Prosecuting International Crimes in Africa

Chacha Murungu, Japhet Biegon

Description

Prosecuting International Crimes in Africa contributes to the understanding of international criminal justice in Africa. The book argues for the rule of law, respect for human rights and the eradication of a culture of impunity in Africa. It is a product of peer-reviewed contributions from graduates of the Centre for Human Rights, Faculty of Law, University of Pretoria, where the Master’s degree programme in Human Rights and Democratisation in Africa has been presented since 2000.The book focuses on the prosecution of international crimes by national courts from African jurisdictions and by international courts. Contributions are on different topics of importance to persons interested in international criminal justice as it applies in Africa. This book is directed at a range of stakeholders in the field of international law and human rights in Africa. Specifically, it is relevant to persons involved in post-graduate studies, researchers, members of the national and international judicial bodies and international criminal law practitioners.About the editors:Chacha Murungu is an Advocate of Murungu Law ChambersJaphet Biegon is the director of research at Truth, Justice and Reconciliation Commission, Kenya

Sujets

• Economie
• développement
• Politics
• Relations internationales
• Développement
• Géopolitique

Informations

• Publié par: PULP (Pretoria University Law Press)
• Nombre de lectures: 0
• Langue: English
• Poids de l'ouvrage: 2 Mo

Extrait

Prosecuting International Crimes in Africa

Chacha Murungu & Japhet Biegon (editors)

2011

Prosecuting international crimes in Africa

Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication.

For more information on PULP, see www.pulp.up.ac.za

Printed and bound by: ABC Press Cape Town

To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.pulp.up.ac.za

Cover: Yolanda Booyzen, Centre for Human Rights

Cover image: Angola landmine victimsby Paul Jeffrey

ISBN: 978-0-9869857-8-2

© 2011

The financial assistance of Konrad Adenauer Stiftung and Raoul Wallenberg Institute is gratefully acknowledged.

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TABLE OF CONTENTS

FOREWORD

CONTRIBUTORS

ABBREVIATIONS

INTRODUCTION

PART I: GENERAL ISSUES IN THE PROSECUTION OF INTERNATIONAL CRIMES

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Duty to prosecute international crimes under international law Ken Obura 1 Introduction 11 2 Delineating the concept of international crimes 12 3 The obligation to prosecute and punish international crimes 14 4 Sources of the obligation to punish or extradite perpetrators of international crimes 14 4.1 International conventions 14 4.2 Customary international law 24 5 Duty to prosecute and amnesties 28 6 Conclusion 31

Immunity of state officials and the prosecution of international crimes Chacha Murungu 1 Introduction 2 Developments on the immunity of state officials 2.1 Customary international law 2.2 Codification of immunity of state officials under international law 3 Scope of immunity of state officials 4 International courts and the controversy on immunity of state officials 4.1 Immunity of state officials is not a defence: A settled position 4.2 Immunity of state officials and the question of subpoenas 5 Immunity of state officials in Africa 6 Conclusion

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33 36 36

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46 53 59

PART II: INTERNATIONAL COURTS AND THE PROSECUTION OF INTERNATIONAL CRIMES IN AFRICA

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The contribution of the International Criminal Tribunal for Rwanda to the development of international criminal law George William Mugwanya 1 Introduction 63 2 Genocide: Group victims, physical and mental elements 64 3 Rape and sexual violence as genocide 68 4 The elements of the crime of rape in international law 71 5 Direct and public incitement to commit genocide: Protecting freedoms and punishing genocidal speeches 73 6 War crimes in non-international armed conflicts 77 7 Scope of ‘commission’ as a mode of criminal participation 82 8 Superior responsibility is not mere negligence and extends to non-military superiors 88 9 Other issues 90 10 Concluding remarks 93

Prosecution and punishment of international crimes by the Special Court for Sierra Leone Chacha Murungu 1 Introduction 97 2 Principles and jurisprudence developed by the Special Court for Sierra Leone 101 2.1 Persons who bear the greatest responsibility for international crimes 101 2.3 SCSL and the Truth and Reconciliation Commission of Sierra Leone 104 2.4 Amnesty for international crimes 106 2.5 Crimes against humanity and war crimes: A general interpretation 109 2.6 Application of international humanitarian law to non-international armed conflicts 113 2.7 Criminal responsibility for international crimes 114 3 Conclusion 117

Sentencing practices of the Special Court for Sierra Leone Bonolo Dinokopila

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Introduction Theories and objectives of punishment Purpose of sentencing at the international level The sentencing practice of the Special Court for Sierra Leone 4.1 Objectives of punishment and the Special Court for Sierra Leone The contribution of the Appeals Chamber in the sentencing practice of the SCSL

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119 121 124

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Relevance of the jurisprudence of the SCSL Conclusion

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Politics of international criminal justice, the ICC’s arrest warrant for Al Bashir and the African Union’s neo-colonial conspirator thesis Steve Odero 1 Introduction 145 2 Background 146 2. 1 Africa-ICC relationship 148 3 AU’s bones of contention regarding the ICC 150 3.1 Al Bashir’s arrest warrant as prejudicial to Sudan’s peace processes 150 3.2 ICC’s actions as a neo-colonial conspiracy 154 3. 3 Note on UN Security Council composition 158 4 Conclusion 159

PART III: NATIONAL COURTS AND THE PROSECUTION OF INTERNATIONAL CRIMES

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The trial of Mengistu and other Derg members for genocide, torture and summary executions in Ethiopia Firew Tiba 1 Introduction 163 2 Brief history 163 3 Post-conflict justice 165 3.1 Prosecution 166 3.2 Critique of the trials 172 3.3 Truth telling and investigation of past violations 180 3.4 Consideration for victims’ rights, remedies and reparations 180 3.5 Vetting, sanctions and administrative measures 181 3.6 Memorialisation, education and the preservation of historical memory 182 3.7 Traditional, indigenous and religious approaches to justice and healing 182 3.8 Institutional reform and effective governance 183 4 Concluding remarks 183

The trial of Hissène Habré in Senegal and its contribution to the development of international criminal law Kameldy Neldjingaye 1 Introduction 185 2 Hissène Habré’s human rights legacy 187 2.1 Torture 188 3 The trial of Hissène Habré in Senegal 189 3.1 Argument of non-retroactivity of criminal law 189 3.2 The Belgian extradition request 191 4 Relevance of the Habré trial in international law 192 4.1 CAT and the case of Habré 192 4.2 Landmark case on universal jurisdiction 194 5 Conclusion 196

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Prosecuting international crimes committed by the Lord’s Resistance Army in Uganda Christopher Mbazira 1 Introduction 197 2 Genesis of the conflict 199 2.1 LRA brutality and the impact of war 201 2.2 Attempts at a peaceful solution 203 3 Referral of situation to the ICC and the process of peace talks 204 3.1 Process of peace talks 205 3.2 Peace Agreements 207 3.3 Understanding Mato Oput 210 4 Punishing international crimes in Uganda 212 4.1 Geneva Conventions as a source of international criminal justice 214 4.2 International Criminal Court Act, 2010 215 5 Conclusion 220

Genocide as prosecuted by the International Criminal Tribunal for Rwanda and Gacaca Courts in Rwanda Christian Garuka 1 Introduction 221 2 Definition of the crime of genocide 221 3 Legal basis for the prosecution of genocide in ICTR and Gacaca courts in Rwanda 222 4 Relevance and aims of the prosecution of the crime of genocide 224 5 Jurisdiction 225 5.1 Comptenceratione loci(territorial limitation) and competenceratione personae 225 5.2 Competenceratione temporis (temporal jurisdiction) 225 5.3 Competenceratione materiae(subject matter) 226 5.4 Concurrent jurisdiction 226 6 Prosecution of genocide in the ICTR and gacacacourts 227 6.1 Mental element (mens rea) of the crime of genocide 227 6.2 Individual responsibility 228 6.3 Immunity 229 7 Sentencing 229 8 Reparations 231 9 Conclusion 231

Prosecuting piracy in the Horn of Africa: The case of Kenya Osogo Ambani 1 Introduction 233 2 The international crime of piracy: The standard and the Kenyan practice 234 3 Prosecuting piracy: A Kenyan perspective 237 3.1 Jurisdictional problems 238 3.2 Risks and fears 243 3.3 Capacity problems 244

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Conclusion

PART IV: THE IMPLEMENTATION OF THE ROME STATUTE IN AFRICA

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Positive complementarity and the fight against impunity in Africa Benson Olugbuo 1 Introduction 249 2 Complementarity principle and international justice 251 2.2 Divergent and convergent views on complementarity 254 2.3 Understanding positive complementarity 256 2.4 The Review Conference and positive complementarity 258 3 Positive complementarity and voices from the field 259 3.1 Democratic Republic of the Congo and positive complementarity 259 3.2 The Darfur conflict and positive complementarity 262 3.3 The northern Uganda conflict and positive complementarity 270 4 Conclusion 274

Implementation of the Rome Statute in Malawi and Zambia: Progress, challenges and prospects Mwiza Nkhata 1 Background 2 Africa and the international criminal court 3 Is there need for the domestication of the Rome Statute? 4 Malawi and the International Criminal Court 4.1 Current framework for prosecuting and punishing international crimes 4.2 Existing challenges and the way forward 5 Zambia and the International Criminal Court 5.1 Current framework for prosecuting and punishing international crimes 5.2 Existing challenges and the way forward 6 Conclusion

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Implementation of the Rome Statute of the International Criminal Court in South Africa Lee Stone 1 Introduction 305 2 The domestication of the Rome Statute in South Africa 307 3 Analysis of the implementation of the International Criminal Court Act 309 3.1 Complementarity 309 3.2 Core crimes and the elements 310 3.3 Jurisdiction 311

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3.4 Immunities and privileges 312 3.5 Procedural considerations and applicable law 313 Arrest, surrender, extradition and transfer 316 4.1 Arrest 316 4.2 Surrender 317 4.3 Extradition 319 Co-operation with the ICC and assistance in terms of article 93 of the Rome Statute 319 Declaration of the seat of the ICC within South Africa and associated measures of assistance 320 Enforcement of sentences 321 Effective implementation and enforcement of the ICC Act by way of regulation-making 322 Recent developments illustrating the effect of implementation of the Rome Statute in South Africa 323 9.1 South Africa’s response to the article 98 Bilateral Immunity Agreements imposed by the United States of America 324 9.2 Zimbabwean officials accused of committing crimes against humanity 325 9.3 South Africa’s reaction to the international arrest warrant issued against Sudanese President Omar Al Bashir and South Africa’s legal obligations if Omar Al Bashir were to arrive in South Africa 325 9.4 South Africans allegedly implicated in war crimes during Operation Cast Lead in Gaza 327 9.5 Proposed amendment to article 16 (deferral of investigation or prosecution) of the Rome Statute 328 Conclusion 330

SELECTED BIBLIOGRAPHY

TABLE OF CASES

SUBJECT INDEX

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FOREWORD

I write this foreword with great pride and pleasure – in my capacity as Director of the Centre for Human Rights and as Academic Coordinator of the LLM (Human Rights and Democratisation in Africa).

I say ‘with pride’ because all the contributors to this collection are graduates of the Centre for Human Rights. With the exception of one, they have all been students on the LLM (Human Rights and Democratisation in Africa programme). The single exception, George William Mugwanya, completed the Master’s degree in human rights that preceded the LLM (Human Rights and Democratisation in Africa). It is immensely gratifying to follow these students’ progress since their graduation. Many proceeded to do doctorates at a wide range of universities. Others now hold teaching positions at African universities. Some are actively involved in the practice of international criminal justice. The two editors are, at the time of writing, doctoral candidates at the Centre for Human Rights.

I say ‘with pleasure’ in appreciation of the breadth and depth of the contributions in this volume. Here, fourteen African voices are provided with a platform to participate in the on-going debate on issues pertaining to international criminal justice as they arise in respect of past, present or possible future prosecutions by domestic, international and hybrid tribunals in Ethiopia, Kenya, Malawi, Rwanda, Senegal, Sierra Leone, South Africa, Sudan, Uganda and Zambia. The topics they address, the issues they raise and the countries on which they focus reflect the diversity and demographic spread of alumni of the LLM programme. Quite clearly, this collection does not make a claim to provide a comprehensive picture. What it does, however, is to strengthen the contribution of African scholars and practitioners to an area of concern to Africa, in which African voices are often underrepresented.

As the editors indicate in their ‘Introduction’, this publication stems from a workshop held in May 2010. Authors were required to complete their chapters before the workshop, so as to allow critical discussion of their contributions. This intensive process, in addition to peer review by experts in the field, contributed significantly to ensuring that the potential of each contribution was fully explored. The Centre gladly acknowledges the role of the Konrad Adenauer Stiftung in supporting the process.

This book can be viewed as a gift to the Centre by (some of) its alumni. It celebrates two milestones of both the LLM programme and the Centre itself.

The first milestone that the book celebrates relates to 2009, which marked the 10-year existence of the LLM (Human Rights and Democratisation in Africa). Coinciding with the graduation of the ‘Class of 2009’, an Alumni Conference was held. It served as a forum to renew and strengthen the personal and professional bonds between graduates along the axes of year groups, professional interests and countries; but also across the divides of year groups and countries.At the event, graduates decided to launch an LLM (Human Rights and Democratisation in Africa)

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Alumni Association (LLM (HRDA) Alumni Association), to fully exploit the potential of the multiple networks of alumni – most of whom are based somewhere on the African continent. The idea of this publication was conceived as a way of harvesting existing expertise and experience among members of the graduate network. It illustrates the intellectual potential of the network of graduates, and gives a concrete example of what may be achieved by the Alumni Association or other collective action by graduates.

The second milestone to which the book relates is the Centre’s 25-year celebrations in 2011. While most of the work in the preparation of this publication was done in 2010, it is finally published in 2011, the year in which the Centre commemorates 25 years of existence.

If this book is a gift, thanks should go to the editors. They toiled enthusiastically, spent countless hours in following up contributors and persevered to the last in locating missing details and carefully proof- reading the text. Chacha Murungu deserves special mention for his role in initiating and conceptualising the idea that led to this publication. Annelize Nienaber assisted with copy-editing the text. Thanks also go to the Konrad Adenauer Stiftung and Raoul Wallenberg Institute, whose assistance made the publication and distribution of this book possible.

FransViljoen Director, Centre for Human Rights

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CONTRIBUTORS

Benson Olugbuo is a Solicitor and Advocate of the Supreme Court of Nigeria and a Doctoral Candidate and Teaching and Research Assistant at the University of Cape Town, South Africa

Bonolo Dinokopilais a Lecturer at the Department of Law, University of Botswana and a Doctoral Candidate at the Centre for Human Rights, Faculty of Law, University of Pretoria, South Africa

Chacha Murungu is an Advocate of the High Court of Tanzania and a Doctoral Candidate at the Centre for Human Rights, Faculty of Law, University of Pretoria, South Africa. He is also the Coordinator of the African Expert Study Group on International Criminal Justice

Christian Garukaa Legal Researcher at the Centre for the Study of is AIDS, University of Pretoria, South Africa

Christopher Mbaziraa Lecturer and Deputy Dean (Postgraduate & is Administration), Faculty of Law, Makerere University, Uganda

Firew Tibais a Lecturer at the University of Waikato, New Zealand

George Mugwanyaa Senior Appeals Counsel at the International is Criminal Tribunal for Rwanda and an Advocate of Uganda’s Courts of Judicature

Japhet Biegonis an Advocate of the High Court of Kenya and a Doctoral Candidate at the Centre for Human Rights, Faculty of Law, University of Pretoria, South Africa

Osogo Ambaniis a Lecturer at the Faculty of Law, Catholic University of Eastern Africa, Kenya

Ken Oburais a Doctoral Candidate at Rhodes University, South Africa, and an Advocate of the High Court of Kenya

Lee Stoneis an Attorney of the High Court of South Africa and a Senior Lecturer at the Faculty of Law, Howard College Campus, University of KwaZulu-Natal, South Africa

Mwiza Nkhatais a Lecturer at the Faculty of Law, University of Malawi, Malawi and a Doctoral Candidate at the Centre for Human Rights, Faculty of Law, University of Pretoria, South Africa.

KameldyNeldjingayeis a Legal Officer at the Institute for Human Rights and Development in Africa, Banjul, The Gambia

Steve Oderois a Lecturer in Law and Political Science at Africa Nazarene University, Kenya

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