Prosecuting International Crimes in Africa - PULP - University of ...

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264 Chapter 12 In 2009, Sudan amended its Criminal Act of 1991 through the efforts of the Arab League, introducing international crimes into the Sudanese penal code. 103 Despite these developments there are still flaws in the Sudanese criminal justice system. The Armed Forces Act of 2007, while criminalising serious violations of international humanitarian law and human rights law, also provides for immunity to members of the armed forces which can only be waived by the President. The Sudanese Criminal Procedure Act (CPA) prohibits investigations and proceedings outside Sudan for any citizen that may have committed the crimes in the amended 2009 Criminal Act of 1991. The CPA also prohibits anyone in Sudan from assisting in the extradition of any Sudanese for the prosecution of war crimes, crimes against humanity and genocide. 104 In relation to the ICC investigations in Darfur, on 27 April 2007, the Pre-Trial Chamber I issued an arrest warrant for 51 counts of crimes against humanity and war crimes against Ahmad Mohammed Harun (Mohammed Harun) and Mohammed Ali Abd-Al-Rahman (Ali Kushayb) for the crimes committed by the Sudanese Armed Forces (SAF) and the Janjaweed militia. 105 Sudan refused to co-operate with the court and, instead, promoted Mohammed Harun to be the Minister of State for Humanitarian Affairs from Minister of State for the Interior of Government of Sudan. 106 On 14 July 2008, the OTP applied for an arrest warrant against President Omar Hassan Al Bashir for 10 charges of genocide, crimes against humanity and war crimes. 107 The OTP argues that Al Bashir used state apparatus to commit massive crimes in Darfur. On 4 March 2009, Pre-Trial Chamber I issued an arrest warrant for Al Bashir for five counts of crimes against humanity, including the crimes of extermination, rapes and killings, and two counts of war crimes, intentionally directing attacks against a civilian population as such or against individual civilians not taking part in hostilities and pillaging. The Court did not retain the genocide charges. The OTP appealed against this decision on 6 July 2009 and the Appeals Chamber, on 3 February 2010, decided that the Pre-Trial Chamber I applied an erroneous standard of proof and directed the Pre-Trial Chamber I to decide on the correct standard of proof whether a warrant of arrest should be issued against Al Bashir for genocide. 103 Para 15 OTP’s statement to the United Nations Security Council on the situation in Darfur, the Sudan, pursuant to UNSCR 1593 (2005) 4 December 2009, http:// www.icc-cpi.int/NR/rdonlyres/BA525867-5B58-4CDD-B6CF-8105181658D6/ 281343/UNSecurityCouncilStateFINAL1.pdf (accessed 21 September 2010). 104 ICTJ Sudan Briefing Note (n 102 above) 3. 105 The Prosecutor v Harun (‘Ahmad Harun’) and Abd-Al-Rahman (‘Ali Kushayb’) ICC-02/05- 01/07. 106 ICC ‘Situations and Cases: Darfur, Sudan’ http://www.icc-cpi.int/menus/icc/ situations%20and%20cases/situations/situation%20icc%200205/related%20cases/ icc%200205%200107/darfur_%20sudan?lan=en-GB (accessed 21 September 2010). 107 Prosecutor v Al Bashir, Case ICC-02/05-01/09.
Positive complementarity and the fights against impunity in Africa 265 On 12 July 2010, the Pre-Trial Chamber I held that ‘on the basis of the standard of proof as identified by the Appeals Chamber [...] there are reasonable grounds to believe that Al Bashir acted with dolus specialis/ specific intent to destroy in part the Fur, Masalit and Zaghawa ethnic groups’. 108 The Chamber subsequently issued a second arrest warrant against Al Bashir. 109 Sudan has consistently resisted the authority and jurisdiction of the ICC over its nationals and claims, amongst other things, that the UNSC Resolution 1593 is flawed 110 and that the indictment and issuance of arrest warrants against Sudanese officials are violations of the Vienna Convention on the Law of Treaties 111 and customary international law relating to the immunity of state officials in the case of Al Bashir. 112 However, scholars and activists are quick to point out that although Sudan is not a state party to the Rome treaty, by virtue of the fact that the situation was referred to the ICC by the Security Council acting under Chapter VII of the Charter of the United Nations, Sudan as a member of the UN is bound to co-operate with the ICC. 113 From the statements made by the OTP to the UN Security Council, it appears that Sudan initially co-operated with the ICC on the investigations both in Uganda and Sudan. 114 The OTP stated that ‘previous cooperation demonstrates that when willing, the Sudanese authorities are able to provide diverse forms of cooperation’. 115 This can be illustrated by the fact that the OTP and the Sudanese government signed an agreement on 2 108 Prosecutor v Al Bashi Second Decision on the Prosecution's Application for a Warrant of 109 110 Arrest 12 July 2010. As above.. International Crisis Group (ICG) ‘Sudan: Justice, peace and the ICC’ 17 July 2009, 111 Africa Report 152, 10. Art 34 Vienna Convention on the Law of Treaties, 1969, adopted on 23 May 1969 and 112 entered into force on 27 January 1980. P Gaeta ‘Does President Al Bashir enjoy immunity from arrest?’ (2009) 7 Journal of International Criminal Justice 315, 316; C Jalloh ‘The African Union and the International Criminal Court: The summer of our discontent(s)’ JURIST - Forum 6 August 2010, http://jurist.org/forum/2010/08/the-african-union-and-theinternational-criminal-court-the-summer-of-our-discontents.php (accessed 13 113 September 2010); R Cryer ‘Prosecuting the Leaders: Promises, Politics and Practicalities’ (2009) 1 Göttingen Journal of International Law 45, 64. S William and L Sherif ‘The arrest warrant for President Al Bashir: Immunities of incumbent heads of state and the International Criminal Court’ (2009) 14 Journal of Conflict and Security Law 71, 80; D Akande ‘The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities’ (2009) 7 Journal of International Criminal Justice 333, 342; D Akande ‘The Bashir indictment: Are serving heads of state immune from ICC prosecution?’ Oxford Transitional Justice Research Working Paper Series 30 July 2008; D Akande ‘The jurisdiction of the International Criminal Court over nationals of non-state parties: Legal basis and limits’ (2003)1 114 Journal of International Criminal Justice 618 – 650. ICC ‘Eleventh Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSC 1593 (2005)’ http://www.icc-cpi.int/NR/ rdonlyres/A250ECCD-D9E5-433B-90BB-76C068ED58A3/282160/ 115 11thUNSCReportENG1.pdf (accessed 4 September 2010) (OTP UNSC Report 11). Para 23 OTP UNSC Report 11.
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Prosecuting International Crimes in
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1 2 TABLE OF CONTENTS FOREWORD ix C
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6 7 8 6 Relevance of the jurisprude
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12 13 14 4 Conclusion 246 PART IV:
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FOREWORD I write this foreword with
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CONTRIBUTORS Benson Olugbuo is a So
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1 INTRODUCTION Chacha Murungu* & Ja
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Introduction 3 The commission of in
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Introduction 5 Apart from internati
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Introduction 7 resort. The conclusi
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PART I: GENERAL ISSUES IN THE PROSE
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12 Chapter 1 oblige states to prose
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14 Chapter 1 3 The obligation to pr
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16 Chapter 1 perpetrators of these
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18 Chapter 1 namely, national, ethn
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20 Chapter 1 the International Crim
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22 Chapter 1 amnesties for serious
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24 Chapter 1 payment of compensatio
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26 Chapter 1 punish international c
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28 Chapter 1 notorious violations o
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30 Chapter 1 in the case of the cou
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CHAPTER 2 1 Introduction IMMUNITY O
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Immunity of state officials and pro
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PART II: INTERNATIONAL COURTS AND P
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64 Chapter 3 evidentiary areas of i
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66 Chapter 3 pioneering effort in a
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68 Chapter 3 particular group, the
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70 Chapter 3 Indisputably, the abse
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72 Chapter 3 The Akayesu judgment,
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74 Chapter 3 particularly in light
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76 Chapter 3 for the destruction of
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78 Chapter 3 being of persons, in p
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80 Chapter 3 conflict - the ‘war
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82 Chapter 3 Chamber had itself fou
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84 Chapter 3 found in the first pla
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86 Chapter 3 of the Statute than
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88 Chapter 3 The majority’s appro
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90 Chapter 3 duties as a superior e
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92 Chapter 3 present at the trial,
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94 Chapter 3 international crimes.
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96 Chapter 3 advanced nor argued an
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98 Chapter 4 Unlike the Internation
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100 Chapter 4 years imprisonment wh
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102 Chapter 4 The Prosecutor’s de
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104 Chapter 4 2.3 SCSL and the Trut
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106 Chapter 4 who bear the greatest
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108 Chapter 4 responsibility for in
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110 Chapter 4 population’. 76 The
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112 Chapter 4 2.5.1 Acts of terrori
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114 Chapter 4 and Additional Protoc
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116 Chapter 4 Essentially, there mu
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118 Chapter 4 conscription of child
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120 Chapter 5 The United Nations Se
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122 Chapter 5 There are two main th
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124 Chapter 5 goal of rehabilitatio
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126 Chapter 5 that punitur quia pec
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128 Chapter 5 circumstances of the
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130 Chapter 5 retribution, deterren
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132 Chapter 5 Another argument in t
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134 Chapter 5 children. 111 Those o
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136 Chapter 5 assessed’. 119 In m
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138 Chapter 5 that there were no mi
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140 Chapter 5 Santigie Borbor Kanu
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142 Chapter 5 Chamber found no reas
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144 Chapter 5 has adopted a tone th
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146 Chapter 6 However, with the adv
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148 Chapter 6 2. 1 Africa-ICC relat
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150 Chapter 6 national elections, c
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152 Chapter 6 resolution may be ill
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154 Chapter 6 He has added that his
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156 Chapter 6 out of a desire to av
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158 Chapter 6 (b) US legislation to
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160 Chapter 6 encourage countries o
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CHAPTER 7 1 Introduction THE TRIAL
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The trial of Mengistu and other Der
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CHAPTER 8 1 Introduction THE TRIAL
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The trial of Hissène Habré in Sen
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CHAPTER 9 1 Introduction PROSECUTIN
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2 Genesis of the conflict Prosecuti
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Prosecuting international crimes by
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Page 225 and 226: Prosecuting international crimes by
Page 233 and 234: CHAPTER 10 1 Introduction GENOCIDE
Page 235 and 236: Genocide as prosecuted by the ICTR
Page 243: 8 Reparations Genocide as prosecute
Page 246 and 247: 234 Chapter 11 losses in excess of
Page 248 and 249: 236 Chapter 11 piracy’. 14 In add
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Page 252 and 253: 240 Chapter 11 and it is easy to av
Page 254 and 255: 242 Chapter 11 phone. They took ove
Page 256 and 257: 244 Chapter 11 3.3 Capacity problem
Page 258 and 259: 246 Chapter 11 support us. They did
Page 261 and 262: CHAPTER 12 Benson 1 Introduction PO
Page 263 and 264: Positive complementarity and the fi
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Page 290 and 291: 278 Chapter 13 international crimin
Page 292 and 293: 280 Chapter 13 Africa’s involveme
Page 294 and 295: 282 Chapter 13 countries has tended
Page 296 and 297: 284 Chapter 13 passed domesticating
Page 298 and 299: 286 Chapter 13 crimes within their
Page 300 and 301: 288 Chapter 13 offences. Procedural
Page 302 and 303: 290 Chapter 13 Constitution, 62 thi
Page 304 and 305: 292 Chapter 13 4.1.3 The law regula
Page 306 and 307: 294 Chapter 13 either reciprocal or
Page 308 and 309: 296 Chapter 13 committed to fightin
Page 310 and 311: 298 Chapter 13 The procedure for th
Page 312 and 313: 300 Chapter 13 trial. While the Rom
Page 314 and 315: 302 Chapter 13 Having draft legisla
Page 317 and 318: CHAPTER 14 Lee 1 Introduction IMPLE
Page 319 and 320: Implementation of the Rome Statute
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Implementation of the Rome Statute
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Books SELECTED BIBLIOGRAPHY Allen,
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Selected bibliography 333 Neier A (
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Selected bibliography 335 Chitiyo,
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Selected bibliography 337 Jalloh, C
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Selected bibliography 339 Roht-Arri
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Selected bibliography 341 Report on
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Table of cases 343 Right of Passage
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Table of cases 345 Prosecutor v Vas
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Table of cases 347 Muhimana v Prose
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Table of cases 349 Prosecutor v Rut
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Table of cases 351 and the Governme
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Table of cases 353 Prosecutor v Ses
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Table of cases 355 GAOR, 45th Sess.
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Table of cases 357 R v Bow Street M
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360 Subject index Domestication ...
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362 Subject index S Selective justi
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