#ICC: The demise of State-Referral?

The International Criminal Court is a Court of last resort. The Court is a permanent institution with powers to exercise its jurisdiction over persons who bear the greatest responsibility for crimes of international concern. Conscious of the history of criminal acts against people, the world envisaged to repress such crimes through the creation of a permanent criminal tribunal. The atrocities committed are now monitored by the ICC by bringing the perpetrators who bear the most responsibility to justice. Even with the legal backing, the ICC has faced challenges on the question of cases it brings to book and the situations it omits. Equally, the ICC has had its detractors as well as proponents. 

The Court's jurisdiction can be triggered by three ways. The first is the state-referral or the self-referral, the second is through the UN Security Council referral and the last is through the prosecutors own volition also referred to as proprio motu. Of particular interest, we shall look at the 'self-referral' or 'state-referral' technique of triggering the Court's jurisdiction. Article 14 of the Rome Statute of the International Criminal Court allows a State Party to refer a situation, including crimes committed within the state's own jurisdiction, to the ICC Office of the Prosecutor (OTP) for investigation. There is no doubt, this mode of referral has had controversies among legal scholars. It is worth noting that of the eight situations at the ICC, only the first three were state referrals. It has been argued, rightly so, that self-referrals are inconsistent with the independence of the Court and its complementarity principle. Others have argued that state-referrals have been used by governments to fight oppositions in their countries. The initial referral to the ICC was the Uganda self-referral in 2003. The government of Uganda referred the situation in northern Uganda where atrocities were being committed by the Lord's Resistant Army (LRA). In March 2004, DRC also referred the situation in the Ituri region in Congo to the Court. And in December 2004, the OTP received another self-referral from Central African Republic. Self-referrals are well within the confines of the complementarity principle in Article 17.  Article 17 on admissibility of cases, points out that a case is admissible only when a state is unwilling and genuinely unable to prosecute a case. 

Are we seeing the demise of state-referral?

We continue from here in a subsequent posting.....

 

Tanzania and Rwanda should tone down on the ‘negotiating with the FDLR’ remarks

Nicodemus Minde

The governments of Tanzania and Rwanda, through their Foreign Ministries have been embroiled in a heated war of words over remarks made by Tanzanian President Jakaya Kikwete on the Democratic Forces for the Liberation of Rwanda (FDLR) rebels. President Kikwete during the 50th anniversary of the African Union in Addis Ababa, called on Rwanda to negotiate with the rebel outfit because the military efforts have failed. In a quick rejoinder Louise Mushikiwabo, the Rwandan Foreign Minister described Kikwete’s remarks as “aberrant” and “shocking”. His Tanzanian counterpart Bernard Membe recently told the Tanzanian parliament that President Kikwete will not apologize or change his opinion over the need for Rwanda to negotiate with FDLR. This is indeed a sensitive topic within the realm of the region’s stability. Rwanda negotiating with FDLR will be hard thing to do. This majority Hutu rebel outfit has based in Eastern DRC has fought the government of President Kagame and consists of Hutu remnants who fled to DRC after the 1994 Genocide. President Kikwete only gave a possible avenue for resolving the impasse. The hyperbolic reactions by the two Foreign Ministers should be toned down. Tanzania and Rwanda have enjoyed a peaceful and cordial relationship over the years and this small affairs should not ruin the relationship.

Why Gen Ntaganda turned himself in

The US State Department has confirmed that wanted Congolese warlord Gen Bosco Ntaganda is in custody in the US Embassy in Kigali after he turned in himself and ‘specifically asked to be transferred to the International Criminal Court (ICC). This came after the Rwanda's Foreign Minister  Louise Mushikiwabo categorically denied allegations by Kinshasa that Ntaganda was in Rwanda. The 'surrender' by General Ntaganda who is known to many as the 'terminator' has sparked debate on the role of Rwanda in the Congo war. Ntaganda who is the leader of the majority Tutsi rebel group of M23 turned himself in to the US Embassy in Kigali and asked to be transferred to the Hague. Ntaganda is wanted for numerous war crimes and crimes against humanity by the ICC. The Rwandan government led by their foreign minister has been denying that they 'host' general Ntaganda. Kinshasa government Spokesman, Mr Lambert Mende has said it all along that Ntaganda was in Rwanda. Madam Mushikiwabo has always denied it to the extent of attacking Mr Mende by asking him if "Its the only thing that was in his mind"

Now that he has surrendered, one can deduce a number of conclusions. It is now hard to believe that Rwanda was not hosting Gen Ntaganda. The Rwandan government which is also led by majority Tutsi could have been using 'the terminator' in waging war in Eastern Congo for their national interests. It can be also deduced that the government of Rwanda were pushed hard by the United States to surrender the man who was in no doubt in Rwanda. The gimmicks by the foreign minister must have been brushed off by the US government and ordered to surrender the man. The US government must have made demands to Kigali, which if not met, 'there could be no business as usual'. 

The US Embassy in Kigali is a few metres from the Office of the President and Ministry of Internal Security. One can best judge from this proximate distances between the three offices. Your guess is as good as mine.