Why ICC is the best route for Lesotho
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