Contemporary International Criminal Law Issues : Contributions in Pursuit of Accountability for Africa and the World

This book critically analyses diverse international criminal law (ICL) issues in light of recent developments in the international criminal justice system following the pursuit of accountability in Africa and around the world. It gives a scholarly analysis of issues pertaining to ICL and the pursuit of accountability in Africa by way of several topics including universal jurisdiction in Africa, Boko Haram in Nigeria, the legitimacy of the ICTR, the law of genocide committed against the Herero and Nama peoples, the African perspective on international co-operation in criminal matters, the Malabo Protocol, and whether an African Regional Court is a viable alternative to the ICC. Further discussed are other aspects of ICL, such as prosecuting sexual and gender-based crimes at the ICC, sexual and gender-based crimes perpetrated against men, guilty pleas within ICL and slavery within international criminal justice. With this, the book also refers to the jurisprudence of several international courts and tribunals including the ICTR, the ICTY, the SCSL, the ICC, the ECCC, the KSC, and the STL. This timely contributed volume updates international criminal law experts, practitioners, academics, human rights activists and other stakeholders on contemporary developments in ICL and provides recommendations that address accountability for mass atrocity crimes and ideas for strategic ICL litigation at the national, international, regional and sub-regional levels. It will prompt constructive exchanges on what can be improved in prosecuting mass atrocity crimes around the world. Takeh B.K. Sendze is an Advocate and Legal Officer with the United Nations International Residual Mechanism for Criminal Tribunals in Arusha, Tanzania. Adesola Adeboyejo is a Trial Lawyer at the International Criminal Court. Sir Howard Morrison QC is a former International Judge and an Associate Tenant at Doughty Street Chambers in London, United Kingdom. Sophia Ugwu is a Solicitor and Advocate who founded the Centre for African Justice, Peace and Human Rights in The Hague, The Netherlands. Foreword 5 Preface 6 Contents 8 Editors and Contributors 10 1 Introduction 13 1.1 Background and Context of the Book 13 1.2 Overview of the Contents 14 Part I International Criminal Law: Looking Through the African Lens 22 2 Bring Justice to Our Girls? The ICC Inquiry into Boko Haram in Nigeria 23 2.1 Introduction 24 2.2 Boko Haram 25 2.3 The ICC Process 27 2.3.1 Framework 27 2.3.2 Implementation in the Nigeria Situation 28 2.3.3 Completion 31 2.4 Alleged International Crimes by Boko Haram 32 2.4.1 Case I: Attacks on Civilians 34 2.4.2 Case II: Abduction and Detention of Civilians 35 2.4.3 Case III: Attacks on Schools, Teachers, and Students 37 2.4.4 Case IV: Recruitment and Use of Child Soldiers 38 2.4.5 Case V: Gender-Based Crimes 39 2.4.6 Case VI: Attacks on Buildings Dedicated to Religion 41 2.4.7 Case VII: Attacks on Humanitarian Workers 41 2.4.8 Case VIII: Attacks Directed at Christians 42 2.5 Next Steps and Lessons for Future Situations 44 2.5.1 Immediate Next Steps 44 2.5.2 Implications for the Preliminary Examination Process 45 2.5.3 Africa—ICC Relations 56 2.6 Conclusion 58 References 58 3 Is an African Regional Court a Viable Alternative to the International Criminal Court? A Neutral View 65 3.1 Introduction 66 3.2 Internationalization of Criminal Justice 67 3.2.1 Post-World War I 68 3.2.2 Post-World War II 70 3.2.3 Post-Cold War 73 3.2.4 The International Criminal Court 74 3.3 Regionalization of ‘International’ Criminal Justice 75 3.4 The Malabo Protocol 80 3.4.1 The African Regional Court 85 3.4.2 Roadmap to the African Court 86 3.5 Jurisdiction of the African Court 89 3.6 The African Regional Court; A Viable Alternative 94 3.6.1 Closing the Gap 100 3.6.2 Burden-Sharing 101 3.7 Conclusion 102 References 103 4 The Legitimacy of the International Criminal Tribunal for Rwanda (ICTR) 108 4.1 Introduction 109 4.2 The International Criminal Tribunal for Rwanda (ICTR) 110 4.2.1 Legitimacy Challenges 112 4.3 Legitimacy 116 4.3.1 Legitimacy and Transitional Justice 119 4.3.2 Managing Legitimacy 121 4.4 The ICTR’s Legitimisation Activities 124 4.4.1 The Jean-Bosco Barayagwiza Case 127 4.4.2 The Removal of the ICTR’s Chief Prosecutor, Carla Del Ponte 131 4.5 Conclusion 135 References 137 5 The Law of Genocide and Atrocities Committed Against the Herero and Nama Peoples 142 5.1 From ‘Race Extermination’ to Genocide as a Crime 143 5.2 Dolus Specialis: The Special Mens Rea Requirements for Genocide 149 5.3 Prohibited Acts 165 5.4 Modes of Participation 171 5.4.1 Genocide 172 5.4.2 Conspiracy 172 5.4.3 Direct and Public Incitement of Genocide 176 5.4.4 Attempt to Commit Genocide 178 5.4.5 Complicity in Genocide 178 5.5 Conclusion 180 References 181 6 Horizontal and Vertical International Co-operation in Criminal Matters: An African Regional and Sub-regional Perspective 186 6.1 Introduction 187 6.2 Mutual Legal Assistance in Criminal Matters: A Sub-regional Example 189 6.2.1 Double Criminality 190 6.2.2 Search and Seizure 191 6.2.3 Proceeds of Crime 191 6.2.4 Grounds for Refusal of Assistance 191 6.2.5 Authentication of Documents 192 6.2.6 Settlement of Disputes 192 6.2.7 Differences Between States: Judicial and Executive Roles 193 6.3 Mutual Legal Assistance, Extradition, and Death Penalty Concerns 195 6.4 General Human Rights Concerns (Including the Risk of Torture) 197 6.5 Transfer of Prisoners 199 6.6 Africa and the ICC: Of Promises, Principles, and Presidents 200 6.6.1 Assistance by States Parties 200 6.6.2 The Duty to Arrest and Surrender, and the Impact of Immunities 201 6.7 Final Observations 218 References 219 7 The Scope and Application of Universal Jurisdiction: A Synopsis of African States’ Positions and Proposals During Plenary Sessions in the Sixth Committee of the United Nations General Assembly 221 7.1 Introduction 222 7.2 Principles for Exercising Criminal Jurisdiction Under International Law 227 7.3 Universal Jurisdiction Principle in International Law and International Relations 232 7.4 The Trigger for African Union and African States to Approach the United Nations on the Scope and Application of Universal Jurisdiction 236 7.5 African States’ Positions and Contributions During the Legal Committee (Sixth Committee) of the United Nations General Assembly (2009–2020) 241 7.6 Africa’s Recognition of the Principle of Universal Jurisdiction and Its Commitment to Fighting Impunity 244 7.7 African States’ Qualified Recognition of Universal Jurisdiction and Insistence on the Respect of the Sovereign Equality of States 247 7.8 Immunity and the Application of Universal Jurisdiction 250 7.9 African Approaches to the Application of Universal Jurisdiction 252 7.10 African Union Model National Law on Universal Jurisdiction Over International Crimes 256 7.11 Discord Concerning the Role of the International Law Commission in Determining the Scope and Application of Universal Jurisdiction 260 7.12 Conclusion 264 References 265 Part II International Criminal Law Beyond the African Region 271 8 Breaking Binaries and Honing-in on Harms: Inclusive Approaches Towards Sexual and Gender-Based Crimes 272 8.1 Introduction 273 8.2 Plurality of Crimes, Victims, and Perpetrators 276 8.2.1 ‘Only Women are Raped’: The Invisibility of Sexual Violence Against Men 277 8.2.2 Capturing the Multiple Forms, Motivations, and Victims of Violence 283 8.2.3 Female Perpetrators: Of Mothers and Monsters? 286 8.2.4 Stereotyped and Straightjacketed 289 8.2.5 Heeding Harms in the Eyes of Those Harmed 291 8.3 Inclusive Approaches Towards Gender and Sexual and Gender-Based Crimes 293 8.3.1 Honing in on Harms 293 8.3.2 Unravelling Intersectional Harms 297 8.3.3 Breaking Binaries: Stigma, Sexual Violence and Beyond 300 8.4 Conclusion 302 References 303 9 Sexual and Gender-Based Violence: What Legacy for the New ICC Prosecutor? 311 9.1 Introduction 312 9.2 Significant Shift: From Nuremberg to The Hague 314 9.3 Crystallisation of the Lessons Learnt in the ICC Framework 319 9.4 The Prosecution’s Struggles with Sexual and Gender-Based Violence 322 9.4.1 The Lack of Sexual and Gender-Based Violence Charges 323 9.4.2 Promising Changes in the Charging Practice 327 9.4.3 Long Lasting Negative Effects 334 9.5 Judicial Conservatism 341 9.5.1 A Regrettable Lack of “Judicial Receptiveness” 341 9.5.2 An Unjustified Higher Degree of Scrutiny 347 9.6 Conclusion 349 References 351 10 The Marginalization of Slavery in International Criminal Justice: Untapping Its Potential in the Fight Against Modern Slavery 355 10.1 The Role of International Law in the Transatlantic Slave Trade and Modern Slavery 356 10.2 The Marginalization of Modern Slavery in International Criminal Justice 364 10.3 Untapping the Potential of International Criminal Justice in the Fight against Modern Slavery 368 10.3.1 Targeted International Prosecutions 368 10.3.2 The Role of National Prosecutions and the Use of Universal Jurisdiction in the Fight against Modern Slavery 373 10.3.3 A Global Mechanism to Tackle Modern Slavery 374 10.3.4 Beyond Criminal Accountability: Reparations for Victims of Contemporary Forms of Slavery 375 10.3.5 Follow the Money: Disrupting Financial Flows Associated with Contemporary Forms of Slavery 378 10.4 Conclusion 381 References 385 11 The Evolution and Practice of Guilty Pleas in International Criminal Law 390 11.1 Introduction 391 11.2 Legal Framework for Guilty Plea Bargaining in International Criminal Law 395 11.2.1 Plea Bargaining 398 11.2.2 Plea Bargain Agreements 402 11.3 The Divergence in the Number of Pleas at the ICTY and ICTR 404 11.4 Guilty Pleas—The Pre-completion Strategy Phase 406 11.4.1 ICTY 406 11.4.2 ICTR 411 11.4.3 Summary of First Phase at the ICTY and the ICTR 415 11.5 The Completion Strategies of the ICTY and ICTR—An Incentive to Plea Bargaining? 417 11.5.1 ICTY 417 11.5.2 Summary and Conclusion on Guilty Pleas at the ICTY 421 11.6 The Second Phase Guilty Pleas at the ICTR: 2004–2007 427 11.7 The Evolving Post Completion Strategy Trend at the ICTR 434 11.8 Guilty Pleas in Hybrid Criminal Courts 439 11.9 Admissions of Guilt at the International Criminal Court (ICC) 445 11.10 Conclusions on the ICTY, ICTR and ICC Cases 449 11.11 Conclusion 453 References 454 "This book analyses diverse international criminal law (ICL) issues in light of recent developments in the international criminal justice system following the pursuit of accountability in Africa and around the world. It analyses issues pertaining to ICL and the pursuit of accountability in Africa by way of several topics including universal jurisdiction in Africa, Boko Haram in Nigeria, the legitimacy of the ICTR, the law of genocide committed against the Herero and Nama peoples, the African perspective on international co-operation in criminal matters, the Malabo Protocol, and whether an African Regional Court is a viable alternative to the ICC. Further discussed are other aspects of ICL, such as prosecuting sexual and gender-based crimes at the ICC, sexual and gender-based crimes perpetrated against men, guilty pleas within ICL and slavery within international criminal justice. With this, the book also refers to the jurisprudence of several international courts and tribunals including the ICTR, the ICTY, the SCSL, the ICC, the ECCC, the KSC, and the STL"--Publisher's description