Why ICC is the best route for Le­sotho

Lesotho Times - - Opinion & Analysis -

THE re­cent con­duct by the Le­sotho Defence Force (LDF) and gov­ern­ment have left me in no doubt that cer­tain el­e­ments need to be re­ferred to the In­ter­na­tional Crim­i­nal Court (ICC), in The Hague.

I am for­ti­fied in my view by the fla­grant re­fusal of the LDF to obey le­git­i­mate Court Or­ders in re­gard to the re­lease of the 23 sol­diers who are be­ing held at the Maseru Max­i­mum Se­cu­rity Pri­son.

Fur­ther­more, SADC Com­mis­sion of In­quiry chairperson, Jus­tice Mpa­phi Phumaphi, has gone on record crit­i­ciz­ing gov­ern­ment and the LDF of­fi­cials for be­ing un­co­op­er­a­tive and “plead­ing ig­no­rance on is­sues that you are sup­posed to know”.

Fur­ther, it is a sad re­al­ity of the 1993 Con­sti­tu­tion that though on pa­per the pros­e­cu­to­rial arm of gov­ern­ment is in­de­pen­dent with great re­spect, like all other agen­cies of gov­ern­ment, it is likely to be in­flu­enced by po­lit­i­cal power bro­kers, when the crunch time for pros­e­cu­tion of al­leged of­fend­ers fol­low­ing the rec­om­men­da­tions ar­rive.

Omi­nously per­haps, the Rule of Law and Ju­di­cial In­de­pen­dence have been eroded by the LDF, with heav­ily armed sol­diers in­vad­ing the hal­lowed court premises wear­ing bal­a­clavas and spit­ting venom, in one in­stance barg­ing into a judges’ cham­bers.

To this day, no dis­ci­plinary ac­tion has been taken against the in­trud­ers. The in­de­pen­dence of the Le­sotho ju­di­ciary has there­fore been com­pro­mised by the gov­ern­ment and in­sti­tu­tions in gov­ern­ment that ought to pro­tect and up­hold th­ese car­di­nal prin­ci­ples of law.

I will in this col­umn try to sub­stan­ti­ate my ar­gu­ment for in­ter­ven­tion of the ICC with a plethora of le­gal ba­sis, prece­dent and ju­rispru­dence to sup­port my clar­ion call so that jus­tice should not only be done but must man­i­festly be seen to be done in or­der to en­gen­der the con­fi­dence of the peo­ple it is sup­posed to serve.

There is the in­te­gral part of in­ter­na­tional law of Uni­ver­sal Ju­ris­dic­tion. It pro­vides that prospects for jus­tice in places where it is unimag­in­able will be re­al­ized. It is a prin­ci­ple that re­flects the un­der­stand­ing that crimes that shock the con­science of hu­man­ity are a con­cern to all mankind.

In the light of this na­tions are en­ti­tled, if not re­quired, to bring the per­pe­tra­tors to book re­gard­less of where the crimes are com­mit­ted.

Uni­ver­sal ju­ris­dic­tion al­lows states or in- ter­na­tional or­gan­i­sa­tions to claim crim­i­nal ju­ris­dic­tion over an ac­cused per­son re­gard­less of where the al­leged crime was com­mit­ted, and re­gard­less of the ac­cused’s na­tion­al­ity, coun­try of res­i­dence, or any other re­la­tion with the prose­cut­ing en­tity.

Crimes pros­e­cuted un­der uni­ver­sal ju­ris­dic­tion are con­sid­ered crimes against all, too se­ri­ous to tol­er­ate ju­ris­dic­tional ar­bi­trage.

The ICC is an in­ter­na­tional tri­bunal es­tab­lished un­der the Rome Statute of the In­ter­na­tional Crim­i­nal Court in 1998, 17 July, and it came into force on 1 July 2002.

The Rome Statute es­tab­lishes four core in­ter­na­tional crimes that shall not be sub­ject to any statute of lim­i­ta­tions. Th­ese are geno­cide, crimes against hu­man­ity, war crimes and the crime of ag­gres­sion.

Thank­fully, the Le­sotho gov­ern­ment is a sig­na­tory to the Rome Statute along with other 123 state-par­ties as at 6th Jan­uary, 2015, and sig­nif­i­cantly an ICC del­e­ga­tion which also in­cluded a Motswana Judge and a Mosotho pros­e­cu­tor vis­ited the Moun­tain King­dom dur­ing the ten­ure of the in­cum­bent gov­ern­ment.

Un­der the Rome Statute, the ICC has ju­ris­dic­tion over crimes only if they are com­mit­ted in the ter­ri­tory of a state party or if they are com­mit­ted by a na­tional of a state party; an ex­cep­tion, which has to be in­voked by the op­po­si­tion in Le­sotho, to this rule, is that the ICC may also have ju­ris­dic­tion over crimes if its ju­ris­dic­tion is au­tho­rized by the United Na­tions Se­cu­rity Coun­cil.

Un­der the Rome Statute, the ICC can only in­ves­ti­gate and pros­e­cute the four core in­ter­na­tional crimes in sit­u­a­tions where states are “un­able” or “un­will­ing” to do so them­selves.

The King­dom of Le­sotho is also a sig­na­tory to the Vi­enna Con­ven­tion on the Law of Treaties, 1969, and the prin­ci­ple of jus co­gens, is part of cus­tom­ary in­ter­na­tional law, and is em­bod­ied therein.

The prin­ci­ple of jus co­gens has de­vel­oped since World War II and its ba­sic tenet is that cus­tom­ary in­ter­na­tional law rec­og­nized a lim­ited num­ber of peremp­tory norms hav­ing the char­ac­ter of the supreme law which can­not be mod­i­fied by treaty or by or­di­nary cus­tom­ary law.

Un­der the United Na­tions Char­ter, ar­ti­cles 2(4) and the Rome Statute, th­ese four core in­ter­na­tional crimes are bind­ing on even non­state par­ties and there­fore have as­sumed the char­ac­ter of jus co­gens.

The con­cept of jus co­gens has de­nied states an es­cape route and there­fore carves out a unique ex­cep­tion to the prin­ci­ple of con­sent.

Fur­ther, be­cause Le­sotho is a sig­na­tory to the above two treaties the prin­ci­ple of pac­tum sunt ser­vanta, that is treaties are there to be kept, there­fore a state re­mains re­spon­si­ble for ac­tions of its gov­ern­ment.

The gov­ern­ment of Le­sotho has also vol­un­tar­ily ac­ceded to the SADC Treaty which among oth­ers, in­clud­ing the agree­ment that Le­sotho signed agree­ing to the Phumaphi Com­mis­sion, that the hear­ings and the ju­ris­dic­tion of SADC and the Com­mis­sion ex­tends to be­yond Le­sotho and cov­ers the en­tire SADC re­gion, which South Africa is part of.

By virtue of jus co­gens, pac­tum sunt ser­vanta, the SADC Treaty, Cus­tom­ary In­ter­na­tional Law, Rome Statute, Law of Treaties, the agree­ment es­tab­lish­ing the Phumaphi Com­mis­sion and above all else the ex­trater­ri­to­rial ju­ris­dic­tion of the crimes al­leged to have been of­fended, it will be per­fectly le­gal to pros­e­cute the of­fend­ers even at the ICC level.

Le­sotho sim­ply can­not af­ford to run away from this in­ter­na­tional obli­ga­tion.

Ac­cord­ing to the SADC Treaty, to which Le­sotho is a party, Ar­ti­cle 3(1) es­tab­lishes SADC as a le­gal per­sona, and Ar­ti­cle 3 (2) stip­u­lates that SADC has the le­gal ca­pac­ity nec­es­sary to ex­er­cise its func­tions within the ter­ri­tory of mem­ber states.

There­fore, it is per­fectly le­gal for the Com­mis­sion to seek in­for­ma­tion within the ter­ri­tory of the SADC mem­ber states to ex­e­cute its man­date.

The un­der­ly­ing ra­tio­nale be­hind the con­cept of uni­ver­sal ju­ris­dic­tion is that in­di­vid­u­als be­come an­swer­able for crimes de­fined and pros­e­cuted out­side of their home ju­ris­dic­tions re­gard­less of where the con­duct oc­curred.

In re­cent years, a more global con­sen­sus has emerged in per­mit­ting the case of tor­ture, vi­o­la­tion of hu­man rights and “forced dis­ap­pear­ances” as have oc­curred in Le­sotho, to be tried by in­ter­na­tional tri­bunals.

Amnesty In­ter­na­tional a global hu­man rights watch­dog body, in its piece; “Uni­ver­sal Ju­ris­dic­tion: The duty of states to en­act and im­ple­ment leg­is­la­tion”, write: “All state par­ties to the Con­ven­tion against Tor­ture and the In­ter-amer­i­can Con­ven­tion are obliged when­ever a per­son sus­pected of tor­ture is found in their ter­ri­tory to sub­mit the case to their prose­cut­ing author­i­ties for the pur­poses of pros­e­cu­tion, to ex­tra­dite that per­son.

In ad­di­tion, it is now widely rec­og­nized that states, even those that are not state par­ties to th­ese treaties, may ex­er­cise uni­ver­sal ju­ris­dic­tion over tor­ture un­der cus­tom­ary in­ter­na­tional law”.

On 7 March, 2014 Ger­main Katanga was found guilty as an ac­ces­sory, within the mean­ing of ar­ti­cle 25 (3) (d) of the Rome Statute, of one count of crime against hu­man­ity (mur­der) and four counts of war crimes. He was sen­tenced to 12 years im­pris­on­ment.

With re­gard to im­mu­nity for in­cum­bent state of­fi­cials, on 14 Fe­bru­ary, 2002, the ICC in the ICJ Ar­rest War­rant Case un­der in­ter­na­tional law while serv­ing in of­fice. The court stated that im­mu­nity was not granted to state of­fi­cials for their ben­e­fit, but in­stead to en­sure the ef­fec­tive per­for­mance of their func­tions on be­half of their re­spec­tive states.

The Court also stated that when abroad, state of­fi­cials may en­joy im­mu­nity from ar­rest in an­other state on crim­i­nal charges, in­clud­ing charges of war crimes or crimes against hu­man­ity.

But the ICJ qual­i­fied its con­clu­sions, say­ing state of­fi­cers “may be sub­ject to crim­i­nal pro­ceed­ings be­fore cer­tain in­ter­na­tional crim­i­nal courts, where they have ju­ris­dic­tions”. Ex­am­ples are Yu­goslavia and Rwanda.

In 2003, Charles Tay­lor, the former Pres­i­dent of Liberia, was served with an ar­rest war­rant by the Spe­cial Court for Sierra Leone, that was set-up un­der the aus­pices of a treaty that binds only the United Na­tions and the Gov­ern­ment of Sierra Leone.

Tay­lor con­tested the Court’s ju­ris­dic­tion, claim­ing im­mu­nity, but the court con­cluded in 2004, that “the sov­er­eign equal­ity of states does not pre­vent a Head of State from be­ing pros­e­cuted be­fore an in­ter­na­tional crim­i­nal tri­bunal or court”.

The Court sen­tenced Tay­lor to fifty years’ im­pris­on­ment mak­ing him the first Head of State since the Nurem­berg Tri­als af­ter World War II to be tried and con­victed by an in­ter­na­tional court.

On the ba­sis of the above ar­gu­ments there­fore I am not mis­in­ter­pret­ing the law, in view of the pre­vail­ing cir­cum­stances in Le­sotho, in ar­gu­ing that if the Com­mis­sion finds there are peo­ple to be pros­e­cuted, the best and only vi­able route to go is the ICC route if san­ity and cred­i­bil­ity to Le­sotho’s democ­racy and SADC are to be en­sured.

I rest my case

Ut­loang Ka­jeno

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