This book critically analyses diverse international criminal law (ICL) issues in light of recent developments in the international criminal justice system following the pursuit of accountability in Africa and around the world. It gives a scholarly analysis of issues pertaining to ICL and the pursuit of accountability in Africa by way of several topics including universal jurisdiction in Africa, Boko Haram in Nigeria, the legitimacy of the ICTR, the law of genocide committed against the Herero and Nama peoples, the African perspective on international co-operation in criminal matters, the Malabo Protocol, and whether an African Regional Court is a viable alternative to the ICC.
Further discussed are other aspects of ICL, such as prosecuting sexual and gender-based crimes at the ICC, sexual and gender-based crimes perpetrated against men, guilty pleas within ICL and slavery within international criminal justice. With this, the book also refers to the jurisprudence of several international courts and tribunals including the ICTR, the ICTY, the SCSL, the ICC, the ECCC, the KSC, and the STL. This timely contributed volume updates international criminal law experts, practitioners, academics, human rights activists and other stakeholders on contemporary developments in ICL and provides recommendations that address accountability for mass atrocity crimes and ideas for strategic ICL litigation at the national, international, regional and sub-regional levels. It will prompt constructive exchanges on what can be improved in prosecuting mass atrocity crimes around the world.Takeh B.K. Sendze is an Advocate and Legal Officer with the United Nations International Residual Mechanism for Criminal Tribunals in Arusha, Tanzania.
Adesola Adeboyejo is a Trial Lawyer at the International Criminal Court.
Sir Howard Morrison QC is a former International Judge and an Associate Tenant at Doughty Street Chambers in London, United Kingdom.
Sophia Ugwu is a Solicitor and Advocate who founded the Centre for African Justice, Peace and Human Rights in The Hague, The Netherlands.
Author(s): Takeh B. K. Sendze, Adesola Adeboyejo, Howard Morrison, Sophia Ugwu
Publisher: T.M.C. Asser Press
Year: 2023
Language: English
Pages: 456
City: Berlin
Foreword
Preface
Contents
Editors and Contributors
1 Introduction
1.1 Background and Context of the Book
1.2 Overview of the Contents
Part I International Criminal Law: Looking Through the African Lens
2 Bring Justice to Our Girls? The ICC Inquiry into Boko Haram in Nigeria
2.1 Introduction
2.2 Boko Haram
2.3 The ICC Process
2.3.1 Framework
2.3.2 Implementation in the Nigeria Situation
2.3.3 Completion
2.4 Alleged International Crimes by Boko Haram
2.4.1 Case I: Attacks on Civilians
2.4.2 Case II: Abduction and Detention of Civilians
2.4.3 Case III: Attacks on Schools, Teachers, and Students
2.4.4 Case IV: Recruitment and Use of Child Soldiers
2.4.5 Case V: Gender-Based Crimes
2.4.6 Case VI: Attacks on Buildings Dedicated to Religion
2.4.7 Case VII: Attacks on Humanitarian Workers
2.4.8 Case VIII: Attacks Directed at Christians
2.5 Next Steps and Lessons for Future Situations
2.5.1 Immediate Next Steps
2.5.2 Implications for the Preliminary Examination Process
2.5.3 Africa—ICC Relations
2.6 Conclusion
References
3 Is an African Regional Court a Viable Alternative to the International Criminal Court? A Neutral View
3.1 Introduction
3.2 Internationalization of Criminal Justice
3.2.1 Post-World War I
3.2.2 Post-World War II
3.2.3 Post-Cold War
3.2.4 The International Criminal Court
3.3 Regionalization of ‘International’ Criminal Justice
3.4 The Malabo Protocol
3.4.1 The African Regional Court
3.4.2 Roadmap to the African Court
3.5 Jurisdiction of the African Court
3.6 The African Regional Court; A Viable Alternative
3.6.1 Closing the Gap
3.6.2 Burden-Sharing
3.7 Conclusion
References
4 The Legitimacy of the International Criminal Tribunal for Rwanda (ICTR)
4.1 Introduction
4.2 The International Criminal Tribunal for Rwanda (ICTR)
4.2.1 Legitimacy Challenges
4.3 Legitimacy
4.3.1 Legitimacy and Transitional Justice
4.3.2 Managing Legitimacy
4.4 The ICTR’s Legitimisation Activities
4.4.1 The Jean-Bosco Barayagwiza Case
4.4.2 The Removal of the ICTR’s Chief Prosecutor, Carla Del Ponte
4.5 Conclusion
References
5 The Law of Genocide and Atrocities Committed Against the Herero and Nama Peoples
5.1 From ‘Race Extermination’ to Genocide as a Crime
5.2 Dolus Specialis: The Special Mens Rea Requirements for Genocide
5.3 Prohibited Acts
5.4 Modes of Participation
5.4.1 Genocide
5.4.2 Conspiracy
5.4.3 Direct and Public Incitement of Genocide
5.4.4 Attempt to Commit Genocide
5.4.5 Complicity in Genocide
5.5 Conclusion
References
6 Horizontal and Vertical International Co-operation in Criminal Matters: An African Regional and Sub-regional Perspective
6.1 Introduction
6.2 Mutual Legal Assistance in Criminal Matters: A Sub-regional Example
6.2.1 Double Criminality
6.2.2 Search and Seizure
6.2.3 Proceeds of Crime
6.2.4 Grounds for Refusal of Assistance
6.2.5 Authentication of Documents
6.2.6 Settlement of Disputes
6.2.7 Differences Between States: Judicial and Executive Roles
6.3 Mutual Legal Assistance, Extradition, and Death Penalty Concerns
6.4 General Human Rights Concerns (Including the Risk of Torture)
6.5 Transfer of Prisoners
6.6 Africa and the ICC: Of Promises, Principles, and Presidents
6.6.1 Assistance by States Parties
6.6.2 The Duty to Arrest and Surrender, and the Impact of Immunities
6.7 Final Observations
References
7 The Scope and Application of Universal Jurisdiction: A Synopsis of African States’ Positions and Proposals During Plenary Sessions in the Sixth Committee of the United Nations General Assembly
7.1 Introduction
7.2 Principles for Exercising Criminal Jurisdiction Under International Law
7.3 Universal Jurisdiction Principle in International Law and International Relations
7.4 The Trigger for African Union and African States to Approach the United Nations on the Scope and Application of Universal Jurisdiction
7.5 African States’ Positions and Contributions During the Legal Committee (Sixth Committee) of the United Nations General Assembly (2009–2020)
7.6 Africa’s Recognition of the Principle of Universal Jurisdiction and Its Commitment to Fighting Impunity
7.7 African States’ Qualified Recognition of Universal Jurisdiction and Insistence on the Respect of the Sovereign Equality of States
7.8 Immunity and the Application of Universal Jurisdiction
7.9 African Approaches to the Application of Universal Jurisdiction
7.10 African Union Model National Law on Universal Jurisdiction Over International Crimes
7.11 Discord Concerning the Role of the International Law Commission in Determining the Scope and Application of Universal Jurisdiction
7.12 Conclusion
References
Part II International Criminal Law Beyond the African Region
8 Breaking Binaries and Honing-in on Harms: Inclusive Approaches Towards Sexual and Gender-Based Crimes
8.1 Introduction
8.2 Plurality of Crimes, Victims, and Perpetrators
8.2.1 ‘Only Women are Raped’: The Invisibility of Sexual Violence Against Men
8.2.2 Capturing the Multiple Forms, Motivations, and Victims of Violence
8.2.3 Female Perpetrators: Of Mothers and Monsters?
8.2.4 Stereotyped and Straightjacketed
8.2.5 Heeding Harms in the Eyes of Those Harmed
8.3 Inclusive Approaches Towards Gender and Sexual and Gender-Based Crimes
8.3.1 Honing in on Harms
8.3.2 Unravelling Intersectional Harms
8.3.3 Breaking Binaries: Stigma, Sexual Violence and Beyond
8.4 Conclusion
References
9 Sexual and Gender-Based Violence: What Legacy for the New ICC Prosecutor?
9.1 Introduction
9.2 Significant Shift: From Nuremberg to The Hague
9.3 Crystallisation of the Lessons Learnt in the ICC Framework
9.4 The Prosecution’s Struggles with Sexual and Gender-Based Violence
9.4.1 The Lack of Sexual and Gender-Based Violence Charges
9.4.2 Promising Changes in the Charging Practice
9.4.3 Long Lasting Negative Effects
9.5 Judicial Conservatism
9.5.1 A Regrettable Lack of “Judicial Receptiveness”
9.5.2 An Unjustified Higher Degree of Scrutiny
9.6 Conclusion
References
10 The Marginalization of Slavery in International Criminal Justice: Untapping Its Potential in the Fight Against Modern Slavery
10.1 The Role of International Law in the Transatlantic Slave Trade and Modern Slavery
10.2 The Marginalization of Modern Slavery in International Criminal Justice
10.3 Untapping the Potential of International Criminal Justice in the Fight against Modern Slavery
10.3.1 Targeted International Prosecutions
10.3.2 The Role of National Prosecutions and the Use of Universal Jurisdiction in the Fight against Modern Slavery
10.3.3 A Global Mechanism to Tackle Modern Slavery
10.3.4 Beyond Criminal Accountability: Reparations for Victims of Contemporary Forms of Slavery
10.3.5 Follow the Money: Disrupting Financial Flows Associated with Contemporary Forms of Slavery
10.4 Conclusion
References
11 The Evolution and Practice of Guilty Pleas in International Criminal Law
11.1 Introduction
11.2 Legal Framework for Guilty Plea Bargaining in International Criminal Law
11.2.1 Plea Bargaining
11.2.2 Plea Bargain Agreements
11.3 The Divergence in the Number of Pleas at the ICTY and ICTR
11.4 Guilty Pleas—The Pre-completion Strategy Phase
11.4.1 ICTY
11.4.2 ICTR
11.4.3 Summary of First Phase at the ICTY and the ICTR
11.5 The Completion Strategies of the ICTY and ICTR—An Incentive to Plea Bargaining?
11.5.1 ICTY
11.5.2 Summary and Conclusion on Guilty Pleas at the ICTY
11.6 The Second Phase Guilty Pleas at the ICTR: 2004–2007
11.7 The Evolving Post Completion Strategy Trend at the ICTR
11.8 Guilty Pleas in Hybrid Criminal Courts
11.9 Admissions of Guilt at the International Criminal Court (ICC)
11.10 Conclusions on the ICTY, ICTR and ICC Cases
11.11 Conclusion
References
