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

More documents

Recommendations

Info

266 Chapter 12 October 2005 on the arrest of the leaders of the Lord’s Resistance Army (LRA) who were objects of ICC arrest warrants. In November 2005 representatives of the ICC visited Khartoum to discuss matters relating to both the LRA and the situation in Darfur. 116 The co-operation between the ICC and Sudan resulted in mutual exchanges in relation to judicial records and other documents relating to article 53 of the Rome Statute. Reports of the Sudanese National Commission of Inquiry and Ministry of Defence were also discussed. Sudanese officials were interviewed in Khartoum under article 55 of the Rome Statute as potential witnesses, and five missions were undertaken to Khartoum, the last sometime between January and February 2007. 117 However, the government severed an official communication and cooperation with the OTP in April 2007 and embarked on a spirited campaign to discredit the ICC with the backing of the Arab League 118 and the African Union (AU). 119 In July 2008, some African and Arab members of the UNSC supported by China and Russia proposed a deferral of ICC investigations under article 16 of the Rome Statute. This was done in a draft resolution to renew the mandate of the AU-UN Hybrid Operation in Darfur (UNAMID) on the grounds that the ICC arrest warrant was a threat to peace in Sudan. 120 The proposal was dropped from the resolution adopted to extend UNAMID because of a lack of support and consensus amongst members of the Security Council. 121 It appears that the problem of prosecuting those responsible for crimes in Sudan is a lack of political will and not necessarily the inability of the Sudanese government to hold its nationals accountable. According to the OTP, 122 The ability of the Sudanese judicial system to carry out proceedings has been demonstrated inter alia by the decision, announced on 6 May by […] Justice Minister Abdel-Basit Sabdarat, to prosecute those responsible for investment fraud up to $175 million in North Darfur. Minister Sabdarat announced that 58 suspects had been taken into custody and would face criminal charges, including two ex-police officers. The case shows that [Sudanese] authorities can prosecute serious crimes where there is willingness to do so. The 116 As above. 117 Para 25 OTP UNSC Report 11. 118 BBC ‘Arab leaders back “wanted” Bashir’ 30 March 2009, http://news.bbc.co.uk/2/ hi/7971624.stm (accessed 13 September 2010). 119 BBC ‘African Union in rift with court’ 3 July 2009,http://news.bbc.co.uk/2/hi/ 8133925.stm (accessed 13 September 2010). 120 ICTJ Sudan Briefing Note (n 102 above) 5; UNSC ‘Report of the UNSC 5947 th Meeting on July 31 2008’ SC/9412, http://www.un.org/News/Press/docs/2008/ sc9412.doc.htm (accessed 13 November 2010). 121 UNSC Resolution 1828 (2008), S/RES/1828 (2008) adopted by the Security Council at its 5947th meeting on 31 July 2008. 122 Para 52 OTP’s UNSC Report 11.
Positive complementarity and the fights against impunity in Africa 267 Prosecution hopes to see similar action for war crimes, crimes against humanity and genocide. The issue that needs to be addressed is how positive complementarity may be used to ensure that Sudan is willing and able to hold its nationals accountable. A close study of Resolution 1593 shows that the Security Council had also envisaged positive complementarity in the prosecution of those responsible for international crimes in Sudan. For example, it ‘encourages the Court, as appropriate and in accordance with the Rome Statute, to support international co-operation with domestic efforts to promote the rule of law, protect human rights and combat impunity in Darfur’. 123 Furthermore, the resolution calls on the court and the AU to ‘discuss practical arrangements that will facilitate the work of the Prosecutor and of the Court, including the possibility of conducting proceedings in the region, which would contribute to regional efforts in the fight against impunity’. 124 The OTP is therefore under an obligation to ensure that any process aimed at the prosecution of crimes in Sudan is successful to the extent possible and should work in collaboration with the African Union (AU) to ensure that there is no impunity in Sudan. Under positive complementarity the ICC should continue to encourage genuine investigations and prosecutions of crimes in Sudan and also monitor the activities of the AU in Sudan to ensure that there is compliance with Resolution 1593. Regarding other efforts to end the Darfur conflict, the Peace and Security Council (PSC) of the AU on 21 July 2008 called for the formation of a body, the AU High-Level Panel on Darfur (AUPD). 125 This decision was endorsed by the 12 th Ordinary Session of the Assembly of Heads of State and Governments of the AU in February 2009. The AUPD 126 convened its inaugural meeting in Addis Ababa in March 2009, followed by several other consultations, and submitted its report on 29 October 2009 to the 207 th PSC meeting at the level of Heads of State and Government in Abuja, Nigeria. 127 The AU accepted the report, endorsed it as its official policy and 123 UNSC Res 1593, 31 March 2005, S/RES/1593 (2005) http://daccess-dds-ny.un.org/ doc/UNDOC/GEN/N05/292/73/PDF/N0529273.pdf?OpenElement (accessed 4 September 2010). 124 Para 9 UNSC Res 1593. 125 AU ‘Introductory Note by the Chairperson of the Commission’ during the Peace and Security Council 207 th Meeting at the Level of Heads of State and Government, 29 October 2009, Abuja, Nigeria. 126 Members of the AUPD included Thabo Mvuyelwa Mbeki, Gen Abdulsalami Abubakar (Rtd), Pierre Buyoya, Ahmed Maher El Sayed, Judge Florence Ndepele Mwachande Mumba, Kabir Abdulfatah Mohammed and Rakiya Omaar. 127 AU ‘Report of the African Union High-Level Panel on Darfur’ PSC/AHG/2(CCVII) 29 October 2009, http://www.sudantribune.com/spip.php?article32905 (accessed 21 September 2010) (AU Darfur Report).
Page 1 and 2:
Prosecuting International Crimes in
Page 3 and 4:
1 2 TABLE OF CONTENTS FOREWORD ix C
Page 5 and 6:
6 7 8 6 Relevance of the jurisprude
Page 7 and 8:
12 13 14 4 Conclusion 246 PART IV:
Page 9 and 10:
FOREWORD I write this foreword with
Page 11 and 12:
CONTRIBUTORS Benson Olugbuo is a So
Page 13 and 14:
1 INTRODUCTION Chacha Murungu* & Ja
Page 15 and 16:
Introduction 3 The commission of in
Page 17 and 18:
Introduction 5 Apart from internati
Page 19 and 20:
Introduction 7 resort. The conclusi
Page 21:
PART I: GENERAL ISSUES IN THE PROSE
Page 24 and 25:
12 Chapter 1 oblige states to prose
Page 26 and 27:
14 Chapter 1 3 The obligation to pr
Page 28 and 29:
16 Chapter 1 perpetrators of these
Page 30 and 31:
18 Chapter 1 namely, national, ethn
Page 32 and 33:
20 Chapter 1 the International Crim
Page 34 and 35:
22 Chapter 1 amnesties for serious
Page 36 and 37:
24 Chapter 1 payment of compensatio
Page 38 and 39:
26 Chapter 1 punish international c
Page 40 and 41:
28 Chapter 1 notorious violations o
Page 42 and 43:
30 Chapter 1 in the case of the cou
Page 45 and 46:
CHAPTER 2 1 Introduction IMMUNITY O
Page 47 and 48:
Immunity of state officials and pro
Page 49 and 50:
Page 51 and 52:
Page 53 and 54:
Page 55 and 56:
Page 57 and 58:
Page 59 and 60:
Page 61 and 62:
Page 63 and 64:
Page 65 and 66:
Page 67 and 68:
Page 69 and 70:
Page 71 and 72:
Page 73:
PART II: INTERNATIONAL COURTS AND P
Page 76 and 77:
64 Chapter 3 evidentiary areas of i
Page 78 and 79:
66 Chapter 3 pioneering effort in a
Page 80 and 81:
68 Chapter 3 particular group, the
Page 82 and 83:
70 Chapter 3 Indisputably, the abse
Page 84 and 85:
72 Chapter 3 The Akayesu judgment,
Page 86 and 87:
74 Chapter 3 particularly in light
Page 88 and 89:
76 Chapter 3 for the destruction of
Page 90 and 91:
78 Chapter 3 being of persons, in p
Page 92 and 93:
80 Chapter 3 conflict - the ‘war
Page 94 and 95:
82 Chapter 3 Chamber had itself fou
Page 96 and 97:
84 Chapter 3 found in the first pla
Page 98 and 99:
86 Chapter 3 of the Statute than
Page 100 and 101:
88 Chapter 3 The majority’s appro
Page 102 and 103:
90 Chapter 3 duties as a superior e
Page 104 and 105:
92 Chapter 3 present at the trial,
Page 106 and 107:
94 Chapter 3 international crimes.
Page 108 and 109:
96 Chapter 3 advanced nor argued an
Page 110 and 111:
98 Chapter 4 Unlike the Internation
Page 112 and 113:
100 Chapter 4 years imprisonment wh
Page 114 and 115:
102 Chapter 4 The Prosecutor’s de
Page 116 and 117:
104 Chapter 4 2.3 SCSL and the Trut
Page 118 and 119:
106 Chapter 4 who bear the greatest
Page 120 and 121:
108 Chapter 4 responsibility for in
Page 122 and 123:
110 Chapter 4 population’. 76 The
Page 124 and 125:
112 Chapter 4 2.5.1 Acts of terrori
Page 126 and 127:
114 Chapter 4 and Additional Protoc
Page 128 and 129:
116 Chapter 4 Essentially, there mu
Page 130 and 131:
118 Chapter 4 conscription of child
Page 132 and 133:
120 Chapter 5 The United Nations Se
Page 134 and 135:
122 Chapter 5 There are two main th
Page 136 and 137:
124 Chapter 5 goal of rehabilitatio
Page 138 and 139:
126 Chapter 5 that punitur quia pec
Page 140 and 141:
128 Chapter 5 circumstances of the
Page 142 and 143:
130 Chapter 5 retribution, deterren
Page 144 and 145:
132 Chapter 5 Another argument in t
Page 146 and 147:
134 Chapter 5 children. 111 Those o
Page 148 and 149:
136 Chapter 5 assessed’. 119 In m
Page 150 and 151:
138 Chapter 5 that there were no mi
Page 152 and 153:
140 Chapter 5 Santigie Borbor Kanu
Page 154 and 155:
142 Chapter 5 Chamber found no reas
Page 156 and 157:
144 Chapter 5 has adopted a tone th
Page 158 and 159:
146 Chapter 6 However, with the adv
Page 160 and 161:
148 Chapter 6 2. 1 Africa-ICC relat
Page 162 and 163:
150 Chapter 6 national elections, c
Page 164 and 165:
152 Chapter 6 resolution may be ill
Page 166 and 167:
154 Chapter 6 He has added that his
Page 168 and 169:
156 Chapter 6 out of a desire to av
Page 170 and 171:
158 Chapter 6 (b) US legislation to
Page 172 and 173:
160 Chapter 6 encourage countries o
Page 175 and 176:
CHAPTER 7 1 Introduction THE TRIAL
Page 177 and 178:
The trial of Mengistu and other Der
Page 179 and 180:
Page 181 and 182:
Page 183 and 184:
Page 185 and 186:
Page 187 and 188:
Page 189 and 190:
Page 191 and 192:
Page 193 and 194:
Page 195 and 196:
Page 197 and 198:
CHAPTER 8 1 Introduction THE TRIAL
Page 199 and 200:
The trial of Hissène Habré in Sen
Page 201 and 202:
Page 203 and 204:
Page 205 and 206:
Page 207 and 208:
Page 209 and 210:
CHAPTER 9 1 Introduction PROSECUTIN
Page 211 and 212:
2 Genesis of the conflict Prosecuti
Page 213 and 214:
Prosecuting international crimes by
Page 215 and 216:
Page 217 and 218:
Page 219 and 220:
Page 221 and 222:
Page 223 and 224:
Page 225 and 226:
Page 227 and 228: 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
Page 250 and 251: 238 Chapter 11 aircraft in accordan
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
Page 277: Positive complementarity and the fi
Page 287: Positive complementarity and the fi
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
Page 329 and 330:
Implementation of the Rome Statute
Page 331 and 332:
Page 333 and 334:
Page 335 and 336:
Page 337 and 338:
Page 339 and 340:
Page 341 and 342:
Page 343 and 344:
Books SELECTED BIBLIOGRAPHY Allen,
Page 345 and 346:
Selected bibliography 333 Neier A (
Page 347 and 348:
Selected bibliography 335 Chitiyo,
Page 349 and 350:
Selected bibliography 337 Jalloh, C
Page 351 and 352:
Selected bibliography 339 Roht-Arri
Page 353 and 354:
Selected bibliography 341 Report on
Page 355 and 356:
Table of cases 343 Right of Passage
Page 357 and 358:
Table of cases 345 Prosecutor v Vas
Page 359 and 360:
Table of cases 347 Muhimana v Prose
Page 361 and 362:
Table of cases 349 Prosecutor v Rut
Page 363 and 364:
Table of cases 351 and the Governme
Page 365 and 366:
Table of cases 353 Prosecutor v Ses
Page 367 and 368:
Table of cases 355 GAOR, 45th Sess.
Page 369:
Table of cases 357 R v Bow Street M
Page 372 and 373:
360 Subject index Domestication ...
Page 374:
362 Subject index S Selective justi
show all

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

Create successful ePaper yourself

Delete template?

Save as template?