Civil Society, ‘Positive Complementarity’ and the ‘Torture Docket’ Case

by | Sep 23, 2019 | ACTA, ACTA 2016

Civil Society, ‘Positive Complementarity’ and the ‘Torture Docket’ Case

Authors Max du Plessis, Christopher Gevers

ISSN: 1996-2088
Affiliations: Associate Professor, School of Law, University of KwaZulu-Natal; Lecturer, School of Law, University of KwaZulu-Natal
Source: Acta Juridica, 2016, p. 158 – 176

Abstract

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’ — ie 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.

Partners in Complementarity: The Role of Civil Society in the Investigation and Prosecution of International Crimes in South Africa

by | Sep 23, 2019 | ACTA, ACTA 2016

Partners in Complementarity: The Role of Civil Society in the Investigation and Prosecution of International Crimes in South Africa

Authors Hannah Woolaver

ISSN: 1996-2088
Affiliations: Senior Lecturer in Public International Law, University of Cape Town
Source: Acta Juridica, 2016, p. 129 – 157

Abstract

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.

Back to the Future?: Civil Society, the ‘Turn to Complementarity’ in Africa and Some Critical Concerns

by | Sep 23, 2019 | ACTA, ACTA 2016

Back to the Future?: Civil Society, the ‘Turn to Complementarity’ in Africa and Some Critical Concerns

Authors Christopher Gevers

ISSN: 1996-2088
Affiliations: Lecturer, School of Law, University of KwaZulu-Natal
Source: Acta Juridica, 2016, p. 95 – 126

Abstract

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.

Challenges for International Criminal Justice in Africa and the Role of Civil Society

by | Sep 23, 2019 | ACTA, ACTA 2016

Challenges for International Criminal Justice in Africa and the Role of Civil Society

Authors Elise Keppler

ISSN: 1996-2088
Affiliations: Associate Director, International Justice Programme, Human Rights Watch
Source: Acta Juridica, 2016, p. 66 – 94

Abstract

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.

Civil Society and Amicus Curiae Interventions in the International Criminal Court

by | Sep 23, 2019 | ACTA, ACTA 2016

Civil Society and Amicus Curiae Interventions in the International Criminal Court

Authors Sarah Williams, Emma Palmer

ISSN: 1996-2088
Affiliations: Associate Professor, Faculty of Law, UNSW Australia, Associate, Australian Human Rights Centre; Faculty of Law, UNSWAustralia
Source: Acta Juridica, 2016, p. 40 – 65

Abstract

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.

Prosecutorial Discretion and Victims’ Rights at the International Criminal Court: Demarcating the Battle Lines

by | Sep 23, 2019 | ACTA, ACTA 2016

Prosecutorial Discretion and Victims’ Rights at the International Criminal Court: Demarcating the Battle Lines

Authors Carla Ferstman

ISSN: 1996-2088
Affiliations: Director of REDRESS
Source: Acta Juridica, 2016, p. 17 – 39

Abstract

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.[fn1] footnote 1: Situation in the Republic of Kenya, ICC-01/09, Victims’ request for review of Prosecution’s decision to cease active investigation, 3 August 2015, Annex 1: Victims’ Views and Concerns, which is described as an illustrative set of views and concerns expressed by 93 Victims communicated in person to the Legal Representative for Victims during meetings with 702 Victims held in Kenya during the period 25 May to 17 June 2015.