Abstract
The main frame of this essay is a discussion about complementary jurisdictions between two international courts: the International Criminal Court and the African Court of Justice and Human Rights (the ‘African Court’ or the ‘AC’). But, for added value beyond purely juristic considerations, I feel compelled to traverse the discourse through the prism of economic development in Africa. And that raises the question: what does an essay on complementarity of jurisdictions between two international courts have to do with the socio-economic development of Africa? Answer: plenty.
Judge and former President of the Trial Division, International Criminal Court, The Hague, Netherlands.
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Notes
- 1.
See ‘The Barcelona Development Agenda’ in Narcís Serra and Joseph E Stiglitz (eds), The Washington Consensus Reconsidered: Towards a New Global Governance (OUP 2008) 57.
- 2.
ibid.
- 3.
ibid, p 58.
- 4.
ibid.
- 5.
ibid, 58, emphasis added.
- 6.
UN Commission on Legal Empowerment of the Poor and United Nations Development Programme, Making the Law Work for Everyone (2008) 3.
- 7.
The Commission’s members included Mr Lloyd Axworthy (a former Foreign Affairs Minister of Canada), Mr Fernando Henrique Cardoso (a former President of Brazil), Ms Hilde Frafjord Johnson (a former Minister of International Development of Norway), Justice Anthony Kennedy (a Justice of the US Supreme Court), Mr Allan Larsson (a former Finance Minister of Sweden), Justice Clotilde Aniouvi Médégan Nougbodé (former President of the High Court of Benin), Mr Benjamin Mkapa (former President of Tanzania), Mr Mike Moore (former Prime Minister of New Zealand and a former Director-General of the World Trade Organization), Ms Mary Robinson (former President of Ireland and a former United Nations High Commissioner for Human Rights), Ms Lindiwe Sisulu (former Minister of Housing of South Africa), Mr Lawrence H Summers (former President of Harvard University and a former United States Secretary of the Treasury), Ms Erna Witoelar (a former Minister of Human Settlements of Indonesia), and Mr Ernesto Zedillo (former President of Mexico).
- 8.
United Nations, Report of the United Nations Conference on Sustainable Development, Rio de Janeiro, Brazil, 20–22 June 2012, Doc No A/CONF.216/16, para 10.
- 9.
United Nations General Assembly, Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels, Doc No A/RES/67/1 of 30 November 2012, para 7.
- 10.
European Commission for the Efficiency of Justice, ‘The functioning of judicial systems and the situation of the economy in the European Union Member States’ — Report prepared for the European Commission (Directorate General JUSTICE) (2013) 6.
- 11.
Louis-Alexandre Berg and Deval Desai, ‘Background Paper: Overview on the Rule of Law and Sustainable Development for the Global Dialogue on Rule of Law and the Post-2015 Development Agenda’ (2013) 12.
- 12.
International Bank for Reconstruction and Development/World Bank, Conflict, Security and Development: World Bank Development Report (2011).
- 13.
ibid, 5.
- 14.
See the preamble to the Rome Statute.
- 15.
ibid.
- 16.
Prosecutor v Kenyatta (Decision on Defence Request for Conditional Excusal from Continuous Presence at Trial), ICC-01/09-02/11-830, 18 October 2013, Separate Further Opinion of Judge Eboe-Osuji, para [24].
- 17.
African Union, ‘Welcome Remarks of the African Union Commission Chairperson, H E Dr Nkosazana Dlamini Zuma to the Extraordinary Session of the Assembly of Heads of State and Government’, Addis Ababa, 12 October 2013 http://www.au.int/en/sites/default/files/speeches/25347-sp-welcomeextordasembly12oct2013_final.pdf, 3.
- 18.
Young African men and women should not be perishing at sea, time after time, off the coast of Lampedusa, while engaged in ‘perilous journeys, leaving [African] shores in search of illusive green pastures’ while running away from poverty or conflict and often both, see ibid, 8.
- 19.
Adam Smith, The Wealth of Nations, vol 2bk IV (9th edn, Strahan & Cadell 1799), 434.
- 20.
See article 2(1), (4) and (7) of the UN Charter. See also the seventh and eighth clauses in the preamble to the Rome Statute.
- 21.
See article 2(7) of the UN Charter.
- 22.
See article 2(5) and (6) of the UN Charter.
- 23.
The Amended Statute of the AC, article 46B.
- 24.
ibid, article 46(c).
- 25.
For a recent judicial discussion of aspects of these concerns and fears see Prosecutor v Ruto and Sang (Decision on Defence Applications for Judgments of Acquittal) ICC-01/09-01/11-2027-Red-Corr (5 April 2016), Reasons of Judge Eboe-Osuji, 140 et seq.
- 26.
It remains to be seen whether an actual case may suggest otherwise – and that is entirely possible.
- 27.
The following instances of wider definition and scope of crimes may be noted. The crime of genocide in the Amended Statute of the AC includes ‘acts of rape or any other form of sexual violence’ (article 28B(f)). War crimes include intentionally launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or excessive damage to civilian objects (article 28D(v)). War crimes also include using nuclear weapons or other weapons of mass destruction (pursuant to article 28D(g)). The crime of aggression includes acts by a person in a position effectively to exercise control over or to direct the political or military action of an organisation as well as a State, pursuant to article 28M of the Amended Statute.
- 28.
See generally, Chile Eboe-Osuji, ‘Kleptocracy: a Desired Subject of International Criminal Law that is in Dire Need of Prosecution by Universal Jurisdiction,’ in Evelyn A Ankumah and Edward K Kwakwa (eds), African Perspectives on International Criminal Justice (Africa Legal Aid 2005) p 121.
- 29.
The devastating potential of unchecked corruption to even economies as developed and robust as the US economy may be noted in the motivations for the US federal statute famously known by its acronym of RICO (which stands for Racketeer Influenced and Corrupt Organizations Act) 18 US Code §§ 1961-1968. Notably, in Congress’s Statement of Findings and Purpose for RICO, Congress made the findings that ‘organized crime in the United States is a highly sophisticated, diversified and widespread activity that annually drains billions of dollars from America’s economy’. Also, ‘organized crime activities in the United States weaken the stability of the Nation’s economic system, harm innocent investors and competing organizations, interfere with free competition, seriously burden interstate and foreign commerce, threaten domestic security, and undermine the general welfare of the Nation and its citizens. … It is the purpose of this act to seek the eradication of organized crime in the United States by strengthening the legal tools in the evidence-gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime.’ See US Senate, 91st Congress, 1st Session, ‘Organized Crime Control Act of 1969, Report of the Committee on the Judiciary, United States Senate together with Individual and Additional Views (1969) pp 1—2.
- 30.
United Nations, Office of Drugs and Crime, United Nations Convention against Corruption (2004) p iii.
- 31.
United Nations Convention against Corruption (2004), article 26.
- 32.
See, for instance, the International Convention for the Suppression of the Financing of Terrorism (1999), article 5.
- 33.
See Chile Eboe-Osuji, ‘The High Commissioner for Human Rights on the Legal Obligation of Corporations to Respect International Human Rights Norms’, in Suzannah Linton, Gerry Simpson and William Schabas, For the Sake of Present and Future Generations (Brill 2015) 153 at 161 et seq.
- 34.
See Per Saland, ‘International Criminal law Principles’ in Roy S Lee (ed), The International Criminal Court: The Making of the Rome Statute—Issues, Negotiations, Results (Kluwer Law International 1999) 189—215, 199.
- 35.
In Australia, the Criminal Code ‘applies to bodies corporate in the same way as it applies to individuals’ with ‘modifications … made necessary by the fact that criminal liability is being imposed on bodies corporate,’ according to s 12.1(1) of the Criminal Code Act 1995 of the Commonwealth of Australia (revised to 2005). Section 12.1(2) provides that a corporation may be found guilty of any offence including an offence punishable by imprisonment. Division 268 of the Australian Criminal Code proscribes ‘genocide, crimes against humanity, war crimes and crimes against administration of the justice of the International Criminal Court.’ It may be of some significance that division 268.120 provides that ‘[t]his Division is not intended to exclude or limit any other law of the Commonwealth or any law of a State or Territory’.
- 36.
In Canada, section 2 of the Criminal Code and section 1 of Criminal Code (criminal liability of organizations) Amendment Act (2003) equate human beings and corporate bodies in the meaning of ‘persons’. These definitions are incorporated into the Crimes against Humanity and War Crimes Act (enabling the operation in Canada of the norms contained in the ICC Statute), by virtue of section 2(2) which provides: ‘Unless otherwise provided, words and expressions used in this Act have the same meaning as in the Criminal Code.’ And in the proscriptive part the Crimes against Humanity and War Crimes Act chiefly provides: ‘Every person is guilty of an indictable offence who commits: (a) genocide; (b) a crime against humanity; or (c) a war crime.’
- 37.
Under article 213-3 of the French Penal Code, corporations and other private legal persons can be prosecuted for genocide and crimes against humanity. If held liable, they can be dissolved, barred from exercising their functions for a certain period, fined, and, in addition, ordered to make reparation and have part or all of their assets confiscated in accordance with articles 131-38, 131-39 and article 213-3 of French Penal Code. Article 689-11 of the French Code of Penal Procedure, as amended in 2010 to implement the ICC Statute, also gives French courts jurisdiction over crimes against humanity and genocide committed abroad by French nationals (corporations and human beings).
- 38.
There is, of course, the legitimate query whether, purely as a matter of interpretation of the Rome Statute, a notion of complementarity that is constructed on the understanding that the ICC jurisdiction is immediately to be engaged upon the jurisdictional failure of States (to investigate or prosecute genuinely) can readily accommodate an intermediate regional jurisdiction not directly contemplated in the Statute. The query is a legitimate one. But does its answer entirely depend upon whether or not that intermediate regional arrangement was directly contemplated in the Rome Statute? Is it legitimate to take into account broader considerations of international law (of which the Rome Statute forms a part)? Does the broader international law contemplate the ability of States to enter regional arrangements in a good faith way that does not unfairly undermine existing multilateral arrangements? It may also be considered whether there is a role for the concept of double jeopardy, where a person has been investigated and prosecuted genuinely by a properly constitute court. Does it matter that in providing against double jeopardy at the ICC, the Rome Statute merely said that no person tried ‘by another court’ may be tried again for the same conduct that constitutes an offence at the ICC (article 20(3) of the Rome Statute)? Is there a requirement that the other court must be a national court?
- 39.
See Office of the Prosecutor (International Criminal Court), ‘Prosecutorial Strategy 2009 to 2012’ (1 February 2010), 4—6. In this paper, the Office of the Prosecutor states that it ‘will only step in when States fail to conduct genuine investigations and prosecutions’ and describes positive complementarity as a ‘proactive policy of cooperation aimed at promoting national proceedings’, including the sharing of information collected by the Office of the Prosecutor with national judiciaries pursuant to article 93(10) of the Statute, see ibid paras 16-17.
- 40.
See Prosecutor v Ruto and Sang (Decision on Defence Applications for Judgments of Acquittal) ICC-01/09-01/11-2027-Red-Corr (5 April 2016), Reasons of Judge Eboe-Osuji, 140 et seq.
- 41.
See Human Rights Watch, ‘Statement Regarding Immunity for Sitting Officials Before the Expanded African Court of Justice and Human Rights’, 13 November 2014, <https://www.hrw.org/news/2014/11/13/statement-regarding-immunity-sitting-officials-expanded-african-court-justice-and> ['The protocol … also gives immunity to sitting heads of state and government, and to other senior officials based on their function, before the African Court']. Concerns such as this are wholly understandable, given that the drafters of the worrying provision (article 46Abis in the AU protocol) had entitled it 'Immunities'.
- 42.
The proposition is readily verified in practice by the roll call of AU Heads of State and Government at key AU summits at any given time.
- 43.
See Prosecutor v Ruto and Sang (Decision on Defence Applications for Judgments of Acquittal), ICC-01/09-01/11-2027-Red-Corr (5 April 2016), Reasons of Judge Eboe-Osuji, 140 et seq.
- 44.
Reasons for the Decision on Excusal from Presence at Trial under Rule 134quater, ICC-01/09-01/11-1186 (18 February 2014).
- 45.
ICC-01/09-01/11-1186-Anx, para 58.
- 46.
ICC-01/09-01/11-1186-Anx, para 58.
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Eboe-Osuji, C. (2018). The ICC and the African Court and the Extended Notion of Complementarity of International Criminal Jurisdictions. In: Eboe-Osuji, C., Emeseh, E. (eds) Nigerian Yearbook of International Law 2017. Nigerian Yearbook of International Law , vol 2017. Springer, Cham. https://doi.org/10.1007/978-3-319-71476-9_9
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