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African Human Rights Law Journal

On-line version ISSN 1996-2096
Print version ISSN 1609-073X

Afr. hum. rights law j. vol.12 n.1 Pretoria  2012

 

RECENT DEVELOPMENTS

 

Developments in international criminal justice in Africa during 2011

 

 

Wambui Mwangi; Tiyanjana Mphepo

Legal Officer, United Nations, New York, United States of America

 

 


SUMMARY

Africa experienced seismic political shifts in 2011 that had a significant effect on the development of international criminal justice on the continent. The year 2011 saw the finalisation of several noteworthy cases before the International Criminal Tribunal for Rwanda and the conclusion of the case against Charles Taylor before the Special Court for Sierra Leone. The International Criminal Court was also in the spotlight, because of new events - the second referral by the Security Council of a head of state before the ICC; the transfer of the former head of state of Cóte d'lvoire to the ICC; as well as existing events - a co-operation request in the ICC situation in Kenya against the background of an upcoming general election; the ongoing proceedings in the situation in the Democratic Republic of Congo and continuing complexities in the situation in Darfur. The article reviews the developments in these courts as well as the international community's response aimed at combating piracy off the coast of Somalia.


 

 

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* LLB (Bristol), LLM (Liverpool); wambui.mwangi@gmail.com. The views expressed are personal and do not necessarily reflect those of the United Nations or of any other particular organisation.
** LLB (Hons) (Malawi), LLM (Cambridge); tiyanjana@yahoo.com. The views expressed are personal and do not necessarily reflect those of the United Nations or of any other organisation.
1 Security Council Resolution 1966 (2010) adopted on 22 December 2010.
2 Théoneste Bagosora & Others v The Prosecutor Case ICTR-98-41-A; The Prosecutor v Yussuf Munyakaz/ Case ICTR-97-36A-A; Tharc/sse Muvuny/ v The Prosecutor Case ICTR-2000-55A-A; Dom/n/que Ntawukul/lyayo v The Prosecutor Case ICTR-05-82-A; Tharc/sse Renzaho v The Prosecutor Case ICTR-97-31-A; Ephrem Setako v The Prosecutor Case ICTR-04-81-A.
3 The Prosecutor v Cas/m/r B/z/mungu & Others Case ICTR-99-50-T (Government II); The Prosecutor v Nd/nd/l/y/mana & Others Case ICTR-00-56-T (M/l/tary II); The Prosecutor v Édouard Karemera & Others Case ICTR-98-44-T (Karemera); The Prosecutor v Paul/ne Ny/ramasuhuko & Others Case ICTR-98-42-T (Butare).
4 The Prosecutor v Jean-Bapt/ste Gatete Case ICTR-2000-61-T; and The Prosecutor v Grego/re Ndah/mana Case ICTR-2001-68-T.
5 Art 2 of the Transitional Arrangements, Annex 2 to Security Council Resolution 1966 (2010), (Transitional Arrangements).
6 See ICTR Status of Cases, http://www.unictr.org/Cases/StatusofCases/tabid/204/Default.aspx (accessed 30 April 2011).
7 Art 1 of the Statute of the International Residual Mechanism for Criminal Tribunals, annex to Security Council Resolution 1966 (2010). The three fugitives are Felicien Kabuga, Protais Mpiranya and Augustin Bizimana.
8 Report on the Completion Strategy of the International Criminal Tribunal for Rwanda, S/2011/731 (16 November 2011) (Completion Strategy Report) paras 19-21. In these closed-session proceedings, both the Prosecutor and lawyers for the fugitives present evidence so that it may be entered into the court record and preserved for use when the fugitives are arrested and tried. This is an innovative approach in international criminal justice.
9 Art 1 Transitional Arrangements.
10 The Prosecutor v Bernard Munyagishari Case ICTR-05-89-R11bis, Prosecutor's Request for the Referral of the Case of Bernard Munyagishari to Rwanda Pursuant to Rule 11 bis of the Rules of Procedure and Evidence, The Prosecutor v Fulgence Kayishema Case ICTR-01-67-R11bis, Prosecutor's Request for the Referral of the Case of Fulgence Kayishema to Rwanda Pursuant to Rule 11 bis of the Rules of Procedure and Evidence and The 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 Rules of Procedure and Evidence.
11 Government II (n 3 above).
12 Ten of the judges are from Africa.
13 Art 7 of the Transitional Arrangements permits the president, judges, prosecutor, registrar and staff of the Residual Mechanism to work simultaneously as president, judge, prosecutor, registrar or staff, respectively, of the ICTR or ICTY.
14 See W Mwangi 'Developments in international criminal justice in Africa during 2010' (2011) 11 Afr/can Human R/ghts Law journal 251 254-258.         [ Links ]
15 In Government II (n 3 above), four members of the interim government, Casper Bizimungu (Minister of Health), Justin Mugenzi (Minister of Trade and Industry), Jéróme Bicamumpaka (Minister of Foreign Affairs) and Prosper Mugiraneza (Minister of Civil Service); in M/l/tary II (n 3 above), Augustin Ndindiliyimana (former Chief Staff of the Gendarmer/e nat/onale), Augustin Bizimungu (former Chief of Staff of the Rwandan army), Francois-Xavier Nzuwonemeye (Commander of the Reconnaissance battalion (RECCE) of the Rwandan army during the events of 1994), and Innocent Sagahutu (the Commander of Squadron A of RECCE battalion); in Karemera (n 3 above), Edouard Karemera (First Vice-President of the MRND (le Mouvement Révolut/ona/re Nat/onalpour le Développement), member of the MRND Executive Bureau and Minister of the Interior and Communal Development for the interim government) and Matthieu Ngirumpatse (Chairperson of the MRND National Party and of the MRND Executive Bureau); and in Butare (n 3 above), Pauline Nyiramasuhuko (Minister of Women's Development).
16 Government II (n 3 above) paras 811-814.
17 M/l/tary II (n 3 above) paras 5 & 241-245.
18 Karemera (n 3 above) para 1448.
19 Butare (n 3 above) paras 5676-5678.
20 Government II (n 3 above) paras 1936-1947 & 1976-1987.
21 Karemera (n 3 above) paras 1453-1458.
22 Government II (n 3 above) paras 1948 & 1963.
23 Karemera (n 3 above) paras 1474-1490. The Trial Chamber reasoned that during a campaign to destroy, in whole or in part, a national, ethnic, racial, or religious group, a natural and foreseeable consequence of that campaign will be that soldiers and militias who participate in the destruction will resort to rapes and sexual assaults unless restricted by their superiors.
24 Butare (n 3 above) paras 6093-6094.
25 Butare (n 3 above) para 6086. In general, see paras 6074-6094.
26 Military II (n 3 above) paras 67 & 2159-2161.
27 Similarly, the Appeals Chamber reversed some of Nsengiyumva's convictions and reduced his sentence from life to 15 years' imprisonment.
28 The Prosecutor v jean Bosco Uwinkindi Case ICTR-2001-75-R11bis, Decision on Prosecutor's Request for Referral to the Republic of Rwanda (Uwinkindi Referral Decision) and Uwinkindi v The Prosecutor Case ICTR-01-75-AR11bis, Decision on Uwinkindi's Appeal Against the Referral of his Case to Rwanda and Related Motions (Uwinkindi Referral Appeal Decision). The cases that the prosecution was unable to transfer to Rwanda under Rule 11 bis are The Prosecutor v Yussuf Munyakazi Case ICTR-97-36-R11bis (Munyakazi Referral); The Prosecutor v jean-Baptiste Gatete Case ICTR-00-61-R11 bis (Gatete Referral); The ProsecutorvIdelphonse Hategekimana Case ICTR-00-55-R11 bis (Hategekimana Referral); The Prosecutor v Gaspard Kanyarukiga Case ICTR-02-78-R11bis (Kanyarukiga Referral); and The Prosecutor v Clement Kayishema Case ICTR-95-01-R11 b/s (Kayishema Referral).
29 The Prosecutor v Wenceslas Munyeshyaka Case ICTR-05-87-R11bis, Decision on Prosecutor's Request for Referral of Wenceslas Munyeshyaka's Indictment to France and The Prosecutor v Laurent Bucy/baruta Case ICTR-05-81-R11bis, Decision on Prosecutor's Request for Referral of Laurent Bucyibaruta's Indictment to France. The referral of the case of The Prosecutor v Michel Bagaragaza Case ICTR-05-86-R11 bis was revoked at the request of the Prosecutor due to jurisdictional concerns. For a previous discussion on referrals, see C Aptel & W Mwangi 'Developments in international criminal justice in Africa during 2008' (2009) 9 African Human Rights Law journal 274 287.
30 Uwinkindi Referral Decision (n 28 above) paras 49 & 51.
31 Paras 177-196.
32 Paras 128-132.
33 Paras 109-110.
34 Paras 136-146.
35 Paras 159-160.
36 Paras 95-96.
37 Para 131.
38 Paras 209 & 212-213. The Appeals Chamber strengthened the monitoring system by instructing the African Commission to submit monthly reports (instead of reporting every three months as requested by the Referral Chamber) and clarifying that the accused shall have access to the monitoring reports unless the President of the ICTR or the Residual Mechanism determines that there is good cause to limit such access: Uwinkindi Referral Appeal Decision (n 28 above) paras 52 & 85.
39 Munyakazi Referral, Decision on the Prosecutor's Appeal Against Decision on Referral under Rule 11 bis, 8 October 2008, para 30; Kanyarukiga Referral, Decision on the Prosecutor's Appeal Against Decision on Referral Under Rule 11 bis, 30 October 2008, para 38; Hategekimana Referral, Decision on the Prosecution's Appeal Against Decision on Referral Under Rule 11 bis (AC), 4 December 2008, para 29.
40 Rwanda would be under an obligation to comply with a request to defer to the ICTR or the Residual Mechanism, pursuant to art 28 of the ICTR Statute and art 28 of the Statute of the Mechanism, respectively.
41 Uwinkindi Referral Decision (n 28 above) para 217.
42 Uwinkindi Referral Appeal Decision (n 28 above) para 81.
43 Ahorugeze vSweden 37075/09 ECHR (27 October 2011) (Ahorugeze judgment).
44 Ahorugeze judgment (n 43 above) para 127.
45 Annual Report of the International Criminal Tribunal for Rwanda, A/66/209-S/2011/472 (29 July 2011) para 54.
46 Completion Strategy Report, para 67.
47 W Mwangi 'The International Criminal Tribunal for Rwanda: Reconciling the acquitted' in CL Srivam & S Pillay (eds) Peace vs justice: The dilemmas of transitional justice in Africa (2010).
48 Prosecutor v Charles Ghankay Taylor, SCSL-03-1-T (Taylor). The trial judgment was delivered on 26 April 2012. Taylor was found guilty of planning, aiding and abetting the commission of war crimes and crimes against humanity, http://www.sc-sl.org/LinkClick.aspx?fileticket=86r0nQUtK08%3d&tabid=53 (accessed 30 April 2012). At the time of writing, the full written judgment had not yet been issued. The judgment will be reviewed in the next update. Apart from the Taylor trial, the only other judicial proceedings at the Special Court concerned contempt of court charges against five people accused of interfering with prosecution witnesses. The contempt of court proceedings will take place in 2012.
49 Taylor Defence Opening Statement 24290-24294 & 24318-24319.
50 Taylor, Decision on the Urgent and Public with Annexes A-C Defence Motion to re-open its case in order to seek admission of documents relating to the relationship between the United States government and the Prosecution of Charles Taylor, 27 January 2011. The cables, dated 10 March 2009 and 15 April 2009, were published respectively at http://www.guardian.co.uk/world/us-embassy-cables-documents/196077 and http://www.guardian.co.uk/world/us-embassy-cables-documents/202468.
51 Taylor, Defence Motion to re-open its case in order to seek admission of documents relating to the relationship between the United States government and the prosecution of Charles Taylor, 10 January 2011, 3. The defence argued that the indictment and trial of Mr Taylor was an extension of the US foreign policy interests in West Africa.
52 Taylor, Trial Transcript, 9 March 2011 490389-490390.
53 Taylor (n 52 above) 490396.
54 Taylor, Trial Transcript, 11 March 2011 49572-49573.
55 Prosecutor v Norman SCSL-04-14-AR72(E)-34, Decision on Preliminary Motion based on Lack of Jurisdiction 13 March 2004, and Prosecutor vSesay & Others SCSL-04-15-T-363, Decision on Sesay - Motion Seeking Disclosure of the Relationship Between Government Agencies of the United States of America and the Office of the Prosecutor 2 May 2005.
56 Art 1(1) of the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Residual Special Court for Sierra Leone (RSCSL Agreement). The Statute of the Residual Special Court for Sierra Leone is annexed to and forms part of the Agreement.
57 Art 1(2) RSCSL Agreement.
58 Arts 1 & 7 RSCSL Statute.
59 Art 6 RSCSL Agreement.
60 Art 7(3) RSCSL Agreement.
61 See, in general, UN General Assembly, 66th session Report of the International Criminal Court to the United Nations for 2009/10 19 August 2011 (A/66/309).
62 ICC-02/04.
63 ICC-01/05.
64 The judgment in the Lubanga case was issued on 14 March 2012. A chronological analysis of the case and the judgment will therefore be examined in 2013.
65 The Prosecutor v Germa/n Katanga and Math/eu Ngudjolo Chu/ (ICC-01/04-01/07).
66 The Prosecutor v Bosco Ntanganda (ICC-01/04-02/06).
67 See Mwangi (n 14 above) 265; 'ICTR/Mbarushimana - File of former UN official suspected of genocide transferred to Rwanda' Hirondelle 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 2 March 2012). See also United Nations Administrative Tribunal Judgment 1192 (Mbarushimana) of 30 September 2004.
68 Information from the French authorities in relation to the surrender of Callixte Mbarushimana, Mbarushimana (ICC-01/04-01/10-34) 14 January 2011.
69 Decision on the Confirmation of Charges, Mbarushimana (ICC-01/04-01/10-465-Red), Pre-Trial Chamber I, 16 December 2011 (Mbarushimana Confirmation of Charges Decision) paras 2-5.
70 See Decision on the Defence Challenge to the Jurisdiction of the Court, Mbarushimana (ICC-01/04-01/10-451), Pre-Trial Chamber 1, 26 October 2011 (Mbarushimana jurisdictional Challenge Decision) 39, 42-45 & 50; Decision on the 'Defence Request for Interim Release' Mbarushimana (ICC-01/04-01/10-163), Pre-Trial Chamber I, 19 May 2011; Decision on the 'Second Defence Request for Interim Release' Mbarushimana (ICC-01/04-01/10-319), Pre-Trial Chamber I, 28 July 2011; and Review of Detention and Decision on the 'Third Defence Request for Interim Release' Mbarushimana (ICC-01/04-01/10-428), Pre-Trial Chamber I, 16 August 2011.
71 Mbarush/mana Jurisdictional Challenge Decision (n 70 above) paras 39, 42-45 & 50.
72 Decision on the 138 applications for victims' participation in the proceedings Mbarush/mana (ICC-01/04-01/10-351), Pre-Trial Chamber I, 11 August 2011.
73 Mbarush/mana Confirmation of Charges Decision (n 69 above) para 32.
74 Mbarush/mana Confirmation of Charges Decision (n 69 above).
75 Mbarush/mana Confirmation of Charges Decision (n 69 above) paras 79-85.
76 Paras 108-110.
77 Para 113.
78 Paras 108-239. For ease of reference, see n 69 above fn 638.
79 Mbarushimana Confirmation of Charges Decision (n 69 above) para 242.
80 The ICC Elements of Crimes, Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First session, New York, 3-10 September 2002 (United Nations publication, Sales E.03.V.2 and corrigendum), part II.B. The Elements of Crimes as adopted at the 2010 Review Conference may also be found in the Official Records of the Review Conference of the Rome Statute of the International Criminal Court, Kampala, 31 May -11 June 2010 (International Criminal Court publication, RC/11).
81 Mbarushimana Confirmation of Charges Decision (n 69 above) paras 244-267.
82 Paras 264-266.
83 Mbarushimana Confirmation of Charges Decision (n 69 above) Dissenting Opinion paras 29-30 & 33-38.
84 Mbarushimana Confirmation of Charges Decision (n 69 above) paras 2-8.
85 Paras 9-20.
86 Paras 21-26.
87 Paras 27-38.
88 Paras 268-290.
89 Paras 282, 285 & 287.
90 Para 291.
91 Paras 292-340.
92 Paras 293-303.
93 Paras 304-315.
94 Paras 316-320.
95 Paras 321-339.
96 Mbarushimana Confirmation of Charges Decision (n 69 above) Dissenting Opinion, paras 40-47.
97 Paras 48-63.
98 Para 49.
99 Paras 66-79.
100 Paras 80-101.
101 Paras 102-114.
102 Paras 116-133.
103 Prosecution's Appeal against 'Decision on the Confirmation of Charges' and Request for Suspensive Effect in the alternative, Prosecution's Appeal against 'Decision on the Prosectution's request for stay of order to release Callixte Mbarushimana', Mbarush/mana (ICC-01/04-01/10-470), Pre-Trial Chamber I, 19 December 2011.
104 Decision on the appeal of the Prosecutor of 19 December 2011 against the 'Decision on the confirmation of the charges' and, in the alternative, against the 'Decision on the Prosecution's Request for stay of order to release Callixte Mbarushimana' and on the victims' request for participation, Mbarush/mana (ICC-01/04-01/10-476), Appeals Chamber, 20 December 2011.
105 Reasons for 'Decision on the appeal of the Prosecutor' of 19 December 2011 against the 'Decision on the confirmation of the charges' and, in the alternative, against the 'Decision on the Prosecution's Request for stay of order to release Callixte Mbarushimana' and on the victims' request for participation of 20 December 2011, Mbarush/mana (ICC-01/04-01/10-483) Appeals Chamber, 24 January 2012.
106 Callixte Mbarushimana is released from the ICC custody, ICC press release, 23 December 2011 http://www.icc-cpi.int/NR/exeres/4D4FA434-3060-4EF7-8E5C-AD5C53540E64.htm (accessed 2 March 2012).
107 Decision on the Confirmation of Charges, Abu Garda (ICC-02/-5-02/09-243-Red) Pre-Trial Chamber I, 8 February 2010. As a result of insufficient evidence, on 8 February 2010, the Pre-Trial Chamber, without prejudice for the prosecution, declined to confirm the charges against Bahar Idriss Abu Garda in the Situation in Darfur. However, the accused in that case was not physically present before the Court.
108 'Rwanda: State to file genocide charges against Mbarushimana' The New T/mes 27 December 2011 http://allafrica.com/stories/printable/201112270738.html (accessed 3 March 2012).
109 See Mbarush/mana Confirmation of Charges Decision (n 69 above) para 5; 'Rwanda: Ignace Murwanashyaka and Straton Musoni tried' BBC 4 May 2011 http://www.bbc.co.uk/news/world-africa-13275795 (accessed 3 March 2011); Amnesty International '"Germany: Briefing to the Committee Against Torture' http://www.amnesty.org/en/library/asset/EUR23/002/2011/en/e27f73a1-dc3c-44ac-af5d-9cd1d58635f0Aeur230022011en.pdf (accessed 3 March 2012); Human Rights Watch 'Germany: Groundbreaking Trial for Congo War Crimes' 2 May 2011 http://www.hrw.org/news/2011/05/02/germany-groundbreaking-trial-congo-war-crimes (accessed 3 March 2012).
110 Where the charges include genocide, as in the Bash/r case, African countries that are parties to the Convention on the Prevention and Punishment of the Crime of Genocide have an additional obligation, under art 1 of the Convention, to punish genocide. See also Case Concern/ng the Appl/cat/on of the Convent/on on the Prevent/on and Pun/shment of the Cr/me of Genoc/de (Bosn/a and Herzegov/na v Serb/a and Montenegro) ICJ (26 February 2007) ICJ Reports 43.
111 See Arrest Warrant of 11 April 2000 (Democrat/c Republ/c of Congo v Belg/um), ICJ judgment of 14 February 2002, paras 51-58. In this case, the ICJ, /n ob/ter d/cta, observed that a foreign minister who enjoys immunity before national courts may be subject to criminal proceedings before certain international courts, including the ICC, but stopped short of stating that the foreign minister could be arrested by other states (para 61). In the Taylor trial, the SCSL Appeals Chamber went further, holding that Charles Taylor did not enjoy immunity from prosecution before the SCSL and that any processes issued in the course of, or for the purposes of, the proceedings against him could not be vitiated by claims of immunity (see Taylor, Decision on Immunity from Jurisdiction' 31 May 2004). However, it is arguable that this SCSL decision, the prosecution of Slobodan Milosevic by the International Tribunal for the Former Yugoslavia, and the ICC indictment of Muammar Gaddafi and Laurent Gbagbo do not constitute sufficient practice to support a definitive conclusion that immunity is waived automatically, nor that under customary international law, a head of state does not enjoy immunity from arrest by another state in the event that an international criminal tribunal such as the ICC issues a warrant for their arrest.
112 Pursuant to art 23(2) of the Constitutive Act of the African Union, any member state that fails to comply with the decisions and policies of the AU may be subject to sanctions.
113 Decision on the Report of the Commission on the Meeting of the African States Parties to the Rome Statute of the International Criminal Court, Assembly/AU/Dec 245(XIII) adopted by the 13th ordinary session of the Assembly of Heads of State and Government.
114 Note Verbale, Annex 4 to ICC document ICC-02/05-01/09-136-Conf and Note Verbale, Annex 2 to ICC document ICC-02/05-01/09-131 Conf. Art 97 states in part that '[w]here a state party receives a request under this Part in relation to which it identifies problems which may impede or prevent the execution of the request, that state shall consult with the Court without delay to resolve the matter'.
115 'Les Observations de la Republique du Tchad,' annex 1 to 'Rapport du Greffe relative aux observations de la Republic du Tchad', ICC document ICC-02/05-01/09-135. Art 87.7 provides that '[w]here a state party fails to comply with a request to co-operate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council'.
116 'Observations from the Republic of Malawi', confidential annex 2 to the Registry's 'Transmission of the observations from the Republic of Malawi', ICC document ICC-02/05-01/09-138. The relevant part of the observations is reproduced in Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Co-operation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, Bashir (ICC-02/05-01/09) Pre-Trial Chamber I, 12 December 2011 (Malawi Decision).
117 Malawi Decision (n 116 above) and Le Procurer c. Omar Hassan Ahmad Al Bashir, Decision rendue en application de l'article 87-7 du Statut de Rome concernant le refus de la Republique du Tchad d'acceder aux demandes de cooperation delivrees par la Cour concernant l'arrestation et la remise d'Omar Hassan Ahmad Al Bashir, Bashir, (ICC-02/05-01/09) La Chamber Preliminaire I, 13 December 2011, (Chad Decision). The discussion in this paper is based on the Malawi Decision because it contains more detailed reasoning and was applied in the Chad Decision.
118 Malawi Decision (n 116 above) para 11. Art 119.1 provides that any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court.
119 Malawi Decision (n 116 above) para 43.
120 Malawi Decision (n 116 above) para 44.
121 For a discussion of the effect of the referral, see D Akande 'The legal nature of Security Council referrals to the ICC and its impact on Al Bashir's immunities' (2009) 7 journal of International Criminal Justice 333-352 and, on Bashir's immunity generally, see P Gaeta 'Does President Bashir enjoy immunity from arrest?' (2009) 7 ]ournal of International Criminal Justice 315.
122 Operative para 2 of Resolution 1593 (2005) reads: 'Dec/des that the government of Sudan and all other parties to the conflict in Darfur, shall co-operate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognising that states not party to the Rome Statute have no obligation under the Statute, urges all states and concerned regional and other international organisations to co-operate fully.'
123 Art 103 provides that '[i]n the event of a conflict between the obligations of the members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail'. But this would not have an effect on obligations under customary international law.
124 See D Akande 'ICC issues detailed decision on Bashir's immunity ... at long last ... but gets the law wrong' 15 December 2011 http://www.ejiltalk.org/icc-issues-detailed-decision-on-bashir%e2%80%99s-immunity-at-long-last-but-gets-the-law-wrong/ (accessed 7 May 2012), D Jacobs 'A sad homage to Antonio Cassese: The ICC's confused pronouncements on state compliance and head of state immunity' 15 December 2011 http://dovjacobs.blogspot.com/2011/12/sad-hommage-to-antonio-cassese-iccs.html (accessed 7 May 2012) and W Schabas 'Obama, Medvedev and Hu Jintao may be prosecuted by International Criminal Court, Pre-Trial Chamber concludes' 15 December 2011 http://
125 This is a continuing problem as Bashir might visit Malawi again for the AU Summit in June 2012.
126 A treaty does not create either obligations or rights for a third state without its consent: art 34 of the Vienna Convention on the Law of Treaties, 1969.
127 Art 98(1) of the Rome Statute reads: 'The Court may not proceed with a request for surrender or assistance which would require the requested state to act inconsistently with its obligations under international law with respect to the state or diplomatic immunity of a person or property of a third state, unless the Court can first obtain the co-operation of that third state for the waiver of the immunity.'
128 Joint Submission by the Office of the Prosecutor and the Defence Regarding the Contested Issues at the Trial of the Accused Persons, Nourain & Jamus (ICC- 02/05-03/09-148) 16 May 2011, paras 3-4.
129 Joint Submission by the Office of the Prosecutor and the Defence (n 128 above) para 4.
130 The DDPD is the culmination of two and half years of negotiations, dialogue and consultations with the major parties to the Darfur conflict, all relevant stakeholders and international partners. It is supported by the African Union and the Arab League. The DDPD can be accessed at http://unamid.unmissions.org/Portals/UNAMID/DDPD%20English.pdf.
131 DDPD (n 130 above) art 59.
132 As above.
133 As above.
134 As above.
135 DDPD (n 130 above) art 56.
136 'Darfur: The quest for peace, justice and reconciliation' Report of the African Union High-Level Panel on Darfur, (AUDP) as presented to the African Union Peace and Security Council on 29 October 2009, PSC/AHG/2(CCVII). See also C Aptel & W Mwangi 'Developments in international criminal justice in Africa during 2009 (2010) 10 African Human Rights Law Journal 280.
137 UN Security Council 'Resolution 1970 (2011)' (referral of the situation in Libya to the ICC) 26 February 2011 (S/RES/1970 (2011)).
138 Prosecutor's Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi (ICC-10/11 -01/11 -4-Red), 16 May 2011 (Gaddafi et al Prosecutor's Application).
139 Decision on the 'Prosecutor's Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi' Gaddafiet al 27 June 2011 (Gaddafi et al Decision on the Prosecution's Application) (ICC-01/11-12).
140 Gaddafi et al Decision on the Prosecution's Application (n 139 above) paras 6-10.
141 Paras 17-24.
142 Paras 25-35.
143 Paras 36-41.
144 Paras 42-65.
145 Gaddafi (n 139 above) fn 134 for ease of reference.
146 Gaddafi (n 139 above) paras 66-83.
147 Paras 66-71 & 84-90.
148 Paras 90-100.
149 Warrant of Arrest for Muammar Mohammed Abu Minyar Gaddafi Gaddafi et al 27 June 2011 (ICC-01/11-13); Warrant of Arrest for Saif Al-Islam Gaddafi Gaddafi et al 27 June 2011 (ICC-01/11-14; Warrant of Arrest AbduHah Al-Senussi Gaddafi et al 27 June 2011 (ICC-01/11-15).
150 'Gaddafi killed in hometown, Libya eyes future' Reuters 20 October 2011 http://www.reuters.com/article/2011/10/20/us-libya-idUSTRE79F1FK20111020 (accessed 21 March 2012); 'Muammar Gaddafi killed as Sirte falls' Al-Jazeera 20 October 2011 http://www.aljazeera.com/news/africa/2011/10/20111020111520869621.html (accessed 21 March 2012).
151 'Gaddafi's son Saif al-Islam captured in Libya' BBC 19 November 2011 http://www.bbc.co.uk/news/world-middle-east-15804299 (accessed 21 March 2012).
152 United Nations 'Statement by Ms Patricia O'Brien Under-Secretary-General for Legal Affairs The Legal Counsel at the 29th Annual Seminar for Diplomats on International Humanitarian Law' 14 March 2012, 10. (OLA IHL statement) http://untreaty.un.org/ola/media/info_from_lc/POB%20Statement%2029th%20NYU-ICRC%20seminar.pdf (accessed 2 April 2012).
153 Human Rights Watch 'Libya: Surrender Saif Al-Islam Gaddafi to ICC' 19 November 2011 http://www.hrw.org/news/2011/11/19/libya-surrender-saif-al-islam-gaddafi-icc (accessed 21 March 2012).
154 OLA IHL statement (n 152 above) 10.
155 UN Security Council 'Resolution 1970' 26 February 2011 (S/RES/1970 (2011) and 'Resolution 1973' 17 March 2011 (S/RES/1973 (2011). See also, United Nations 'Current legal issues facing the United Nations' Statement by Ms Patricia O'Brien, Under-Secretary-General for Legal Affairs The Legal Counsel 7 March 2012, 9-10 http://untreaty.un.org/ola/media/info_from_lc/POB%20Columbia%20Law% 20School%20030712.pdf (accessed 2 April 2012) and P O'Brien 'The United Nations and the responsibility to protect': Remarks made at the 'Military Intervention and the Law of Peace' panel at the 106th annual meeting of the American Society of International Law' 5 April 2012 http://www.intlawgrrls.com/2012/04/united-nations-responsibility-to.html (accessed 5 April 2012). Other discussions about the Libyan intervention by the Legal Counsel can also be found here 'Information and Speeches from the Legal Counsel of the United Nations' http://untreaty.un.org/ola/legal_counsel1.aspx (accessed 2 April 2012). For discussions on Libya and the use of the doctrine of responsibility to protect, selectively see: Council on Foreign Relations 'Libya and the Responsibility to Protect' 24 March 2011 http://www.cfr.org/libya/libya-responsibility-protect/p24480 http://www.cfr.org/libya/libya-responsibility-protect/p24480 (accessed 31 March 2012); International Coalition for the Responsibility to Protect 'Impact of action in Libya on the responsibility to protect' May 2011 http://www.responsibilitytoprotect.org/RtoP%20in%20Light%20of%20Libya%20FINAL.pdf (accessed 31 March 2012); United States Institute for Peace 'Libya and the responsibility to protect' 1 March 2011 http://www.usip.org/publications/libya-and-the-responsibility-protect (accessed 31 March 2012); Austrian Institute for International Affairs 'The responsibility to protect (R2P) and Libya' July 2011 http://www.oiip.ac.at/fileadmin/Unterlagen/Dateien/Kurzanalysen/Responsibility_to_ Protect_and_Libya.pdf (accessed 31 March 2012); Economist 'The lessons of Libya' 19 May 2011 http://www.economist.com/node/18709571 http://www.economist.com/node/18709571 (accessed 31 March 2012).

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