Acta Juridica - latest Issue
Volume 2016, Issue 1, 2016
Author Richard GoldstoneSource: Acta Juridica 2016, pp ix –xiv (2016)More Less
This special edition of Acta Juridica contains presentations by contributors who participated in a workshop held at the University of CapeTown Law Faculty. The workshop was devoted to the role of civil society in the development of international criminal justice in Africa.
Source: Acta Juridica 2016, pp xv –xxi (2016)More Less
Recent decades have witnessed an increased role for civil society in international law making and the development of international institutions. The design, legal framework and establishment of the International Criminal Court (ICC) is a key example of this trend. Yet, once international institutions are established, there are generally few opportunities and mechanisms for civil society to participate directly within the formal proceedings of such institutions, with participation largely limited to States. In the case of international criminal tribunals, the focus is on the criminal trial, and the prosecution, defence, and in some institutions, victims are the main participants in the process. International criminal law is a relatively new area of international law, and there are key issues at stake. Increasingly, civil society actors are actively involved in promoting various interpretations of international criminal law and its processes in light of their own advocacy goals. However, the desire to increase the representivity and range of actors participating in international criminal processes must be balanced against concerns regarding the appropriateness and transparency of such interventions in a formal criminal process, which must also ensure the fair trial rights of the defence.
Author John DugardSource: Acta Juridica 2016, pp 3 –16 (2016)More Less
I was an international criminal lawyer and supporter of an international criminal court before this became fashionable. In the 1980s I used to meet with a group of other idealists at the Institute of International Criminal Law in Siracusa, Italy, under the guidance of the father of modern international criminal law, Cherif Bassiouni, and dream aloud about the creation of an international criminal court which would bring international justice to the world. Little did we realise then that within 15 years this dream would become a reality. Still less did we think that within 25 five years this dream would become a nightmare. My paper is about this history of international criminal law; about hopes realised and hopes destroyed.
Prosecutorial discretion and victims’ rights at the International Criminal Court : demarcating the battle linesAuthor Carla FerstmanSource: Acta Juridica 2016, pp 17 –39 (2016)More Less
Many victims were killed, and in fact one of us had to carry the head of her dead husband from Nakuru so that she could bury it. Her husband was killed during PEV. Do you know how traumatising that is? Another lady’s husband was killed in their house. These women are suffering and their only hope was the ICC. You are now informing us that the case has been terminated, do you want us to kill ourselves also? (Halafu unatuáfembia case imeisha, unataka hata sisi tujiue?)
. . .
Will the Court at least allow us to give our opinions in regards to this termination? There is so much we have to tell the Court and we feel they should listen to our grievances.
Source: Acta Juridica 2016, pp 40 –65 (2016)More Less
The role of civil society in drafting and the adoption of the Rome Statute for the International Criminal Court (ICC) is well known, as is the contribution of civil society to advocating for States to ratify the Statute and implement its provisions. However, despite the importance of these efforts, such opportunities do not constitute direct participation in the formal proceedings of the ICC. Other than the role of civil society actors as a witness, be it as an expert or a factual witness, the primary option for direct participation of civil society in ICC proceedings is to participate as an amicus curiae. This article addresses the practice in relation to the amicus curiae in proceedings before the ICC, particularly the reliance by civil society actors on this mechanism. It sets out the legal framework for the amicus curiae in the ICC, and examines the process and criteria applied by ICC Chambers when considering applications to appear as an amicus curiae, as well as the range of topics on which amici have sought to make submissions. The article then analyses the types of civil society actors that have sought to appear as an amicus curiae, highlighting the mixed experiences of African civil society with this mechanism. It concludes that the ICC has so far been cautious in its approach to the amicus curiae. Yet, in certain circumstances, acting as an amicus curiae can provide civil society actors with an avenue for presenting perspectives concerning novel areas falling within their expertise.
Author Elise KepplerSource: Acta Juridica 2016, pp 66 –94 (2016)More Less
Since 2009, international criminal justice has faced unprecedented challenges in Africa. With the first arrest warrant issued by the International Criminal Court (ICC) for Sudanese President Omar al-Bashir for grave crimes committed in Darfur, a vocal minority of African leaders worked intensively to undermine the Court and weaken its legitimacy.With the election in 2013 of then ICC suspect Uhuru Kenyatta as President of Kenya, and then ICC suspect William Ruto as Vice-President of Kenya, attacks on the ICC from some African leaders, mobilised by Kenyan officials, leapt to new heights.
In response to the backlash against the ICC, a number of African civil society organisations and international organisations with a presence in Africa have worked together to combat attacks on the court and to promote support for justice for grave crimes. These efforts by civil society organisations represent a crucial form of engagement on international criminal justice outside the court room.
This paper offers a practitioner’s perspective on group activism to combat the backlash against the ICC in Africa, with reflections on its contributions and areas for further collaboration. While the effects of these efforts are difficult to assess quantitatively, there are indications that they have helped to offer a counterweight to the backlash by setting out a marker on important issues of principle, such as the irrelevance of official position in holding perpetrators of grave crimes to account; stigmatising Al-Bashir as a suspected war criminal; promoting a more nuanced picture of Africa’s relationship with the ICC; and bolstering efforts by African governments and officials who remain more quietly supportive of the ICC.
Back to the future? : civil society, the ‘turn to complementarity’ in Africa and some critical concernsAuthor Christopher GeversSource: Acta Juridica 2016, pp 95 –126 (2016)More Less
This paper critically considers the recent ‘turn to complementarity’ in international criminal law: denoting an apparent shift towards the prosecution of international crimes at a domestic level. After placing this ‘turn’ within ongoing debates about the role of domestic trials in the history of international criminal law, the paper proceeds to consider four inter related reasons why the turn should be welcomed by supporters of the international criminal justice project. These are: (i) it reflects the ‘better’ interpretation of the Rome Statute; (ii) it might save the International Criminal Court (ICC) from itself, or at least international criminal law from the ICC; (iii) domestic trials arguably enjoy certain advantages over international trials generally; and (iv) it presents an opportunity to operationalise the nascent African regional framework for the domestic prosecution of international crimes. On this basis, the paper discusses how civil society organisations can support the domestic prosecution of international crimes under this regional framework (including by clarifying the operation of universal jurisdiction and the position of African states on immunity). The final part of the paper raises two critical concerns regarding the turn to complementarity, and the role of civil society organisations therein, namely: (i) that it risks lapsing or relapsing into colonial practices of ‘othering’ by focusing solely on ‘African complementarity’ or lapsing idiomatically into the language of ‘savages’; or (ii) it risks repeating the colonial double standard – based on an idealised Europe – in respect of the application of international criminal law generally, or complementarity in particular.
Partners in complementarity : the role of civil society in the investigation and prosecution of international crimes in South AfricaAuthor Hannah WoolaverSource: Acta Juridica 2016, pp 129 –157 (2016)More Less
This paper assesses the role of civil society actors in the pursuit of international criminal justice in South Africa. The paper sets out the range of interventions that have been undertaken by civil society groups on issues of international criminal law in South Africa, and analyses the impact that such interventions have had on the action taken by South African authorities to investigate and prosecute international crimes. Three main types of interventions have been undertaken by South African civil society: campaigns to domesticate international crimes treaties, initiation of domestic litigation, and the submission of amicus curiae briefs. It is demonstrated that through these interventions, civil society has had a significant impact on the domestic legal framework governing the investigation and prosecution of international crimes in South Africa, and has prompted concrete action by State authorities to initiate international criminal proceedings. As such, civil society has played a key role in seeking to ensure that South Africa complies with its domestic and international legal obligations to investigate and prosecute international crimes, including those under the Rome Statute of the International Criminal Court.
Source: Acta Juridica 2016, pp 158 –176 (2016)More Less
Complementarity is posited as a driving feature of the International Criminal Court (ICC) regime. Recent developments in Africa suggest a broader understanding of complementarity that is unfolding in practice and which is worthy of further exploration. The notion of ‘positive complementarity’ – i.e. that the Rome Statute (and the ICC) should encourage genuine national proceedings where possible, including in situation countries – is being expanded to encourage prosecutions, under the principle of universal jurisdiction, in situations where the ICC would not ordinarily have jurisdiction. In such circumstances, States can not just supplement, but augment the work of the ICC – acting where the ICC is unable to do so for lack of jurisdiction. In this article the authors consider this expanded ‘positive complementarity’ through the lens of a particular case regarding allegations of torture committed in Zimbabwe, by Zimbabweans, against Zimbabwean victims, but which case has been initiated and litigated in South Africa: the ‘Torture Docket’ case. The article ends with five recommendations for civil society, arising from the ‘Torture Docket’ case and the notion of ‘positive complementarity’, which concern: (1) the role for civil society in the initiation of investigations, (2) the advantages of a dedicated domestic legal framework, (3) the challenge of managing expectations, (4) the challenge of complexity, and (5) the need for civil society intervention in ‘positive complementarity’ cases.
Author Mark ShawSource: Acta Juridica 2016, pp 179 –201 (2016)More Less
The nature of Zimbabwe’s long political transition since independence has caused untold damage to the country’s judiciary and court system. A strong and independent judiciary will be essential if the country is to successfully navigate the complex and competing politics that are likely to characterise post-Mugabe Zimbabwe and if there is to be any hope of, in the longer term, dealing with issues of transitional justice. While the politicisation of the judiciary is a well-recognised reality, in the context of a fiscal crisis, institutionalised corruption has become an increasing challenge. Nevertheless, the political ground is shifting, both as a result of the 2013 election and as actors begin to consider options for the post-Mugabe era. In this environment, it should not be assumed that staff in the judicial sector hold a uniform set of views. The current context requires that positions are carefully calibrated depending on audience and circumstance, but there are signs that some in the judiciary are acutely aware of the need to show more independence and fight corruption to gain a broader base of legitimacy. In that shifting political reality, the role of a small number of civil society activists working in the justice sector has become more crucial than ever.With little opportunity for raising issues of transitional justice in the current context, civil society must consider the nature of its engagement with the government to position it to play a constructive role in future State-building opportunities. Calibrating the nature and type of that engagement will depend on several possible political scenarios that are considered in this article.
An essential intervention : civil society responses to redressing and preventing violence against women in post-apartheid South AfricaAuthor Andrea DurbachSource: Acta Juridica 2016, pp 202 –224 (2016)More Less
Despite pervasive accounts of sexual violence against women throughout South Africa’s apartheid history, the definition of ‘gross violations of human rights’ in the legislation establishing the South African Truth and Reconciliation Commission (TRC) had no distinct reference to acts of sexual violence or gender-based crimes. Lobbying by women’s NGOs and civil society resulted in the TRC convening special women’s hearings and the expansion of the definition of ‘severe ill-treatment’ to encompass a range of abuses, including sexual violence. However, the TRC’s predominant focus on crimes of killing, abduction and torture resulted in the criticism that it exhibited ‘a blindness to the types of abuse predominantly experienced by women’, excluding the possibility of accountability or reparations for these violations. This article explores the ‘essential relationship’ between civil society and the TRC at various stages of South Africa’s transition in holding the Government to account for restoring the ‘human and civil dignity’ of women who suffered gross violations of human rights, ‘many of which were gender specific in their exploitative and humiliating nature’. Given that ‘violence against women has been one of the most prominent features of post-apartheid South Africa’, the article further considers the innovation by South African civil society in developing various responses to this enduring harm, which extends beyond a compensatory model of reparations towards a transformation of the conditions that perpetuate the violence.
Source: Acta Juridica 2016, pp 225 –243 (2016)More Less
Drawing on practitioner perspectives on 20 years of transitional advocacy efforts in Africa, this article examines the different roles that local civil society has played in shaping national transitional justice processes on the Continent. The article discusses how local organisations adopt, adapt and resist international criminal justice concepts and institutions in their pursuit of accountability, redress and social transformation in their countries. After first examining why civil society organisations are critical in a transitional justice context, the article discusses the range of contributions made by civil society using typologies that seek to make sense of different dimensions of their work. The article then discusses the substantive versus process goals of African organisations, as well as the various stages of civil society engagement across a transitional justice process. It concludes with a reflection on some of the main challenges facing organisations working on transitional justice in the region, particularly in developing and maintaining a locally relevant vision for transitional justice in each country.
Source: Acta Juridica 2016, pp 247 –271 (2016)More Less
The basic claim of this contribution is simple: the manner in which the International Criminal Court (ICC) would possibly implement judicial reparations in Northern Uganda has the potential to provoke conflict within beneficiaries’ communities as well as between those communities that receive reparations and those that do not. While it is positive that the ICC, unlike its predecessors, considers victims in their capacity as victims and provides for reparations, the reparation principles, which the Appeals Chamber adopted in the recent Judgment on the appeals against the ‘Decision establishing the principles and procedures to be applied to reparations’ (hereinafter Lubanga, Appeals Judgment on reparations and Lubanga, Decision on reparations respectively), would need to be modified for other contexts. Until such time, the Court could consider not implementing judicial reparations in Northern Uganda.
A call to action : national bar associations as key civil society actors for the promotion of international criminal justice in AfricaAuthor Tosin OsasonaSource: Acta Juridica 2016, pp 272 –286 (2016)More Less
This reflection from the field argues that African bar associations have the potential to play a significant part in the fight against impunity in African countries, given their legal expertise and high standing in society, and calls on them to use these assets for this purpose. After providing a brief overview of the history of civil society efforts to promote human rights and the rule of law on the African Continent, the author considers the strength of bar associations and law societies in strengthening the rule of law promoting accountability on the Continent. The author assesses the prospect of using bar associations and law societies to popularise and promote international criminal justice in Africa.
Author Angela MudukutiSource: Acta Juridica 2016, pp 287 –296 (2016)More Less
This piece highlights the importance of civil society initiatives to fight impunity on the domestic level in African countries, drawing on my experiences working on international criminal justice issues at the Southern Africa Litigation Centre. International crimes cannot be the business of the International Criminal Court alone and in order for complementarity to be realised, domestic jurisdictions must pull their weight. Here I will focus on one crucial civil society accountability initiative, the ground-breaking universal jurisdiction case that set an important precedent in South Africa, and globally: Southern Africa Litigation Centre and Another v The National Director of Public Prosecutions and Others. I will set out the key aspects of the case that enabled SALC to require the South African authorities to investigate allegations of international crimes, and show how the case has Continental and global significance by breathing new life into the principle of universal jurisdiction.