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Day of International Criminal Justice: is there cause for celebration?
17 July 2015

Today, 17 July, is the Day of International Criminal Justice. The day marks the anniversary of the adoption of the treaty that created the International Criminal Court (ICC). International justice is not just about what happens at the ICC, however. It is also about how countries promote international criminal justice domestically, and the focus should thus be on developments at national, regional and international levels.

It is perhaps uncanny that this July, there are several significant developments in this field on the African continent: some good, others less so.

For starters, the ICC Office of the Prosecutor recently released its draft strategic plan for 2016 to 2018 for comment. The strategy sees some noteworthy changes aimed at improving investigations and prosecutions. That the Office of the Prosecutor is seeking input and comments from interested external partners should be commended. If this feedback is considered and incorporated, it could herald a new phase in which ICC investigations and prosecutions are better informed.

This could herald a new phase, in which ICC investigations and prosecutions are better informed

As the ICC continues to trudge on with its work, countries like South Africa are calling for a review of how the court operates. Coming from Africa, this call is not new – countries like Kenya have, in the past, called for ICC reform. South Africa’s stance, however, seems to be informed by recent events. Indeed, just as the dust around Omar al-Bashir’s controversial visit to the country was about to settle, the South African government indicated that it would appeal the decision by the High Court to issue an arrest warrant for the Sudanese president.

Interestingly, South Africa – a core proponent of international criminal justice – is now arguing that al-Bashir’s immunity as a head of state means he cannot be arrested. This is a departure from its views in 2009 and 2010 when, for President Jacob Zuma’s inauguration and the start of the World Cup respectively, South African officials extended a formal invitation to al-Bashir but then advised him not to travel to South Africa at the risk of arrest. However, starting from 2013 when Uhuru Kenyatta (also indicted by the ICC) became president in Kenya, South Africa’s views on immunity of heads of state have evolved. Thus the government’s move to appeal the High Court’s decision was anticipated and this portends a drawn-out legal process.

The South African government has on multiple occasions made clear its intention to pursue this matter as far as it can. Key indications of this came when the Deputy Minister of Justice, John Jeffery, made his statement in Parliament on al-Bashir’s visit (and departure) from South Africa. In this statement, he indicated that the legal process was ‘far from being exhausted.’

He re-emphasised this point at a seminar at the Institute for Security Studies (ISS) yesterday, stating clearly that the government ‘will go as far as it can to resolve the legal issues and to get clarity.’ Similarly, in a public briefing on behalf of cabinet, the minister in the presidency in charge of monitoring and evaluating, Jeff Radebe, outlined the many possible steps South Africa might take in terms of its relationship with the ICC. He indicated that these steps would take time, and withdrawing from the ICC Statute would be a last resort.

At the seminar, ISS Managing Director Anton du Plessis, who chaired the event, asked whether South Africa is ‘back-peddling from being a shining example of the rule of law, human rights and international justice.’ In clarifying South Africa’s position on the ICC, Jeffery underscored that South Africa remained committed to international criminal justice, but that it had to balance its obligations to the ICC and to the African Union (AU). ‘International relations are complicated and the reality of international politics must be looked at,’ he said.

Meanwhile, elsewhere on the continent, efforts to strengthen international criminal justice continue. Recently in the Democratic Republic of the Congo (DRC), Parliament unanimously adopted a law implementing the ICC Statute. Once approved by the senate and decreed by the president, the law will pave way for domestic prosecutions of international crimes and improved cooperation between the DRC and the ICC. The spokesperson for the Congolese Coalition for the ICC, Désiré-Israël Kazadi, heralded this move as significant in the fight against impunity in the DRC. To date, the DRC – which already has some cases before the ICC – has prosecuted sexual and gender-based international crimes through its military courts and through the mobile gender justice courts.

Elsewhere on the continent, efforts to strengthen international criminal justice continue

Similarly, the Central African Republic established a special criminal court to investigate and prosecute grave human rights violations. The court, which is not yet operational, would have both Central African and international staff. This hybrid approach is an acknowledgement that the country needs external support to better investigate and prosecute international crimes. This innovative court, according to Human Rights Watch, could arguably serve as a new model for justice.

Last, but certainly not least, the trial against former Chadian president Hissène Habré is set to start on 20 July. Habré, who has been exiled in Senegal since he was overthrown in 1990, will face trial for crimes against humanity, war crimes and torture at the Extraordinary African Chambers in the Courts of Senegal. If the trial takes off – as it has failed to do on multiple occasions – it would be the first time that a former African leader is prosecuted by another African state, with the support of the AU, for crimes committed during his term in office.

As South Africa seeks clarity on its domestic (and international) obligations in respect of the ICC, elsewhere on the continent there is increased recognition that in order to ensure justice, countries themselves must do their part. These developments on the continent reflect shifting views on the scope of international criminal justice.

Significantly, they show that the complementarity system envisaged in the ICC statute is, though slowly, becoming a reality. While this should be commended, a lot needs to be done to fill the impunity gap in Africa and elsewhere.

A complementarity system implies no competition between the various mechanisms. Only when the different mechanisms work together, and not against each other, can true international criminal justice be achieved. Without a doubt, in Africa, there is much to mull over on this year’s Day of International Criminal Justice.

Ottilia Anna Maunganidze, Senior Researcher, Office of the Managing Director, ISS Pretoria

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