to international criminal justice (Oxford University Press 2009) 198.
99 Rome Statute, art. 87(7).
100 Ibid.
101 ICC-ASP, Assembly procedures relating to non cooperation.
102 H Stimson, ‘The Nuremberg trial: Landmark in law’ in Mettraux (n 42) 617.
103 J Czarnetsky and R Rychlak, ‘An empire of law: Legalism and the International Criminal Court’ (2003)
79 Notre Dame Law Review 55, 62.
104 Shklar (n 19) 123.
18 Jerusha Asin
5 Pursuing Al Bashir: ‘Between apology and utopia’ in South Africa
Because the ICC not only operates in a political context, but is itself predi-
cated on overtly political transformational goals,105 the formula adopted at Rome
to predicate cooperation and eective compliance of states without the force of
sanction betrayed the legalistic ambitions underpinning the Statute to the political
interests of those whose prerogative it is to assist the Court – a classic enactment
of international politics in the Rome Statute within the Koskenniemian meaning.106
This is because a target state’s compliance with the Court’s orders is very much
a question of political expediency and necessity. As pertinently noted by David
Bosco, the Court operates in a turbulent world where power matters.107
The presence of Al Bashir in South Africa in June 2015 for the AU Summit
heldinJohannesburghasgreatlyexempliedthisfact.Abriefsummaryofthees-
sentialfactswillsuceforpresentpurposes.TheAUextendedaninvitationtoAl
Bashir to attend the Summit that was scheduled from 7-15 June 2015. On 13 June
2015, Al Bashir travelled to South Africa, despite the fact that on that same day,
thePre-TrialChamberoftheICCissuedadecisiontotheeectthatSouthAfrica
was under an international obligation to immediately arrest and surrender Al Bashir
andcalledonSouthAfrica‘tosparenoeortinensuringtheexecutionofthear-
rest warrants.’108 On 14 June 2015, a civil society group in South Africa urgently
applied to the High Court in Gauteng seeking orders compelling South African
authorities to arrest Al Bashir under the provisions of both the Rome Statute and
those of domestic legislation in South Africa implementing the Rome Statute.109
Even as the High Court ordered that Al Bashir be prohibited from leaving the coun-
try pending the determination of the application,110 on 15 June 2015, Al Bashir was
whisked out of South Africa in circumstances heavily suggestive of complicity by
the authorities in his escape. Certainly the President of South Africa dispelled any
doubt of the role of his Government in the entire episode when he stated in later
105 A Greenwalt, ‘�Justice without politics?” Prosecutorial discretion and the International Criminal Court’
(2007) 39 NYU Journal of International Law and Politics 583, 606.
106 See M Koskenniemi, The gentle civilizer of nations: The rise and fall of international law 1870-1960
(Cambridge University Press 2001) 431.
107 D Bosco, Rough justice: The International Criminal Court in a world of power politics (Oxford Uni-
versity Press 2014) 1.
108 ICC-OTP (n 7).
109 The Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002, South
Africa.
110 See South Africa Litigation Centre v Minister of Justice and Constitutional Development and others,
Case Number 27740/2015, 23 June 2015.
19
Pursuing Al Bashir in South Africa: Between ‘Apology and Utopia’
proceedings in Parliament that the presence of Al Bashir to South Africa was ‘on
the invitation of the AU.’111 The triumphant return of Al Bashir from South Africa
to Sudan was heralded by calls in Sudanese media that the ICC was ‘dead’ after the
exit by Al Bashir.112 Most recently, President Al Bashir visited China, a non-state
party to the Rome Statute and was described by the President of that country as ‘an
old friend of the Chinese people.’113
By all accounts, prior to the above debacle, South Africa was arguably a mod-
elstatepartytotheRomeStatute.Infact,soonaftertheissuanceoftherstwarrant
of arrest by the Court in March 2009, it was widely reported that representations
had been made to the Sudanese Government that if Al Bashir attended the inau-
guration of President Jacob Zuma, he would be arrested.114 Later, President Zuma
himselfwentonpublicrecordwiththeCableNewsNetwor�(CNN)armingthat
if Al Bashir was to even set foot inside South Africa, he would have him arrested.115
However, in 2015, amidst the furore generated by the hasty departure of Al Bashir
fromSouthAfricaindeanceofboththeICCandtheHighCourtofSouthAfrica,
the self-same President Zuma had a complete volte face and defended the decision
to let Al Bashir evade the arrest warrant and leave Johannesburg on grounds that
Al Bashir had immunity as a guest of the AU.116 This comes about in the context of
consideration by the ruling political party, the African National Congress (ANC),
to withdraw from the Rome Statute.117
Recall that in both oral118 and written policy statements,119 the rstProsecu-
tor of the Court refuted the importance of state cooperation to case selection and
indicatedthathisocedeliberatelyuncoupledconsiderationsofstatecooperation
from general discussion on situations and cases before the Court.120 The position
articulated by the then Prosecutor was tantamount to an assertion that states are
111 ‘South African President defends failure to arrest Sudan’s Bashir’ Reuters 6 August 2015.
112 ‘Media consider ICC �dead” after Bashir exit’ BBC News 16 June 2015.
113 ‘China welcomes Sudan’s war crime-accused leader as �old friend”’ Voice of America 1 September
2015.
114 ‘Sudanese President to skip Zuma’s inauguration’ Sudan Tribune 9 May 2009.
115 ‘South Africa President warns Sudan’s Bashir of arrest’ Sudan Tribune 27 September 2009.
116 ‘South African President defends failure to arrest Sudan’s Bashir’ (n 111).
117 ‘ICC gives South Africa more time to explain failure to arrest Bashir’ Reuters 16 October 2015.
118 Council on Foreign Relations, ‘Pursuing international justice: A conversation with Luis Moreno-Ocam-Council on Foreign Relations, ‘Pursuing international justice: A conversation with Luis Moreno-Ocam-
po’ (5 February 2010) <http://www.cfr.org/human-rights/pursuing-international-justice-conversation-
luis-moreno-ocampo/p21418> accessed 1 September 2014.
119 ICC-OTP, Criteria for selection of situations and cases (June 2006) 1-2 as excerpted in Human Rights
Watch,‘Unnishedbusiness:ClosinggapsintheselectionofICCCases’(2011).
120 Ibid.
20 Jerusha Asin
the ‘subjects of the law’s empire’121 as embodied in the Rome Statute, acting as
lieges to its ‘methods and ideals’122 because they are bound to do so both in letter
and spirit. This is a pervasive legalist utopia; that justice can be secured above the
political world, and not within it.123
Thepoliticalrestormgeneratedbythedecisiontoapplyforarrestwarrants
for the serving President of Sudan in July 2008124 appears to me to be one of the
most egregious errors in political judgment by the OTP in recent times. This is be-
cause this decision was predicated on the familiar legalist utopia of law as empire,
hierarchically superior to politics,125 in which the former Prosecutor, in an exchange
with a diplomat who openly advised against an arrest warrant for the President,
characterised himself as a ‘train moving down the track’ in order to ‘follow the
evidence.’126 When the diplomat indicated that the Prosecutor would hurt the very
institution that he was trying to build, the two agreed to disagree.
All accounts indicate that in shifting to an adversarial strategy against Khar-
toum, the former Prosecutor failed to persuade the international community to ef-
fect a concomitant shift in the political agenda that was necessary for the extraor-
dinary international political commitment127 needed for the execution of the arrest
warrants.128Ineect,theProsecutorsoughttocompelstates,aspurportedsubjects
of the legalist empire under the Rome Statute, to set in motion political events to
adhere to the dictates of the Court, which possibly included sanctions, military es-
calation and regime change.129
In response, the international community has to date largely spurned the
OTP’s attempts to shame it in the increasingly mordant OTP reports to the Security
Council over the failure to execute the arrest warrants and has instead advanced
its own agenda of mediation, peace-keeping and humanitarian relief in Darfur, all
of which depend on the cooperation of Al Bashir.130 This episode, as most recently
121 R Dworkin, Law’s empire (Hart 1998) vii.
122 Ibid.
123 Shklar (n 18) 123.
124 J Geis and A Mundt, ‘When to indict? The timing of international criminal indictments on peace pro-J Geis and A Mundt, ‘When to indict? The timing of international criminal indictments on peace pro-
cesses and humanitarian action’ (World Humanitarian Studies Conference, Groningen February 2009),
14 <http://www.brookings.edu/research/papers/2009/04/peace-and-justice-geis> accessed 26 June
2014.
125 See Czarnetzky and Rychlak (n 103) 62.
126 Bosco (n 107) 143.
127 Greenwalt (n 105) 606.
128 Rodman (n 10) 446.
129 Ibid 456.
130 Ibid.
21
Pursuing Al Bashir in South Africa: Between ‘Apology and Utopia’
highlightedbytheightofAlBashir fromSouthAfrica,powerfullyunderscores
the true counterpoint to legalism in relation to politics that justice does not lead, but
follows.131 The emperor in this narrative, the OTP, has been exposed, denuded of
any real power or sanction to execute the arrest warrants.132
In the absence of independent enforcement capability, the Court depends on
external actors, principally states, and organisations as ‘surrogate enforcers’133 to
compel compliance with its orders.134 For their part, the commitment of these sur-
rogate enforcers is subject to varied geopolitical interests and is contextualised
against the prevailing political conditions in the target state, or rather, the state that
is the subject of focus by the Court.
In the case of South Africa, it is clear that in failing to arrest and surren-
der Al Bashir to the Court, it furthered the interests of the AU in non-cooperation
with the ICC on allegations of the Court’s ‘imperialistic, colonialist and racist’
bias against African states.135 This is the clearest example to date that cooperation
withtheCourtdoesnotowfromthegravitationalpullofthelegalobligationto
cooperate with the Court,136 notwithstanding that South Africa had the domestic
constitutional obligation to arrest Al Bashir having implemented the Rome Statute
in 2002. This denotes that the Court and its processes involve a perpetual political
contest and that an ideological approach to legalism in seeking cooperation will
falter between apology and utopia.137 What this implies is that, because the former
Prosecutorfailedtobuild the necessary levelofocialinternationalsupport for
the arrest warrant against Al Bashir and because an extraordinary level of interna-
tional political commitment is required to pursue criminals beyond state borders,138
cooperation with the request for execution of the Al Bashir arrest warrant will be
extended on terms that target states and the wider international community dictate.
The consequence is that, because the decision to issue the warrant was made in pur-
suance of the rigid distinction between law and politics, when behaviour of states
131 J Snyder and L Vinjamuri, ‘Trials and errors: Principle and pragmatism in strategies of international
justice’ (2003) 28 International Security 5, 6.
132 Ryngaert (n 75) 699.
133 Compare, V Peskin, International justice in Rwanda and the Balkans: Virtual trials and the struggle for
state cooperation (Cambridge University Press 2008) 12.
134 C Lamont, International criminal justice and the politics of state compliance (Ashgate 2010) 164.
135 D Tladi, ‘The African Union and the International Criminal Court: The battle for the soul of interna-D Tladi, ‘The African Union and the International Criminal Court: The battle for the soul of interna-
tional law’ (2009) 34 South African Yearbook of International Law 57, 58.
136 Compare, Goldsmith and Posner (n 27) 116.
137 Nouwen and Wouter (n 48) 964.
138 Greenwalt (n 105) 660.
22 Jerusha Asin
such as South Africa fail to conform to legal rules because of outright refusal to
accept certain standards for any number of reasons, then this failure is ascribed to
politics, as an apology for politics.139 In that event, the uncompromising approach
to rule-following inherent in legalism constrains legalists to emphasise that despite
the changes in state behaviour and interests out of a desire to escape the constrain-
ingeectofinternationallawinanyparticularsituation,140 the legal rules are still
binding on states. To the extent that the political party in the majority in South Af-
rica is seriously considering withdrawal from the Rome Statute, it is possible that
this state and possibly others in the regional bloc, have declined to modify their
behaviour to comply with the law of the Rome Statute, which then become discon-
nected from state behaviour and connotes utopia.141
The lesson for the Prosecutor with reference to Sudan, however, lies not in
the failure to convince the target state to cooperate with the Court by arresting and
surrendering Al Bashir, which is nakedly contrary to its own interests where the
accused remains a serving head of state, but in the failure to engage other state
parties,142 third states,143 the Security Council144 and even the United Nations145 to
apply consistent, sustained international pressure to execute outstanding arrest war-
rants issued by the Court even after referral by the Security Council.146 Hence, the
139 Koskenniemi (n 29) 17-18.
140 Ibid 19-21.
141 Ibid.
142 Prosecutor v Al Bashir, Decision pursuant to Article 87(7) of the Rome Statute on the failure by the
Republic of Malawi to comply with the cooperation requests issued by the Court with respect to the ar-
rest, ICC-02/05-01/09-139 (12 December 2011; Prosecutor v Al Bashir, Decision informing the United
Nations Security Council and the Assembly of the State Parties to the Rome Statute about Omar Al
Bashir’s recent visit to the Republic of Chad (27 August 2010) ICC-02/05-01/09109; Prosecutor v Al
Bashir, Decision informing the United Nations Security Council and the Assembly of the States Parties
to the Rome Statute about Omar Al-Bashir’s recent visit to Djibouti, ICC-02/05-01/09-129 (12 May
2011); Prosecutor v Al Bashir, Decision informing the United Nations Security Council and the As-
sembly of the States Parties to the Rome Statute about Omar Al-Bashir’s presence in the territory of the
Republic of Kenya, ICC-02/05-01/09-107 (27 August 2010).
143 Prosecutor v Al Bashir, Decision regarding Omar Al Bashir’s potential travel to the United States of
America (18 September 2013) ICC-02/05-01/09. See also G Thompson, ‘White House’s new Sudan
strategytsenvoyspragmaticstyle’The New York Times 19 October 2009.
144 See ICC-OTP, 19th Report (n 10) para 8.
145 Ibidpara 9. CompareUN OCHA, ‘Briengto the SecurityCouncil by UnderSecretary-General for
HumanitarianAairs andEmergencyRelief CoordinatorJanEgeland’(15 September 2006)<http://
www.iccnow.org/documents/OCHA_Egeland_SCBrieng_15Sept06.pdf>accessed17August2014.
146 A De Waal, ‘Darfur, the Court and Khartoum: The politics of non-state cooperation’ in N Waddell and P
Clark (eds) Courting conict? Justice, peace and the ICC in Africa (Royal African Press 2008) 35. See
also W Burke-White, ‘Bargaining for arrests at the International Criminal Court: A response to Roper
and Barria’ (2008) 21 Leiden Journal of International Law 477, 481.
23
Pursuing Al Bashir in South Africa: Between ‘Apology and Utopia’
outstanding arrest warrants in the Darfur referral is attributable not only to the am-
bivalence of the international community, but also to the failure of the exercise of
political intelligence by the former Prosecutor.147 It is also worth noting that there
are credible reports to lead to the conclusion that the ICC processes were adopted
as one among many of a series of solutions and that consequently, the referral has
beenoverreachedbyotherconictresolutionalternatives.148 The practical implica-
tion of this is that until the Darfur process is resolved by political means, there will
be little or no interest or incentives on the part of surrogate enforcers, particularly
thosewith overarchinginterestsinconictwiththoseoftheCourt,toensurethe
implementation of the arrest warrants.149 Note also that international pressure to
cooperate with the Court, if at all, is not applied in a ‘domestic political vacuum,’150
but interacts with conducive domestic political conditions in order to frame compli-
ance.151 The implications for the Prosecutor are that at least with regard to securing
arrest and surrender, which is crucial to the Court’s existence and functioning,152 the
Court is as much a political actor as a legal one.153
Conversely,considerhowdierentthesituationmayhavebeeniftheformer
Prosecutor had rather sought to obtain a critical mass in support of an indictment
against Al Bashir by engaging in dialogue and persuasion with member states and
leveraging the moral authority of the Security Council referral to prod state parties
and the members of the Security Council for support. Pursuing dialogue with target
states and actively persuading states and the wider international community to ex-
act compliance with the Court constitutes strategic legalism, which belies the need
for the Prosecutor to exercise legal discretion but requires the Prosecutor to gauge
political sensitivities before proceeding, which is illustrative of political intelli-
gence. This is necessary because the Rome Statute created a legal paradigm shift
in respect of the old architecture of state sovereignty.154 The paradigm shift was
intended to replace the sovereignty–centred rules by holding individuals, irrespec-
tiveofoceorstation,criminallyaccountable.155 The apparent revolution at Rome
147 Rodman (n 10) 445.
148 Ibid.
149 De Waal (n 146) 35.
150 J Subotic, ‘The paradox of international justice compliance’ (2009) 1 International Journal of Transi-
tional Justice 1, 4.
151 Ibid.
152 Rome Statute, art. 63.
153 Burke-White (n 146) 482.
154 Rodman (n 10) 440.
155 Ibid.
24 Jerusha Asin
was however incomplete, because state parties did not concomitantly transfer en-
forcement powers to the Court. As denoted by the enforcement problem in interna-
tional institutions, these enforcement powers are traditionally the jealous preserve
of states. That is the sole reason why the Prosecutor exercises legal discretion but
is still encumbered by the need to proceed on the basis of political sensitivities to
ensure the broad, and sometimes extraordinary, level of international commitment
and support necessary to discharge the OTP’s mandate.
6 Conclusion
The opening quote of this chapter used the tale of Frankenstein to capture
the fraught agency relationship between the ICC and state parties that enacted its
existence under the Rome Statute in addition to pertinent international political ac-
tors such as the Security Council and non-state parties. This is because the Court’s
underpinningsofequaljusticeandendingimpunityandthespecictargetaudi-
ence of top military and political leaders represent an unprecedented challenge to
state sovereignty.Recognising the sword of Damocles eectively dangling over
them, states enacted self-preservation measures into the Statute, leading to struc-
tural compromises between legalism and realism, which in turn pervades the re-
gime governing how states and other actors cooperate with the Court. One of the
structural compromises referred to above is the non-existent enforcement regime
under the Rome Statute, which state cooperation provisions, although present, are
rather feeble.
Frankenstein created a beast of whose potential he was oblivious, and thus
could not contain. The ad hoc international criminal tribunals might have escaped
their creators, but denitely did not escape their environment.156 The deliberate
omission of the framers of the Rome Statute to include enforcement mechanisms
to frame compliance with orders and judgments of the Court in the Rome Statute
constitutes a realist betrayal of the legalist ambitions and aspirations within it, in
themselves a considerable feat, but nevertheless subjected to the prerogatives of
those ultimately called upon to support and implement the Court’s processes.
The lack of enforcement mechanisms directly speaks to the competing com-
pulsions by states to make normative commitments to international criminal jus-
tice, but to also contain the development and growth of these institutions. The ICC
was not crafted to escape its creators and may not be doing so any time soon.
156 L Côté, ‘Independence and impartiality’ in Reydams et al. (n 75) 370.
25
Pursuing Al Bashir in South Africa: Between ‘Apology and Utopia’
In the case of the arrest warrant issued against Al Bashir, the book Rough
Justice details the exchange between the ICC Prosecutor and a diplomat in which
thediplomatadvisedtheProsecutorthatpursuingtheheadofstateatrstinstance
would undercut all other options and would ultimately hurt the image of the very
institution the Prosecution was intent on building. Judging by the blaring headlines
wheneverbothmemberandnon-memberstatesdeantlyandopenlyouttheICC
arrest warrant by failing to arrest Al Bashir when it is within their power to do so,
it would appear that the particular diplomat was right and that the damage wrought
to the Court has been considerable.
It is important to note that political judgment or intelligence is not appease-
ment by another name. This paper does not presume that Al Bashir will not be ar-
rested in the fullness of time. Instead, it draws from the experience of the ICTY and
the International Criminal Tribunal for Rwanda to conclude that all factors remain-
ing constant, in terms of the relations between the AU and the Court, the execution
of the arrest warrant against Al Bashir by his arrest and surrender to the Court will
happen when he loses all and any political capital that he presently holds.
Where the Court does not make intelligent interventions, state cooperation
with the Court will vacillate between apology and utopia. Such is the nature of
the beast galvanised by the compromises, bargains and commitments of the Rome
Conference.
27
PROSECUTING CRIMES RELATED TO THE 2007
POST-ELECTION VIOLENCE IN KENYAN COURTS:
ISSUES AND CHALLENGES
evelyne Owiye asaala*
Abstract
As Kenya grapples with questions regarding its social, legal, economic and political
transition, the issue of the local prosecution of alleged perpetrators of past crimes
has taken centre stage. It is argued that for member states to the Rome Statute
of the International Criminal Court (Rome Statute), like Kenya, any transitional
justice measures must address the issue of impunity for past atrocities through
prosecution. Thus, while the International Criminal Court (ICC) is designed to
exercise jurisdiction over those who bear the greatest responsibility, municipal
courts are expected to hold to account mid- and lower level perpetrators or those
who do not bear the most responsibility for the commission of international crimes.
This contribution underscores the importance of accountability through prosecution
as a cardinal component of transitional justice. It critically analyses the challenges
facing eective prosecutions of international crimes in Kenyan courts. By doing
so, this chapter seeks to answer the questions: how should local courts eectively
prosecute perpetrators of international crimes who may not necessarily bear the
greatest responsibility? In other words, how should local criminal law systems and
legislations eectively respond to international crimes?
* LLB (Hons) (UON), LLM (UP), PhD Candidate University of Witwatersrand and Lecturer in the
School of Law, University of Nairobi.
28 Evelyne Owiye Asaala
1 Introduction and background
On 27 December 2007, Kenya held its ninth general election since independ-
ence.1 The outcome of the presidential elections was, however, contested on several
fronts. Rigging allegations marred by scores of violence led to the commission of
international and other serious crimes in several parts of the country.2 These events
necessitated the establishment of mechanisms to help Kenya address its past and
forge a way forward on a path of peace, justice and prosperity. The Kenya National
Dialogue and Reconciliation Committee (KNDRC) was established to spearhead
the process.3 It is this committee that laid a foundation for the subsequent transi-
tional justice mechanisms. The committee agreed on several initiatives, including:
the establishment of a truth, justice and reconciliation commission;4 the adoption
of comprehensive constitutional, legal and institutional reform processes;5 and the
establishment of a commission of inquiry to investigate the violence and make
recommendations on any probable legal redress.6 Some scholars deemed this agree-
ment the most comprehensive way of addressing the salient objectives of the tran-
sitional justice process.7 Some of these initiatives are ongoing, while others have
completed their work with varying degrees of success.8 Other initiatives came to a
1 A general election combines the presidential, parliamentary and civic elections.
2 European Union Election Observation Mission, Final report on Kenya, General Elections 27 December
2007 (3 April 2008) 36; Internal Displacement Monitoring Centre (IDMC) ‘Speedy reforms needed to
deal with past injustices and prevent future displacement’ (10 June 2010) <http://www.internal- dis-
placement.org/countries/Kenya> accessed 26 October 2011; Commission of Inquiry into the Post-Elec-Commission of Inquiry into the Post-Elec-
tion Violence (CIPEV) Final Report (15 October 2008) 472-475 <http://www.dialoguekenya.org/index.
php/reports/commission-reports.html> accessed 1 May 2012.
3 This was an ad hoc committee established during the post-election violence (PEV). It comprised of
members drawn from the then ruling Party of National Unity, the then opposition party Orange Demo-
cratic Party and a panel of eminent African personalities: Benjamin Mkapa, Graca Machel and Jakaya
Ki�wete.TheformerUnitedNationsSecretaryGeneral,KoAnan,chairedthecommittee.
4 Kenya National Dialogue and Reconciliation Committee (KNDRC) Agreement on agenda item three:
How to resolve the political crisis (14 February 2008) 3 <http://www.dialoguekenya.org/index.php/
agreements.html> accessed 1 May 2012.
5 Ibid.
6 KNDRC Agreement: Commission of Inquiry into Post-Election Violence (2008).
7 TO Hansen, ‘Kenya’s power-sharing arrangement and its implications for transitional justice’ (2013) 17
The International Journal of Human Rights 307.
8 CIPEV concluded its mandate in 2008. Its investigations and ndings have been hailed to be most
comprehensive.Infact,theICCprosecutionhasoftentimesreliedonthesendingsintheongoingtri-
als. The Truth Justice and Reconciliation Commission (TJRC) equally concluded its mandate in 2013
anditsnalreporthandedovertothe Presidenton23May2013forimplementation.Thereportwas
subsequently tabled before Parliament on 24 July 2013 exceeding the deadline stipulated under Sec-
tion48(4)oftheTJRCAct,whichrequiresthatthenalreportbetabledinParliamentwithin21days
after its publication. Since then, nothing has been done towards implementation the TJRC’s report. On
29
Prosecuting Crimes Related to the 2007 Post-Election Violence in Kenyan Courts
pre-mature end having hardly achieved their objectives.9
Kenya therefore continues to grapple with questions regarding its social, le-
gal, economic and political transition. The understanding that prosecution is crit-
ical to the success of any transition resonates with legal-philosophical thinking
that underlies transitional justice processes.10 Although this contribution acknowl-
edges that some scholars emphasize the prioritization of alternative accountabil-
ity mechanisms like truth-telling, healing and peace building during transition,11 it
underscores the importance of accountability through prosecution for transitional
societies.12 This contribution also takes note of an international duty to prosecute
for countries, like Kenya, which are not only party to the Rome Statute of the
ICC (Rome Statute),13 but also have a similar duty under other international instru-
ments14 and customary international law.15 It is argued that for states like Kenya,
the other hand, local prosecution of international crimes have been overshadowed by the ongoing ICC
trials. There is hardly any reporting on these cases. On constitutional reforms, a commendable job was
done leading to the promulgation of a new constitution on 27 August 2010. This Constitution embod-
ies principles on numerous institutional reforms. Related institutional reforms include reforms of the
electoral body, police reforms and judicial reforms that called upon the legislators to enact legislation
providingforvettingofjudicialocers.Thisprocessisstillongoing.
9 See(n8)(withaspecicfocusonlocalprosecutionofinternationalcrimes).
10 R Teitel, Transitional justice (Oxford University Press 2000). Teitel acknowledges that trials are com-
monly thought to play the leading foundational role in the transition to a more liberal political order.
Only trials are thought to draw a bright line demarcating the normative shift from illegitimate to legiti-
mate rule. See also D Orentlicher, ‘Settling accounts: The duty to prosecute human rights violations
of a prior regime’ (1991) 100 The Yale Law Journal 25. See also M Osiel, Mass atrocity, collective
memory and the law (Transaction Publishers 1999) 15-22 as cited by J Rowen, ‘Social realities and
philosophical ideals in transitional justice’ (2008) 7 Cardozo Public Law Policy and Ethics Journal 98.
L Huyse, ‘Justice after transition: On the choices successor elites make in dealing with the past’ (1995)
20 Law and Social Inquiry 55. Huyse points out the importance of prosecutions for a young democracy
in transition not only as a tool that legitimizes the new government, but also as a means to foster respect
for new democratic institutions.
11 L Keller, ‘Achieving peace without justice: The International Criminal Court and Ugandan alternative
justice mechanisms’ (2008) 23 Connecticut Journal of International Law 261.
12 Teitel (n 10); Orentlicher (n 10); Osiel (n 10).
13 Para 5 of the preamble to the Rome Statute of the International Criminal Court underscores that the
philosophy underlying the Rome Statute is to put an end to impunity for the perpetrators of crimes of
concern to the international community thus contributing to their prevention. Article 5 of the Rome
Statute further enlists these crimes to include genocide, war crimes and crimes against humanity. See K
Obura, ‘Duty to prosecute international crimes under international law’ in C Murugu and J Biegon (eds)
Prosecuting international crimes in Africa (Pretoria University Law Press 2011) 11.
14 For example, Kenya has an express mandate under the Convention against Torture and other Cruel,
InhumanorDegradingTreatmentorPunishment(CAT).CATwasratiedbyKenyaon8March1996.
Article 4 of the Convention calls upon member states to ensure that torture or attempt to commit torture
areoencespunishablebyappropriatepenaltiesundercriminallaw.
15 T Meron, Human rights and humanitarian norms as customary law (Clarendon Press 1989) 210.
Though scholars have disagreed on the range of human rights protected by international customary law,
30 Evelyne Owiye Asaala
any transitional justice measures must address the issue of impunity for past atroci-
ties through prosecution. Indeed, there exists both local and international consensus
on the importance of prosecuting international and other serious crimes in Kenya
following their commission in the Post-Election Violence (PEV) of 2007. Further-
more, the Commission of Inquiry into the PEV16 (CIPEV) suggested the establish-
ment of a prosecution mechanism to eradicate impunity.17
While the International Criminal Court (ICC) is only exercising jurisdiction
over those who bear the greatest responsibility for PEV,18 municipal courts were/are
expected to hold to account mid and lower level perpetrators or those who do not
bear the most responsibility for the commission of international crimes. This is be-
cause the ICC only complements the jurisdiction of local courts.19 In fact, the ICC
onlyexiststo reinforceeortsof nationalsystemstocombat impunity;therefore
relying principally on states to investigate and prosecute persons accused of ICC
crimes.20 Thus, the ICC and state parties to the Statute have a mutual responsibility
to bring to justice perpetrators of the worst crimes.
Thischapterthereforecriticallyanalysesthechallengesfacingeectivepros-
ecutionsofinternationalcrimesinKenyancourts.Howshouldlocalcourtseec-
tively prosecute perpetrators of international crimes who may not necessarily bear
the greatest responsibility? In other words, how should local criminal law systems
andlegislationseectivelyrespondtointernationalcrimes?Tothisend,thischap-
ter seeks to inform better criminal law processes in respect of the prosecution of
international crimes in national courts.
This chapter is divided into three main parts. Following a brief introduction,
parttwoexaminesthe�eychallengesfacingeectivelocalprosecutionsaswellas
there is general agreement that customary law prohibits torture, genocide, extra judicial executions and
disappearances.
16 KNDRC Agreement: Commission of Inquiry of Post-Election Violence (2008) 1.
17 CIPEV Report (n 2) 472.
18 Initially, ICC investigations were launched against six individuals: William Samoei Ruto, Henry Kip-Initially, ICC investigations were launched against six individuals: William Samoei Ruto, Henry Kip-
rono Kosgey, Joshua Arap Sang, Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed
HuseinAli.After conrmation hearings,proceedings were conrmedagainstthree: WilliamSamoei
Ruto, Joshua Arap Sang and Uhuru Muigai Kenyatta. While Ruto and Sang continue to face trial before
theICCtoday,thecaseagainstUhuruKenyattawaswithdrawnduetoinsucientevidence.ICCTrial
Chamber V(B), Situation in the Republic of Kenya in the case of Prosecutor v Uhuru Muigai Kenyatta,
Decision on withdrawal of charges against Kenyatta (13 March 2015) ICC-01/09-02/11.
19 Rome Statute, art. 17(1)(a).
20 H Steiner and P Alston, International human rights in context: Law, politics, morals (Oxford University
Press 2007) 1299; EO Asaala, ‘The International Criminal Court factor on transitional justice in Kenya’
in K Ambos and O Maunganidze (eds) Power and prosecution: Challenges and opportunities for inter-
national criminal justice in Sub-Saharan Africa (Universitätsverlag Göttingen 2012) 124.
31
Prosecuting Crimes Related to the 2007 Post-Election Violence in Kenyan Courts
the impact of these prosecutions on transitional justice in Kenya. The essence of
this section is to discuss Kenya’s experience in prosecuting international crimes.
Part two considers the jurisprudence put forth by the Kenyan courts regarding
prosecution of PEV-related crimes. However, because of the limited scope of this
contribution, only a selected number of the PEV-related cases are reviewed. The
Kenyancasesthatwereconrmed by the ICC and the geographicalcoverageof
their charges are the criterion that this chapter has used in selecting the cases under
discussion. A discussion of the challenges also adopts a thematic approach, which
highlights the following aspects: jurisdiction, investigations, local ownership and
legitimacy and political will. Finally, the chapter draws various conclusions and
suggests the way forward.
2 Challengestoeectiveprosecutionofinternationalcrimesin
local courts
Local prosecutions of crimes against humanity in Kenya have faced a vast
range of challenges. Key among them include the jurisdictional question, inad-
equate investigations by police (inadequate competencies and human and technical
resources), lack of legitimacy and local ownership, lack of political will and the in-
uenceofinternationalpoliticsinformedbytheICC-relatedcases.Thishasdeeply
compromised local prosecutions.
2.1 Thequestionofjurisdiction
Kenya is a state party to the Rome Statute21 that has domesticated the Statute
underitsInternationalCrimesAct(ICA).TheICAadoptstheRomeStatutedeni-
tion of crimes against humanity.22 This law however came into force on 1 January
2009 after the alleged PEV crimes were committed. According to the principles
of legality (nullum crimen, nulla poena sine lege),23 this statute cannot apply ret-
rospectively. Similarly, although the Kenyan Constitution makes a mandatory re-
21 KenyaratiedtheRomeStatuteon15March2005.
22 ICA, art. 6(4).
23 This requires that all criminal behaviour is criminalized and all punishment established under the law
before any prosecution. See Rome Statute, art. 22 (no person can be held criminally responsible unless
such conduct constitutes a crime under the law). For further reading on this see, I Crisan, ‘The prin-
ciples of legality, “nullum crimen, nulla poena sine lege” and their role’ Eectius Newsletter (2010) 5
<http://eectius.com/yahoo_site_admin/assets/docs/The_principles_of_legality_nullum_crimen_nul-
la_poena_sine_lege_and_their_role__Iulia_Crisan_Issue5.16811416.pdf> accessed 14 October 2015.
32 Evelyne Owiye Asaala
quirementofgeneralrules ofinternationallawandanytreatiesratiedbyKenya
to form part of the laws of Kenya,24 it was promulgated on 27 August 2010. Un-
til the promulgation of the 2010 Constitution, Kenya traditionally ascribed to the
dualist philosophy of applying international law in domestic courts.25 Prosecuting
PEV related international crimes under Kenyan laws was therefore not possible,
as it would have amounted to an infringement of the established international law
principle of nullum crimen sine lege.Thisdeciencyinthelegalframewor�then
explains why local mechanisms chose to prosecute ordinary municipal crimes in-
stead of international crimes such as crimes against humanity for those not indicted
by the ICC. Local prosecution of PEV related crimes therefore involved crimes
rangingfrompettycrimestocapitaloences:murder,26 handling stolen goods,27
burglary,28 rape and delement,29 which oences potentially comprise the actus
reus of crimes against humanity.30
Given this scenario, there has been no instance when local courts conceptu-
alized the notion of crimes against humanity. This option of prosecuting alleged
perpetrators under ordinary crimes in domestic courts has meant that it is only those
prosecuted at the ICC that faces the charges of international crimes. While Ken-
yan courts did not hear cases of crimes against humanity as such, the punishment
for capital conduct nevertheless attracts a death sentence. However, the maximum
punishment for crimes against humanity under international law is a life sentence.31
24 Constitution of Kenya (2010), arts. 2(5) and (6).
25 JO Ambani, ‘Navigating past the �Dualist Doctrine”: The case for progressive jurisprudence on the
application of international human rights norms in Kenya’ in M Killander (ed) International law and
domestic human rights litigation in Africa (Pretoria University Law Press 2010) 25, 30. According to
thedualistapproach,aninternationaltreatydoesnotbecomebindingatthedomesticleveluponratica-
tion thereof, but only once the terms of the treaty have been transformed into domestic law.
26 R v Stephen Kiprotich Leting and others, Nakuru High Court Criminal Case No 34 of 2008 (in this case
the accused were charged, jointly with others not before the court, with the murder of about 35 people
who were burnt in a church at Kiambaa, Uasin Gishu District, Rift valley Province); see also R v John
Kimita Mwaniki, Nakuru High Court Criminal Case No 116 of 2007; see also R v Eric Akeyo Otieno,
Criminal Appeal No 10 of 2008; see also R v Peter Kipkemboi Rutto alias Saitoti, Nakuru High Court
Criminal Case No 118 of 2008.
27 R v James Wafula Khamala, Bungoma High Court Criminal Appeal No 9 of 2010.
28 R v Paul Khamala, Kakamega High Court criminal Appeal No 115 of 2008.
29 R v Philemon Kipsang Kirui, Kericho High Court Criminal Appeal No 59 of 2009.
30 RomeStatute, art.7(1).Crimes againsthumanity hasbeendened asacts ofmurder,extermination,
enslavement, deportation, imprisonment, torture, rape, persecution on political, racial and religious
grounds, enforced disappearance of persons, apartheid and other inhuman acts committed as part of a
widespread or systematic attack directed against civilian population, with knowledge of the attack.
31 Rome Statute, art. 77; see also Penal Code of Kenya (Cap 63 Laws of Kenya), Sections 204 and 296(2),
which stipulates that murder and robbery with violence respectively attract death sentences.
33
Prosecuting Crimes Related to the 2007 Post-Election Violence in Kenyan Courts
This is despite the fact that the ICC requires a higher and stringent threshold in
proving crimes against humanity. The end result is that those with highest respon-
sibility are treated more leniently by international law as opposed to those who did
not bear the highest responsibility and facing prosecution before municipal courts.
Although the doctrine of complementarity would dictate that those who do not bear
the most responsibility are prosecuted for international crimes in municipal courts,
the lack of a legal framework leading to prosecution of PEV crimes as ordinary
crimes in Kenyan courts has so far not attracted any scholarly criticism.
The ICC Pre-Trial Chamber’s authorization of the Prosecutor to launch in-
vestigations into the Kenyan cases32 triggered a local case challenging the ICC’s
involvement in Kenyan PEV-related cases. In the case of Joseph Kimani Gathungu
v The Attorney General and Others,33 the applicant sought inter alia court orders
declaring ICC’s involvement in Kenyan PEV cases unconstitutional and therefore
invalid. It was the applicant’s further submission that the ICC was not provided
for under the Constitution as an organ capable of investigating crimes committed
in Kenya. The respondents, however, lodged a preliminary objection questioning,
inter alia, whether the High Court of Kenya had jurisdiction in respect of the ju-
risdiction of the ICC and whether the ICC was amenable to judicial proceedings
before the High Court of Kenya.
This application paved the way for Kenyan courts to canvass the salient issues
on the role played by international criminal justice systems vis-à-vis municipal
systems in the prosecution of international crimes. The fact that Kenya had not at
that stage domesticated the ICC Statute as a dualist state then posed a real challenge
necessitating the court’s intervention. In this case, the court observed that:
… international tribunal such as the ICC is well recognized to have compétence de la
compétence – an initial capacity to determine whether or not it has the jurisdiction to hear
and determine a case coming up before it… the ICC, acting within the terms of the Rome
Statute, has already determined that it indeed has jurisdiction. The ICC has gone further
to determine the second jurisdictional question: whether the special facts of post-election
violence in Kenya (2007-2008) render the matter justiciable before that Court. The ICC
has determined that, on the facts, it has jurisdiction to investigate, hear and determine the
cases arising from the post-election violence.34
32 Pre-Trial Chamber II, Decision pursuant to Article 15 of the Rome Statute on the authorization of an
investigation into the situation in the Republic of Kenya (31 March 2010) ICC-01/09.
33 Constitutional Reference Number 12 of 2010, High Court of Kenya at Mombasa, 23rd November 2010;
(2010) eKLR <http://kenyalaw.org/caselaw/cases/view/72570/> accessed 15 May 2014.
34 Constitutional Reference Number 12 of 2010, para h.
34 Evelyne Owiye Asaala
According to the Court, the ICC has inherent capacity emanating from the
Rome Statute to determine whether or not it has got jurisdiction to hear and deter-
mine a matter. It is through the exercise of this power that the Court determined
its jurisdiction over the Kenyan cases. More so, ‘Kenya was a member of the com-
munity of nations and subject to the governing law bearing upon states as members
of that community.’35 Obligations arising from this governing law are embodied
in treaties and conventions to which states were parties and the Rome Statute was
one such convention. The act of ratifying international treaties by a state therefore
allows limitations on its sovereignty regarding the stipulated legal obligations. It
cannot therefore be argued that the ICC in any way infringes on Kenya’s constitu-
tionalsovereigntywhenKenyavoluntarilyratiedtheRomeStatutebindingitself
to its provisions. The applicant’s reliance on Kenya’s new constitution as excluding
the ICC’s operations in Kenya was therefore not convincing since:
… the Constitution of 2010 is not to be regarded as rejecting the role of international
institutions such as the ICC. Indeed, from the express provisions of the Constitution, �the
general rules of international law shall form part of the law of Kenya”; and Kenya remains
party to a large number of multilateral international legal instruments: and so, by law,
Kenyahasobligationstogiveeecttothese.OneofsuchConventionsistheRomeStatute
which establishes the International Criminal Court.36
To this end, the Court dismissed the application on grounds that it neither had
such jurisdiction nor were the orders being sought justiciable.
2.2 Poorinvestigationsandlaxitybypoliceocers
The quality of local investigations conducted in PEV-related cases has also
raised concerns. Poor investigations have allowed many perpetrators of serious
crimes to evade accountability37 resulting in very few prosecutions, and even fewer
convictions.38 Regrettably, there has not been a continuous and up to date catalogu-
ing of the progress in all the PEV-related cases. According to a report by the Direc-
tor of Public Prosecutions (DPP), a total of 6081 PEV-related cases were reported
to the local authorities for investigations.39 Out of all these cases, only 366 had been
35 Ibid.
36 Ibid.
37 Human Rights Watch, Turning pebbles: Evading accountability for post-election violence in Kenya
(2011) 4.
38 Human Rights Watch (n 37) 3.
39 The Multi-Agency Task Force on the 2007/2008 PEV, ‘Report on the 2007/2008 PEV Related cases’
(2012) 1.
35
Prosecuting Crimes Related to the 2007 Post-Election Violence in Kenyan Courts
taken to Court by the year 2012. Of these, 23 cases were still pending in court, 78
cases had resulted in acquittals, 77 cases had been withdrawn and only 138 convic-
tions achieved.40AstudybyHumanRightsWatchhoweverconrmsthatonlyafew
of these convictions were for serious crimes directly related to the PEV.41 These
included two murder cases, three cases of robbery with violence, one for common
assault and another for assault causing grievous harm.42 In fact, the DPP’s report
has been criticized for lacking precision. For example, four of the alleged 49 con-
victions in sexual and gender based violence (SGBV) were actually acquittals and
two of these cases had nothing to do with PEV as they involved unnatural sexual of-
fences.43 Only one of all these cases was a clear SGBV case related to PEV and the
samehadresultedinanacquittalonthechargesofsexualoences,butaconviction
on robbery with violence.44
It is also alarming that some of the ‘hot spot’ areas with high casualties for
PEV victims recorded no subsequent convictions. In Uasin Gishu, for example,
there was no single conviction despite the killing of 230 people. Similarly, there
were no convictions of police ocers despite an estimated 962 cases of police
shootings, which resulted in 405 deaths.45
Thelaxitydisplayedbypoliceocersintheinvestigationofsexualoences
related to PEV has also been condemned.46 Despite recommending a list of 66 com-
plaints to the DPP for prosecution, the police subsequently endorsed a closure of
almost all these cases due to lack of evidence.47 According to the DPP, the majority
of these les contained nothing more than complainants’ statements.48 Although
theDPPsentthelesbac�forfurtherinvestigations,thesewereneverreturned.49
The dismal performance in prosecution can therefore be closely associated to poor
investigationsbythepoliceocers.
40 The Multi-Agency Task Force on the 2007/2008 PEV (n 39) 2.
41 Human Rights watch (n 37).
42 Ibid 4.
43 Ibid 25.
44 Ibid.
45 Ibid; CIPEV report (n 1).
46 CIPEV report (n 1) 399-404; Human Rights Watch (n 37) 20. This report condemns the failure of police
toinvestigatesexualoencescommittedduringthepost-electionviolence.Followingthesecriticisms,
the police established a Police Task Force to investigate rape cases during the post-election violence.
This Task Force was however criticised by FIDA, one of the major stakeholders who later withdrew its
membership citing lack of credibility on the part of the Task Force.
47 Human Rights Watch (n 37) 21.
48 Ibid.
49 Ibid.
36 Evelyne Owiye Asaala
Having ascribed to the adversarial system of dispute resolution, it has become
increasinglydicult,andalmostimpossibleforKenyancourtstoma�eanymean-
ingful engagement with PEV cases where investigations are conducted dismally.
For example, most of the occurrences upon which those facing trial before the
ICC were charged for crimes against humanity attracted a charge of murder for
the alleged actual perpetrators in the municipal courts.50 Yet, the outcome of local
prosecutions remains questionable over allegations of poor investigations. A criti-
cal review of two of these cases is worth considering.
2.2.1 R v Stephen Kiprotich Leting and three others51
The facts of this case were as follows: On 30 December 2008, following erup-
tion of PEV, some Kikuyu families in Uasin Gishu District within Rift Valley Prov-
ince sought refuge at Kenya Assemblies of God Church, Kiambaa. The number of
those seeking refuge at the church increased the following day by an additional 160
people whose houses had been torched joining those already at the church. On the
night of 1 January 2008, a gang of about 4000 people armed with bows and arrows
attacked the church. While those seeking refuge scattered, some locked themselves
inside the church. The gang then surrounded the church and set it ablaze, killing
about 35 people.
Whereas the High Court in this case condemned the crimes committed, it un-
derlined the importance of the state proving PEV cases beyond a reasonable doubt
in order to secure convictions. According to the Court, the state failed to prove three
cardinal components essential to proving the crime of murder: (a) the death of the
deceased and the cause of that death; (b) that the accused committed the unlawful
act which caused the death of the deceased; and (c) that the accused had the malice
aforethought. It was the Court’s observation that the prosecution failed to call some
crucial witnesses and as a result failed to establish that some of the deceased per-
sons were actually dead or that it was the accused persons who actually murdered
them.Therst,secondandfourthaccusedpersonsinthiscaseraisedthedefenceof
alibi. In so far as the third accused person admitted being at the scene of crime, it
50 Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Decision on the
Conrmation of Charges pursuant to Article 61(7)(a) and (b) of the Rome Statute, Pre-Trial Chamber
II, ICC-01/09-01/11, 10–11; Prosecutor v Francis Karimi Muthaura, Uhuru Muigai and Mohammed
Hussein Ali, Decision on the Conrmation of Charges pursuant to Article 61 (7) (a) and (b) of the Rome
Statute, Pre-Trial Chamber II, ICC-01/09-02/11, 11–13.
51 For the entire referencing below on the facts and court decision in this case, see High Court Crimi-For the entire referencing below on the facts and court decision in this case, see High Court Crimi-
nal case no 34 of 2008 at Nakuru http://kenyalaw.org/caselaw/cases/view/55195> accessed 30 January
2015.
37
Prosecuting Crimes Related to the 2007 Post-Election Violence in Kenyan Courts
was his submission that he had only rushed there to rescue the victims. The police
was unable to produce evidence to dismiss these claims beyond reasonable doubt.
The Court further observed that the prosecutor ought to have called into
action the doctrine of ‘common intention’52 in order to secure the conviction of
the accused persons. In the Court’s wisdom, the doctrine of common intention
was deemed essential given the manner in which the attack was orchestrated. For
instance, all the attackers had painted their faces; were chanting war dirges; were
armed with crude weapons, including machetes, pangas, spears, clubs, arrows
and bows; were systematic in the manner in which they launched their attacks
against Kimuli, Rehema and Kiambaa farms; and were systematic in the manner
theyfollowedtheirvictims,slashingandhac�ingthemtodeathandthennally
setting the church a blaze. This was adequate proof of common intention. Ac-
cording to the Court, the evidence narrows down to prove a preconceived plan
to commit these atrocities. The court however decried the level of evidence pro-
duced by the police:
One would have expected the police to place before court evidence of the Accused having
beenpartofthegangthatpre-arrangedtocommitthisoence.That,however,wasnotthe
case. The evidence on record does not show, leave alone suggest, the involvement of the
Accused in any pre-arranged plan to execute any or any unlawful act… I know that it is
anundoubtedly dicultthing toproveeventheintentionofan individualand therefore
morediculttoprovethecommonintentionofagroupofpeople.Buthoweverdicult
the task is, like any other element of crime, the prosecution must lead evidence of facts,
circumstances and conduct of accused persons from which their common intention can be
gathered. In this case there is absolutely no evidence of the raiders and/or any of the accused
having met to arrange the execution of any or any unlawful purpose. There is absolutely
no evidence to show that the Accused and/or others had a pre-arranged plan to attack
Kimuli, Rehema and/or Kiambaa farms and kill their residents… In this case, without
placinganyevidenceonrecord,theprosecutionwantsmetondthattheAccusedhada
common intent with the murderers of the deceased and were part of that joint enterprise.
That cannot be… I have to point out the shoddy police investigations in this case so that
blame is placed where it belongs… The judiciary is being accused of acquitting criminals
andunleashingthemtosociety...Idonotwanttodismissthosecomplaintsohand.But
what I know is that courts acquit accused persons if there is no evidence against them. In
our criminal jurisprudence: out of 100 suspects, it is better to acquit 99 criminals than to
52 This simply means a premeditated plan to act in concert. In order to secure a conviction under common
intention, the prosecution must prove that the Accused had (a) a criminal intention to commit the of-
fence charged jointly with others, (b) the act committed by one or more of the perpetrators in respect of
which it is sought to hold an accused guilty, even though it is outside the common design, was a natural
andforeseeableconsequenceofeectingthatcommonpurpose,and(c)theaccusedwasawareofthis
when he or she agreed to participate in that joint criminal act.
38 Evelyne Owiye Asaala
convict one innocent person. Because of that our law requires that for a conviction to result
the prosecution must prove beyond reasonable doubt the case against an accused person.53
Having expressed its frustration over the quality of investigations and pros-
ecutions in this case, the Court proceeded to acquit all the accused persons on the
basis that the prosecution had failed to prove their case.
2.2.2 Republic v Edward Kirui54
This case portrays the direct role of the then Kenyan Government in
the PEV of 2007. Aggrieved by the declaration of Mwai Kibaki as the elected
president of the 2007 general elections, the Orange Democratic (Movement)
Party (ODM) contested the elections and gave notice of their intention to hold
peaceful demonstrations to express their displeasure. The police responded to
this notice by declaring the planned demonstrations illegal. Consequently, the
Governmentintensiedpolicepresencealloverthecountry,especiallyinODM’s
strongholds. Despite declaring the meetings illegal, ODM demonstrations went
ahead as planned. At Kondele, in Nyanza, displeased crowds continued with the
demonstrations despite warnings to disperse. It was in this context that two persons
wereshotdeadbytheaccusedpoliceocer.Theseeventswerecapturedonvideo
camera and displayed during trial.
WhiletheCourtfoundthattheoenceofmurderhadbeencommitted,the
major issue for determination remained the question whether it was the accused
person who had shot the deceased. One of the central issues in the case was the
identicationof theaccusedperson.Thiswasshrouded inuncertaintyas aresult
of contradicting evidence from some of the witnesses. The Court did not, however,
fault the police for failing to hold an identication parade since the identifying
witnesses were well known to the accused person even before the incident. The
other�ey issue that arose was whether it istheaccused that red the shots that
�illedthedeceasedpersons.Thesergeantin charge of the armoury testied that
on that material day he issued the accused with an AK47 serial number 23008378.
The Firearms Examiner and the then Acting Senior Superintendent, however, testi-
edthattherearmthat�illedtheaccusedboretheserial number3008378.This
castsomedoubtonwhethertheaccused’sriewasemployedto�illthedeceased.
53 See (n 51).
54 For the entire referencing below on the facts and court decision in this case see, Nairobi High Court
Criminal Case No 9 of 2008; (2010) eKLR <http://kenyalaw.org/caselaw/cases/view/68555/> accessed
15 May 2014.
39
Prosecuting Crimes Related to the 2007 Post-Election Violence in Kenyan Courts
According to the Court, the prosecution had not only failed to produce before the
courttheriewithserialnumber3008378,butalsofailedtoma�eanyattemptsto
lin�therearmtotheaccused.Asaresulttheaccusedwasacquitted.Certaincivil
society actors have however argued that the police tampered with this evidence.55 A
notable trend among these cases is mass acquittals as a result of the failure on the
part of local prosecutors to prove their cases according to the required standard of
proof. Thus, corruption within the police investigating agencies, incompetence and
theunwillingnessofpoliceocerstoholdtheircolleagues accountablearesome
of the factors that largely contributed to massive premature dismissal of PEV cases.
Relatedly, a review by a Task Force56 revealed that some victims hardly knew
theirperpetrators andonlyidentied themas‘neighbours’ or‘membersof apar-
ticular ethnic group.’57 This contributed to several acquittals especially in sexual
and gender-based crimes (SGB crimes).58Despitenumerouseortsbyvictimsof
SGBcrimesidentifyingthepoliceastheirperpetrators,nosinglepoliceocerwas
chargedwithsexualoences.59
2.3 Lackoflegitimacyandlocalownership
Like any other transitional justice mechanism, local prosecutions must be rel-
evant to the local communities. As such, they must take into account the priorities
ofthelocalcommunitiesintheidenticationandprosecutionofallegedperpetra-
tors. Thus, not only should the elites declare such process legitimate, but the local
population also.60
LocalprosecutionofPEV cases has sueredfromalac�oflegitimacy and
localownershipattwolevels:First,thedistrustbetweeninvestigatingpoliceoc-
ers and the general public and, secondly, the distrust between the judicial arm of
government and the general public.
55 Human Rights Watch (n 37) 33.
56 In 2012, through Gazette Notice No 5417 of 20 April 2012, the Director of Public Prosecutions estab-In 2012, through Gazette Notice No 5417 of 20 April 2012, the Director of Public Prosecutions estab-
lished a Multi-Agency Task Force to undertake a national review, re-evaluation, and re-examination of
all cases arising out to the 2007-2008 PEV.
57 The Multi-Agency Task Force on the 2007/2008 PEV (n 39) 3. CIPEV report (n 2) 400.
58 Republic v Julius Cheruiyot Kogo, Republic v Erick Kibet Towett and Simion Kipyegon Chepkwony. In
both these cases, although the victims could identify the perpetrators, they failed to identify their names.
Thiscausedthecourttodoubttheaccuracyoftheidenticationprocess,whichleadtoacquittals.
59 Human Rights Watch (n 37) 38.
60 This is the position favoured by both scholars and human rights organisations. See, for example, Human
Rights Watch (n 37) 4; E Lutz, ‘Transitional justice: Lessons learned and the road ahead’ in N Roht-
Arriaza and J Mariezcurrena (eds) Transitional justice in the twenty-rst Century: Beyond truth versus
justice (Cambridge University Press 2006) 325-342.
40 Evelyne Owiye Asaala
Onemajorreasoncontributingtopoorinvestigationsbythepoliceocersis
their perceived lack of legitimacy by the locals who are a crucial component of the
process.The Kenyanpubliclac�strust of policeocers.61 This was exacerbated
by the tribal tension that prevailed in the country during and after the PEV period.
For example, the public wanted nothing to do with the police in areas where they
were perceived to be Government.62Apoliceocerhaspreviouslyobservedthat
‘in Western [province] and Nyanza [province], people don’t give information about
crime. People are used to being in the opposition, and they receive Government
ocialsnegatively.’63 In some exceptional cases, the police have been accused of
being partial in their investigations especially where they had ethnic solidarity with
accused persons.64 This was a particular challenge in the PEV investigations in Rift
Valley, where police ocers have confessed that some of their colleagues were
in synch with some suspected local perpetrators.65 Under these circumstances, it
becomes a challenge for the police to carry out eective investigations because
those who possess such knowledge may not be willing to freely pass it on to the
authorities.
A negative public perception of Kenya’s Judiciary further distances the local
population from local prosecution of PEV related cases. Historically, the Judiciary
has had a reputation of lacking independence,66 being too untrustworthy to dispense
any form of justice67 and as extremely corrupt.68 It is this mistrust of the local judi-
cial system that informed the excitement among Kenyans upon learning of the pos-
sibility of alleged perpetrators being prosecuted at the ICC.69 Notably, however, the
61 Human Rights Watch (n 37) 47.
62 Ibid.
63 Ibid.
64 Ibid.
65 Ibid.
66 CIPEV report (n 2) 460.
67 Africa Policy Institute, Breaking Kenya’s impasse: chaos or courts? Africa policy brief, page 3 as cit-Africa Policy Institute, Breaking Kenya’s impasse: chaos or courts? Africa policy brief, page 3 as cit-
ed in Ongaro and Ambani ‘Constitutionalism as a panacea to ethnic divisions in Kenya: a post 2007
election crisis perspective’ in G Mukundi (ed) Ethnicity, human rights and constitutionalism in Africa
(Kenya Section of the International Commission of Jurists 2008) 29. This prompted the then ODM
presidential candidate, Raila Odinga, to publicly decline having the disputed elections of 2007 resolved
by local courts.
68 Report of the Task Force on Judicial Reforms (2009) 74-77.
69 ‘It’s The Hague, Kenyans tell violence suspects’ Daily Nation (Nairobi, 19 July 2009) 8 and 9. See also
‘Hopes for justice high among Kenyans as Ocampo arrives’ Daily Nation (6 November 2009) 4. See
‘MPs vow to defy Kibaki and Raila’ The Standard (7 July 2009) <http://www.standardmedia.co.ke/?inc
l=comments&id=1144018708&cid=&articleID=1144018708> accessed 3 July 2012, pursuant to which
theMembersofParliamentvowedtobloc�theBillsee�ingtotrypost-polloenderslocallyforfearof
manipulation from the executive.
41
Prosecuting Crimes Related to the 2007 Post-Election Violence in Kenyan Courts
Judiciaryhasundergonesomefundamentalreforms.Signicantinthisregard,was
theadoptionofstringentmeasuresofappointingjudicialocersandthevettingof
current judges and magistrates.70 Unfortunately, despite these reforms, a similar at-
titude is slowly and steadily pervading the public perception regarding prosecution
of the actual perpetrators of PEV. This attitude has been informed by what some
commentators perceive to be erroneous jurisprudence on key judicial decisions re-
volving around the ‘real power wielders.’71 As a result, there has been less focus on
those few cases that have been successfully prosecuted at the local level.
2.4 Lackofpoliticalwill
Government political commitment to the entire process of transitional jus-
tice,includingprosecution,isfundamentaltoit.However,domesticeortstowards
holding alleged perpetrators of international crimes accountable for past atrocities
in Kenya has been largely characterized by a lack of political will. A report by
HumanRightsWatch,forinstance, labelsdomesticprosecutioneortsasa‘half-
hearted’eortataccountability,withtheresultthat‘hundredsof[...]perpetratorsof
serious crimes continue to evade accountability.’72 According to Asaala and Dicker,
thisdeciencycan beattributedtoa hostofchallenges,including adistinctlac�
of political will at two levels.73First,atthelocallevel,astudyhasconrmedthat
the police, the Attorney General and all state prosecutors succumbed to negative
local political pressure against prosecution.74 In several instances, local politicians
aswellasthethenPoliceCommissioner,MohammedAli,telephonedhisocers
instructing them to release suspected perpetrators of PEV.75 Consequently, despite
overwhelming evidence that the police may have gathered against suspected per-
petrators, they had no option but to discard it and release the suspects without fur-
70 Vetting of Judges and Magistrates Act of 2011.
71 See generally E Asaala and N Dicker, ‘Transitional justice in Kenya and the UN Special Rapporteur on
Truth and Justice: Where to from here?’ (2013) 13 (2) Africa Human Rights Law Journal 351; see also
International Centre for Policy and Conict and 5 Others v the AG and 4 Others Constitutional and Hu-
man Rights Division Petition 552 of 2012 (2013) eKLR, <http://kenyalaw.org/CaseSearch/view_ pre-
view1.php?link=119030658917561929 34559> accessed 4 April 2014. See generally Supreme Court of
Kenya Petitions 3, 4 and 5 of 2013; Reports on re-tally of 22 polling stations in Petition 5 of 2013 and
Report of the scrutiny of 33 400 polling stations. These reports are as a result of the Supreme Court’s
own suo moto motion.
72 Human Rights Watch (n 37) 4.
73 Asaala and Dicker (n 71).
74 Human Rights Watch (n 37) 53.
75 Ibid 54.
42 Evelyne Owiye Asaala
ther prosecution. Furthermore, despite the CIPEV report implicating several local
leaders for having funded and facilitated the violence, the police never bothered
to follow-up and investigate such claims.76 It is therefore not surprising that the
Government has displayed a lot of laxity towards eective local prosecution of
some of the crucial cases it dubbed ‘priority cases.’77 In most of these cases, the au-
thorities closed their investigations without any arrest, claiming that there were no
identiablesuspects.78 As a result, none of the cases that were prosecuted involved
suspected local politicians despite allegations of their involvement in organizing,
nancinganddirectingthelocalviolence.79 Although this contribution is aware of
the fact that prosecuting PEV under national laws would not cover all the elements
ofcrimesagainsthumanity(li�edeportation), acts li�e organizingandnancing
wouldsucientlybecoveredunderthenotionof‘accessoriesbeforethefact’80 that
essentially apportions criminal liability.
Secondly, at the international level, the Government has displayed general
reluctancetoeectivelycooperatewiththeICCregardingtheKenyancases.81 For
example, despite Government’s reluctance to establish a tribunal to prosecute those
who bare the greatest responsibility for international crimes,82 Parliament has on
76 CIPEV (n 1) 225. For example, the report implicates a member of Parliament from the Coast province
in funding the youth to burn all businesses belonging to ODM supporters.
77 These included, for example, the burning of a house in Naivasha that killed 9 people.
78 Republic v Jackson Kibor, Nakuru Magistrate’s Court, CR 96/08. Mr Kibor, an ODM politician was
arrested and charged with inciting violence. According to an interview with BBC on 31 January 2007,
Kibor had declared war against Kikuyus and advocated for their eviction from the Rift Valley as fol-
lows:‘PeoplehadtoghtKi�uyusbecauseKiba�iisaKi�uyu[...].Wewillnotsitdownandsayone
tribeleadKenya.Wewillght.Thisisawar.Wewillstartthewar.Onetribecannotleadtheother41
tribes.Thisisawar.Nowwe’reghtingforpower[...].Wewillnotlet[Ki�uyus]comebac�again,be-
cause they are thieves. We will never let them come back [...]. We will divide Kenya.’ A Kalenjin youth
interviewed in the same broadcast, who confessed to have participated in the Kiambaa church burning,
told the journalist that perpetrators of violence were taking cues from the elders: ‘We as young men, our
culture, we don’t go over what somebody [...] an elder tells us. If the elder say no, we step down, but if
our elders say yes, we will proceed [...]. I do it because it is something that has been permitted from our
elders.’ Human Rights Watch (n 37) 29 citing P Harter, ‘Assignment’ BBC World Service, January 31,
2008. This prosecution never proceeded to the end as the then Attorney General withdrew the charges
by entering a nolle prosequi.
79 Human Rights Watch (n 37) 29.
80 Under Kenyan practice, an accessory before the fact has been used interchangeably with aiders, abettors
and procurers. This is covered under Section 20 of the Penal Code and includes aiders, abettors and
thosewhocounselledorprocured(assistedorencouraged)theprincipleoenderintothiscategory.In
terms of responsibility and punishment, aiders, abettors, counsellors or procurers are all held respon-
sible in the same manner as though they were the actual perpetrators.
81 Asaala and Dicker (n 71) 346.
82 CIPEV called upon Government to establish a special tribunal comprising both national and interna-CIPEV called upon Government to establish a special tribunal comprising both national and interna-
tional judges and prosecutors to prosecute international crimes committed during the PEV.
43
Prosecuting Crimes Related to the 2007 Post-Election Violence in Kenyan Courts
several occasions unanimously resolved to have Kenya withdraw from the Rome
Statute.83 Subsequently, in January 2011, the Government announced its intention
to establish a special division within the High Court to deal with all PEV cases.84
This was a laudable step, since such local initiatives have the potential to assuage
related fears in future.85 While recommending the establishment of an International
Crimes Division (ICD) modelled on the ICC within the High Court, a Task Force
has highlighted that ICD should be conferred jurisdiction over PEV cases in order
to try international crimes under the ICA.86
The timing of this announcement, however, raised questions about its real
motive. This is especially so given that on 26 November 2009; the ICC had author-
izedtheOceofthe Prosecutor (OTP) to investigatetheKenyansituation.The
intention of establishing a special division within the High Court was therefore
largelymisconstruedbyGovernmentocials,whovieweditasawayofreferring
ICC cases back to local mechanisms and not as a means of complementing ICC
processes.87Thus,itis fearedthattheultimateobjectiveoftheseeortmayhave
been to undermine the ICC process.88
Immediately after the said announcement, on 31 March 2011, the Government
made an application to the Pre-Trial Chamber of the ICC challenging the admissi-
bility of the six Kenyan cases on the basis that there were ongoing local investiga-
tions,whichapplicationfailed.WhileconrmingtheadmissibilityoftheKenyan
cases, the ICC dismissed claims by Kenya that there were ongoing investigations
as being hypothetical promises and not investigations within the context of Article
17(1)(a).89AccordingtotheCourt,‘thefailuretospecicallymentionthesuspects
before the ICC as some of the people under the Government’s investigation, ren-
dered the information given by the Kenyan Government inadequate to sustain the
83 Motion 144 in Kenya National Assembly, Motions 2010 (22 December 2010).
84 See generally ICTJ ‘Prosecuting international and other serious crimes in Kenya’ (2013) 2 <https://ictj.
org/sites/default/les/ICTJ-Brieng-Kenya-Prosecutions-2013.pdf>accessed6March2013.
85 Judicial Service Commission, Report of the Committee of the Judicial Service Commission on the
Establishment of an International Crimes Division in the High Court of Kenya (Oct. 30, 2012).
86 The Multi-Agency Task Force on the 2007/2008 PEV (n 39) 4-5.
87 KPTJ and KHRC ‘Securing justice: establishing a domestic mechanism for the 2007/08 post-election
violence in Kenya’ (2013).
88 KPTJ and KHRC ‘Securing justice (n 87) 14.
89 Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, Decision
on the application by the Government of Kenya challenging the admissibility of the case pursuant to
Article (19)(2)(b) of the Statute, Pre-Trial Chamber II (30 May 2011) ICC-01/09-02/11-96, 6. See also
Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Decision on the
application by the Government of Kenya challenging the admissibility of the case pursuant to Article
19(2)(b) of the Statute Pre-Trial Chamber II (30 May 2011) ICC-01/09-01/11-101, 19.
44 Evelyne Owiye Asaala
application.’90 The Court was emphatic that an investigation within the meaning of
Section 17(1) must encompass the same conduct in respect of the same persons as
at the time of the proceedings concerning the admissibility challenge.91 It is indeed
very doubtful as to whether any local prosecutions would seek to prosecute the
same individuals before the ICC.
Kenyan’sghtagainsttheadmissibilityofPEV-relatedcasesbeforetheICC
followed several failed attempts to establish a special tribunal, coupled with absurd
requests by the East African Court of Justice and the African Court on Human and
Peoples’ Rights to undertake the prosecutions.92 The declaration by the Kenya’s
Government that no further prosecutions of PEV-related cases was tenable due to a
lac�ofsucientevidence93 supplemented the numerous failed attempts to get rid
of the ICC process. While Government’s declaration may be true, in fact, it illus-
trates Kenya’s discomfort regarding the ongoing ICC cases. It is submitted that the
essence of this statement was to convey a message to the international community
that there were no crimes against humanity committed in Kenya’s PEV after all.
This view is informed, rst, by the persistence of calls by Kenya in collabora-
tion with regional and sub-regional institutions that the then ongoing ICC cases
against Kenya’s President and Deputy President be withdrawn.94 Again, in a bid to
undermine the ICC, Kenya refused to arrest Omar Al Bashir when he visited the
country on 27 August 2010, despite a High Court decision calling upon it to do
so.95Secondly,isthereluctancebytheDPP’socetoinitiateinvestigationsand/or
prosecutions of a total of 255 alleged perpetrators of PEV as recommended by the
Truth Justice and Reconciliation Commission (TJRC) of Kenya.96 Instead, Parlia-
ment has enacted legislation allowing it to make amendments to the TJRC report,
whichwouldeectivelyamounttoare-writingofthereport.97
90 Prosecutor v Muthaura, Kenyatta, Ali (n 89) 25. See also Prosecutor v Ruto, Kosgey, Sang (n 89). See
a detailed discussion of this decision in EO Asaala, ‘The International Criminal Court factor on transi-
tional justice in Kenya’ in O Maunganidze and K Ambos (eds) Power and prosecutions: Challenges and
opportunities for international criminal justice in sub-saharan Africa (2012) 133-134.
91 Prosecutor v Muthaura, Kenyatta, Hussein Ali (n 89) 21, 26.
92 On 12 February 2009, a ‘Constitution of Kenya (Amendment Bill) 2009’ allowing the creation of a local
tribunal was shot down by the Kenyan Parliament. See also ICTJ, ‘Prosecuting international and other
serious crimes in Kenya’ (2013) 2.
93 ‘CID report says no charge can hold for PEV perpetrators’ The Standard (15 February 2014).
94 Extraordinary Session of the Assembly of the African Union, Decision on Africa’s relationship with the
International Criminal Court (12 October 2013) Ext/Assembly/AU/Dec 1, 2-3.
95 The Kenya Section of the International Commission of Jurists v the Attorney General, The Minister of
State for Provincial Administration and Internal Security, Final Judgment, eKLR; 28 November 2011.
96 See generally chapter IV of Vol 4 of the TJRC Kenya Report.
97 Section 49 of the Truth Justice and Reconciliation Act provided that upon the publication of the TJRC’s
45
Prosecuting Crimes Related to the 2007 Post-Election Violence in Kenyan Courts
The tension between Kenya and the ICC can thus be cited as a central reason
forthelac�ofpoliticalwilltowardsensuringeectivelocalprosecutionofperpe-
trators of PEV-related crimes in Kenya. This, coupled with the general elections of
2013, shifted much of the focus away from local accountability measures through
prosecution.
3 Conclusions and recommendations
Thischaptersetouttodiscusstherealchallengesfacingtheeectiveprosecu-
tionofinternationalcrimeinKenya’sPEV-relatedcasesandhowthesehaveinu-
enced the transitional justice process in Kenya. It has established that a majority
of the cases reported to authorities during the PEV period were hardly investigated
and/or prosecuted. For example, out of the 6081 cases that were reported, the police
prosecuted only 366 cases. The majority of the few cases that were pursued ended
up in acquittals, with only six successful convictions. Although the police blame
this on resource constraints, the absence of a forensic laboratory with trained per-
sonnel and inadequate equipment, this contribution has established the following
as the main contributing factors: poor investigations, corruption and incompetence
within police, lack of legitimacy and local ownership and lack of political will.
As such, subsequent prosecution of PEV-related cases cannot be said to have
contributed in a positive way towards Kenya’s transitional justice objectives. In
fact, it cannot be said that local prosecution of PEV-related cases guarantee the
prevention of similar crimes in the future. Related tribal clashes silently continue
to ravage the country without any respect for human life.98 Yet, the perpetrators are
hardly held to account. This continued impunity is evidence that the rule of law re-
mains elusive in Kenya. The general lack of political will coupled with the absence
of local ownership and inept investigations have denied the local prosecution of
international crimes in Kenya’s PEV the much-needed legitimacy, thus compromis-
ingitsabilitytoinuenceKenya’stransitionaljusticeprocessinapositivemanner.
report,theMinisterof Justice and ConstitutionalAairs was required to ‘operationalise’the imple-
mentation mechanism as would have been proposed by the TJRC within six months. The Truth Justice
and Reconciliation (Amendment) Act No 44 of 2013, Kenya Gazette Supplement No 178, however
introduces an interesting twist. It provides that ‘The Minister shall, upon consideration of the report of
the Commission by the National Assembly, set in motion a mechanism to monitor the implementation
of the report in accordance with the recommendations of the National Assembly.’
98 D Miriri and H Malalo, ‘Second Kenyan minister charged with inciting violence’ Reuters (27 Sep-
tember 2012). See also J Gondi, ‘Bridging the impunity gap in Kenya requires a holistic approach to
transitional justice’ International Centre for Transitional Justice (19 July 2012).
46 Evelyne Owiye Asaala
Consequently,eectiveprosecutionsintheongoingtransitionalprocessinKenya
remains a mirage. Regardless of the initial misunderstandings, this chapter calls
upon the Judiciary to re-visit the discourse on establishing the International Crimes
Division within the High Court as a specialised prosecutorial unit to deal with these
kinds of crimes. This will not only enhance Kenyan cooperation with the ICC in
future, but also guarantee special attention to international crimes on the domes-
tic level. Government should facilitate this initiative by providing the necessary
nancialresources,trainingofpersonnelandrelevantsta�eholders(includingthe
police) and the establishment of a forensic laboratory with trained personnel and
adequate equipment.
47
INTERNATIONAL CRIMINAL JUSTICE AS
INTEGRAL TO PEACEBUILDING IN AFRICA:
BEYOND THE ‘PEACE V JUSTICE’ CONUNDRUM
Ottilia anna Maunganidze*
Abstract
The need to reconstruct and rebuild post-conict societies through transitional
and long-term mechanisms complements traditional diplomacy, peacemaking
and peacekeeping. At the same time, responding to human rights violations that
occurred during the conict demands the rule of law and justice. The promotion
and sustenance of peace, together with the delivery of justice, are arguably mutually
reinforcing. On a purely conceptual level, justice forms part of peacebuilding, with
the latter being more of a long-term process than the former. Thus, justice may be
viewed as an element of peacebuilding. It is unsurprising therefore that several
commentators include justice as a core component of peacebuilding.
This chapter will demonstrate that the two emerging paradigms of “peacebuilding”
and “international criminal justice,” while often treated as separate, are inextricably
linked. An understanding of their interconnectedness can help inform ways of
* Ottilia Anna MaunganidzeisaseniorresearcherintheoceoftheManagingDirectoroftheInstitute
for Security Studies (ISS). She explores new areas of work for the ISS with a focus on emerging
threats, and helps to inform institutional strategy. She also undertakes research and provides technical
assistance support in the areas of international criminal justice, international human rights law and
criminal justice responses to complex crimes and transnational threats. She has a Master of Laws
(LLM) in Fundamental Rights Litigation and International Human Rights Law from the University of
South Africa (UNISA). Ottilia also holds a post-graduate Diploma in International Studies (Peace and
ConictinAfrica)withspecialisationsinthesociology ofgender,development,Africaninternational
relations and peacekeeping, and a Bachelor of Laws (LLB), both from Rhodes University, South Africa.
 Pleasenotethattheviewsexpressedinthischapteraretheauthor’sownandmaynotnecessarilyreect
the views of the ISS.
48 Ottilia Anna Maunganidze
engaging going forward. From the outset, it should be claried that this chapters
main concern is justice and how it can contribute and/or already contributes to
peace. While it is appreciated that justice is not limited solely to international
criminal justice, the discussion on justice will be limited to international criminal
justice for the purposes of this paper.
Specically, this chapter will examine the contribution of international criminal
courts (in their various forms) to building sustainable peace in post-conict
societies that have experienced mass atrocities. In so doing, this chapter will posit
that international criminal justice (as part of a set of justice processes) will serve
to ensure long term peace in contexts where it is necessary and properly executed.
While necessary and important, a fuller discussion of national justice processes
geared towards international criminal justice is beyond the scope of this chapter.
1 Introduction
Little progress can be made by merely attempting to repress what is evil; our
great hope lies in developing what is good.1
In the aftermath of the Cold War, two new paradigms emerged, both arguably
informed by the emerging dynamics of intrastate conict in place of interstate
conict. The rst, immediately after the end of the Cold War, was the need to
reconstruct and rebuild post-conict societies through transitional and long-term
mechanisms. This ‘peacebuilding’ served to complement traditional diplomacy,
peacemaking and peacekeeping. The second, largely in response to the gross human
rightsviolationscommittedduringthecourseofviolentconictssuchasthoseinthe
former Yugoslavia and Rwanda, was a legalistic response. This legalistic response
centred on the rule of law and justice, and positioned itself at the convergence
between international humanitarian law, international human rights law and criminal
law.
This chapter will demonstrate that the two emerging paradigms of ‘peace-
building’ and ‘international criminal justice,’ while often treated as separate are
inextricably linked. The chapter seeks to show that both are equally important. An
understanding of their interconnectedness and relevance in promoting international
peace can help inform ways of engaging going forward.
1 Calvin Coolidge
49
International Criminal Justice as Integral to Peacebuilding in Africa: Beyond the ‘Peace v Justice’ Conundrum
Fromtheoutset,itshouldbeclariedthatthischapter’smainconcernisjus-
tice and how it can contribute and/or already contributes to peace. While it is ap-
preciated that justice is not limited solely to international criminal justice, for the
purposes of this chapter, the discussion on justice will restrict itself to international
criminal justice.
Specically,thischapterwillexaminetheroleofinternationalcriminaltribu-
nals (in their various forms) in contributing to building sustainable peace in post-
conict societies that experienced mass atrocities. In so doing, this chapter will
posit that peacebuilding is not in the shadow of international criminal justice, but
rather that international criminal justice (as part of a set of justice processes) will
serve to ensure long term peace in contexts where it is necessary and properly ex-
ecuted. While necessary and important, a fuller discussion of national justice pro-
cesses geared towards international criminal justice and peacebuilding is beyond
the scope of this chapter.
2 Understanding peacebuilding and international criminal justice
Peacebuildinghasavarietyofdenitions,allofwhichcommonlyregarditas
arangeofmeasurestargetedtoreducetheris�oflapsingorrelapsingintoconict
through the strengthening of national capacities at all levels. These measures, serve
notonlyto manage conict, but also serve to lay the foundation forsustainable
peace and development.2 The concept, developed in the years following the Cold
War, was introduced in 1992 by then Secretary General of the UN, Boutros Boutros
Ghali, in his Agenda for Peace report.3 In this report, the concept of ‘peacebuilding’
isdenedasamultidimensionalpolitical project involving many activities and ac-
tors.4Thereportwentfurthertodenetheconceptasasetoftas�sandgoalsfacing
UN agencies operating in post war contexts distinct from peacemaking and peace-
�eepingthatoccurduringtheconictandsee�acessationofhostilities.Thus,the
aims of peacebuilding are broad and longer term. In the Supplement to An Agenda
for Peace,5 peacebuildingwasthusdened asaimingto‘createstructuresforthe
institutionalisation of peace.’
2 United Nations Secretary General Policy Committee, 2007.
3 An agenda for peace: Preventive diplomacy, peacemaking and peace-keeping UN Doc A/47/277 -
S/241111, 17 June 1992.
4 Own emphasis. It is interesting to note that, conceptually peacebuilding was initially regarded as a
political process.
5 Supplement to An agenda for peace: Position paper of the Secretary-General on the occasion of the
Fiftieth Anniversary of the United Nations, 3 January 1995, UN A/50/60-S/1995/1.
50 Ottilia Anna Maunganidze
Today, the UN clusters these measures into ve core categories.These are
economic revitalisation, inclusive politics, public administration or basic service,
justice, and basic safety and security.6 The World Bank limits the measures to three:
economic measures, security and justice.7 Peacebuilding has ‘short-term as well as
long-term objectives aimed at ensuring sustainability in the security, political, eco-
nomic and justice spheres.’8Specicallyonitslong-termgoals,Lambournedenes
peacebuilding as ‘strategies designed to promote a secure and stable lasting peace
inwhichthebasichumanneedsofthepopulationaremetandviolentconictsdo
not recur.’9
International criminal law is the ‘body of laws, norms, and rules governing
internationalcrimesandtheirrepression,andtherulesaddressingconictandco-
operation between national criminal law systems.’10 ‘International criminal justice’
is the result of the use of international criminal law to prosecute alleged perpetra-
torsofspecichumanrightsviolations,whichfallintothebroadcategoriesofwar
crimes, crimes against humanity, genocide and the crime of aggression.11
According to Galbraith, international criminal justice aspires to achieve three
idealistic goals.12 Firstly, international criminal justice aspires to bring perpetrators
to justice and to provide retribution for victims.13 Secondly, international criminal
6 UN, Report of the Secretary-General on peacebuilding in the immediate aftermath of conict, A/63/881–
S/2009/304.
7 World Bank, World Development Report 2011.
8 W Lambourne, ‘Transitional justice and peacebuilding after mass violence’ (2009) 3 International
Journal of Transitional Justice 28-48.
9 W Lambourne, ‘Post-conict peacebuilding: Meeting human needs for justice and reconciliation’
(2004) 4 Peace, Conict and Development 3.
10 WA Schabas, ‘International criminal law’ Encyclopaedia Britannica (2011).
11 Forthepurposesofthischapter,thesecrimesshallbeunderstoodastheyaredenedinexistinginter-Forthepurposesofthischapter,thesecrimesshallbeunderstoodastheyaredenedinexistinginter-
national humanitarian law treaties and conventions. Further, the crimes shall be understood as they are
denedin thefounding treatiesofinternationalcriminaltribunals,suchastheInternationalCriminal
Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY),
internationalised/hybrid courts such as the Special Court for Sierra Leone (SCSL), and as contained in
the Rome Statute of the International Criminal Court (ICC). See R Cryer, An introduction to interna-
tional criminal law and procedure (Cambridge University Press 2007) 18. It should be noted that at
present, jurisdiction over the crime of aggression will only be activated after 1 January 2017 after 30
states parties to the Rome Statute of the International Criminal Court ratify amendments to the Statute
that pave way for such prosecution. The crime of aggression was previously prosecuted at post-World
War II International Military Tribunals as the crime against peace.
12 J Galbraith, ‘The pace of international criminal justice’ (2009) 31 Michigan Journal of International
Law 79–155, 83.
13 Ibid. Included in the retributive function of international criminal justice is the aim to deter. See Cryer
(n 11) 18.
51
International Criminal Justice as Integral to Peacebuilding in Africa: Beyond the ‘Peace v Justice’ Conundrum
justice seeks to create an historical record of mass atrocities.14 Lastly, international
criminal justice helps societies in transition to achieve peace and reconciliation.15
It is within the scope of Galbraith’s third aim of international criminal justice that
the link with peacebuilding is clearest. Indeed, international criminal justice can be
viewed as a means to restore the rule of law and provide accountability and redress
for the victims of international crimes. This can be done at the international level
through the various international criminal tribunals. It can also be achieved at na-
tional level through domestic prosecutions or other accountability processes. How-
ever, especially for domestic prosecutions and other accountability process, this is
not without its practical hurdles and political challenges. Thus, while the ideal is for
international criminal justice to ensure accountability, this is not always realised.
A mix of solutions can be adopted to eectively ensure that international
criminal justice contributes to the rule of law, and thus serves to promote long-term
peace. In this respect, it is worth noting that instruments promoting international
criminal justice, such as the Rome Statute of the International Criminal Court (Rome
Statute), contain clear statements on the role of judicial institutions in promoting
‘peace and security.’ It would not be remiss therefore, on a purely conceptual level,
to maintain that justice forms part of peacebuilding, with the latter being a longer-
term process than the former. It is unsurprising therefore that several commentators
include ‘justice’ as a core component of peacebuilding.16
3 False dichotomy of ‘peace versus justice’ in international criminal
justice
… [I]t is essential, if man is not to be compelled to have recourse, as a last resort, to
rebellion against tyranny and oppression, that human rights should be protected by the
rule of law…17
14 Galbraith (n 12) 83.
15 Ibid.
16 Lambourne (n 8); J Herman, O Martin-Ortega and CL Sriram, ‘Beyond justice versus peace: Tran-Lambourne (n 8); J Herman, O Martin-Ortega and CL Sriram, ‘Beyond justice versus peace: Tran-
sitional justice and peacebuilding strategies’ <http://ecpr.eu/Filestore/PaperProposal/6e3e3742-d3fb-
405e-aa53-56d810f1b4b2.pdf> accessed 19 August 2015; L Davis and T Unger, ‘Justice in Peacebuild-
ing: Towards a policy framework for the European Union’ (2008) ICTJ Discussion Paper; LJ Laplante,
‘Transitional justice and peace building: Diagnosing and addressing the socioeconomic roots of vio-
lence through a human rights framework’ (2008) 2 (3) International Journal of Transitional Justice
331-355. See too, United Nations Assistant Secretary General for Peacebuilding, Judy Cheng Hopkins’
denitionofpeacebuildinginwhichsheincludesjusticeunder“healing.”
See generally the website of the Peacebuilding Commission at <http://www.un.org/peace/peacebuild-
ing/> accessed 19 August 2015.
17 Universal Declaration of Human Rights G.A. Res. 217A (III) U.N. Doc A/810 Preamble, (1948).
52 Ottilia Anna Maunganidze
Increasingly, in conversations about international criminal justice, and also in
those about global peace and security, peace and justice are discussed as if they are
mutually exclusive, sometimes as competing, concepts.18 In the same vein there are
dieringviewsontheimportanceofpeaceandjusticeinconictandpost-conict
societies.19 On the one hand, there are those who believe justice should not be fore-
gone for peace. On the other, there are those who contend that justice can and does
undermine peace. In both these camps, peace is seemingly understood in the short
term and as that simply attained by the cessation of hostilities. Thus, peace is argu-
ablynotunderstoodasitisbroadlydenedinlong-termpeacebuilding.Inunder-
standing peace as ‘sustainable peace’ and thus long-term, justice (which includes
international criminal justice) and reconciliation should be seen as preconditions.
This viewpoint regards peace and justice as two sides of the same coin.
Inhisreportontheruleoflawinpost-conictsocieties,thenUNSecretary-
GeneralKoAnnanstated,‘justice,peaceanddemocracyarenotmutuallyexclu-
sive objectives, but rather mutually reinforcing imperatives.’20 This is an important
point of departure and is a view that the UN maintains.21 Indeed, since 2004, the
UN has developed and continues to develop policy guidelines22 and toolkits dealing
withdierenttransitionaljusticeapproachesandjustice-relatedissuesthatappre-
ciate these linkages. Similarly, campaigns such as ‘no peace without justice’23 are
rooted in the belief that peace and justice should not be seen in isolation from or
in competition with each other. These campaigns move from the point of departure
thattheseprocessesaremutuallyreinforcingandmuchmoreeectivetogetherthan
apart.
18 See generally Human Rights Watch, Seductions of “sequencing”: The risks of putting justice aside for
peace, (2010).
19 CL Sriram, Confronting past human rights violations: Justice vs. peace in times of transitions (Frank
Cass 2004); MJ Aukerman, ‘Extraordinary evil, ordinary crime: A framework for understanding tran-
sitional justice’ (2002) 15 Harvard Human Rights Journal 39-97. On the role of the ICC in light of the
peace vs. justice debate, see L Davis, ‘The ICC: a straw man in the peace-versus-justice debate?’ (2013)
<https://www.osloforum.org/sites/default/les/Africa-Mediators-retreat-BP-ICC.pdf>accessed19Au-
gust 2015.
20 UN Security Council, The rule of law and transitional justice in conict and post-conict societies,
Report of the Secretary-General, S/2004/616 (23 August 2004).
21 UN Security Council, The rule of law and transitional justice in conict and post-conict societies,
Report of the Secretary-General, S/2011/634 (11 October 2011).
22 See, for example, United Nations, ‘Guidance note of the Secretary-General: United Nations approach
to transitional justice’ (2010) and OHCHR, Analytical study on human rights and transitional justice
(United Nations) 2009.
23 No Peace without Justice website, <http://www.npwj.org/About-NPWJ/Overview.html> accessed 19
August 2015.
53
International Criminal Justice as Integral to Peacebuilding in Africa: Beyond the ‘Peace v Justice’ Conundrum
Within the African Union (AU) context, Article 4(h) of the AU Constitutive
ActisoftencitedasreectiveofacommitmentbyAfricatoendimpunityandthus
promoting peace through responding eectively to international crimes. Article
4(h) provides for African states to intervene in respect of war crimes, crimes against
humanity and genocide. Article 4(h) can also be interpreted as showing that the pro-
tection of human rights is central to the AU.24 While the intervention contemplated
in Article 4(h) is arguably a political or military one, it is worth stating that both
justice and peacebuilding could be mechanisms of dealing with these crimes after
and perhaps even during thefact.Signicantly,suchinterventionscouldlaterdeter
would be perpetrators.25
Also,theAUatthe2010ReviewConferenceoftheRomeStatuterearmed
its‘uninchingcommitmenttocombatingimpunity’andhasinthepastac�nowl-
edged the link between accountability and lasting peace.26 In addition, in 2013 the
AU Panel of the Wise argued for an integrated approach to peace and justice that is
rooted in transitional justice.27 In this regard, the Panel recommended that the AU
develops a Transitional Justice Policy Framework and strengthen instruments for
justice and reconciliation.28 At the time of writing, development of the policy was
at an advanced stage, with the AU having already hosted a validation workshop in
August 2014.29
Thus, at least in theory and rhetoric, policymakers and their advisors see peace
and justice as processes that are mutually reinforcing – particularly for societies
intransition–andmuchmoreeectivetogetherthanapart.Theproblemarisesin
24 D Kuwali, ‘The conundrum of conditions for intervention under article 4(h) of the African Union Act’
(2008) 17(4) African Security Review 92. For a discussion of Article 4 of the AU Constitutive Act in
general, see T Murithi, ‘The responsibility to protect as enshrined in Article 4 of the Constitutive Act of
the African Union’ (2007) 16(3) African Security Review 14–24.
25 Principle 8 and 27; Centre for Human Rights, Pretoria Principles on ending mass atrocities pursuant to
Article 4(h) of the Constitutive Act of the African Union.
26 AU Statement by Ben Kioko, Legal Counsel of the African Union Commission on behalf of the AU
Commission at the Review Conference of the Rome Statute of the International Criminal Court, Kam-
pala, Uganda, 31 May to 11 June 2010.
27 African Union Panel of the Wise, ‘Peace, justice, and reconciliation in Africa: Opportunities and chal-African Union Panel of the Wise, ‘Peace, justice, and reconciliation in Africa: Opportunities and chal-
lengesintheghtagainstimpunity’TheAfricanUnionSeries,NewYor�:InternationalPeaceInstitute,
February 2013.
28 Here,itisworthnotingthattheAUPaneloftheWisemadereferencetothendingoftheOctober2009
Report of the African Union Panel on Darfur, ‘Darfur: The quest for peace, justice and reconciliation.’
29 Validation Workshop on the Draft African Transitional Justice Policy Framework (ATJPF), Johannes-Validation Workshop on the Draft African Transitional Justice Policy Framework (ATJPF), Johannes-
burg, South Africa <http://pa.au.int/en/content/validation-workshop-draft-african-transitional-justice-
policy-framework-atjpf-johannesburg-s> accessed 15 August 2015.
For comment, see J Brankovic and N Roht-Arriaza, ‘African Union Transitional Justice Policy Frame-
work in practice’, Centre for the Study of Violence and Reconciliation (2014).
54 Ottilia Anna Maunganidze
practically implementing both peace and justice, none at the expense of the other.
It is essential therefore to examine ways in which international criminal justice can
help contribute to peacebuilding.
4 International criminal tribunals: Promoting peace through meting
out justice?
To assess the role of international criminal justice in peacebuilding, it is es-
sential to examine the work of international criminal tribunals that are synonymous
withinternationalcriminaljustice.Theprimaryfocusofthereectionsinthischap-
ter is on the present and future role of the International Criminal Court (ICC or the
Court). However, given that the Court remains a young judicial institution (the ICC
beganitswor�in2003,butitsrstprosecutionwasnotuntil2009),abriefdiscus-
sion of the role of other international criminal tribunals in peacebuilding is neces-
sary. This is also important because past tribunals have operated largely during the
post-conictphase.Inthisregard,the InternationalCriminalTribunalforformer
Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)
will be covered.30 The potential role of the ICC in this regard will then ensue.
4.1 TheICTYandtheICTR
The ICTY and the ICTR were established as judicial institutions founded on
the need to promote and ensure ‘international peace and security.’ Thus these tri-
bunals can be seen to contribute to peace, but not necessarily as having a primary
responsibility of peacemaking, peacekeeping and/or building peace. The ICTY, for
example, has a fourfold mandate.31 First, the ICTY aims to bring to justice persons
allegedly responsible for serious violations of international humanitarian law. Sec-
ond, the ICTY aims to render justice to the victims. Third, the ICTY aims to deter
further crimes. Last, but certainly not least, the ICTY aims to contribute to the
restoration of peace by holding persons responsible for serious violations of inter-
national humanitarian law accountable.
30 TheSCSLsimilarly wasapost-conictinternationalisedtribunal thatprosecutedthoseitregardedas
mostresponsibleforcrimescommittedduringtheconict.Thoughprimarilyajudicialbody,theSCSL
can also be regarded as an integral element of the peacebuilding process during the country’s transition.
31 G Boas and WA Schabas (eds), International criminal law developments in the case law of the ICTY
(MartinusNijho2003).SeealsoICTYWebsite,‘ICTYataglance’<http://www.un.org/icty/glance-e/
index.htm> accessed 15 August 2015; see also ‘The Tribunal’s accomplishments in justice and law’
<http://icty.org/view_from_hague/jit_accomplishments_en.pdf> accessed 15 August 2015.
55
International Criminal Justice as Integral to Peacebuilding in Africa: Beyond the ‘Peace v Justice’ Conundrum
That the tribunals were established by the UN Security Council ‘externally’
(asitwere)todealwithgravecrimescommittedduringtheinternalconictsin
the former Yugoslavia and Rwanda, makes them arguably a form of humanitarian
intervention, albeit a justice-driven one. During the war in Bosnia, the ICTY had
a working relationship with peacekeeping forces in Bosnia-Herzegovina, which
illustrates a critical link between those seeking justice and the peacemakers.32 How-
ever, the fact that international crimes were still being committed in the former
Yugoslavia even after the establishment of the ICTY suggests that while idealistic,
thisremainsasdiculttas�.Theextentofthetribunal’scontributiontothepeace-
building process should thus not be overstated.
With regards to the ICTR, one of its stated additional objectives is national
reconciliation. This national reconciliation, if achieved, as with justice, can serve
as an important precondition to lasting peace. Indeed, according to Bangamwambo,
at the time the ICTR was established, the international community hoped that the
ICTR would contribute, not only to national reconciliation in Rwanda, but also to
restore peace and stability in the Great Lakes region.33 While it can be argued that
theICTRhasindeedcontributedtoreconciliationinRwanda,itisdicult,ifnot
impossible,to empiricallymeasurethisimpact.Suceittosay thatRwandahas
benettedfrom amultitudeof interventions–someofwhich (li�etheICTR, the
gacaca processes and domestic processes) were characteristically judicial mecha-
nisms.
Itcanbeargued thatbybrea�ingdownconictsinto individual crimes,ju-
dicial intervention by international criminal tribunals can contribute to peace.34
Judicial intervention would thus be seen as aiming for peace by not focusing on
conictsbetweengroups,butratheronindividualcriminalresponsibility.Thiswas
thecasewhentheICTYindictedSlobodanMiloševićandRadovanKaradžić.Simi-
larly, the SCSL was lauded for its indictment and later conviction, amongst others,
32 H Shinoda, ‘Peace-building by the rule of law: An examination of intervention in the form of interna-H Shinoda, ‘Peace-building by the rule of law: An examination of intervention in the form of interna-
tional tribunals’ (2001) Paper presented at the 2001 Annual Convention of International Studies Asso-
ciation, Chicago, and at the Centre of International Studies, University of Cambridge, UK <http://www.
gmu.edu/programs/icar/ijps/vol7_1/Shinoda.htm> accessed 15 August 2015.
33 F Bangamwambo, ‘International criminal justice and the protection of human rights in Africa’ in A Bosl
and J Diescho (eds) Human rights in Africa: Legal perspectives on their protection and promotion (Mc-
Millan Education Namibia 2009) 107. It should be noted that prior to and during the mass massacres,
the international community failed to prevent what was clearly genocide in Rwanda, only acting after
the fact.
34 LDavis,‘TheICC:Astrawmaninthepeace-versus-justicedebate?’(2013)BriengPaper,OsloForum
Africa Mediators Retreat <https://www.osloforum.org/sites/default/les/Africa-Mediators-retreat-BP-
ICC.pdf> accessed 9 November 2015.
56 Ottilia Anna Maunganidze
of former Liberian President Charles Taylor who had played a central role in the
SierraLeoneanconict.
However, this detachment of individuals can also be a double-edged sword.
On the one hand, it ensures that the society does not view the crimes committed as a
societal malaise, but rather as acts committed by individuals seeking to undermine
societal peace and stability. Thus, judicial intervention is seen as the eradication of
evil elements within a society by arresting suspected criminals and bringing them
tojusticeinawaythatwouldcontributetofuturepeace.Ontheipside,wherean
indictedindividualexertsinuenceonthegroundorwas(oris)regardedas‘cen-
tral’ to establishing peace, processes against such a person can be regarded as un-
dermining peace. This has been the argument often raised in respect of indictments
of senior politicians, particularly heads of state. The debate on this is ongoing.
4.2 TheICC
The issue of prosecuting senior government ocials, particularly heads of
state, is one that the ICC has had to contend with in several of the situations cur-
rently before it.35 Given that the ICC is tasked with addressing crimes by those al-
legedly‘mostresponsible’andthatoftentimesinatimeofconict,theseindividu-
als can be quite senior in government, this was anticipated. Indeed, in negotiating
theRomeStatute,theissueofimmunitycameup.ThenalStatute,inArticle27,
doesawaywithimmunityfromprosecutiononthebasisofocialcapacity.How-
ever, this Article should be read with Article 98, which creates an opt-out clause for
countries that have made bilateral agreements to the contrary.
The ICC’s role, while signicantly similar to that of ad hoc international
criminaltribunals, is somewhat and understandably dierent. Unli�ethe ad hoc
tribunals that were created for particular situations and established during the post-
conictphase ortransitionfrom conict,theICC’sjurisdiction ispermanentand
current.36 What this means is that the ICC will often have to deal with cases arising
fromongoingconicts,evenbeforeeortstowardspeace�eepingorpeace-ma�ing
have commenced. Thus, justice would inevitably precede cessation of hostilities
and could potentially serve as a forerunner to peacebuilding.
35 Prosecutor v Uhuru Muigai Kenyatta ICC-01/09-02/11 and Prosecutor v Omar Hassan Ahmad Al
Bashir ICC-02/05-01/09.
36 F Lafontaine and A Tachou Sipowo, ‘The contribution of international criminal justice to sustainable
peace and development’ in S Jodoin and MC Segger (eds) Sustainable development, international crim-
inal justice, and treaty implementation (Cambridge University Press 2013).
57
International Criminal Justice as Integral to Peacebuilding in Africa: Beyond the ‘Peace v Justice’ Conundrum
In Uganda, the Government referred the situation in the North of the country
to the ICC at a time when the Lord’s Resistance Army (LRA) was still active in that
region.37 The situation related to the LRA’s criminal activities and the inability of
the Government to quell the rebellion. The Government had been negotiating peace
withtheLRAinvain.Thethreatof prosecutionarguablyforced theLRAtoee
Uganda paving way for peace in the country. Of course, the LRA is now a threat to
stability in neighbouring countries such as South Sudan38 and the Central African
Republic.39 Despite arrest warrants, only one of the individuals indicted by the ICC
in this situation has been arrested and surrendered to the ICC. However, at the time
of writing, the case against Dominic Ongwen, whose surrender was in early 2015,
was slated to commence in January 2016.40 In the absence of actual proceedings
against the LRA, one can only hypothesise that if the LRA commanders indicted by
the ICC had been captured and prosecuted, arguably the LRA would not be a threat
to regional peace today.
Interestingly, at a domestic level, Uganda continues to recognise the impor-
tance of justice in security and stability (and thus in long term peace). To this end,
in 2008, further to the Juba Agreement between the Government of Uganda and the
LRA, the Government established a War Crimes Division (now the International
Crimes Division (ICD)) of the High Court.41 The establishment of this division was
necessitated by provisions in an Annex to the Juba Agreement, which expanded on
the framework for accountability described in the Juba Agreement and provided
that a special division of the High Court of Uganda would be established to try
individuals‘allegedtohavecommittedseriouscrimesduringtheconict.’42 Pros-
37 ICC Press Release, ‘President of Uganda refers situation concerning the Lord’s Resistance Army (LRA)
to the ICC’ ICC-20040129-44; ICC Press Release, ‘Prosecutor of the International Criminal Court
opens an investigation into Northern Uganda’ ICC-OTP-20040729-65; Prosecutor v Joseph Kony, Vin-
cent Otti, Okot Odhiambo and Dominic Ongwen ICC-02/04-01/05.
38 Enough,‘TheLRAinCongo, CAR,andSouth Sudan’<http://www.enoughproject.org/conicts/lra/
congo-car-south-sudan> accessed 19 August 2015]; UN OCHA, ‘LRA Regional Update: Central Afri-
can Republic, DR Congo and South Sudan’ (July-September 2014).
39 UNSC Press Release, ‘Security Council concerned by grave security, humanitarian situation in Central
Africa,encouragesgreater support fromUnited Nations RegionalOce’SC/11925(11June2015);
See also Small Arms Survey, ‘Lord’s Resistance Army Update’ <http://www.smallarmssurveysudan.
org/facts-gures/south-sudan/lra.html>accessed19August2015.
40 Prosecutor v Dominic Ongwen, Decision postponing the date of the conrmation of charges hearing
ICC-02/04-01/15.
41 First established as the WCD, this special division of the High Court of Uganda was renamed the Inter-First established as the WCD, this special division of the High Court of Uganda was renamed the Inter-
national Crimes Division (ICD) on June 8 2011, further to High Court (International Crimes Division)
Practice Directions, Legal Notice No. 10 of 2011, Legal Notice Supplements, Uganda Gazette 38 (CIV)
31 May 2011, para 6.
42 Mdu Plessis,ALouwand OAMaunganidze,‘African eortsto closetheimpunitygap:Lessonsfor
58 Ottilia Anna Maunganidze
ecutions by the specialised court would focus on those ‘alleged to have planned or
carried out widespread, systematic, or serious attacks directed against civilians or
who are alleged to have committed grave breaches of the Geneva Conventions.’43
The Annexure also makes provision for the establishment of a special unit in the
oceoftheDirectorofPublicProsecutions(DPP)forthepurposesofcarryingout
investigations and supporting prosecution of crimes as agreed.44 Today the ICD
has jurisdiction over war crimes, genocide and crimes against humanity. It also has
jurisdiction over other serious international and transnational crimes, including,
terrorism,humantrac�ingandpiracy.45
In Sudan, in respect of the situation in Darfur, peace was also initially pre-
ferredoverinternationaljustice.However,intheabsenceofnotedeortstoendthe
crisis and re-establish peace, the United Nations Security Council (UNSC) referred
the situation to the ICC for justice to be served.46 In 2009, the AU High-level Panel
on Darfur included in its recommendations the importance of justice in the peace
process.47 To this end, the Panel made several recommendations including that the
role of the ICC as a court of last resort be recognized. Further the Panel recom-
mended that there be national justice processes, in the form of a hybrid Special
Criminal Court on the Events in Darfur.48Eortstoestablishpeaceinthecountry
continue,asdoeortstobring tojusticethose consideredmostresponsible.49 To
dateneitherhasbeenachieved,notwithstandinginternationalandregionaleorts.
Important questions arise from these two examples. First, whether peacemak-
ing hinged on certain people – those regarded as politically necessary to negotiate
complementarity from national and regional actions’ (2012) ISS Paper 241.
43 Agreement on accountability and reconciliation (between the Government of the Republic of Uganda
and the Lord’s Resistance Army/Movement), para 7 <http://www.amicc.org/docs/Agreement_on_Ac-
countability_and_Reconciliation.pdf> accessed 11 November 2015.
44 Ibid para 10.
45 Section 6 of The High Court (International Crimes Division) Practice Directions, Legal Notice No. 10
of 2011, without prejudice to Article 139 of the Constitution.
46 United Nations Security Council, UN Doc S/RES/1593 (2005). See generally MT Reynolds, ‘Legiti-United Nations Security Council, UN Doc S/RES/1593 (2005). See generally MT Reynolds, ‘Legiti-
mizing the ICC: Supporting the Court’s prosecution of those responsible in Darfur’ 2010 (30) Boston
College Third World Law Journal 179. See also P Kastner, ‘The ICC in Darfur: Savior or spoiler?’
(2007) 14 ILSA Journal of International and Comparative Law 146.
47 ‘Darfur: The quest for peace, justice and reconciliation’ Report of the African Union
High-Level Panel on Darfur (AUPD), PSC/AHG/2(CCVII) (October 2009).
48 This special court was never established, owing in large part to a lack of political will on the part of the
Sudanese Government.
49 It should be noted that one of the indictees is Sudanese President Omar Hassan Al Bashir who has
vowed to cling to power and has received some support from fellow African leaders who believe that
as president he should be immune from prosecution. Issues of immunity are beyond the scope of this
paper.
59
International Criminal Justice as Integral to Peacebuilding in Africa: Beyond the ‘Peace v Justice’ Conundrum
peace accords – does not in itself compromise peace and justice. Further, whether in
pursuing justice, to what extent such political considerations should be made. The
second relates to the scope of responsibility of international justice institutions like
the ICC in peacebuilding. In essence, should justice, as a precondition to peace, be
the sole responsibility of the ICC? The Rome Statute is clear on both these issues.
First, the Rome Statute recognises that grave crimes threaten peace and security,50
ergo that addressing these crimes will serve to promote peace and security. Second,
the Rome Statute provides wide prosecutorial discretion.51 The Prosecutor, while
having taken into account the gravity of the crime and the interests of victims, can
refuse to investigate or prosecute where s/he has substantial reasons to believe that
proceeding would not serve the interests of justice. The Prosecutor may make sev-
eral considerations in this regard. Third, the Rome Statute allows for cases to be de-
ferred by the UNSC if the interests of international peace and security so demand.52
Any such deferral will be for an initial period of 12 months and must be because
proceeding with the investigation or prosecution would undermine international
peace. To date, no request for deferral has been granted.53 Last, and certainly not
least, the Rome Statute makes the ICC a court of last resort that may only intervene
(or be called on to intervene) to bridge a gap where national courts are either unable
or unwilling to do so.54 The challenge, as anticipated, is in implementation.
Rodman suggests a way forward – at least for the ICC.55 In his view, the ICC
cannot and should not be independent of politics. He suggests that the Court needs
tooperatewithin,ratherthanabove,internationalstrategiesofconictresolution.
He contends that in most, if not all of its cases, the ICC will inevitably confront a
‘peace versus justice’ dilemma in which ‘insistence on prosecution could criminal-
ise those whose cooperation is necessary for a political solution.’ Thus, in his view,
the exercise of prosecutorial discretion should be central to the ICC’s engagement
withsta�eholdersinvolvedinconictmanagementandpeacebuilding.Inessence,
he argues that having these discussions early on will help maximise the prospects
for accountability while at the same time minimise the risks to peace and human
security. Rodman’s arguments notwithstanding, if followed, this could exacerbate
50 Rome Statute, preamble.
51 Rome Statute, art. 53.
52 Rome Statute, art. 16.
53 Requests have been made in respect of the situation in Darfur, Sudan and that in Kenya.
54 Rome Statute, art. 17.
55 KA Rodman, ‘Justice as a dialogue between law and politics: Embedding the International Criminal
Court within conict management and peacebuilding’(2014) 12 Journal of International Criminal
Justice 437.
60 Ottilia Anna Maunganidze
the pre-existing challenge of allegations of selective prosecution that the ICC’s has
been accused of. Particularly, as a judicial body, it could be argued that such pro-
cess could serve to undermine the Court’s legitimacy as an independent court that
operates within the parameters set out in the Rome Statute.
This latter proposal suggests that bridging the gap between rhetoric and reality
requires that those promoting international criminal justice (not limited to the ICC)
and sta�eholders involved in conict management and peacebuilding must con-
structively engage. Doing so may well aid in ensuring that international criminal
justice plays its important role as a measure contributing to peacebuilding.
The creation of the ICC raised high expectations that justice would be done
for gross human rights violations and that, as a result of this justice, there would be
an end to impunity.56 However, the ICC cannot reach these goals by itself. Mind-
ful of the complementarity envisaged in the Rome Statute, domestic jurisdictions
must also have this underlying aim to ensure justice and, as a result, promote peace.
However, while ability and willingness to prosecute crimes can be assumed of
functioningcriminaljusticesystems,thesamecannotbedoneinrespectofconict-
stric�enandpost-conictsocieties.Whenitcomestoissuesofbuildingsustainable
peace, it is this latter category of countries that is in question. Davis and Unger note
thatpost-conictsocieties are mar�edbyaplethoraof victims ofseriouscrimes
and many perpetrators.57Addressingthesecrimesiscrucial;however,post-conict
societies often have extremely weak and compromised judicial systems that are not
well equipped and/or capable of delivering the required justice.58 Davis and Unger
add that an (often unintended) impunity gap results.59
TheNoPeacewithoutJustice(NPWJ)campaignproposesthateortsatna-
tional level be geared towards meeting four key objectives.60 First, eorts must
contribute to broad support for accountability as a systematic response to massive
violations of human rights and international criminal law. Second, there should be a
reduction of the expectation of impunity and a removal of the perception of rewards
forviolenceonthepartofpartiestotheconict,potentialperpetrators,victimsand
aected populations. Third, it is necessary to increase the impact, eectiveness,
56 L Davis and T Unger, ‘Justice in peacebuilding: Towards a policy framework for the European Union’
(2008) ICTJ Discussion Paper.
57 Ibid.
58 Ibid.
59 Ibid.
60 No Peace without Justice, ‘Strategy on international criminal justice’ <http://www.npwj.org/ICC/
NPWJ-strategy-international-criminal-justice.html> accessed 19 August 2015.
61
International Criminal Justice as Integral to Peacebuilding in Africa: Beyond the ‘Peace v Justice’ Conundrum
transparency and accountability of mechanisms to stakeholders. Last, the univer-
salityoftheRomeStatuteshouldbepromotedthroughencouragingitsratication
andeectiveimplementinglegislation.
The reason why it is important to contribute to broad support for account-
ability is because, it can be argued that, countries that have implemented account-
ability processes after periods when human rights were grossly violated are more
likely to achieve sustainable peace and development. To achieve this, there must
bebuy-infrom�eysta�eholders,includingpolicyma�ers,civilsocietyandaected
communities.Signicantly,thereneedstobeaninstitutionalisationofaccountabil-
ity. In respect of international crimes, this would be through the criminal justice
system – domestically and, where possible, regionally and internationally. This ties
in closely with the need to reduce the perception that crimes will go unpunished and
that impunity will prevail.
If the expectation of impunity was reduced, this could potentially discourage
or deter would be perpetrators, while reinforcing support in the system from vic-
tims and others in society. However, it remains imperative to manage expectations
on the scope and ability of international criminal trials to deter the commission of
mass atrocities.61 Indeed, Cronin-Furman argues that while part of the intentions of
the ICC, the current prosecutorial policy is not well targeted at producing a deter-
renteect.62
This will be best achieved if the accountability mechanisms are seen also as
eective,transparent andaccountable.In thisregard,it isimperativethat institu-
tions be held to a high standard and called to account as and if they falter. Last, be-
yondpromotingraticationoftheICCsoastoensureuniversalityofinternational
criminal justice, countries must be encouraged to actively pursue domestic justice
processes. All four of these can contribute to the process of long-term peacebuild-
ing. Indeed, as Lambourne notes, justice as part of peacebuilding is more than just
transitional; ‘justice’ must set up structures, institutions and relationships to pro-
mote sustainability.63
61 K Cronin-Furman, ‘Managing expectations: International criminal trials and the prospects for deter-K Cronin-Furman, ‘Managing expectations: International criminal trials and the prospects for deter-
rence of mass atrocity’ (2013) 7(3) International Journal of Transitional Justice 434-454.
62 Ibid.
63 Lambourne (n 8) 28-48. Own addition and emphasis.
62 Ottilia Anna Maunganidze
5 Conclusion: Towards inclusive justice and sustainable peace
With the aforementioned in mind, justice should thus be understood as go-
ingbeyondanarrowdenitionofcriminaljustice,whichsee�sonlytopunishthe
perpetrators of crime.64 Justice should be seen also as strengthening the rule of law
and accountability more generally. Further, justice should be seen to also seek to ac-
knowledge the impact of the crimes on the victims and their wrongfulness and thus
begin a process of reconciliation. In this regard, justice should be seen as aiming to
restore the dignity of victims and to pave a way for long term healing. It has been
argued that these processes will help build ties between population groups and po-
tentiallyensurethatsocietiesaremoreconict-resilientasaresult.65 This inclusive
justiceisclearlyimportantineortstobuildsustainablepeace.66
Itshouldalsobeunderstoodthatnotallpost-conictcontextsgoingthrough
a process of peacebuilding would call for prosecutions of international crimes. In
those contexts where it is necessary to do so, international criminal justice, together
with other measures, can serve to ensure long-term peace. It is worth reemphasising
that international criminal justice is only one of several processes that should form
part of peacebuilding.
Indeed, ‘peacebuilding’ and ‘international criminal justice’ are mutually rein-
forcingand, ifcarriedout, properly,arebenecialin ensuringaccountabilityand
sustainable peace. However, these two are not only intricately connected, but are
also equally important in promoting and sustaining peace. Justice – in its various
forms – is increasingly recognised as a necessary element in contributing to peace.
In this regard, it should be underscored that other forms of justice not explored
in this chapter are also invaluable and should complement international criminal
justiceeorts. Lessonsinthis regardcanbe drawnfromexperiencesinRwanda,
UgandaandSierraLeone.Furtheraeld,theexperiencesofdealingwithpeaceand
justice issues arising from the conict in the former Yugoslavia are particularly
useful and relevant.
64 Davis and Unger (n 56).
65 Ibid.
66 Beyond prosecutions, this broader understanding of justice could potentially ensure that hostilities do
not resume.
63
FOREIGN AID TOWARD EXTRAORDINARY
RENDITION: AN AFRICAN PERSPECTIVE
Jeanne-Mari retief*
Abstract
After September 11, 2001 it was uncovered that states, especially the US, used
illegal methods to bring suspected terrorists within the jurisdiction of certain
countries as part of the Global War on Terror. Although the US seemed to be the
biggest culprit, other governments assisted in the capture, detention, interrogation
and torture of these suspected terrorists, to which end secret facilities known as
“black sites” were used. Among the participating governments are various African
states. This chapter aims to shed light on the principles of extraordinary rendition,
the international law issues created by it and, specically, African participation
in this practice and the diculties in attributing accountability to the various role
players under international law.
1 Introduction
Aconnecting ight lands and a passenger disembar�s the plane and enters the airport.
He is halted by security and taken to an interrogation room. His whole world is about
to change. He is escorted to a dark room where he is interrogated about every aspect of
his life. His numerous requests for legal representation are denied. He’s injected with
an unknown substance that will render him immobile and incoherent. Blindfolded, he is
escorted to a desolate airport with a single jet engine that will deliver him to an unknown
country and foreign legal system, where torture is the order of the day. No press, no legal
representation, no judicial procedure ― and no mercy.An innocent man has just been
extraordinarily rendered to torture.
* LLB LLM (UP); Admitted Attorney; Legal Project Facilitator and Researcher, CALIBRICS.
64 Jeanne-Mari Retief
Post September 11, 2001, and under the George W. Bush Administration, ex-
traordinary rendition truly gained momentum and the execution of renditions esca-
lated to what we know today as extraordinary renditions.1 President Bush signed di-
rectives authorising extraordinary rendition without the prior approval of the White
House or the Departments of State and Justice.2 Condoleeza Rice3 vehemently de-
fended these renditions, contending that they served a crucial purpose in curbing
terrorism.4However,shefailedtomentionthesignicantexpansionoftheserendi-
tions and that captured suspects were being rendered to foreign governments.5
Although the United States of America (US) may be the main perpetrator in
extraordinary renditions, they are largely reliant on the participation of foreign gov-
ernments to ensure successful execution of this phenomemon. These participating
governments include various governments from the African continent, such as, Al-
geria, Djibouti, Egypt, Ethiopia, the Republic of Gambia, Malawi, Somalia, South
Africa and Zimbabwe.6
This chapter is based on a doctoral thesis which focused on the US practice of
extraordinary rendition. However, for purposes of this chapter the focus will shift
to the participation of foreign governments in extraordinary rendition and attribut-
ingaccountabilitytotheaidersandabetters,withspecicfocusonAfrica.Inorder
to achieve this, a basic introduction to the US practice of extraorindary redition is
required. However, due to editorial constraints, an in-depth discussion on the entire
practice of extraordinary rendition and all it entails will not be possible for purposes
of this chapter.
1 LN Sadat, ‘Extraordinary rendition, torture, and other nightmares from the war on terror’ (2007) 75
George Washington Law Review 1200, 1215.
2 D Jehl and D Johnston, ‘Rule change lets CIA freely send suspects abroad to jails’ (6 March 2005) The
New York Times Online. Compare S Grey, Ghost plane: The true story of the CIA rendition and torture
program (1stedn,SaintMartin’sGrin2007)149;ASingh,‘Globalizingtorture:CIAsecretdetention
and extraordinary rendition’ (2013) Open Society for Justice Initiative 15.
3 Condoleeza Rice was the U.S. National Security Advisor from 2001-2005 under the George W. Bush
administration, and the U.S. Secretary of State from 2005-2009 under the same administration.
4 After the media published the article accusing the U.S. Government of maintaining secret detention fa-After the media published the article accusing the U.S. Government of maintaining secret detention fa-
cilities she held a press conference to mount a public defence against the accusations. She addressed the
matter as follows: ‘For decades, the United States and other countries have used ‘renditions’ to transport
terrorist suspects from the country where they are captured to their home country or to other countries
where they can be questioned, held or brought to justice… In conducting such renditions, it is the policy
of the United States, and I presume of any other democracies that use this procedure, to comply with its
laws and comply with its treaty obligations.’ See C Rice, No higher honour: A memoir of my years in
Washington (Crown Publishing 2011) 499-500.
5 Singh (n 2) 15.
6 Ibid 6.
65
Foreign Aid toward Extraordinary Rendition: An African Perspective
The chapter will therefore focus on the basic explanation of extraordinary
rendition,theproblemscreatedbyitandtheeectofparticipationbyforeigngov-
ernments. Special attention will be given to African countries and the aid they have
given to the US Government in the extraordinary rendition of various individuals.
2 Extraordinary rendition explained
Since the charge of resorting to extraordinary rendition as an anti-terror meas-
ure after the 9/11 attacks was mainly levelled at the Bush Administration, a fa-
mous Donald Rumsfeld remark – which can shed some light on the phenomenon
of extraordinary rendition discussed below – is truly ironic, coming from the US
Defence Secretary during the Ford and George W. Bush administrations.7
There are known knowns; there are things we know that we know. There are known
unknowns; that is to say, there are things that we now know we don’t know. But there are
also unknown unknowns – there are things we do not know we don’t know.8
Rumsfeld explains that there are certain things in this world that are clearly
evident to us as incontrovertible fact, things we absolutely know to be true9 (for ex-
ample: the sky is blue, the sun rises in the East and sets in the West). Then there are
things of which we have conscious knowledge and things of which we consciously
lack knowledge, and yet other things whose existence we are not aware of and are
not aware of our ignorance about them.10 Until recently extraordinary rendition fell
into this last category, being an unknown unknown, which is to say that the world
at large was unaware of its existence and had no inkling that such a phenomenon
might even exist, let alone what its consequences might be.
Growing public awareness of extraordinary rendition has changed its status
from third category – that of an unknown unknown - to the second category – that
of a known unknown. The existence of the practice and its use for the illegal cap-
ture, detention and torture of suspected terrorists is common cause at this juncture.11
7 Donald Rumsfeld served as the 13th and the 21st U.S. Secretary of Defence. During the Ford Administra-
tion he served as the U.S. Secretary of Defence from 1975 – 1977.
8 D Rumsfeld, Known and unknown: A memoir (Penguin Group 2011) 12-14.
9 He states that these are known knowns such as laws, rules and the fact that we all know gravity will
surely cause something to fall to the ground, see Rumsfeld (n 8) 12.
10 Heexplainsthatthis isthemostdicultcategorysincetherearegapsinour�nowledgebutwedon’t
know that these gaps exist, see Rumsfeld (n 8) 12.
11 D Weissbrodt and A Bergquist, ‘Extraordinary rendition: A human rights analysis’ (2006) 19 Harvard
Human Rights Journal 123; ICRC report on the treatment of fourteen ‘high value detainees’ in CIA
custody (200) International Committee of the Red Cross Regional Delegation for United States and
66 Jeanne-Mari Retief
However, since the practice is largely shrouded in secrecy,12 given its known pur-
pose to huddle captives away from public scrutiny and the oversight of the law,
little is known and understood about it, with the result that a severe paucity of
conclusive evidence about the phenomenon further aggravates the conditions under
which the struggle against it has to be waged.13
Exploratory reading shows that academics, writers and legislatures are not
handling extraordinary rendition appropriately.14 There is a general tendency to try
andt its characteristics into the denitionsof other forms of illegal expulsion,
such as disguised extradition, abduction and other forms of irregular rendition. The
reason for this misrepresentation is that the nature of the phenomenon and its impli-
cationsarenotunderstood,notleastbecausenoformaldenitionhasbeengener-
ated in law to shape and authenticate its meaning. Various writers have attempted to
describeordeneextraordinaryrenditionforpurposesoftheirownwor�,butthey
neverfailtostressthatthereisnoformaldenition.15
Canada; Sadat (n 1) 1200; LN Sadat, ‘Ghost prisoners and black sites: Extraordinary rendition under
international law’ (2006) 37 Case Western Journal of International Law 309; D Weissbrodt and A
Bergquist, ‘Extraordinary rendition and the humanitarian law of war and occupation’ (2007) 47 Vir-
ginia Journal of International Law 295; D Weissbrodt and A Bergquist, ‘Extraordinary Rendition and
the Torture Convention’ (2006) 46 Virginia Journal of International Law 585, 586; M Satterthwaite,
‘Rendered meaningless: Extraordinary rendition and the rule of law’ (2007) 75 The George Washington
Law Review 1333.
12 M Satterthwaite and J Huckerby, ‘Torture by proxy: International and domestic law applicable to
�extraordinary renditions”’ (2004) Center for Human Rights and Global Justice New York University
School of Law 15.
13 The entire purpose of extraordinary rendition is to place the suspected terrorists outside the legal frame-The entire purpose of extraordinary rendition is to place the suspected terrorists outside the legal frame-
work. This ensures that the perpetrators can avoid accountability and any other legal repercussions, but
lack of accountability and transparency complicates investigations into extraordinary rendition which
leads to a severe lack of evidence.
14 Instead of speaking directly of extraordinary rendition academics seem to ‘talk around the subject’ by
referring to irregular rendition, disguised extradition, kidnapping or abduction. Dugard discusses the
return of fugitives by means other than extradition, including deportation and disguised extradition (as
asingularandinterchangeable term which could lead toconfusionregarding the distinct dierence
between disguised extradition and deportation) as well as abduction. Certain possible phases of extraor-
dinaryrenditionareidentiableinabductionorevenperhapsdisguisedextradition, butextraordinary
rendition cannot be placed in the same category as either of these. Furthermore, Dugard describes the
alternatives to extradition as ‘the return of fugitives by means other than an extradition treaty to their
country of origin.’ Compare J Dugard, International law: A South African perspective (Juta 2011) 231-
237. Extraordinary rendition is not concerned with fugitives that need to be returned to a specied
state. The individuals captured and illegally rendered are only suspected terrorists in the eyes of their
captors since no appropriate evidence regarding the captive individual’s connection to terrorism can be
gathered, which is why such individuals are not arraigned before a court. The UN General Assembly
also enacted the Declaration on the Protection of All Persons from Enforced Disappearances Resolu-
tion 47/133 of 1992 (hereafter referred to as �the Declaration on Enforced Disappearances”), but this
declaration is not comprehensive enough to include all the intricacies of extraordinary rendition.
15 Sadatstresses thatthedenitionofextraordinary renditionseems tochangedependingonthesource
67
Foreign Aid toward Extraordinary Rendition: An African Perspective
Extraordinary rendition is a breed apart from all other illegal expulsion and/
or rendition methods and is informed by a hybrid theory,16 which needs to be thor-
oughlyperused and ta�en into account in formulatinga cogent denition of the
phenomenon. In light of the unconscionable range of consequences arising from
extraordinary rendition, it is submitted that this practice needs to be criminalised
underinternationallaw.However,intheabsenceofaformaldenitionoftheprac-
tice that will stand up in court, the criminalising process would have no leg to stand
on,sotospea�.Therststeptowards understanding and dening extraordinary
rendition would be to elaborate a detailed description of the phenomenon with all
itsramications.
Extraordinary rendition17 entails willfully taking suspected terrorists into cus-
tody through illegal means such as abduction, followed by forcible detention and
transportationundertheinducedinuenceofdrugs18 to facilities that are well-nigh
untraceable at undisclosed destinations19 where torture will be used as an interro-
gation technique20 and where public scrutiny and the oversight of the law cannot
and cites the New York City Bar Association Report as an example (see Sadat (n 1) 1248). Satterth-
waitecommentsthattheconceptofextraordinaryrenditionhasnotstabilisedintoarmdenitionand
thereforeremainsuidandcontroversial,withtheresultthatinterpretationsofwhatitentailsprolifer-
ate(Satterthwaite (n 11)1335). Shedenes extraordinary renditionas ‘thetransferof anindividual,
withoutthebenetofalegalproceedinginwhichtheindividualcanchallengethetransfer,toacountry
whereheorsheisatris�oftorture.’Yet,shestressesthatevenherdenitionofextraordinaryrendition
forpurposes ofthis specicpaper isnotquitethesameasdenitions givenin herother wor�s(Sat-
terthwaite (n 11) 1336). In Satterthwaite and Huckerby (n 12) 13, the authors aver that ‘extraordinary
rendition appears to be an unauthorised version of rendition.’ The use of the word �appears” again
underscoresthelac�ofadenitivedescription.
16 Weissbrodt and Bergquist (n 11) 127; P Johnston, ‘Leaving the invisible universe: Why all victims of
extraordinary rendition need a cause of action against the United States’ (2007) 16 Journal of Law and
Policy 381.
17 This is my detailed description of extraordinary rendition for the purposes of this chapter and the ar-This is my detailed description of extraordinary rendition for the purposes of this chapter and the ar-
gumentsandstatements itcontains.I ac�nowledgethatthere arevariousdescriptions, denitionsand
interpretations of it, as pointed out in footnote 15 above.
18 Theword“suspected”is denitely apposite here, giventhescantevidence that would certainly not
persuade a court to prosecute. Many suspects have such tenuous links to terrorism that legal process
could not provide grounds for arrest, let alone detention, which is why torture is used as an aid to inter-
rogation.
19 Numerous articles refer to the existence of �black sites,” which are secret facilities maintained for the
purposes of torture, illegal detention and the like. The existence of these facilities and the disappearance
of detainees from them have led to the detainees being dubbed �ghost prisoners.” See E Sepper, ‘The
ties that bind: How the Constitution limits the CIA’s actions in the war on terror’ (2006) 81 New York
University Law Review 1807; Sadat (n 1) 1215; Weissbrodt and Bergquist (n 11) 588; Sadat (n 11) 315.
20 Extraordinary rendition is also referred to as �torture by proxy” because torture seems to go hand-in-
hand with extraordinary rendition. See in general Satterthwaite and Huckerby (n 12); A Hasbargen,
‘Appropriately rendering disappearances: The despair between extraordinary renditions and forced dis-
appearances’ (2012) 34 Hamline Journal of Public Law and Policy 71, 89-90.
68 Jeanne-Mari Retief
reach them, with no assurances required from the receiving state.21 The suspected
terrorists are captured by state agents, or agents acting under the guise of pseudo-
legality (i.e. purporting to act under the aegis of the US, but hailing from a variety
of countries whose governments have invested them with powers of dubious legal-
ity to capture, detain, hold for questioning,22 transfer and/or torture the suspects
thus detained)23 without following due legal process (e.g. allowing suspects to ac-
cess legal counsel).24
After transfer the suspects are detained indenitely without trial, while the
governments involved deny their involvement and any knowledge of the state of
well-being of the detainees.25 No access to humanitarian aid groups or legal rep-
resentation is allowed throughout and after such detention.26 The last phase of ex-
traordinary rendition is the lack of justice for released victims as states that are sued
take refuge behind the defense of state secrecy.27
21 D Marty, ‘Secret detentions and illegal transfers of detainees involving Council of Europe member
states: Second report’ (2007) Council of Europe Parliamentary Assembly Committee on Legal Aairs
and Human Rights.
22 Ibid 49. This is a twenty-minute period commonly referred to as the �twenty minute take-out” or the
CIA �security check.” A detainee can be fully prepared for transportation within these twenty minutes
by rendering him immobile and incoherent. The detainee is blindfolded, brutalised and shackled by
highly trained operatives wearing masks. His clothes are taken and he is photographed naked. Tran-
quilisers are inserted in his anus and he is strapped with a diaper. Finally he is blindfolded with a hood
that provides nearly no holes for breathing, and transferred to a plane where he is strapped to a stretcher
orboundinaveryuncomfortablepositionfortheentirecourseoftheight(whichcanbeuptoafull
day). Again, this entire process takes twenty minutes; see Johnston (n 16) 357-360.
23 Johnston (n 16) 357-359; Singh (n 2) 6.
24 S Wolf, ‘An emerging paradigm for the enforcement of human rights: How the courts’ recent refusal to
prosecute U.S. agents for extraordinary rendition may create a new reinforcement model’ (2007) 59 The
State University of New Jersey Rutgers Law Review 917.
25 These detainees are naked when they are placed in cells that are temperature controlled to produce
temperature extremes from freezing to extreme humidity and heat. They will also likely go through a
�four month isolation regime” during which they are denied contact with human beings and their cells
are under constant surveillance; see Johnston (n 16) 358-362; JR James, ‘Black letter abuse: the U.S.
legal response to torture since 9/11’ (2007) 89 International Review of the Red Cross 562.
26 M Satterthwaite, ‘Extraordinary rendition and disappearances in �the war on terror”’ (2006-2007) 10
Gonzaga Journal of International Law 72.
27 A good example is the case of Khaled El-Masri. It was proved that the CIA participated in the abduction
and transfer of El-Masri from Skopje to a secret detention facility in Kabul Afghanistan. He was held
for a period of four months before the CIA realised they could not bring any charges against him. He
wassubjectedtosolitaryconnement forseveralwee�s.Hewas eventuallyblindfoldedandownto
Europe, where the captors drove around with him for several hours in order to confuse his sense of loca-
tion. They eventually stopped and instructed him to get out of the vehicle and walk down an unpaved
road in the dark in mountainous terrain. He was also instructed not to look back. He feared for his life
andthought hewouldbeshotinthebac�,butthe captorsmerely droveo andlefthimthere.Three
years after his ordeal his case was still being investigated extensively (see Marty (n 21) 51). El-Masri’s
civil suit against the U.S. was eventually rejected on grounds of state secrecy, with the result that he
69
Foreign Aid toward Extraordinary Rendition: An African Perspective
In light of the above, extraordinary rendition is clearly not just a singular term
todeneoneillegalact,butratheranentireprocesscomprisingaconcatenationof
interlocking phases that individually and collectively contribute to the illegal na-
ture of extraordinary rendition as a whole, that is to say, each phase is fraught with
illegalityinitsownrightandconrmsandcompoundstheillegalityofthewhole.
It cannot be reduced to a single act, but is a process comprising of a complex series
of illegal acts.
Thedierencebetweentraditionalexpulsion(e.g.deportation)andrendition
is that the latter is entirely beyond the pale in a dark underworld where the protec-
tive framework of the rule of law, international or domestic, and respect for human
rights in the international sphere does not apply. This is in contrast to traditional
methods,whichareclearlydenedandsubjecttolegalprocess.
3 General issues created by extraordinary rendition
3.1 Accountabilityandtransparency
In their actions as part of the Global War on Terror (GWOT) the US aimed to
manipulate the legal system in order to create a law-free zone where no perpetrator
can be held accountable for its actions.28 The US has captured, detained and subjected
persons to torture on vapid to non-existent evidence beyond bland claims that they
were suspected of terrorist activity and had been detained as part of the GWOT.29
Purported diplomatic assurances are without legal substance because the ne-
farious actions of extraordinary rendition are conducted in secrecy.30 The individ-
ual’s interests are disregarded because the sending and receiving states both have
a vested interest in keeping the rendition secret.31 The US wants to keep its illegal
activities vis-a vis putative suspected terrorists secret while the receiving state does
not want its collusion with the US and its violation of its non-refoulement obliga-
tions to become public knowledge.32
cannothold anyone accountableforthe ordealhesuered (seefurtherMarty (n 21)54). Thewriter
agrees with Rapporteur Marty’s statement that to continue to invoke state secrecy doctrine years after
the event is unacceptable in a democratic society (implies an adversarial relationship between the state
and its subjects). He also argues that state secrecy cannot conceal criminal acts or acts of gross human
rights violations (see further Marty (n 21) 55).
28 Sadat (n 1) 1226.
29 Ibid 1211.
30 Satterthwaite (n 11) 1393.
31 Ibid.
32 Ibid.
70 Jeanne-Mari Retief
3.2 Secretfacilitiesandarbitrarydetention
After 9/11, the Central Intelligence Agency (CIA) was given the authority
to transport individuals suspected of being terrorists to foreign governments for
interrogation without the prior approval of the US Department of Justice.33 Since
2006, reports have circulated that detainees captured in the GWOT were being
held at Guantanamo Bay, Abu Ghraib prison in Iraq, Bagram Air Force base in Af-
ghanistan and that some were even being held at sea.34 It has also been reported that
70%-90% of the detainees at the Abu Ghraib facility in Iraq were arrested in error.35
3.3 Disrespectfortheruleoflaw
The purpose of the rule of law is to ensure that no individual or entity, public or
private (including a state) is above the laws publicly promulgated and enforced, and
these laws are consistent with international human rights.36 Extraordinary rendition
violates international laws and international human rights by creating an extra-legal
means of capturing, detaining and subjecting suspected terrorists to torture.37 It is
clearly unlawful, but manages to escape active sanction by exploiting legislative
lacunae and taking action that circumvents and prevents the administration of
justice as would happen in the normal course.38 Various international instruments
exist that enunciate the rules of international law.39 Some of these instruments
embody rules of customary international law (i.e. the Geneva Conventions40 and
the Convention against Torture and other Cruel, Inhuman or Degrading Treatment
33 Ibid 1344.
34 Sadat (n 11) 309.
35 Sadat (n 1) 1245; M Eppinger, ‘Reality check: Detention in the war on terror’ (2013) 62 Catholic Uni-
versity Law Review 325, 355-356.
36 ComparedenitioninJScholtes,‘Smartpowerinaction-AruleoflawJudgeAdvocate’sreections
from Basrah, Iraq’ (2011) 44 Creighton Law Review 1091, 1096.
37 Sadat (n 1) 1205.
38 Satterthwaite (n 11) 1333.
39 For example: the International Covenant on Civil and Political Rights (ICCPR), the Geneva Conven-For example: the International Covenant on Civil and Political Rights (ICCPR), the Geneva Conven-
tions (GCs) consisting of Geneva Convention for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field of 12 August 1949 (GC I), Geneva Convention for the Amelio-
ration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12
August 1949 (GC II), Geneva Convention Relative to the Treatment of Prisoners of War of 12 August
1949 (GC III), Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12
August 1949 (GC IV), Convention against Torture and other Cruel, Inhuman or Degrading Treatment
or Punishment of 1984 (CAT).
40 Hereafter referred to as �the GCs”.
71
Foreign Aid toward Extraordinary Rendition: An African Perspective
or Punishment (CAT)).41 Infringements of these rules therefore constitute a grave
breach of the rule of law irrespective of the status or identity of the perpetrator.
3.4 Torture
The prevalence of torture42 in cases of extraordinary rendition has earned it
the alternative ominous labels of ‘outsourcing torture’43 and ‘torture by proxy.’44 It
is important to note that the US does not refer to interrogation techniques practised
by its operatives as torture, ill treatment or even cruel, inhuman or degrading treat-
ment, but euphemistically as ‘enhanced interrogation techniques.’45 Torture is pro-
hibitedbyCAT,whichwasalsosignedandratiedbytheUSandvariousAfrican
states that aided the US.
3.5 Furtherissuescreatedbyextraordinaryrendition
In extraordinary rendition cases people are sometimes captured in a state other
than the US and transferred to a third state.46 The state in which the individual
is captured is either aware or unaware of the event (but perhaps they just do not
publicly admit to such knowledge).47 However, should the state be unaware of the
capture this would be an infraction on state sovereignty.48
A further issue is that the US has argued that the GWOT is a new kind of war
and therefore international humanitarian law and other international human rights
instruments do not apply to it. International scholars do not agree that the GWOT
41 Sadat (n 11) 320.
42 The term ‘torture,’ in this context, refers to ill treatment of such severity that, in the writer’s opinion,
it constitutes torture. However, there are various opinions as to what degree of severity of ill treatment
would actually constitute torture and what would merely constitute cruel, inhumane and degrading
treatment and/or punishment. The case law will be discussed in this paragraph, and these issues will be
addressed.
43 Weissbrodt and Bergquist (n 11) 593.
44 Satterthwaite and Huckerby (n 12) 15, Hasbargen (n 20) 90.
45 M Garcia, ‘Interrogation of detainees: Requirements of the Detainee Treatment Act’ (2009) Congres-
sional Research Report for Congress 1-2.
46 Sadat (n 1) 1225.
47 Ibid.
48 State sovereignty is protected by international law, which therefore also dictates the conditions, includ-State sovereignty is protected by international law, which therefore also dictates the conditions, includ-
ing the limits, which rule its existence. According to the principle of state sovereignty, a state has the
right to exercise jurisdiction over its territory and its permanent population and the right to armed de-
fence of its territorial integrity in certain circumstances. It does not, however, have the right to interfere
intheinternal aairsofotherstates,exceptwhentheyviolatebasichuman rights.CompareMShaw,
International law (Cambridge University Press 2008) 212.
72 Jeanne-Mari Retief
falls in a legal vacuum and as such the US is free to act as they please.49 There are
four schools of thought regarding the applicability of international humanitarian
law (IHL):50 First, that IHL may not apply to the GWOT, but that international
human rights laws still apply. Second, that although it might not be best suited, it
isbesttoviewtheGWOTasanon-internationalarmedconictandthereforethe
rulesapplicable tonon-internationalarmedconictsshouldapply.Third,thatthe
GWOT should be judged on a case-by-case basis to ascertain which laws would be
applicable to each situation. Lastly, that it is in fact a new type of war to which new
rules should apply.
Inviewofpost-9/11events,thefollowingdescriptionsseemtooerpossible
rationalesforclassicationoftheGWOT:
a) ItisanundeclaredarmedconictinwhichtheUSanditsalliesareen-
gaged in seeking out perpetrators in Afghanistan who engage in acts of
terror, and in mounting retaliatory exercises calculated to neutralise said
perpetrators according to military intelligence.
b) ItisanundeclaredarmedconictinwhichtheUSanditsalliesengage
in military operations against the former Taliban regime.
c) Itisanon-internationalarmedconict,originallywagedinAfghanistan
between the Taliban and its domestic rivals, but was internationalised in
due course by a combined intervention mounted by the US and its allies
in 2001.
d) ItisanundeclaredinternationalarmedconictinwhichtheUSandits
allies conduct military operations against Al Qaeda, a non-state entity,
aiding the Taliban.
e) ItisanundeclaredinternationalarmedconictinwhichtheUSandits
allies conduct military operations against a range of non-state entities
and individuals targeted as terrorist groups or individuals in accordance
with military intelligence.
f) It subsists in continual crime control activities conducted against interna-
tional terrorists with metaphorical use of �war” rhetoric.51
49 Satterthwaite (n 11) 1404.
50 Ibid.
51 Fitzpatrick (2003) 249.
73
Foreign Aid toward Extraordinary Rendition: An African Perspective
Scholars supporting the position that the GWOT is neither an international
nor a non-international armed conict52 disagree with the general view that the
GWOT by its nature cannot be subject to rules of any kind.53 In contrast, the Bush
administration held that extraordinary rendition could not be unlawful since it took
place outside the US54 and was implemented by governments that gave assurances
that detainees held within their precincts would be treated humanely. The US under
Bush steadfastly held immovably that the GWOT was a new kind of war entailing
actionsthatwere not readily classiableaccordingtoreceived views concerning
warfare.55
In other words, the US position under Bush can be summed up as a thinly
veileddemandforalicencetoengageinlawlessness,orputdierently,tobealaw
untoitself.SomescholarsarguethatitisimportantnottodenetheGWOTaswar
and treat Al Qaeda operatives as combatants because this elevates them to be more
than mere criminals, thereby securing elevated protections within the framework
of IHL.56
Thecruxofthewholematter,nally,isthateveniftheGWOTisanewtype
of war and the traditional dimensions of warfare have evolved or expanded, it is
stillawar.Whetheritisanundeclarednewtypeofwaroranarmedconictunder
IHL, some basic legal principles remain in force, regardless of them being sub-
sumedunderIHLorIHRL.Theadvocacyofwhateectivelyamountstoastateof
licence is therefore baseless.
4 Attributing responsibility to African governments for their role in
extraordinary rendition
The responsibilities of African states (as with any other state) under interna-
tional law with regard to extraordinary rendition include:
(i) Taking care not to assist a process of extraordinary rendition knowled-Taking care not to assist a process of extraordinary rendition knowled-
gably or otherwise. Since assistance will be traceable by following the
cause-eectlin�agetotheoenceinquestiontheassociationthusaris-
52 Satterthwaite (n 11) 1412.
53 Ibid.
54 Ibid 1419-1420.
55 J Waldron, Torture, terror, and trade-os: Philosophy for the White House (Oxford University Press
2010); Satterthwaite (n 11) 1419-1420.
56 M O’Connell, ‘When is a war not a war? The myth of the global war on terror’ (2005-2006) 12 Inter-
national Law Student Association Journal on International and Comparative Law 535, 538.
74 Jeanne-Mari Retief
ing will result in acts that seem innocuous becoming punishable. For
example: refuelling a plane is normally quite unremarkable, but the act,
or rather those enabling or conniving at it, will attract criminal liabil-
ity charges if it transpires that the state concerned knew or should have
known in all conscience that the plane was carrying extraordinary rendi-
tionvictimsandwouldhavebeenunabletoma�eittoitsnaldestina-
tion if it did not refuel at the assisting state’s airport.57
(ii) To assert jurisdiction over instances of torture if the charge and its pursuit
is pursuable within the legitimate area of the countries jurisdiction.58
(iii) To take into custody, investigate and then extradite or prosecute a person
who is alleged to have committed acts of torture or was complicit in or
participated in such acts.59
African governments60 have been involved in extraordinary rendition in vari-
ous ways:
a) Detaining, interrogating, torturing and abusing victims;
b) Rendering assistance in dealing with the transport and capture of vic-
tims;
c) Permitting the use of domestic airspace and airports for secret ights
transporting victims of extraordinary rendition;
d) Providing intelligence leading to the extraordinary rendition of victims;
e) Interrogating individuals secretly held in the custody of other govern-
ments;
f) Failure to protect individual persons from extraordinary rendition within
the bounds of their territory; and
57 All Parliamentary Group on Extraordinary Rendition Brieng: Torture by proxy: International law ap-
plicable to ‘extraordinary renditions’ (December 2005) 13. African countries that assisted with refuel-
ling and use of airspace and/or airports included South Africa, Algeria, Libya, Egypt and Malawi. See
Singh (n 2) 65-100.
58 All Parliamentary Group on Extraordinary Rendition (n 58) 13.
59 Ibid.
60 Although the focus here is on African governments, a total of 54 foreign governments have been iden-Although the focus here is on African governments, a total of 54 foreign governments have been iden-
tied as participating in extraordinary renditions and these include: Afghanistan,Albania, Algeria,
Australia, Austria, Azerbaijan, Belgium, Bosnia-Herzegovina, Canada, Croatia, Cyprus, Czech Repub-
lic, Denmark, Djibouti, Egypt, Ethiopia, Finland, Gambia, Georgia, Germany, Greece, Hong Kong,
Iceland, Indonesia, Iran, Iceland, Italy, Jordan, Kenya, Libya, Lithuania, Macedonia, Malawi, Malay-
sia, Mauritania, Morocco, Pakistan, Poland, Portugal, Romania, Saudi Arabia, Somalia, South Africa,
Spain, Sri Lanka, Sweden, Syria, Thailand, Turkey, United Arab Emirates, UK, Uzbekistan, Yemen and
Zimbabwe. See further Singh (n 2) 6.
75
Foreign Aid toward Extraordinary Rendition: An African Perspective
g) Failuretoconducteectiveinvestigationscriticallyaimedattheconduct
of ocials and agencies that have participated in extraordinary rendi-
tions.61
Human rights organisations have tried to create a diligent list of persons who
have disappeared as a result of extraordinary renditions, but the numbers remain
a mystery.62 These numbers remain undocumented because victims are forced into
silence by threats, brutality, torture, and fear for their own and their families’ safe-
ty.63 Many have been silenced by death at the hands of their captors.64 To date only
one case has been brought against an African government for its part in the extraor-
dinary rendition of a Pakistani national, Khalid Rashid, from the Waterkloof Air
Force Base in South Africa.
Khalid Mehmood Rashid was arrested at his home in Kwazulu-Natal, South
Africa, on charges of being an illegal alien, whereupon he was handed over to puta-
tivePa�istaniocials.65 The South African Government did not obtain assurances
of compliance with international human rights conventions with regard to his pos-
sible treatment in captivity in the receiving country.66 The High Court upheld the
irregular transfer of Khalid Rashid and declared that the Government could not be
expected to gain assurances for all transfers.67
61 Singh (n 2) 6, 65-95.
62 Hasbargen (n 20) 81.
63 Ibid 82.
64 Ibid.
65 Jeebhai v Minister of Home Aairs and another 2007 (4) ALL SA 773 (T) at 774. ‘A story of extraordi-
nary rendition from South Africa’ (March 14 2006) <http://www.indymedia.ie/article/74841> accessed
21 July 2014; see also Strumpf and Dawes, ‘Khalid Rashid: Govt’s cover is blown’ Mail and Guardian
(9 June 2006).
66 Pakistan is a country known to be amenable and inclined to the practice of torturing persons in captivity
(including children); therefore assurances should have been secured. Pakistan is included among the
‘torturecountries’identiedbyHumanRightsWatch. Pa�istanipoliceocialsare�nownforabduct-
ing individuals and resorting to torture to extract information, for example, to secure a confession in
criminal investigations, but certainly also as a routine measure to gain military intelligence. Children
have been tortured in order to obtain confessions or information from their parents. During 2003, hun-
dreds of children were detained in torture cells where they were stripped and whipped in order to coerce
information. See also A Hasan, ‘Soiled hands: The Pakistan army’s repression of the Punjab farmers’
movement’ (2004) 16 Human Rights Watch 28.
67 The Court held that ‘…[t]he prayer sought, namely, that the South African Government be ordered to
intervene as Rashid could be facing a death sentence, cannot be granted if the authorities were not aware
of those facts. It cannot be that the duty arises in respect of every person deported without such prior
knowledge; this would be unworkable. All the authorities knew that he was being taken back to his own
country. As it is, it can be argued that on Mohamed’s judgment, all that a person anywhere in the world
facing capital crimes in their country need to do is to come to South Africa, even illegally, and receive
insurance against the death penalty. It follows that Rashid’s deportation cannot be declared invalid for
76 Jeanne-Mari Retief
This High Court decision was overturned by the Supreme Court of Appeal,68
which held that Rashid’s detention and deportation was in fact unlawful,69 but that
hisillegaldeportationwasnotacrimeagainsthumanityasitdidnotsuitthedeni-
tion given by the Rome Statute.70 Although the appeal judgment addresses some
issues created by the High Court judgment, it does not grant satisfactory relief to
the victim.
Rashid was rendered to Pakistan on 6 November 2005. On 6 June 2006, his
whereabouts was still unknown. Later it became known that he was released from
custody during December 2007. This is two years after his arrest and disappearance.
The appeal judgment was only handed down in March 2009, which is more than
three years after the incident occurred and more than two years after his release.
Contrary to the African example, some countries believe that perpetrators
of extraordinary rendition should be held accountable for the varying degrees in
which they participated in this phenomenon. Sweden, for example, conducted an
investigation into extraordinary rendition and found that the European security ser-
vices colluded with the US to execute extraordinary renditions and gave the US
full discretion to act at will within the bounds of European territory despite total
prohibition by the Council of Europe of the activities perpetrated there with the full
knowledge of the said services.71
Shortly after the above, Germany launched an investigation into extraordi-
naryrenditionsandrequestedtheextraditionofthirteenCIAocials,butpressure
from the US ended the inquiry.72Italyalsoconvicted21CIAocialsandimposed
ve-yearsentences fortheextraordinary renditionofAbuOmar.Chargesagainst
three others were dropped due to their diplomatic immunity. On being convicted
theseindividualsed thecountryand arefugitivesfromItalian law.73 This is the
the reason that the South African authorities did not extract an undertaking from the Pakistani Govern-
ment that his life would not be in danger. Such a duty cannot routinely exist in respect of every deportee.
Rashid was sent back to his own country.’ See Jeebhai (2007) (T) 773.
68 Jeebhai and Others v Minister of Home Aairs and Another 2009 (5) SA 54 (SCA) handed down 31
March 2009.
69 Ibid para 53.
70 Ibid para 50.
71 R Bejesky, ‘Sensibly construing the �more likely than not” threshold for extraordinary rendition’ (2013-
2014) 23 Kansas Journal of Law and Public Policy 221, 256-257.
72 Ibid 257.
73 I Fisher and E Povoledo, ‘Italy seeks indictments of CIA operatives in Egyptian’s abduction’ (5 De-I Fisher and E Povoledo, ‘Italy seeks indictments of CIA operatives in Egyptian’s abduction’ (5 De-
cember 2006) The New York Times Sabrina de Sousa who was one of the CIA operatives convicted in
absentia stated the following: ‘Clearly we broke the law, and we’re paying for the mistakes right now
of whoever authorised and approved this…I was a representative of this Government, and I should have
77
Foreign Aid toward Extraordinary Rendition: An African Perspective
only�nownexampleofaconvictionofocialsbyastatefortheirinvolvementin
extraordinary rendition. It should be noted too in this regard that Canada is the only
country to issue a public apology to a victim of extraordinary rendition, namely
Maher Arar.74