RECENT DEVELOPMENTS

Developments in international criminal justice in Africa during 2009

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

An overview of 2009 shows the dramatic influence of developments pertaining to international criminal justice in shaping not only legal but also political and human rights discourses in Africa. This contribution, which reviews selected events in 2009, includes a selective analysis of the work of two important international jurisdictions - the International Criminal Court and the International Criminal Tribunal for Rwanda. This year, the 'hybrid' Special Court for Sierra Leone concluded its last trial and appeal in Freetown and heard the testimony of Charles Taylor. Both are significant for the pursuit of justice in Sierra Leone. In Kenya, the failed efforts to establish a special tribunal and the attempts to prosecute suspected pirates apprehended off the coast of Somalia, shape the debate on the prosecution of international crimes in domestic judicial spheres. The first case before the African Court on Human and People's Rights, concerning Hissène Habré, and the attempts to establish a criminal chamber to try crimes defined under international law within the African Court are touched upon. Events in Sudan are highlighted, including the International Criminal Court's arrest warrant against the President of Sudan, and the report by the African Union Panel on Darfur.

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* BA (Aix-Marseille), LLM (College of Europe), MLitt (Dublin); cecileaptel@yahoo.co.uk
** LLB (Bristol), LLM (Liverpool), Barrister-in-Law (England & Wales); wambui.mwangi@gmail.com. The views expressed are personal to the authors and do not necessarily reflect those of the United Nations or of any other particular organisation.
1 The Statute of the ICC was adopted in Rome in July 1998 (Rome Statute) by 120 states and entered into force in 2002, triggering the temporal jurisdiction of the ICC. The Court is competent for war crimes, crimes against humanity and genocide, as defined in its Statute, and will also be competent over the crime of aggression when state parties to the Rome Statute agree on a definition of this crime.
2 United Nations Security Council Resolution 955 (1994) of 8 November 1994 http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N95/140/97/PDF/N9514097.pdf?OpenElement (accessed 31 March 2010).
3 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 (accessed 31 March 2010). This was further to Security Council Resolution 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).
4 n 2 above. The ICTR was established by the UN Security Council in 1994 'to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring states between 1 January 1994 and 31 December 1994'. See art 1 of the ICTR Statute.
5 For up-to-date status of ICTR cases, see http://www.unictr.org/Cases/StatusofCases/tabid/204/Default.aspx (accessed 31 March 2010).
6 See the cases of (a) Bagaragaza Michel (ICTR-05-86) - sentenced to eight years; (b) Kalimanzira Callixte (ICTR-05-88 ) - sentenced to 30 years; (c) Nsengiyumva Anatole (ICTR-96-12) - acquitted and since relocated; (d) Nshogoza Léonidas (ICTR-2007-91) - sentenced to 10 months; (e) Renzaho Tharcisse (ICTR-97-31-DP) sentenced to life; (f) Rukundo Emmanuel (ICTR-01-70) - sentenced to 25 years.
7 See ICTR cases of Zigiranyirazo Protais (ICTR-01-7) and Karera François (ICTR-01-74).
8 See The Prosecutor v Protais Zigiranyirazo, Judgment (Appeals) (Case ICTR-01-73-A), 17 November 2009.
9 In addition to the transfer of these cases, the ICTR prosecutor can and has also transferred dossiers concerning suspects who were investigated but not indicted by the ICTR.
10 See Security Council Resolutions 1878 (2009) of 7 July 2009 and 1901 (2009) of 16 December 2009.
11 n 3 above.
12 Prosecutor v Issa Hassan Sesay, Morris Kallon & Augustine Gbao (Case SCSL-04-15-T) Judgment (Trial) dated 2 March 2009 and Sentencing Judgment dated 8 April 2009. The accused were sentenced to 52, 40 and 25 years respectively. Of the 18 charges, Sesay and Kallon were found guilty of 16 counts and Gbao of 14. None of the accused were convicted for murder or the taking of hostages or found responsible for the attack in Freetown that resulted in over 5 000 deaths in January 1999.
13 This jurisprudential precedent may be of significance in the case against Bahr Idriss Abu Garda before the ICC, concerning attacks against personnel of the African Union Mission in Sudan. See section on Sudan below. Sesay, Kallon and Gbao, Sentencing Judgment paras 189 194-195. See more generally paras 188-203. For this reason, the Chamber found that the 'inherent gravity of the criminal acts in question [were] exceptionally high'. For intentionally directing an attack against peacekeepers, Sesay was sentenced to 51 years, Kallon to 40 years and Gabo to 25 years (para 204).
14 On this notion and the way it has been formulated before the SCSL, see C Aptel & W Mwangi 'Developments in international criminal justice in Africa during 2008' (2009) 9 African Human Rights Law Journal 274.
15 Prosecutor v Taylor (Case SCSL-2003-01-T) Urgent Defence Motion Regarding a Fatal Defect in the Prosecution's Second Amended Indictment Relating to the Pleading of JCE dated 14 December 2007 (' Original Defence Motion'). The Trial Chamber had permitted both parties to file new submissions in light of the Appeals Chamber's judgment in the case of Prosecutor v Brima & Others (Prosecutor v Brima & Others (Case SCSL-2004-16-A), Judgment (Appeals) dated 22 February 2008, filed on 3 March 2008). It subsequently dismissed the defence's motion in an oral decision on 19 February 2009 (Taylor Transcript, 19 February 2009 24052 ln 26 - 24053 ln 3.) The majority of the Trial Chamber in Impugned Decision on 27 February 2009 had held that the Second Amendment needed to be read as a whole (Taylor, Prosecution's Second Amended Indictment, 29 May 2007 para 33.) It also held that the prosecution had fulfilled the pleading requirements of the alleged joint criminal enterprise and provided sufficient details to put the Defence on notice of the case against him, although in agreement with the majority of the bench on that there was sufficient material presented by the prosecutor to put the defence on notice, in his dissent, Justice Lasik held that the Second Amended Indictment defectively pleaded joint criminal enterprise as a mode of liability at paras 6-23 (Taylor, Decision on Public Urgent Defence Motion Regarding a Fatal Defect in the Prosecution's Second Amended Indictment Relating to the Pleading of JCE dated 27 February 2009).
16 In order to secure a conviction, the prosecution will need to demonstrate the command responsibility that it alleges Taylor had over the RUF as well as his participation in a joint criminal enterprise with the guerrilla group to gain control over Sierra Leone by committing crimes that amount to crimes against humanity and war crimes. The Taylor defence aims to distance him from the RUF, thus undermining the prosecution's argument of JCE.
17 See also more generally JL Hirsch Sierra Leone: Diamonds and the struggle for democracy (2001).
18 Amended Agreement between the Special Court for Sierra Leone and the government of the Republic of Rwanda on the Enforcement of Sentences of the Special Court for Sierra Leone, 18 March 2009 http://www.sc-sl.org/LinkClick.aspx7fileticket=WNTKRbIUNNc%3d&tabid=176 (accessed 31 March 2010).
19 Rwanda, as evidenced by this transfer, continues to assert that it has put in place the requisite conditions and procedures in accordance with UN standards to enable the ICTR to transfer its convicted persons to Mpanga Prison. This bold initiative to accept the SCSL-convicted persons by Rwanda is likely to play a critical role in future decisions concerning where to house ICTR-convicted persons once the ICTR concludes its activities.
20 The Lomé Peace Accords were signed on 7 July 2009 between the government of Sierra Leone and the RUF. The agreement also provided for the establishment of a Truth and Reconciliation Commission (TRC) that was created in 2002 'to establish a historical record of violations and human rights abuses from July 7, 1991 - 1999; to address impunity; to respond to the needs of victims; to promote healing and reconciliation; and to prevent a repetition of such events in Sierra Leone'. Its final report was published on 27 October 2004.
21 On this last crime, see C Aptel 'International criminal justice and child protection' in UNICEF-Harvard University Children and transitional justice: Truth-telling, accountability and reconciliation (2010).
22 Special Court for Sierra Leone: Completion Strategy, June 2009 http://www.sc-sl.org/LinkClick.aspx?fileticket=yiUyKldb3OY%3d&tabid=176 (accessed 31 March 2010).
23 The referral by the government of Uganda was announced in January 2004.
24 The four individuals are Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen.
25 See eg decisions in The Prosecutor v Joseph Kony, Vincent Otti, Okot Odhiambo & Dominic Ongwen (Case ICC-02/04-01/05) dated 9 February 2009 and 10 March 2009.
26 Kony & Others, decision on the admissibility of the case under art 19(1) of the Statute dated 10 March 2009. See also dismissal of the defence appeal of this decision - Kony & Others, judgment on the appeal of the defence against the 'Decision on the admissibility of the case under article 19 of the Statute' of 10 March 2009 dated 16 September 2009.
27 Kony & Others, decision on the admissibility of the case under art 19(1) of the Statute dated 10 March 2009, para 34.
28 n 28 above, para 45.
29 n 28 above, para 51.
30 The referral was made on 3 March 2004. On this basis, the ICC prosecutor opened investigations in Eastern DRC.
31 The individuals from the DRC currently in ICC custody are Thomas Lubanga Dyilo, Germain Katanga and Mathieu Ngudjolo Chui, all charged in connection with crimes committed in the DRC. Jean-Pierre Bemba, hailing from the DRC, is charged for crimes allegedly committed in the Central African Republic (see section below).
32 Situation in the Democratic Republic of the Congo, In the Case of The Prosecutor v Thomas Lubanga Dyilo (Case ICC-01/04-01/06). It is also in that case that the ICC issued its first arrest warrant, unsealed in 2006. Having been previously arrested by DRC authorities for a different crime, Lubanga was transferred to the ICC in March 2006. The charges against him were confirmed on 29 January 2007 following a series of postponements.
33 For an analysis of these issues, notably pertaining to the disclosure of confidential material obtained by the prosecutor from third parties to assist with the investigations, as well as the clarification of the definition of 'a victim' before the ICC, see Aptel & Mwangi (n 14 above).
34 For more analysis on these issues, see C Aptel 'Children and accountability for grave crimes: The role of the ICC and other international courts' Innocenti Working Paper (2010), Florence, UNICEF Innocenti Research Centre.
35 Lubanga 'Demande conjointe des Représentants Légaux des Victimes aux Fins de Mise en Oeuvre de la Procédure en Vertu de la Norme 55 du Règlement de la Cour' dated 22 May 2009. Surprisingly, the prosecutor in his response of 29 May 2009 limited himself to stating that '[i]f the Chamber considers that it might be appropriate to [consider the possibility of modifying the legal characterisation of the facts] it will give the participants notice and invite submissions. In that event, the prosecution will provide its factual and legal response.' See also Lubanga, Prosecution's Response to the Legal Representatives, 'Demande conjointe des Représentants Légaux des Victimes aux Fins de Mise en Oeuvre de la Procédure en Vertu de la Norme 55 du Règlement de la Cour', dated 29 May 2009.
36 On 14 July 2009, the Trial Chamber issued its 'Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court'. The Appeals Chamber reversed this decision, ruling that the Trial Chamber's finding that the legal characterisation of the facts may be subject to change was based on a flawed interpretation of Regulation 55. The Appeals Chamber did not rule on the question of whether the majority of the Chamber erred in determining that the legal characterisation of the facts may be changed to include crimes under arts 7(1)(g), 8(2)(b)(xxvi) [sic], 8(2)(e)(vi), 8(2)(a)(ii) and 8(2)(c)(i) of the Statute because the Trial Chamber had not yet done a detailed review of the questions in this issue. See Lubanga, judgment on the Appeals of Mr Lubanga Dyilo and the prosecutor against the decision of Trial Chamber 1 of 14 July 2009 entitled 'Decision Giving Notice to the Parties and Participants that the Legal Characterisation of the Facts may be Subject to Change in Accordance with Regulation 55(2) of the Regulations of the Court' dated 8 December 2009.
37 Germain Katanga, arrested in October 2007, was a former leader of the Patriotic Resistance Force in Ituri (FRPI).
38 Mathieu Ngudjolo Chui, arrested in February 2008, was a former leader of the National Integrationist Front (FNI) and a Colonel in the National Army of the government of the DRC.
39 Situation in the Democratic Republic of the Congo, In the Case of The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui (Case ICC-01/04-01/07), Decision on the Confirmation of Charges, dated 30 September 2008. Pre-Trial Chamber I authorised the joinder of the cases of Mathieu Chui and Katanga following a prosecutorial request which alleged co-responsibility for crimes committed during and after the attack on the village of Bogoro. See Katanga and Chui, Decision on the joinder of the cases against Germain Katanga and Mathieu Ngudjolo Chui, dated 10 March 2008.
40 See Katanga and Chui (n 39 above) Motifs de la décision orale relative à lexception d'irrecevabilité de l'affaire (article 19 du Statut) dated 16 June 2009.
41 n 41 above, paras 76-78.
42 Situation in the Democratic Republic of the Congo, In the Case of The Prosecutor v Bosco Ntaganda (Case ICC-01/04-02/06), Warrant of Arrest dated 22 August 2006. This warrant was made public pursuant to the Pre-Trial Chamber's Decision to unseal the warrant of arrest against Bosco Ntaganda dated 28 April 2008.
43 See International Center for Transitional Jusice 'Focus: Bosco Ntaganda', February 2009 http://www.ictj.org/static/Factsheets/ICTJ_DRC_BoscoNtaganda_fs2009.pdf (accessed 31 March 2010).
44 As above.
45 The ICC prosecutor has also alluded since 2008 to a third investigation into crimes committed in the North and South Kivu, but this was not publicly concretised until recently.
46 In a 'Joint Letter to the Chief Prosecutor of the International Criminal Court' dated 31 July 2006, eight international human rights organisations (including Human Rights Watch) indicated that this 'undercut the credibility of the ICC' as well as limited victims' participation;http://www.iccnow.org/documents/DRC_joint_letter_eng.PDF (accessed 31 March 2010).
47 In 2002, the DRC transitional legislature granted Congolese military courts exclusive jurisdiction over international crimes, including civilian suspects or accused. Despite art 156 of the 2006 Constitution of the DRC, which limits the jurisdiction of military justice to members of the armed forces and of the police, the exclusive jurisdiction of military courts has not yet been abrogated.
48 The draft bill was submitted to the Congolese National Assembly in March 2008.
49 The Situation in the Central African Republic in the Case of The Prosecutor v Jean-Pierre Bemba Gombo (Case ICC-01/05-01/08). On 22 May 2007, the prosecutor announced the opening of an investigation in the CAR;http://www.icc-cpi.int/menus/icc/press%20and%20media/press%20releases/2007/prosecutor%2 0opens%20investigation%20in%20the%20central%20african%20republic?lan=en-GB (accessed 31 March 2010).
50 Jean-Pierre Bemba was the President and Commander-in-Chief of the MLC. He was one of four Vice-Presidents in the DRC transitional government from 2003 to 2006, and a runner-off in the 2006 DRC presidential elections. In 2007, he was elected to the DRC Senate where he led the opposition against President Joseph Kabila. On 23 May 2008, the ICC Pre-Trial Chamber found that there were reasonable grounds to believe that Bemba bore individual criminal responsibility for war crimes and crimes against humanity committed in the CAR from 25 October 2002 to 15 March 2003; Bemba, Warrant of Arrest Replacing the Warrant of Arrest issued on 23 May 2008 dated 10 June 2008.
51 Bemba was arrested in May 2008 in Brussels, Belgium, and transferred to the ICC in July 2008 on three counts of war crimes and five counts of crimes against humanity.
52 See Bemba, decision pursuant to arts 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo dated 15 June 2009.
53 On 18 September 2009 the case was referred to the ICC Trial Chamber III for trial.
54 See Bemba, Decision on application for interim release dated 20 August 2008, Decision on application for interim release dated 16 December 2008 and Decision on application for interim release dated 14 April 2009; all of which rejected Bemba's applications for interim release. A decision by the Pre-Trial Chamber on 14 August 2009 granted Bemba conditional release 'until decided otherwise' in its 'Decision on the Interim Release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the Italian Republic and the Republic of South Africa', pending a decision in which state the accused would be released and under what conditions. The prosecutor appealed this decision and on 3 September 2009, the Appeals Chamber rendered its 'Decision on the Request of the Prosecutor for Suspensive Effect' which suspended the decision to grant Bemba interim release pending a decision on the merits of the prosecution's appeal.
55 In this resolution, the Security Council called upon the government of Sudan to co-operate fully and provide any necessary assistance to the ICC, despite it not being a state party to the ICC. For a discussion on the warrants of arrest for Bashir, Harun and Kushayb, see Aptel & Mwangi (n 14 above).
56 Situation in Darfur, Sudan, In the case of the Prosecutor v Bahar Idriss Abu Garda (Case ICC-02/05-02/09), 'Public Redacted Version - Decision on the Prosecutor's Application under Article 58' dated 7 May 2009.
57 Situation in Darfur, Sudan, In the Case of the Prosecutor v Omar Hassan Ahmad Al Bashir (Omar Al Bashir) (Case ICC-02/05-01/09) 'Public Redacted Version: Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir' dated 4 March 2009. These charges comprised murder, extermination, forcible transfer, torture and rape, constitutive of crimes against humanity under art 7 of the Rome Statute, and intentionally directing attacks against a civilian qpopulation as such or against individual civilians not taking direct part in hostilities, and pillaging, constitutive of war crimes under art 8 of the Statute. One area not examined in this article were reports in 2009 of indiscriminate or disproportionate attacks on civilians in Mogadishu by insurgent groups and members of the transitional federal government of Somalia's security forces, as well as allegations of the use of mortars and heavy artillery by the African Union Mission to Somalia (AMISOM) in civilian populated areas during fighting - see Amnesty International 'Public statement, Somalia: Civilians pay the price of intense fighting in Mogadishu' 4 March 2009, AI index: AFR 52/002/2009 http://www.amnesty.org/en/library/info/AFR52/002/2009/en (accessed 31 March 2010). The implications in international criminal and humanitarian law will be explored further in the next report.
58 On 6 July 2009, the prosecutor appealed this decision, submitting to the Appeals Chamber that the majority of Pre-Trial Chamber I erred when requiring that the existence of reasonable grounds to believe that the person has committed the alleged crime must be the only reasonable conclusion from the evidence presented by the prosecutor. A decision by the Appeals Chamber is expected in early 2010.
59 Al Bashir (n 57 above) para 41.
60 Al Bashir (n 57 above) paras 42-45.
61 ICC Pre-Trial Chamber I, Public document - Application on behalf of citizens' organisations of the Sudan in relation to the prosecutor's applications for arrest warrants of 14 July 2008 and 20 November 2008, ICC-02/05, 11 January 2009. The NGOs represented were the Sudan Workers' Trade Unions Federation (SWTUF) and the Sudan International Defence Group (SIDG).
62 In relation to the latter, the two groups referred to the constitutional procedures set out in arts 60 and 61 of the Constitution of Sudan which provide for the investigation and prosecution of Sudanese heads of state and senior officials for crimes of 'high treason, gross violation of this Constitution or gross misconduct in relation to state affairs'; n 61 above, para 29 and fn 30.
63 n 61 above, para 30.
64 Al-Bashir, Public - Decision on Application under Rule 103 dated 4 February 2009, para 29.
65 Meeting of the Security Council, 4 December 2009 (S/PV/6230). See also Meeting of the Security Council, 21 December (S/PV/6251); Meeting of the Security Council, 24 July 2009 (S/PV/6190); and Meeting of the Security Council, 20 March 2009 (S/PV/6096) http://www.un.org/Depts/dhl/resguide/scact2009.htm (accessed 31 March 2010).
66 'Darfur: The quest for peace, justice and reconciliation' Report of the African Union High-Level Panel on Darfur (AUPD) as presented to the African Union Peace and Security Council on 29 October 2009 (PSC/AHG/2(CCVII) paras 217 219 221-228 236-238.
67 n 66 above, paras 17, 18 & 25.
68 n 66 above, paras 206 214-217 229-235 244-245 254-255.
69 n 66 above, paras 25 246-254.
70 It could be established by an international treaty between the government of Sudan and an international organisation, eg the AU.
71 Decision on the Implementation of the Assembly Decision on the Abuse of the Principle of Universal Jurisdiction, Doc Assembly/AU/3 (XII) Assembly/AU/Dec.213 (XII), 4 February 2009, para 9 (2009).
72 Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC), Doc Assembly/AU/13(XIII), 12 July 2009, para 5.
73 n 72 above, para 8.
74 'Implications of the African Court on Human and Peoples' Rights being empowered to try international crimes such as genocide, crimes against humanity, and war crimes' opinion submitted by Coalition for an Effective African Court on Human and Peoples' Rights, Darfur Consortium, East African Law Society, International Criminal Law Centre of the Open University of Tanzania, Open Society Justice Initiative, Pan-African Lawyers Union, Southern Africa Litigation Centre, and West African Bar Association. In the absence of what would be a prohibitively costly exercise, the organisations argued that 'an extension of the jurisdiction of the Court would create a regional African exceptionalism to international criminal law and international justice, ultimately damaging the credibility and effectiveness of Africa's regional human rights system. In the space between African exceptionalism and an ineffectual regional system, an African impunity gap could become institutionalised, rendering international criminal law irrelevant to Africa. This outcome is both undesirable and avoidable'.
75 CIPEV investigated the violence that followed the much-contested results of the presidential elections in December 2007.
76 Joint Statement on the Prosecution of Post-Election Violence Perpetrators, the Kenyan Section of the International Commission of Jurists (ICJ-Kenya) and the Federation of Women Lawyers (FIDA-Kenya), 9 August 2009.
77 T Murithii The spectre of impunity and the politics of the Special Tribunal in Kenya (2009).
78 Art 105 of UNCLOS states that 'On the high seas, or in any other place outside the jurisdiction of any state, every state may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the state which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.'
79 Art 101 of UNCLOS defines piracy as '(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any state; (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; (c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b)'.
80 International Maritime Bureau. All reports of the 1MB are accessible through the 1MB Piracy Reporting Centre http://www.icc-ccs.org (accessed 31 March 2010).
81 In 2009, China and Canada were reported to be considering similar arrangements. See C Wanja 'Kenya-China to sign MOU on anti-piracy' 4 March 2009 http://www.kbc.co.ke/story.asp?ID=55949 (accessed 31 March 2010); D Lett 'Canada asks Kenya to prosecute pirates: MacKay' 21 May 2009 http://www2.canada.com/topics/news/story.html?id=1617277 (accessed 31 March 2010).
82 Merchant Shipping Act (2009) Part XVI sec 369. In contrast, under art 6(4) of SUA, territorial or at the very least a strong nexus is required for a state party to establish jurisdiction. This is mirrored in the United States Code, para 18.
83 n 78 above.
84 Magistrates Court Act, ch 10 (2007) sec 3(2).
85 Sec 60 Kenya Constitution (2008).
86 This was the first case of its kind in the Kenyan courts following the transfer of 10 suspected pirates to the Kenyan authorities for prosecution by the United States. The Republic of Kenya v Hassan Mohamad Hassan & 9 Others (2006) Criminal Case 434 of 2006 (Chief Magistrate Ct Kenya). See also Hassan M Ahmed v Republic of Kenya (2009) in the High Court of Kenya at Mombasa, Criminal Appeals 198, 199, 201, 203, 204, 205, 206 & 207 of 2006 of CM's Court at Mombasa (Justice F Azangalala) 12 May 2009.
87 Hassan (n 86 above) 10-11.
88 As above.
89 See eg KC Randall 'Universal jurisdiction: National courts and the prosecution of serious crimes under international law' (2005) 99 American journal of International Law 293 793 (book review) (arguing that '[p]iracy's mere occurrence on the high seas thus does not alone subject the offence to universal jurisdiction'); BS Brown 'The evolving concept of universal jurisdiction' (2001) 35 New England Law Review 383 392-393.
90 Sec 77(4) of the Constitution of Kenya (1998) provides: 'No person shall be held to be guilty of a criminal offence on account of an act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for such a criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed.'
91 See 'Kenyan Foreign Minister shed light on US-Kenya piracy agreement' Turkish Weekly 28 January 2009 http://www.turkishweekly.net/news/63755/kenyan-foreign-minister-shed-light-on-u-s-kenya-piracy-agreement-.html (accessed 31 March 2010).
92 US Ambassador to Kenya 'Speech to the Kenya Chapter of the International Commission of Jurists' 6 December 2006 http://nairobiembassy.gov/speech_20061208.html (accessed 31 March 2010).
93 This position has been supported by the Dutch, Russia and Germany. See 'Verhagen: International problem of piracy demands international action' http://www.netherlandsmission.org/article.asp?articleref=AR00000707EN (accessed 31 March 2010).
94 Senegal amended its Constitution (art 9) and Code of Criminal Procedure to allow retrospective prosecution of Habré. Para 3 in art 9 of the Constitution of Senegal now allows courts in Senegal to prosecute crimes committed in the past and in foreign states, mentioning genocide, war crimes and crimes against humanity. See Aptel & Mwangi (n 14 above).
95 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 AU to recommend 'the competent jurisdiction' for his trial. On 2 July 2006, the AU 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.
96 In Chad, victims have filed criminal complaints against him for crimes of torture, murder, and 'disappearance' against former agents of his Directorate of Documentation and Security (DDS).
97 Case Concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Request for the Indication of Provisional Measures, Order of 28 May 2009, ICJ General List 144.; UN Committee against Torture, 36th session 'Decision of the Committee against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment' Communication 181/2001 Senegal (CAT/C/36/D/181/2001 (Jurisprudence)) 19 May 2006. See also Human Rights Watch 'Chronology of the Habré case' http://www.hrw.org/fr/news/2009/02/12/chronology-habr-case (accessed 31 March 2010).
98 In the matter of Michelot Yogogombaye v The Republic of Senegal Application 001/2008, African Court on Human and Peoples' Rights, Judgment 15 December 2009.
99 The case is instructive in its jurisdictional limitations over complaints brought by individuals or NGOs. For a case to be heard, the respondent state must give its consent. With only Malawi and Burkina Faso having filed the necessary declarations to this effect, it may be a while before the Court is provided with another opportunity to test its judicial muscle.
100 As above. See also CB Murungu 'Judgment in the first case before the African Court on Human and Peoples' Rights: A missed opportunity or mockery of international law in Africa?' SSRN 21 December 2009 http://ssrn.com/abstract=1526539 (accessed 31 March 2010).
101 R Adjovi 'Questionable precedent: The first ruling by the African Court on Human and Peoples' Rights' jurist Commentary 21 December 2009 http://jurist.law.pitt.edu/forumy/2009/12/questionable-precedent-first-ruling-by.php (accessed 31 March 2010).
102 J Terzief 'African Rights Court's disappointing first decision' World Politics Review 21 December 2009 http://www.worldpoliticsreview.com/blog/show/4848 (accessed 31 March 2010). In relation to constitutional amendments in Senegal that address immunity of former heads of state and retrospective prosecution of Habré, see also Aptel & Mwangi (n 14 above).
103 The African Union-European Union Report on the Principle of Universal Jurisdiction, Council of European Union, 8671/1/09/Rev 1, Brussels, 16 April 2009. Joint meetings of the AU and the European Union were held in 2008, and a joint advisory technical group was established to advise the two regional organisations.
104 See African Union Summary Report of the Working Croup on the Draft Single Instrument Relating to the Merger of the African Court on Human and Peoples' Rights and the Court of Justice of the African Union, UA/EXP/Fusion.Cours/Rpt.1.