Max Du Plessis

The Zimbabwe Torture Docket Decision and Proactive Complementarity

Published: 2015
"The decision of a landmark case heard in the South African Constitutional Court means there is an obligation for states to complement the work of the International Criminal Court – extending the court’s influence in prosecuting serious crimes of international concern in states where it does not have jurisdiction under the Rome Statute. The court found that the South African security authorities, exercising South Africa’s universal jurisdiction, are obliged by law to investigate international crimes committed in Zimbabwe, which is not a state party to the ICC. The decision establishes a progressive framework for prosecuting international crimes, provides a powerful tool against impunity, and confirms that states can and must play a complementary role in pursuing the aims of international criminal justice in respect of non-states parties."

Universalising International Criminal Law The ICC, Africa and the Problem of Political Perceptions

Published: 2013
"The aim of this paper is to discuss the universal reach and aspirations of the world’s first permanent International Criminal Court (ICC), why the ICC’s reach thus far has been focused exclusively on the African continent, and how this geographic limitation has affected African perceptions of international criminal justice and is threatening to undermine – perhaps fatally, at least insofar as the African Union (AU) is concerned – the credibility of the ICC. It has become fashionable to criticise the ICC for its exclusive focus on African cases. Developing nations, particularly from the South, now repeatedly complain about the skewed power relations reflected in the United Nations Security Council (UNSC). Those power relations – and the imbalance of power within the Council – have come sharply into focus in the case of the ICC and the UNSC’s influence over the Court. After a decade of the ICC’s work, the UNSC has found the common purpose of referring two African situations to the ICC (Sudan and Libya). However, it has repeatedly failed to do so in respect of equally deserving situations in relation to crimes committed by Israel and, most recently, in respect of the crimes occurring before our eyes in Syria."

The Geneva Conventions and South African Law

Published: 2013
"According to the preamble, the purpose of the Geneva Conventions Act is two-fold: to enact the Geneva Conventions and its Protocols into South African law, and to ensure the prevention and punishment of grave and other breaches. The first aim is accomplished by annexing the Conventions in full to the Act and by providing in section 4(1) of the Act that ‘[s]ubject to the Constitution and this Act, the Conventions have the force of law in the Republic’. The second is accomplished by creating a war crimes regime for prosecuting ‘breaches’ of the Geneva Conventions in South African courts under certain circumstances."

African Efforts to Close the Impunity Gap Lessons for Complementarity from National and Regional Actions

"The aim of this paper is to highlight some of the successes and challenges of domestic and regional international criminal justice processes in Africa. That discussion might be framed as one about ‘complementarity’ in a broad sense – the idea that states act as a complement to the International Criminal Court (ICC) to make the world a smaller place for genocidaires and war criminals. As will be seen, the idea of complementarity advanced in this paper and played out in the African examples covered below goes beyond the standard, technical understanding of complementarity as contained in the Rome Statute of the ICC. The idea of complementarity discussed here is less focused on how states work as a direct complement to the ICC (although that remains important), and is rather concerned with what they are doing to further the international criminal justice project more generally, which could (and has of late) include(d) domestic and regional cooperation efforts by states and civil society organisations."

Implications of the AU Decision to Give the African Court Jurisdiction over International Crimes

Published: 2012
"This paper considers the decision by the African Union (AU)to expand the jurisdiction of the African Court of Justice and Human Rights to act as an international criminal court with jurisdiction over the international crimes of genocide, war crimes and crimes against humanity, as well as several transnational crimes. The short time frame which the AU has provided for the complex task of drafting the protocol occurs against the backdrop of the fractured relationship between the AU and the International Criminal Court (ICC). The process of expanding the African Court’s jurisdiction is fraught with complexities and has implications on an international, regional and domestic level. All these implications need to be considered, particularly the impact on domestic laws and obligations, and the relationship between African states parties to the Rome Statute of the ICC, the ICC itself and the African Court."

Links Between Climate Change, Conflict and Governance in Africa

Published: 2012
"This paper reviews the linkages between climate change, governance and security threats in Africa, and analyses the response of the international community in formulating climate change policies to ensure future security and prevent conflict. It also identifies available policy options and recommends mitigating measures to counter the perceived and real effects of climate change in Africa. Also briefly reviewed are the roles of African states, regional and national organisations, and the international (donor) community, which will all be instrumental in achieving success. The report also pleads with the rich countries to provide adaptation funds to developing countries so as to lay the foundation for low-carbon growth. If policy and financial incentives for climate adaptation and mitigation are to be successful and equitable, there is an urgent need for a solid scientific understanding of how services flow from one region to another. The focus should, on the one hand, be on what segments of populations benefit from ecosystem services and, on the other, what groups would need to be compensated for protecting those services."

Balancing Competing Obligations The Rome Statute and AU Decisions

"This paper will not attempt to untangle the broader political standoff between the AU and the ICC. Rather it will interrogate the legal aspects thereof. First, the paper seeks to delineate the various obligations on African states in respect of Bashir, under the Rome Statute and the Genocide Convention. Second,it considers the nature of the obligations on African states parties such as Kenya in respect of the AU decisions, and in particular the demand for non-cooperation in respect of Bashir. Third, it presents two possible means of resolving the apparent conflict between the first (ICC) and second (AU) set of obligations: namely article 103 of the UN Charter and the doctrine of effective construction. Finally, it concludes with a discussion of the national legal dimensions of these competing obligations, focussing on South Africa and Kenya."

Justice and the Libyan Crisis: the ICC’s Role under Security Council Resolution 1970

"The ICC’s work in Libya’s conflict zone is imperative and deserves continued support – although the road ahead already appears long and strewn with hurdles. In these early days there are at least positive signs from within the continent that Gaddafi’s behaviour towards his country’s citizens is unacceptable. In that respect the African Court’s decision on Libya – both in form and substance – represents a bold advance into a situation whose political implications have made the work of the AU’s other institutions difficult. The African Court’s decision confirms that Gaddafi continues to terrorise his people in the face of both Western and African opposition. The resistance to the ICC in some parts of the African continent is likely to increase. By requesting an arrest warrant for Gaddafi, it is only the second time the ICC has sought a warrant for a sitting head of state (the first being for al-Bashir). A chorus of voices can be expected to lament the ICC’s targeting of African leaders."

The International Criminal Court that Africa Wants

Published: 2010
"The monograph argues that it is imperative that Africa’s 31 members of the ICC are encouraged to take seriously their obligations under the Rome Statute to ensure accountability for perpetrators, and that the 53 members of the AU are called to affirm rather than cheapen the organisation’s commitment to eradicate impunity and ensure responsibility for perpetrators of crimes against humanity, war crimes and genocide. This effort is one that African victims of international crimes deserve. The ICC is an integral means by which Africans might end impunity on their continent.Civil society and others committed to the work of the ICC in Africa thus need urgently to proclaim the varied and compelling reasons why it can be trusted. A failure to do so means risking the court’s work in Africa coming undone on the basis of misperceptions and inaccuracies. The monograph’s central imperative is captured in its final sentence, namely that ‘there is thus much important work to be done so that the court may be improved in the pursuit of, or in response to, African interests – to ensure the ICC that Africa wants’."

The International Criminal Court and its work in Africa Confronting the myths

Published: 2008
"This paper is an attempt to grapple with certain myths that have recently been propagated by a number of individuals, including government officials, political leaders and civil society members (including the media), regarding the world’s first permanent international criminal tribunal – the International Criminal Court (ICC). The paper is intended as an introductory discussion document that might further stimulate debate about Africa’s response to the ICC. The ICC has sparked immense interest since it opened its doors in 2002. As one noted commentator puts it: ‘Whether or not one is supportive of the International Criminal Court, any knowledgeable specialist has to admit that in the history of public international law it is a truly extraordinary phenomenon’. It may just be‘the most important institutional innovation since the founding of the United Nations’."