Introduction
This chapter explores the likely relationships among the African Court (AC), the International Criminal Court (ICC), possible sub-regional courts, and national courts. It begins with an analysis of the complementarity provision of the AC Statute, which largely replicates that of the ICC. Based on this analysis, as well as the ICC’s early complementarity jurisprudence, the chapter seeks to explicate the legal relationships among the various institutions. The chapter then turns to the normative question of how the proposed regional court should interact with national courts, the ICC, and other supra-national criminal courts such as the Extraordinary African Chambers in Senegal. While a great deal of theoretical work remains to be done in this area, the chapter suggests that as regional and sub-regional criminal courts such as the AC emerge, they should not be viewed as forming a jurisdictional hierarchy, with national courts at the top and the ICC at the bottom, but rather as providing a menu of adjudicative options. Adjudicative priority should be decided by balancing a range of factors from practical considerations, such as ease of obtaining evidence and custody, to defendants’ rights. Particular attention should be paid to the interests of each institution’s constitutive community in adjudicating a particular case. In this way, national, regional, and international criminal courts can truly complement each other.
1. Legal Analysis of the Protocol’s Complementarity Provisions
This section of the chapter analyzes the Malabo Protocol’s provisions on complementarity as well as the ICC jurisprudence concerning the virtually identical provisions in the Rome Statute. It then explains the likely contours of complementarity at the AC and sets forth the biggest open questions concerning application of the principle.
A. Complementarity in the Protocol
The concept of complementarity is broadly conceived in the Protocol as encompassing a cooperative relationship with any institution concerned with human rights promotion and protection on the continent. The Protocol first mentions complementarity in the Preamble, which takes note of ‘the complementary relationship between the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights, as well as its successor, the African Court of Justice and Human and Peoples’ Rights’.Footnote 1 The Protocol further asserts that African Union (AU) member states are ‘[c]onvinced that the present Protocol will complement national, regional and continental bodies and institutions in preventing serious and massive violations of human and peoples’ rights … and ensuring accountability for them wherever they occur’.Footnote 2 Article 4 of the Protocol on the ‘Relationship between the Court and the African Commission on Human and Peoples’ Rights’ notes that: ‘The Court shall, in accordance with the Charter and this Protocol, complement the protective mandate of the African Commission on Human and Peoples’ Rights’.Footnote 3 This protective mandate is set forth in Article 45 of the African Charter on Human and Peoples’ Rights, which provides that the Commission will promote human and peoples’ rights inter alia by ‘cooperat[ing] with other African and international institutions concerned with the promotion and protection of human and peoples’ rights’.Footnote 4 The Protocol’s drafters thus envisioned a system in which various institutions would work together to further human rights on the continent.
The details concerning the functioning of complementarity at the AC are set forth in Article 46(H) of the Protocol entitled ‘Complementary Jurisdiction’, which states:
1. The jurisdiction of the Court shall be complementary to that of the National Courts, and to the Courts of the Regional Economic Communities where specifically provided for by the Communities.
2. The Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint; (d) The case is not of sufficient gravity to justify further action by the Court.
3. In order to determine that a State is unwilling to investigate or prosecute in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:
(a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court;
(b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;
(c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.
4. In order to determine that a State is unable to investigate or prosecute in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.Footnote 5
Most of this provision is identical to Article 17 of the Rome Statute of the ICC.Footnote 6 However, there are some notable differences. First, the AC is to be complementary not only to national courts, but also to the courts of regional economic communities (RECs).Footnote 7 Currently, no regional community court has jurisdiction over international crimes; but some state leaders have indicated an interest in extending the jurisdictions of these institutions.Footnote 8 Should this occur, another layer of complexity will be added to the complementarity analysis, particularly in cases where states, RECs, and the AC have overlapping jurisdiction.
A drafting peculiarity is worth noting in regards to complementarity with the RECs. While paragraph 1 of Article 46(H) asserts that the AC ‘shall be complementary’ to both national courts and courts of the RECs, the remainder of the article mentions only the possibility of deferring to ‘State’ investigations and prosecutions.Footnote 9 For instance, the Court is instructed to ‘determine that a case is inadmissible’ when ‘[t]he case is being investigated or prosecuted by a State which has jurisdiction over it’.Footnote 10 Technically, therefore the AC judges could interpret paragraphs 2 and 3 of Article 46(H) to apply only to situations where States are investigating or prosecuting a case before the Court.Footnote 11 In that case, they would have to identify other rules applicable to complementarity with RECs should those institutions be granted jurisdiction over international crimes. More likely, however, the judges will read references to the RECs into paragraphs 2 and 3, which is probably what the drafters intended. The omission of the RECs from these paragraphs appears to be a casualty of the decision largely to copy this provision from the Rome Statute.
A potentially more important drafting difference between the two statutes is the omission of the word ‘genuinely’ from paragraphs 2 (a) and (b) of the Protocol. The Rome Statue provides that a case is inadmissible when it is being investigated or prosecuted by a state with jurisdiction ‘unless the State is unwilling or unable genuinely to carry out the investigation or prosecution’.Footnote 12 Likewise, a case is inadmissible when a state has investigated and decided not to prosecute ‘unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute’.Footnote 13 The AC Statute uses identical language in these paragraphs except that it omits the word ‘genuinely’. The most likely explanation for this omission is that state leaders were reluctant to grant the AC the power to evaluate the genuineness of their state’s criminal proceedings. The consequence, however, is that the provisions are rendered nonsensical.Footnote 14 As drafted, paragraph 2(a) asserts that a case is inadmissible when a state is investigating or prosecuting unless it is not investigating or prosecuting (due to unwillingness or inability).Footnote 15 Similarly, paragraph 2(b) states in part that a case is inadmissible when a state has investigated and decided not to prosecute unless the state is unwilling to prosecute – which is clearly the case since the state has decided not to do so.Footnote 16
For the judges of the AC to conduct a complementarity analysis, they will have to find some basis on which to evaluate the adequacy of national, and perhaps regional, proceedings. They might do this by reading the word ‘genuinely’ back into the provision or by finding another principle on which to rest their decisions. For purposes of the remainder of this chapter, I will assume that something akin to genuineness will be required.
Another difference between the AC’s complementarity provision and that in the Rome Statute is that the latter contains two additional articles entitled ‘Preliminary Rulings Regarding Admissibility’ (Article 18) and ‘Challenges to the Jurisdiction of the Court or the Admissibility of a Case’ (Article 19).Footnote 17 Article 18 requires the ICC prosecutor to notify relevant states before opening an investigation except in situations referred by the Security Council and to defer to the state’s investigation unless the Pre-Trial Chamber authorizes an investigation.Footnote 18 The article provides for appeal of the Pre-Trial Chamber’s decisions and requires states to inform the prosecutor of the progress of investigations when the prosecutor has deferred to them.Footnote 19 Article 19 sets forth procedures regarding challenges to the ICC’s jurisdiction or the admissibility of a case including who may assert such challenges, the timing of the challenges, and which chamber will hear them.Footnote 20 It is unclear why these (or similar) provisions were omitted from the AC Statute. Part of the explanation may be that the Protocol generally does not include the same level of procedural detail as the Rome Statute. With regard to appeals, for instance, Article 18 of the Protocol simply states that ‘[a]n appeal may be made against a decision on jurisdiction or admissibility of a case, an acquittal or a conviction’.Footnote 21 In contrast, the Rome Statute contains detailed provisions regarding the grounds and procedures for appeal.Footnote 22 The absence of detailed procedures from the Protocol will likely mean the judges will be tasked with elaborating the AC’s procedures.
A final difference between the two statutes is that Article 17 of the Rome Statute is labelled ‘Admissibility’, while Article 46(H) of the Protocol is labelled ‘Complementary Jurisdiction’.Footnote 23 The term ‘complementarity’ in the context of the Rome Statute is usually interpreted to refer only to the question of whether a case is admissible due to a state’s failure adequately to investigate or prosecute. Considerations of ne bis in idem and gravity, also covered in Article 17, are separate aspects of admissibility. It is unclear why the Protocol’s drafters deviated from the Rome Statute model in this regard and the difference may have little practical effect.Footnote 24 Nonetheless, since the judges of the AC will conduct the analyses concerning gravity and non bis in idem alongside that of whether another jurisdiction is adequately investigating and prosecuting, it is conceivable that those analyses will be linked to a greater degree than they are in the ICC’s jurisprudence. In light of the inclusion of non bis in idem and gravity as part of complementarity in the Protocol, those provisions are analyzed below.
In both the Rome Statute and the Protocol, non bis in idemFootnote 25 is referenced twice: first in the provisions concerning complementarity (Protocol)Footnote 26 and admissibility (Rome Statute),Footnote 27 and then in a separate article that elaborates the non bis in idem principle.Footnote 28 Article 46(I) of the Protocol, which largely mirrors Article 20 of the Rome Statute, states:
1. Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.
2. Except in exceptional circumstances, no person who has been tried by another court for conduct proscribed under Article 28A of this Statute shall be tried by the Court with respect to the same conduct unless the proceedings in the other Court:
(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court;
(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.
3. In considering the penalty to be imposed on a person convicted of a crime under the present Statute, the Court shall take into account the extent to which any penalty imposed by another Court on the same person for the same act has already been served.Footnote 29
There are several important differences between this provision and Article 20 of the Rome Statute. First, the Rome Statute contains an additional paragraph asserting: ‘No person shall be tried by another court for a crime referred to in Article 5 for which that person has already been convicted or acquitted by the Court’.Footnote 30 This seems to have been omitted from the Protocol to allow states flexibility in deciding whether to adhere to the principle of non bis in idem in regards to judgments of the AC. Second, unlike the Rome Statute, the Protocol qualifies the prohibition on retrial at the AC of a person who has been tried by another court with respect to the same conduct with the phrase ‘except in exceptional circumstances’.Footnote 31 Again, the intent seems to be to afford the AC flexibility in respecting the principle of non bis in idem, although no guidance is given regarding what might constitute ‘exceptional circumstances’ beyond those already taken into account in paragraphs 2 (a) and (b).Footnote 32
Finally, there is no equivalent in the Rome Statute of Article 46(I) of the Protocol, which instructs the Court in determining an appropriate penalty to take account of any time served by virtue of another conviction for the same act.Footnote 33 Article 78(2) of the Rome Statute concerning determination of sentence states that ‘[t]he Court may deduct any time otherwise spent in detention in connection with conduct underlying the crime’.Footnote 34 This statement is discretionary, however, whereas the AC is required to take time served into account.
Apart from the differences highlighted above, the complementarity provision of the AC Statute largely mirrors that of the Rome Statute. The next sections will explain how the ICC’s judges and prosecutors have interpreted and applied complementarity, ne bis in idem, and gravity to set the stage for the final Part’s discussion of how the AC ought to interpret the Protocol’s similar provisions.
B. Complementarity at the ICC
At the ICC, complementarity has been treated as a ‘principle’ requiring the Court to complement the efforts of national courts. This principle has been implemented both by the Court’s prosecutors, who have adopted a policy of ‘positive complementarity’,Footnote 35 and by the judges who have ruled on complementarity-based challenges to the admissibility of particular situations and cases. The Prosecutor’s positive complementarity policy entails providing assistance to national systems in an effort to encourage and support them in conducting prosecutions of crimes within the ICC’s jurisdiction.Footnote 36 Such assistance takes the form of trainings, evidence-sharing, and technical guidance, among other things.Footnote 37 In a recently issued draft policy paper, the Prosecutor states that if a state with jurisdiction is investigating or prosecuting a case, her office ‘may consult with the authorities in question to share the information or evidence it has collected, pursuant to Article 93(10) of the Statute, or it may focus on other perpetrators that form part of the same or a different case theory, in line with a burden-sharing approach’.Footnote 38
The ICC judges have ruled on complementarity-based challenges to admissibility on several occasions, thereby developing jurisprudence around the concept. The issue of complementarity sometimes arises at the investigation stage, in which case the question is whether the overall situation is admissible.Footnote 39 To determine the admissibility of a situation, the Court examines whether the cases most likely to come before the Court would be admissible.Footnote 40 Determining admissibility at the case stage is more straightforward because the identities of the defendants and the nature of the charges are already known.
To determine whether the requirements of complementarity are met, the Court first looks to whether a state with jurisdiction is actively investigating or prosecuting a relevant case.Footnote 41 The determination is made as of the time of the admissibility decision and is subject to revision if circumstances change.Footnote 42 The Court will not consider the willingness or ability of a state to investigate unless there is some relevant state-level activity.Footnote 43 The ICC Appeals Chamber has stated:
in considering whether a case is inadmissible under article 17 (1) (a) and (b) of the Statute, the initial questions to ask are (1) whether there are ongoing investigations or prosecutions, or (2) whether there have been investigations in the past, and the State having jurisdiction has decided not to prosecute the person concerned. It is only when the answers to these questions are in the affirmative that one has to look to the second halves of sub-paragraphs (a) and (b) and to examine the question of unwillingness and inability. To do otherwise would be to put the cart before the horse.Footnote 44
Thus, when all states with jurisdiction are inactive, a case is admissible.Footnote 45 This situation may arise when a state with territorial or nationality jurisdiction over a case requests the ICC’s involvement. In the Katanga case, the Appeals Chamber rejected the argument that a state’s decision to relinquish jurisdiction, despite its own ability to prosecute, renders the case inadmissible.Footnote 46 The Chamber found that such a decision complies with the state’s obligation to exercise jurisdiction over international crimes, and that admitting such ‘self-referred’ cases promotes the ICC’s goal of ending impunity for international crimes.Footnote 47
When a state with jurisdiction is investigating or prosecuting, the question becomes whether the state activity pertains to the same ‘case’ that is before the ICC. The Court has interpreted this to mean that the state activity must concern the ‘same individual and substantially the same conduct’.Footnote 48 Thus, in the Lubanga case, which involved charges of conscripting, enlisting, and using child soldiers, the Pre-trial Chamber determined the case to be admissible because the Democratic Republic of Congo (DRC) – the state where the crimes were committed – had charged Lubanga with different conduct.Footnote 49 The DRC was thus deemed ‘inactive’ for purposes of the complementarity analysis.Footnote 50 This was true even though some of the crimes charged in the national proceedings were arguably more serious: genocide and crimes against humanity.Footnote 51 What mattered was that Lubanga was not charged with crimes related to child soldiers, as he was before the ICC. The Court has rejected the argument that it suffices for a state to investigate persons at the same level in the hierarchy of an organization implicated in international crimes as those the ICC is pursuing.Footnote 52
To determine whether state activity concerns ‘substantially the same conduct’, the Court compares the incidents the state is investigating with those that are the subject of the ICC proceedings to ascertain the degree of overlap.Footnote 53 To the extent the incidents differ, the Court considers the state’s explanation for why it is not investigating the incidents the ICC is investigating.Footnote 54 The requirement that the conduct be ‘substantially the same’ does not mean that the state proceeding must concern identical charges, or even international crimes.Footnote 55
A state challenging admissibility bears the burden of demonstrating that it is investigating or prosecuting the same person and substantially the same conduct that are the subject of ICC proceedings.Footnote 56 To show it is ‘investigating’, a state must provide evidence that it is taking ‘concrete and progressive investigative steps’ to determine the responsibility of a suspect under ICC investigation.Footnote 57 It is insufficient for the state to provide evidence of future intent to investigate; the investigation must be ongoing at the time of the admissibility challenge.Footnote 58 The evidence must be ‘of a sufficient degree of specificity and probative value’ to establish the existence of an ongoing investigation.Footnote 59 Merely opening a file on a suspect has been deemed insufficient to constitute an ongoing investigation.Footnote 60 Examples of the kinds of evidence required include ‘directions, orders and decisions issued by authorities in charge of the investigation as well as internal reports, updates, notifications or submissions contained in the file arising from the domestic investigation of the case’.Footnote 61
The evidence submitted must enable the ICC judges to discern the contours of the state investigation and to determine that they cover substantially the same conduct as the ICC investigation.Footnote 62 In the Gaddafi case, the Pre-Trial Chamber found that the evidence Libya presented was insufficient to demonstrate that Libya was investigating substantially the same conduct as the ICC.Footnote 63 The ICC case alleged that Gaddafi used his leadership position within the government to suppress civilian demonstrations, including through lethal force.Footnote 64 Although Libya’s submissions in support of its admissibility challenge demonstrated that its investigations related to aspects of the ICC charges, they were deemed insufficient to cover substantially the same conduct.Footnote 65
In sum, for the ICC to find a case inadmissible based on ongoing national proceedings, the party challenging admissibility must submit a significant amount of evidence demonstrating that the state is investigating or prosecuting a substantially similar set of incidents involving the same defendants as the ICC case.
When a state with jurisdiction is investigating or prosecuting the same person for substantially the same conduct, the case may nonetheless be admissible before the ICC if the state is found to be unwilling or unable genuinely to investigate or prosecute the case.Footnote 66 Here again, the party challenging admissibility bears the burden of demonstrating the conditions that render a case inadmissible;Footnote 67 that is, that the proceedings were not undertaken to shield the accused, there was no unjustified delay, and the proceedings were conducted independently, impartially, and consistently with the intent to bring the person concerned to justice.Footnote 68
The Court has held that an evaluation of a state’s willingness and ability genuinely to investigate or prosecute is only necessary when some doubt exists as to the genuineness of state proceedings.Footnote 69 When such an evaluation is necessary, it must be conducted in light of the applicable national laws and procedures.Footnote 70 The evidence submitted to demonstrate relevant state activity may also be used to determine the genuineness of that activity.Footnote 71
The Court considered the questions of unwillingness and inability in the Gaddafi and Al-Senussi cases in the Libya situation. In Gaddafi, the Pre-Trial Chamber held that the national judicial system was unable genuinely to prosecute largely because the central government did not adequately control relevant areas of the country.Footnote 72 The Chamber noted that the government did not have custody of the accused and was unable to obtain necessary testimony, to ensure witness protection, or to control adequately detention centres.Footnote 73 Additionally, the government had not secured independent legal representation for Gaddafi.Footnote 74 The Appeals Chamber upheld the decision, although it did not reach the questions of unwillingness or inability.Footnote 75
In contrast, in the Al-Senussi case, the Pre-Chamber declined to find Libya unable genuinely to proceed, noting that Libya had collected significant evidence against Al-Senussi – more than it had against Gaddafi – and that the security situation had not undermined the investigation.Footnote 76 Moreover, unlike Gaddafi, Al-Senussi was in the custody of the central government and efforts were being made to secure him representation.Footnote 77 The Appeals Chamber confirmed these rulings as well.Footnote 78
In the Al-Senussi case, the Appeals Chamber further held that unwillingness is not demonstrated simply by failure to adhere to international fair trial standards.Footnote 79 Although the Chamber conceded that it might be possible to read the Rome Statute as implying such a requirement, it found this interpretation to be contrary to the purpose of the complementarity principle, which is to promote the exercise of national jurisdiction.Footnote 80 However, the Appeals Chamber noted that: ‘instances may arise when the violations of the rights of the suspect are so egregious that it is clear that the international community would not accept that the accused was being brought to any genuine form of justice. In such circumstances, it is even arguable that a State is not genuinely investigating or prosecuting at all’.Footnote 81 It therefore remains to be seen where the ICC will draw the line between violations of defendants’ rights that render a state unwilling genuinely to prosecute and those that do not meet the threshold.
The Pre-Trial Chamber also considered unwillingness in the Al-Senussi case. The Chamber rejected the argument that Libya is unwilling to conduct genuine proceedings, finding that there was no evidence of intent to shield the accused, unjustified delay, or a lack of intent to bring the accused to justice.Footnote 82 The evidence the Pre-Trial Chamber evaluated in reaching this conclusion included the quantity and quality of the evidence Libya collected as part of its investigation of Mr. Senussi, the scope of the investigation and resources employed, the transfer of the case to the Accusation Chamber, the conduct of proceedings against other Gaddafi-era officials, and the efforts to resolve issues in the national judicial system using international assistance.Footnote 83
In sum, the jurisprudence to date on unwillingness and inability suggests that the ICC is reluctant to find states unwilling to investigate or prosecute and will give significant latitude to state procedures in determining inability.
C. Ne Bis In Idem and Gravity at the ICC
The ICC has yet to interpret either Article 17(1)(c) or Article 20(3), which contain several unresolved ambiguities regarding the application of ne bis in idem. Moreover, although the statutes of the ad hoc international criminal tribunals contain similar provisions, those also have not been the subjects of significant jurisprudence. Although the principle of ne bis in idem – that a court cannot try someone for a crime that has already been the object of criminal proceedings against themFootnote 84 – is present in many of the world’s legal systems, significant differences exist in its application.Footnote 85 In particular, divergence exists as to whether the principle bars further prosecutions on the same facts – the ‘in concreto’ application of the principle – or only for the same offence – the ‘in abstracto’ version.Footnote 86 Civil law systems tend to adopt the former approach, while common law systems follow the latter.Footnote 87
Both the Protocol and the Rome Statute contain the broader ‘in concreto’ version of the principle with regard to previous national trials. That is, apart from limited exceptions,Footnote 88 an individual convicted by a national court cannot be tried at either institution for the same conduct even if the offence of conviction was not the offence with which the supranational court would have charged the individual. This broad prohibition on retrial was controversial among the drafters of the Rome Statute, with some preferring to permit an ICC trial when the national court had charged only ‘ordinary’ crimes.Footnote 89 This restriction was rejected, however, with the majority finding it sufficient that a perpetrator was tried, convicted, and punished, even if the conduct was not categorized as an international crime.Footnote 90
The gravity threshold in Article 17(d) of the Rome Statute has received more attention in the jurisprudence and scholarship. Like the equivalent language in the Protocol, Article 17(d) prohibits the ICC from admitting a case that ‘is not of sufficient gravity to justify further action by the Court’. Unlike the Protocol, however, the Rome Statute clearly limits the ICC’s jurisdiction to ‘the most serious crimes of concern to the international community’.Footnote 91 Because the Rome Statute lists war crimes, crimes against humanity, genocide, and aggression as fulfilling this criterion, the ICC’s judges have struggled to explain which such crimes fall below the gravity threshold.
The gravity determination must be made first in deciding whether it is appropriate to open an investigation, and second, to ascertain the admissibility of particular cases within a situation.Footnote 92 The ICC Prosecutor’s policy is to consider the following four factors in determining whether a case or a situation meets the gravity threshold: (1) the scale of the crimes, (2) the nature of the crimes, (3) the impact of the crimes, and (4) the manner of commission of the crimes.Footnote 93
The ICC’s judges have adopted a similar approach, generally applying the same four factors to determine the admissibility of cases. In the Abu Garda case, the Pre-Trial Chamber asserted that gravity must be determined according to both quantitative and qualitative factors.Footnote 94 The quantitative aspect concerns the number of victims while the qualitative inquiry looks to the ‘nature, manner and impact’ of the crimes.Footnote 95 This requires the Court to consider ‘the extent of damage caused, in particular, the harm caused to victims and their families, the nature of the unlawful behaviour and the means employed to execute the crime’.Footnote 96
The judges have taken a flexible approach to the gravity evaluation, emphasizing different factors in different cases. In many cases they emphasize the quantitative aspect, noting the high numbers of people killed, raped, and subjected to other serious harms to find a case sufficiently grave. However, in cases involving fewer victims, the Court emphasizes other gravity factors. For instance, the Abu Garda case concerned an attack that killed only twelve people, and was thus low in terms of quantitative gravity. The Court nonetheless found the case admissible on the grounds that since those attacked were peacekeepers, the impact of the crimes included a reduction in peacekeeping forces that harmed the broader community.Footnote 97 The Court has also held that crimes involving omission and crimes committed through indirect means can be sufficiently grave to meet the threshold.Footnote 98
A Pre-Trial Chamber attempted to give additional content to the gravity threshold in the Lubanga and Ntaganda cases, although the effort was rejected on Appeal. The Pre-Trial Chamber had interpreted the gravity threshold to include three requirements: (1) that the conduct at issue was large-scale or systematic, with due consideration given to the ‘social alarm’ the conduct causes; (2) that the accused was among the most senior leaders of the situation; and (3) that the accused was among those most responsible for the crimes.Footnote 99 The Appeals Chamber rejected each of these requirements. It held that to require large-scale or systematic conduct would conflate war crimes and crimes against humanity, only the latter of which has such a requirement.Footnote 100 The Chamber found the concept of ‘social alarm’ too subjective to be used in the admissibility determination, and it concluded that limiting admissibility to the most responsible senior leaders would undermine the ICC’s deterrence objective.Footnote 101 The Appeals Chamber did not provide an alternate framework for evaluating gravity although one judge writing separately opined that the threshold should be read narrowly to exclude only the most insignificant war crimes.Footnote 102
To evaluate the gravity of a situation, the Court considers the gravity of the cases likely to arise in that situation.Footnote 103 In deciding to authorize the investigation in the Kenya situation, the Pre-Trial Chamber not only employed the quantitative and qualitative factors elaborated above in determining whether the crimes were sufficiently grave, but also inquired into whether the potential defendants were likely to include those who bear the greatest responsibility for the crimes.Footnote 104 The Pre-Trial Chamber thus seemed to revive one of the elements the Appeals Chamber rejected in the Lubanga and Ntaganda case, but this time in the context of evaluating the gravity of a situation rather than a case.
In sum, a body of jurisprudence concerning the nature of the gravity threshold is beginning to emerge that leaves the judges a high degree of flexibility in making gravity determinations.
D. Relevance of ICC Jurisprudence to AC
The ICC’s jurisprudence on complementarity, ne bis in idem, and gravity is likely to be an important source of insights for the judges of the AC given that the applicable provisions of the Protocol are taken largely verbatim from the Rome Statute. Nonetheless, there are important differences between the institutions that limit the relevance of ICC jurisprudence for the AC. First, when the ICC’s complementarity provisions were drafted, the only alternative adjudicative fora were national courts. In contrast, although the Protocol nowhere mentions the ICC, the Protocol’s drafters undoubtedly understood that the relationship between the AC and the ICC would be an important issue for the AC to resolve. Moreover, as noted above, if any of the RECs obtain jurisdiction over the crimes in the Protocol, an additional layer of complexity will be added to the complementarity analysis for the AC. As such, complementarity for the AC will have a significantly broader scope than it has thus far at the ICC.
That said, once the AC becomes operational, the ICC will likely have to address the appropriate relationship between the two institutions as well. Ideally, the prosecutors of each institution will exercise their discretion in ways that avoid unnecessary conflicts over priority in the exercise of jurisdiction. Nonetheless, it is likely that at some point each institution will seek to exercise jurisdiction over the same case and priorities will have to be determined. An important question that will arise in this regard is whether the Rome Statute permits the ICC to defer to a regional court given that its complementarity provision refers only to state courts. The ICC judges could conceivably interpret the words ‘investigate or prosecuted by a State’ to include situations in which a state has delegated its investigative or prosecutorial prerogatives to a regional body such as the AC. Such an interpretation would enable the ICC to defer to an AC investigation. However, it would also require the ICC to evaluate whether the AC is ‘genuinely’ investigating and prosecuting, which would certainly be a sensitive inquiry. Moreover, when the UN Security Council refers a situation to the ICC as a measure in furtherance of global peace and security, it is unclear whether the ICC could defer the matter to a regional court. The ICC’s jurisprudence on these issues and the AC’s reactions will be important determinants of the level of harmony between the institutions.
Another important difference between the institutions is that the Protocol, unlike the Rome Statute, does not limit the jurisdiction of the AC to the most serious crimes of concern to the world, or even to the most serious crimes of concern to the African continent. Indeed, the Protocol does not claim that the crimes listed are especially grave compared to national crimes.Footnote 105 This difference is particularly relevant to the gravity analysis. Whereas the ICC’s gravity threshold is understood to provide additional assurance, beyond the definitions of crimes, that the ICC will limit its reach to exceptionally serious crimes, it is less clear what role the gravity threshold in the AC Statute serves. For that reason, the ICC’s gravity jurisprudence may be of limited relevance to the AC.
2. How Should the AC Structure Its Complementarity Analysis?
This section seeks to provide insight into how the AC ought to approach the complementarity analysis. It draws on theories of complementarity and gravity developed in the ICC context to argue that the AC should adopt a burden sharing rather than a hierarchical approach to complementarity and that it should interpret the gravity threshold as a minimal bar to the exercise of jurisdiction.
A. Burden Sharing, Not Hierarchy
The dominant narrative concerning complementarity at the ICC is that the ICC is a ‘court of last resort’.Footnote 106 Indeed, when the ICC was established, many of the drafters used this or similar language in describing the intended role of the Court in the global legal order.Footnote 107 The chairman of the committee that drafted the complementarity provision of the Rome Statute, Canadian diplomat John Holmes, describes the complementarity system as creating a mechanism ‘to fill the gap where States could not or failed to comply with’ their obligations to prosecute crimes against humanity, genocide, and war crimes.Footnote 108 The standard view therefore considers national courts with jurisdiction, usually based on territoriality or nationality, to be superior fora for adjudicating international crimes compared to the ICC. National courts have greater capacity and are closer to the evidence, the victims, and the most affected communities.Footnote 109 Moreover, under the Rome Statute,Footnote 110 the Responsibility to Protect Doctrine (R2P),Footnote 111 and perhaps customary international law,Footnote 112 states have a responsibility to prosecute international crimes committed on their territories.
The ‘last resort’ approach to complementarity is often presented in contradistinction to the ‘primacy’ enjoyed by the ad hoc international criminal tribunals for Former Yugoslavia and Rwanda. Those tribunals were created on the opposite premise; that is, that they would provide superior fora for adjudicating international crimes compared to the relevant national courts.Footnote 113 As such, the statutes of those tribunals provide that they have priority in adjudicating cases within their jurisdictions.Footnote 114 When the ICC, a permanent institution, was created, states were unsurprisingly reluctant to cede their sovereignty to a permanent international institution to such an extent. The idea of complementarity arose to reassure states that the ICC would only exercise its jurisdiction when states were unwilling or unable to do so. In a sense then, the ‘court of last resort’ approach to complementarity places the ICC in a hierarchical relationship below national courts, whereas primacy put the ad hoc tribunals above national courts.
An alternative way to conceptualize complementarity is as a ‘burden-sharing’ system.Footnote 115 This approach considers the ICC to be no less appropriate a forum than national courts for adjudicating international crimes and perhaps even a superior one in some circumstances, such as when national courts might be viewed as less fair or impartial.Footnote 116 The burden-sharing approach to complementarity thus places the ICC in a horizontal relationship with national courts.Footnote 117 Where the hierarchical approach implies a presumption in favour of national court adjudication, the burden-sharing approach suggests a more nuanced inquiry into the appropriateness of each forum in a given situation.
While the rhetoric surrounding complementarity often invokes the hierarchical ‘last resort’ trope, the ICC’s jurisprudence and prosecutorial policies tend to reflect the burden-sharing approach. For instance, the ICC’s decision to find situations and cases to be admissible when national courts are inactive without inquiring into inability or unwillingness suggests a burden-sharing understanding of complementarity. As William Schabas has pointed out, there is no reason the ICC cannot adjudicate willingness and ability even in the absence of state action.Footnote 118 Indeed, at least some of the drafters of the Rome Statute envisioned that the Court would do just that.Footnote 119 If the judges truly considered the ICC to be a court of last resort, it would make sense for them to inquire into the likelihood of a state exercising its jurisdiction within a reasonable timeframe rather than proceeding whenever relevant states are inactive. In the Kenya situation, the government of Kenya asserted that it intended to investigate persons at a similar level in the organizational hierarchy as the ICC accused.Footnote 120 The government provided evidence that it had made efforts toward that end, including amending and adopting relevant national laws.Footnote 121 The ICC nonetheless proceeded with its cases on the grounds that Kenya was not currently investigating the same persons for the same conduct as the ICC.Footnote 122
Another example of burden sharing is the willingness of the Court to accept referrals from states parties regarding crimes committed on their own territories.Footnote 123 The ICC’s judges have found this to be a legitimate way for states to fulfil their obligations under the Rome Statute to investigate and prosecute international crimes committed on their territories.Footnote 124 Again, if the judges considered the ICC a court of last resort, it would presumably to do more to encourage states to adjudicate international crimes committed on their territories rather than so readily accepting these ‘self-referrals’.
Some of the ICC Prosecutor’s policies also adopt a burden-sharing approach to complementarity. In a Draft Policy Paper on Case Selection and Prioritization issued in March 2016, the ICC Office of the Prosecutor asserts that if relevant national authorities are investigating the same person for substantially the same conduct, the ICC Prosecutor may turn her attention to ‘other perpetrators that form part of the same or a different case theory, in line with a burden-sharing approach’.Footnote 125 A hierarchical approach to complementarity would instead suggest that the prosecutor should desist from investigating any perpetrators in a situation that states are actively and genuinely addressing.
Despite the ‘last resort’ rhetoric that dominates discussions of complementarity, it is not surprising that the ICC’s judges and prosecutors have leaned toward a burden-sharing approach to operationalizing the concept of complementarity. First, institutional incentives favour an approach that treats the ICC as at least co-equal with national courts. Particularly in the early days of the Court’s existence, it had incentives to assert its jurisdiction in order to demonstrate its value to the international community, in particular to states parties and states considering joining the regime. Second, as a practical matter, deciding complementarity based on evidence of current investigations of the same people and conduct is much easier than requiring the judges to speculate about potential future state action.
A burden-sharing approach at the ICC also makes sense in terms of the institution’s objectives. As the preamble to the Rome Statute asserts, the Court’s overall objective is to ‘put an end to impunity for the perpetrators of [serious international crimes]’.Footnote 126 This broad objective can be understood in retributive terms as an effort to inflict deserved punishment, or as a utilitarian mandate to prevent international crimes, or both. Regardless of the underlying justification, burden sharing is likely to be more productive in accomplishing the goal of ending impunity for several reasons. First, the availability of multiple adjudicative fora tends to increase the chances of punishment and thus prevention. While ICC involvement could theoretically decrease the likelihood of national prosecutions, there is little evidence to suggest this effect. Moreover, the ICC can mitigate any possible disincentive to national prosecutions by clearly expressing its intention to share the burden of prosecutions with national courts and by assisting national courts through positive complementarity.
Second, a burden-sharing approach to complementarity increases the likelihood that both global community and national community interests will be addressed. Sometimes such interests are aligned, but not always. For instance, the global community has an interest in promoting norms that are not yet well established around the world; but this interest may not fully align with national interests in prosecuting the most serious crimes committed in a given situation. For example, in the DRC situation, the ICC has focused in part on prosecuting the recruitment and use of child soldiers in order to express global reprobation of such crimes, while national courts enforce the arguably more serious, but also more established, prohibitions against large-scale murder, rape and so forth.
Finally, for some crimes, ICC adjudication is more likely to be viewed as impartial and therefore more legitimate than national prosecution. The crime of aggression, for instance, involves the leaders of a state acting against the sovereignty of another state. The political nature of the crime increases the likelihood that prosecution in a national court will be conducted in a partial manner and raises concerns about illegitimacy, or at least the perception of illegitimacy. Indeed, one scholar has argued that aggression should not be subject to the usual complementarity analysis, but rather the ICC should have de facto primacy in situations involving aggression.Footnote 127
Similar practical and goal-based considerations also support a burden-sharing approach to complementarity between the AC on the one hand, and national courts, the RECs, and the ICC on the other.
1. Burden Sharing Between the AC and National Courts
First, like for the ICC, any hierarchical relationship would place the AC below national courts in priority rather than above. This is clear from the drafting history of the Protocol – there was no intention to create a supreme court for the African continent. Rather, the idea was to close whatever impunity gaps exist by virtue of the inability or unwillingness of national courts to act.Footnote 128 But the AC’s judges and prosecutors are unlikely to view the AC as an inferior forum for adjudication compared to national courts; and, particularly early in the AC’s existence, they will have incentives to exercise their jurisdiction over whatever cases are available. Moreover, the AC’s judges, like those of the ICC, will likely resist developing an approach to complementarity that requires them to speculate about future state actions.
There are also goal-based justifications for a burden-sharing approach to complementarity between the AC and national courts. The purpose of the AC is similar to that of the ICC. The Protocol’s preamble asserts that the institution will contribute to ‘preventing serious and massive violations of human and peoples’ rights … and ensuring accountability for them wherever they occur’. As such, the arguments made above in favour of burden sharing also apply to the AC. Moreover, the AC’s expanded jurisdiction compared to the ICC makes burden sharing even more important. The AC has jurisdiction not only over the so-called ‘core crimes’ in the Rome Statute – war crimes, crimes against humanity, genocide, and aggression – but also over a long list of what are often called ‘transnational crimes’.Footnote 129 For transnational crimes, supranational jurisdiction may be particularly important in some circumstances. Transnational crimes often, although not always, cross physical borders in that some of their elements take place in one state and other elements or effects take place in another.Footnote 130 The transnational crimes in the Protocol include trafficking in drugs, persons, and hazardous waste; money laundering; and illicit exploitation of natural resources, among others.Footnote 131 Moreover, Article 28(A) of the Protocol states that ‘[t]he Assembly may extend upon the consensus of States Parties the jurisdiction of the Court to incorporate additional crimes to reflect developments in international law’.Footnote 132 As such, additional transnational crimes may be added in the future.
When criminal activity crosses borders, adjudication by an institution outside of either state can be useful. This is particularly true when the states involved take different positions regarding the criminality of the acts or government actors are implicated in the crimes. Under such circumstances, a supranational court is likely to be more impartial, or at least to be viewed as such. Supranational adjudication may therefore decrease the likelihood of inter-state tension and increase the chance that outcomes will be perceived as legitimate.
The AC will also have jurisdiction over the crimes of ‘unconstitutional change of government’ and corruption.Footnote 133 For these crimes, the case for supranational adjudication is even stronger since the governments involved in these crimes are highly unlikely to investigate and prosecute them, at least in a manner that is perceived as legitimate. Moreover, even assuming the national courts of other states have jurisdiction over these crimes, their political nature will likely make the exercise of such jurisdiction undesirable in many cases. For these reasons, the AC may sometimes be a superior forum compared to national courts. Even when this is not the case, assuming the AC garners substantial legitimacy through its procedures and outcomes, it should at least not be considered an inferior forum to national courts.
Another argument against a hierarchical approach to complementarity with national courts at the AC is that the AC will inhabit a world of overlapping jurisdictions that is likely to continue to grow in complexity. The AC will have to navigate relationships not only with national courts, the ICC, and possibly REC courts, but also with other courts that will likely be added to the mix. The Extraordinary African Chambers within the Senegalese court system, created to try former Chadian dictator Hissène Habré, is the most recent example of a special court created to adjudicate international crimes on the African continent. Many other such courts have been created or proposed around the world, indicating that the trend is likely to continue.Footnote 134 Determining a hierarchy of appropriate exercise of jurisdiction among this growing network of courts will present many challenges. This is particularly true since each institution will likely have incentives to promote its own jurisdiction.
A burden-sharing approach to complementarity at the AC is therefore preferable for both practical and principled reasons. Rather than any institution being considered superior as a general matter, the courts should develop balancing tests to determine the most appropriate forum for adjudication of particular cases, somewhat like forum non conveniens doctrines in some national courts.Footnote 135 The final section of this Chapter will provide some thoughts regarding the contours of the suggested balancing tests.
2. Burden Sharing Between the AC and RECs
The question of whether there should be a hierarchical or horizontal relationship between the AC and any REC courts that may be given criminal jurisdiction is somewhat more complicated. On the one hand, the RECs are closer geographically and culturally to the communities they serve than is the more geographically diverse AC. An argument could therefore be made that the REC courts should have priority over the AC in exercising any overlapping jurisdiction between them.Footnote 136 On the other hand, the institutional incentives discussed above may also make it difficult for the AC to defer to the REC courts. Moreover, it is unclear whether the REC courts or the AC will develop greater institutional legitimacy through the nature and quality of their work.Footnote 137 In the event the AC is widely seen as more legitimate or effective, requiring it to defer to the RECs when they have jurisdiction might be viewed as inappropriate. On balance, the complexity of the developing networks of jurisdiction discussed above mitigates in favour of a horizontal approach to complementarity between the AC and the RECs.
3. Burden Sharing Between the AC and the ICC
The question of what relationship the AC should have with the ICC is perhaps the most complex of the complementarity issues. First, there is no provision in the statute of either court that addresses this question. When the ICC was created the drafters did not anticipate the possibility of other supranational courts with jurisdiction over international crimes. The omission of any mention of the ICC in the Protocol is glaring, however, particularly since substantial portions of the Protocol are copied from the Rome Statute. Yet the jurisdiction of the AC will almost certainly overlap with that of the ICC. Even if all African states withdraw from the ICC – a possibility that remains remote – the Security Council could still refer situations in Africa to the ICC. It is therefore crucial for these courts to develop some kind of modus vivendi.
As explained above, the ICC’s complementarity provision requires it to defer to ‘a State which has jurisdiction’ under appropriate circumstances.Footnote 138 It is not clear that this provision permits the ICC to defer to another supranational institution such as the AC. However, the ICC’s judges could interpret the Rome Statute to render cases inadmissible when a supranational court, to which a state has granted jurisdiction, is investigating or prosecuting in good faith. One difficulty with such an interpretation is that, just as the ICC can exercise jurisdiction over non-party states when the Security Council refers the situation, the AC can exercise jurisdiction over non-party states when a situation is referred to it by the Assembly of Heads of State and Government or the Peace and Security Council of the African Union.Footnote 139 In such situations, it is more difficult to argue that the ‘state’ is investigating or prosecuting through its delegation of jurisdiction to the AC. It may therefore be preferable to amend the Rome Statute to expand the complementarity provision to allow deferral to the AC, and possibly other supranational courts with jurisdiction.
Nonetheless, assuming the AC develops a significant degree of legitimacy by, for instance, operating independently and respecting the human rights of defendants, the ICC should defer to the AC in appropriate circumstances. As a regional body, the AC will be closer to the crimes and to the legal and cultural norms in the affected societies. The mantra ‘African solutions to African problems’ that helped motivate the creation of the AC will likely also generate support for the AC being given priority some of the time.
However, the AC should also be willing to defer to the ICC in some cases. Like the ICC’s complementarity provision, the Protocol could be interpreted to allow the AC to defer to a supranational court or the Protocol could be amended to explicitly allow such deferral. In some situations, the ICC may be a superior forum for adjudication of international crimes. The ICC’s global reach and stature enables it to express global norms to a global audience.Footnote 140 For some crimes this may be particularly important. For instance, for relatively recently criminalized international crimes, such as the recruitment and use of child soldiers, there is value in having the norm recognized at the international level. In other cases, the AC and the ICC may be equally appropriate forums of adjudication. A burden-sharing approach to the exercise of jurisdiction would enable courts to make particularized determinations of appropriateness according to the facts and circumstances of each situation.
The following section discusses how a burden-sharing approach to complementarity could be implemented in the jurisprudence of the courts.
B. Developing a Complementarity Test for the AC
To implement a burden-sharing approach at the AC, complementarity should be conceived narrowly to render inadmissible only cases where another court is already active or has rendered a verdict. The gravity threshold should likewise be a minimal bar to admissibility. The real work of ensuring that the various courts share the burden of ending impunity for serious crimes should be done at the level of prosecutorial discretion and judicial oversight of that discretion.
1. Relevant Activity as a Threshold Inquiry
A burden-sharing approach to complementarity supports the approach the ICC has taken thus far of treating relevant activity as a threshold requirement for any inquiry into complementarity. When no other institution with jurisdiction is actively investigating or prosecuting in a given situation, the AC need not conduct a further complementarity analysis. Moreover, the ICC’s test of relevant activity – ‘the same person and same conduct’ test – also makes sense for the AC. The test has been criticized on the grounds that it is not sufficiently deferential to state investigative procedures.Footnote 141 According to critics, the ICC should allow states more leeway in terms of the targets of their investigation, the nature of the charges, and the timing of bringing investigations.Footnote 142 Such critiques largely reflect a hierarchical ‘last resort’ view of the ICC’s appropriate exercise of jurisdiction. If states are the more appropriate forum of adjudication, it stands to reason that the ICC, and likewise the AC, should show significant deference to them.
As explained above, however, practical and principled reasons counsel against this approach. It is impracticable for courts to base admissibility decisions, like decisions about jurisdiction which must be routed in clear and consistent criteria, on speculation about what other courts may do in the future. In addition, simultaneous investigations may best accomplish the goal of ending impunity for international crimes. The danger of duplicative efforts can be avoided if the prosecutors of the institutions work together as recommended below. In sum, the AC should adopt a narrow view of relevant activity similar to the one the ICC has taken. It should consider admissible any case where the same person is not being investigated or prosecuted for the same conduct, or at least similar conduct, that is at issue before the AC.
2. Unwillingness and Inability
Decisions about the unwillingness and inability of other courts to act in a situation before the AC will likely be among the most difficult and controversial decisions the Court makes. Here again, the approach of the ICC provides useful guidance. First, the AC must adopt some standard akin to the ‘genuineness’ standard in the Rome Statute. The difficulty of course is that the AC’s drafters seem to have explicitly rejected inclusion of the word ‘genuinely’ given that they copied most of the complementarity provision from the Rome Statute and yet left out that word. But, as already noted, without some qualifying adjective, the complementarity provision simply makes no sense – a state cannot be both investigating or prosecuting and not investigating or prosecuting at the same time.
Confusion can be avoided by reference to paragraph (3) of Article 46(H), which explains the circumstances in which a state should be considered unwilling to investigate or prosecute. These include when the proceedings are being undertaken to shield a person, when there is unjustified delay that is inconsistent with an intent to bring the person to justice, and when the proceedings are not conducted independently or impartially or are otherwise being conducted in a way that is inconsistent with an intent to bring the person to justice.Footnote 143 Each of these is an example of a situation where the investigation or prosecution is not ‘genuine’ – or is in some sense a sham. As such, despite the absence of the word ‘genuinely’ from Article 46(H), the AC should apply a similar requirement to determine unwillingness.
With regard to the first two types of unwillingness – the intent to shield and unjustified delay – there is as yet no ICC case enunciating a standard. In determining the existence of such circumstances, both the ICC and the AC should be quite deferential to the other courts with jurisdiction over the same crimes. They should bear in mind the reputational damage that can be inflicted by accusations of intentional injustice and only levy such charges when they are clearly warranted.
The question of independence and impartiality has arisen at the ICC in the cases in the Libya situation discussed above. Like the ICC in those cases, the AC should take a fairly broad view of what it means for a court to be independent and impartial. The AC should not seek to serve as an arbiter of strict compliance with human rights standards under the guise of admissibility determinations. Instead, the AC should address such concerns when properly raised under the human rights jurisdiction of the Court. Such restraint in adjudicating the legitimacy of proceedings in another forum is compatible with the burden-sharing approach to complementarity discussed above.
3. The Gravity Threshold
The AC should also follow the lead of the ICC judges in interpreting the gravity threshold as a minimal bar to admissibility. As the ICC Appeals Chamber explained in the Lubanga and Ntaganda decision discussed above, giving significant content to the requirement of gravity is tantamount to revising the subject matter or personal jurisdiction of the Court.Footnote 144 If the AC judges decided that the gravity threshold requires widespread harm, they would essentially be adding an element to war crimes as well as to most of the transnational crimes, which have no such requirement in their definitions. If the judges determined that the gravity threshold requires that prosecutions be limited to senior leaders or to those most responsible for criminal activity, they would be narrowing the personal jurisdiction of the Court. The inclusion of a broad range of crimes in the AC Statute is ample evidence that the drafters intended no such gravity-based limitations. As such, the gravity threshold should be treated as a low bar that excludes only the most insignificant cases from the AC’s purview.
4. Prosecutorial Discretion and Positive Complementarity as Primary Vehicles for Burden Sharing
In light of the limited ability of the formal requirements of complementarity in the AC Statute, to ensure appropriate burden sharing among courts, the task of implementing the burden-sharing approach will fall largely to the prosecutor. The Protocol is not entirely clear about the degree of discretion the prosecutor will have to determine which cases reach the court. On the one hand, unlike the Rome Statute, which contains significant limits on the ICC Prosecutor’s ability to initiate investigations,Footnote 145 the AC Statute simply states that: ‘cases brought before the International Criminal Law Section shall be brought by or in the name of the Prosecutor’.Footnote 146 At the same time, however, the AC Statute provides that cases can be submitted to the Court by state parties, the AU Assembly, and the Peace and Security Council, as well as by the prosecutor acting proprio motu.Footnote 147 It is thus unclear how much discretion the prosecutor will have to decide not to investigate or prosecute cases submitted by other bodies.
The ICC Statute requires the Prosecutor to initiate investigations, or seek to do so in the case of proprio motu referrals, when: (1) there is a reasonable basis to believe crimes within the Court’s jurisdiction have been committed, (2) the case is admissible, and (3) taking account of the gravity of the alleged crimes and interests of victims, the investigation is not contrary to the interests of justice.Footnote 148 While the ICC Prosecutor has yet to invoke the interests of justice, that provision at least arguably provides the ICC Prosecutor leeway in determining whether the ICC is an appropriate forum of adjudication compared to other available fora. When the ICC Prosecutor declines to investigate a situation based on the interests of justice, that determination is subject to review by the Pre-Trial Chamber.Footnote 149 As such, both the Prosecutor and the Pre-Trial Chamber are given important roles in determining the interests of justice.
To implement a burden-sharing approach, the AC’s Prosecutor should also have discretion to determine whether adjudication at the AC best advances the interests of justice, or another forum would be more appropriate. Providing a role for the AC judges in reviewing such decisions would likely help to ensure the decisions are perceived as legitimate. In making decisions about the appropriateness of AC adjudication, the prosecutor and judges should balance the interests of the AU community in prosecuting particular cases with those of the national communities most directly impacted by the crimes. While space constraints preclude a detailed elaboration of the many factors that could be relevant to this balancing, they include, for instance, the extent to which the crimes have affected the entire AU community, whether the AU community norms implicated require regional reinforcement, whether the national communities most affected support AC adjudication, and whether AC adjudication is likely to promote or undermine other important goals such as peace and security in the relevant states.
In addition to balancing the interests of each of the relevant communities, the test to determine the most appropriate forum should take into consideration questions such as which forum has greatest access to relevant evidence, can devote appropriate resources to the case, and is best able to respect victims’ and defendants’ rights. Of course, such a balancing test raises many complex questions given the diversity of values around the world. In addressing these questions over time, international and regional courts can contribute to the development of a normative framework for determining the most appropriate forum for adjudicating international crimes.
Another important way for the AC to pursue burden sharing is for the AC Prosecutor to adopt a policy of ‘positive complementarity’ similar to that in place at the ICC.Footnote 150 According to the ICC’s Office of the Prosecutor, the positive approach to complementarity means that the Office ‘encourages national proceedings where possible; relies on national and international networks; and participates in a system of international cooperation’.Footnote 151 This has taken different forms in different situations, demonstrating the Office’s flexible approach.Footnote 152
Positive complementarity has been controversial, with some critics asserting that the Court’s founders did not intend for the Court to use its resources to encourage national prosecutions proactively.Footnote 153 Others, however, see positive complementarity as an important vehicle for the ICC to pursue the goal of ending impunity for serious international crimes.Footnote 154 There is evidence that the ICC’s positive complementarity policy has contributed to accountability in some situations.Footnote 155
Positive complementarity would support burden sharing at the AC by putting the AC in close communication with national and REC systems interested in investigating and prosecuting similar crimes. The Court could encourage those systems to proceed in situations where it deems national or REC prosecutions would be beneficial and to desist in others. This kind of interaction among the various systems should promote the overall goal of ending impunity for serious crimes. Indeed, positive complementarity might even be implemented between the AC and ICC so that over time a mutually beneficial modus vivendi could develop between the institutions.
3. Conclusion
When the AC comes into existence, the prosecutor and judges will face the important challenge of determining the most appropriate relationships between the AC on the one hand and national courts, sub-regional courts, and the ICC on the other. While the Protocol clearly provides for complementarity – at least with national and sub-regional courts – it leaves important questions about the nature of complementarity unanswered. This Chapter has sought to provide some insight into how the prosecutor and judges of the AC ought to interpret and implement the Protocol in this regard. In particular, it has argued that they should adopt a burden sharing rather than a hierarchical understanding of complementarity.
Burden sharing suggests that the AC should take a fairly narrow view of when cases are inadmissible either based on relevant activity in another jurisdiction or on gravity. Rather than finding entire categories of cases to be outside the AC’s purview, the prosecutor and judges should engage in a more particularized inquiry to determine which forum is most appropriate for a given case. That inquiry should involve balancing a host of factors relevant to the respective interests of the communities each institution represents in adjudicating the case, as well as their practical ability to investigate and prosecute the case effectively.
Finding the right balance will not be easy, and the very idea of burden sharing will be resisted by those who view supra-national adjudication, particularly at the ICC, as a last resort. But as the number of supra-national courts increases, and the subject matter they address expands, a hierarchical approach to admissibility will become increasingly impracticable and unattractive. Supra-national courts are created because supra-national communities have interests, and those interests are not always compatible with the interests of national communities. The task of determining which community’s interest should prevail when conflicts arise is one of the most pressing challenges facing international criminal law.
1. Introduction
The right to a fair trial is rooted in the African Charter of Human and Peoples’ Rights,Footnote 1 and firmly entrenched in the legal frameworks and case law of the various international and hybrid criminal courts.Footnote 2 The inclusion of a separate provision on fair trial rights in the Malabo Protocol thus provides welcome clarity and detail on what is recognised to be an essential component of the criminal process.
At first glance, the provision (Article 46A – Rights of Accused) appears to be virtually identical to the equivalent fair trial provision at the International Criminal Court (Article 67(1) of the Rome Statute). There are, however, both key lacuna and important innovations, which differentiate the Malabo Protocol from the Rome Statute. Of particular relevance to the right to a fair trial, the Protocol envisages the establishment of a ‘Defence Office’, the head of which shall enjoy ‘equal status’ as concerns rights of audience and negotiation inter partes.Footnote 3 This recognition of the right to structural equality of arms between the Defence and the Prosecution builds on the positive developments at earlier hybrid tribunals, such as the Special Court for Sierra Leone, and the Special Tribunal for Lebanon, which also recognised the need for internal representation of the interests of the Defence through the establishment of independent ‘defence offices’. In contrast, the ICC equivalent, which lacks institutional or legal parity with the Prosecution and falls administratively under the authority of the Registrar, appears retrograde, and offers less structural protection for the rights of the Defence.Footnote 4
Although the Malabo Protocol delineates the core rights of the accused in Article 46(a), the text of the Protocol is remarkably sparse as concerns key procedural rights pertaining to a range of important issues, such as disclosure, the framework for amending the charges, and legal representation. Whereas the ICC Statute includes much greater detail on such issues, this bare bones structure is more in line with the Statutes of the ICTY and ICTR, which eschewed specific procedural details, addressing such issues instead through rules adopted and promulgated by the judges.
Given that the African Court is, like the ICC, a treaty based judicial entity, it is arguable that States should have a clear idea of the procedural rights that might apply to their nationals, before they decide whether to accept the Court’s criminal jurisdiction. It may be too cumbersome to amend the Malabo Protocol to include such detail, but an alternative approach might be to submit proposed Rules of Procedure and Evidence to the State Parties for ratification, which is the procedure employed at the ICC.Footnote 5 Although the ICTY and ICTR imbued the judges with the power to adopt and amend the rules, these Tribunals were established by the Security Counsel, and did not, therefore, depend on State consent. In contrast, if the Judges at the African Court were to engage in substantive law making to such an extent that the applicable law differs fundamentally from the terms of the Protocol, State Parties could argue that such a radical transformation of the Court constitutes a material breach of the founding treaty (i.e. the Malabo Protocol), which in turn, allows them to suspend their obligation to be bound by it, in whole or in part.Footnote 6
The structure of the African Court of Justice itself and its close connection to its human rights counterpart also offers unique protections which have been absent so far, in other international criminal courts and tribunals. Although the Protocol does not spell out the nature of the intersection between the Court’s human rights jurisdiction and its criminal jurisdiction in detail,Footnote 7 the approach adopted by the European Court of Human Rights (ECHR) offers a possible parallel. The ECHR has found that although the Convention permits member states to transfer powers to an international organisation, States must ensure that the organisation in question ‘is considered to protect fundamental rights as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides.’Footnote 8
If the same, or a similar test were to be employed by the African Court of Human Rights, it follows that the Criminal jurisdiction of the Court would be obliged to offer ‘equivalent’ deference and respect for the provisions of the African Charter on Human and Peoples’ Rights as would exist in State parties. It also follows that since a defendant can bring a complaint before the African Commission or even the same Court in connection with alleged violations of domestic criminal procedures, where in the latter case that State has entered the special declaration required to entertain individual complaints, an ‘equivalent’ remedy must also exist in relation to proceedings that are before the Court’s criminal jurisdiction. A key question that arises in this regard would be whether a defendant, before the Court, could invoke fair trial concerns not just before the Criminal Law Section both also at the same time, or subsequently, before the Human Rights Section.
The intersection between the Court’s human right and criminal divisions also has interesting implications for the relationship between State parties and the ICC. Since the ICC is a ‘court of last resort’, it only exercises competence over cases where national States are unwilling or unable to do so.Footnote 9 If it is assumed that a State party can delegate this power to the African Court, this will raise issues as to whether the ICC’s determination that it possesses the ultimate competence to determine questions of admissibility (that is, whether the case should be tried before national courts or before the ICC) is tenable.Footnote 10 Although the Malabo Protocol does not regulate such matters,Footnote 11 if there is a dispute between the competence of the ICC and that of the African Court to prosecute an individual, the human rights division could find that the defendant cannot be transferred to the ICC, unless the ICC offers an equivalent level of protection as concerns the protection of the defendant’s rights under the African Charter. This possibility might, in turn, incentivise the ICC to apply article 21(3) of its own Statute to fill in any gaps concerning effective fair trial protection at the ICC.Footnote 12 From this perspective, the Malabo Protocol should be viewed as an extremely positive development as concerns the effective implementation of fair trial safeguards within the sphere of international criminal law.
This chapter will analyse the individual rights set out in Article 46(A) of the Protocol, with reference to case law from other internationalised criminal courts and human rights court, which might shed light on the future case law and practice of the Court.
2. Analysis of individual rights
A. Article 46(A)(I) All Accused Shall be Equal before the Court
At first glance, there appears to be an inherent tension between the supposed equality of accused, and the existence of immunity provisions in the Protocol, which afford specific protection from legal process to certain defendants, that is, sitting Heads of States, and not others, for example, their political opponents. It could, nonetheless, be argued that this notion of equality only governs the legal regime that applies to the investigation and prosecution of different defendants, and not, the preliminary question as to who should and should not be prosecuted.
The precise ambit of the right to equality under the law has arisen in connection with the application of amnesties for war crimes, which are considered to be legitimate, when issued as part of a negotiated peace settlement in internal conflicts.Footnote 13 Whereas the Ugandan Supreme Court found, in the Kwoyelo case, that the defendant could not invoke the right to equality, and the protection against discrimination in order to claim an entitlement to an amnesty that had been granted to defendants in similar circumstances,Footnote 14 the ACHPR reached the opposite conclusion. In so doing, the ACHPR distinguished between laws, which were discriminatory in their content, and laws, which were applied in a discriminatory manner.Footnote 15 Both types of discrimination could constitute a violation of the right to equality before the law, although the ACHR acknowledged that some types of positive discrimination are permissible if:
- The discrimination is objectively justifiable/reasonable;
- It is a proportionate means for achieving the objective in question.Footnote 16
In assessing the case before it, the ACHPR found that the right to equality before the law had been violated due to the fact that Uganda had failed to sufficiently justify its decision to withhold the right to an amnesty to Kwoyelo, whilst granting it to other individuals in similar circumstances. This case law suggests that if the immunities under the Malabo Protocol are challenged on the basis of discrimination, it will fall to the Court to demonstrate that the inclusion of a Head of State immunity serves an objectively justifiable need, that it is a proportionate means to achieve this need, and that it has been applied in a uniform manner as concerns individuals, who fulfil its criteria.
Issues of equality are also likely to arise in connection with State cooperation, and the impact that this will have on the ability of the Defence to investigate in an effective manner. Clearly, Defence Counsel tasked with representing politically unpopular defendants are likely to face significant issues as concerns their ability to access Government controlled documents or sources. Unless the Court determines that it possesses the power to subpoena witnesses or documents, the Defence will be seriously disadvantaged not just vis-à-vis the Prosecution, but also as concerns defendants who are aligned to the Government rather than the opposition.
In order to address comparable situations and ensure equality of arms between the parties,Footnote 17 the drafters of the ICC Statute vested the Prosecutor with the explicit duty to search for, collect, and disclose all information that might be relevant to the establishment of the truth, including both incriminating and exculpatory information.Footnote 18 The Malabo Protocol does not, however, include an equivalent duty on the part of the Prosecutor to search for both incriminating and exculpatory elements. Indeed, the Protocol is completely silent as concerns the nature and scope of the Prosecutor’s disclosure duties.
This lacuna can be addressed through the promulgation of rules of procedure and evidence, which is the means by which disclosure obligations were regulated at the ad hoc Tribunals, or through judicial interpretation of the defendant’s right to a fair and impartial trial. The Defence Office can also play an important role in eliminating or mitigating inequalities, by entering into generic cooperation agreements with various State parties in a proactive manner.Footnote 19 This possibility is supported by firstly, the Defence Office’s right, as an independent organ of the Court, to enter into such arrangements, and secondly, the fact that Article 22(C)(2) of the Protocol specifically vests the Office with the power to collect evidence, and Article 22(C)(3) imposes a corresponding duty to provide necessary support and facilities to individual Defence teams. In contrast, if the Court waits for specific cooperation issues to arise in specific cases, it is more likely that political considerations will influence the outcome.
B. Article 46(A)(2) The Accused Shall Be Entitled to a Fair and Public Hearing, Subject to Measures Ordered by the Court to Protect Victims and Witnesses
This provision raises two separate elements: firstly, the relationship between the right to public hearings and protective measures, and secondly, the relationship between the right to a fair hearing and protective measures.
As concerns the first element, it is relatively uncontroversial that the right to a public hearing is subject to the Court’s duty to impose protective measures. Nonetheless, even though it might seem, at first blush, less harmful to curtail the right to public hearings in order to ensure protection measures, overuse of such measures can render the Court vulnerable to claims that it lacks transparency. Closed hearings can impede the ability of external organisations to monitor the extent to which the Court implements fair trial rights.Footnote 20 Over-extensive and vigorous protective measures vis-à-vis the public can also render it difficult for Defence teams to conduct specific inquiries that might be required to investigate the credibility of witnesses called by the Prosecution.Footnote 21 Finally, extensive reliance on closed sessions potentially dilutes the deterrent effect of the Court’s proceedings. The above considerations dictate that the Court should only have recourse to confidential hearings when it is strictly necessary to do so.Footnote 22
In terms of pragmatic solutions for achieving a fair balance between the competing aims of publicity and protection, the ICC Trial Chamber in the Katanga case attempted to provide, where possible, public summaries of any developments that occurred in closed session, and further issued a series of recommendations, designed to limit the need to have recourse to confidential sessions: this included framing questions in such a way as to avoid the need to mention confidential matters, and reviewing confidential transcripts in order to identify whether public redacted versions could be issued.Footnote 23 Chambers have also required the parties to review all past confidential filings, and either prepare a public redacted version, or explain why it is not possible to do so.Footnote 24
Regarding the second element, that is, the relationship between fair trial rights and the duty to impose protective measures, Article 46(A)(2) is worded ambiguously; the placement of the comma leaves it open to judicial interpretation as to whether both the right to fair hearing and the right to a public hearing are subject to measures ordered by the Court to protect victims and witnesses, or whether it is only the right to a public hearing which must defer to victims’ rights. As a result, the hierarchy between the right to a fair trial, and the duty of the Court to implement protective measures is uncertain.
In terms of the practice of the ad hoc Tribunals, this issue of hierarchy first arose in an ICTY decision, which considered the possibility of hearing ‘anonymous’ witnesses. In a dissenting Opinion, Judge Stephen noted that the equivalent legal text of the ICTY, Article 20(1), stipulated that the Court shall ensure that ‘proceedings are conducted…with full respect for the rights of the accused and due regard for the protection of victims and witnesses’.Footnote 25 To Judge Stephen, this contrast between full respect and due regard underscored the drafters intention to create a legal scheme in which protective measures should not override the specific rights of the accused. This distinction between the obligation to respect the rights of the accused, and the duty to give due regard to witness protection was accepted, and applied in subsequent case law of the ad hoc Tribunals.Footnote 26 Nonetheless, in the recent ICTY Haradinaj judgment, the Appeals Chamber obliterated this distinction through its determination that effective witness protection was itself, a core requirement of fair and impartial proceeding. The Appeals Chamber further concluded that a failure to secure effective protection could undermine the Prosecution’s right to a fair trial.Footnote 27
In line with this evolution, the current approach at the ICC appears to favour a balancing test, which requires the Court to ensure that any protective measures do not compromise the overarching right to a fair and impartial trial.Footnote 28 It would seem that this approach is more in line with the wording of the Malabo Protocol, and it will ultimately fall to the Chamber to exercise effective oversight over protective measures in order to ensure that they promote, rather than undermine the right to fair and impartial proceedings.
The potential for conflict between the two competing duties is most likely to arise in relation to requests to withhold the identity of witnesses and victims from the Defence, and requests to redact or withhold the disclosure of information on the grounds of witness protection.
The Malabo Protocol neither permits nor prevents witness anonymity. Whilst underscoring the duty to ensure effective protective measures, the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa also emphasise that ‘[n]othing in these Guidelines shall permit the use of anonymous witnesses, where the judge and the defence is unaware of the witness’ identity at trial’. This wording does not prohibit anonymous witnesses, but the express inclusion of this caveat reflects awareness of the tension between witness anonymity and rights of the accused.
There is no uniform position amongst international and hybrid courts on the question of witness anonymity, although the overall trend appears to be opposed to its use. In the first ICTY case, although the Trial Chamber authorised a small handful of Prosecution witnesses to testify on an anonymous basis due to protection concerns, it was subsequently discovered by chance that one of the witnesses (witness ‘L’) had fabricated his testimony at the behest of a State security agency.Footnote 29 Consequently, neither the ICTY, ICTR or SCSL heard witnesses on an anonymous basis after this point. This incident coincided with the finalisation of the ICC Rules of Procedure and Evidence, and appears to have informed the decision to exclude the possibility of hearing anonymous witnesses at trial from the ICC legal framework.Footnote 30
Conversely, the rules of the STL allow for witness anonymity,Footnote 31 although the rule has never been invoked in practice. In deciding which path to go down, it will be important for the Court to consider the normative impact of its decision on domestic case law in member States, and the potential, demonstrated by the Tadic case, that anonymity can be misused to prevent the Defence from challenging the accuracy or credibility of false allegations.
In terms of the use of redactions and delayed disclosure, this involves redacting certain information during the pre-trial stage, including identifying features such as the witness’s name and address, which will then be disclosed at a pre-determined point prior to the witness’s testimony. The logic underpinning this scheme is that the less time between disclosure and the date on which the witness testifies, the less risk that disclosure will result in possible witness interference or otherwise endanger the witness,Footnote 32 although no empirical research supports the assumption that this measure effectively curtails potential witness inference.
Moreover, the converse to this logic is that the less time there is between disclosure and the testimony of the witness, the less time there is for the opposing party to investigate the credibility of the witness or verify the accuracy of the witness’s proposed testimony. Delayed disclosure is also resource intensive, as it requires the parties to disclose and review the same materials on multiple occasions. The assumption that delayed disclosure is necessary to ensure witness protection is also undercut by the fact that many civil-law countries employ a dossier system, whereby the ‘case file’ is provided to the Defence during the preliminary phase, rather than being dolled at in a piecemeal fashion. Given that sufficiency of resources, and the length of proceedings are likely to be at the forefront of issues experienced by the ACJ, there might be good cause for the Court to consider afresh the utility and viability of adopting measures, such as delayed disclosure.
C. Article 46(A)(3) The Accused Shall Be Presumed Innocent until Proven Guilty in Accordance with the Provisions of this Statute
The presumption of innocence is considered to be of such paramount importance that the United Nations Human Rights Committee has found that States can never derogate from the duty to respect and apply this principle in criminal proceedings.Footnote 33 Even in times of warfare or states of emergency, it would be completely impermissible to prejudge the guilt of suspects, or otherwise assume guilt by association. This golden rule is, nonetheless, often honoured more in the breach, as reflected by the extent to which individuals, who have yet to stand trial, are described as warlords, or similar terms steeped in assumed guilt.
The Principles and Guidelines for the Right to a Fair Trial in Africa elaborate the following three key elements of the presumption:
1. The presumption of innocence places the burden of proof during trial in any criminal case on the prosecution.
2. Public officials shall maintain a presumption of innocence. Public officials, including prosecutors, may inform the public about criminal investigations or charges, but shall not express a view as to the guilt of any suspect.
3. Legal presumptions of fact or law are permissible in a criminal case only if they are rebuttable, allowing a defendant to prove his or her innocence.
Regarding the first aspect, although the Protocol does not specify the standard of proof, the African Commission has elaborated that,Footnote 34
‘For purposes of criminal guilt, “proof beyond reasonable” means the totality of evidence must push the allegation past the point below which it would reasonably be doubted if the accused is indeed guilty. Once the evidence surpasses that point, guilt will have been established.’
In terms of the second aspect, the presumption of innocence acts as an important constraining factor as concerns information or comment provided by court officials pending the issuance of a judgment. In line with this requirement, ICC Chambers have publicly deprecated certain statements from the Prosecutor which implied that the accused was guilty or which improperly influenced public perceptions of the proceedings.Footnote 35 Human Rights courts have also emphasised that the public appearance of the defendant should not prejudge issues of guilt or innocence,Footnote 36 and for this reason, have condemned the placement of defendants in cages during public proceedings.Footnote 37
The third point concerning presumptions of fact or law, although simple in its formulation, enters into complex territory in circumstances in which the court is addressing multiple cases arising from the same set of facts, as was the case at the ICTR and ICTY. Both Tribunals allow the judges to base the judgment on facts which are ‘common knowledge’,Footnote 38 and ‘adjudicated facts’.Footnote 39 The former, are ‘facts that are not reasonably subject to dispute: in other words, commonly accepted or universally known facts, such as general facts of history or geography, or the laws of nature. Such facts are not only widely known but also beyond reasonable dispute’.Footnote 40 This definition has been construed broadly to include objective background facts, such as the status of ratification of treaties by the country in question, but also ‘facts’ that form part of the elements of the offence, such as the existence of a non-international armed conflict, or the existence of a widespread and systematic attack against a civilian population.Footnote 41
In 2006, the notion reached its apogee when the ICTR Appeals Chamber determined that henceforth, the ICTR would consider that ‘[b]etween 6 April 1994 and 17 July 1994, there was a genocide in Rwanda against the Tutsi ethnic group’ as a fact of common knowledge.Footnote 42 The ICTR Appeals Chamber claimed that taking ‘judicial notice’ of such facts did not infringe the presumption of innocence or in any way shift the burden of proof, because firstly, the facts in question did not concern the individual role of the defendant, and secondly, the judges could not take ‘judicial notice’ of inferences based on such facts.Footnote 43 These caveats seem to rest on a distinction without a difference: in a simple murder case, if the judges assume that the person has been intentionally killed, this assumption will still shift the burden of proof as concerns the establishment of a fundamental component of the allegations, even if the assumption does not touch on the role of the defendant in the alleged murder. Similarly, if the judges can rely on these facts as part of the judgment, their inability to take judicial notice of ‘inferences’ based on these facts is of little import, and does not preclude them from drawing inferences or conclusions in the ordinary manner. Of further concern, the relevant wording of the ICTY and ICTR Rules ‘commanded’ the judges to take judicial notice of such facts; the judges had no discretion to put the issue to proof if the criteria for judicial notice was met.Footnote 44
This mandatory assumption of facts cannot be reconciled with the ‘Principles and Guidelines for the Right to a Fair Trial in Africa’, which proscribes presumptions of fact, that are not rebuttable. It is notable in this regard that Article 46(c)(3) of the Protocol provides that a policy may be attributed to a corporation where it provides the most reasonable explanation of its conduct. If it is assumed that ‘corporations’ enjoy a right to a fair trial, then the wording of this provision is problematic. Specifically, it has been accepted at both the ad hoc Tribunals and the ICC that in order to satisfy the standard of beyond reasonable doubt, a particular finding concerning an element of the offence must be the ‘only reasonable’ conclusion,Footnote 45 whereas the phrase ‘most reasonable’ implies that other reasonable explanations exist. Although it might be acceptable to imply a lower standard of proof to corporations, the use of this threshold might have troubling implications for individuals who might be prosecuted in tandem with corporations. The word ‘may’ makes clear that unlike the ad hoc Tribunals, the judges have the discretion not to employ this assumption, and findings concerning corporations should not, in any case, be incorporated in cases involving individual responsibility (that is, through the notion of ‘adjudicated facts’).
Adjudicated facts are those that have been determined by the Tribunal in a different case, and, either the parties did not appeal the finding or the ‘fact’ was affirmed at the appellate level. Unlike facts of common knowledge, the Chamber has the discretion to decide whether to accept the adjudicated facts in question,Footnote 46 and must, in any case, hear first from the parties. The ICTR Appeals Chamber explained that the rationale underpinning adjudicated facts was that they are ‘a method of achieving judicial economy and harmonising judgments of the Tribunal while ensuring the right of the accused to a fair, public, and expeditious trial.’Footnote 47 The facts in question must be relevant to the criminal responsibility of the accused, but they cannot touch on the acts, conduct, and mental state of the accused.Footnote 48 Notwithstanding this narrow category of exceptions, it is difficult to accept that the admission of key facts, that have been litigated in an entirely different case, which may have been defended by lawyers who did not contest certain facts for strategic reasons, does not impact on the presumption of innocence and burden of proof. The ICTR Appeals Chamber’s claim that the presumption of innocence remains intact because this approach only affects the burden of production of evidence, and not the burden of persuasion, appears entirely unconvincing, particularly if one steps back from the pressure faced by the ICTY and ICTR to clear their backlog of cases with minimal resources.
In any case, it is unlikely that the African Court will face the same situation of hearing multiple cases based on the same sub-set of facts. This minimises the need to ‘harmonise judgments’, and the expediency of doing so, at the expense of the rights of the accused. It is telling in this regard that whilst the ICC Rules of Procedure and Evidence permits the Court to take judicial notice of facts of common knowledge,Footnote 49 the Judges cannot take ‘judicial notice’ of facts that concern the criminal responsibility of the defendant or the elements of the offence, or consider facts that have been adjudicated in another case as being established for the purposes of the case at hand.
Apart from the issue of the burden of proof, the presumption of innocence also has important connotations for the expeditiousness of the proceedings, and the use of pre-trial detention. In particular, the presumption of innocence mandates a presumption of liberty.Footnote 50 Accordingly, although the Malabo Protocol does not regulate the issue of provisional release (and the related standards), it would be incompatible with the presumption of innocence to impose a system of mandatory pre-trial detention. Similarly, the UN Human Rights Commission has observed that lengthy pre-trial detention is incompatible with the presumption of innocence,Footnote 51 for example, if a detainee has already been detained for 8 years, this creates both a public perception that the defendant must be guilty, and an incentive to issue a conviction, and sentence which is equal to or greater than 8 years in order to avoid possible claims for compensation, or an appearance of injustice.
The experience of the ICTR and ICC has nonetheless demonstrated that the right to provisional release will be meaningless in practice if the Court does not possess the means to release the detainee. At least some defendants are likely to be political or military opponents, who will be unwilling or unable to return to their country of origin. This means that unless States are willing to allow such defendants to be released to their territory (either on a provisional basis or if the defendant is acquitted), then it is possible that the defendants will be forced to remain in detention, due to the lack of practical possibilities for ensuring their release. One solution would be to follow the ICC example of encouraging State parties to enter into proactive agreements with the Court concerning the potential release of detainees onto their territory, which can then be invoked in specific cases, if required.Footnote 52
In line with this approach, the presumption of innocence further mandates that the Court should have legal framework in place to address the scenarios which might arise in the event that defendants are acquitted. This includes the need to negotiate agreements to accept acquitted persons, who are unable to return to their country of nationality, due to a well-founded fear of persecution or risk of death, torture or cruel treatment. The ICC has finalised one such agreement,Footnote 53 which could operate as model for the Court to adapt for its own proceedings.Footnote 54
D. Article 46(A)(4) The Minimum Guarantees
1. The Right to Be Informed Promptly in Detail, and in a Language He Understands, of the Nature, Cause and Content of the Charges
There are three elements folded within this right:
First, the right to be informed promptly of the legal and factual nature of the accusations (the ‘nature and cause’);
Secondly, the right to receive the disclosure of evidence underpinning these accusations in a prompt manner (‘the content element’); and
Thirdly, the right to have such information communicated in a language which the defendant understands (‘the language element’).
2. The Right to Be Informed Promptly of the Legal and Factual Nature of the Accusations
The first element derives from the right of ‘habeaus corpus’, which provides that anyone deprived of his or her liberty has the right to be informed immediately of the factual and legal basis for such detention. This right, which is a bulwark against illegal and arbitrary detention, is ‘non-derogable under both treaty law and customary international law’.Footnote 55 It is also a ‘self-standing human right, the absence of which constitutes a human rights violation per se.’Footnote 56 The International Court of Justice has further affirmed that Article 6 of the African Charter (the prohibition of arbitrary detention), applies to all forms of detention, ‘whatever its legal basis and the objective being pursued’.Footnote 57
Out of recognition for the importance of this right, the ICTR Appeals Chamber has clarified that even if the suspect is detained by national authorities and not under the authority of the Tribunal itself, the relevant organs of the Tribunal have a positive obligation to take such steps as are within their control, to ensure that the suspect’s rights are fully respected.Footnote 58 The need for this clarification arose due to the many instances in which the Tribunal was compelled to address the situation of defendants, who had been arrested and detained by national authorities without charge, sometimes for years, whilst the ICTR Prosecutor decided if and when it wished to request the Tribunal to issue an arrest warrant for the person concerned.Footnote 59
Given that the Prosecutor at the African Court will also depend on national authorities for the arrest and extradition of suspects, it is highly likely that this situation will also arise at the African Court. But, bearing in mind that the African Court seeks to establish a complementary system of criminal justice and human rights law,Footnote 60 there are even more cogent reasons for the African Court to interpret the relevant provisions in such a way as to ensure that ‘the international division of labour in prosecuting crimes must not be to the detriment of the apprehended person.’Footnote 61 Since immediate release is, in principle, the appropriate remedy for arbitrary detention,Footnote 62 the African Court must be willing to either implement or respect this remedy (if awarded at a national level), notwithstanding the fact that the Prosecutor at the African Court has decided to pursue a suspect, who has already been detained at a national level for an unreasonable length of time.
In terms of the particular implications of this right, ‘the nature, cause and content of the charges’ extend to firstly, the evidence, which the Prosecution relied upon to obtain the arrest warrant, and secondly, the evidence upon which the Prosecution intends to rely at trial. Even if the matter is not regulated explicitly by the Protocol or rules, human rights law dictates that the first tranche of evidence, that is, the evidence relied upon to obtain the arrest warrant, should be disclosed as soon as possible, so that the defendant can exercise his or her right to challenge the legality of the detention order.Footnote 63 At the ICTY and ICTR, the Rules stipulate that this must occur within 30 days after the accused is arrested,Footnote 64 whereas the deadline at the ICC falls to judicial discretion, although the Appeals Chamber has underlined that ‘[i]deally, the arrested person should have all such information at the time of his or her initial appearance before the Court’.Footnote 65
3. The Right to Receive the Disclosure of Evidence Underpinning These Accusations in a Prompt Manner
In terms of the timing for the disclosure of Prosecution trial evidence, the courts differ on the question as to when disclosure should be completed. Whereas the ICTR and ICTY have, in exceptional cases, allowed the the Prosecution to disclosure witness statements after the trial has commenced,Footnote 66 the ICC require such disclosure to be completed prior to the commencement of the trial.Footnote 67
In any case, the deadline must be determined through the lens of the defendant’s right to a speedy trial, and right to adequate time and facilities to prepare the Defence. A UN Working Group established to identify the most effective means to speed up trials identified the timing of disclosure as one of the greatest causes of delays in the proceedings, and further recommended that all final versions of witness statements be made available to the Defence at an early stage of the pre-trial process.Footnote 68 This recommendation is logical: until disclosure is complete, it is difficult, if not impossible, for the Defence team to obtain instructions from the defendant, develop a strategy, and conduct their own investigation into the credibility and reliability of Prosecution evidence. Adding to the complexity of effective Defence preparations, the organization of Defence investigative missions in situ might depend on State cooperation, and the seat of the court and location of the defendant are likely to differ from the location of investigations, which renders it difficult, if not impossible, to conduct investigations at short notice, or whilst the trial is ongoing. These factors led the Trial Chamber in the ICC Lubanga case to set a deadline of three months before the commencement of the trial for the disclosure of Prosecution evidence.Footnote 69 This yardstick has been adopted in subsequent ICC cases, barring discrete exceptions which have been allowed in connection with specific items of evidence that cannot be disclosed at this point for exceptional reasons.Footnote 70 Notwithstanding these discrete exceptions, the Appeals Chamber has underscored in obiter that the disclosure of all incriminating prosecution evidence should be completed prior to the commencement of the trial itself.Footnote 71
Given that the African Court, as a treaty based mechanism rather than a Security Council created Court, is likely to face many of the same logistical issues as the ICC in the area of Defence investigations, the three month disclosure deadline might be a more appropriate yardstick to adopt than the equivalent deadlines imposed at the ICTY and ICTR, although caveats will need to be built in as concerns ‘exceptional’ circumstances where important evidence could not be obtained, with reasonable diligence, at an earlier juncture.
An issue which is linked to the right to be informed promptly of the charges is the question as to whether the charges can be supplemented or recharacterised throughout the trial proceedings. The ad hoc Tribunals permit the Prosecution to apply to amend and add additional charges throughout the trial proceedings, but do not permit the Judges to change the legal qualification of the charges themselves, whereas the ICC Statute does not allow the charges to amended after the trial has commenced, but does permit the Judge to recharacterise the legal qualification of the charges.
In terms of the position at the ad hoc Tribunals, in the ICTY Kupreskic case, in relation to the situation where the Prosecution case fails to establish the specific elements of the charges, but may nonetheless establish other offences (i.e. lesser included offences) which was not charged, the Trial Chamber determined that,Footnote 72
it is questionable that the iura novit curia principle (whereby it is for a court of law to determine what relevant legal provisions are applicable and how facts should be legally classified) fully applies in international criminal proceedings.
After examining whether different national law jurisdictions permitted the judges to recharacterise the legal nature of the charges, the Chamber further opined that ‘no general principle of criminal law common to all major legal systems of the world may be found’.Footnote 73 The Chamber also underlined that from a human rights perspective, the accused’s right to be informed promptly of the charges might need to be protected more rigidly at an international court than in a domestic environment, so as to accommodate the uncertainty generated by the new and evolving notions of international crimes and international criminal procedural rules.Footnote 74
In light of these considerations, the Chamber concluded that the most appropriate approach to firstly, avoid the situation in which an accused is acquitted due to the fact that the evidence proves different crimes, and secondly, preserve the accused’s right to be informed promptly of the charges (including the legal qualification of those charges), would be to allow the Prosecution to rely fully on cumulative and alternative charges in the indictment,Footnote 75 and to consider amending the indictment to vary or include new charges, after the trial has commenced.Footnote 76 Nonetheless, the Chamber cautioned that before granting a request to amend the indictment, the Chamber should first establish that the proposed amendment, if granted, would not occasion undue prejudice to the accused’s right to a fair trial: this assessment includes the impact on the accused’s right to be promptly notified of the charges, the related right to have adequate time and facilities to prepare the Defence, and the right to be tried without undue delay.Footnote 77
In contrast to the above approach, the ICC legal texts do not allow the Prosecution to amend or add additional charges after the trial has commenced,Footnote 78 but do allow the Judges to recharacterise the legal qualification of the charges, provided firstly, that the accused is given adequate notice of this possibility and afforded an opportunity to be heard and to adduce evidence, and secondly, that the recharacterisation does not exceed the facts and circumstances set out in the charges.Footnote 79
Notwithstanding the reservations expressed by the ICTY Trial Chamber in the aforementioned Kupreskic case, the ICC Appeals Chamber affirmed the validity of the iura novit curia principle at the ICC, as embodied by Regulation 55 of the Regulations of the Court. The Appeals Chamber found, in particular, that the purpose of this provision, which was to ‘close accountability gaps’, was fully consistent with the objectives underpinning the ICC Statute.Footnote 80 The Appeals Chamber further concluded that requalifying the legal nature of the charges, after the commencement of the trial, was not itself incompatible with human rights law, provided that the requalification was consistent with the rights of the accused, and did not render the trial unfair.Footnote 81 The Appeals Chamber was nonetheless reluctant to provide any clear guidance as to the specific circumstances in which a requalification would render the trial unfair, stating that such a determination would need to be made on a case-by-case basis.Footnote 82
Since the issuance of the Lubanga judgment, this ‘option’ was exercised in almost every case completed thus far. In Lubanga, the Trial Chamber recharacterised the nature of the armed conflict from an international armed conflict, to an internal armed conflict.Footnote 83 In Bemba, the Trial Chamber gave the Defence notice that the defendant could be convicted under the ‘should have known’ form of command responsibility, but ultimately relied on the actual knowledge threshold in the judgment itself.Footnote 84
In Katanga, the Trial Chamber recharacterised the nature of the armed conflict, and the mode of liability from indirect co-perpetration (Article 25(3)(a)), to liability as a person who contributed to a group of persons acting with a common purpose (Article 25(3)(d)).Footnote 85 The notice of the latter requalification was only provided after the close of the Defence case, which was, in turn, after the accused decided to waive his right of silence, and testify in his own defence. As observed in a strongly worded dissenting opinion from Judge Van den Wyngaert, given that Mr. Katanga’s co-accused was simultaneously acquitted, there is an ineluctable appearance that Mr. Katanga might also been acquitted, if not for the proposed requalification.Footnote 86 The timing of the notice of the proposed requalification was upheld on appeal,Footnote 87 but with a caution that it ‘is preferable that notice under regulation 55 (2) of the Regulations of the Court should always be given as early as possible’.Footnote 88 In line with this guidance, in the Ruto & Sang case, the Chamber invited submissions on the possibility of Regulation 55 being invoked, prior to the commencement of the trial.Footnote 89 Notably, during the course of this litigation, the Prosecution also advanced the position that notice as to a potential recharacterisation should be given ‘on or before the first day of trial’.Footnote 90 A similar approach to timing was also adopted in the subsequent Gbagbo & Blé Goudé Case.Footnote 91
The ICC’s heavy reliance on recharacterisation in its first cases should also be viewed in conjunction with the fact that ICC judges viewed recharacterisation as the ‘lesser evil’ compared to the possibility of relying extensively on cumulative charging.Footnote 92 As explained by Pre-Trial Chamber II in the Bemba case, cumulatively charging different crimes or modes of liability based on the same facts risked ‘subjecting the Defence to the burden of responding to multiple charges for the same facts and at the same time delaying the proceedings’.Footnote 93
But, whereas the respective Pre-Trial Chambers refused to to confirm cumulative or alternative charges in the first ICC cases,Footnote 94 later Pre-Trial Chambers adopted a more relaxed position. Thus, in the Gbagbo case, the Pre-Trial Chamber underlined that,Footnote 95
Taking stock of past experience of the Court, the Chamber is also of the view that confirming all applicable alternative legal characterisations on the basis of the same facts is a desirable approach as it may reduce future delays at trial, and provides early notice to the defence of the different legal characterisations that may be considered by the trial judges.
Similarly, in the Ntaganda case, the Chamber affirmed that it could confirm alternative charges, based on the same facts, provided that each charge was supported by sufficient evidence to satisfy the evidential threshold for this stage of the proceedings.Footnote 96
The pendulum at the ICC therefore seems to have swung towards the use of alternative charges, as the primary means for eliminating impunity gaps, combined with early notice of potential Regulation 55 recharacterisations, in order to address the possibility that the Trial Chamber might view the appropriate legal qualification in a different manner from the Pre-Trial Chamber or Prosecutor. In any case, there is growing consensus that the Chamber and the Prosecutor have a combined duty to resolve and settle the exact nature of the charges (in terms of both the facts, and and the legal qualification of these facts) as soon as possible, and preferably before the commencement of the trial.
This approach would be consistent with the case law of the ECCC. Although the civil-law oriented Statute allows judges to recharacterise the legal nature of the charges, in the Duch case, the Pre-Trial Chamber reviewed international standards concerning the right to be informed of the charges, and noted that these standards require that the ‘indictment set out the material facts of the case with enough detail to inform the defendant clearly of the charges against him so that he may prepare his defence. The indictment should articulate each charge specifically and separately, and identify the particular acts in a satisfactory manner. If an accused is charged with alternative forms of participation, the indictment should set out each form charged’.Footnote 97 The Chamber therefore ruled that ‘[c]onsidering that international standards require specificity in the indictment and Article 35 (new) of the ECCC Law provides that the accused should be informed in detail of the nature and cause of the charges’, the legal qualification of the charges should be decided before the commencement of the trial stage, and not during the trial itself.Footnote 98
The standards set out in international human rights judgments also militate in favour of early notification of any changes (factual or legal) in the nature of the charges. The ECHR has held in this regard that the power of a Chamber to recharacterise the legal qualification of the facts is subject to the defendant’s right to be informed promptly of the charges, and to have adequate time and facilities to prepare his or her defence. The latter right must be implemented in a ‘practical and effective manner and, in particular, in good time’.Footnote 99
The Malabo Protocol is silent on the questions as to whether the indictment can be amended after the commencement of the trial, and whether the Judges can requalify the legal characterisation of the charges, at any point in the proceedings. This silence does not, however, resolve the issue as it is possible that the Judges might follow in the footsteps of the ICC judges, who adopted an extremely significant legal provision on this point as part of the Court’s internal ‘routine’ regulations. The ICC Appeals Chamber sought to enhance the legitimacy of the regulation by citing the fact that the regulations had been circulated to the State Parties for comment prior to their adoption, and no States had objected.Footnote 100 Although it is questionable as to whether the mere circulation of the regulations provided a sufficient safeguards as concerns the adoption of such a significant legal provision, the fact that the Chamber felt impelled to mention the role of the State parties suggests that the judicial promulgation of such a regulation – on its own – would not be an appropriate avenue for the adoption of a legal provision of this kind. Indeed, given the challenge of squaring such an approach with the rights of the suspect and defendant, it remains highly questionable as to whether the African Court should follow this approach. The better practice may well be to allow for alternative charges, in the indictment before commencement of the trial, but not recharacterisation of the charges once the trial has begun.
Clarity in the wording of the charges has also been a key problem at international courts, with vague language giving rise to disputes as to what is actually encompassed by the charges. This has triggered a rich vein of case law concerning the appropriate language which should be employed in indictments or charges, and the specific detail that should be provided, such as the identity of co-perpetrators by name or organisation, and the dates and locations of key events.Footnote 101 Given that some defendants were acquitted of charges on this basis,Footnote 102 it would be advisable for this issue to be addressed proactively, for example, any rules promulgated by the Court should specify firstly, which document is the primary accusatory instrument, secondly, the minimum content of such a document,Footnote 103 and thirdly, the means by which a defendant can challenge overly vague or defectively worded charges and the timing for such challenges. Challenges to the form of the indictment, when they could affect the fairness of the trial, imply that the nature of the rules in the ICTY and ICTR context could be more appropriate than the standard in the SCSL which denied the right of appeal to defendants by directing that all such challenge to the indictment motions be forwarded directly to the Appeals Chamber. In the context of the Malabo Protocol which has a pre-trial judge, this might not be as much of an issue if the matter is decided by the Trial Chamber with the possibility that the decision in question could be appealed to the Appeals Chamber.
4. The Right to Have Such Information Communicated in a Language Which the Defendant Understands
Translation and interpretation issues have bedevilled international and hybrid courts, both lengthening and increasing the costs of the proceedings. That being said, without either understanding or translation, an accused cannot effectively participate in the proceedings and instruct his defence. The right to defence therefore loses much of its utility.
In terms of the scope of the obligation to provide translations and interpretation, the text of the Malabo Protocol provides that the accused should be notified of the nature and cause of the charges in a ‘language he understands’. As a first point, this formulation – whilst consistent with human rights law - waters down the equivalent right at the ICC, in the sense that the ICC text (and case law) stipulates that the relevant information must be provided in a language which the accused understands fully (parfaitement in French, which translates to ‘perfectly’): this standard is met when the accused ‘is completely fluent in the language in ordinary, non-technical conversation: it is not required that he or she has an understanding as if he or she were trained as a lawyer or judicial officer.’Footnote 104
Given that the standard employed at the ICC turns on the inclusion of the word ‘fully’ in the Statute,Footnote 105 which is absent from the equivalent provision in the Malabo Protocol, the African Court is free to depart from ICC legal precedent on this point. But, from a human rights perspective, the ultimate threshold that is adopted by the Court should take into account the complexity of the proceedings, and the right of the accused to effectively participate in such proceedings. When considered from the perspective of a defendant, who is appearing before a Court in a foreign country with foreign law and procedures, the added burden of attempting to divine witness testimony or the specific meaning of complicated international legal precepts in a foreign language that is only imperfectly understood can tip the scales towards an unfair trial. It is thus notable that although the ICTY and ICTR have a lower legal standard in their respective Statutes, the practice has been to arrange interpretation in the language in which the accused is fully conversant, even if the accused might be objectively conversant in the working languages of the Court. Thus, the accused Vojislav Seselj was permitted to utilise his preferred language of Bosnian/Croat/Serbian, notwithstanding the fact that he had taught in English as a professor in law at the University of Michigan in the United States of America.Footnote 106 In the Milosevic case, the Trial Chamber further underscored that,Footnote 107
Article 21, paragraph 4, of the Statute of the International Tribunal guarantees to the accused certain minimum rights, one of which is to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him,[…] in the opinion of the Trial Chamber and in the circumstances of this particular case, these guarantees are so fundamental as to outweigh considerations of judicial economy.
Apart from the question as to whether the accused has a right to receive translations and interpretations in a particular language, a further issues concerns the scope of this right i.e. does it extend to a right to receive the translation of the entire case file, or only selected documents that concern the charges.
The ICTY has distinguished between the circumstances of a self-representing defendant, and those of an accused represented by counsel. In the former scenario, the ICTY recognised in the Seselj case that the right to effectively participate in the proceedings requires that the defendant be provided all court filings, prosecution evidence, and exculpatory materials in a language which the defendant understands,Footnote 108 whereas in the later Karadzic case, the ICTY denied his request for a similar range of translations, citing firstly, the fact that one of his legal advisors had publicly stated that the accused was proficient in English, and secondly, the fact that the accused benefitted from a significant number of legal associates who were proficient in English.Footnote 109
In circumstances in which an accused is represented by Counsel, the accused has the right to receive the following materials in a language which the accused fully understands:Footnote 110
The material submitted by the Prosecution in support of the indictment;
Prosecution witness statements and any statements taken from the accused;
Exhibits, which the Prosecution tends to tender at trial; and
Key documents such as the judgment.
The ICTR and ICC have blurred the issue as to translations required for the defendant and those required by Counsel since the issue has arisen primarily in relation to French speaking defendants represented by French speaking counsel, who are appearing opposite an English speaking Prosecution team. In the ICC Ngudjolo case, the Pre-Trial Chamber addressed the Defence requests for all evidence and filings to be translated into French (the language of both Counsel and the defendant) by specifying that the Defence had an obligation to compose itself so that it was able to work in both English and French,Footnote 111 a solution which did not resolve the independent language needs of the defendant. But, at the same time, as a result of this concurrence between the language spoken by Counsel and the defendant, both the ICTR and ICC have ordered that a broader range of procedural documents should be translated into the language of the accused/Counsel.Footnote 112
Notwithstanding the above legal precedents, given the potential number of countries and languages that will fall under the purview of the African Court, it is likely that the practice of other specialized courts (or courts with more secure funding) is likely to be of scant assistance to the practical difficulty that the Court will face in reconciling the defendant’s right to receive necessary translations, and their right to a speedy trial. The Banda & Jerbo case at the ICC foreshadows these types of difficulties: the language spoken by the defendants in that case was Zaghawa, an oral language, for which there were no trained translators or interpreters at the time that the case commenced.Footnote 113 The Chamber nonetheless rejected the Prosecution request to be exempted from the obligation to disclose witness statements in the language of the accused, and instructed the Prosecution to liaise with the Registry to identify practical solutions that were consistent with the rights of the accused.Footnote 114 This approach underscores that the solution is not to curtail the rights of the accused, but rather to target other causes of delays. This can include encouraging the Prosecution to bring focused, streamlined cases, to train interpreters and translators from the earliest stage of the investigation, to identify the key statements that will require translation at the earliest possible juncture, and to encourage the parties to consult with a view to identifying practical solutions that and consistent with the rights of the accused. In the African context, where many languages may not be written and are only oral in nature, an early decision would have to be made as to how to give effect to this right keeping in mind the likely paucity of resources.
5. The Right to Adequate Time and Facilities for the Preparation of His or Her Defence, and the Right to Communicate Freely with Counsel of His or Her Own Choice
The right to adequate time and facilities underpins the right to effective legal representation, and thus ensures that the defendant can exercise all other rights in a manner that is effective, and not illusory.
Although the right to have adequate time to prepare the defence, and the right to a speedy trial are often viewed as contradictory rights, the duty falls on the Chamber, Prosecution, and Registry to ensure that these rights can be respected in a complementary fashion. For example, as set out in ICC case law and related policy, in order to ensure firstly, that the Defence has sufficient time to review Prosecution evidence in advance of the trial date, and secondly, that the trial date is set within a reasonable time period after the defendant’s arrest, the Prosecution should endeavour to complete its investigations and related disclosure, to the extent possible, before the trial stage commences.Footnote 115 The Prosecution should also address any protective measures issues that could delay such disclosure in a timely manner.Footnote 116
At the level of the Registry, there is a direct nexus between the level of resources provided to the Defence, and the ability of the Defence to conduct its preparation in an expeditious manner. It can, therefore, be short-sighted to cut Defence legal aid in circumstances in which the cuts will simply lengthen the time required for effective Defence preparation, which will in turn, lengthen the overall length of the proceedings (and related costs).Footnote 117
In terms of the specific amount of resources that should be allocated to the Defence, although the right to equality of arms is enshrined in human rights law,Footnote 118 international courts and tribunals have consistently rejected Defence requests to have equivalent resources as their Prosecution counterparts, with the mantra that equality of arms means procedural equality (that is, the right to enjoy the same procedural rights), and not equality of resources, particularly since the Prosecution carries the burden of proof.Footnote 119
Whilst this conclusion is undoubtedly valid as concerns a comparison of the budgetary needs of the prosecution over the course of the entire case as compared to that of the Defence, if both parties are conducting the same tasks with the same deadlines and facing the same burden of persuasion (i.e. filing appeal briefs at the same time), then it may be unfair, and discriminatory to allocate less resources to the Defence. As found by the Human Rights Committee, discrimination arises where like things are treated in a different manner, with there being no rational basis for the difference.Footnote 120 It follows that even if equality of arms does not automatically equate to equality of resources, it may do so, where necessary to ensure procedural equality with the Prosecution. The resources allocated for individual cases must also take into consideration the characteristics of the case in question, for example, whether the case requires a significant amount of investigative travel or specific expertise in particular areas.Footnote 121
Apart from the issue of quantity of resources, the Court also has a duty to ensure the quality of such resources, namely, that Counsel possess sufficient expertise in the subject matter before the Court to represent the accused in an effective manner. The ECHR has held in this regard that where States set up complex legal fora that require Counsel with specific competence, the State has a corresponding duty to ensure that the accused is in a position to exercise his or her rights before such fora, in an effective and fair manner.Footnote 122 The Malabo Protocol currently does not delineate any specific criteria that must be met by Counsel in order to appear before the Court. The African Court could, in this regard, take a leaf from the relevant regulations of other international courts, and require Counsel to possesses a minimum level of proficiency in criminal law and procedure. This requirement did not exist initially at the ICTY, but was later inserted (based on the equivalent wording of the ICC Rules) due to concerns regarding ineffective representation from Counsel, who had not practiced criminal law in a trial environment.Footnote 123 In relation to the Principal Defender who heads the Defence Office organ in the Malabo Protocol, a requirement was inserted mandating the highest level of professional competence and experience in the defence of criminal cases. The Principal Defender must also have at least 10 years of criminal law practise experience before a national or international court. As with the ad hoc tribunals and the ICC, which developed lists of counsel requiring certain competencies and certain years of criminal practice experience, one would expect the rules of procedure of the African Court to endorse similar standards since these form part of the best practices that may be learned from the many tribunals that preceded it.
The second limb of this sub-provision concerns the right to communicate freely, with Counsel of choice. As further elaborated in the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, without the expectation that such communications will not be listened to, or otherwise monitored, the right to receive legal advice becomes largely illusory; there is therefore a positive duty on States, which are party to the African Charter, to refrain from surveilling or intercepting legal communications, and to provide the necessary facilities to enable confidential communications to take place within a detention setting.Footnote 124
Although the text refers to the right to communicate confidentially with ‘Counsel of choice’, it is obvious that there may be various scenarios in which a defendant will require confidential legal assistance from Counsel who have not been chosen by the defendant, for example, a duty Counsel appointed to represent a suspect during a suspect interview, Counsel appointed by the Court, or a member of the Defence office. In terms of the latter possibility, Article 22(2)(c) of the Protocol vests the ‘Defence Office’ with the responsibility for providing legal advice and assistance to the Defence, and defendants. This vital source of assistance would be rendered ineffective if there was a possibility that communications between the Defence Office and the defendant or Defence were not protected by privilege. It would also be consistent with the case law of the ICC and SCSL to include Defence Office advice and assistance within the framework of legal privilege.Footnote 125
The notion of privilege under the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa is also drafted broadly to encompass ‘all communications and consultations between lawyers and their clients within their professional relationship’;Footnote 126 the term ‘lawyers’ protects the right to communicate with all legally qualified members of a Defence team, not just the ‘Counsel’, and ‘all communications’ presumably includes not just verbal advice, but also written drafts and internal documentation prepared within the context of the professional lawyer-client relationship.
The Protocol does not address the issue as to whether there are any exceptions to the right to privileged communications. Whilst the STL incorporated an explicit exception into its Rules of Procedure and Evidence,Footnote 127 other Courts has read such an exception into the text: i.e. by concluding that any communications which fall outside the scope of a professional relationship, such as communications concerning the commission of fraud or a crime, are excluded from right to privilege.Footnote 128 In any case, in order to comport with human rights’ requirements concerning the need for the legal basis for monitoring to be set out in clear and accessible legal texts,Footnote 129 it is advisable that the scope of confidentiality and its exceptions are set out in unequivocal terms in the Court’s instruments, and any detention regulations. It is also necessary that there are procedures established to ensure safeguards against abuse (for example, the ability to obtain judicial review of monitoring decisions).Footnote 130
6. The Right to a Speedy Trial
The right to expeditious proceedings is a critical aspect of the right to a fair trial: the defendant has an obvious right to clear his or her name as soon as possible, and to litigate disputed facts whilst memories are still fresh, and evidence is available. And yet, this right has been honoured more often in the breach than in the observance, at previous international courts and tribunals. As set out infra, key sources of delay have included the practice of ‘delayed disclosure’, and the need to translate filings and evidence into different languages (including the language of the accused). Although some delays are inevitable, key lessons learned include convening regular trial management hearings and meetings during the pre-trial phase, so that the Chamber can follow the progress of disclosure and the parties can raise practical issues that might affect their preparation, and, for long and complex trials, appointing reserve judges in order to address the possibility that a judge might be forced to withdraw due to conflicts or illness. The establishment of a permanent Defence Office, which operates as a ‘collective Defence memory’,Footnote 131 will also facilitate the ability of individual Defence teams to acquaint themselves with the Court’s procedures and case law, and thus respond to deadlines promptly.
7. The Right to Be Tried in His or Her Presence, and to Defend Himself or Herself in Person or through Legal Assistance of His or Her Choosing; to Be Informed, if He or She Does Not Have Legal Assistance, of This Right; and to Have Legal Assistance Assigned to Him or Her, in Any Case, Where the Interests of Justice So Require, and Without Payment by Him or Her in Any Case if He or She Does Not Have Sufficient Means to Pay for It
(a) The Right to Be Tried in His or Her Presence
Since a right can only be restricted through explicit language to that effect, the fact that no caveats have been attached to this article suggests that the Court will not have the power to conduct a trial in absentia. This does not, however, exclude the possibility that the defendant could waive the right to be present, or that there might be other scenarios that might justify convening discrete trial sessions in the absence of the defendant. At the ad hoc Tribunals and the ICC, defendants were allowed to waive the right to attend discrete hearings due to illness, and at the ICC, the President and Vice-President of Kenya also sought to waive the right to attend hearings, due to political engagements. In disposing of the request, the Appeals Chamber confirmed that although this provision is framed as a right, it also imposed a duty on the defendant to attend hearings.Footnote 132 The Appeals Chamber nonetheless underlined that it would hamper the Chamber’s ability to ensure fair and expeditious proceedings to impose a rigid limit on the scenarios that might justify continuing the trial in the absence of the defendant.Footnote 133 Rather, the Chamber has the discretion to authorise the absence of a defendant, if the following criteria are met:Footnote 134
the absence of the accused can only take place in exceptional circumstances and must not become the rule; (ii) the possibility of alternative measures must have been considered, including, but not limited to, changes to the trial schedule or a short adjournment of the trial; (iii) any absence must be limited to that which is strictly necessary; (iv) the accused must have explicitly waived his or her right to be present at trial; (v) the rights of the accused must be fully ensured in his or her absence, in particular through representation by counsel; and (vi) the decision as to whether the accused may be excused from attending part of his or her trial must be taken on a case-by-case basis, with due regard to the subject matter of the specific hearings that the accused would not attend during the period for which excusal has been requested.
In the absence of a waiver, the term ‘presence’ has also been interpreted to mean physical presence. The ICTR Appeals Chamber thus found that a proposal to move trial hearings to the location of a protected witness, which would require the defendant to participate by video-link, would infringe the accused’s separate right to be physically present during the trial, particularly if the accused did not waive the right to be present (through written waiver, or through misconduct which resulted in the accused’s expulsion from the courtroom).Footnote 135 In a similar vein, the African Court of Human and Peoples’ Rights found that the domestic prosecution of Saif Gaddafi, in which the hearings were either conducted in his absence or through video-link, violated the right to a fair trial under article 7 of the African Charter.Footnote 136
(b) The Right to Legal Representation
Article 18 of the Protocol amends Article 36(6) of the Statute of the Court to provide that an accused is entitled to represent himself, or to be represented by an agent before the Court. Irrespective as to which choice is made, it is crucial that the defendant is informed of his or her right to legal representation in a clear and unambiguous manner, which could reasonably be understood by the defendant.Footnote 137 It is important that the language used to advise the suspect or defendant of this right does not suggest that asking for a lawyer would imply consciousness of guilt.Footnote 138
Although a suspect or accused can ‘waive’ the right to legal representation, such a waiver must be informed, voluntary and unequivocal. The waiver also cannot have been obtained in coercive circumstances. Coercive circumstances can range from threats to improper inducements to cooperate, which negate the person’s consent.Footnote 139 The ICTR has also found that the mere fact of interviewing a suspect in detention can create a presumption of coercive circumstances. A statement taken in such circumstances should be excluded, even if the defendant waives the right to counsel, if it is not clear that the waiver was informed and voluntary.Footnote 140
(c) Self-Representation
The extent to which defendants should be allowed to represent themselves in complex criminal trials has remained a vexed question for international courts and tribunals: rather than the law dictating the practice adopted by these courts, practical issues have tended to influence the law. For example, although the ICTY Trial Chamber initially upheld Slobodan Milosevic’s right to represent himself, the Chamber later attempted to revoke it after delays occasioned by the deterioration in the defendant’s health threatened to derail the trial.Footnote 141 On appeal, the Appeals Chamber affirmed that the right to represent oneself was not unfettered, and could be overridden if necessary to secure the overriding right to a fair trial, but only if it was both necessary and proportionate to do so.Footnote 142 At the Special Counsel for Sierra Leone, the Trial Chamber cited the fact that the defendant’s attempt to exercise this right would be likely to impede his co-defendants’ right to a speedy trial, as part of its justification for overriding the right to self-representation.Footnote 143
Since a defendant clearly cannot address the rigours of a trial process without some form of assistance, various solutions have been devised to preserve the defendant’s right to represent himself, whilst ensuring that the process benefits from legal submissions and questioning from a skilled practitioner. In the Milosevic case, the defendant was assisted by chosen ‘associates’, who could communicate with the defendant on a privileged basis, but did not have legal standing to address the judges or file submissions on his behalf, and amicus curiae, appointed by the Registry, who did have such standing, but performed their responsibilities without instructions from the defendant.Footnote 144
In Seselj, the defendant was also assisted by chosen legal associates, although all written and oral submissions emanated from the defendant. The Trial Chamber nonetheless reasoned that the right to self-representation was not necessarily incompatible with the right to legal representation, and therefore decided to appoint a ‘stand by Counsel’, who was tasked to assume responsibility for the Defence if the defendant engaged in misconduct.Footnote 145 This position nonetheless proved untenable. The first Counsel appointed in this capacity withdrew in order to file a defamation claim against the defendant.Footnote 146 The Chamber’s later attempt to assign Counsel was then reversed by the Appeals Chamber, due to the Trial Chamber’s failure to first caution the defendant that this would occur if he persisted in obstructionist conduct.Footnote 147 After the Trial Chamber attempted to appoint the same Counsel as ‘standby Counsel’, the defendant reacted by instigating a hunger strike in protest against the decision. Faced with this recalcitrance, the Appeals Chamber reversed on the appointment of standby Counsel, on the grounds that the appointment of the same Counsel created the impression that the Chamber was not implementing the spirit of the Appeals Chamber’s prior ruling.Footnote 148 The case then concluded without any standby or appointed counsel.
In Karadzic, the defendant appointed his own Defence team (composed of lawyers who were qualified to act as Counsel), but conducted the questioning of witnesses and signed all written submissions. After the defendant engaged in what the Chamber described as obstructionist conduct, the Chamber also appointed two Counsel who acted as ‘stand by Counsel’. The Chamber vested them with the mandate to assume representation of the accused, for example, by questioning witnesses, whenever requested by the Chamber to do so, in response to obstructionist conduct by the defendant.Footnote 149 The mandate was discontinued after closing submissions,Footnote 150 and the defendant elected to be represented by Counsel on appeal.Footnote 151
A less confrontational approach has been to allow defendants to exercise some, but not all of the elements of the right to self-representation, whilst being represented by Counsel. The defendant Praljak was thus permitted to pose questions to witnesses, in particular, in relation to events in which he participates or on issues that fell within his expertise.Footnote 152 Tolimir was also authorised to represent himself, whilst retaining a ‘legal advisor’ who could attend hearings, and address the Chamber on discrete issues authorised by the Chamber.Footnote 153 In both these cases, the Court did not appoint or assign additional amicus or standby counsel.
In deciding which model might be best suited for the African Court, it is important to bear in mind that the ICTY did not benefit from the existence of an internal defence office, staffed by qualified lawyers who could either advise the defendant, or assume responsibility for aspects of the Defence at short notice.Footnote 154 In contrast, Charles Taylor was temporarily without Counsel due to funding disputes with the Registry, the Chamber was able to appoint a duty counsel from the Defence office, who was able to assume responsibility for the Defence at short notice, due to the ongoing assistance provided by the Defence office to all external defence teams.Footnote 155 This suggests that rather than incurring the financial cost of appointing an external standby counsel or amicus, who might prove to be unnecessary, it might be more efficient to simply put the defendant on notice that if he conducts his defence in an obstructive manner, Counsel from the Defence Office may be appointed as Counsel in his case. For that possibility to be efficient, effective and ultimately not impairing of the defendant’s rights, there should be sufficient counsel to assign to the different cases and to follow their progress. This would include appearance in court and receipt of documents such as disclosure and other materials relating to the substantive case. This would better enable the counsel to step in at a moment’s notice to fill the gap in representation where assigned counsel has been terminated or resigned or the accused is not present in court even if insisting on his right to self-representation. This, for example, would permit her or him to continue with filings or replies to filings from the prosecution, pending the appointment of permanent counsel. This appeared to work well in the Taylor Case.
(d) Representation through Counsel
At first glance, Article 46(a) appears to restrict the right to legal representation to ‘accused’ persons rather than suspects. Although this wording is in line with the equivalent provisions at other international courts and tribunals, the latter also have separate provisions governing the rights of suspects, for example, as concerns the rights of suspects during suspect interviews.Footnote 156 In contrast, the Malabo Protocol is silent as concerns the legal regime that applies to suspects.
This lacuna could be addressed, conceivably, through judicial interpretation, human rights law, domestic law, or the issuance of supplementary rules of procedure and evidence.
In terms of the first possibility, the term ‘accused’ could be interpreted judicially to encompass suspects as well as accused persons, although such an approach would not be consistent with the jurisprudence of other international criminal courts. The ICC has, for example, confirmed that the rights of suspects are governed by the specific regime set out in Article 55, rather than the general rights of the accused set out in Article 67(1). The ICC further relied on this distinction in order to conclude that suspects do not possess a general right to legal representation before their arrest and appearance at the Court.Footnote 157 Nonetheless, in contrast to the ICC, Article 22(C)(1) of the Malabo Protocol states that the role of the Defence Office is to ensure ‘the rights of suspects, the accused, and any other person entitled to legal assistance’. In accordance with the ejusdem generis rule, the phrase ‘any other’ implies that suspects and the accused are also persons who are ‘entitled to legal assistance’.
This lacuna could also be filled through domestic law in combination with African Charter obligations. The Protocol does not provide any detail as to the means by which the Prosecutor will conduct its investigations, and whether it will have a right to do so in situ, or whether it will depend on the efforts of national authorities. In terms of the latter, Article 46(L)(2)(b) provides that State parties shall cooperate with requests for the collection of evidence and taking of testimony and (2)(d) pertains to the reliance on national authorities to effect arrest and surrender to the Court. It can safely be assumed that these aspects will necessarily be addressed in the rules and regulations or other secondary instruments adopted by the Court. Although not stated explicitly, States would be required to effect these forms of cooperation in a manner which is consistent with both domestic law, including the law pertaining to the rights of suspects, and any international legal obligations, including those deriving from the African Charter, and Article 9 of the ICCPR. The African Commission has affirmed that such minimum rights includes the right to legal representation from the moment at which a person is deprived of his or her liberty.Footnote 158 Article 9 of the ICCPR also protects the rights of all detainees to access legal representation.Footnote 159
In any case, given that the Preamble to the Malabo Protocol underscores the the ACJ’s commitment to promoting respect for human and peoples’ rights under the ACHPR, and its complementary relationship with the African Commission, it seems likely that the ACJ will endeavour to interpret and apply the Protocol in a manner that avoids the current lacuna concerning explicit suspects’ rights.
(e) The Right to Legal Assistance in the Interests of Justice, or Without Payment if the Accused Does Not Have Sufficient Means
In order for the right to legal representation to be effective, there is also a corollary right to legal aid.Footnote 160 This right raises three issues: firstly, which criteria should govern the Court’s assessment as to whether the accused has sufficient means, secondly, is there any basis for allocating legal aid to a defendant even if the defendant is not indigent, and thirdly, can an accused, who receives legal aid, choose his or her lawyers freely.
Regarding the first issue, the Malabo Protocol provides no guidelines concerning the Court’s assessment as to whether an accused has ‘sufficient means’ to fund legal costs fully or partially. Each international/internationalised court also employs a different formula and system for assessing whether the defendant is indigent.Footnote 161 There are, however, some practical considerations that can be gleaned from the experiences of these courts and tribunals. In particular, any assessment as to whether an accused can fund his or her costs must take into consideration the likely length of the proceedings, the extent to which the accused can liquidate his or her assets or realize their value in a manner which is consistent with his or her right to be represented as soon as is practicable,Footnote 162 and the defendant’s ongoing obligations to dependents and third parties.Footnote 163 In order to avoid some of these issues, the general practice has been to allocate legal aid on a provisional basis until a proper assessment of the accused’s indigence has been made.Footnote 164 Alternatively, if the accused’s assets are frozen or not easily liquidated, Courts have provided legal aid with the caveat that the Court, rather than the Defence, will seek to recuperate the expenses from the accused.Footnote 165
Human rights law also specifies firstly that the process used to determine the financial means of an accused should not be unfair, arbitrary, or unreasonably complex or delayed,Footnote 166 and secondly, that provisional legal aid should be allocated immediately to suspects who require legal representation on an urgent basis, to avoid any prejudice arising whilst issues of indigence are determined.Footnote 167
Apart from the scenario in which an indigent accused receives legal aid, the wording of Article 46(A) also envisages that ‘legal assistance’ can be granted ‘in the interests of justice’, that is, even if the defendant could, in theory, pay for his or her defence. As noted above, international courts and tribunals have granted legal aid to non-indigent defendants in circumstances in which there were practical impediments as concerns the ability of the defendant to access or dispose of his or her assets. In this specific circumstance, the defendant has remained obligated to refund the legal aid, once the practical impediments were resolved. The UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems further envisage that ‘[l]egal aid should also be provided, regardless of the person’s means, if the interests of justice so require, for example, given the urgency or complexity of the case or the severity of the potential penalty’.Footnote 168
International criminal cases fulfil the last last two criteria. They are exceedingly complex, which in turn, drives up the related costs of mounting an effective defence, such that the costs are vastly higher than the equivalent costs for a domestic trial. The penalties also range to the highest sentence available (life), the imposition of a potential fine, and reparations.
A further consideration that merits legal assistance ‘in the interest of justice’ is that according to the SCSL, the role of Defence Counsel ‘is institutional and is meant to serve, not only the interests of his client, but also those of the Court and the overall interests of justice’.Footnote 169 This description of the role of Counsel implies that the institution itself has an overriding duty to ensure that a defendant is not deterred from seeking legal representation due to the impact that the related costs will have on the defendant (and his or her family’s) resources.Footnote 170
In terms of the third issue, that is, the extent to which the accused’s indigent status impacts on the right to freely choose counsel, most international courts have found that the right to freely choose counsel, and more particularly, replace counsel, is limited for indigent defendants.Footnote 171 That being said, bearing in mind the practical difficulties associated with imposing Counsel on a defendant during the course of a lengthy and complex trial, there is a general preference for acceding to the wishes of the defendant, if there are no legal impediments to Counsel’s appointment.Footnote 172 The ICC has, in particular, underscored that an accused, even if indigent, should be afforded a full and effective chance to choose a qualified counsel.Footnote 173
A final point of significance concerns the source of funds for legal aid. Article 46M of the Malabo Protocol specifies that the Assembly shall establish a Trust fund for legal aid. This suggests that legal aid will be funded through voluntary donations, rather than regular contributions, which is likely to generate uncertainty concerning the existence and scope of any annual legal aid budget. Such an outcome would be deleterious to the effective representation of defendants at the Court, and generate a potential structural inequality of arms if the Prosecution is funded through regular contributions, and thus better equipped to prepare and conduct the litigation without the concern that funding could dissipate at critical junctures.
This is an interesting approach, considering that in the current African Court in Arusha, which addresses human rights issues only, funding for legal aid for litigants is through assessed contributions to AU member states. Arguably, such a funded scheme is even more imperative when it comes to the use of criminal law in the future Court given the implications for the suspect in terms of denial of their liberty. Voluntary contributions received from partners and others are managed through a Trust Fund in the Arusha Court. And it may be that the inadequate funding for the current scheme gave rise to the desire to have a trust fund. However, it would be important that such a funding scheme is not left to the vagaries of a donations based scheme as that would not provide the kind of certainty and foundation required to meaningfully give effect to that right.Footnote 174
Indeed, we might look at the current African Court, which contains provision for legal aid for persons wishing to initiate a case before the Court. The legal basis stems from Article 10 of the Protocol to the African Charter on the Establishment of the African Court of Human and Peoples’ Rights which, in Article 10, provides that ‘Any party to a case shall be entitled to be represented by a legal representative of the party’s choice. Free legal representation may be provided where the interests of justice so require.’ This right is addressed in Rule 31 of the Rules of Procedure and Evidence which provides for the provision of free legal representation and or legal assistance to any party in the interest of justice and within the limits of the financial resources available. As part of the determination of the entitlement, the Court may consider the applicant poor unless evidence is adduced stating otherwise; or require the applicant to declare his means or possibly those of his close relatives. Access to the support needed by the litigants is determined by indigence, the need for equality of arms and a determination that representation would be in the interests of justice. It might be expected that such a system would serve as a sort of model for the future African Court though care will have to be exercised to account for the specificities of the new criminal law mandate.
8. The Right to Examine, or Have Examined, Witnesses and to Obtain Their Attendance under the Same Conditions as the Prosecution
The right to obtain the attendance of witnesses, under the same conditions as the Prosecution, is a fundamental element of equality of arms.Footnote 175 Since the Prosecution bears the burden of proof, it does not translate to numerical equality in terms of the number of witnesses who may be called, or the length of time for the presentation of the case, but it does require the Chamber to ensure basic proportionality between the Prosecution and the Defence on such issues.Footnote 176
Moreover, the fact that the Defence and the Prosecution might have the same theoretical possibility to call witnesses will not, in itself, satisfy the right to a fair trial if there are structural, political, or safety issues that might deter witnesses from testifying for the Defence.Footnote 177 For example, if the defendant is a political opponent, witnesses might be reluctant to testify ‘for the Defence’ due to the negative connotations associated with doing so. In such circumstances, it is crucial that the Court has the power to either subpoena witnesses, or to call them as witnesses of the ‘Court’ rather than the ‘Defence’. The subpoena power should be included in the rules of procedure of the future court, based on the model of the ad hoc tribunals, though modalities will have to be provided for states that are unable to arrest and surrender their nationals to the court to enable them to testify. If, after exhausting various avenues for securing access to witness testimony or evidence, the Court is unable to secure basic equality in terms of access to witnesses or exculpatory evidence, it might be necessary to stay the proceedings and release the defendant.Footnote 178
Although the right to ‘examine’ witnesses has often been described as the right of the defendant to ‘confront’ adverse testimony in court, the notion of confrontation must also be interpreted in a manner which is consistent with witness protection and the logistical imperatives associated with international trials. The right will not be infringed merely because the witness testifies via video-link or is shielded from the accused by a partition in the courtroom,Footnote 179 although the frequent use of such measures could create an appearance that the accused is a ‘dangerous’ person, which has implications for the presumption of innocence. Moreover, given that testimony via video-link impacts on the ability of the Judges to assess the credibility and demeanour of the witness, the ICTR Appeals Chamber has further held that ‘it would be a violation of the principle of the equality of arms if the majority of Defence witnesses would testify by video-link while the majority of Prosecution witnesses would testify in person’.Footnote 180
The passive phrase, ‘have examined’, suggests that this right could be complied with even if someone external to the Defence examined the witness. This possibility is reflected in ICC provisions concerning ‘unique investigative situations’, which allow the Chamber to consider appointing an ‘ad hoc’ Counsel to question a witness on behalf of an absent defendant, if there is a risk that the testimony might not be available at trial.Footnote 181 The STL Rules of Procedure and Evidence also presage that the Court may appoint a ‘special counsel’ to represent the interests of the defence in connection with information protected by national security or confidentiality agreements.Footnote 182 Bearing in mind critical commentary as to whether Counsel can adequately represent the interests of the defendant without the benefit of instructions,Footnote 183 the Court should give careful consideration as to whether such scenarios are compatible with the defendant’s overarching right to a fair trial.
9. The Right to Have the Free Assistance of an Interpreter
The issue of language rights has been discussed above, in the context of the translation of disclosure and court filings.
10. The Right Not to Be Compelled to Testify against Himself or Herself or to Confess Guilt
This language mirrors that of Article 14 of the ICCPR, and the respective fair trial provisions at the ICTY, ICTR and SCSL, but lacks the explicit language in the ICC Statute concerning the right to ‘remain silent without such silence being a consideration in the determination of guilt or innocence’.Footnote 184 Although the right to silence might seem to be an obvious corollary of the right not to be compelled to testify, this language also protects the defendant against the possibility that the Court might draw adverse inferences against a defendant who chooses not to testify.Footnote 185 The ICC Appeals Chamber has further clarified that this language protects the defendant from being pressured to provide information about his defence at early stages of the case (for example, as a condition for obtaining disclosure).Footnote 186
The fact that the Malabo protocol lacks this language does not, however, mean that the protections afforded to defendants against adverse inferences are less than that of the ICC. It is notable in this regard that in the Celebici case, the ICTY Appeals Chamber found that although the ICTY Statute lacked an explicit protection against adverse inferences, it also lacked an explicit power to draw such inferences:Footnote 187
Should it have been intended that such adverse consequences could result, the Appeals Chamber concludes that an express provision and warning would have been required under the Statute, setting out the appropriate safeguards. Therefore, it finds that an absolute prohibition against consideration of silence in the determination of guilt or innocence is guaranteed within the Statute and the Rules, reflecting what is now expressly stated in the Rome Statute.
Although a defendant cannot be compelled to testify against himself, the ICTY Appeals Chamber has confirmed that defendants can be subpoenaed to testify in other cases.Footnote 188 Moreover, although a defendant cannot be compelled to testify in their Defence, Trial Chamber II found in the ICC Katanga & Ngudjolo case that once a defendant has elected freely to do so, the privilege against self-incrimination ceases to apply and they can be questioned in the same manner as any other witness.Footnote 189 In reaching this finding, the Chamber emphasised that a defendant could also elect to provide an unsworn statement, in which case they could not be compelled to answer questions.Footnote 190 The Malabo Protocol does not afford the defendant with the right to provide an unsworn statement, although it is possible that the opportunity to provide such a statement might be set out in the Rules of Procedure and Evidence, as is the case with the ICTY.Footnote 191
11. The Right to Have the Judgment Pronounced Publicly
This is an obvious element of the right to public proceedings, as discussed above.
12. The Right to Be Informed of His or Her Right to Appeal
The Malabo Protocol does not address the specific contours of the right to an appeal, but in order to comport with human rights law, it is essential that the defendant possesses the right to appeal on both questions of law and fact.Footnote 192 It is imperative that this right be addressed in the rules and that suspects and accused persons be informed of them.
3. Conclusion
As will be apparent from the above analysis, a fair trial is a multi-faceted notion, which depends not only on the specific wording of legal texts, but the willingness and ability of the Court to make the implementation of fair trial rights a reality. Given the political and financial considerations at play, this will be no easy task. Nonetheless, as underscored by the African Commission, ‘a State party to the African Charter regardless of its level of development must meet certain minimum standards regarding fair trial or due process conditions’.Footnote 193 These observations apply with even greater force to the Court, particularly as States will be likely to look to it as the standard bearer for criminal justice in Africa. Considering that the criminal jurisdiction is effectively ‘twinned’ to the Court’s human rights jurisdiction, the Court’s success will depend on its ability to demonstrate that complex criminal investigations and prosecution can be conducted in a manner, which is fully consistent with human rights obligations, including the right to a fair trial.
Of further note, the African Court of Human and Peoples has found that States have a positive duty to take steps to ensure that the right to a fair trial is respected within their jurisdiction.Footnote 194 It follows that having elected to establish such a Court, State Parties also have a corollary duty to ensure that the Court is sufficiently funded and politically supported to fulfil its promise to bring fair and impartial justice to victims and defendants in Africa.
The text of the Malabo Protocol is, itself, a promising step in this direction. Apart from the fact that the establishment of the criminal division will play an important role in ‘plugging the impunity gap’ for victims (and will indeed provide a unique forum for accountability as concerns crimes perpetrated by corporations), the attention given to structural equality of arms, through the establishment of an internal Defence Office, suggests that key lessons have been learned as concerns the problems faced by the Defence at other international courts and tribunals, and that as the ‘newest court on the block’, the Court may in fact be better placed than its predecessors to achieve fair and effective justice. This may depend on the extent to which these lessons learned continue to be filtered through to the adoption of secondary legal instruments, such as the Rules of Procedure and Evidence, but a key litmus test as to whether the nacscent promise to respect equality of arms will be realized is whether a Principal Defender will be appointed at the same time as the Prosecutor, so that Defence issues can be voiced and effectively represented at every stage of the proceedings before the Court.
1. Introduction
The success of an international criminal justice mechanism is likely to depend on cooperation with States. It is thus generally expected for statutes of international criminal tribunals to provide some mechanism for cooperation between the tribunal and States.Footnote 1 It was thus to be expected that the AU would include some provisions on cooperation in the Statute of the African Court, annexed to the Malabo Protocol.
Yet, experience shows that having provisions on cooperation in a statute does not guarantee cooperation. Obtaining cooperation very often depends on the right legal framework, including absence of conflicting obligations, as well as consistent political interest and potential consequences of non-cooperation. To these, one might add the potential consequences of cooperation if that cooperation requires the arrest of sitting of head of another State. The recent, and much publicized, alleged case of non-cooperation of South Africa in the arrest of the Sudanese President, Al-Bashir, while attending the African Union (AU) Summit in Johannesburg is illustrative of how these factors can lead to cases of non-cooperation.Footnote 2 In that case, the presence of a conflict of obligations between the rules of customary international law and the Summit Host Agreement between South Africa and the AU, on the one hand and, on the other hand, the duty to cooperate under the Rome Statute,Footnote 3 was a significant factor in the eventual non-arrest of Al-Bashir.
Also, significant, however, were the political dynamics. Arresting an African head of State to surrender him to the ICC, at a meeting of heads of the African Union when the latter organization had a policy of non-cooperation with the ICC, and just a few months after xenophobic attacks against nationals from other African States in South Africa was, quite apart from all the legal controversies, politically impossible. Politically, with South Africa keen to shed the label of ‘big brother’ on the continent, a decision to arrest Al-Bashir could have set South Africa’s relations with other African States and the African Union back. South Africa would likely have been sanctioned by the AU, possibly expelled or suspended from the organization. More than likely, potential consequences, both legal and political, could have a played a role in the events surrounding Al-Bashir’s presence and departure from South Africa.
The stark consequences for South Africa, should it have decided to ignore its political and legal commitments to the AU can be compared with the almost non-existent consequences for the non-arrest of Al-Bashir. From the experience of the previous seven cases of non-cooperation (Kenya, Djibouti, Chad on two occasions, Malawi, Nigeria and the DRC),Footnote 4 the consequence of non-arrest was a referral to an apparently disinterested the Security Council and the ICC Assembly of States Parties and nothing else. Politically neither the Security Council nor the Assembly of States has shown any appetite, despite the potential tools at their disposal, for action against non-cooperating States.Footnote 5 On the other hand, the legal consequences of acting inconsistently with the customary international law and Host Agreement obligations would have meant the suspension of South Africa from the AU.
The role of competing obligations as a factor determining cooperation is not only limited to the political. As a matter of international law, any breach of a rule, whether customary international law rules on immunity, the AU Host Country Agreement or the duty to cooperate under the Rome Statute implies the responsibility of a State. Yet when these obligations pull in opposite directions, their impact on a decision to cooperate or not is significantly diminished since any decision taken would, in any event, implicate that State’s responsibility – a case of ‘damned if you do, damned if you don’t’. All of these considerations that affect the will to cooperate should play some role in the development of a system of cooperation with the African Court. In particular, to the extent possible, avoiding conflict with other legal regimes is a key ingredient to enhancing cooperation.
In the light of the issues highlighted above, this chapter addresses the provisions on cooperation in the Malabo Protocol. I begin, in the next section, by addressing some issues of context, including the importance of cooperation for the success of an international criminal justice system. I then provide a descriptive analysis of the provision on cooperation in the Malabo Protocol. Finally, I evaluate the prospects for the success of the cooperation regime before offering some concluding remarks. The Malabo Protocol follows other international criminal tribunals with track records of successes and challenges. The experience of the ICC, a Court established by treaty like the AU Court, provides a particularly useful vantage point from which to evaluate the provision on cooperation in the Malabo Protocol.
2. Context: The Importance of Cooperation
The importance of cooperation for the success of international criminal courts and tribunals cannot be overemphasized.Footnote 6 The importance of cooperation in the Rome Statute system is reflected in the elaborate framework for cooperation in Part Nine of the Rome StatuteFootnote 7 as well as the constant reaffirmation of the duty to cooperate by the Assembly of State Parties.Footnote 8 As with the ICC, the effectiveness of the African court in the execution of its criminal jurisdiction, would be greatly diminished without cooperation. Like other international criminal courts and tribunals, the African Court and its criminal chamber will not have a police force at its disposal to arrest persons with outstanding arrest warrants nor will it be able to freeze assets, or provide prisons for holding convicted persons. The African Court will, without the cooperation of States, find it difficult to secure witnesses, obtain documents and other evidence. Only States, which exercise sovereignty over territory, can perform these functions unhindered.
While cooperation is central to the success of international criminal courts and tribunals, recent experience with the ICC shows that when difficulties and conflicts between various interests and obligations arise it is very often cooperation that suffers.Footnote 9 In the wake of political (and legal) tensions between the AU and the ICC, the AU decided that African States were not to cooperate with the ICC in the case of the ICC against Al-Bashir.Footnote 10 In a sense, the AU decided to ‘hit’ the ICC where it would hurt the most – in the area of State cooperation. Similarly, when African states have been faced with political and legal dilemmas involving cooperation, it has been cooperation that has received the short end of the stick. To date, in addition to the most recent case of South Africa, there have been cases of non-cooperation in the arrest and surrender of Al-Bashir, namely Kenya, Malawi, Chad (on two occasions), Nigeria, the Democratic Republic of the Congo, the Central African Republic and Djibouti (on two occasions) and Uganda. The Kingdom of Jordan has also been found guilty of non-cooperation in the arrest and surrender of Al Bashir.
It should be stated that it is not only the AU that has contributed to non-cooperation. Several decisions of non-cooperation have been transmitted to the Assembly of States Parties and the Security Council in accordance with Article 87(7) of the Rome Statute.Footnote 11 In 2011, the Assembly of States Parties adopted a set of procedures for addressing cases of non-cooperation (hereinafter the ‘Assembly Procedures’) to promote compliance with the duty to cooperate.Footnote 12 The Assembly Procedures makes provision for, inter alia, the appointment of ‘a dedicated facilitator to consult on a draft resolution containing concrete recommendations’ concerning the State that is guilty of non-cooperation.Footnote 13 Yet in all the cases of non-cooperation referred to the Assembly of States, there has not been a single dedicated facilitator or a resolution with concrete recommendations. While it is possible to speculate on the reasons why the Assembly of States has never acted on non-cooperation cases referred to it, this inaction, at best, shows a lack of commitment to act in the face of non-cooperation and, at worst, a sacrifice of cooperation at the political altar. It might also be just a reflection of the fact that it is difficult to conceive of real sanctions. The only real sanction is probably suspension, but this is politically not possible when the ICC is trying to achieve universality.
The same cases of non-cooperation referred to the Assembly of States have also been referred to the Security Council under Article 87(7). Like the Assembly of States Parties, the Security Council has not, in any of those cases, taken action in response to address these cases of non-cooperation.Footnote 14 Indeed the lack of seriousness with which the Security Council takes cooperation is also reflected in the resolutions adopted by the Security Council referring situations to the ICC. In both resolutions, Resolution 1593 and Resolution 1970, the Security Council places a duty on the situation country to cooperate with the ICC, but does not place a similar duty on other States to cooperate with the ICC.Footnote 15 Of course, States Parties would be obliged under the Rome Statute but this obligation would not be underpinned by the supremacy of Security Council resolutions.Footnote 16 If the Council valued cooperation above other interests, a duty to cooperate would be placed on all States in the resolution, to avoid a conflict of legal obligations.Footnote 17
While cooperation is central to the success of international courts and tribunals, it appears that all too often it is sacrificed in favour of other interests. To promote the success of the African Court, in particular with respect to its criminal mandate, it is important that the framework for cooperation takes into account the factors that might undermine cooperation.
3. Cooperation in the Amendment Protocol
While the Malabo Protocol does not provide as comprehensive a framework as that provided for in the Rome Statute, Article 46L does contain important elements of cooperation. It contains a general obligation for States Parties to ‘cooperate with the Court in the investigation and prosecution’ of crimes under the Statute of the Court.Footnote 18 The cooperation provision also contains a non-exhaustive list of the forms of cooperation.Footnote 19 The list contains many of the forms of cooperation that are also found in the Rome Statute, including the ‘identification and location of persons’,Footnote 20 ‘taking of testimony’,Footnote 21 ‘service of documents’,Footnote 22 and ‘identification, tracing and freezing or seizure of proceeds’Footnote 23 of crimes under the jurisdiction. The amended Statute also provides for the enforcement of sentences ‘in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept sentenced persons.’Footnote 24 As with similar provisions in statutes of other tribunals, this provision does not lay down an obligation to accept prisoners except in cases where a subsequent agreement to that effect has been included.Footnote 25 Finally, as a general point, like the Rome Statute, the Malabo Protocol provides the possibility for cooperation with other ‘regional or international court, non-State Parties’ and other partners.Footnote 26 While such cooperation may be ad hoc, i.e. without any prior agreement, the Protocol recognizes that conclusion of agreements would facilitate cooperation with other entities.Footnote 27
Unlike the Rome Statute, arrest and surrender in the African Court Statute is provided for in the list of forms of cooperation and assistance, and not in a separate and more detailed provisions.Footnote 28 Article 46L(2)(e) provides for States Parties to cooperate with the Court in the ‘arrest, detention or extradition’ of persons while Article 46L(2)(f) provides for the ‘surrender or the transfer of the accused to the Court.’ In the context of cooperation with the Court, it is not clear what the difference is between ‘surrender or transfer’, on the one hand and, on the other hand, ‘extradition’. Extradition normally refers to the transfer of persons to another State while surrender and/or transfer is normally reserved for transfer to international courts. However, Article 46L is concerned with cooperation with the Court and, in that context, the distinction between transfer to an international court and extradition to another state does not seem particularly meaningful.
There are some forms of cooperation in the Rome Statute that are not mentioned in Article 46L (2) of the Statute, such as the questioning of persons,Footnote 29 ‘examination of places or sites’Footnote 30 and the ‘provision of records and documents’.Footnote 31 However, all of these can be covered, either by other related forms of cooperation, the catch-all ‘or any other type of assistance’ or by the fact that the list is described as a non-exhaustive list. While it true that the Statute of the Court does not go into any detail, as is the case with the Rome Statute,Footnote 32 on the modalities for cooperation this is not necessarily a weakness in the cooperation framework. These more administrative or bureaucratic details are rarely ever the cause of non-cooperation and can often be worked out in the practice of the Court, in its interaction with States parties.
Notable by its absence in the African Court Statute is an exception to cooperate similar to Article 98 of the Rome Statute. Such a provision may have been seen as unnecessary since the exercise of jurisdiction over officials with immunity is excluded by Article 46A bis of the Statute of the African Court.Footnote 33 However, it should be recalled that the phrase ‘officials’ in the Statute remains to be interpreted by the Court, and it may be that in the future Article 46 A bis could be interpreted by the Court as not applying to all officials entitled to immunity under international law.Footnote 34 Moreover, depending on the interpretation of the phrase ‘during their tenure in office’, immunity under Article 46 Abis may cease after a person leaves office even for acts performed in an official capacity while in office. This would mean the Court would be entitled to exercise jurisdiction over some individuals who are no longer officials in respect of acts for which they retain immunity under customary international law. At any rate, it may well be that it is necessary to provide an exception from the duty to cooperate for other reasons, such as national security. While the Rome Statute does contain an elaborate regime in Article 72 for dealing with materials that could prejudice national security, Article 93(4) makes it plain that a State may deny a request to provide information or documents if the provision of such information or documents would prejudice national security.
As discussed above, experience with the ICC’s referral of cases of non-cooperation to political bodies does not reveal a promising pattern. Nonetheless, there is a value of such referral, even if it does lead to any concrete results of sanction. It serves, in the first place, to place the issue on the agenda and to afford States the opportunity to discuss the matter. Whether States take the opportunity or not is an altogether different matter. Second, whatever the consequences (or lack thereof), States generally do not like to be shown in bad light in reports before international organizations. Finally, while empirically political bodies have not acted on cases of referral of non-cooperation, that does not mean this will always be the case. Providing for referral of non-cooperation creates the possibility, even if remote, of some action. The Malabo Protocol could, therefore, have made provision for a referral of cases of non-cooperation.
There are other aspects of cooperation that could have been addressed in Statute. For one thing, the Statute does not address the potential for conflicting requests of cooperation, particularly in relation to arrest and surrender.Footnote 35 The nature of the crimes covered in the Statute, namely international and transnational crimes, creates the potential for multiple claims of jurisdiction, with the potential for multiple requests for surrender or extradition. A provision on how a requested State is to priorities these requests could be useful to avoid conflict between States inter se, and States and the Court. The Statute could also have provided for a consultation mechanism, for those cases where a States have difficulty cooperating with the Court.Footnote 36 Finally, in the light of the complementary jurisdiction of the Court, a provision promoting, if not obliging, interstate cooperation to foster domestic investigations and prosecution would have been advisable. Such a provision is also lacking in the Rome Statute and there have been efforts to address this gap.Footnote 37 The gap is particularly acute given the Malabo Protocol establishes jurisdiction over transnational crimes which are ordinarily prosecuted in domestic courts.
While there are certainly provisions that could have been included, for example exception from the duty to cooperate and provisions on interstate cooperation, on the whole the legal framework for cooperation under the Statute is sufficiently comprehensive to facilitate cooperation with the Court. Experience from the early years of the ICC, however, shows that a sufficient legal framework does not always translate to full cooperation. Moreover, adequacy of the international framework is also often insufficient. A strong domestic framework to implement the international law framework is very often crucial. Indeed, in South Africa, the Supreme Court of Appeal found that there was a duty to arrest Al-Bashir based almost entirely on domestic law.Footnote 38 I turn now to address potential challenges and opportunities for effective cooperation.
4. Prospect for Full and Effective Cooperation
As a general rule, States cooperate with international criminal courts and tribunals in accordance with their obligations. It is mainly when there are in conflicts in obligations and/or when national interests are negatively implicated that obligations to cooperate are likely not to be complied with. This includes national interests relating to political relationships with States and international organizations, as is the case in relation to the request for the arrest and surrender of Al-Bashir which would affect not only an African State Parties’ relations with the Sudan but also with the AU. Arresting a sitting foreign head of State (or maybe even a former head of State who still has the respect of his State) is, quite apart from the issue of immunities, politically more risky or undesirable than arresting and surrendering a person from another State who does not hold high office. In this sense, the inclusion of Article 46 A bis on the respect of immunities will not only reduce the possibility of a conflict in legal obligations, but will also reduce the potential for the conflict between political interests and the duty to cooperate.
However, even with the preservation of immunity under the Statute, there remains the possibility for non-cooperation with requests from the Court. As mentioned above, for example, there remains the possibility of a restricted interpretation of Article 46 A bis by the Court, potentially re-establishing the immunity-cooperation conflict. At any rate, when it comes to prosecutions of certain offences in the material jurisdiction of the African Court, it is unlikely that a government that has successfully taken over power through unconstitutional change of government would cooperate with the Court in proceedings related to the crime of unconstitutional change in government. Other reasons for non-cooperation may include, for example, an appeal to national security where requested documents or materials are deemed classified. Whatever the reason, there remains the possibility for non-cooperation with the requests of the Court.
The possibility brings into sharp focus the question of consequences for non-cooperation. Leaving aside the debate on the correct interpretation of the Rome Statute and its Article 98, part of the reason for the continued non-cooperation with the ICC is the impotence of the enforcement mechanisms for non-cooperation with Rome Statute obligations, namely the Security Council and the Assembly of States Parties. Thus, when faced with competing obligations and interests, States Parties to the Rome Statute are likely to choose other obligations over those under the Rome Statute since violations of the latter do not carry any real consequences.
A mechanism that could prove useful in facilitating cooperation with the obligations under the Statute may be the powers of the African Union’s Assembly of Heads of State to sanction non-compliance with AU decisions under Article 23 of the AU Constitutive Act. As discussed, however, this would require the power to refer cases of non-cooperation to the Assembly. At any rate, whether this will be applied will be dependent on the political will of the Assembly which, like the Security Council, is a political body that takes into account political considerations in its decisions to exercise the powers to sanction. Political pressure from other States Parties to the African Court, including through exertion of economic pressure, on a non-complying state, might be yet another option for ensuring compliance. It is widely reported, for example, that the decision of Malawi to withdraw from hosting the AU Summit in 2012 was the threat of withdrawal of aid by mainly European States Parties to the Rome Statute.Footnote 39 However, whether powerful African States would be willing to exert that kind of pressure, and risk damaging relations with other States for the sake of the African Court is also unlikely.
5. Conclusion
The Statute establishes a strong and coherent legal framework for cooperation with the Court. While there are certainly other provisions that could have been included, this framework, based on comparable frameworks in the statutes of other international criminal tribunals, is comprehensive and addresses all necessary elements. This framework contains the provisions necessary to facilitate cooperation. Moreover, the inclusion of a provision respecting the immunity of officials, will significantly reduce incidences likely to lead to non-cooperation. Cooperation, however, is not dependent only on the legal framework. Where cooperation conflicts with political interests of States Parties there may, however, still be cases of non-cooperation.
In cases of potential non-cooperation from States Parties, the most important indicator of whether cooperation will take place will be the political will of other States Parties of the African Court, whether individually through influence, including economic pressure, or collectively through, for example, the power of the Assembly of Heads of State of the African Union to sanction members for non-compliance with the AU decisions. The experience of the ICC, however, does not paint a picture of promise. Whether AU Member States, given their relative homogeneity, will lead to different results remains to be seen.
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