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Enabling constructive debate about Africa's international justice concerns
26 November 2015

International criminal justice, particularly the work of the International Criminal Court (ICC) remains politically contested in Africa. Through its research and access to decision makers in Africa and globally, the Institute for Security Studies (ISS) stays abreast of the key legal and political issues, and provides a forum for critical and constructive debate.

On the opening day of the 14th Assembly of States Parties (ASP) to the Rome Statute of the ICC, the ISS hosted a side-event on concerns with the ICC raised by South Africa and Kenya. Aptly titled, ‘Muddying the water: interpreting the Rome Statute,’ the event provided a much-needed platform for robust exchange on issues that were the source of some disquiet among ASP participants this year.

Speaking at the event, Dr Korir Sing’oei, Legal Advisor and Head of Legal and Intergovernmental Liaison Office in the office of Kenya’s deputy president, explained his country’s concerns about the application and interpretation of the amended Rule 68 of the ICC’s rules of procedure and evidence. This amended rule adopted at the 12th ASP allows the inclusion of prior recorded testimony at trial without cross-examination. Kenya argues that the retroactive application of the rule violates the rights of accused and leads to unfair trials. Kenya was also concerned about the way in which the ICC Office of the Prosecutor (OTP) procures witnesses, arguing that witnesses are not properly sourced, testimony is false and the OTP coaches witnesses.

South Africa’s concerns echo those of other African states, and relate to cooperation with the ICC and immunity of heads of state in the wake of Sudanese President Omar al-Bashir’s travel to South Africa for the African Union (AU) Summit in June. Specific concerns dealt with the application and interpretation of Articles 97 and 98 of the Rome Statute. Article 97 deals with the consultation process between the ICC and states to facilitate cooperation. Article 98 provides for a possible waiver of immunities and consent to arrest and surrender ICC fugitives.

Dynamics at the ASP show how important the work of civil society is in the work of the ICC
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At the side-event, Dr Max du Plessis, ISS Senior Research Associate and Associate Professor of Law at the University of KwaZulu Natal, provided an overview of South Africa’s concerns and offered some critical insights on balancing competing legal obligations.

Objective engagement is critical to resolving states’ concerns about international justice, especially when legal and political challenges intersect. The important role that civil society can play in this regard was highlighted by ICC Prosecutor Fatou Bensouda when she noted that, ‘Dynamics at the ASP show how important the work of civil society is in the work of the ICC.’

The ISS was the only civil society organisation that took up the debate on the Kenyan and South African governments’ concerns at the ASP. When both states parties were successful in adding these items to the 14th ASP’s agenda, this caused some concern among participants on the basis that the ICC judges and not the ASP are best placed to handle them. The independence of the court is fundamental, but dialogue remains key to bridging the divide. Because the issues raised by Kenya and South Africa reflect the views of many African countries, and in some respects the AU, the ISS side-event made an important contribution to the discourse on international criminal justice and finding solutions.

While at the ASP, the ISS also co-hosted two other events. The first dealt with complementarity in Africa and showed how African states are dealing with international crimes. The second, in partnership with REDRESS, International Federation for Human Rights and Kenyans for Peace with Truth and Justice discussed access to justice for victims in Africa

The ISS is committed to facilitating constructive debate about international criminal justice and continues its work with African governments, civil society, the AU and the ICC.

For more information contact:

Allan Ngari, ISS: +27 72 258 2897, angari@issafrica.org

These activities were made possible with funding from the Open Society Foundations. The ISS is also grateful for support from the following members of the ISS Partnership Forum: Governments of Australia, Canada, Denmark, Finland, Japan, Netherlands, Norway, Sweden and the USA.
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