FRECENT DEVELOPMENTS

Developments in international criminal justice in Africa during 2008

Cecile Aptel^I; Wambui Mwangi^II

^IExtraordinary Lecturer, Centre for Human Rights, University of Pretoria, South Africa; Senior Fellow, International Center for Transitional Justice, New York, USA
^IIPolitical Affairs Officer with the United Nations, New York, USA

SUMMARY

The year 2008 saw important developments in international criminal justice in Africa. In 2008, all cases before the International Criminal Court involved African states. An overview of these cases is provided. The International Criminal Tribunal for Rwanda in 2008 rendered its decision in the Bagosora case, and further implemented its completion strategy. This contribution provides an overview of these developments. In respect of the Special Court for Sierra Leone, the authors provide a summary and analysis of the Appeals Chamber's judgments in the Brima, Kamara and Kanu case and the case concerning the Civil Defence Forces. Developments towards the establishment of a Special Tribunal for Kenya, following the post-electoral violence in late 2007, are also reviewed.

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* BA (Aix-Marseille), LLM (College of Europe), MLitt (Dublin), PhD (European University Institute); cecileaptel@yahoo.co.uk. The views expressed are personal to the author and do not necessarily reflect those of any particular organisation.
** LLB (Bristol), LLM (Liverpool), Barrister-in-Law (England & Wales); wambui.mwangi@gmail.com. The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations. The authors wish to thank Chinedu Yves Nwagu of the Centre for Human Rights, University of Pretoria, for the research assistance he provided.
1 The International Military Tribunal of Nuremberg was established by the London Charter issued on 8 August 1945. The International Military Tribunal for the Far East (Tokyo Tribunal) was established by the Charter of the International Military Tribunal for the Far East proclaimed on 19 January 1946.
2 United Nations Security Council Resolution 808 (1993) http://www.icty.org/x/file/Legal%20Library/Statute/statute_808_1993_en.pdf) and Resolution 827 (1993) Links ]icty.org/x/file/Legal%20Library/Statute/statute_827_1993_en.pdf" target="_blank">http://www.icty.org/x/file/Legal%20Library/Statute/statute_827_1993_en.pdf (accessed 31 January 2009).
3 United Nations Security Council Resolution 955 (1994) http://69.94.11.53/ENGLISH/Resolutions/955e.htm (accessed 31 January 2009).         [ Links ]
4 The ICC is competent for the following grave international crimes: war crimes, crimes against humanity and genocide, as defined in its Statute. It will also be competent over the crime of aggression when state parties to the Rome Statute agree on a definition of this crime.
5 The Special Panels of the Dili District Court (the East Timor Tribunal) were created in 2000 by the United Nations Transitional Administration in East Timor (UNTAET) to try cases of 'serious criminal offences', including murder, rape and torture, which took place in East Timor in 1999.
6 The Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea (the Khmer Rouge regime 1975-1979) was created jointly by the government of Cambodia and the UN http://www.eccc.gov.kh/ (accessed 31January 2009).
7 The Special Court for Sierra Leone was set up by an agreement between the government of Sierra Leone and the UN to try those who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996 http://www.sc-sl.org/LinkClick.aspx?fileticket=CLk1rMQtCHg%3d&tabid=200. This was further to Security Council 1315 (2000) of 14 August 2000 which requested the Secretary-General 'to negotiate an agreement with the government of Sierra Leone to create an independent special court consistent with this resolution (para 1).
8 The War Crimes Chamber is fully integrated into the domestic Bosnian legal system. Its mandate extends not only to cases referred to it by the ICTY, but also to trying the most sensitive cases brought at a national or local level http://www.sudbih.gov.ba/?jezik=e (accessed 31 January 2009).
9 Hissène Habré is allegedly responsible for the torture and death of about 40 000 individuals. He was first indicted in Senegal in 2000 before courts ruled that he could not be tried there. His victims then turned to Belgium. After a four-year investigation, a Belgian judge issued, in September 2005, an international arrest warrant charging Hissène Habré with crimes against humanity, war crimes and torture. Pursuant to a Belgian extradition request, Senegalese authorities arrested him in November 2005 and asked the African Union to recommend 'the competent jurisdiction' for his trial. On 2 July 2006, the African Union called on Senegal to prosecute Hissène Habré 'in the name of Africa'. In 2007-2008, Senegal removed all legal obstacles to prosecuting Habré by amending its Constitution and laws to permit the prosecution of genocide, crimes against humanity, war crimes and torture no matter when and where the acts occurred.
10 The referral was made on 3 March 2004 http://www.icc-cpi.int/NR/rdonlyres/477CC240-07A5-4FAC-80AC-3A743C2CD649/279970/LRCIS_Thomas_Lubanga_Dyilo_Eng.pdf (accessed 31 January 2009).
11 An analysis of this procedure and of the salient issues of the trial will be provided in the next issue.
12 The Prosecutor v Thomas Lubanga Case ICC-01/04-01/06 (Lubanga trial), Decision on the consequences of non-disclosure of exculpatory materials covered by art 54(3) (e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008, 13 June 2008 para 93.
13 Lubanga trial (n 12 above) para 92.
14 Lubanga trial, Decision on the release of Thomas Lubanga Dyilo, 2 July 2008 para 34.
15 The Prosecutor v Thomas Lubanga Case ICC-01/04-01/06 (Lubanga appeal), Decision on the request of the Prosecutor for suspensive effect of his appeal against the Decision on the release of Thomas Lubanga Dyilo, 7 July 2008 and Reasons for the decision on the request of the Prosecutor for suspensive effect of his appeal against the Decision on the release of Thomas Lubanga Dyilo, 22 July 2008.
16 Lubanga trial, Decision to lift the stay of the proceedings in the Lubanga case, 17 November 2008.
17 S Hanson 'Africa and the International Criminal Court' 24 July 2008 http://www.globalpolicy.org/intljustice/icc/2008/0724africa.htm (accessed 31 January 2009).         [ Links ]
18 Lubanga appeal, Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled Decision on the consequences of non-disclosure of exculpatory materials covered by art 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008, 21 October 2008.
19 Lubanga trial, Decision on victim participation, 18 January 2008.
20 Lubanga appeal, Decision on the participation of victims in the appeal, 6 August 2008.
21 As above.
22 Statement of the Deputy Prosecutor, Fatou Bensouda, to the media regarding the surrender of Mathieu Ngudjolo, 7 February 2008 3.
23 The Prosecutor v Germain Katanga & Mathieu Ngudjolo Chui Case ICC-01/04-01/07 (Katanga & Ngudjolo trial), Decision on the joinder of the cases against Germain Katanga and Mathieu Ngudjolo Chui, 10 March 2008.
24 Katanga & Ngudjolo trial, Decision on the confirmation of charges, 30 September 2008. The Pre-Trial Chamber found insufficient evidence to try them for inhuman treatment, outrages upon personal dignity and inhumane acts.
25 The Prosecutor v Bosco Ntaganda Case ICC-01/04-02/06, Warrant of Arrest, 22 August 2006, which was made public pursuant to the Pre-Trial Chamber's Decision to unseal the warrant of arrest against Bosco Ntaganda, 28 April 2008.
26 Bosco Ntaganda was General Laurent Nkunda's second-in-command until General Nkunda was arrested by the Rwandan authorities in January 2009. The DRC have issued an international warrant for his arrest.
27The Prosecutor v Jean-Pierre Bemba Gombo Case ICC-01/05-01/08, Warrant of Arrest, 23 June 2008.
28 See Fourth Report of the International Criminal Court to the UN for 2007/08 (A/63/323) of 22 August 2008; 5905th Meeting of the Security Council, 5 June 2008; 6028th Meeting of the Security Council, 3 December 2008.
29 Statement by the President of the Security Council, 16 June 2008, S/PRST/2008/21.
30 The Situation in Darfur, Sudan: The Prosecutor's Application for Warrant of Arrest under Article 58 Against Omar Hassan Ahmad Al Bashir, 14 July 2008 http://www2.icc-cpi.int/NR/rdonlyres/64FA6B33-05C3-4E9C-A672-3FA2B58CB2C9/277758/ICCOTPSummary 20081704ENG.pdf (accessed 31 January 2009). The ICC issued the arrest warrant against President Bashir on 4 March 2009.
31 The Situation in Darfur, Sudan: Summary of the Prosecutor's Application under Article 58, ICC- 02/05, 20 November 2008.
32 The Completion Strategy proposed by the ICTR was endorsed by UN Security Council Resolution 1503. Other documents on the completion strategy are available at http://69.94.11.53/default.htm (accessed 31 January 2009).
33 The exception concerns the case of Karemera & Others (Case ICTR-98-44), involving three accused.
34 Case ICTR-98-42.
35 Case ICTR-99-50.
36 Case ICTR-00-56.
37 Case ICTR-2001 -66. Athanase Seromba was a Catholic priest at Nyange Parish, Kivumu Commune, Kibuye Prefecture. His trial commenced on 20 September 2004, and he was originally convicted and sentenced on 13 December 2006. The Appeals Chamber on 12 March 2008 overturned the conviction of Athanase Seromba for aiding and abetting genocide and extermination as a crime against humanity and substituted convictions for committing genocide and extermination as a crime against humanity for his role in the destruction of the church in Nyange Parish, causing the death of approximately 1 500 Tutsi refugees sheltering inside. The Appeals Chamber increased his sentence from 15 years' imprisonment to imprisonment for the remainder of his life.
38 Case ICTR-2000-55. Tharcisse Muvunyi served as lieutenant-colonel in the Rwandan armed forces, stationed at the École des sous-officiers in Butare Prefecture in 1994. He was convicted by a trial chamber on 12 September 2006. On 29 August 2008, the Appeals Chamber overturned his conviction for genocide, direct and public incitement to commit genocide based on a speech he gave in Gikonko, and other inhumane acts as a crime against humanity. The Appeals Chamber also quashed Muvunyi's conviction for direct and public incitement to commit genocide and ordered a retrial limited to the allegations considered in relation to this incident. Tharcisse Muvunyi remains detained by the ICTR pending retrial.
39 Case ICTR-01-63. On 12 November 2008, Siméon Nchamihigo was convicted by a trial chamber for genocide, murder and extermination as crimes against humanity, and for other inhumane acts as a crime against humanity. He was sentenced to life imprisonment. His case is currently before the Appeals Chamber.
40 Case ICTR-01-72. On 2 December 2008, a trial chamber found Bikindi guilty of direct and public incitement to commit genocide based on his exhortations to kill Tutsi in a vehicle outfitted with a public address system on the main road between Kivumu and Kayove in late June 1994. He was sentenced to 15 years' imprisonment. Bikindi was acquitted on all other five counts.
41 Case ICTR-01-73. On 18 December 2008, a trial chamber convicted Protais Zigiranyirazo of genocide and extermination as a crime against humanity and sentenced him to 20 years' imprisonment. The trial chamber acquitted him of conspiracy to commit genocide, complicity in genocide and murder as a crime against humanity. The case is currently before the Appeals Chamber.
42 Case ICTR-97-31. Renzaho is charged with genocide, alternatively complicity in genocide, and with murder as a crime against humanity.
43 Case ICTR-01-70. Rukundo is charged with genocide and crimes against humanity for murder and extermination.
44 Case ICTR-99-50. The accused in this case are charged with conspiracy to commit genocide, genocide, complicity in genocide, direct and public incitement to commit genocide, crimes against humanity and violations of art 3 common to the Geneva Conventions and Additional Protocol II.
45 Case ICTR-04-81. Setako is indicted for genocide or, in the alternative, complicity in genocide, murder and extermination as crimes against humanity; as well as serious violations of art 3 common to the Geneva Conventions and Additional Protocol II.
46 Case ICTR-05-88-I. Kalimanzira is charged with genocide or, in the alternative, complicity in genocide, and direct and public incitement to commit genocide.
47 Case ICTR-98-41-T.
48 Case ICTR-98-41-T, judgment and sentence, 18 December 2008 166-199.
49 Oral summary of the judgment, The Prosecutor v Théoneste Bagosora & Others Case ICTR-98-41-T para 7, available online.
50 n 48 above, para 2113.
51 For a detailed analysis of the completion strategy of the ICTR and its residual issues, see C Aptel 'Closing the UN International Criminal Tribunal for Rwanda: Completion strategy and residual issues' (2008) 14 New England Journal of International and Comparative Law 169.
52 In addition to the transfer of these cases, the ICTR prosecutor can and has also transferred the dossiers concerning suspects who were investigated but not indicted by the ICTR. Many of these cases have been transferred to Rwanda and others to other relevant States, eg those where the suspects reside. One such file was communicated to Belgium.
53 These motions concern Yussuf Munyakazi, Jean-Baptiste Gatete, Gaspard Kanyarukiga, Idelphonse Hategekimana and Fulgence Kayishema. Fulgence Kayishema is a fugitive; all four others are detained by the ICTR.
54 Case ICTR 2002-78-R11 bis, Prosecutor v Kanyarukiga, Decision on Prosecutor's Request for Referral to the Republic of Rwanda, 6 June 2008 para 104.
55 As above.
56 Case ICTR 97-36-R11 bis, Prosecutor v Munyakazi, Decision on the Prosecution's Appeal against Decision on Referral under Rule 11 bis, 8 October 2008.
57 The final judgment is expected in late February 2009 and will be analysed in the next issue.
58 The Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara & Santigie Borbor Kanu, judgment (AFRC Trial Judgment) 20 June 2007 paras 2113, 2114, 2117, 2118, 2121 & 2122.
59 n 58 above, paras 2116, 2120 & 2123.
60 n 58 above, para 696.
61 n 58 above, paras 704-714.
62 n 58 above, paras 2116 & 2119.
63 n 58 above, paras 720-722.
64 n 58 above, para 713.
65 n 58 above, para 714.
66 The Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara & Santigie Borbor Kanu (AFRC Appeals Judgment) 22 February 2008 para 186.
67 n 66 above, paras 190-200.
68 n 66 above, para 202.
69 n 66 above, para 85.
70 AFRC Trial Judgment, paras 66-70.
71 Afrc Appeal Judgment, para 84.
72 In addition to the issues summarised below, the Appeals Chamber, by majority, entered two new convictions against both accused for murder and inhumane acts as crimes against humanity and increased Moinina Fofana's sentence from six to 15 years and Allieu Kondewa's sentence from eight to 20 years. Prosecutor v Fofana & Kondewa Special Court for Sierra Leone, Case SCSL-04-14-T, judgment (CDF Trial Judgment) 2 August 2007 paras 187-192.
73 Fofana & Kondewa (n 72 above) paras 290-292.
74 Fofana & Kondewa (n 72 above) Sentencing Judgment, 9 October 2007 paras 45-58.
75 Fofana & Kondewa (n 72 above) paras 82 & 83.
76 Fofana & Kondewa (n 72 above) Appeals Judgment, 28 May 2008 paras 529-535.
77 CDF Trial Judgment (n 72 above) para 429.
78 This is one of the commissions established by the National Dialogue and Reconciliation which was brought about by the political crisis ensuing from the disputed general elections results at the end of 2007. Its terms of reference were published in the Kenya Gazette of 23 May 2008.
79 Report of the Commission of Inquiry into Post-Election Violence, 15 October 2008. The full report is available at http://www.dialoguekenya.org/docs/PEV%20Report.pdf (accessed 31 January 2009).
80 n 79 above, Recommendation 5 473.
81 An official draft bill was due to be examined in early 2009. This will be analysed in the next issue.