Remembering Justice Khanna

This month will mark the birth centenary of Justice Hans Raj Khanna, one of the most important judges to have served on the Supreme Court of India. In a short piece in the current issue of Caravan, I reflect upon Khanna's legacy and judicial philosophy.

Africa and Universal Jurisdiction

by Christopher Gevers



Last week I had the privilege of
participating in the 10^th East
African Magistrates and Judges Association Conference in Kigali, Rwanda.
The theme of this year’s conference was ‘Universal Jurisdiction’, and myself
and Professor Tiya Maluwa
of Penn State were invited to present papers on this topic.

Let me begin by saying what an absolute
pleasure it was to interact with judges and magistrates from the region on this
and other issues of international justice, both formally and informally. The
exchanges have been robust and challenging at times, but always congenial.

As far as my presentation was concerned,
I was given the difficult task of following Prof Maluwa’s excellent paper on ‘Universal
Jurisdiction and Africa: An Overview and Practical Aspects’. My brief was to
confine my dircussions to reflections on the ICC and ICTR’s influence on
universal jurisdiction in Africa. I must admit that it was not immediately
clear to me why the organizers had chosen to focus on these institutions,
neither of which exercise ‘universal jurisdiction’. I realize now that part of
my confusion lay in the fact that I did not view the ICC’s jurisdiction under a
Security Council referral (article 13(b), Rome Statute) as ‘universal
jurisdiction’, whereas the conference organizers (and many participants) did.

In the end, I chose to focus my
contribution on the indirect effects
of the ICC on universal jurisdiction. First and foremost, there are the
implementing Acts adopted by African ICC states parties to give effect to the
principle of complementarity by providing for the domestic prosecution of
international crimes. Although few African states have adopted this legislation,
(almost) all of those states that have done so elected to include a universal
jurisdiction provision in their domestic prosecution regimes. (See, for
example, section 8(c), Kenya’s International
Crimes Act 2008; section 18(d) of Uganda’s International Criminal Court Act 2010; section 4(3)(c) of South
Africa’s Implementation of the Rome
Statute of the International Criminal Court Act 27 of 2002; section 4(3)(c)
of Mauritius’ International Criminal
Court Act 2011; article 669 of the Code of Criminal Procedure of Senegal.)

Notably, most of these universal jurisdiction
provisions contain a presence requirement for the exercise of such
jurisdiction. This commonality makes the ‘Zimbabwe Torture Docket decision’ (SALC v NDPP) – which found that this
presence requirement did not apply to the investigatory stage of proceedings
(at the very least) – potentially far-reaching as the courts of other African
states (particularly those with a common legal pedigree) might chose to follow
this interpretation of their own presence requirement.

In addition to this, I discussed another
less auspicious imprint made by the ICC on universal jurisdiction. That is, the
‘collateral damage’ to universal jurisdiction caused by the deterioration of
the relationship between the ICC and African states over the past few years. I
briefly considered the concerns African states have voiced – both individually
and collectively – regarding the Court’s work, which I systematized into structural, operational, diplomatic and philosophical concerns. Regardless of
whether one accepts the merits of these concerns, they clearly have affected
the principle of universal jurisdiction negatively as it has been painted with
the same neo-colonial/imperial brush that has been used to call into question
the international criminal justice project generally.

As far as the ICTR is concerned, my
contribution centered on the missed opportunity for African states to put their
commitment to international justice (and universal jurisdiction) into practice
by trying genocidaires that fled
Rwanda themselves. To date no African state outside of Rwanda has done so
(while Belgium, Canada, The Netherlands, Switzerland and Finland have). In
addition, the failure of African states to take advantage of the ICTR’s 11bis procedure by accepting the transfer
of indictees from the ICTR in order for them to be tried domestically under the
principle of universal jurisdiction represents an even greater missed
opportunity to ‘test the waters’ with a form of controlled universal jurisdiction. To explain, the difficulty with
the ‘uncontrolled’ exercise of universal jurisdiction by states acting on their
own accord is that it will lead, in the words President Kagame, to “the law of the
jungle at the international level”. In practical terms these difficulties include (i) the absence of a
universally accepted standard of proof for initiating prosecutions, and an
non-partisan arbiter of the evidence in this regard (ii) the problem of
competing jurisdictional claims amongst states and no clear means of ‘ranking’
such claims (iii) fair trial concerns (iv) the possibility of universal
jurisdiction being used as a shield through sham prosecutions.

The exercise of universal jurisdiction
under the 11bis procedure addresses
most if not all of these difficulties. First, the individuals transferred have
already been indicted by the ICTR. Second, the Court itself will determine the
most appropriate forum, with due regard being given to (i) where the crimes
were committed and (ii) where the perpetrator is located under article 11bis. Third, fair trial guarantees are a
condition for the transfer under 11bis.
Finally, the ICTR maintains the prerogative of revoking the transfer on the
basis of the state concerned failing to meet one or more of these concerns.

Of course, ‘supervised’ universal
jurisdiction of this nature brings its own challenges, and the ICTR in
particular has not covered itself in glory in respect of its application of the
11bis rule in respect of Rwanda. (A
result, perhaps, of the fact that Rwanda has had to run the 11bis gauntlet alone without the support
of other African states) Nevertheless, the 11bis procedure will soon have come and gone without other African
states having taken the opportunity to leave their imprint on the process. 

Finally, I discussed the ‘nub’ of
Africa’s antipathy to the principle of universal jurisdiction: the perceived
abuse of universal jurisdiction by European states in respect of African
personalities.

While the claim of a general
anti-African bias when it comes to European assertions of universal jurisdiction
is not borne out by facts (See the AU–EU
Technical Ad hoc Expert Group Report on the Principle of Universal Jurisdiction
(2009)), there is merit to the claim that certain European judges have been
‘injudicious’ in issuing arrest warrants for African personalities. However,
many of the cases cited as examples of abuse of this principle are not
‘universal jurisdiction’ cases proper but
rather are based on assertions of passive personality jurisdiction. (In this
regard see and Charles Jalloh’s paper ‘Universal Jurisdiction, Universal
Prescription? A Preliminary Assessment Of The African Union Perspective On
Universal Jurisdiction’, 21 Criminal Law
Forum (2010), available here).

What is more, these complaints are as
much, if not more, about the failure to respect the procedural immunity of
senior state functionaries from the courts of foreign states as they are about
the particular ground of jurisdiction.

However, amidst these technicalities
sight must not be lost of the historical and political context surrounding
these indictments, particularly those involving unrepentant former colonial
powers. As Jalloh notes:

“To the bulk of human rights activists
and commentators, especially from Western states, [Belgium’s] universal
jurisdiction law, especially its 1993 variant, is an example of noble and
disinterested global prosecutions at their best. However, it is hard to imagine
many Congolese or Africans with a sense of history accepting that, barely a
century after King Leopold allegedly orchestrated some of the worst crimes that
in modern parlance would be called crimes against humanity, Belgium would
transform itself into a handmaiden of justice in respect of prosecution of the
crimes being perpetrated in the modern Congo—a former colony. This is
particular so considering its alleged continual attempts to meddle in and
control the country’s domestic affairs.”

Merits aside, in response to these
developments the African Union has taken a numbers of decisions on the
principle of universal jurisdiction that have led to the development of a AU Model Law on Universal Jurisdiction.
Early this month Ministers of Justice and Attorneys General of the African
Union met in Addis Ababa to discuss inter
alia the Model Law; which is designed to allow African states “to overcome
the constraints in exercising the principle of universal jurisdiction”.  I’ve not yet got my hands on a copy but it
will be a fascinating read no doubt.

In light of the above I concluded that
Africa is at a crossroads when it comes to the principle of universal
jurisdiction. Up until now African states have assiduously avoided putting
their commitment to universal jurisdiction into practice on the basis of legal
deficiencies and resource-constraints. The former gap has been closed in some
states through the adoption of Rome Statute implementing legislation and may
soon be closed altogether by the adoption of the AU Model Law. While resource
constraints remain, these may well be more perceived than real – particularly when
the alternative means of ensuring justice are considered.

Africa must now decide whether it is
prepared to make universal jurisdiction a reality. Should African states choose
to implement universal jurisdiction, they will have to do so in the knowledge
that it is (and will remain) a ‘double-edged sword’. However, the first step to
preventing the abuse of universal jurisdiction is for all African states to
ensure that they take seriously the commitment to combat impunity and create
the necessary domestic framework for the prosecution of international crimes.
In so doing states will contribute to the further development of customary
international law vis-à-vis universal jurisdiction and, in the process, address
some of their concerns regarding the principle operation. The AU Model Law will
go a long way in this regard, should African states elect to adopt it en masse.

Of course, it is up to African states to
take the alternate route and move away from universal jurisdiction as a means
of ensuring international criminal justice. With this in mind, I ended my
contribution with a few brief (but pointed) remarks on what has recently
emerged as a “third way” in respect of international criminal justice, that
avoids both the vagaries of the international mechanisms (such as the ICC) and
well as the political cost of domestic prosecutions under the principle of
universal jurisdiction: regional (international) criminal justice mechanisms. I
made by own views on the recent proposed Criminal Chamber for the African Court
on Justice and Human Rights and the newest regional initiative, the East
African Community’s proposed criminal chamber, abundantly clear:

“First, let me begin by saying that to
the extent that these regional mechanisms are being empowered with criminal
competence in order to displace the role of the ICC in respect of cases
currently before the Court they are, with respect, a fool’s errand. Such
mechanisms will not satisfy the Court’s complementarity requirements, nor
relieve states of their international obligations to cooperate with the Court
in respect of these cases. To the extent that these initiatives are designed to
regionalize international criminal justice in respect of future cases, there
are both principled and pragmatic reasons to proceed with caution. From a
pragmatic perspective, the cost implications alone of this endeavor are
problematic. What is more, from a legal perspective there are challenges in
respect of regionalizing international criminal
law generally, as well as expanding the jurisdiction of the African Court of
Justice and Human Rights in particular. These problems have led Max du Plessis to conclude,
in respect of the African Court that ‘it is inconceivable that the draft
Protocol, with the various problems identified ..., could be meaningfully
implemented’.“

With that I ended my presentation with
the expectation of a barrage of questions and comments, particularly from the
EAC delegates in the room. In this respect I was very grateful that Prof Maluwa
agreed to come up and field questions from the audience with me. In the end
there were a number of thoughtful comments and questions on the other aspects
of universal jurisdiction, but few specifically on the relationship between the
proposed regional mechanisms and complementarity. One interesting point that was raised by a senior Judge was if (and
how) the Rome Statute might be amended to accommodate these regional mechanisms
within the notion of complementarity. My response was that a renegotiation of
the Rome Statute was unlikely, but not impossible. Should it be done, the
obvious route would be to amend article 17 to refer to ‘a State or regional criminal mechanism’.
Alternatively, article 16 might be amended to allow for a deferral specifically
for these purposes, but this even more unlikely.  

However, the upshot of the questions and
comments, as well as my informal discussions, is that the regional criminal
mechanisms are going ahead and the question is really how (and not if) we
should find a place for them within the international criminal justice matrix.