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Currently browsing posts by Yeniva Massaquoi
Jekyll or Hyde: Curtailed justice at the ICC?
The Security Council’s ability to suspend ICC investigations destabilizes the necessary independence of the court. Through Article 16 of the Rome Statute, the SC moves the ICC beyond a legal ideal into a political reality where diplomatic peace and justice can sometimes conflict. For reasons laid out below, this legal/political tension suggests that Article 16 is a Jekyll and Hyde provision. To consider Article 16 as a positive aspect of the Rome Statute, its dual character must be monitored through a continuous case-by-case assessment. This article will consider the implications of Article 16 and the possible consequences arising from Resolution 1422.
Article 16 – On Compromise and Politics
Article 16 represents a compromise between the SC and the ICC. In its earlier form, Article 16 prevented the ICC from commencing a prosecution on any situation being dealt with by the SC unless the SC decided otherwise [here at 1509]. This broad provision would have jeopardized independence of the ICC and left it susceptible to the political motivations of the SC. Viewed through a lens of compromise, the current version of Article 16 is a more palatable alternative. It arguably strikes an essential balance between recognition of the Security Council’s primacy over international peace and security and the Court’s independence. While the article still alters the independence of the ICC, it allows for investigations to continue unless the Council formally decides to stop the process.…
Regionalization of International Criminal Law on the African Continent?: Ubuntu and Amnesty
On 15th December 2009, the African Court on Human and Peoples’ Rights (ACHPR) rendered its (much awaited) first decision – In the Matter of Michelot Yogogombaye v The Republic of Senegal.[1] In the case, Michelot Yogogombaye brought an application against Senegal with a view to suspend Senegal’s ongoing legal proceedings against Hissène Habré, former President of Chad.[2] Habré is suspected of complicity in crimes against humanity, war crimes and acts of torture in Chad between 1982 and December 1990.[3] Yogogombaye alleged that Senegal had violated the legality principle by amending their Constitution to authorize “retroactive application of its criminal laws, with a view to trying exclusively and solely Mr. Hissène Habré”.[4] Although the ruling did not move beyond the merits in finding that Senegal had not accepted the Court’s jurisdiction,[5] some of the arguments outlined deserve attention. In this case note I will focus on the arguments on the issues of amnesty to draw out the regional flavour in the approach.
Amnesty and Ubuntu: Shared objective?
An interesting feature in the judgment was that Yogogombaye urged the Court to order that Senegal utilize the philosophical concept of ubuntu to develop a national “Truth, Justice, Reparations and Reconciliation” Commission for Chad on crimes committed between 1962 and 2008.[6] Ubuntu (or African Humanity) is a philosophy that attempts to capture the intersection of justice and humanity by essentially asking: how does one keep their humanity after being wronged? This was underscored…
Piercing the Veil of State Immunity: Exceptions to the rule
Incumbent head of state immunity at international law is a multi-layered issue. Whether an incumbent head of state always has immunity therefore depends on certain variables. In this short piece, I will discuss the current state of the law on state immunity.
Revisiting old tensions: Horizontality
Incumbent head of state immunity hugs the boundaries of the verticality/ horizontality discourse. Although derived from customary international law, state immunity is rooted in the horizontal level through its objective of maintaining a peaceful coexistence[1] between States and ensuring states’ sovereignty. As underscored in Arrest Warrant[2], courts at the horizontal level cannot interfere with head of state immunity because such an action would hinder the effective performance of the official’s duties. At this level, there is no exception for State official immunity – not even for derogation of jus cogens norms.[3] Although this may seem a high price to pay to grease the wheels of international camaraderie, some argue[4] that absence of immunity in relation to human rights violations is more likely to hinder international cooperation than it is to significantly increasing protection of human rights.[5]
Peeling back the layers: Ratione materiae and Ratione personae
Viewed through a human rights lens, the finding of absolute immunity in Arrest Warrant is contentious. However, I argue that in failing to make a clear distinction between ratione materiae and ratione personae, the Arrest Warrant judgement missed an opportunity to limit the polemic nature of its overarching judgment.…
Toward a Right to Development? : Reflecting on the Endorois Decision
Last month, the African Commission on Human and Peoples’ Rights (“ACHPR”) handed down a decision on the Endorois peoples’ situation in Kenya. The decision not only marks the end of a nearly 40 year struggle by the Endorois people against the Kenyan government but it also heralds the increasing importance of the third generation human right to development.
The Endorois people are a sub-tribe from central Kenya that were evicted from their lands near Lake Bogoria in the 1970s. The government relocated them to an area that limited their access to a clean water source, central sites of worship and other daily requirements for their pastoral way of life. The Kenyan government failed to provide compensation for this eviction but still proceeded to develop a Game Reserve on the Endorois former lands.
After exhausting all domestic avenues for remedy, the Endorois – with the help of Minority Rights Group International – brought their case before the ACHPR. The ACHPR is a quasi-judicial regional body that renders non-binding decisions aimed at protecting human and collective rights in Africa as envisaged by the African Charter on Human and Peoples’ Rights (“African Charter”). Although non-binding, I believe that the decisions from the ACHPR can be viewed as a snapshot of general zeitgeist. Indeed, until the African Court on Human and Peoples’ Rights starts delivering decisions regularly, the Commission’s decisions will remain an important and indicative…
Corruption of Waldo: Where in the world is President Umaru Yar’Adua
The Nigerian president, Umaru Yar’Adua, has been away from his country since November 2009. No one has seen him. The official line is that he is in Saudi Arabia receiving treatment for an undisclosed illness. On January 12th 2010, he finally acknowledged his countrymen’s concern by calling BBC radio to make a brief public statement to prove that he was not yet beyond death’s door. On January 13th, a federal court declared that Vice President Goodluck Jonathan can perform all presidential duties while the president is away. However, the judgement is ambiguous: Jonathan’s new role lends him no substantive constitutional authority to be acting president, except that transmitted to him by the president.
What has been most bewildering about the president’s absence is the subtle yet apparent lack of leadership that continues to cloud Africa’s most populated nation. Legally, the January 13th ruling was supposed to put the country back on track. Yet, the judgement has failed to soothe tempers. As recently as January 27th 2010, the Nigerian cabinet and Senate continue to be at odds regarding who is governing their country. The question seems to remain: how do we account for the governing activity from November 2009 to now? In particular, what of the 2010 budget that is being negotiated in the president’s absence? It is true that in the time Yar’Adua has been away, Nigeria has suffered religious unrest in the Niger Delta…
