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Opening address of His Lordship Mohamed Chande Othman at AFLA’s “Africa and the ICC: 10 Years On” conference

OPENING REMARKS BY HIS LORDSHIP MOHAMED CHANDE OTHMAN, CHIEF JUSTICE OF THE UNITED REPUBLIC OF TANZANIA TO THE AFLA/COMMONWEALTH SECRETARIAT/ILAC/IBA ORGANISED CONFERENCE ON: “AFRICA AND THE ICC, 10 YEARS ON”

(February 28th – March 1st, 2013; Arusha, Tanzania)

Prof Shadrack Gutto, Chairperson of Africa Legal Aid (AFLA) and members of the AFLA Governing Council,
H.E. Ambassador Tiina Intelman, President of the Assembly of State Parties to the ICC,
H.E. Bongani Majola, Registrar of the International Criminal Tribunal for Rwanda,
H.E. Hassan Jallow, Prosecutor of the ICTR and the UN Residual Mechanism;
H.E.Justice Sofia Akuffo, President of the African Court on Human and Peoples’ Rights,
H.E. Fatou Bensouda, the Prosecutor of the ICC,
H.E. Evelyn Ankumah, Executive Director, AFLA,
Representatives of the Commonwealth Secretariat, the International Legal Assistance Consortium and the International Bar Association,
Excellencies Members of the Diplomatic Corps, Distinguished Participants, Invited Guests, Ladies and Gentlemen,

Good morning.

Thank you very for associating me with this Conference of special significance to Africa’s commitment to international criminal justice and a concerted re-examination of African and the ICC, almost a decade after its establishment. Your invitation to me to grace this Conference resonates well with my own past engagements both professional and scholarly, with serious human rights and international humanitarian law concerns. So, once again, thank you for bringing me back into the fold of issues that are of singular interest to me.
Let me also avail this early opportunity to commend the Board of Governors of Africa Legal Aid for convening this Conference, which is being organized in cooperation with the International Legal Assistance Consortium, the International Bar Association and the Commonwealth Secretariat and with the support of  the International Criminal Tribunal for Rwanda (ICTR).
The choice of Arusha as venue of your Conference is both apt and fortunate. Arusha is not only the seat of the ICTR, the African Court on Human and People’s Rights and the East African Court of Justice; it is also the City that has over the years, in the 1990s in particular, hosted ground breaking peace conferences and the adoption of historic political and constitutional accords. As a Tanzanian, I should also add that Arusha’s ambiance and serenity reflects its centrality in a region, probably incomparable to anything else in the world, that is so rich in natural splendour, wildlife and of course, the historical traces of the origins of the homo sapiens.  As a representative of the Host State, which was among the first States to ratify the Rome Statute of the ICC on 20 August 2002, allow me to extend a very warm welcome to all the distinguished delegates to Tanzania. I wish you a very productive meeting and a memorable stay.
Mr Chairman,
The whole world today is applauding and celebrating Africa’s renewal and renaissance marked by more than a decade of consistently high rates of economic growth. This economic resurgence offers new hopes for uplifting millions of Africans from abject poverty. Yet it is a renaissance that is challenged by old and new social and political fractures. The demographic implosion is particularly posing acute concern. Reaping its dividends necessitates careful attention and adoption of bold and innovative policy and strategic interventions. The contrary would be a devastating demographic curse and even an apocalypse! Other destabilising challenges include acts of terror, often religious driven, armed insurgencies and political conflicts and instabilities of various varieties. I mention these fractures, social tensions and conflicts to underline the crucial point that some of these challenges have in the recent past been the triggers for the perpetration of genocide, crimes against humanity and war crimes.
We cannot therefore afford to be oblivious of the reality that the ugly face of violent and atrocity crimes against humanity still stalks us; we commit to run but somehow we seem to fail to hide; because we largely fail to walk the talk. It is incumbent upon African Governments to imperatively and better address the root causes of the factors that drive violent and grave crimes and seek effective solutions. In this particular context and as grave reality still stares us in the face, the need for the International Criminal Court and the strengthening of national and regional criminal justice systems to investigate and prosecute the most serious international crimes of concern to the international community as a whole, could not be of lesser importance. Indeed, if for any other reason, this multi-stakeholder Conference is both pre-eminent and timely in its focus on Africa and the ICC: 10 Years On.
Mr Chairman,
It is an undeniable fact that Africa was plainly present throughout the entire process that lead to the unprecedented adoption of the Rome Statute on 17th July 1998, and the creation of the ICC as a permanent, international and independent Court. Africa was an integral part of that endeavour, and in many respects, remains so.  To recall, Senegal was the first State to ratify the Rome Statute on 2nd February 1999. On 11th May 2013, the Statute will enter into force for its 122nd State, another African State, Cote d’Ivoire, which earlier had commendably even accepted as of 19th September 2002, the Court’s jurisdiction before it ratified that treaty. To date, 33 Africa States are parties to that Instrument. But 21 States Members of the African Union are yet to be part of it!
Mr Chairman,
In that regard, I would propose that one of the leading questions that call for early reflection is the soundness and validity, today, I0 years on, of the founding and governing principles of the Rome Statute. To start with, a plea against a permanent, independent, international and impartial international criminal court has ‘no air of reality’, this present day. It is also uncontested that national jurisdictions have and should continue to have primary responsibility for the investigations and prosecutions of crimes falling under the Court’s jurisdiction. The ICC was also conceived as a Court of last resort, only able to proceed where a State is unwilling or unable to act. This principle of complementarily was agreed upon as a well suited modality of accountability and of restraining impunity. Effective cooperation between States and the ICC was the rock bed on which the Statute depended. Victims of atrocity crimes, marginalized in the past, were accorded by the Statute a rightful place. I have purposely flagged some of the governing principles so that you do not shy away from re-examining their strength, and of utmost importance, their application to and in Africa.
Mr Chairman,
It is universally acknowledged that States have primary responsibility for the investigation and prosecution of crimes prescribed in the Rome Statute and the ICC is complementary to national criminal justice systems. I do not see Africa in quarrel with this acceptable position. However, it is important underline that the diligent discharge of that responsibility presupposes the domestication of the Rome Statute and the existence in African States of  effective law enforcement agencies in terms of viable criminal investigations agencies or police forces; independent prosecutorial authorities; independent, impartial , fair and trustworthy judiciaries; Legal Aid or other schemes capable of affording the indigent rights to effective legal representation; Victim and Witness protection arrangements, and other guarantees of due process, as well as public confidence in justice. No doubt capacity can be build, but to what extent are African Governments investing in these abilities? Bearing in mind the fight against impunity, African Governments cannot on one side, pay lip service to their primary responsibility under the Statute, and on the other cry foul when the ICC steps in and invokes the principle of complementarity.
Mr Chairman,
While the ICC is dealing with other regions probably without too much harped sensitivity, it is an open secret that its role in Africa has aroused some consternation leading to a contentious and strenuous relationship with the African Union (AU) and some African States signatory to the Rome Statute. It would seem to me that the ICC-AU relationship needs to be better addressed,   particularly in the framework of a better clarified ICC role revolving around a number of issues.
The first, emerging out of the governing principles, resolves around the primacy of national jurisdictions and the complementarily role of the ICC. The second relates to the relationship between the African Union, the UN Security Council and the ICC, in matters of deferral and referral. The issues arising thereof, are partly responsible for the lack of co-operation. The reasoning seems simple, though highly complex in terms of the mandate of the ICC.
In effect, the ICC’s authority and brief, to step in a demonstrated situation of a State Party’s unwillingness or inability to effectively investigate and prosecute, carries with it a difficult responsibility which invariably invokes and provokes national political passions that also attract regional political sympathy and support. How to strike a delicate balance between robustly enforcing the ICC mandate and appreciating the political sentiments of national jurisdictions and sovereignties is an overly complex task and yet an essential one.  We must however , at the same time fully endorse as sacrosanct the  principle that the ICC and Courts in national jurisdictions must at all times be, and must be seen to be, independent, impartial, fair, credible and non political.
I believe, in this vein, that it is paramount to recognise, even as learned jurists that all institutions, including those responsible for criminal justice, exist and operate in a social and political milieu. They cannot completely avoid or shun what the Nobel Economics Laureate, Amartya Sen describes as “an appropriate recognition of the role and efficacy of the reasoned public voice-within nations and across the world.” It is my hope that the diversity of representation at this Conference constitutes a platform of such “reasoned public voice” from around Africa and beyond that would ably respond to this complex balancing equation.
Mr Chairman.
The third issue relates to what the African Union describes as the abuse of the application of the principle of universal jurisdiction especially promoted by some European States and focused on the arrest and prosecution of African Heads of State and Government and other Senior Officials. The non-co-operation between the AU and the ICC, which officially holds until now and which has led the AU to float the idea and a Protocol to extend the jurisdiction of the African Court on Human and People’s Rights to cover the crimes of genocide, crimes against humanity and war crimes centres on this question. Indeed, the AU has now formulated an African Model National Law on Universal Jurisdiction over International Crimes which awaits adoption. It would be interesting to see how this Conference will respond to these developments and ideas particularly after considering the debates in the UN General Assembly Legal Committee and the guidance received from the International Law Commission.
Addressing the East African Magistrates and Judges Association Conference in Kigali, Rwanda, in May last year, 2012, an informed observer, Christopher Gevers noted that there has been ‘collateral damage’ to universal jurisdiction as a result of the recent deterioration in the relationship between the ICC and the AU and that African states’ concerns on the ICC have, to quote, “ affected the principle of universal jurisdiction negatively as it has been painted with the same neo-colonial and imperial brush that has been used to call into question the international criminal justice system generally.” End of quote. Is this a correct perception?
Be that as it may, this Conference is compelled to address itself to the current conundrum facing the AU and the ICC in the context of the decision of the AU to extend the jurisdiction of the African Court on Human and People’s Rights to cover grave international crimes. This development has raised interesting debates in various intellectual and civil society quarters. Let me say as obiter, that it is sterile in my view and probably unconvincing as well, to argue as some have that the expansion of the mandate of the African Court on Human and People’s Rights would grossly dilute and water-down the current mandate of the ICC. With great respect, the merits of such argument seem unconvincing.
Equally, the proposition that the cost of a single international criminal trial being about US$ 20 million which is close to the African Union’s annual budget makes no economic sense for African States that often even fail to pay their annual AU membership subscriptions and that therefore extending the African Court’s jurisdiction would only result in ineffectiveness for lack of adequate financial resources is hypocritical, if not insulting.
Rather than raise such subjective points, the ‘reasoned public voice’ I called upon earlier, should instead direct its mind to the fundamental disconnects that exist between the ICC and the AU, for it is evident that what underlies the AU decision to seek to extend the African Court’s jurisdiction is its apparent dissatisfaction with the manner and style in which the ICC exercises its role. In fact, it is of critical importance that African Governments that are party to the Rome Statute fully engage their civil societies on the current AU stance. It seems to me that there is a disconcerting gulf presently between a coalition of African Civil Society Organisations and African Governments with respect to the AU’s stand on the ICC.
A letter written on 17th January this year to the AU Commission Chairperson by 140 African Civil Society Organisations, in the prelude to the 20th AU Summit, calls upon the AU to, among other things, to mend its relations with the ICC given the strong support of the institution by African citizens. Interestingly though, the letter also supports, in principle, the idea about extending the jurisdiction of the African Court on Human and People’s Rights to cover grave international crimes. Of course, the letter cautions that such extended mandate should not compromise the ICC’s jurisdiction as per the Rome Statute.

 

No doubt, there is a general view and probably correct that shifting the mandate from ICC to the African Court could be a fool’s errand since State parties to the Rome Statute cannot be relieved of their international obligations to co-operate with the ICC. It is debatable; however, whether such obligation would extend to new cases after the African Court has been expressly mandated by AU Member States to hear cases involving corresponding international crimes. In fact, it is conjectured that the monopoly of the ICC in such cases could actually be liberalised through the amendment of Article 17 of the Rome Statute by making reference to ‘a State or regional criminal justice mechanism’.
Mr. Chairman,
Benefiting from hindsight, a question that I would place before distinguished participants for additional inquiry is whether or not the fight against impunity and one that critically targets those with the greatest responsibility for mass atrocity crimes can be successfully won, with regional criminal justice mechanisms completely left out of the equation or whether conferring criminal jurisdiction on and enlisting the full cooperation of Regional Organizations and their institutions provides the holistic approach, indispensable for full blown accountability and a comprehensive crack down on impunity in Africa. What ‘collateral damage’ would ensue to the ICC, if the envisaged African Court’s mandate were to proceed in a manner consistent with the purposes and  governing principles of the Rome Statute and was to emerge as a matter of delegation, decentralized accountability, burden sharing, constructive cooperation and added complementarity? Not competition, rivalry or political goal shifting.
Mr Chairman,
One may further ask, if the United Nations Charter accepts without of flicker of hesitation, the complementary of Regional Organizations in the maintenance of international and regional peace and security; and the international human rights protection system places a high premium on regional human rights mechanisms, some of which have proven credibility and effectiveness, such the Inter-American human rights institutions or the European Human Rights system, why the early distaste for an African Regional justice mechanism that goes towards deepening and reinforcing national and international accountability?  In putting this issue before you, I am minded in borrowing what Woodrow Wilson once said in respect to the Constitution; that the Rome Statute is not honoured by “blind worship”; rather it requires all of us to be “open eyed” to its incompleteness and imperfections, if any, either in its governing principles or their day to day application, 10 years on. With some force, it could be argued that the Rome Statute did not forcefully envision regional justice mechanisms as complementary to national and international jurisdictions. But again, that was in 1998.
Mr Chairman,
To conclude and as I noted earlier, this is an important Conference coming as it is at a critical juncture when there is a worrisome state of flux in the relationship between the African Union and the ICC. Many of us seriously committed to helping our continent in saying NEVER AGAIN to acts of impunity and atrocities and ensuring that perpetrators, in particular those with the greatest responsibility are brought to book and prosecuted under effective and credible systems of criminal justice would value the conversations, dialogues and outcomes that will take place here in the next few days. I wish the Conference fruitful deliberations.
With these remarks, it is now my honour and privilege to declare this Conference open.
Thank you very much. Asanteni sana.

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