Congratulations to ASEAN on the adoption of its Human Rights Declaration

Cambodia's PM Hun Sen, left, with ASEAN Secretary-General Surin Pitsuwan after the ceremony for the adoption of the ASEAN Human Rights Declaration, during the ASEAN Summit in Phnom Penh, November 18, 2012.

Compliments

On 18 November 2012, the ASEAN Heads of State and Government adopted the ASEAN Human Rights Declaration. This Declaration, which is the first comprehensive human rights document issued by ASEAN, displays an authentic regional vision on the promotion and protection of human rights.

The Presidency of ASEAN, held by Cambodia, which brought the process to a successful completion, and the ASEAN Intergovernmental Commission on Human Rights, which took care of much of the drafting, need to be commended for their stewardship of the process and the quality of its outcome. Since the cultures, political systems, and therefore the human rights ambitions of the member states of ASEAN are very different, the fact that they were able to produce such a consistent and convincing document deserves a compliment.

ASEAN’s efforts become even more commendable when one takes into account that the principle of non-interference has always been a pillar of the cooperation within ASEAN and an important part of its success. During the early years, states were focusing on internal problems and they were not eager, therefore, to take on each other. At a later stage the organisation accommodated the accession of a number of states with radically different political systems. This could work only because the members adopted a ‘live and let live’ attitude towards each other. ASEAN has now shown that it is willing to sacrifice a principle which has contributed much to the success of the organisation by turning human rights into an issue of common concern.

Increasing the Jurisdiction of the African Court of Justice and Human Rights

 

Since the decision by the African Union in July of this year to propose adopting a Draft Protocol increasing the jurisdiction of the African Court to try international crimes; there has been a whole lot of debate and criticism surrounding the issue. It’s been said that this is the African Union’s (AU) way of getting back at the International Criminal Court (ICC), given their already troubled relationship. Also there has been talk about the ‘the hurried process’ surrounding the Draft Protocol; the assumption that Africans want to be  tried by an African Court only; the subject matter of the courts jurisdiction; resource and financing issues; lack of experienced personnel and judges; insufficient capabilities and manpower in dealing with large scale, future investigations; incompatible mandates between the human rights section of the African court and its international criminal law section and the list goes on…  For more information on some of these criticisms you can read Max du Plessis’s recent blog post on Ejiltalk and Frans Viljoen’s post on AfricLaw.

While there are, indeed an array of concerns and questions, academics are rarely commenting on the positives that increased jurisdiction of the African Court may bring to the table for Africa and the international community. The problem is that we focus so much on the negatives, that we forget that there are reasons why such a Court may be beneficial. My own view on the issue is that an African Court could benefit Africa and the international community for a myriad of reasons, some of them include:

Inheriting a New Perspective – Women and the Land of South Africa

South Africa’s distressing history of segregation and problematic implementation of Human Rights standards, unfortunately, still peeking its way into the present day. Gender Rights in regards to Land Laws is especially one of the areas of the law in which these violations are being recognized. If South Africa wants to become a country sensitive to International Human Rights Norms, it must be realized by everyone that this is a feat much easier said than done, especially with South African customary law – laws built of customs and practices of the indigenous peoples - being as complicated and intricate as it is. Legal Pluralism is one of South Africa’s biggest obstacles to overcome; colonialism’s brought regulations translated from both Roman-Dutch law and English common law, which had to mix with a huge number of indigenous or customary laws already in place. Integration of these rules was not a smooth process; the settlers of 1652 from Europe, namely the Dutch East India Company that recognized the Roman-Dutch Law as the official law of the land - at first ignored the native laws of the tribes, then tolerated them after the second British occupation in 1806 when it was stated that there should be no interference with the native laws of the country, and eventually recognized them in the Interim Constitution of 1993. If South Africa wants to accomplish a true pluralistic nature to the law, and a multicultural nature of the society, it is necessary for everyone within that society to become more sensitive to the various cultural practices around them and to use a more bottom-up approach for implementing the changes.

Recognizing Customary Law can only be done if it is understood in itself, which is very difficult to do with the vast number of different regulations and customs followed by the different tribes and native communities. Land Tenure alone is two fold; there are the Official Customary Laws, which are the explicit laws about how inheritance of Land occurs and what procedures are to be followed, and the Living Version of Customary Law, which is the way in which the courts have interpreted and applied the provisions in real cases. The problem resides in the fact that there is a great disparity as to how the laws are applied; the lower courts have a tendency to take social practices and changes into account more so than the higher courts, which have a tendency to strictly apply the original customary rules, even though the laws weren’t in fact that strict at all.

Primogeniture – the preference for senior males as heirs to inherit land – is a dominating feature of inheritance and tenure law within the customary system, and is something which many indigenous tribes still follow, regardless of the new laws put in place. It was codified in Article 23 of the very controversial Black Administration Act 1927, a major piece of Apartheid legislation codifying the segregationist character of South African society. The basic idea behind this rule, under Official Customary Law, is that property of a family head, when deceased, is passed onto the heir, usually the oldest of the sons in the first house. In a Zulu household, “power is inherited by men but transmitted through women”; in polygamous marriages, if the husband were to die, then the property is to be distributed accordingly amongst the sons of the houses that are identified by the wives: the first wife of the “great house” (indlunkulu), the right-hand house (qadi) and the left-hand house (ikhohlwa); determining the seniority of the wives is usually on the basis of marriage order. In a Swazi household, the senior wife is chosen by the family, which helps identify who the heir should be – usually her oldest son. In almost every tribal community household, it is very difficult to say that there is no male heir to the deceased’s estate, due to the fact that an heir will eventually be found along the bloodline -  succession passes onto the deceased’s father, or the brothers, or the descendants in order of seniority.  Sometimes, succession will even be passed onto grandchildren, and then if failing the oldest grandchild, will then follow through the second oldest of the family line of males until an heir can be found. In the event that no heir can be found, however, the traditional leader of the community will then take hold of the estate, but is under the duty to use the estate to maintain the surviving dependants – women included. I have simplified these customs as much as I can, but the basic idea is that the heir to the estate is usually always a male – women seem to be avoided completely. However, women are used by many communities as a way in determining the heirs, for it is the women who are the leaders of the households, especially in polygamous marriages.

Fatou Bensouda New Prosecutor of the ICC

Photo Courtesy of ICC

Fatou Bensouda was officially instated as new Prosecutor of the International Criminal Court on 15^th June 2012. She brings to the table her years of national and international experience, first serving as solicitor general of Gambia, and then she broadened her experience internationally by serving as legal advisor and trial attorney at the International Criminal Tribunal for Rwanda (ICTR) and thereafter as Deputy Prosecutor at the International Criminal Court. There are many proponents who say that Bensouda could redeem the muddied reputation of her office left behind by her predecessor especially in the context of the Africa and the African Union. But in a recent interview with Radio Netherlands Worldwide she stressed that she was elected to the position not because she was an African but because of her accomplished track record.

Bensouda doesn’t deny her African heritage and makes clear that she is installed as Prosecutor of the International Criminal Court to fulfill her legal mandate given the speculations that she will be better equipped to deal with the Africans then her predecessor has. She uses the motto: “The ICC for African Victims” and already her strategy is to relate the current prosecutions to African victims. She also places a lot of emphasis on African participation outside and within the Court. She states that Africa is currently the most represented region at the Court, 28% of the judges are African and three African States (Uganda, DRC and CAR) have referred the situations on their territory to the Court. In other words she has highlighted Africa’s commitment to international justice in a more positive manner.

Whether Bensouda will bring change to the strategy adopted by her predecessor, Ocampo, only time will tell. One thing is for certain she does understand African custom, culture and politics more, and is therefore more likely to engage more meaningfully with African leaders and hopefully more sensitively with next prosecution she undertakes in Africa.

For more information on Bensouda’s swearing in ceremony visit:

http://www.icc-cpi.int/NR/exeres/C0AEA6EE-B485-4BE3-BF61-9D404163E119.htm

 Posted By Ingrid Roestenburg-Morgan 

Lubanga Judgment: New Case Law on Child Soldiers

Thomas Lubanga at the ICC    Photo Courtesy of Evert Jan Daniels

This year the International Criminal Court celebrates its 10^th anniversary since opening its doors in Hague in 2002. This year is not only the anniversary of the Court but also the first time that the Court has handed down a conviction to date. March of this year saw the founder and leader of the rebel group Union des Patriotes Congolaise (UPC), Thomas Lubanga Dyilo found guilty on charges of conscription and enlistment of children under the age of 15 by using them to participate actively in the ongoing armed conflict in Ituri. This is an important Judgment for the International Criminal Court as it is not only authoritative at the international level, but it is the first judgment which solely relates to the use of child soldiers.

The crime of recruitment and use of children under the age 15 years as a war crime has so far not been relevant under international criminal law. The judgment is relevant since according to the Trial Chamber it extends to any armed group within the context of a non-international armed conflict and within the ambit of international humanitarian law.

Kai Ambos has already written a paper dealing with an analysis of the legal issues emanating from the trial. His paper entitled “The first judgment of the International Criminal Court (Prosecutor v Lubanga): A Comprehensive Analysis of the Legal Issues” deals more in depth with the legal issues of the judgment.  He pays special attention to the definitional elements of the crime as handed down by the Chamber and affirms the Chambers findings that the verbs ‘conscripting’, ‘enlisting’ and ‘using’ under Art. 8(2) (e) (vii) reflect separate offences and thus should stand on their own.  

I found the topic dealing with the problem of consent which he also addresses to be particularly interesting. Ambos holds that while the definition of ‘enlistment’ implies voluntary recruitment as opposed to the term ‘conscripting’ which implies compulsory recruitment as decided by the Chamber; the autonomous decision of a child who voluntarily decides to join an armed force may negate the actus reus of the offence in question. So in other words, the objective element of the crime coupled with the intent of the accused and which in turn produces criminal liability for the accused is brought into question when a child voluntarily joins an armed group. What the Chamber has done in Lubanga to overcome this problem is to treat both offences as equal. In other words, the Chamber has held that the offences of ‘conscripting’ and ‘enlisting’ are committed at the moment a child under the age of 15 is enrolled or joins an armed force or group, with or without compulsion” (Para. 618 Lubanga Judgment).

What Ambos argues is that by doing so the Chamber has overlooked the autonomy of the potential victim which may in fact violate the protection of his/her personal autonomy and free will. What this leads to is that if a child agrees to voluntarily join an armed group, a definitional element of the actus reus is absent and the offence in question cannot be fulfilled because the prosecution cannot show or prove this element of the relevant offence in question. Such voluntary consent could further provide a valid defence to enlistment.

Related to the issue of voluntariness of consent is still the concern that culture also has a role to play and should have also been considered by the Chamber during the evaluation of evidence. In my opinion, and as I have addressed before in a previous post dealing with child soldiers in the Sierra Leonean context, the questions that need to be asked are: Was the offence a crime under customary international law of the DRC? Is it perceived as a crime in the DRC and has it been criminalized as such? Has this practice formed part of the culture of the country and if so could the accused’s guilt be mitigated?

As in the case of Sierra Leone, the protection of children under Congolese national law has been both scarce and ineffective. Despite the fact that the DRC ratified the Optional Protocol to the Convention of the Rights of the Child on the involvement of children in armed conflict in 2001 and set the voluntary age for recruitment at 18, the practice of child recruitment continues to date even though under its 2006 Constitution the DRC makes clear that any person under the age of 18 is a child. The Constitution lacks in that it does not specifically prohibit the recruitment and use of children. Furthermore, although DRC is a member to the Rome Statute, no implementing legislation has been enacted to bring its national laws in line with the Rome Statute. It was only in 2009 that a Child Protection Code was enacted prohibiting the recruitment and use of children, by armed forces, groups or the police. But still, no definition has been provided for the terms ‘recruitment’ and ‘use’ under the Code, making it difficult to understand just exactly these terms should mean within the Congolese context. For information and a better understanding of DRC national laws and ratification to international treaties dealing with the rights of the child read the OPAC Shadow Report of 2011.

Photo courtesy of Unicef

In other words how to prosecute those responsible for a crime if the crime is not perceived as a crime by the offender or victim? By perceived I mean that both persons should feel morally convicted that something illegal is taking place and should know this. Even if it can be shown that the offender knew this doesn’t imply a duty on his part to refrain from a practice which might not be perceived as harmful by him in the first place. As I mentioned in one of my older blog posts there is no universal qualification for the concept of a child and a distinction should always be drawn between the ‘child in law’ and ‘child in culture.’ And even though taking these factors into account will not change the crime in question as set out under the Rome Statute, what it can do is provide for mitigation during punishment and a better sentence for offenders who can prove that their cultural beliefs or practices were at odds with the international understanding of the crime in question.

Posted by Ingrid Roestenburg-Morgan

  

An Ivorian Solution to an Ivorian Problem

Laurent Gbagbo is another African in the dock at the International Criminal Court. The former President faces four counts of crimes against humanity, including murder and rape, in relation to the post election violence of 2010. Although, the International Court focused its investigations on the crimes ensuing from the post election violence, the Court recently extended its mandate to include crimes from as far back as 2002, which had originally spilt the country into two separate governments. A brief history on the conflict leading up to the Gbagbo’s trial at the International Criminal Court is as follows. Since 2002 the Northern part of the country has since been led by Allassane Quattara and the Southern part by Laurent Gbagbo. Elections eventually held in 2010 made the political climate in Cote‘d Ivoire even more volatile given the deep rifts already prevalent between the North and the South. So, it came as no surprise that the call for elections by the international community merely acted as a catalyst for the violence which ensued with Gbagbo refusing to step down from his presidential post.

The situation was even further complicated by the fact that the country’s electoral commission  declared Quattara as the rightful winner, while the body actually responsible for announcing the winner, the constitutional council held that Gbagbo had won the election. I would have expected at this stage that both parties be brought before the ICC, since supporters from both camps were involved in the violence which ensued? Gbagbo refusing to step down was then supposedly captured by French forces after a military assault on his residence. That version of capture was quickly changed to the version that Northern rebel forces had effected capture of the ex-President after which time he was transferred to the ICC.

How do French interests play a role in all of this? Well, Quattara for one has been projected as having the backing of most Western countries, with mainly France and the US backing his presidency. This has led many commentators to conclude that Quattara has been more affable to Western influence.  Quattara is also former deputy managing director of the U.S dominated international monetary fund and criticism has come to bear against him for being a puppet of the West and compromising Ivorian economic interests. Gbagbo on the other hand was known as being more interested in establishing ties beyond the West, mainly with Russia. What does Cote‘d Ivoire has to offer to these countries you might say? Well for one they are a leading exporter of cocoa, coffee and vast array of minerals. Furthermore, offshore oil deposits have been recently discovered making trade with the country even more desirable. Infact, Ivory Coast boasts an oil production of currently 60000 barrels a day and it estimated to reach 200000 barrels a day by 2020. So economically countries that share good trade relations with Ivory Coast and its President will certainly benefit. France, being the frontrunner.

The ‘Give and Take’ of Complementarity

The recent acquittal of Lord’s Resistance Army rebel, Thomas Kwoyelo by Uganda’s Constitutional Court has certainly sparked my interest in the case. Kwoyelo has been charged with 12 breaches of the Geneva Conventions, which has included willful killing, taking of hostages and extensive destruction of property. The Constitutional Court has ruled that the former rebel leader was entitled to receive amnesty under the Ugandan Amnesty Act of 2000. This Act has been a positive step since its promulgation. It is estimated that the Act has demobilized around 22,000 individual’s post proclamation. What happens are that LRA members renounce and abandon their involvement in the ongoing armed rebellion, if they are to receive amnesty. Kwoyelo invoked this right under the Act but did not receive a response to his application. The case was then subsequently referred to the Constitutional Court which eventually decided that the case should be halted on the grounds that Kwoyelo was treated unfairly under the Act.

This case has certainly challenged the applicability and legal framework within which Uganda’s amnesty laws operate; and on an international level, the ICC’s principle of complementarity. Once rebels who subscribe to the Act, are granted amnesty they will face a ritual called mato oput, which is a traditional Acholi justice system practiced in Uganda. The ritual of mato oput was given centre stage as being the most appropriate to solve the current tensions between the LRA and its victims during the peace negotiations in Juba. For those of you, who might not be aware of what the ritual involves, let me briefly shed some light on it. Mato oput is “a traditional reconciliation process for a killing. It aims to promote forgiveness, healing, restoration of broken relations and ultimately greater unity and harmony between the clans of the victim and perpetrator. Compensation is usually provided to the victim as a form of satisfaction. The ritual generally involves the drinking of a bitter root mixed with local beer, also known as kwete, or water, followed by a ritual slaughtering of a goat or sheep in an exchange of food.

Reactions to the Kwoyelo ruling, has sparked mixed responses within Uganda itself. The Public prosecutor has appealed the Constitutional Court’s decision to the Supreme Court on the basis that it is in conflict with Uganda’s national and international human rights obligations. It is now left to the Supreme Court to decide in the final instance, if the case should continue.  Acholi religious leaders have praised the ruling citing that Kwoyelo deserves amnesty because it will pave the way for other LRA members who are involved in the ongoing conflict to abandon their involvement in the rebellion and peacefully reintegrate back into their communities.