I recently travelled to Arusha, Tanzania for a Regional Seminar of List Counsel of the International Criminal Court (ICC).
The International Criminal Court became operational in 2002 and has jurisdiction over the most serious crimes of concern to the international community, that shock the conscience of humanity: war crimes, crimes against humanity, and genocide. The crime of aggression will be added to its jurisdiction in 2017.
I am on the Court’s List of Counsel and was invited to a Regional Seminar of the ICC held in February at Arusha, Tanzania. The Arusha Seminar was intended to improve the visibility of the court, particularly in light of the background politics, and to improve accessibility for African based List of ICC Counsel and prominent members of the legal profession. Arusha is also the where the International Criminal Tribunal for Rwanda is based.
The ICC has come under criticism, led by the African Union. They argue that the court is biased against Africans, who account for all the cases tried by the court thus far. Supporters of the Court point out that several of the cases were referred to the court by African states themselves or the UN Security Council in the cases of Darfur and Libya.
In 2011, after Kenyan President Uhuru Kenyatta and William Ruto, his deputy were put on trial, the African Union, in a direct swipe at the ICC, declared immunity for sitting heads of state. Nairobi accused the ICC of being neocolonial and targeting Africans. Charges against Kenyatta and Ruto have since dissipated due to witness recanting or disappearance.
This was the background in which the Arusha ICC Seminar occurred. Here are a few random musings from my attendance:
Most Counsel, including the African lawyers, expressed strong support for the ICC and a universal, independent legal institution to prosecute individual crimes of responsibility committed in leadership capacity. A small minority, that one suspected might be politically connected to governing regimes in their home countries, led the criticism.
There was discussion of the Malabo Protocol that contains an extensive and ambitious list of crimes. It establishes the African Court of Justice and Human Rights and to extend the jurisdiction of the court to try 14 different crimes: the four crimes contemplated under the jurisdiction of the ICC and also crimes such as corruption, trafficking in drugs or persons, terrorism, mercenarism, and unconstitutional change of government. Thus far, there are only five ratifications of the Protocol.
The ICC statute is predicated on a core principle of Complementarity, recognizing that individual states have primary responsibility for prosecuting mass crimes of violence, including the crimes under the jurisdiction of the ICC. It is only if a state is unable or unwilling to investigate or prosecute, that the ICC will accept jurisdiction and prosecute. Accordingly, the Malabo Protocol need not necessarily be viewed as undermining the ICC, so much as consistent with the principle of Complimentarity.
Attendees included prominent actors such as an ICC judge, Chief Justices, Ministers of Justice, representatives of Regional Systems such as the African Court of Peoples and Human Rights, the Pan-African Legal Union, and civil society such as Amnesty International, and media. The Seminar was heavily focused on education and training, enhancing legal skills and knowledge, and a mock trial. I played the role of defence counsel assigned to cross-examine a child witness and victim in a factual scenario similar to events in DRC or Cote d’Ivoire.
The best part of any such gatherings is meeting people. In this case, it was an honour and privilege to meet fellow legal counsel from across Africa, conversing in English and French, sharing legal experiences, and making new friends. I was impressed with the quality, dedication and courage of the counsel from Africa. At the end, I gave myself a couple of extra days to explore and sight-see, including a visit to a national park and a walkabout with a park ranger. It was an enriching experience and I felt I barely scratched the surface of what Arusha and Tanzania had to offer.
More musings to follow on the ICC and international criminal law in a subsequent blog.
