Prosecuting international and transnational crimes requires domestic capacity: Asser trains magistrates from francophone African countriesPublished 13 August 2019
The Asser Institute’s training course “Strengthening Domestic Capacity to Prosecute International and Transnational Crimes in Africa”, co-organised with the Antonio Cassese Initiative, is an example of much needed efforts to strengthen domestic legal capacities to improve the overall delivery of the international justice system, say speakers and participants of the course.
The course, taught in French, aims to empower judges and prosecutors from francophone African countries to deal with international and transnational crimes. Over the past two years, the course trained judges and prosecutors from seven French-speaking countries: Mali, Cote d’Ivoire, Congo, Burkina Faso, Niger, Democratic Republic of the Congo, and Togo, featuring many international expert speakers.
Access to legal knowledge
“We are facing daily challenges regarding the implementation of international criminal law”, says participant of the 2019 training course Bakayoko Ibourahema, magistrate and Advocate General at the Court of Appeal in Abidjan in Ivory Coast.
International criminal law is a relatively young discipline in the global legal field, especially in developing countries, to where the International Criminal Court often diverts its attention. Yet the principle of complementarity, as outlined in the Rome Statute, states that the International Criminal Court (ICC) is created to complement the jurisdiction of a nation’s local courts and laws. Only if the country is unable or unwilling to conduct an investigation, is the ICC allowed to step in and investigate.
Applying international criminal law at the national level is often a very complex endeavour requiring specific skills and very sophisticated knowledge.
The crimes committed which fall under the Rome Statute often take place in remote areas, entail large-scale atrocities with a nexus of different perpetrators, and involve a very complicated evidence collection process. To leave national judges and prosecutors to deal with this complexity on their own, without giving them a proper training, is far from a productive strategy if we aim to deal with war crimes or crimes against humanity adequately.
Ibourahema: “That is where the primary difficulty lies. We, magistrates, have to hear and decide cases. Refusal to do justice would otherwise amount to an offense of denial of justice. The difficulty resides in the proper access to legal knowledge.”
Creating long-lasting change
A speaker in the training course, Benjamin Chalier, Legal Adviser and former acting Head of ICRC’s Advisory service on International Humanitarian law, agrees that national investigators face difficulties when working on cases involving crimes of international nature. Yet, he also notes that before focusing solely on legal knowledge, it is first important to establish an adequate framework where the judges and prosecutors from African countries can work in.
“National prosecutors and judges need to have a legislation that gives them jurisdiction over any type of war crime,” says Charlier. “Then, the second step is to make sure those judges are equipped by way of being trained, by way of getting the resources to actually perform the job at operational level.”
Another speaker, Jerôme de Hemptinne, professor at the Geneva Academy of International Humanitarian Law and Human Rights and a former senior legal officer at the Special Tribunal for Lebanon, lists other difficulties national prosecutors may face, including trying high-level officials with considerable political power.
De Hemptinne: “Crimes [to be judged] may involve persons who are and still occupying governmental or military functions at a very high level. It is very difficult for [judges] to guarantee the independence of their institution in such a context.”
"In fact, you have to be very courageous to try these war crimes and crimes against humanity,” he adds.
The trainings, such as the one co-organised by Asser and the Antonio Cassese Initiative, gain even more significance given these challenges.
“We’re trying to help them understand certain technicalities with regards to certain crimes that they may not be aware of”, says De Hemptinne. Support is essential to overcome the challenges to prosecute war and other crimes “in a context where the international community is quite weak, and in the context where states are not able to provide support for international courts and tribunals”.
Enhancing national capacities, building long-lasting change, prosecuting war criminals, and delivering justice – these are all goals that both national and international legal actors, such as the ICC, have to strive for together. Notably, cooperation and mutual trust between these actors are essential to attain justice.
“The relationship between Africa and the ICC faced multiple challenges over the years,” remarks Bakayoko Ibourahema. But at the same time he stresses that: “we are curious to know what is going on at the ICC.”
Ibourahema: “I would say that this training is essential: it opens our eyes and prevents us from making important mistakes. We cannot hope for a healthy cooperation with the ICC without knowing which laws to apply.
You can read more about the 2018 training course here, and the 2019 course here. The videos are also available on our International Criminal Database.