Private Prosecution of Crimes under International Law as a means to Combat Impunity in some African Countries: The Likely Challenges

by | Oct 1, 2019 | AYIH, AYIH 2017

Private Prosecution of Crimes under International Law as a means to Combat Impunity in some African Countries: The Likely Challenges

Authors Jamil Ddamulira Mujuzi

ISSN: 2521-2621
Affiliations: University of the Western Cape and Co-Director, South African-German Centre for Transnational Criminal Justice
Source: African Yearbook on International Humanitarian Law, 2017, p. 78 – 97

Abstract

Crimes under international law, that is, war crimes, crimes against humanity and genocide, have been criminalised in some African countries, such as, Uganda, South Africa, Mauritius, and Kenya through the domestication of the Rome Statute of the International Criminal Court. Courts in these countries have jurisdiction, including universal jurisdiction, over crimes under international law. There are on-going attempts by public prosecutors to prosecute war crimes in Uganda. In South Africa, the Constitutional Court held that South African public prosecutors and the police have a duty to investigate allegations of crimes against humanity committed outside South Africa. Although private prosecutions for crimes under international law are possible in these countries, there is no known case in which a private prosecution in Africa has been instituted against alleged war criminals. The purpose of this article is to demonstrate the challenges that may be faced in the institution of private prosecutions in Uganda, Kenya, South Africa and Mauritius against those who are alleged to have committed crimes under international law.

The ICC Pre-Trial Chamber’s Decision on South Africa’s Failure to Arrest and Surrender President Al Bashir: South Africa Escapes ‘Sanctions’!

by | Oct 1, 2019 | AYIH, AYIH 2017

The ICC Pre-Trial Chamber’s Decision on South Africa’s Failure to Arrest and Surrender President Al Bashir: South Africa Escapes ‘Sanctions’!

Authors Ntombizozuko Dyani-Mhango

ISSN: 2521-2621
Affiliations: University of the Witwatersrand
Source: African Yearbook on International Humanitarian Law, 2017, p. 37 – 77

Abstract

This article examines the South Africa Decision and the reasons of the Pre-Trial Chamber (‘PTC’) of the International Criminal Court (‘ICC’) for refusing to refer South Africa to the Security Council and/or the Assembly of States Parties (‘ASP’) after it was found to have failed to arrest and surrender President Al Bashir to the ICC in order to understand the PTC’s reasoning. The article therefore examines the South Africa Decision with a view to understand the PTC’s reasoning in contrast to its previous decisions and to examine the provisions of the Rome Statute on referrals and the consequences thereof. Further, since the provisions of the Rome Statute do not stipulate measures to be taken by the Security Council and the ASP against the states that fail to cooperate with the ICC requests, the article will also analyze the role played by the Security Council and the ASP in relation to the PTC referrals. The article argues that the PTC clarified its position on the obligations of states parties in relation to the arrest and surrender of a sitting Head of State not party to the Rome Statute in its finding. In addition, it argues that South Africa was in a unique and exceptional position, hence it escaped the referral to the ASP and/or the Security Council.