1. 1 Workshop on the International Criminal Court and Africa: 10 years on Convened by Africa Legal Aid (AfLA) and Partners Snowcrest Hotel, Arusha, Tanzania, 28 February – 1 March 2013 The Proposed Expansion of the jurisdiction of the African Court Some reflections by Donald Deya, CEO, Pan African Lawyers Union (PALU)

2. 2 Outline ① Basic Hypotheses ② Developments at the African Union (AU)/ Africa a) Quick overview of the “ecosystem”: some key AU organs & institutions ③ The background leading to the current process ④ The process towards an ICL jurisdiction ⑤ The proposals (content) to date ⑥ Debunking the myths ⑦ Opportunities ⑧ Risks ⑨ Amelioration ⑩ Conclusions and Way Forward

3. 1) My basic premises/ hypotheses 1. Developments in international criminal law in Africa are NOT happening in a vacuum; there is a wider context in which they are merely one factor (albeit an important one) 2. The quality of civil society engagement may ultimately be the defining factor of what succeeds and what does not! 3. Humble appreciation that several alternative views exist, and the PALU view is just one amongst these 3

4. 2) Developments at the African Union The last 10 years has been a busy time in Africa: a preoccupation with democracy, good governance, rule of law, human & peoples’ rights, peace & security  3-step process: norm-setting, institution-building, & implementation  From 2002 to date: 15 new Treaties, Conventions or Protocols touching on democracy, good governance, rule of law, human & peoples’ rights, peace & security: 1.5 legal instruments per year  Over 10 Treaty bodies unveiled, & being institutionalized  Myriad studies; policy frameworks & strategies have been (or are being) formulated, including the African Peace & Security Architecture (APSA), African Governance Architecture (AGA), African Human Rights Strategy (AHRS)  Similar activity in virtually all the regional economic communities (RECs) & other African intergovernmental organizations, e.g. International Conference on the Great Lakes Region (ICGLR) 4

5. a) African Court on Human & Peoples’ Rights (AfCHPR), Arusha, Tanzania  2009 – date: 22 cases, 3 Applications for Advisory Opinions (the majority in 2011 and 2012)  Progress: 2 Judgements, 11 Orders dismissing matters on admissibility/ jurisdiction grounds  Pending: 8 matters Jurisprudence available: African Human Rights Case Law Analyzer  Court has jurisdiction on state responsibility for mass atrocity crimes and could trigger follow-up action in national or international courts or tribunals (Art. 58 of the African Charter). In principle, the African Court can recommend referral to the ICC! Currently seized of the Libya Case.  Court currently formulating its Strategic Plan, also Practice Guidelines 5

6. 6 b) Other parts of the African “Ecosystem” 1. African Commission on Human & Peoples’ Rights (ACHPR): its Committees and Special Rapporteurs; its Art. 58 mandate 2. African Committee of Experts on the Rights & Welfare of the Child (ACERWC) 3. African Union Advisory Board on Corruption (AU-ABC): Member State reporting on corruption; Reports on activities of multi-national corporations in Africa (MNCs) in Africa 4. African Union Commission on International Law 1. African Union Peace & Security Architecture (APSA), especially the Peace & Security Council of the African Union (AU-PSC) 2. Courts of the Regional Economic Communities (RECs) 3. Peace and Security Architectures of the RECs

7. Implementation: AGA, APSA, AHRS  Positive actions in specific country situations: Comoros, Gabon, Niger, Kenya, Cote d’Ivoire, Mali? Need for a comprehensive assessment of its efforts in Libya.  African Peace & Security Architecture (APSA): handles international crime; could refer, including to the ICC  African Governance Architecture (AGA): would it address judicial & prosecutorial independence, including of the African Court?  African Human Rights Strategy (AHRS): access to justice; due process & fair trial; alternatives to detention  Institutionalization of the African Governance Platform (AGP): how does civil society appropriate this space? 7

8. Other AU/ African initiatives  Model Law on Universal Jurisdiction  African Legal Support Facility (ALSF), a member of the African Development Bank (AfDB) Group Assisting in defence of vulture funds  High-Level Panel on Illicit Financial Flows from Africa (HLP IFF), chaired by Retired President Thabo Mbeki Looking at aspects of corruption, economic crimes, transfer pricing, etc  High-level Panel on alternative financing of African Union, chaired by Retired President Olusegun Obasanjo 8

9. 3) The background 1. 1996 – 1998: Discussions and negotiations for the establishment of the African Court on Human & Peoples’ Rights involved discussions on jurisdiction for crimes (Prof. Shadrack Gutto proposed crime of Grand Corruption/ Kleptocracy) 2. 2002: The AU Constitutive Act, Art. 4, renews the call for total rejection of impunity 3. 2002: Civil Society activists for the ICC raise the issue of granting the African Court jurisdiction for the crime of Corruption 4. 2003: AU Anti-Corruption Protocol: provides for reporting on the activities of multi-national corporations in Africa (Art. 22(5)(e)), and possibly lays the basis for universal jurisdiction with regard to the crime of Corruption (Art. 13) 5. 2005: AU Non-Aggression and Common Defense Pact vests ACJ with jurisdiction to inteprete situations of Aggression and Unconstitutional Changes of Government 9

10. Background, continued 6. 2006: Committee of Eminent Persons on the Case of Hissene Habre recommend empowering merged Court to try international crimes (Recommendation 34) 7. 2006 – 2008: Discussions and negotiations for the establishment of the African Court on Justice & Human Rights (the “Merger Court”) involved discussions on jurisdiction for crimes 8. 2008: African Charter on Democracy, Elections & Governance (ACDEG) provides for prosecution of the crime of Unconstitutional Change of Government (UCG) in the African Court of Justice (Art. 25(5)) and possibly also lays the basis for Universal Jurisdiction (Art. 25(9)) 9. 2008 – 2009: Expert work and discussions on the possible Abuse of the Principle of Universal Jurisdiction re-invigorate the campaign for an international criminal jurisdiction for the African Court 10. 2009: AU Assembly initiates a formal process for exploring the implications of granting an international criminal jurisdiction for the African Court 10

11. 4) The process 1. Jan 2009: Within the context of the AU-EU Dialogue on the possible abuse of the principle of Universal Jurisdiction (and not the ICC), Decision 213: that the AUC, in conjunction with the AfCHPR and ACHPR, consider implications of extending jurisdiction of the AFCHPR to cover international crimes, SUCH AS Genocide, War Crimes and Crimes against humanity 2. Jan 2010: Upon presentation of the above Report, the AU Assembly authorizes commencement of work on a Draft Protocol 3. Feb 2010: PALU contracted to produce a Report and draft legal instrument 4. Jul 2010: Report and draft Protocol and Statute submitted 5. Aug 2010: Revised Report and draft Protocol and Statute submitted 11

12. Process, continued 6. Aug & Nov 2010: 2 Validation Meetings in Midrand 7. Mar, May & Oct 2011; and May 2012: 4 Government Experts’ Meetings 8. July 2012: AU Policy Organs direct 2 Reports: (1) Financial Implications (2) Definition of Unconstitutional Change of Government (UCG), in consultation with the AfCHPR & AUCIL 9. Dec 2012: Arusha Consultation of AUC, AfCHPR, AUCIL 10. Jan 2013: AU Policy Organs direct: (1) The Financial Implications Report be referred to PRC Sub- Committee on Finance (2) The definition of UCG be discussed with the AU-PSC 12

13. 13 5) The proposals to date: Draft Protocol on the Statute of the African Court of Justice & Human & Peoples’ Rights 1. 3 Sections: Human & Peoples’ Rights; General Affairs; International Crimes 2. The International Crimes Section has 3 Chambers: Pre-Trial, Trial and Appellate. NB: Appellate only for International Crimes Section; for the other 2, only Review could apply 3. At onset, 16 Judges, with provisions for “pooling” (to be addressed in the Court Rules) and flexibility in increasing numbers of Judges (by the Assembly), as workload increases 4. Referral by Assembly (Heads of State), Peace & Security Council, Prosecutor (pro prio motu) 5. Provisions for independent Office of the Prosecutor (OTP) with 1 Prosecutor & 2 Deputy Prosecutors Directly elected by the Assembly Explicit requirements of high moral character, high competence, extensive practical experience

14. Draft Protocol, continued 7. Provisions for empowered Registry, with 1 Registrar & 3 Assistant Registrars Appointed by the Court, following AU Rules & Regulations Explicit requirements of high moral character, high competence, extensive practical managerial experience Explicit requirement to set up a Victims & Witnesses Unit, and, in consultation with the Court & OTP, ensure victims & witnesses are provided protective measures, security arrangements, counselling & other appropriate measures Explicit requirement to set up a Defence Counsel & Detention Management Unit 8. Compensation & reparations 9. Wider range of crimes (14), of concern to Africans (even if not to rest of world): Genocide, War Crimes, Crimes against Humanity; Aggression; Unconstitutional Change of Government; Corruption, Money Laundering; Illegal Exploitation of Natural Resources; Piracy, Terrorism; Mercenariism; Traficking in Persons, Drugs, Hazardous Wastes 14

15. The Provisions so far JurisdictionRecommendation Subject-matter jurisd. (Rationae materiae) Genocide, Crimes against humanity, War crimes (ICC definitions; ICRC additions for War crimes) Unconstitutional change of government (ACDEG): definition currently contentious Others, according to AU Treaties & Protocols: Corruption, Money laundering; Illegal Exploitation of Natural Resources; Terrorism, Piracy (UNCLOS), Aggression, Mercenariism; Trafficking in Persons, Drugs, Hazardous Wastes Personal jurisd. (Rationae personae) Open to Africans and non-Africans in Africa Over 18 years Legal and Natural Persons (Corporate criminal liability) Territorial jurisd. (Rationae loci) Within Africa; within States Parties Protective principle: “vital interests” Temporal jurisd. (Rationae temporis) Non-retrospectivity Leaves intact customary international law, though (which is positive!) 15

16. Draft Protocol, continued 10. Flexibility to incorporate “… additional crimes … upon the consensus of state s… based on developments in international law 11. Corporate criminal liability (except States) 12. Explicit non-retrospectivity provisions (non bis in idem) 13. Explicit provisions for complementarity with national Courts; and REC Courts, where the instruments so provide 14. Explicit provisions for co-operation and judicial assistance from Member States 15. Explicit provisions for co-operation or assistance of regional or international courts, non-States Parties or co-operating partners of the AU and may conclude Agreements for that purpose.” 16

17. Draft Protocol, continued 16. Assembly shall establish Trust Fund (for legal aid & assistance & for the benefit of victims of crimes or human rights violations & their families): 17. Saves jurisdiction already accepted by any Member State 18. Implications of ratification, domestication: need for national legislation/ legislative reform 19. Sufficient knowledgeable, skilled, experienced, professional & ethical Judges, court administrators, investigators, prosecutors, defence counsel, etc exist on the continent and its diaspora 17

18. 6) De-bunking the myths 1. The non-retrospectivity clause 2. The complementarity promise 3. The time lag between adoption, ratification, coming into force, practical institutionalization, referral, investigation, indictment 4. The credibility imperative 18

19. Other issues to reflect on  Model Law on Universal Jurisdiction  Senegal and AU reached agreement to try former Chadian President Hissene Habre in “Extraordinary African Chambers” within the Senegalese Court System. This would present the first time a former head of state has been prosecuted in Africa under the Principle of Universal Jurisdiction (UJ): NB: Mengistu Haile Mariam has been prosecuted and convicted in absentia 19

20. Pan African Lawyers Union (PALU)  Overall umbrella association for African lawyers and lawyers’ associations  5 regional + 54 national lawyers’ associations (Bar Associations & Law Societies)  Over 500 individual members  Programming in international criminal law, international anti-corruption law, international human rights law, international commercial law, natural resources governance  YOU can join: USD 100 only  www.lawyersofafrica.org www.lawyersofafrica.org 20

21. 5) Opportunities 1. Significant addition to international law, and international criminal law 2. Wider array of crimes, especially “enabling crimes” 3. Complementarity within the international legal system, & the international criminal law system (continuum from national to regional to continental to global) 4. Rules of Procedure & Evidence of the Court 5. “Ecosystem” approach: ACJHPR will be surrounded by other institutions; and will be buttressing AGA, AGP, APSA, AHRS 21

22. 6) Risks 1. Insufficient financing. Ref AU Assembly July 2012 Decision on an additional Report on Financial Implications 2. Structural & legal reform of an existing legal instrument: challenges 3. Waning political will, especially around mutual legal assistance & extradition 4. Political interference, including in elections/ appointments 5. Possibility of conflict, for example between ICC & ACJHPR, in situations in which they are both active 6. Challenge: direct access still “blocked” 22

23. 7) Amelioration 1. Africa IS changing, slow or not 2. The African Court (and the AU system) appreciates that credibility, legitimacy, adherence will have to be earned. 3. If the African Court) is not “up to scratch”, the ICC, for instance, could still intervene, pro prio motu, or at the behest of the UN Security Council 4. Wide latitude for the Court, through its Rules of Procedure & Evidence 5. Better resourcing of the AU in general: Obasanjo and Mbeki High-Level Panels 23

24. Amelioration, continued 6. Voluntary Trust Funds for rule of law, human rights, democracy institutions 7. Proactivity by civil society, especially lawyers, in key institutional elections/ appointments 8. Should the ACJHPR come into force, strenuous work in ensuring complementarity, including through Memoranda of Understanding, respective Courts’ Rules, etc 24

25. 8) Conclusions (tentative)  A lot of work has been done, especially in the last dozen years  A lot of work STILL needs to be done, especially in ratification, domestication, implementation & enforcement  IMPLEMENTATION: towards more policies, strategies, frameworks, guidelines & budgets (lawyers must learn how to “haggle” Budgets with Finance Ministries) 25

26. 9) The Way Forward: the audacity of hope 1. Ratification & domestication of legal instruments adopted at global, continental & regional levels 2. Proactively & innovatively tackle the question of resourcing AU, its RECs, Member State institutions & civil society: both government & citizen funds 3. Proactively & innovatively tackle the question of election/ appointment to key continental & regional institutions for democracy, rule of law, human & peoples’ rights 4. Innovative & proactive use of private criminal prosecution & private recovery of stolen or illegally acquired assets 26