Thursday, February 9, 2017

The AU´s Withdrawal Strategy: Is the Glass Half Full or Half Empty?

AU 28th Ordinary Session, January 2017, Addis Ababa, Ethiopia
The 28th ordinary session of the Assembly of the African Union, finally came to an end on the 31st of January 2017 in Addis Ababa. One of the many topical issues towards the end of the summit was the adoption of the common strategy document on withdrawal from the International Criminal Court (ICC). The grievances that African states have with the international criminal justice system are well documented, however, it appears the lack of progress in resolving those contentions has led to the adoption by the AU Assembly, of the withdrawal strategy document. At first instance, this move might tempt one to envision doom and gloom for the continent, let alone the international criminal justice system. However, when one considers the strategy in its entirety, not all is lost, in fact, one could argue that the strategy is a reflection of the glass being half full as opposed to being half empty.  

The withdrawal strategy is a separate document that was adopted within the AU Assembly decision on the ICC. The decision does not provide any details about the contents of the strategy but simply adopts it. The withdrawal strategy document itself, which is on file with the author, seems to detail its main objective, as the achievement of equity in the application and enforcement of global justice in order to enable the establishment and development of a regionalised system of international criminal law. In order to achieve this, the strategy details two avenues, firstly, by way of legal and institutional strategies such as the implementation of the amendments to the Rome Statute; reform of the UNSC; strengthening national criminal justice mechanisms of member states; ratification of the Malabo protocol as well as increasing African representation in the ICC. The second avenue contained in the withdrawal strategy document entails political strategies which involve engagement with the UNSC, Assembly of  State Parties (ASP) and the ICC´s Office of the Prosecutor (OTP) among others. Given the already long struggle by the African group of states for UNSC reform, it would seem most of the legal and institutional strategies have already been in motion for a number of years but to no avail. Some of the main goals expected from the second approach comprising of political engagements include ensuring the withdrawal of the Sudan referral situation by the UNSC as well as ensuring that the permanent 5 members of the UNSC do not veto a resolution to that effect. Given the previous refusal by the UNSC to defer not only the Sudanese situation but also the Kenyan situation, it seems rather unrealistic to expect a change in stance.

Additionally, the withdrawal strategy acknowledges that collective withdrawals are not recognised by international law and alludes to the possibility of individual withdrawals by African states. The document does not in any way explicitly give instructions, nor a timeline for African states to collectively withdraw from the Rome statute. Instead, it outlines a comprehensive contextual (political and historical) background as well as the legal implications for individual African states, should they decide to trigger the withdrawal clause within the Rome Statute. Therefore, any inferences that claim that the adopted strategy implies “collective withdrawal” seems rather misleading as it gives the impression that a mass exodus of African states from the ICC has been triggered. Similarly, the title of the document, “withdrawal strategy” leads to misconceptions and has polarising undertones as it allows for the impression of a mass withdrawal to be created. For the most part, the document is actually rather constructive and puts into perspective some of the most contentious issues in the application of international criminal justice matters whilst calling for continuous dialogue in order to resolve the matters.

Legal implications of the ICC withdrawal strategy

Given that AU Assembly decisions are generally binding upon member states, which may be inferred from Article 23 (2) of the Constitutive Act, it means the decision on the ICC is legally binding. However, according to the 1971 ICJ advisory opinion on the presence of South Africa in Namibia (para. 114) the ICJ opined that the text of a resolution must be analysed in order to assess its binding nature and in that regard, non-mandatory language which does not create obligations for states nor affect their legal rights is non-binding. Since paragraph 8 of the decision simply adopts the withdrawal strategy and does not explicitly provide any instruction to member states, this implies that member states do not accrue any obligations from paragraph 8 of the decision. Consequently, the said withdrawal strategy, which is a separate document from the decision, is legally non-binding on AU member  states as it also creates no binding obligations upon AU member states. The withdrawal strategy can simply be equated to a political message, proposal or recommendation to African states. The Assembly´s adoption of the strategy on the other hand indicates that African leaders continue to be dissatisfied with the current international criminal justice system and might be running out of patience to continue in dialogue.

Given the lack of clear and concise instructions, timeline or repercussions upon non-compliance within the decision as well as the strategy document, each individual state still holds the sovereign right to individually decide and embark upon the withdrawal process as provided for by article 127 of the Rome Statute if they so wish. This implies that, should African states hypothetically individually decide to simultaneously withdraw from the ICC, there would be no new legal implications for  each withdrawing African state apart from those laid out by article 127 of the Rome Statute. 

Possibly due to the fact that the withdrawal strategy document was not circulated to state delegates before the AU Summit, it is my observation that the legal implications of the withdrawal strategy might still be unclear to member states. Additionally, the misleading title of the strategy might have triggered unnecessary panic. This might explain the 13 states which expressed reservations based on the fact that they viewed the strategy document as a violation of the principle of the sovereignty of states. Additionally, that the AU, not being a state and therefore lacking the capacity to ratify treaties, cannot adopt decisions that have implications on the membership of state parties to the ICC. This would be true if the withdrawal strategy was binding and if state parties risked facing sanctions upon non-compliance but the withdrawal strategy makes no such suggestion. 

Way forward?

I humbly suggest that the main objective of the strategy (stated above) could still be reached even without African states resorting to individual withdrawals from the ICC, if only with a little more patience and mutual respect which seems to be running in short supply among the relevant actors. In this regard, the AU Assembly decision on the ICC highlights its dissatisfaction with the attempted engagement between the UNSC and the AU Open-ended Committee of Foreign ministers. Meeting attempts between the parties were apparently unsuccessful due to the disregard displayed by the UNSC when they sent junior representation without decision-making powers to the meeting. The committee and Assembly´s dissatisfaction can be understood against the backdrop of the long history of the AU´s efforts in trying to ensure sufficient and fair consideration of African state´s proposals among international criminal justice institutions. Though understandable, the seeming loss of patience by African leaders is somewhat disappointing since the agenda, events and dialogue at the 15th Session of the Assembly of State Parties (ASP) to the Rome Statute of the ICC in November 2016 had set a hopeful tone. The meeting had been considered one of the most progressive sessions in terms of setting up a platform for constructive dialogue regarding African states´ grievances. Through the initiative of Mr Sidiki Kaba, the ASP president, a special segment on the troubled relationship between some African states and the ICC had featured prominently on the agenda and thus signified hope for further constructive dialogue in the future.

Conclusion

While I am not convinced that withdrawal is the solution for the grievances African states have against the international criminal justice system, the adoption of the strategy is no surprise and to some extent understandable. Additionally, the need to initially understand the deeply complicated nature and background against which this strategy has been adopted cannot be over-emphasised. The struggle to achieve global equity within international criminal justice structures and systems is a justified and long over-due cause. The remaining unavoidable question would be whether African leaders adopted this strategy in order to protect themselves from the delivery of justice and if the efforts towards operationalising a regional international criminal justice system are only a facade to that effect? An attempt to answer these questions might be mere speculation at this point and hence legally inadmissible. For now, it might be wiser to take African leader´s explicit "commitment to fight impunity" (para 2(i)) at their word. Besides, as I have argued elsewhere (pp. 272-294), pursuing a regionalised African criminal justice system might be of great benefit to the continent and the international criminal justice system.

Guest Post by Dorothy Makaza  
Dorothy Makaza. Ph.D Scholar DAAD
(Dorothy Makaza is a DAAD (Deutscher Akademischer Austausch Dienst) scholar and a PhD candidate at the University of Hamburg. She is currently a research resident at the African Union Commission on International Law in Addis Ababa, Ethiopia. Her PhD research centers on African state compliance with international criminal law. She has a broad range of interests but her main passion and specialisations lie in the fields of public international law, international criminal law, human rights law, international humanitarian law and conflict management. Dorothy holds a master’s degree in human rights and conflict management from Scuola Superiore Sant’ Anna in Italy, as well as a bachelor’s degree in law (LLB) from the University of Fort Hare in South Africa. She has previously worked and interned for various international organisations, including the Institute for African Affairs at the German Institute of Global and Area Studies and has also previously worked as a freelance consultant and researcher for Amnesty for Women, a human rights organisation she continues to be professionally affiliated with.)

Friday, November 4, 2016

THE ICC AND THE AU: A CALL FOR DIALOGUE

Gambian President Yahyah Jammeh declares Gambia to Leave ICC

In the wake of recent news that Burundi, South Africa and now Gambia are to withdraw from the Rome statute of the ICC, there are, justifiably, tense moments among the legal and wider fraternity that constitutes the so called international criminal justice project: are the steps taken by these nations the beginnings of a mass walk-out by African states (which constitute the single largest continental membership bloc), and can the ICC survive an event of such proportions, or would such a walk-out even matter? The OTP’s Fatou Bensouda, herself a Gambian has already provided an answer to the latter question. In a typically dismissive fashion, she has noted that the ICC will march on regardless. However, a more politically grounded president of the ASP, Sidiki Kaba, has signaled that dialogue should be embraced by all parties to avert a potential disaster, and this is as it should be.

The prevailing narrative on the intended withdrawals and any further potential cases from Africa is the much repeated and equally robustly rebutted notion that the ICC is unfairly targeting African nations in its fight against global impunity, the so called African bias. Both sides of this argument have been so exhaustively prosecuted in contemporary legal and political discourse that any further pronouncements on the argument here would be rather futile. What I propose here is that the problem between the ICC and the disaffected African states lies quite outside of this oft repeated premise, and any attempts to understand it must look both to the attitude of the ICC and to the internal political dynamics of the states concerned.

SA. President Zuma Recently Implicated in State Capture Report
Accordingly, South Africa’s notification of its intention to withdraw has been linked by some to the difficulties surrounding the government after its own courts embarrassed it by declaring its reception of Al Bashir, the ICC’s most wanted fugitive, a breach of the law. The government’s own protestation that it had to choose between loyalty to the AU and pandering to the ICC rings hollow. However, the decision comes at a time when the composition and integrity of the current ANC leadership faces a mounting political existential threat: the prospect of damaging corruption revelations in a report on state capture by the outgoing public protector has sent Zuma’s government clutching for straws. Further, an apparently politically motivated and ill advised decision by the SA National Prosecuting Authority to go after the current finance minister has, as widely expected, ended in fiasco and reinforced perceptions of a Zuma government engaging in a witch-hunt. I venture to suggest that SA’s decision will eventually unravel as a poor attempt at political diversion with little if anything to do with the government’s official position and everything to do with Zuma and the ANC’s political calculus, and the SA opposition and civil society are likely to successfully petition the courts to declare it null and void on administrative procedural and constitutional grounds. Similarly, the Burundi and Gambia decisions must be understood within the context of their internal political dynamics. This does however not absolve the ICC from its role in building up the perception of bias towards African states. The ICC and in particular the OTP has by its attitude and political stance provided ammunition for local political players and given them enough reasons to legitimize their actions in front of their local supporters.

The ICC claims to be non-political (and only legal) when the opposite is clearly the case. More than anything else, it is its claim to being a purely legal entity that does not engage in any politics that exposes the ICC to claims of dishonesty and bias. A quick look at the actions of the ICC in Kenya, Uganda, and Ivory Coast for example reveals its political hand in at least three ways: overtly as when it engages in direct negotiations with Uganda in obtaining its self-referral; the ICC was thus effectively co-opted by Museveni in his personal pursuit of Kony et al, and bringing  the ICC dimension into the equation was meant to up the stakes against Kony and the Lord’s Resistance Army ; covertly when it gets itself inserted into and manipulated by local politics as we saw in the Ivory Coast situation where some political contestants sought to tip the balance of power in their favor by ‘accepting’ the sovereignty of the court while in actual fact putting their opponents away; and indirectly when its inaction and/or inefficiency with regards to prosecutorial decisions and case turnover creates cause for concern with serious ramifications on its legitimacy and universal acceptance. Thus, insisting that it is an institution concerned solely with the law while overtly making political considerations and allowing itself to be manipulated by politicians in furthering local political interests only serves to legitimize the anti-ICC crusade. This stance has simply straight-jacketed the ICC into a self-defeating legal formalism and held it back from engaging with the AU in a politically viable manner.

It should be clear therefore that any more African countries contemplating withdrawal from the ICC are not about to do so because of an overwhelming sense of injustice emanating from the OTP vis-à-vis Africa in general. They will do so first and foremost according to the exigencies of their local political realities. Secondly, they will do so because of the political expediency of the narrative, true or not, that the ICC is a compromised institution, and they will do so believing that enough rope can be woven from this with which to hang the ICC while gaining some local political mileage. None of the above scenarios augurs well for international criminal justice and the fight against impunity, and If the ICC is to  play its intended role in this project then it must simply revise its own ‘no politics’ mantra and learn to play politics openly, intelligently and robustly especially with regards to Africa.

This does not mean that the ICC should take sides in local political contests but that it must be alive to the impact of its attitude and activities in Africa and elsewhere. It must keep abreast of local political realities so that it correctly interprets them. The Kenyan situation showed just how much the OTP was ignorant about local politics, first by selecting suspects on the basis of a flawed understanding of party politics in Kenya and secondly by seriously under-estimating the local value of the ICC brand in Kenyan politics. That perceived political foes could win an election on a joint ticket based on an ICC narrative is a vindication of the ICC’s apparently naïve approach to African politics.

Embracing dialogue between the ICC and the AU does neither diminish nor foreclose the formal role of the court and the ASP. The ICC has publicly rebuffed previous private overtures from the AU with a suggestion that the AU should either initiate legal motions via the courts or wait for formal ASP sessions to articulate their concerns. This high handedness is both unnecessary and unhelpful as informal consultations can form the background for more formal engagements later on while creating a sense of mutual recognition and trust between the parties concerned. The call by Sidiki Kaba for dialogue must therefore not be limited to the formal confines of the ASP but also include informal consultations with the AU and other stakeholders. This is the way forward not only for a fruitful relationship between the AU and the ICC but also for the realization of a robust international criminal justice system.

Guest Post by Dr. Michael Odhiambo (Michael is a researcher attached to the School of Human Rights Research and the Receptor Approach)


Monday, October 3, 2016

Child Terrorists and Child Foreign Fighters in Europe

Ine van Giessen
On 13 November 2015, bombings and shootings in six different locations in Paris killed over 130 people and injured over 100 others. Five months later, bomb attacks in the departure hall of Zaventem Airport and at Maalbeek Metro station in Brussels, killed 31 people and injured 220 more on 22 March 2016.  These attacks on European territory share common denominators, namely, the Islamic State (ISIL) claimed responsibility for both attacks. Furthermore, Belgian nationals committed the attacks in Paris and Brussels. According to research by the International Centre of Counter-terrorism (ICCT) at least seven of the perpetrators of the Paris attacks had allegedly previously fought for ISIL. Of those seven perpetrators, intelligence suggests that three traveled to Syria at some point before the attacks. This raises questions  legal classifications, and obligations or possibilities to prosecute under domestic and/or international (criminal) law.

On 1 April 2016, the ICCT published a report on the phenomenon of Foreign Fighters (FF) in the European Union. The research shows that the total of FF from the European Union lies between 3922 and 4294 people of which 30 percent have returned to Europe and 14 percent is confirmed dead. The ICCT research states that amongst those FF are minors. ISIL grooms children and educates them on its ideology to create a new generation of supporters of the caliphate. These young children (known as ashbal al-khilafacubs of the caliphate” are used on the battlefield as well as featured in promotional videos. Many of the videos show these young children in different capacities acting on behalf of the caliphate.
Scholars such as Capone argue that there are two main categories of child FF. The first category consists of those who are motivated to leave their home in pursuit of their own personal identity, and the second category consists of those who want to live in a true Islamic Community. Furthermore, the families of children could have forced these children to join the caliphate as a Dutch mother did, in March 2015, who brought their two Dutch children to join ISIL in Syria. Moreover, Watts’ research indicates that recruitment of FF by family members forms a high percentage of means of recruitment.

Interpretation of international law indicates that the three who travelled to Syria could be classified as FF whilst the others who did not travel abroad prior to the attacks would most likely be classified as terrorists. Since there does not exist an universally accepted definition of terrorist or FF under public international law (PIL), the UN leaves the door open for the interpretation of the definition of terrorism on a domestic level. Pursuant to States’ discretion to define terrorism under their domestic legislation, differences occur between domestic systems leading to different legal consequences. Similarly, there does not exist a universal definition of a FF. The commonly used definition is that of the UNSC, which intrinsically links FF to terrorists groups. The UNSC does refer to children in Resolution 2178, calling upon the Member States to prevent the radicalization to terrorism and the recruitment of FF, including children. However, the PIL system lacks possibilities to prosecute those children for terrorist acts on an international level. PIL such as IHRL, IHL and ICL makes no distinction between adult perpetrators and children with respect to terrorist acts. Children are not excluded as perpetrators of terrorist acts by virtue of childhood. Consequently, children can be the violators of international rights and provisions governing terrorist acts. On itself, PIL does not prohibit the prosecution of children. The Committee on the Rights of the Child merely urges states to set the limit of criminal liability not below the age of 12. There exists no international juvenile court, which, in theory, would mean that children would face prosecution before the ICC since IHRL, IHL and ICL mostly rely on the ICC for the prosecution of individual perpetrators. However, under PIL there exists no de facto possibility to prosecute children on an international level, as the ICC excludes prosecution of persons below the age of 18. De jure, prosecution is possible before other institutions such as special tribunals; however, these are not (yet) in place. Consequently, PIL leaves the prosecution of child terrorists and child FF to the municipal courts. Whether child terrorists and child FF will f before domestic courts under international law or domestic law consequently depends on the state that will undertake the prosecution. Since the definition of terrorism and FF and the criminalization of these acts is left to the discretion of states, differences in legal consequences will occur.

A vast framework of IHRL instruments is set up to protect the rights of children, with the key international instrument being the Convention on the Rights of the Child which awards children special protection with respect to fair treatment and fair trial in case of prosecutions under article 40(2). However, the lack of consistency on the international level with respect to child terrorists and child FF does, in my opinion, does not coincide with children’s need for special protection.

The international community made a first step in acknowledging that children can be the perpetrators of terrorist acts but has failed to take the second step and create a better protection framework. The international legal system, as it is now, is not yet ready to prosecute children for gruesome acts on an international level, leaving the prosecution to the discretion of states. If the international legal system is not ready to prosecute child perpetrators, to what extend will it be ready, in its current state, to protect the rights of these children when they face prosecution by states on a domestic level. Children need extra protection at all times, even in the capacity of terrorists and FF, and in my view, it is of utmost importance that the international community strengthens the protection framework in a timely manner.

Guest Post By Ine van Giessen (Ine holds an LL.M in Public International Law from Utrecht University and specialises in issues of human rights and terrorism)