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Article

The ILC Draft Articles on Crimes Against Humanity

An African Perspective

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords Africa, norm creation, crimes against humanity, colonial crimes, official immunity
Authors Alhagi B.M. Marong
AbstractAuthor's information

    Africa’s contribution towards the development of the International Law Commission (ILC) Draft Articles should not be assessed exclusively on the basis of the limited engagement of African States or individuals in the discursive processes within the ILC, but from a historical perspective. When analysed from that perspective, it becomes clear that Africa has had a long connection to atrocity crimes due to the mass victimization of its civilian populations during the colonial and postcolonial periods and apartheid in South Africa. Following independence in the 1960s, African States played a leading role in the elaboration of legal regimes to deal with international crimes such as apartheid, or in the development of accountability mechanisms to respond to such crimes. Although some of these efforts proved unsuccessful in the end, the normative consensus that was generated went a long way in laying the foundations for the Rome Statute of the International Criminal Court, which, in turn, influenced the conceptual framework of the ILC Draft Articles. This article proposes that given this historical nexus, the substantive provisions and international cooperation framework provided for in the future crimes against humanity convention, Africa has more reasons to support than to oppose it when negotiations begin at the United Nations General Assembly or an international diplomatic conference.


Alhagi B.M. Marong
Senior Legal Officer, United Nations Assistance Mission in Afghanistan (UNAMA).
Article

Le nouveau code de procédure pénale en Côte d’ivoire

entre avancées et innovations

Journal African Journal of International Criminal Justice, Issue 1 2020
Keywords Code de procédure pénale, Côte d’ivoire, droits de l’homme, justice, Criminal procedure code, human rights
Authors Judicaël Elisée Tiehi
AbstractAuthor's information

    Longtemps critiqué pour son système pénal jugé suranné, l’Etat de Côte d’ivoire a fait le choix de se doter d’un nouveau de procédure pénale dans le sillage de sa politique de réforme juridique et institutionnel et de modernisation de son système judiciaire. Adopté par la loi n° 2018-975 du 27 décembre 2018 en vue de le conformer aux standards juridiques nationaux (la Constitution de 2016) et internationaux, ce nouveau code à l’architecture profondément restructurée consacre des avancées majeures en matière de protection des droits de l’homme dont l’une des plus emblématique reste la codification inédite de principes directeurs irradiant les différentes phases de la procédure pénale. Ces innovations, matérialisées par la consécration de mécanismes procéduraux révolutionnaires ainsi que par la création des institutions pénales nouvelles, constituent un tremplin vers la consolidation de l’Etat de droit dans le cadre duquel les attributs d’indépendance, d’impartialité et d’équité procédurale occuperont une place de choix.

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    Long criticized for his outdated criminal system, State of Côte d’ivoire has established a new criminal procedure code in the wake of its legal and institutional policy reform and modernization of its judicial system. Adopted by law n° 2018-975 on 27 December 2018 in order to comply it with national (constitutional provisions of 2016) and international legal standards, this new code with its profoundly restructured architecture enshrines major advances in relation to human rights protection, one of the most emblematic of which is the codification of guiding principles covering of various stages of criminal procedure. These innovations, embodied in setting of revolutionary procedural mechanisms and creation of new penal institutions are springboards towards the development Rule of law in which attributes of independence, impartiality and procedural equity will occupy a prominent place.


Judicaël Elisée Tiehi
L’auteur est Doctorant-chercheur en droit international public au Centre Jean Bodin de l’Université d’Angers. Sous la co-direction de Caroline DUPARC (Maître de Conférences en droit privé et sciences criminelles à l’université d’Angers - France) et Annalisa CIAMPI (Professeure de droit international public à l’université de Vérone – Italie), ses travaux de recherches portent sur « Les droits procéduraux devant la Cour pénale internationale: essai critique sur le régime de participation des victimes ». Il tient à remercier sincèrement Mauriac GNOKA pour son assistance documentaire, Hermann Rodrigue ABY et Prudence Claire-Josiane TIEHI pour leurs précieuses relectures.
Article

The ICC or the ACC

Defining the Future of the Immunities of African State Officials

Journal African Journal of International Criminal Justice, Issue 1 2020
Keywords ICC, ACC, immunities of African state officials, customary international law rules on immunities, Article 46A bis of the 2014 Malabo Protocol
Authors Aghem Hanson Ekori
AbstractAuthor's information

    The International Criminal Court (ICC), whose treaty came into force about 18 years ago, was highly celebrated at the time of its creation in 1998 by many African states, led by the African Union (AU), even though it does not recognize the immunities of state officials before its jurisdiction. Conversely, the African Criminal Court (ACC), which was established in 2014 through a Protocol by the AU, recognizes the personal immunities of serving African state officials before its jurisdiction. Accordingly, this article argues that both Article 46A bis of the Malabo Protocol and Article 27 of the Rome Statute are neither inconsistent nor violative of the customary international law rules on the immunities of state officials. It further suggests that the immunity provision in Article 46A bis may be an affront to justice to the people of Africa as long as the state officials are in office despite its seeming consistency with customary international law rule. Finally, in exploring the future of the immunities of African state officials, the article will examine the possibility of blending the jurisdictions of both the ICC and the ACC through the complementarity principle since both courts are aimed at ending impunity for international crimes.


Aghem Hanson Ekori
Doctoral candidate at UNISA, 2020, LLM, UNISA, LLB, University of Dschang, Cameroon.

    The UN General Assembly established the International Law Commission (“ILC”) in 1947 to assist States with the promotion of 1) the progressive development of international law and 2) its codification. The ILC’s first assignment from the General Assembly was to formulate the Nuremberg Principles, which affirmed the then radical idea that individuals can be held liable for certain international crimes at the international level. Since then, the ILC has played a seminal role in the development of modern international criminal law. In 2017, the ILC adopted on first reading a draft convention aimed at the prevention and punishment of crimes against humanity which it transmitted to States for comments. The draft treaty will help fill the present gap in the law of international crimes since States criminalized genocide in 1948 and war crimes in 1949, but missed the opportunity to do so for crimes against humanity. This Article examines the first reading text using the lens of the ILC’s two-pronged mandate. Part II explains how the ILC can take up new topics and the main reasons why it decided to propose a new crimes against humanity convention. Part III discusses positive features of the draft convention, highlighting key aspects of each of the Draft Articles. Part IV critiques the ILC draft treaty focusing on inconsistencies in the use of the ICC definition of the crime, immunities, amnesties, and the lack of a proposal on a treaty monitoring mechanism. The final part draws tentative conclusions. The author argues that, notwithstanding the formal distinction drawn by the ILC Statute between progressive development, on the one hand, and codification, on the other hand, the ILC’s approach to the crimes against humanity topic follows a well settled methodology of proposing draft treaties that are judged likely to be effective and broadly acceptable to States rather than focusing on which provisions reflect codification and which constitute progressive development of the law. It is submitted that, if the General Assembly takes forward the ILC’s draft text to conclude a new crimes against humanity treaty after the second reading, this will make a significant contribution to the development of modern international criminal law.


Charles C. Jalloh B.A. LL.B Ph.D
Professor of Law, Florida International University and Member, International Law Commission.
Article

Civil Society Perspectives on the Criminal Chamber of the African Court of Justice and Human Rights

Journal African Journal of International Criminal Justice, Issue 1-2 2018
Keywords Malabo Protocol, African Court, Criminal Chamber, International and Transnational Crimes, African Union
Authors Benson Chinedu Olugbuo LLB BL LLM Ph.D.
AbstractAuthor's information

    In June 2014, African Heads of States and Governments adopted the Protocol on the Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights in Malabo, Equatorial Guinea. The Malabo Protocol seeks to expand the jurisdiction of the African Court to international and transnational crimes. This development raises fundamental issues of jurisdiction, capacity, political will and regional complementarity in the fight against impunity in the African continent. The paper interrogates the role of Civil Society Organisations in the adoption and possible operationalisation of the Court in support of the efforts of the African Union to end human rights abuses and commission of international and transnational crimes within the continent.


Benson Chinedu Olugbuo LLB BL LLM Ph.D.
LLB (Nigeria); BL (Abuja); LLM (Pretoria); Ph.D. (Cape Town); Executive Director, CLEEN Foundation, Abuja–Nigeria and Research Associate, Public Law Department, University of Cape Town, South Africa.
Article

The Rome Statute Complementarity Principle and the Creation of the African Court of Justice and Human and Peoples’ Rights

Journal African Journal of International Criminal Justice, Issue 1-2 2018
Keywords Rome Statute, International Criminal Court, complementarity, African Court of Justice and Human and Peoples’ Rights, unwillingness and inability
Authors Muyiwa Adigun LLB, LLM PhD
AbstractAuthor's information

    The Rome Statute places the responsibility of prosecuting crimes recognized under the Statute on state parties and the International Criminal Court (ICC) and will only intervene when such states are unwilling or unable. This is called the principle of complementarity. Thus, African state parties to the Statute are expected to prosecute crimes recognized under the Statute. However, these African state parties and their counterparts who are not parties have decided to create the African Court of Justice and Human and Peoples’ Rights, which, like the ICC, will prosecute the crimes recognized under the Rome Statute if they are unwilling and unable. This study therefore examines the question of whether the creation of the African Court of Justice and Human and Peoples’ Rights is compatible with the obligation of the African state parties under the Rome Statute to prosecute. The study argues that the creation of the Court can be reconciled with the obligation to prosecute under the Rome Statute if the African Union, of which the Court is its judicial organ, is considered to be the agent of the African state parties, which invariably implies that the African state parties are the ones carrying out the prosecution as principals.


Muyiwa Adigun LLB, LLM PhD
LLB, LLM (Ibadan); PhD (Witwatersrand); Lecturer, Faculty of Law, University of Ibadan, Ibadan, Nigeria.
Article

Access_open Joint Criminal Enterprise before the Chambres Africaines Extraordinaires

Hissène Habré’s Direct and Indirect Criminal Liability

Journal African Journal of International Criminal Justice, Issue 1-2 2017
Keywords International criminal law, joint criminal enterprise, complicity, Chambres Africaines Extraordinaires / Extraordinary African Chambers, hybrid tribunals
Authors Kerstin Bree Carlson
AbstractAuthor's information

    The Chambres Africaines Extraordinaires (CAE), ad hoc chambers operating under the auspices of the Dakar municipal courts, were constructed to try Hissène Habré. In targeting Habré, the CAE was designed to appease Chadian calls for justice (from Habré’s victims, on one hand, and the Déby regime, on the other), resolve Senegal’s impasse over the legality of Habré’s culpability and allow the African Union to meet its leadership obligations. To this tall order, the CAE was required to exercise legitimate judicial authority in the contested sphere of international criminal law (ICL), where content is pluralist and political.
    This article examines the CAE’s finding of Habré’s culpability for war crimes, crimes against humanity and torture. The article shows that the CAE applied a novel construction of liability under ICL and argues that it did so in order to strengthen its authority and legitimacy. By so doing, the CAE has made a significant addition to the field of ICL. This article explores the CAE’s application of joint criminal enterprise (JCE) to consider how the internationally formulated doctrinal standard is reshaped by CAE practice.


Kerstin Bree Carlson
University of Southern Denmark and The American University of Paris.

    Focus on whether a criminal chamber in a reformed African Court represents progress or retrogression relative to advances made in the Rome Statute shifts attention from the similar foundation of the two courts on an epochal bifurcation between the worst human rights abuses and quotidian wrongs. This bifurcation compromises our understanding of how abuses are related, what we should do about them and how we should go about studying them. It is at the core of aspects of the International Criminal Court (ICC) that have come under severe criticism. It also imperils the criminal chamber of the nascent African Court.


Ato Kwamena Onoma
Council for the Development of Social Science Research in Africa.
Article

The International Criminal Court and Africa

Contextualizing the Anti-ICC Narrative

Journal African Journal of International Criminal Justice, Issue 1-2 2016
Keywords International Criminal Court (ICC), security, African Union (AU), war crimes, international law
Authors Brendon J. Cannon, Dominic R. Pkalya and Bosire Maragia
AbstractAuthor's information

    This article critiques attempts by some in Africa to brand the International Criminal Court (ICC) as a neocolonial institution and stooge of the West. These arguments accuse the ICC of playing a double standard, being overly focused on trying African defendants, and warn that the Court risks exacerbating factionalism and ethnic divisions thereby threatening peace and reconciliation efforts. Although we neither defend nor champion the ICC’s mandate, we deem such criticisms as hyperbole. At best, they attempt to whitewash the instrumental role played by African states in the birth of the Court and ignore the fact that many of the ICC cases were referred there by African governments. Furthermore, the current African narrative understates the ICC’s potential to midwife local judiciaries and contribute positively towards conflict resolution in Africa through the promotion of at least a measure of accountability and offers of justice, thereby taming elite immunity and impunity in states where justice regimes are either weak or non-existent. Until African states strengthen their judiciaries to ensure such references to the ICC are indeed a last resort, the Court will continue to remain the only credible forum for states emerging from conflict and seeking justice and reconciliation.


Brendon J. Cannon
Brendon J. Cannon is an Assistant Professor of Political Science at Khalifa University’s Institute of International and Civil Security (IICS) in Abu Dhabi, UAE.

Dominic R. Pkalya
Dominic R. Pkalya is a post-graduate student at Kisii University, Faculty of Social Sciences in Nairobi, Kenya.

Bosire Maragia
Bosire Maragia is an Adjunct Lecturer of Political Science (African Politics) at the University of Maryland, Baltimore County, USA and works for the United States Federal Government. The views expressed herein are his and do not reflect or constitute official US government policy.
Article

The Fight against Corruption in Sierra Leone

Challenges and Opportunities in the Jurisprudence

Journal African Journal of International Criminal Justice, Issue 1-2 2016
Keywords Accountability, corruption, judicial approach, jurisprudence, reforms
Authors Michael Imran Kanu
AbstractAuthor's information

    The fight against corruption in Sierra Leone gained momentum, at least in terms of policy direction, following the enactment of the Anti-Corruption Act 2000 and the Amendment Act in 2008. It is considered to be one of the most robust anti-graft laws in the world and its promulgation is in recognition of the international and national resolve to fight the menace, owing to its devastating effects, especially in the Least Developed Countries (LCDs) of the world. The Anti-Corruption Act of 2000, though viewed as a tremendous move towards curtailing corruption, was riddled with shortcomings. Practitioners viewed the Act as limited in the number of proscribed offences created, coupled with the lack of independence signified by the absence of prosecutorial powers. With the enactment of the Amendment Act in 2008, it is crucial to examine the opportunities it has created to eradicate corruption. Critical also to the national and global resolve is the consideration of challenges that may have sprouted. This paper will examine some of the opportunities and challenges in the jurisprudence in the fight against corruption in Sierra Leone, with the aim of providing an avenue for reflection as well as a prompter for legislative reforms or change in judicial approach.


Michael Imran Kanu
Department of Legal Studies, Central European University. Email: Kanu_Michael@phd.ceu.edu.

    Over the last decade, Nigeria has witnessed several high-intensity conflicts. It became a country under preliminary investigation by the International Criminal Court (ICC) following allegations of serious crimes. In 2013, the boko haram insurgency was classified as a “non-international armed conflict.” Commentators appear divided over the capacity and willingness of domestic institutions to manage crimes arising from or connected with conflicts in Nigeria. Those who argue for unwillingness often point to the struggle to domesticate the Rome Statute of the International Criminal Court (Rome Statute) as one of the clearest indication that there is not sufficient interest. This article interrogates the question of seeming impunity for serious crimes in Nigeria and makes a case for domesticating the Rome Statute through an amendment to the Crimes against Humanity, War Crimes, Genocide and Related Offences Bill, 2012 pending before the National Assembly.


Stanley Ibe
LL.B. (Lagos State University, Nigeria); LL.M. (Maastricht University, The Netherlands); Postgraduate Diploma in International Protection of Human Rights (Abo Akademi, Finland). Ibe is an associate legal officer for Africa at the Open Society Justice Initiative. He writes in a private capacity.

    To ensure its continued viability, the International Criminal Court must find “practical” ways to appeal to its African (and global) audience, options that do not require substantial additional funding or revisions to the Rome Statute while remaining true to fundamental principles of international justice. Subject to such limitations, this article examines the “end product” of the ICC – the judgments authored by the Trial Chambers to date. Unfortunately, these opinions are simply incomprehensible to any but a few specially trained, highly interested stakeholders. They are extraordinarily complex and lengthy and fail to emphasize or address issues that are clearly important to the audiences in states where atrocities have occurred. The article reviews existing judgments and provides suggestions for future improvements, thereby increasing accessibility to African leadership, civil society organizations, and the public at large. Such efforts will contribute to increased legitimacy and, consequently, the long-term impact and relevancy of the Court.


Matthew C. Kane
Matthew C. Kane is a Visiting Assistant Professor at the University of Oklahoma College of Law, teaching courses on criminal law, torts, and international and comparative criminal law. He also serves a director and shareholder of Ryan Whaley Coldiron Jantzen Peters & Webber PLLC, concentrating on criminal and complex civil law matters. Special thanks to The Hague University of Applied Sciences, which organized the conference “Africans and Hague Justice,” where this paper was originally presented.
Article

Access_open Irreconcilable Differences?

An Analysis of the Standoff between the African Union and the International Criminal Court

Journal African Journal of International Criminal Justice, Issue 0 2014
Keywords International Criminal Court, African Union, Kenya investigation, immunity, Heads of state
Authors Mia Swart and Karin Krisch
AbstractAuthor's information

    From initial African support for the establishment of the International Criminal Court to recent proposals that African states should withdraw from it, the article traces the history of the relationship between the African Union and the Court and the reasons for its deterioration. The discussion is focussed on the issue of immunity for sitting heads of state, which has emerged as a major sticking point between the two organisations. The disagreement is illustrated with reference to the ICC’s efforts to prosecute the Kenyan President and his deputy. We examine the legal position on head-of-state immunity at international law, and proceed to evaluate the AU’s proposal that the ICC should amend the Rome Statute to provide for immunity for sitting heads of state, as well as the amendment to the Protocol of the African Court of Justice and Human Rights, in light thereof.


Mia Swart
Mia Swart is Professor of International Law at the University of Johannesburg, South Africa.

Karin Krisch
Karin Krisch is LLM candidate at the University of Johannesburg, South Africa. The authors thank Prof. Charles Jalloh for his insightful comments and guidance.
Article

Access_open “Can These Dry Bones Live?”

In Search of a Lasting Therapy for AU and ICC Toxic Relationship

Journal African Journal of International Criminal Justice, Issue 0 2014
Keywords Criminal accountability, acta sunt servanda, Conflicts, Arrest warrant, Official immunity
Authors Nsongurua J. Udombana
AbstractAuthor's information

    The competing visions of international criminal justice between the International Criminal Court (ICC) and the African Union (AU) reached a climax with the recent adoption of the AU Protocol enlarging the mandate of the African Court of Justice and Human and Peoples’ Rights to cover criminal jurisdiction. The Protocol, inter alia, grants immunity to state officials for atrocious crimes, which clearly conflicts with the ICC Statute’s normative framework. This dialectic is bound to deepen an already toxic relationship between the two international players. This article calls for practical reasonableness by all stakeholders in order to revive the diminishing effort at advancing international criminal justice in Africa.


Nsongurua J. Udombana
2014: LLM, LLD; of the Nigerian Bar; Professor of International Law, Babcock University, Nigeria; udombana@hotmail.com.
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