Developments in international criminal justice in Africa during 2010

Wambui Mwangi

Legal Officer, United Nations, New York, USA

SUMMARY

2010 was a significant year in the development of international criminal jurisprudence in Africa. The continent is approaching the closure of two of its greatest champions in this area of international law - the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL). The article provides an overview of the ICTR's successor, the Residual Mechanism, as well as the complexities of the transition. With regard to the SCSL, a brief analysis is given of the Charles Taylor trial and the contribution of its 'infamous' witnesses. In relation to the International Criminal Court, the Review Conference and the Situations in the Democratic Republic of Congo, Darfur, Sudan and Kenya dominate the discussion, which focuses primarily on the enforcement of ICC warrants of arrest, the amendments to the Rome Statute and the practical application of the principle of complementarity. Developments related to the international community's responsibility to combat piracy off the coast of Somalia are also reviewed.

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* LLB (Bristol), LLM (Liverpool), Barrister-in-Law (England & Wales); wambui.mwangi@ gmail.com. The views expressed are personal to the author and do not necessarily reflect those of the United Nations or of any other particular organisation.
1 The Statute of the International Criminal Court was adopted in Rome in July 1998 (often referred to as the '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, since June 2010, also the crime of aggression.
2 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. 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).
³ The International Criminal Tribunal for Rwanda was established pursuant to Security Council Resolution 955 (1994) of 8 November 1994.
4 For a comprehensive examination of the judicial developments at the ICTR, see K Margetts & P Hayden 'Current developments at the ad hoc international criminal tribunals' (2010) 8 Journal of International Criminal justice 649-693; K Margetts & K Kappos 'Current developments at the ad hoc international criminal tribunals' (2010) 8 journal of International Criminal justice 1333-1380; and K Margetts & K Kappos 'Current developments at the ad hoc international criminal tribunals' (2011) 9 journal of International Criminal justice 481-518.
5 Security Council Report on the completion strategy of the International Criminal Tribunal for Rwanda 5 November 2010, UN Doc S/2010/574) para 34.
6 n 5 above, para 27.
7 n 5 above, para 21. Idelphonse Nizeyimana was also detained and awaiting trial in 2010. His trial commenced on 17 January 2011, http://www.unictr.org/Portals/0/Case/English/Nizeyimana/minutes/2011/01-110117.pdf (accessed 31 March 2011).
8 Prosecutor v jean-Bosco Uwinkindi Case ICTR-2001-75-I, Prosecutor's request for the referral of the case of Jean-Bosco Uwinkindi to Rwanda pursuant to Rule 11 bis of the Tribunal's Rules of Procedure and Evidence, 4 November 2010.
⁹ See Uwinkindi Case ICTR-2001-75-R11bis; Human Rights Watch: Request for leave to appear as amicus curiae pursuant to Rule 74 of the ICTR Rules of Procedure and Evidence, 3 December 2010; Uwinkindi Case ICTR-2001-75-R11 bis, Invitation to the government of Rwanda to make submissions as amicus curiae, pursuant to Rule 74 of the ICTR Rules of Procedure and Evidence, on the Prosecution's 11 bis motion, 18 January 2011; Uwinkindi, Case ICTR-2001-75-R11 bis, Request for permission to file an amicus curiae brief by the International Criminal Defence Attorneys Association (ICDAA), concerning the Prosecutor's request for referral of the case of Jean-Bosco Uwinkindi to Rwanda pursuant to Rule 11 bis of the Rules (Rule 74 of the Rules of Procedure and Evidence) 21 January 2011.
¹⁰ See Prosecutor v Fulgence Kayishema Case ICTR-01-67-R11 bis, Prosecutor's Request for the Referral of the Case of Fulgence Kayishema to Rwanda Pursuant to Rule 11 bis of the Tribunal's Rules of Procedure and Evidence 4 November 2010; Prosecutor v Charles Sikubwabo Case ICTR-95-1D-R11 bis, Prosecutor's Request for the Referral of the Case of Charles Sikubwabo to Rwanda Pursuant to Rule 11 bis of the Tribunal's Rules of Procedure and Evidence, 4 November 2010.
¹¹ Security Council Resolution 1503 of 28 August 2003, paras 6 & 7.
12 For a discussion on the status of the ICTR's completion strategy in 2009, see C Aptel & W Mwangi 'Developments in international criminal justice in Africa during 2009' (2010) 10 African Human Rights Law journal 267-268.         [ Links ]
¹³ See Security Council Resolution 1966 of 22 December 2010. For purposes of clarity, it is important to distinguish the functions of the ICTR Residual Mechanism from completion strategy and subsequent legacy issues. The Residual Mechanism will carry out the ICTR's functions that will persist after the ICTR has been formally terminated, such as the enforcement of sentences and issues relating to protected witnesses. The completion strategy refers to the tasks that the ICTR must complete prior to its closure, such as the conclusion of trials. These are long-term projects continuing the ICTR's previous outreach functions and include the management and preservation of archives.
¹⁴ Security Council Report of the Secretary-General on the administrative and budgetary aspects of the options for possible locations for the archives of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda and the seat of the residual mechanism(s) for the Tribunals of 21 May 2009 (S/2009/258).
15 n 14 above, sec V.
16 n 14 above, sec VI.
17 n 14 above, secs 12-14, 22, 30-35 & 43.
18 n 14 above, sec VII.
19 n 14 above, secs 11, 18-19, 23, 42 & sec VI.B.
²⁰ See Prosecutor v Michel Bagaragaza Case ICTR-2005-86-11 bis, Prosecutor's Request for Referral of the Indictment to the Kingdom of Norway, 15 February 2006; Prosecutor v Fulgence Kayishema Case ICTR-01-67-R11 bis, Prosecutor's Request for the Referral of the Case of Fulgence Kayishema to Rwanda Pursuant to Rule 11 bis of the Tribunal's Rules of Procedure and Evidence, 11 June 2007; Prosecutor v Yussuf Munyakazi Case ICTR-97-36-R11 bis, Prosecutor's Request for the Referral of the Case of Yussuf Munyakazi to Rwanda Pursuant to Rule 11 bis of the Tribunal's Rules of Procedure and Evidence, 7 September 2007; Prosecutor v Gaspard Kanyarukiga Case ICTR-2002-78-R11 bis, Prosecutor's Request for the Referral of the Case of Gaspard Kanyarukiga to Rwanda Pursuant to Rule 11 bis of the Tribunal's Rules of Procedure and Evidence, 7 September 2007; Prosecutor v Ildephonse Hategekimana Case ICTR-00-55B-R11 bis, Prosecutor's Request for the Referral of the Case of Ildephonse Hategekimana to Rwanda Pursuant to Rule 11 bis of the Tribunal's Rules of Procedure and Evidence, 7 September 2007.
²¹ Bagaragaza, Decision on Rule 11 bis Appeal, 30 August 2006; Munyakazi, Decision on the Prosecution's Appeal Against Decision on Referral Under Rule 11 bis (AC), 8 October 2008; Kanyarukiga, Decision on the Prosecution's Appeal Against Decision on Referral Under Rule 11 bis (AC), 30 October 2008; Hategekimana, Decision on the Prosecution's Appeal Against Decision on Referral Under Rule 11 bis (AC), 4 December 2008; and Kayishema, Decision on the Prosecutor's Request for Referral of the Case to the Republic of Rwanda (TC), 16 December 2008.
22 Eg, in June 2010, the Security Council took note of the ICTR Prosecutor's report concerning Kenya's lack of co-operation in the case of the ICTR fugitive Felicien Kabuga. See also Security Council Resolution 1963 (2010) of 29 June 2010 (S/RES/1963 (2010)).
23For the development of 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; and Aptel & Mwangi (n 12 above) 269-270.
²⁴ Prosecutor v Taylor Case SCSL-03-01-T, Trial Transcript 5, 9-10 August 2010.
²⁵ Issa Sesay is the former interim leader of the Revolutionary United Front (RUF) rebel group. He was convicted and sentenced to 52 years' imprisonment by the SCSL for war crimes and crimes against humanity. Further to an enforcement of sentence agreement between the SCSL and Rwanda, he is currently serving his sentence in Kigali.
26 Taylor, Decision on Defence Motion to Exclude Custodial Statements of Issa Sesay, 12 August 2010.
27 Taylor, Trial Transcript, 13 August 2010 62 (22-28), citing Taylor, Decision on prosecution motion in relation to the applicable legal standards governing the use and admission of documents by the Prosecution during cross-examination of 30 November 2009.
28 Taylor, Trial Transcript, 16-26 August 2010. Foday Sankoh was the former leader of the Revolutionary United Front (RUF). He was indicted by the SCSL on counts of war crimes and crimes against humanity. Sankoh died of natural causes whilst in custody on 29 July 2003. The SCSL prosecutor withdrew the indictment on 3 December 2003. For further information, visit the Special Court for Sierra Leone website http://www.sc-sl.org/CASES/FodaySankoh/tabid/187/Default.aspx (accessed 31 March 2011).
²⁹ See General Assembly Request for a subvention to the Special Court for Sierra Leone: Report of the Secretary-General of 11 November 2010 (A/65/570); General Assembly, Press Release 'Fifth Committee takes up first performance report for 2010-2011 Budget Cycle - Increased Regular Budget Funding for Sierra Leone Tribunal' of 13 December 2010 (GA/AB/3976).
³⁰ Security Council 'Letter dated 11 February 2011 from the Secretary-General addressed to the President of the Security Council' of 15 February 2011 (S/2011/74).
³¹ Special Court for Sierra Leone: Completion Strategy, June 2009, http://www.sc-sl.org/LinkClick.aspx?fileticket=yiUyKldb3OY%3d&tabid=176 (accessed 31 March 2011). See also Special Court for Sierra Leone Seventh Annual Report of the President of the Special Court for Sierra Leone of June 2009 to May 2010, http://www.sc-sl.org/LinkClick.aspx?fileticket=33ryoRsKMjI%3D&tabid=53 (accessed 31 March 2011).
³² UN General Assembly, 65th session Report of the International Criminal Court to the United Nations for 2009/10, 19 August 2010 (A/65/313).
³³ See ASP Doc Report of the Working Group on other amendments: The definition of the crime of aggression (ICC-ASP/8/Res.6/Anx.II) http://www.icc-cpi.int/Menus/ASP/ReviewConference/Rome+Statute+amendment+proposals.htm (accessed 31 March 2011).
³⁴ ICC Review Conference of the Rome Statute, 31 May-11 June 2010, http://www.kampala.icc-cpi.info/ (accessed 31 March 2011).
35 T Lindberg 'Aggression in the Court: The International Criminal Court's newest authority' 22 August 2010 2 http://www.foreignaffairs.com/articles/66579/tod-lindberg/aggression-in-the-court (accessed 31 March 2011).
36 For a comprehensive overview of the discussions, consultations and agreements made during the Kampala Review Conference, see the blog 'The ICC Review Conference: Kampala 2010' http://iccreviewconference.blogspot.com/ (accessed 31 March 2011).
37 The use of the listed weapons was previously included under art 8.2(b) of the Statute in cases of international armed conflict. See Report of the Working Group on other amendments: Amendment to article 8 of the Rome Statute (ICC-ASP/8/Res 9/Anx. VIII) http://www.icc-cpi.int/Menus/ASP/ReviewConference/Rome+Statute+amend ment+proposals.htm (accessed 31 March 2011).
38 HH Koh 'The Obama administration and international law' at the Annual Meeting of the American Society of International Law, 25 March 2010, http://www.state.gov/s/l/releases/remarks/139119.htm# (accessed 31 March 2011); and CNN's Amanpour 'Seeking global justice' interviewing the US Ambassador-at-Large for War Crimes Issues and the Special Advisor to the Prosecutor at the ICC, 24 March 2010, http://archives.cnn.com/TRANSCRIPTS/1003/24/ampr.01.html (accessed 31 March 2011).
39 Human Rights Watch Making Kampala Count: Advancing the Global Fight against Impunity at the ICC Review Conference (2010), http://www.hrw.org/fr/node/90282/section/2 (accessed 31 March 2011) 26.
40For warrants of arrest and charges, see 'Decision on the Prosecutor's Application for a Warrant of Arrest against Callixte Mbarushimana' 11 October 2010 (ICC-01/04-01/10-1) and 'Warrant of Arrest for Callixte Mbarushimana' 11 October 2010 (ICC-01/04-01/10-2).
⁴¹ See United Nations Administrative Tribunal Judgment 1192 2-3. See also Hiron-delle 'ICTR/Mbarushimana - File of Former UN Official Suspected of Genocide Transferred to Rwanda' 9 March 2005, http://www.hirondellenews.com/content/view/2119/1182/ (accessed 31 March 2011); and Radio Netherlands Worldwide International Justice Tribune Archive: Proceedings in Kosovo of 1 June 2001, http://www.rnw.nl/international-justice/article/proceedings-kosovo?quicktabs_1=0 (accessed 31 March 2011).
⁴² Prosecutor v Thomas Lubanga Dyilo, Redacted Decision on the Prosecution's Urgent Request for Variation of the Time Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with VWU, 8 July 2010, paras 28 & 31 (ICC-01/04-01/06-2517-Red).
43Lubanga, Transcript of 15 July 2010 17 (ICC-01/04-01/06-T-314-ENG).
44Human Rights Watch 'DR Congo: ICC-Indicted War Criminal Implicated in Assassinations of Opponents' 13 October 2010, http://www.hrw.org/en/news/2010/10/12/dr-congo-icc-indicted-war-criminal-involved-assassinations-opponents (accessed 31 March 2011).
⁴⁵ Prosecutor v Abdallah Banda Abakaer Nourain and Saleh Mohammed jerbo jamus, Summons to Appear for Abdallah Banda Abakaer Nourain, 15 June 2010 (ICC-02/05-03/09-3); Summons to Appear for Abdallah Banda Abakaer Nourain, 15 June 2010 (ICC-02/05-03/09-2).
⁴⁶ See Aptel & Mwangi (n 12 above) 278.
47 For charges, see, Nourain and jamus, Summons to Appear for Abdallah Banda Abakaer Nourain, 15 June 2010 (ICC-02/05-03/09-3); Summons to Appear for Abdallah Banda Abakaer Nourain, 15 June 2010 (ICC-02/05-03/09-2).
48Nourain and jamus 'Decision on issues related to the hearing on the confirmation of charges, 17 November 2010 (ICC-02/05-03/09); Decision on the confirmation of charges', 7 March 2011 (ICC-02/05-03/09-121-CORR-RED). The Pre-Trial Chamber confirmed the charges against the Banda and Jamus on 7 March 2011.
⁴⁹ See Nourain and jamus 'Prosecution Objection to the Continued Representation of Victims a/1646/10 and a/1647/10 by Messrs Geoffrey Nice and Rodney Dixon', 6 December 2010 (ICC-02/05-03/09). Previous applications on behalf of these groups include 'Application on behalf of Citizens' Organizations of The Sudan in relation to the Prosecutor's Applications for Arrest Warrants of 14 July 2008 and 20 November 2008' 11 January 2009 (ICC-02/05-170), in which the Pre-Trial Chamber dismissed the Application finding that the issues were unrelated to the matters before the Chamber; Decision on Application under Rule 103' 4 February 2009 (IC-02/05-185). The Appeal of the decision was also dismissed on the grounds that neither group was a party in the proceedings and therefore lacked standing. See Decision on the Application for Leave to Appeal the Decision on Application under Rule 103, 19 February 2009 (ICC-02/05-192).
⁵⁰ Nourain and jamus 'Defence application to restrain legal representatives for the victims a/1646/10 & a/1647/10 from acting in proceedings and for an order excluding the involvement of specified intermediaries' 6 December 2010 (ICC-02/05-03/09).
51Nourain and jamus 'Submission by Legal Representatives for Victims a/1646/10 and a/1647110 in light of Urgent Prosecution Objection' 7 December 2010 (ICC-02/05-03/09-115).
⁵² Prosecutor v Omar Hassan Ahmad Al Bashir Judgment on the appeal of the Prosecutor against the Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir 3 February 2010 (ICC-02/05-01/09-73) paras 30, 33 & 34-39.
⁵³ Bashir Second Decision on the Prosecution's Application for a Warrant of Arrest 12 July 2010 (ICC-02/05-01/09-94) para 43.
54African Union 'Decision on the Progress Report of the Commission on the Implementation of Decision Assembly/Au/Dec 270(Xiv) on the Second Ministerial Meeting on the Rome Statute of the International Criminal Court (ICC)' 25-27 July 2010 (Assembly/AU/Dec 296(XV).
55 Intergovernmental Authority on Development (IGAD) 'ES Statement on Chamber of the International Criminal Court' 3 August 2010, http://igad.int/index.php?option=com_content&view= article&id=234:es-statement-on-chamber-of-the-international-criminal-court&catid=61:statements&Itemid=150 (accessed 31 March 2011).
56 As above.
57 As above.
58 Institute for Security Studies 'The International Criminal Court that Africa Wants' 17 http://www.issafrica.org/uploads/Mono172.pdf (accessed 31 March 2011).
59Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir's presence in the territory of the Republic of Kenya, 27 August 2010 (ICC-02/05-01/09-107).
60 Voice of America 'Kenya Defends Bashir Visit as Necessary for Regional Peace' 29 August 2010 http://www.voanews.com/english/news/africa/Kenya-Defends-Bashir-Visit-as-Necessary-for-Regional-Peace--101753813.html (accessed 31 March 2011).
⁶¹ See CNN News 'Kenya, African Union defend Bashir visit' 31 August 2010, http://articles.cnn.com/2010-08-31/world/kenya.bashir.visit_1_al-bashir-new-consti-tution-president-mwai-kibaki?_s=PM:WORLD (accessed 31 March 2011). See also Global Security 'Kenya Defends Bashir Visit as Necessary for Regional Peace' 29 August 2010, http://www.globalsecurity.org/military/library/news/2010/08/mil-100829-voa03.htm (accessed 31 March 2011).
⁶² See Prosecutor v Bashir 'Prosecution notification of possible travel to a State Party in the case of The Prosecutor v Omar Al Bashir 22 October 2010 (ICC-02/05-01/09-116); 'Decision requesting observations from the Republic of Kenya' 25 October 2010 (ICC-02/05-01/09-117); 'Transmission of the reply from the Republic of Kenya' 29 October 2010 (ICC-02/05-01/09-119).
⁶³ See Prosecutor v Bashir, 'Prosecution notification of possible travel to a State Party in the case of The Prosecutor v Omar Al Bashir' 8 December 2010 (ICC-02/05-01/09- 122).
64CIPEV investigated the violence following the contested results of the Kenyan presidential elections in December 2007. A copy of its final report is available at http://www.communication.go.ke/media.asp?id=739 (accessed 31 March 2011). See also Aptel & Mwangi (n 12 above) 283-285.
65 Situation in Kenya, Prosecutor's Request for Authorisation of an Investigation pursuant to Article 15, 26 November 2009 (ICC-01/09-3). See also Aptel & Mwangi (n 12 above) 284.
66 Situation in Kenya, Request by Professors Max Hilaire and William A Cohen to Appear as Amicus Curiae, 11 January 2010 (ICC-01/09-8).
67 Situation in Kenya, Decision on Application to Appear as Amicus Curiae and Related Requests, 3 February 2010 (ICC-01/09-14).
68 Situation in Kenya, Decision Requesting Clarification and Additional Information, 18 February 2010 (ICC-01/09-15).
69 Situation in Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Kenya, 31 March 2010 (ICC-01/09-19).
⁷⁰ Situation in Kenya, Prosecutor's Application Pursuant to Article 58 as to Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, 15 December 2010 (ICC-01/09-31-Red) and Prosecutor's Application Pursuant to Article 58 as to William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang (ICC-01/09-30-Red), both dated 15 December 2010.
71The Standard 'Fresh plan to block Ocampo' 14 December 2010, http://www.stan-dardmedia.co.ke/InsidePage.php?id=2000024647&cid=4&ttl=Fresh%20plan%20to%20block%20Ocampo (accessed 31 March 2011).
72The International Crimes Act was gazetted on 5 June 2009. In the Kenya Gazette notice, the Act came into force on 1 January 2009, http://www.kenyalaw.org/Down-loads/Acts/The_International_Crimes_Act_2008.pdf (accessed 31 March 2011).
⁷³ DPA 'Kenyan premier dismisses move to block ICC trials' 23 December 2010 http://www.monstersandcritics.com/news/africa/news/article_1607639.php/Kenyan-premier-dismisses-move-to-block-ICC-trials (accessed 31 March 2011).
⁷⁴ Situation in Kenya, Application for Leave to Submit Observations Pursuant to Rule 103 of the Rules of Procedure and Evidence, 1 December 2010 (ICC-01/09-32-Anx-A).
75 Situation in Kenya, Decision on Victims' Participation in Proceedings Related to the Situation in the Republic of Kenya, 3 November 2011 (ICC-01/09-24). By 29 March 2010, the Victims Participation and Reparations Section had received 396 representations from individual victims and victim communities. See Situation in Kenya, Of Corrigendum to the Report on Victims' Representations (ICC-01/09-17-Conf-Exp-Corr) and Annexes 1 and 5, 29 March 2010 (ICC-01/09-17-Corr-Red).
76 Situation in Kenya, Prosecutor's Application Pursuant to Article 58 as to William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, 15 December 2010 (ICC- 01/09-30-Red).
77 Ironically, the case against Sang bears stark similarities to the ICTR Media case. See The Prosecutor v Ferdinand Nahimana, jean-Bosco Barayagwiza, Hassan Ngeze (Judgment and Sentence), ICTR-99-52-T, 3 December 2003, http://69.94.11.53/ENGLISH/cases/Ngeze/judgement/mediatoc.pdf (accessed 31 March 2011).
78 Situation in Kenya, Prosecutor's Application Pursuant to Article 58 as to Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, 15 December 2010 (ICC-01/09-31-Red).
79Witness Protection (Amendment) Bill, 2010. See also Christian Science Monitor 'Threat to Kenya's ICC witnesses: Traitors will be dealt with 'ruthlessly'' 15 December 2010, http://www.csmonitor.com/World/Africa/2010/1215/Threat-to-Kenya-s-ICC-witnesses-Traitors-will-be-dealt-with-ruthlessly (accessed 31 March 2011). United Nations Office of Drugs and Crime 'One step closer to witness protection in Kenya' 14 January 2010, http://www.unodc.org/unodc/en/frontpage/2010/January/one-step-closer-to-witness-protection-in-kenya.html (accessed 31 March 2011).
80 Security Council, Report of the Secretary-General on possible options to further the aim of prosecuting and imprisoning persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia, including, in particular, options for creating special domestic chambers possibly with international components, a regional tribunal or an international tribunal and corresponding imprisonment arrangements, taking into account the work of the Contact Group on Piracy off the Coast of Somalia, the existing practice in establishing international and mixed tribunals, and the time and resources necessary to achieve and sustain substantive results, 26 July 2010(S/2010/384).
81 See Security Council Presidential Statement, 25 August 2010 (UN Doc S/PRST/2010/16).
82 Security Council, Report of the Special Advisor to the Secretary-General on Legal Issues Related to Piracy off the Coast of Somalia, 24 January 2011 (S/2011/30).
83 n 82 above, 38-45. In his report, the Special Advisor notes that, of the 738 individuals transferred to 13 national jurisdictions for trial in the past four years, 75% were in Africa (Somalia 372; Kenya 136; Seychelles 47; Tanzania 1), with 16% (120) in Yemen. While just under half of the cases appear to have been transferred to Somalia (Somaliland and Puntland specifically), there is insufficient information about these trials, and the judicial and correctional capacities in these regions, to provide readers with an accurate analysis of their efficacy and application of international law.
84 n 82 above, 21.
85 Kenya currently accounts for over 76% of universal jurisdiction prosecutions of suspected pirates captured by other member states. Some of the challenges include the length of proceedings; the availability of witnesses; and the practical implementation of obligations contained in the piracy prosecution bilateral agreements, which include clauses on the conditions of imprisonment and treatment of prisoners.
86 See ICC 'Situation in the Libyan Arab Jamahiriya' (ICC-01 /11) http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/Situations/ICC0111/ (accessed 31 March 2011).
87 The Court of Justice of ECOWAS, in the matter of Hissêne Habré v the Republic of Senegal, 18 November 2010, judgment ECW/CCJ/JUD/06/10. In this judgment, the Court of Justice of ECOWAS held that Habré could only be tried in an 'ad hoc special tribunal of an international character'. The African Union drew up a set of proposals for discussion with the Senegalese authorities. The next review of international criminal justice will examine these proposals to set up the special tribunal and the developments in 2011 in setting up the Special Court. See also Human Rights Watch 'Senegal: Accept AU plan for Hissêne Habré case' 22 March 2011, http://www.hrw.org/fr/news/2011/03/22/senegal-accept-au-plan-hiss-ne-habr-case (accessed 31 March 2011).
88 Community Court of Justice of ECOWAS, in the matter of Godswill Mrakpor v Authority of Heads of State and Government of the ECOWAS and UNOCI, 5 January 2011 (ECW/CCJ/APP/17/10). See also African Diplomacy 'Cóte d'Ivoire: Laurent Gbagbo sues ECOWAS' 15 February 2011, http://www.africandiplomacy.com/index.php?option=com_content&view=article&id=502%3Acote-divoire-laurent-gbagbo-sues-ecowas&catid=73%3Abridge-the-gap&Itemid=55&lang=en (accessed 31 March 2011)