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Colloquium on International and Transnational

810 October 2014
Institute for Security Studies
Pretoria, South Africa
Dire Tladi - Challenges of International Criminal Law in Africa and the
Uneasy Triangular Relationship between the AU, the ICC and the UN
Security Council
Tladis presentation covered the relationship between the African Union (AU),
International Criminal Court (ICC) and the UN Security Council. He stressed that
the relationship is more complex in reality than it is often portrayed. For example,
he noted that while African states are seen as the main driver behind the ICC,
this may not be entirely true. Moreover, states that have been found noncompliant with the Rome Statute, like Nigeria and the Democratic Republic of
Congo, have been strong supporters of the Court. Tladi also discussed Kenyas
position towards the ICC and described efforts by AU states to ensure that heads
of state and state officials are immune from prosecution. Tladi insisted that, while
African states have been criticized for endorsing impunity, the reality is that head
of state immunity will have no impact on the reach or jurisdiction of the ICC. With
regards to the UN Security Councils role in international criminal law, Tladi noted
that it was the most problematic of the three. He also explained that, with regards
to the Kenya cases before the ICC, it was members of the Security Council
which, in 2012, pushed for an Article 16 deferral of the cases - and not Kenya
itself. In his presentation, Tladi also discussed problematic aspects that have
appeared within UN Security Council referrals, including provisions to exclude
citizens of non-states parties of the ICC from investigation and prosecution and
the lack of funding provided by the Security Council to the Court.

With the financial support of the German Federal Foreign Office

Allan Ngari - Introduction to Transnational Criminal Law: What are
Transnational Crimes?
Ngaris presentation represented an overview and introduction to transnational
criminal law and clarifying what constitutes transnational crimes. He stated that
transnational organized crimes are not stagnant, highly sophisticated and that
they dont know any boundaries. He described such crimes as fluid, meaning
that they cross borders and are not confined to any one specific context or
country. He also noted that the world is a dot and pointed to globalization as a
contextual factor in the perpetration of transnational crimes. Moreover, Ngari
highlighted that there is lethargy on the part of some governments to deal with
organized crimes. In particular, Ngari focused on four specific crimes: money
laundering, cybercrime, drug trafficking and human trafficking.
At the end of his presentation, Ngari asked the participants to discuss the
question if our laws are sufficient to prosecute these crimes or if we need to
amend them. He also proposed to discuss the challenges to the adjudication of
transnational organized crimes, and said that there are gaps in the legal
frameworks (e.g. influence of drug lords; bailable offences).
As a conclusion, Ngari added that a strong rule of law-based and criminal justice
response is needed to address these challenges.
Chris Gevers - How Domestic is the Future of International Criminal Law?
Experiences of Domestic Courts with Jurisdiction over International and
Transnational Crimes
Gevers presentation focused on the subject of complementarity. He set the
debate of complementarity versus primacy of jurisdiction over international
crimes within a historical context. Gevers argued that, prior to the creation of the
ad hoc tribunals in the Former Yugoslavia (ICTY) and in the wake of the
Rwandan Genocide (ICTR), domestic prosecutions of international crimes was, in
fact, the norm. He thus challenged the presumption that there has been a turn or
return to privileging domestic proceedings over prosecuting crimes in
international or internationalized tribunals. Gevers also described the difference
between our understanding of complementarity in practice versus in principle and

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highlighted Gerry Simpsons observation that there exists an internationalizing
impulse when it comes to investigating and prosecuting international crimes. He
warned that this can lead to fetishizing the international and that privileging the
international over the domestic 1) misrepresents complementarity, 2) conflates
the field and pursuit of international criminal justice with the International Criminal
Court, and 3) places an emphasis on a return to the domestic rather than asking
why there was a departure from the domestic in the first place. Moreover, Gevers
suggested that the ICC is turning towards encouraging domestic prosecutions for
practical reasons and as a means to save the Court from crisis. In regards to the
ICC being in a moment of crisis, Gevers concluded that the ICC has issues with
case selection and that this stems, at least in part, from the Courts refusal to
accept or engage with the political realities of its work. He argued that accepting
the politics of the ICC would be cathartic. Gevers also argued that
complementarity is an admissibility test and not an obligation. It is, in his words,
the ICCs limitation. In this context, he also noted that there are good domestic
reasons why national courts are better suited at prosecuting international crimes,
including their proximity to crimes and the ability of domestic institutions to
manage cases. In conclusion, he highlighted several challenges, including the
need to harmonize laws and jurisdiction (especially with regards to common and
civil law) as well as harmonize procedures.

Alex Whiting - Introduction to International Criminal Law: International

Core Crimes and Modes of Liability
Whitings presentation represented an overview and introduction to international
criminal law, with a focus on international core crimes and modes of liability.
From the outset, Whiting stressed the importance of linkage in determining and
establishing command responsibility. He also described common legal defences
of commanders: chaos on the ground; that rogue elements and not commanders
were responsible; and the existence of parallel chains of command. In this
context, how can investigators prove linkage? Whiting argued that a number of
strategies need to be employed. First, establishing the nature of the
organizations - is it hierarchical, flat, gang, spoke-and-wheel?. Second, what
kinds of evidence prove linkage - patterns of behaviour (rather than single

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events); ordinary command functioning (orders down the chain of command and
reporting up); intermediaries and insiders (including the possibility of having
some perpetrators plead guilty or be charged with smaller offences in order to
gain testimony of crimes committed by commanders). Whiting also said that there
was a need to differentiate the types of actors that are being investigated,
including whether they are commanders, advisors, political leaders, suppliers,
financiers or propagandists. He suggested five areas for investigators to focus
on: 1) the role of the suspect (he noted that de facto roles may be more important
than formal roles); 2) the relationship and interaction of suspects with other
perpetrators; 3) the suspects acts (whether they planned, organized, ordered,
participated, or trained other perpetrators, etc.); 4) the intent and motivation of the
suspect (whether it was political, ideological, financial, personal, nationalistic,
etc.); and 5) the suspects knowledge (what did they know and not know).

Frank Dutton - Investigating in Hostile Environments: The MultiDisciplinary Investigation Team

Duttons presentation focused on the challenges of investigating in hostile
environments and the tools available to a host of actors - investigators,
academics, prosecutors, etc. - to break cycles of impunity. Dutton spoke of his
own experiences as an investigator during the Apartheid era when he
investigated state-perpetrated political crimes. He stressed that investigators find
hostile environments where and when there exists a cycle of impunity and noted
that cycles of impunity could be found both internationally and domestically.
Dutton provocatively stated that: what I don't know, and something others have
to answer individually is whether there is the will and determination within this
room to break cycles of impunity. He also insisted that each and every one of
us can make a positive contribution to domestic and international justice but to do
so one must be passionate about it. After speaking at length about the difficulties
he faced as an investigator and some of the investigations that he led, Dutton
was asked how he deals with political events and how to remain independent in a
context in which crimes are perpetrated by political actors with political backing.
He answered that you have to be determined, think outside of the box and
identify solutions. He added that with fear, there's no reward.

With the financial support of the German Federal Foreign Office

Nicolas Sebire - Complex Investigations: Moving from National to
International Investigations and the Importance of International Police
Sebire spoke to the assembled audience about complex investigations and how
to move from national to international investigations as well as the importance of
international police cooperation. He observed that INTERPOL still faces the same
problems it did when it was first established one hundred years ago: effectively
sharing information between police forces and chasing fugitives. Sebire noted
that, while the vast majority of murders, for example, are solved within 24 hours
of their commission, complex crimes can take months to investigate. He also
discussed the similarities and differences between international and transnational
in both cases, large-scale crimes exist over a long period of time; they
are usually well-planned; they have a high degree of organization; are
the work of a group (not a single person) or network;
most of the time international crimes are not transnational; the
motivations are often different; organized crime groups are
opportunistic --- not just drug trafficking but also human trafficking
(whatever can get them money quickly with little risk); organized crime
is always evolving, volatile --- legal system takes more time, adapting
and reacting to criminals
in both cases there are large amount of data that you collect --- and
need for analysts
Sebire stressed that, in investigating complex crimes, it is crucial to keep an open
mind. Things that seem initially irrelevant may become relevant later as more
details and information emerge. This also points to the need, in his view, to
regularly revisit previous cases. In exploring his experiences at the ICTY, Sebire
also discussed the need to remember that investigations may fail if there is not
enough evidence; that investigations may require working with collaborators of
justice or insiders who may require protection; and that recording interviews is
one of the best tools at the disposal of investigators. He also stressed the need to
cooperate between agencies despite ongoing challenges in doing so.
Cooperation, he stressed, can assure that partnering countries do the same
thing at the same time so you get the whole network and you're able to compare
the evidence.

With the financial support of the German Federal Foreign Office

Working Groups

Participants were put into small groups to discuss the following questions:
1) Please discs and list 3-5 challenges you face in co-ordination or
collaboration between justice sector agencies in your jurisdiction
2) Do you also see such challenges when engaging in international
These were their answers:


a lack of coordinated raining

budget disparity between institutions --- some receive a lot, others need to
play catch-up
no policy or structures --- e.g. witness protection act but no clear policies
on how it should implemented;
often rely mostly on personality which can gives rise to personality
conflicts between agencies
communication challenges amongst the justice agencies
a lack of a central agency for coordination
lack of trust between agencies
professionalism --- different conception of roles and how those roles were
work together (e.g. law enforcement and prosecutors working together);
clash of professional cultures
lack of structured way of communications --- e.g. MOUs
priority of objectives

different values and priorities --- e.g. between Kenya and Uganda which
may set different values on different issues --- terrorism, money
laundering, drug trafficking, etc.
international agencies promise a lot but dont deliver
disharmony in laws with a transnational component
possibility that requests are turned down to requesting country

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different standards e.g. UK doesn't have death penalty where
Uganda does --- makes it hard to cooperate, especially on extradition
often international agencies don't understand unique challenges that
developing countries face
slow processes
retention of information
agency rivalry
different laws in different jurisdictions
different legal systems
lack of uniformity of laws
delays of getting information
lack of structured way of doing regional communication --- lots of different
actors and not clear which actors are involved
issue of language

Shirani de Fontgalland - Challenges in Formulating National and

International Investigation and Prosecution Strategies: Collaboration and
Coordination of Justice Sector Agencies
In her presentation to the colloquiums participants, de Fontgalland covered
challenges in formulating national and international investigation and prosecution
strategies: collaboration and coordination of justice sector agencies. At the
outset, de Fontgalland declared that what all of us need to think about is how to
cooperate within our jurisdictions and internationally. She added that prosecutors
and investigations face unique challenges when working on transnational and
international crimes and that we need a new toolbox, new ways of thinking. To
successfully investigate and prosecute these crimes, there is a need to
strengthen national capacity and strategy, which overlap and are interconnected.
de Fontgalland noted that strength of capacity is also something that is a prerequisite if international cooperation is going to work effectively and, moreover,
that international cooperation depends on the strength of domestic cooperation.
Strategies for dealing with international and transnational crimes need to be
formulated but, she noted, this should not depend on strength of each agency
and they cannot be ad hoc or superficial. de Fontgalland also stressed the need
to recognize the dynamic nature of transnational crimes which, again,

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demonstrated the importance of not having an inflexible or an ad hoc approach
but rather a proactive intelligence-based approach to investigations and
prosecutions. She added that prosecutors need to be involved in some of the
analysis and research that is done. Unfortunately, de Fontgalland observed,
effective cross-border cooperation is rare. This increases the importance of
informal networks and interactions and training sessions like the colloquium itself.
Lastly, de Fontgalland discussed how coordination and cooperation can be
strengthened and proposed the following: building multi-disciplinary teams;
focusing on offences such as corruption; having prosecutors participate in police
training; and building case management capacity.
Gerhard van Rooyen - Witness Protection: Overview of Challenges and
International Best Practice
In this presentation, van Rooyen gave an in-depth and wide-ranging overview of
witness protection, highlighting ongoing challenges and international best
practices whilst extrapolating from experiences at the ICC. He noted, at the
outset of his talk, that witnesses represent an irreplaceable source of information
and are thus crucial to the criminal justice process and the rule of law. He added
that witnesses feel secure, they will cooperate and deliver testimony free of fear.
van Rooyen thus stressed the importance of working with witnesses on a regular
basis in order to ensure that they feel secure. If threatened, criminal justice
systems and courts can lose credibility and lose the willingness of witnesses to
testify. van Rooyen explained that witness protection encompassed a range of
different measures and methods - in and out of court; before, during and after
testimony. Moreover, he insisted that witness protection programmes were a last
resort. According to van Rooyen, the ideal protection of witnesses is threepronged and includes physical protection, psychological protection and protection
against unfair treatment. The protection required or afforded to witnesses, he
noted, should be proportional to the threats and risks faced by the witnesses.
Van Rooyen also explained the various protection measures and stages,
including the establishment of a protection programme, local operational
protection and response measures as well as procedural protective measures.
Van Rooyen emphasized that the protection of witnesses starts in the
investigation phase and that protection should be considered from the initial
interview stage by the police/investigator.

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With regards to the process of setting up witness protection programmes, van
Rooyen identified the issues to be considered as the witnesses to be protected;
the existing and needed legal framework; the highly confidential nature of such
programmes that need to be entrenched in law; the funding of such protection
programs; the staffing and the special skill sets required and lastly; the admission
criteria that includes the consideration of the crimes in which witness could be
protected. As to the process for witness protection once a program has been
developed, Van Rooyen identified the process to include the following steps: an
application (criteria / procedure / documents / reports); assessment (threat / risks
/ full access); and acceptance of witness protection (witness management, day to
day protection and development of an exit strategy).

Joan Kagezi - Lessons Learned from Ugandas international Crimes

Kagezis presentation focused on lessons learned from Ugandas International
Crimes Division (ICD) which was established in the wake of the 2008 Juba peace
talks between the Government of Uganda and the Lords Resistance Army.
Kagezi gave background on the establishment of the ICD and its expansion to
deal not only with international crimes but also terrorism.
She explained that in Uganda the initiative was not left to the Judiciary alone, but
that several key players were involved in the establishment of the ICD: the
prosecution, the police/investigation, civil society, law society, development
partners. She acknowledged that it was a mistake to leave out the military (with
its arresting capacity) and the Parliament.
Kagezi then discussed its first case against former LRA commander Thomas
Kwoyelo. Kagezi noted that Uganda had trained 45 investigators in different
areas affected by war within districts of Uganda. She also described Ugandas
Amnesty Act of 2000 which gives amnesty to any rebel who applies for it and
renounces rebellion. She suggested that Uganda had missed the opportunity to
amend the Amnesty Law and, despite seeking to have it lapse (which it did for a
year), civil society successfully lobbied parliament and had the law re-instated.
Kagezi also noted that the ICD was now focusing on the al-Shabaab terrorist
attacks of 2010.

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As challenges, Kagezi mentioned the following:
- Dealing with crimes 23 years after they were committed.
- Too heavy reliance on returning insiders.
- Amnesty law of 2000: great hindrance of blanket amnesty
- The people who got amnesty had no obligation to cooperate.
- We failed to lobby parliament to amend the amnesty law.
- Civil society may hijack the process.
- International coordination and cooperation is a challenge.
- With too many stakeholders there may be the confusion about who does

Murtaza Jaffer - The Legacy of the International Criminal Tribunal for

Rwanda: Lessons Learned from Investigations and Prosecutions of
International Crimes
Murtaza Jaffer spoke about the key challenges for investigations and
prosecutions at the International Criminal Tribunal for Rwanda (ICTR). He
stressed that he was speaking from his personal views - rather than as a staff
member of the ICTR. Jaffer noted that what was proposing was a thinking
frame based on his knowledge and experiences from the ICTR but that not
everything was applicable and that no all best practices work for every institution.
Jaffers presentation focused on how the ICTR was set up and its various
challenges in investigating and prosecuting international crimes. He noted that,
when the ICTR was set up, the UN didnt know how to set up such a tribunal
because it had never done so before. There were challenges of bad management
from the outset and the fact that proceedings had to occur in three languages
was also a challenge. Moreover, combining common and civil law proved difficult.
With regards to target selection, a number of issues and challenges came into
play, including scope, capacity, geographical, types of offences, focus on
genocide or crimes against humanity, etc. Jaffer also spoke about the massive
expectations placed on the ICTR that it could change the world, do justice and
undo harm. He noted that it was crucial to manage the process and set up
effective management systems. In the future, Jaffer said, it would be a good idea
for national authorities to meet with key staff from ad hoc tribunals to identify and
recommend practices.


With the financial support of the German Federal Foreign Office

Working Groups: Recommendations for the Establishment of Future
International Crimes Divisions

Public discourse for reasons and strategy; all this to get national buy-in

Establish joint investigation teams, but also find ways to maintain

independence of prosecutors

Establish Standard Operating Procedures on roles, responsibilities and on

relationship with external stakeholders

Work on capacity building of all the relevant stakeholders [ensure

they are sustainable, joint and focused to have good results]

Priorities of capacity building should be defined by executive committee;

train the trainers

Create a donor coordination group

Utilize national expertise

Harmonize criminal procedure legislation

Ensure harmonization of regional legislation on transnational crimes

Have a clear definition of mandate / jurisdiction

Budget with national and international partners

Create prosecution guidelines and policy --- ensuring transparency

and accountability as well as independence (DPP already has it); then
create relevant training manual

Work on interagency coordination and cooperation (judiciary, prosecution,

investigation) --- also establish SOPs and more formalized coordination

Build capacity for online case management

Create focal point for Mutual Legal Assistance / formal and informal
relationships to neighbouring countries


With the financial support of the German Federal Foreign Office

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