SALAH HASSAN: Thanks to you all for taking the time to attend the talk today, which will focus on Africa and the ICC, which is an important topic, mostly because Africa more than any other continent has been targeted by the ICC proceedings, which is used sometimes by those who are targeted by the ICC as a sort of double standard and some sort of exceptionalism, meaning people like al-Bashir, Charles Taylor will be targeted and someone like Bush will not be touched by the ICM-- sorry, by the ICC and these kind of international for crimes that could be also similar.
This led to a lot of debate within the African continent specifically about the balance between punishment and between justice and achieving peace in places where this has been a question-- especially in Sudan, whether to try al-Bashir, who is a standing president, which is unprecedented, or really the necessity of keeping him in power because he is a partner to the conflict and an important element in the debate. I guess these are some of the questions that I hope Professor Muna Ndulo will help us understand as we discuss this very difficult topic.
Because it is a heated debate across Africa as we-- people move from dictatorship, wars into zones of reconciliation. So truce and reconciliation is one aspect of commission like in South Africa is one aspect of addressing crimes against humanity under apartheid. I guess the case of Charles Taylor we know he was extradited and he's now tried in the Hague.
But I'm not the speaker, so I'm just going to go ahead and introduce our speaker today, who is Professor Muna Ndulo, who is a professor of law at Cornell Law School and director of the Institute for African Development at Cornell University. He's also an honorary professor of law faculty-- at the Faculty of Law in University of Cape Town in South Africa. Professor Ndulo is a graduate of the University of Zambia, where he got his LLB, and from Harvard University where he's got his LLM, and Trinity College in Oxford University where he got his doctorate in philosophy of law.
He was formerly professor and-- of law and the dean of the School of Law at the University of Zambia. He has extensive international and UN experience, having served as a legal officer in the international law branch of the United Nations Commission on International Trade Law. He is a legal adviser and political adviser to the United Nations observer mission in South Africa, United Nations assistant mission to East Timor, United Nations mission to Kosovo, and the United Nations missions to Afghanistan. And you can see how really he is highly experienced in these areas. And he was-- his expertise was sought after by many organizations.
He was appointed by the African Union to the AU high-level panel on that [INAUDIBLE] headed by former South African president Thabo Mbeki. He has published extensively. And his major area of interests include governance, economic development, international criminal law, and human rights.
His most recent publications include Democratic Reform in Africa-- Its Impact on Governance and Poverty Alleviation, published by Ohio University Press and also James Currey publishers in London; Comparative Constitutionalism, that's another book; and Good Governance-- An Eastern and Southern African Perspective, published by Cambridge University Press; and finally and most recently, Gender Power and Social Change in Africa, Cambridge Scholars publishers.
I can go on and on listing really the expertise and credentials of Professor Muna, but I think it is time for us to hear the lectures itself. So please join me in welcoming Professor Muna Ndulo.
MUNA NDULO: Thank you very much for having me here and giving me this opportunity to discuss with you the ICC and Africa, what is obviously-- as Professor Hassan has pointed out-- a very topical issue right now in Africa, especially with regard to the indictment of Bashir.
But I think to understand the international criminal process we have to go back to Nuremberg. Because after this first-- Second World War, you had the Nuremberg trials.
Now the Nuremberg trials was well conducted under the London Agreement. So they actually set up a special court to do the trials. And then of course in the-- on the Eastern Front, you had the Tribunals for the East.
So I mention that because two things happened there which actually led to the development of the ICC. One is that during that period also there was the development of the Genocide Convention. And there was discussion about creating a permanent court at that time. So there was this discussion-- and very much actually interestingly supported by various states.
During Nuremberg it's important to make the point that the US was for trials, whereas if you look at the UK and Russia they were for summary execution. They were saying, no, let's just kill these guys and it's over. But the US insisted that, no, we need a process. And that's what led to this creation of these.
And as I say, there was at that point a discussion. But they could not agree. And they decided to have what they had, which was the Nuremberg trial, which was a special court.
And then the second point to note about the Nuremberg trial was that-- is the defense that was raised by the defendants was that they were acting on behalf of a state. You could not put this on them. So the concept of individual responsibility was established then.
You see, at Nuremberg the judges said we got behind the shell of the state and find out who actually has been directing this. And their reasoning was that if we don't do that, we'll never be able to punish or prevent wars or these kind of atrocities. And that's a very important part.
So those two points emerged from Nuremberg-- the question of individual responsibility as opposed to state. So it doesn't matter that it was a cabinet decision to say yes to these. They are going to go after the people who attended that meeting who decided on those atrocities.
Now this principle of individual responsibility was reaffirmed in the Pinochet trial where again it came up in terms of Pinochet's role. Remember that Pinochet had actually gone for medical reasons to the UK. And of course, unknown to him, Human Rights Watch and Amnesty International had actually prepared a warrant and a dossier, which of course they had filed with a judge in Spain. And then of course he found himself arrested. So what was supposed to be a one-week trip ended up being two or three years, because then of course he started to fight for his freedom.
Now again there, if you look at the House of Lords decision, the judges there said this question about individual responsibility is over. This is settled. From now onwards, you are responsible. We'll go behind the state and find out who in government was actually saying, we do this.
So coming now to the process of creating the International Criminal Court. Actually the idea-- after that, of course, the Cold War took over. So the-- there was not much progress made in terms of trying to create the International Criminal Court.
And then the idea is taken up again in 1989 actually by Trinidad and Tobago. They're the ones that asked the General Assembly to consider setting up an international tribunal.
Now interestingly, Trinidad's idea was not really about the international crimes in terms of genocide, humanity. They were more concerned about drug trafficking. So they wanted an international court which would try those kind of offenses, because they felt that the dimensions of the offenses affected so many countries and that this should not be left to individual countries to try.
Now the General Assembly's position then in 1989 was to refer the matter to a body called the International Law Commission. Now those of us who work in the international field know about the International Law Commission. The International Law Commission is actually body of top jurists in the field of international law. And they meet once a year in Geneva.
And what they do is just brainstorm on things, and come out with a draft about what kind of laws the world needs, and all that. And then of course once they've concluded that process they send it to either the General Assembly or a diplomatic conference, depending on how the system then evolves. And the International Law Commission is very, very important body actually in terms of being a source of the international system.
So if you look, for example, the Vienna Convention on Treaties, they're the ones that started that. And many, many conventions are actually from them.
And it's also the body where actually people are chosen to go to the ICJ. So you'll find that people who serve as judges on the ICJ, the trick is to get on the Law Commission first. Because from there it's easier. They look at those as [INAUDIBLE].
So they go to this joint task. They ask them to come up with a draft or International Criminal Court.
So they then made this draft. And the process went on for quite some time. And of course in the end it culminated into the Rome Statute. So we then had this diplomatic conference with Rome, at which the International Criminal Law Statute was [INAUDIBLE].
Now I think it's important to mention though that while this process was going on, because there was no International Criminal Court, the Security Council from time to time established special courts. And here we're talking about Rwanda tribunal, we're talking about Yugoslav tribunal. They were all created by the Security Council.
Now you might ask under what power they do that. The Security Council argues that they did that under Chapter 7, which is the use of force section of the UN charter and gives primary responsibility over issues over security to the Security Council. And the Security Council argues that if you look at that section, it says they will take measures to bring about peace. And they claim that creating these courts-- in Yugoslavia, in Rwanda-- was a measure towards creating peace.
Now you might argue with them and say they don't have jurisdiction to do this or they shouldn't have been doing this. But that's why you have those courts. And that's the basis-- that's the legal basis of those courts. And there are people who challenge that position and say, well, I don't think you should really have power to do that.
AUDIENCE: Question [INAUDIBLE].
MUNA NDULO: Sorry.
AUDIENCE: What year was the Rome Statute? What year was the Security Council [INAUDIBLE] this?
MUNA NDULO: Which one? The Rwanda [INAUDIBLE].
AUDIENCE: Rome Statute.
MUNA NDULO: Rome Statute. I'll pass it to my student. [INAUDIBLE], what year was it? What year was it?
AUDIENCE: What year was what?
MUNA NDULO: [INAUDIBLE].
AUDIENCE: No, [INAUDIBLE].
MUNA NDULO: No, no, no, no. I just want to be clear. I think it's 19-- which year exactly? '98, I think. I don't know.
AUDIENCE: '98. So it was after Trinidad and Tobago.
MUNA NDULO: Definitely. As I say, just in Trinidad raised the question.
AUDIENCE: Just wanted to be clear.
MUNA NDULO: Yeah, yeah. So.
AUDIENCE: Security Council--
Yeah, but he had to have a chronological context.
MUNA NDULO: No. What I explained is that Trinidad and Tobago in 1989 proposed to set up this International Criminal Court. So that's what happened.
Now I said the idea of Trinidad and Tobago was a drug court, not genocide [INAUDIBLE]. So then I said that in the-- this matter was given to a Law Commission. What was the Law Commission to do? To develop the text. Because it's critical to need the text, the legislation-- yeah, legislation, which is this. That's what they created. That's the statute. So this statute outlines what the court is, the powers of the court, and all sorts of things. So that's the role of the Law Commission.
Once they were done with a draft, they then sent it to the Rome meeting. The Rome meeting is a diplomatic conference of all states meeting now to actually adopt. And when you adopt then that's legislation. That's how a treaty comes into force. So that's the process that went into this.
So the significance of the Rome meeting was really like parliament. Because there's no world parliament, that's what they do. They create what is called diplomatic conference. If you don't do that, you can send it to a General Assembly. It's actually cheaper. Because then, of course, you use the framework of the General Assembly. So I say that to the International Criminal Court was then of course adopted.
At the Rome meeting, the US actually did not think that this statute would be adopted then. They thought that there's still more work to be done. And then we'll come to why the US doesn't like the ICC.
And there are legal arguments. I take the view that the US' legal arguments are not valid and that in fact are just an excuse.
But their position, of course, was that this will not take place. Because they still wanted to discuss the matter. Now what's the difference between them and the others?
The US basically wanted more control, the control of the court by the Security Council. They wanted the Security Council to determine the agenda in terms of what cases go to the court. The other countries said, no, why should we do that?
Now one of the reasons the other countries did not like the US position is that, you see, without the court, we have a concept called universal jurisdiction. Universal jurisdiction is-- I think we probably are headed within the context of Belgium, what Belgium is doing. But under international law, every state in the world has jurisdiction to try an international crime. They don't need anybody's permission. So as long as they're going to try genocide, they're going to try crimes against humanity, they're going to try war, crimes, you can do it.
The reason why some countries do it and others don't is that of course courts in any country require domestic legislation to authorize them to do something. So the difference between Spain and the US and Belgium and the US is that Belgium and Spain have created that. They've legislated and allowed their courts to take universal jurisdiction. But there's nothing to stop Kenya, Sudan, or anybody to exercise that. So they were arguing that, well, why then should we create a court which will have less power than what we already have? So they didn't see the justification for that.
Now of course the actual deliberations that we all know, the US-- actually, the chief delegate of the US left thinking that the meeting would be adjourned. But it was that the EU countries that insisted that the votes should go on. So it was really the US allies that said, no, we have to vote. So then, of course, the vote was that it was overwhelming.
There only six countries that were against the creation of a court. And that is the US really. And people point out that they were in the company in which they really wouldn't want to be-- Iraq and Somalia, only these [INAUDIBLE] states. So it's really quite embarrassing in terms of the company for that.
So then let's come to the-- the statute is created. One of the things the US did because they wanted to slow the implementation of the court is to-- and you do this a lot. I worked in treaty-making in trade. And when you lose your arguments with countries, what you do is you put the ratification number very high. Ratification number is the number which you need for a treaty to come into force.
So if you look at, for example, nonproliferation, you only needed three and then it's law. But the International Criminal Court needed 60. And that was-- the idea was, oh, they're not going to get this so it will not come into force. But of course [INAUDIBLE] were surprised that was attained within two years. And the court did in fact come into force. So it is now in place. And the court is in the Hague.
Now I tried to show first-- the most important thing to remember about the court is that the court is complementary. It exercises is what we call complementary jurisdiction.
That is distinct from-- distinguished from what, say for example, the Rwanda court or the Yugoslav court. The Yugoslav court has primary jurisdiction, which means that if they want a case, no country can touch that case. You have to give it to Yugoslavia. And that happened, in fact, in the case of Germany for example. There was a case Germany was actually handling and Yugoslavia said, we want it, so they too. The same with Rwanda. So they're primary.
The ICC doesn't have that. ICC is complementary. The ICC jurisdiction is only exercised where the national state is not exercising that jurisdiction. So you can stop the prosecutions there because you are going to prosecute the individuals in your own jurisdiction. So it is complementary. That's an important point to make.
So then in terms of substantive jurisdiction-- so you look at what crimes-- that's what we mean by substantive jurisdiction, what crimes does it handle? The ICC handles only those crimes there-- genocide, aggression, and serious violations of the law and customs applicable to armed conflict, and then crimes against humanity. So there are four or five crimes, basically.
Now the crimes are codified in the ICC in those sections in Articles 6, 7, 5, 8. You'll find that there is like a penal code.
Now in fact-- of course, the ICC could also have said, we don't need to codify. Because they view of international lawyers is that in fact these crimes are already crimes under customary international law. And that's why Nuremberg was able to try those crimes, because they were already crimes. So it's not new. In fact, ICC in that sense has less than the Nuremberg. Because, you see, aggression, if you look at the Nuremberg trial, there are a lot of charges of aggression.
And they were-- going on now, with the ICC, they could not agree in Rome on a definition of aggression. So what they have done is that they have a provision there which says that the crime of aggression will become a crime under the ICC when the conference-- the ICC conference-- agrees on a definition. So it's at the moment in that situation where you cannot actually charge somebody for aggression in the ICC because they cannot agree on a definition. But they're waiting for the division to be concluded.
Now one of the things that might happen next year-- or is it-- I think next year there's going to be the first review conference of the ICC. All the member states are meeting in Uganda to review progress and also look at whether they need amendments to this treaty. So it's the first opportunity to revisit the statute.
So we see then that-- now genocide, I think we don't need to go into definitions, because we'd spend a lot of time with technical definitions in terms of the difference between genocide and murder. Of course it's specific intent that is killing a whole race. You don't have to achieve it. But that's the point about genocide.
Now in terms of the third category, this is actually the war crimes. Now, the war crimes actually created by the Geneva Conventions. There are four of them. And they were concluded after the war.
And the idea of the Geneva Conventions is, of course, that war is bad, but if you're going to fight, then you must fight in a civilized way. So I don't know whether it's possible to fight in a civilized way. But that's the idea, basically.
So what does it do? It punishes certain types of behavior-- for example, using weapons which excessively kill civilians. Of course it also says you shouldn't kill prisoners of war, you shouldn't torture, you shouldn't do all those. So it is really how you conduct the war and the weapons and how you treat the people that you capture. So it's all about having this-- a good way of fighting.
So this is why you hear, for example, in the context of Iraq in this discussion about treatment of prisoners and the way-- the question over also use of torture. And you also hear about Guantanamo, why the government doesn't want you to classify those people as war prisoners, because of course then the Geneva Convention has become applicable. But if you say they are enemy combatants, then they are not, then you can do other things, you see. So that's the distinction.
They are always arguing, no, no, no, these guys are not war criminals. Because if you admit that they are war criminals, then, of course the Geneva Conventions come into play, Red Cross must have access, you must not in terms of prisoners just ask them their name, their rank, and then keep them until there's an agreement to exchange the prisoners. So that's the whole concept.
However, on the second line, I tried to show that actually when you look at the other-- for example, the Yugoslav tribunal and others, they also had modifications in terms of the substantive laws. But that's actually the main. Now those are the main crimes.
So I think the next thing that we need to look at then is really the question of how the Security-- how the ICC exercises its jurisdiction, how does it get a case. Now I think that basically the ICC gets its jurisdiction in two ways. There-- how does it get jurisdiction.
And then of course we have real examples. Like how did it get jurisdiction over Bashir? Because Sudan is not a member of the ICC. And yet they are exercising jurisdiction over Bashir. So how did it happen?
So there are two ways in which the ICC gets a case. First is what we call a referral by the Security Council, which means that the whole process is initiated by the Security Council. Now the example of that is Bashir. The Bashir case was not initiated by the ICC. That's a mistake, those that say ICC did this. The Security Council passed a resolution and asked the ICC to investigate. They gave the ICC 53 names actually of people they want to be investigated in Sudan. And of course that's how the process started.
Now at the time when there was this referral, there was in fact a very major difference between the US and the other countries. The US was for a special tribunal. They wanted to create a special tribunal for Sudan. But the other countries said we have the ICC, we don't need special tribunals anymore. And in fact that was the position of France, that was the position of the UK in the Security Council.
And in order to allow the process to go forward-- because the US wanted prosecutions to go on but did not want the ICC-- so what they did is they abstained, they didn't vote. And that allowed-- because if they had voted, that would have been a veto and the process would not have gone forward. So the US actually just abstained and allowed the process. So that's how the ICC got the case.
Now it's important to remember here that when there's a referral by the Security Council you don't need to be a member of the ICC. That is irrelevant. And that's why they're able to refer the case of Sudan. Sudan is not to today a member of the ICC.
Now the other way it can exercise jurisdiction is there are which we call prosecutorial initiative. The prosecutor can actually initiate. He can say or she can say to the court, I think we should look at this case.
Now of course here there was a lot of concern that if the prosecutor has this power then of course there is the problem that you will get abuse. So built into that process, where the prosecutor initiates the investigation, it has to go to a three chamber tribunal where he or she makes a case. And the tribunal would then come out and say, OK, there is a prima facie case-- that on the face of it, it looks like a case-- so you can go ahead. So he has to get permission.
Now the other way that the ICC gets the cases is through a referral by a state-- that is, a member state now. Because it's not the Security Council, so it has to be a member state. And this is how they got the Ugandan case. Because Uganda-- and contrary what some people say, Uganda is the one that initiated the process against Kony. They went to the ICC and said, please, come, we want you to try this guy. The same with the Congo over Lubanga. They went to the ICC and said, help us, we need this guy tried. So that's another way, that.
Now the precondition, of course, with the referral by a state is that you have actually to be a member of the ICC. That means that as a state you ought to have ratified.
Now there are preconditions for the state referral and also for the prosecutor's initiative. And that is that where the crime happens, it needs to be a member state or the perpetrator needs to be a national of a member state. So you can refer to a case as Uganda-- like in the Kony case-- because, of course, you're a member. Now you could also refer the case because Kony is a national of Uganda. So you could not refer to a case that happens elsewhere.
So now this again is an issue which the Americans took up. And they were-- I'm sure you've heard about how, oh, they don't want the courts to try Americans and that kind of thing. And I would argue that that's just a fallacious reason they give.
Because, you see, the point is this-- right now jurisdiction of states over criminal matters does not depend on nationality. I'm not an American. But if I commit a crime here, the US has jurisdiction over me because its location is territorial. It's where you are. So if you-- an American commits a crime in France, they will not excuse you and say that you are an American. So it actually happens.
So what's the argument then in terms of the court trying Americans? They can do it because national courts can do it. So why shouldn't a new court too? That's one of the arguments that is raised. So those are the ways in which the court exercises jurisdiction.
Now of course the other issue of that comes up-- and we see this as we're going to look at the AU-- is this question of stopping a trial by the Security Council. Under Article 16 of the statutes of the court, the Security Council can ask the court to defer an ongoing case. So like for example, if somebody is tried-- like in the case of Bashir-- the Security Council can actually ask the court to say, OK, for one year don't do anything. And there's no limit, which suggests that this deferral can go on forever.
But the good thing about the way they structured the legislation is that you have to make a positive decision to request. So it's not possible-- a veto is useless in this context because a veto is negative. So if you want to get a deferral, you have to get a majority to raise a resolution, which then asks the court to do that. And the arguments of course that this would give space to the Security Council to-- maybe they are dealing with the matter in other ways. There's that problem.
Now let's come down to the question over the court and Africa, because I think that's a lot of the-- what-- here I tried to explain this question of territorial. [INAUDIBLE] Now the question of the court and Africa.
I don't see that-- what's happening? Supposed to be next to this. Let me look there. Oh, maybe-- sorry, right on top, I think. Sorry. Yeah, I think it came up. OK, yeah, sorry, thanks.
So let's look at the court and Africa. Well, for instance, I think you've seen from my presentation, I take issue with the argument that the court is focusing on Africa. Because there's no evidence for that.
Why do I say that? Because they're not handling a single case on Africa which has been the only initiative. They have five cases from Africa, and in each one of those cases, the African states have gone to the ICC. Only one, Sudan, Security Council went to the ICC. So where is the evidence that in fact the court sitting out there is actually targeting Africa? I don't see it. Because I would like to see a case which actually is in the court right now and has been initiated by the court and is on Africa. There's none.
So now in July 2008 the-- the AU has been very critical of the ICC lately. And this is in relation to Sudan.
So in 2008, they established this high-level panel. Now the high-level panel was established as a reaction to the indictment of Bashir. Because the AU felt that Bashir should not be indicted as the head of state, the sitting head of state.
Now the high-level panel was headed by Mbeki. They met. And in the end, they recommended that what should happen is that there should be a hybrid court system in Sudan to try the people that are alleged to have committed crimes-- international crimes.
Now as Salah mentioned, I was actually appointed to this panel and did participate in a limited way. I couldn't really continue because they wanted to be in Darfur for 40 days. I know they were doing all these town hall meetings. So when you are committed elsewhere, like we are, teaching and all that can be very difficult to do that sort of thing. And I think [INAUDIBLE], another colleague of mine from Penn State who also was on it, found the same kind of difficulty that he. These other guys, they had the time to do it, but we couldn't. But we participated in documentation and the earlier meetings.
And my argument would be that the hybrid system that's recommended by the panel-- the panel recommends hybrid system, recommends truth commission and a political solution to the crisis. But it also does say that there shouldn't be any impunity. So of course they agree on the prosecutions, but they are saying there should be the hybrid.
But I think I would agree with Human Rights Watch, which observes that the hybrid panel will be useful but I don't think that it should be a replacement for the ICC. Because I am yet to be convinced why there shouldn't be a process in the ICC. Because to me, the argument is not the indictment of Bashir. The argument should be framed in the context of has Bashir committed crimes. Because if he has committed crimes, then I think the law should take its course. But if he hasn't, of course there shouldn't be.
And to me, it shouldn't be the focus of one individual. It's the focus of have the crimes happened. If they have, then I think we know the solution. If they haven't, again, we should then of course defend him, that he shouldn't be prosecuted.
So, sorry, I mentioned there that one of the other things that the AU has done is call for a deferral, that is asking the Security Council to use Article 16 to defer the trial. And so far they have been unsuccessful. In fact, I think the story is that the Security Council has actually refused to have meetings with the AU on this issue.
Then of course on July 3 in Libya, the AU passed a resolution in which it said that it was calling on African states not to honor the warrants that have been issued. Because [INAUDIBLE] has issued warrants on Bashir. So they've asked that they shouldn't honor these warrants.
And they of course also attacked the independence of the court, making the allegation that the court is targeting Africa and others. And as I say, for me, I think that's misplaced, because there's no evidence that in fact that is so. Because they didn't initiate the process. And I think they are attacking the wrong person. They should attack the Security Council for doing what they did if you disagree with the referral.
Now they say that African countries should not cooperate. And I think that in my view that is the wrong approach. Because if you join a treaty, there are treaty obligations. Either get out of the treaty or carry out the obligations of the treaty. So you can't say you stay in the ICC and then don't carry out your obligations.
And I think those points have actually been made because there has been dissent, as I point out. Botswana, for example, issued a very strong statement and said that they are not going to be party to this AU position because they don't see why the work of the ICC should be undermined simply because they're trying one individual. So we should have other solutions.
And of course South Africa, which was thought to be going along initially, has come out very, very strongly against the AU position and has actually said that, according to them, that the arrest warrant in South Africa has been processed because it was filed with a magistrate. And they're saying that if Bashir does come to South Africa they will execute the warrant. That is the law, and therefore they will do that. And of course they added that their own constitution is based on values of human rights and that they cannot therefore be party to a process which tries to undermine this process.
The other thing I'd like to bring out is that here are the case that that the AU has on Africa. And as I was showing you, all of them have actually been taken there by the countries. Kenya is the latest. Kenya went to the ICC and said, please, come and try the people that committed the violence after the elections. So there's really no evidence that there's any case that has been initiated in the Hague.
I would also like to show that actually in terms of personnel it's a very interesting position that the ICC has actually a very strong African representation in terms of the judges. Africa has the second highest number of judges on the court-- more than Latin America, which has four; more than Asia, which has two; more than Eastern Europe, which has two; almost equal to Europe and the others, which has six. African has five, and the rest-- Europe, and Australia, and the others-- they have six. So they have a very strong presence in terms of personnel.
And then of course also in terms of the prosecutor, the deputy prosecutor is actually-- and those are the figures I tried to show you-- the deputy prosecutor is an African, a woman from Gambia. And she has been very, very vocal in terms of the work of the prosecutor.
So in terms of personnel, I would argue that if you compare other international institutions, the representation of Africa in the ICC is actually quite good at very high levels. The president of the appeals chamber is actually Judge Nserko from Uganda-- and the-- Daniel Nserko. The warrant of Bashir, the process was actually chaired by Akua Kuenyahia from Ghana. She's the one that actually even issued the warrant from the ICC. So it's been really African judges that have been very, very active in the process in the ICC.
So I think then I will try to conclude. So I think what I've been trying to explain then is that the court is really a product of a long process of trying to make people who engage in war crimes, genocide, and crimes against humanity accountable. It is a process that is now in place. And we are not likely to see any more special courts because there's now resistance to create special courts because countries are arguing that we now have a permanent court and we don't need any more Yugoslav tribunal, Rwanda tribunal.
Now of course there's a very strong argument that can be made for hybrid tribunals. One of the major problems, I think, with a process like the ICC is the distance between where these crimes are happening and where the court is. And I think that's the big advantage that you have when you have special courts is that they are located in the theater where the crimes happen. As it is, of course, it means that you go to the Hague.
Now you might ask a question as to what do they do with prisoners. Now that's interesting. And I think that one of the contradictions of the process is that actually the tribunals and the ICC are trying the big guys. And then in the end of course the ICC has no physical buildings to put these people in prison. So they contract out. And most of these people are convicted out of Yugoslavia or out of Rwanda, they're actually serving sentences in [INAUDIBLE] countries. And if you're going to be in prison, I think that's where you should be because obviously the conditions are much better.
But then the lower rung people are being tried by domestic courts, like even the Rwanda situation. And then they go to these really bad prisons. So you really have this problem that emerges.
So I think I'll stop there and then open up for discussion. I look forward to hearing your views. And I'll try to respond as well I can do. But as you can see from my presentation, I am a strong supporter of the court and the process of the court.
SALAH HASSAN: [INAUDIBLE] questions that have been [INAUDIBLE].
MUNA NDULO: Asian.
AUDIENCE: Oh, Asia. [INAUDIBLE]
MUNA NDULO: Sorry?
AUDIENCE: [INAUDIBLE]. The US courts. Is that [INAUDIBLE] international law?
MUNA NDULO: Yeah, Asia. I think it's a political program in that the judges are elected by the General Assembly. So the matter of numbers would have to be sorted out in the context of the General Assembly. So at the moment this is how they've been voting.
The last time they made new judges, I think, was last year. That's when they elected Sanji from Botswana. And there were some Asian candidates, but they did not get high votes to qualify, so in the end lost there. So I think that's really a matter for the General Assembly in terms of-- the Asians should complain and then, of course, negotiate somehow in terms of getting their judges appointed.
The Noriega matter-- I think that to see-- Noriega, if you look at the judge, of course there are problems in terms of the way Noriega was captured. Now the US courts took the position that they don't really worry about how you're brought into the US. Once you come in, they will tell you. That's what they say.
And they did this, you remember, in the Mexican case where it went up to the Supreme Court. And Supreme Court said, well, yeah, we don't really get into how you came here. You can be kidnapped, it can be anywhere.
Now that's not the position of all countries in the world. For example, in South African jurisdiction, lots of cases, if you are kidnapped, the South African courts say, no. Because they say that you must come to-- the prosecution must come to court with clean hands. And they don't want this kind of process. Australia also has that. So it depends on the jurisdiction. And that's really a local matter in terms of the US law, Australian law, British law.
Now Noriega was never charged with international crimes. So he's then-- he's not charged with any of those five. And that's the only time that it becomes international crime. Then of course there's international jurisdiction.
But the US tried Noriega for violating US laws-- drugs, this and that, you know. But it was, oh-- now you can argue about that. But that's how they proceeded. So for them it was completely an American issue, American law, American courts. So the international system was not involved.
Now you might ask the question, how does a particular type of conduct become an international crime. I think it's a labeling process. Torture became an international crime because we have the torture convention. States sat down, they then concluded a convention and declared it an international crime. So they can declare anything. In fact, there's a lot of discussion about human trafficking, that maybe they should do that.
Now of course the discussion about terrorism-- terrorism is not an international crime. And that's because, of course, like aggression, they can't agree on a definition. One nation's terrorist is another nation's liberator. So you have these problems.
But it's the labeling process. The international community would have to agree and designate that particular type of conduct as international. And then the courts have jurisdiction-- in terms of international courts.
AUDIENCE: I have a question. [INAUDIBLE] Belgium, for example.
MUNA NDULO: Belgium.
AUDIENCE: Belgium. is an exception. Because there is the case of [INAUDIBLE]
MUNA NDULO: Yeah, Belgium, yeah.
AUDIENCE: And several people who are accused of the war crimes, for example. And it was also possible-- because I know the case [INAUDIBLE]. And now there is the [INAUDIBLE]. It was actually brought by a woman, a Palestinian woman. That prevented [INAUDIBLE] Sharon [INAUDIBLE]. So I wonder--
MUNA NDULO: Why?
AUDIENCE: --if it's issue of [INAUDIBLE].
MUNA NDULO: Yeah. Well--
AUDIENCE: Why is it not possible [INAUDIBLE]
MUNA NDULO: Oh, OK. Well I think I made the point that you have universal jurisdiction. So-- oh, the question was why is Belgium able to do what it's doing. Belgium is indicting a lot of people in its courts-- for example, Sharon. They have said they will indict Kissinger too. They have said-- they have all these warrants.
MUNA NDULO: Yeah.
MUNA NDULO: Yeah. [INAUDIBLE]. Yeah, yeah, yeah.
There's actually a very simple expression for this. And that is that-- you see, all countries have universal jurisdiction. So any country in the world-- that's the fundamental norm in international law, of universal jurisdiction.
What does it mean? Universal jurisdiction means that for certain time-- crimes-- that is for international crimes-- a state has jurisdiction regardless of the perpetrator, where it happened, and who was a victim. Because usually you get jurisdiction because it happens territorially, in your country, or international. But universal jurisdiction says you can have an addiction regardless, but for those five.
So that explains why Spain had jurisdiction over Pinochet. Because Pinochet didn't commit those tortures in Spain. And Spain was arguing that they have jurisdiction because of universal jurisdiction. So every country can do that.
The difference between Belgium and other countries is that you need-- you see, international law needs domestic implementing legislation. Because when you go to court, the first thing a judge will ask you is that, OK, you're bringing this court case, show me that I have jurisdiction. He wants to know or she wants to know. And you have to be able to say, yes, this provision of the Constitution authorizes you to do that.
So the US has not passed legislation to authorize US courts to implement universal jurisdiction. Belgium, on the other hand, has done so. It has passed this very liberal legislation. And it sees itself as doing this on behalf of the world.
And in fact, we are getting more and more countries. The UK recently passed legislation. It's not as broad as the Belgian one, but it did. Spain has such legislation.
Now the question over why an individual can bring a prosecution is a matter for systems of law. You see, under the common law system-- like here-- you have the district attorney in charge of prosecutions and they initiate the prosecutions and all that. In the civil law system, judges can initiate the prosecutions. So people go and file a complaint with the judge, like happened with Pinochet-- they went to a judge actually in a small town in Spain-- and then the judge issues a warrant. And that's enough to start the process.
You don't do that in the UK because of the common law system. The state has established offices which actually look at this and then they initiate all these prosecutions. But in the other places, it's liberal, you can do that. But the key thing is that you have legislation.
And Belgium has, of course, as you know convicted-- the first case they used this legislation was what is called the Butare Four, the four nuns who were convicted in Belgium for genocide in Rwanda. And they never committed those crimes in Belgium. And Belgium did not claim that they did anything wrong in Belgium. But they happened to have been in Belgium, and they had the warrants, and are jail in Belgium because of that. So you can do that. But only with those five crimes.
Now they've had some problems. As you know, Belgium tried to indict the Congolese foreign minister. They issued a warrant for his arrest and then sent them around countries, saying that if you see this guy, please arrest him, which is the same as Pinochet. Now this matter, of course, the Congo then went up to the ICJ and complained that Belgium was harassing the Congolese government and that it was also not dignified to be doing things like this.
Now it provided an opportunity which is interesting and is relevant to the Bashir case. Because in the case of the Congo, the ICJ made a distinction that there's a distinction between trials that are going to be conducted by international tribunals and domestic courts. And they say that a head of state-- a serving head of state, which would apply to Bashir-- Belgium cannot do that. They have to wait until he leaves office.
But an international tribunal, you cannot. Because there you are claiming immunity. And immunity is a norm of international law. And of course the tribunal is international, so it's not-- you cannot be controlled by those kind of things. So with respect to an international tribunal, there is no immunity. You can be arrested even when you are sitting head of state.
And that was the same defense Taylor raised. Because Taylor said that, first of all, he was a head of state, but not only that, that the Accra Agreement under which should give up power gave him immunity. And it's true. If you read that agreement, it says, we will not prosecute you if you give up power.
But the International Court of Justice has said, no, nobody can give immunity to international crimes, so this is useless. So they refused to honor that process. You can give immunity with domestic law. The international courts will not pay any attention to that. And that's their position.
And now Belgium, of course, has been going after Hissene-- this guy, the Chad guy, the guy who came from-- Habre, who is now in Senegal. And they've indicted him too. And they want him in Belgium for trial. But of course then Senegal said, no, no, no, no, we are going to try him. And of course the ICJ said that, OK, Senegal should be given a chance to do that first. Yes, please. I'll come to them then here. Yes?
AUDIENCE: [INAUDIBLE] electing a representative to the [INAUDIBLE] representative to the Security Council each region goes through a process of [INAUDIBLE]. How does [INAUDIBLE]--
MUNA NDULO: The judges.
AUDIENCE: What other critera [INAUDIBLE]?
MUNA NDULO: Yeah, well the judges actually campaign. There are people-- there are lawyers-- that want to be on that court. So they usually go to their governments to nominate them. And then they start speaking to regional blocs that support us. Of course when they go to the General Assembly, they support these regional candidates as such. And that's how they win. So there's a lot of campaigning, just like the ICJ. You hear that so and so is running for the court and they were around. But the key is to get country support.
Now of course a lot of trading goes on. Because they might say-- the Africans might say-- you know what-- to Europe-- if you support this candidate, we will support yours too. So of course that way you get people elected. So it's a lot of that going on.
AUDIENCE: [INAUDIBLE] another question. I don't know if you've been following the case of the former US representative to the UN. [INAUDIBLE] I'm forgetting his name.
He-- I was told that he escaped arrest in Ireland. What would be the law-- under which laws--
MUNA NDULO: That would mean Ireland trying to exercise universal jurisdiction. One of the things that this new-found enthusiasm to arrest people for international crimes is that it has impacted on the travel of a lot of people. For example, Kissinger definitely doesn't really feel safe to go to Europe.
Because you see, one of the problems is that once, say, you go to Germany and the courts issue an order. The government cannot help you. Because if they do, they will be seen to be interfering in the judiciary. So you have to take protective measures yourself.
Because that's what happened to Pinochet. The British government didn't like the idea that Pinochet was arrested in Britain. I think that they'd have preferred that it didn't happen.
But they had no choice once it had happened. Because if the politicians interfered with the courts, then of course, it's like, what, there's no independence of the judiciary, you're interfering. So you have to avoid getting caught. But if you do, then really you are in some kind of trouble in terms of time and defending yourself.
And you don't know which warrants are out. Because what we know is that a lot of the human rights organizations-- Human Rights Watch has a division which keeps files, and they say that; Amnesty International is doing the same. If you look at the case of Pinochet, all the files were from Human Rights Watch.
AUDIENCE: So why didn't the ICC keep the warrant secret? They could have [INAUDIBLE].
MUNA NDULO: They could what?
AUDIENCE: Why didn't they keep the warrant secret?
MUNA NDULO: No. They have to announce the warrant once you indict somebody.
MUNA NDULO: No, no.
MUNA NDULO: No, no, no. What I'm saying is that in the case of-- the Pinochet case, they did not apply to the British government until he was actually in the UK. They were looking for what they call friendly jurisdiction, for you to be where they can do those kinds of things.
Because if Pinochet came here and they filed, the US government probably would not cooperate. So they try to look for these jurisdictions. Yes?
AUDIENCE: My turn?
MUNA NDULO: Yeah.
AUDIENCE: Well, I have a friend friend from Zambia whose initials are M N who I recommend for the ICC.
MUNA NDULO: OK.
AUDIENCE: All right, but seriously. Question is this. I think you made the case--
MUNA NDULO: Thank you, yeah.
AUDIENCE: --that Africa is not being picked upon.
MUNA NDULO: Yeah.
AUDIENCE: I think you made that very clearly. Moreover, Bush Two, Colin Powell, and Kofi Annan stated that genocide was occurring in Sudan. What's the problem? Who's saying-- my question is this-- who's saying that Africa is being picked upon by anyone?
MUNA NDULO: The AU. In their resolution.
AUDIENCE: All right.
MUNA NDULO: In their resolution, they did say that.
AUDIENCE: Exactly. That's also Gaddafi's organization.
MUNA NDULO: Gaddafi, huh? Yeah. But there have been sentiments by African scholars that have been picked up. But all I'm saying is that if you look at the cases, there are five from Africa. None of them were initiated by the court. So where is the evidence? That's what I'm asking.
AUDIENCE: Sure. You made your case.
MUNA NDULO: I don't see the evidence. Maybe in future. But right now, I don't see the case.
Because Kenya, for example-- in the Kenyan case, two Americans filed briefs to try and prevent the process. And the Kenyan government was mad with them. They actually denounced the two professors, because they were saying that the ICC was interfering in the internal affairs of Kenya. And the Kenyans said, no, we asked the court to come.
Now we might ask why is Kenya doing that. Well, it's a perception by Kenyans that they don't trust their own judiciary to deal with these cases. Because there is a tension in the country. So they want somebody else to deal with this problem. So it's a conscious decision they've made.
AUDIENCE: I just don't want to be monopolozing the debate, but there's a point that's been [INAUDIBLE] it's that, yes, we can agree with you that Africa was not [INAUDIBLE] just by evidence [INAUDIBLE]. But from the outside, the argument has been-- which is almost the argument that [INAUDIBLE]-- is the double standard international, that all of these things don't apply to Israel. Like why? I mean why is it not possible for the ICC to take a case like the recent Gaza [INAUDIBLE] violations [INAUDIBLE] case when it's so clear that this is a crime against humanity? He has [INAUDIBLE] of Jewish background. Came out and publicly embarrassed [INAUDIBLE]. And the US is also one case where it's not possible. So what about the double standard argument?
MUNA NDULO: Yeah, yeah, yeah. Well, in the case of Israel, actually the answer is quite simple in terms of the ICC. The ICC will tell you that Israel is not a member of the ICC. So the only way they can have jurisdiction is Security Council. And of course the US is going to veto that.
So it's a problem of the ICC really. Because Israel has not joined the ICC. And if you look at the jurisdiction, you have to be a member for them to-- for a state to interfere-- or a national of that.
So Israel is in the same situation as Sudan. Because Sudan is not a member. So the ICC could not exercise jurisdiction in Sudan. But the only way they are able to is the Security Council moved in and they referred this question.
So if you can get the Security Council of refer the Gaza question to the ICC, they will have the jurisdiction. But right now legally they can't, because Israel is not going to join in the court.
AUDIENCE: So then political power and political muscle play a role [INAUDIBLE].
MUNA NDULO: But what I'm saying is that it's more of a technical-- it's true that you have power, because of course the US. But if you look at the process, you then-- the person you should be blaming is the Security Council, isn't it, not the court? Because the court is handcuffed. There's nothing it can do actually. Because, according to the laws of the court, it can only exercise jurisdiction if the preconditions are met.
Where a state is not a member, only the Security Council can refer those cases. And they can do that, and that's what they've done in Sudan. So the Security Council is the body to blame for no action. That's what I'm trying to say. Yes, please.
AUDIENCE: My question is actually about Kenya and the [INAUDIBLE] cases and why they're being referred to the court rather than prosecuted domestically. Can you spoke to that?
MUNA NDULO: Yeah, I know little bit about the Kenyan process because luckily I've been involved in Kenya these last two years in the constitutional process. And I went there immediately after the violence and have just come back from there-- I was there last week.
There is very strong feeling in Kenya that there were crimes against humanity committed, that violence was used deliberately to cleanse certain areas of certain tribes. So this is generally the position.
There's also the problem that the Kenyans don't trust the Kenyan judiciary. And this is very evident even in the Constitution-making process. I was there and I've been-- last week, we concluded this draft now which is going to Parliament. And there is a provision there that the judges are all going to be vetted. They don't want the current judges. They say that they have to pass a test to see that-- they will subject them to tribunals and then investigate, because they say they're corrupt, they are biased, they are pro-government. So they don't believe.
In fact, when there was the dispute over the elections, Odinga-- who many believe won-- refused to go to court because he said, no, we don't trust these courts. They will rule for the government. So they don't want to use the local courts. So this is a conscious decision that it needs some outsider to clean up the system. And then later on they can proceed. So I think the answer is really that they're convinced nationally that they don't want to use Kenyan courts.
AUDIENCE: Do you think that that's a good use of the International Court?
MUNA NDULO: Well, yeah, I would think that it's an unfortunate use in the sense that it's very expensive. Because trials in Kenya would be much cheaper than trials in the Hague. And witnesses have been transported there. So there are a lot of costs.
But of course they believe that they weighed this against what could happen if in fact these things happened in Kenya. It has very strong support within Kenya in terms of the-- and interestingly, when I was there last week, the-- Obama's envoy on genocide, which is interesting, because he was busy giving press conferences in Kenya about how the court is doing wonderful things and that this process must go on. And he's actually saying on March 15 the court will announce the indictment over three people from Kenya. I don't know how he knows.
But then it's interesting because the US doesn't support the ICC. But in Kenya, they are like, oh, this is the right way to go. So it's very interesting. Yes, please.
AUDIENCE: Just one comment on the Israel thing, I had a question. Perhaps gleaning from your talk, maybe the strength of the ICC is also its weakness, i.e., being the treaty body so that it only confers rights and duties of those who actually are willing to sign it. Hence, that' why the self-referrals are happening. Because they have signed the treaty, they are [INAUDIBLE] but it doesn't really have juristic force that is broader than the treaty is, which is relevant [INAUDIBLE].
MUNA NDULO: Yeah.
AUDIENCE: And I have one question. As to the future of universal jurisdiction and whether it might be likely to decline, actually in cases filed under universal jurisdiction because now the ICC is there. I'm asking that because the universal jurisdiction cases that were brought by former colonizers against their former colonies--
MUNA NDULO: Colonies.
AUDIENCE: --were charged with this big issue of neo-colonialism--
MUNA NDULO: Yeah.
AUDIENCE: --so that colonialism is actually perpetuated now also by jurisdictional ties. And can we make some-- do we have kind of historical intuition whether the ICC might be a solution or another body that might alleviate that problem, the problem of jurisdictional [INAUDIBLE] or not?
MUNA NDULO: Yeah. The only problem, of course, with the ICC jurisdiction is that it's from the date of war. They can't try anything that happened before. And that again was a decision by states. So if you bring cases that happened before the court was created, the court is prevented from hearing those things.
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Muna Ndulo is a professor of law and director of the Institute for African Development at Cornell University. He is an authority on African legal systems, human rights, international criminal law, constitution making, election monitoring and international law and foreign direct investments.