Regional courts in Africa should be allowed to prosecute international crimes as a way of strengthening complementarity on the Continent, Chief Justice Hassan Jallow of The Gambia has suggested.
“I remain convinced that complementarity can and should be taken a notch higher by vesting African regional courts such as the ECOWAS Court and the East African Court of Justice with the mandate to prosecute international crimes,” Mr Jallow said at the recent West African Stakeholders’ Consultation on Emerging Trends on Complementarity in Banjul.
This would help in burden sharing where the task was too great for the country of primary jurisdiction and ensure that the process of accountability occurred not far from the community directly affected, while respecting the principle of complementarity, he said.
The programme was organised by Africa Legal Aid (AFLA), a flagship non-governmental organisation on justice and accountability based in The Hague, in conjunction with the Attorney General’s Chambers and the Ministry of Justice of The Gambia, and the Raoul Wallenberg Institute of Human Rights in Sweden.
Members of the Judiciary, prosecutors, civil societies, legal fraternities and victims of crimes of atrocity from West Africa attended.
Chief Justice Jallow said; “The current patchwork or mosaic of bilateral treaties on mutual legal assistance – some dating a century or more between states – does not facilitate cooperation between states in this field.
“Efforts underway to prepare a multilateral legal assistance treaty in this regard should be supported in order to facilitate cooperation in extradition, access to witnesses and evidence, transfer of prisoners and proceedings, and other matters.”
He said such a global or regional multilateral treaty would provide an ideal framework for cooperation in pursuit of global justice and accountability.
Article 17 of the Rome Statue of the International Criminal Court (ICC) explains complementarity thus: “The Court shall determine that a case is inadmissible where the case is being investigated or prosecuted by a state, which has jurisdiction over it, unless the state is unwilling or unable genuinely to carry out the investigation or prosecution.”
Mr Jallow, also a former Judge of the Appeals Chamber of the Special Court for Sierra Leone, and ex-prosecutor at the International Criminal Tribunal for Rwanda, said there were constant arguments over the role of the ICC in Africa, which felt hampered by the Court, as the Continent attempted to move forward with complementarity.
“It is…fitting that periodically we review the trends in complementarity and explore ways in which that fundamental principle of justice can be further strengthened.
“For the future of justice and accountability lies ultimately on the extent to which we can give concrete reality to the principle of complementarity,” he said.
He, however, acknowledged that weak national legal systems and overburdened international tribunals had given rise to fertile territory for impunity to flourish.
In that regard, Mr Jallow said he wanted to see states “empowered – individually or collectively – to discharge their primary responsibility for the prosecution of serious crimes”.
Evelyn Ankumah, the Executive Director of AFLA, said: “In simple terms [complementarity] means that the ICC should not deal with a case if national or local criminal systems can and will deal with it.
She said international criminal justice should be pursued in the village, the province, the state or region where the crimes were committed, adding that The Hague was not the ideal place where international criminal justice should be first pursued.
“Justice should be done at home, or as close to home as possible,” she added.
Morten Kjaerum, of the Raoul Wallenberg Institute, said there were numerous setbacks to the prosecution of international crimes, which include “the tension between Africa and the Global North over prosecutions, and the lack of popular knowledge about the ICC, which makes people vulnerable to populist attacks on the Court and what it stands for”.
Mr Kjaerum said consultations like the one in Banjul were crucial to strengthening the current efforts for the promotion of human rights and the global fight against impunity.
He said the exchange of promising practices and honest deliberations about hurdles and barriers could push the Continent forward, as she explored how to optimise the use of the current human rights landscape.
The Banjul Consultation was the first of a series of two regional meetings on complementarity in Africa, with the one for East and Central Africa scheduled for July in Kampala.
Southern Africa has been excluded because the Region does not appear to have issues with complementarity.
Meanwhile, in a new report by the New York-based Human Rights Watch (HRW) looks at the extent to which the ICC can encourage domestic trials, avoiding the need for the Court to conduct its own investigations.
The report draws lessons from four case studies: Colombia, Georgia, Guinea, and the UK.
“Twenty years after the Rome Treaty, the ICC’s burgeoning caseload and limited resources underscore the need for fair and effective domestic prosecutions,” said Elizabeth Evenson, Associate International Justice Director at HRW.
She said more ICC member countries should support the prosecutor’s efforts to encourage successful local proceedings, adding that the ICC prosecutor’s office should tailor its approaches in each preliminary examination.
“But to avoid the appearance of double standards, the office needs to be clear about its activities. It also needs the financial resources to adapt its work through frequent engagement in these countries with officials and civil society.”