Tagged: South Africa

More States To Withdraw from the ICC?

Shortly after three African States (Burundi, Gambia, and the Republic of South Africa) announced their intention to leave the International Criminal Court (each citing their own specific reasons), on November 16, the Russian Foreign Ministry issued a statement announcing its intention not to ratify the Rome Statute stating that

The ICC as the first permanent body of international criminal justice inspired high hopes of the international community in the fight against impunity in the context of common efforts to maintain international peace and security, to settle ongoing conflicts and to prevent new tensions. Unfortunately the Court failed to meet the expectations to become a truly independent, authoritative international tribunal.

The Russian President issued a Decree on the intention not to become party to the Rome Statue, becoming a fourth state to openly point out its disappointment with the institution.

On the same day,the High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, in a press release called on the international community to not give up on the Court and to “stand by the Rome Statute and the Court.” He emphasized the need to stand with this institution and continue to support it.

To make matters worse, just one day after the Russian announcement, Philippine President Rodrigo Duterte, speaking from his home, also threatened to withdraw from the International Criminal Court by stating

They [Russians] may have thought the International Criminal Court is [useless], so they withdrew their membership … I might follow. Why? Because these shameless bullies only picked on small countries like us.

Some speculated that Duterte’s statement was nothing more than just a well-timed response to Prosecutor Bensouda’s statement on the situation in the Philippines, in which Bensouda made it very clear that anyone engaging in any form of acts of mass violence could potentially be prosecuted by the Court.

Whether in response to OTP’s statement or just in light of the exodus of State Parties from the ICC, Philippines is the fifth state, in a span of less than a month, to publicly disavow its loyalties to and faith in the Court and its effectiveness.  It will be interesting to see how the rest of the international community and the Court itself tackles these, hopefully, temporary setbacks.

More States Announce Intention to Withdraw from the ICC

Following Burundi’s example, two more African States announced their intention to leave the International Criminal Court: South Africa and Gambia.

South Africa has had a controversial relationship with the ICC since last year when it disregarded its responsibility to cooperate with the Court by refusing to arrest the then-visiting Sudanese President Omar al-Bashir. South Africa argued that such an obligation was in direct conflict with its domestic laws governing diplomatic immunity. Although the South African Court later ruled that letting President al-Bashir leave South Africa in 2015 was ‘disgraceful’, the South African Government has continued to state that the Rome Statute (namely Art. 27 addressing non-recognition of any form of immunity) is in direct conflict with South Africa’s Diplomatic Immunities and Privileges Act. The decision to withdraw from the ICC will become effective one year from the day the document withdrawing from the ICC was signed, October 19, 2016.

Following South Africa, Gambia this week also announced its intention to leave the ICC. In the televised announcement, Information Minister Sheriff Bojang said that

[t]his action is warranted by the fact that the ICC, despite being called the International Criminal Court, is in fact an International Caucasian Court for the persecution and humiliation of people of colour, especially Africans.

Gambia cites reasons that are similar to those given by Burundi – that the ICC targets African States. In fact, the Court’s mandate, as stated in the Preamble of the Rome Statute, is to fight impunity by ensuring that “the most serious crimes of concern to the international community as a whole must not go unpunished.” The Court is tasked with focusing on the international community, yet it has predominantly focused on number of African States. So far, the Court has officially investigated the Democratic Republic of Congo, Uganda, Central African Republic, Sudan, Kenya, Libya, Mali, Côte d’Ivoire, and Georgia; and the Court has conducted preliminary examinations (not always leading to opening an official investigation), among others, in Palestine, Afghanistan, Honduras, Republic of Korea, Nigeria, Colombia, Georgia, Guinea, Libya, Ukraine, Iraq, Venezuela, and Burundi.

This recent development by three African states – Burundi, Gambia, and South Africa – based on the allegation that the Court targets Africa presents a major blow to the already unstable reputation of the International Criminal Court, the first permanent criminal court of its kind.

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Scrutinizing Verdicts

Two recent events overlap to raise a question about rendering of verdicts after trial. In Warger v. Schauers, the US Supreme Court recently heard oral argument about whether a civil plaintiff can move for a new trial based on information about something that occurred during jury deliberations that ended in a defendant’s verdict. The case raises the seemingly settled question about whether  the courts and the public and the parties can have access to information about what happens in a jury room during deliberations. The current answer is a resounding no, and, based on press and opinion, the Supreme Court does not seem likely to change that.

In Warger, the plaintiff sought to rely on information that the forewoman had stated during deliberations that her daughter had been at fault in an auto accident and that her life would have been ruined if she had been sued. Apparently, the forewoman had made no mention of this during voir dire. The plaintiff relied on this information to seek a new trial, arguing that the forewoman had been dishonest and should not have been seated on the jury. The lower courts have refused to rely on this information because it violates the total privacy given to jury deliberations in the United States (absent a third-party influence into the jury room).

In contrast  to this total prohibition against scrutiny of deliberations we have the reading, on worldwide television, of the verdict in the Oscar Pistorius trial. Not only was the verdict rendered in public; according to South African law the judge who rendered it (with the help of two appointed assessors) gave all of her reasons for the verdict, including resolution of credibility questions, the drawing or rejection of inferences, and the like.

So these two cases are a study in contrasts. Is it necessary to close our eyes to improprieties in the jury room – if indeed they occur – in order to secure the right to a traditional lay jury? Do we have to give up the judgment of lay jurors to learn the reasons why a jury resolves a case the way it does? Food for thought.

The Pistorius Verdict

As the Pistorius trial proceeded – unprecedentedly on television –some of the differences between South African criminal procedure and US or New York criminal procedure have been obvious. Now that the verdict is in, we have the luxurious opportunity to reflect on how those differences played out. Until the full verdict is available a full analysis is not possible but a few comparative observations are worth making.

The most striking visible comparison at this homicide trial was the absence of a twelve-person lay jury and the presence of a single judicial factfinder who, assisted by two assessors, sat in judgment of the defendant. The rendition of a verdict magnifies this difference. In New York, as in the rest of the United States, of course, the law forbids a criminal jury from explaining its guilty/not guilty verdict in any way, even to the point of prohibiting any sort of questions or special interrogatories that we regularly use in civil cases. Even when jurors are interviewed post-trial and actually tell the media why they decided a case the way they did, that information has absolutely no legal significance unless there has been an invasion into the jury room, e.g., a bribe, a newspaper article, and the like. To be sure, we do have judicial factfinders who explain their findings of fact in detail and on the record; but in most cases those factfinders are making factual determinations in connection with legal rulings, e.g., suppression hearings, sentencing, and the like – and not judging the guilt or non-guilt of fellow citizens, with all the consequences of that determination.

There are good reasons for our prohibition about impeaching a jury’s verdict. Briefly, those reasons stem from the role of the jury in our system – the people in the courtroom – and the freedom of that group of supposedly “impartial” “peers” to do what it thinks is best and for whatever reasons it wants, without fear of reprisal or reversal. That is a basic protection for defendants in our system, and, accordingly, we devote a tremendous amount of resources to jury selection and the jury process.  In South Africa, however, the jury trial was abolished along with apartheid, and the jury in a murder case – like Pistorius – consists of a judge and two assisting assessors – two jurors who, as far as I can tell, have never appeared publicly during the trial, certainly not during the announcement of their own verdict.

Less protection for the accused? Greater protection for the accused? Different protection for the accused? If you’re looking for the power of the people to do what they want to render a just verdict, that protection is missing. Visually, this is striking – a single judge is handing down the decision of guilty or not guilty. But there is something comforting about knowing exactly why the factfinder decided as it did. Of course, we are familiar with the underlying notion in our system that one way we limit judicial discretion is to require a judge to write down reasons for his or her rulings – both because it forces the judge to justify and articulate the findings and so that those rulings can be reviewed. But more than that, on a human level, it just feels right to require anyone who judges another human being – and condemns him – to explain why.

A different set of protections, to be sure. But food for comparative thought.

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