MEMBERS of the judiciary, prosecutors, civil societies, legal fraternities and victims of crimes of atrocity from West Africa recently met in Banjul to take stock of how the region has been dealing with international criminal justice. The Special Court for Sierra Leone (SCSL) and the Extraordinary African Chambers in Senegal, which found former Chadian President Hissene Habre in 2016, were seen as singular achievements by the region.
But there is still some reluctance by the International Criminal Court to encourage domestic trials and thus avoid the need for the court to conduct its own investigations. Indeed, the ICC does not have the capacity to handle the cases it has already taken on.
‘Twenty years after the Rome treaty, the ICC’s burgeoning caseload and limited resources underscore the need for fair and effective domestic prosecutions,’ said Elizabeth Evenson, associate international justice director at New York-based Human Rights Watch. ‘More ICC member countries should support the prosecutor’s efforts to encourage successful local proceedings.’
She added: ‘The ICC prosecutor’s office should tailor its approaches in each preliminary examination. But to avoid the appearance of double standards, the office needs to be clear about its activities. It also needs the financial resources to adapt its work through frequent engagement in these countries with officials and civil society.’
At the Banjul conference, the call was also for regional courts in Africa to be allowed to prosecute international crimes, as a way of strengthening complementarity on the continent. In his keynote address, the Chief Justice of The Gambia, Hassan Jallow, said: “I remain convinced that complementarity can and should be taken a notch higher by vesting African regional courts, such as the ECOWAS Court and the East African Court of Justice with the mandate to prosecute international crimes.
‘This has the advantages of burden sharing where the task is too great for the country of primary jurisdiction, ensuring that the process of accountability occurs not far from the community most directly affected and respecting the principle of complementarity. The current patchwork or mosaic of bilateral treaties on mutual legal assistance – some dating a century or more between states – does not facilitate cooperation between states in this field.
‘Efforts underway to prepare a multilateral legal assistance treaty in this regard should be supported in order to facilitate cooperation in extradition, access to witnesses and evidence, transfer of prisoners and proceedings, and other matters,’ Jallow told delegates at the West African Stakeholders’ Consultation on Emerging Trends on Complementarity.
‘Such a global or regional multilateral treaty will provide an ideal framework for cooperation in pursuit of global justice and accountability,’ added Jallow, a former judge of the Appeals Chamber of the SCSL, and ex-prosecutor at the International Criminal Tribunal for Rwanda.
Article 17 of the Rome Statue of the International Criminal Court (ICC) explains complementarity thus: ‘The Court shall determine that a case is inadmissible where the case is being investigated or prosecuted by a state, which has jurisdiction over it, unless the state is unwilling or unable genuinely to carry out the investigation or prosecution.’
Today, there are constant arguments over the role of the ICC in Africa, which feels hampered by the Court, as the continent attempts to move forward with complementarity. The debate was taken further at the Banjul Consultation organised by Africa Legal Aid (AFLA), a flagship non-governmental organisation on justice and accountability based in The Hague, in conjunction with the Attorney General’s Chambers and the Ministry of Justice of The Gambia, and the Raoul Wallenberg Institute of Human Rights in Sweden.
Jallow welcomed the meeting, saying: “It is…fitting that periodically we review the trends in complementarity and explore ways in which that fundamental principle of justice can be further strengthened. For the future of justice and accountability lies ultimately on the extent to which we can give concrete reality to the principle of complementarity.’
But he acknowledged that ‘weak national legal systems…and overburdened international tribunals’ had given rise to ‘fertile territory for impunity to flourish.’ In this regard, Jallow said he wanted to see states ‘empowered – individually or collectively – to discharge their primary responsibility for the prosecution of serious crimes.’
Evelyn Ankumah, Executive Director of AFLA, noted: ‘In simple terms [complementarity]means that the ICC should not deal with a case if national or local criminal systems can and will deal with it. Or, to put it in rather bold terms, the ICC should back off. As significant as the ICC is, it is a default court. Its task is to serve as a safety net.’
Ankumah went on: ‘In an ideal world we would not need the ICC, but in today’s world we do need the ICC. But The Hague is not the ideal place where international criminal justice should be first pursued.
‘International criminal justice should be pursued in the village, the province, the state or region where the crimes were committed. Justice should be done at home, or as close to home as possible,’ she added.
Morten Kjaerum of the Raoul Wallenberg Institute said there were ‘numerous setbacks’ to the prosecution of international crimes. He said these included ‘the tension between Africa and the Global North over prosecutions, as well as the lack of popular knowledge about the ICC, which makes people vulnerable to populist attacks on the court and what it stands for.’
Kjaerum said that consultations like the one in Banjul “are crucial to strengthen the current efforts for the promotion of human rights and the global fight against impunity”.
He added: ‘The exchange of promising practices and honest deliberations about hurdles and barriers are what will bring us forward, as well as exploring how to optimise the use of the current human rights landscape.’
The Banjul consultation was the first of a series of two regional meetings on complementarity in Africa, with the one for East and Central Africa scheduled for July in Kampala. Southern Africa has been excluded because the region does not appear to have issues with complementarity.