Can ICC prosecute Bingu?

What do a lawyer from the attorney general’s office in Angola, the president of the Mozambican Bar Association, the dean of law at the Eduardo Mondlane University in Maputo and a university lecturer from Sao Tome and Principe all have in common other than being from Lusophone Africa? They are all in Maputo, along with another nine people, attending an intensive training course on international criminal justice (ICJ), supported by OSISA as part of its work to capacitate lawyers, judges and prosecutors to participant in ICJ discourse and conduct training of university students.

Richard Lee's picture

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Strategic communications for WWF

August 2nd, 2011

What do a lawyer from the attorney general’s office in Angola, the president of the Mozambican Bar Association, the dean of law at the Eduardo Mondlane University in Maputo and a university lecturer from Sao Tome and Principe all have in common other than being from Lusophone Africa? They are all in Maputo, along with another nine people, attending an intensive training course on international criminal justice (ICJ), supported by OSISA as part of its work to capacitate lawyers, judges and prosecutors to participant in ICJ discourse and conduct training of university students. The questions this group of legal scholars and practitioners are grappling with are the definitions, and elements, of the most heinous offences of war crimes, genocide and crimes against humanity.

They are required to apply the elements of these crimes to a set of facts and determine whether they are prosecutable as international crimes. One of the case studies presented by the course experts from the Institute for Professional Legal Training was the recent demonstration on 20 July in Malawi that left 18 people dead. They were fired on by Malawian police. As they come to their conclusions, a number of civil society organisations in Malawi - that have heroically been at the forefront of the struggle for justice, economic rights and respect for the rule of law in their country - have called upon the International Criminal Court (ICC) to investigate and possibly prosecute president Bingu wa Mutharika, the Ministers of Home Affairs and Internal Security and the Inspector General of Police for crimes against humanity in respect of the death of 18 people and the wounding of many other unarmed and innocent people during the nationwide demonstrations.

While understanding their motivation for such an appeal, it is unlikely that they will be visited by the ICC any time soon. Article 7 of the Rome Statute (the law that established the ICC) provides the definition of crimes against humanity as “any of the following acts (including murder, rape, torture) when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. Each element of the crime must be proved and while a number of these may be present in the Malawi case, it is on the element of widespread or systematic that any prosecution would fail. In the Akayese case, in the trial chamber of the International Criminal Tribunal for Rwanda (ICTR), it was explained that “the concept of widespread may be defined as massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims”. While there is no magic number that constitutes the cutoff point to assess whether the crime is widespread, the determination shall be made on a case by case basis.

The chamber said that while “widespread typically refer to the cumulative effect of numerous inhumane acts, it could also be satisfied by a singular attack of extraordinary magnitude”. Systematic refers to the nature of the attack and has been defined as thoroughly organised and following a regular pattern on the basis of a common policy involving substantial public or private resources. It would be a very committed and rather foolhardy prosecutor who believes that the Malawi killings fulfills either of these two elements. However, this argument does not negate in any way the horrific fact that 18 innocent people were killed in Malawi or that their deaths should be investigated and those directly responsible brought to book. And while it is premature for civil society to call for an investigation by the ICC, one wonders how many more deaths and abuses need to take place in this once peaceful country before the argument can be made that indeed an international criminal investigation and prosecution is appropriate.

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