International Criminal Court Jurisdiction Over Shakahola Case PDF

**[Whether there are reasonable grounds to believe that the case against Mr. Mackenzie concerning genocide falls within the jurisdiction of the Court pursuant to article 19 of the Rome Statute]** The International Criminal Court has a duty to satisfy itself that it has jurisdiction in any case brou...

**[Whether there are reasonable grounds to believe that the case against Mr. Mackenzie concerning genocide falls within the jurisdiction of the Court pursuant to article 19 of the Rome Statute]** The International Criminal Court has a duty to satisfy itself that it has jurisdiction in any case brought before it.[^1^](#fn1){#fnref1.footnote-ref} The facts of this case present a typical situation where the application of the ICC statute would be most required. The crime of genocide is one of the crimes within the jurisdiction of the ICC.[^2^](#fn2){#fnref2.footnote-ref}Whereas the question of jurisdiction is not absolute in such matters before the ICC, the ensuing discussion in this paper points to one conclusion; that the ICC has a jurisdiction to deal with this matter and should thus move with speed to first, calm the situation in Shakahola and two, Punish Mr. Mackenzie for his ill acts against the Wa Kahawa. To address the issue at hand, this discussion delves into determining the Territorial Jurisdiction, Temporal Jurisdiction and Personal jurisdiction of the ICC. Again, the discussion gets confined specifically to the crime of Genocide where it is ascertained whether the material and mental elements of Genocide are notable and therefore worth prosecuting. a. **[Territorial Jurisdiction]** The Republic of Shakahola is a non-state party to the ICC. At the outset, this may seem to be a hard position for the ICC in light of Article 12 of the statute where the jurisdiction of the International Criminal Court is essentially restricted to crimes committed within the territory or by a national of either a state party or a state that has accepted the court's jurisdiction in a particular case. As has been observed by Gerhard Werle and Florian Jessberger however, the court may also take jurisdiction regardless of the site of crime and the perpetrator's nationality, if and to the extent that the UN Security council refers a situation to it under chapter VII of the UN Charter.[^3^](#fn3){#fnref3.footnote-ref} On 15 October 2019, the UN Security Council referred to the Prosecutor the Situation in the Republic of Shakahola, as of 1 March 2019, pursuant to article 13 (b) of the Rome Statute. This position grants the ICC Jurisdiction over the matter at hand. This has been witnessed before in two cases befoe the ICC; one involving Sudan and the other Libya. The Sudan Darfur is the first and only situation thus far to be referred to the Court by the UN Security Council.[^4^](#fn4){#fnref4.footnote-ref} Violence erupted in Sudan in early 2003 after two local groups attacked government forces. Shortly thereafter, the government and government-backed militias began attacking and killing civilians throughout the Sudan. In the course of all these, Rape, murder, looting, destruction of villages, and torture were reported.[^5^](#fn5){#fnref5.footnote-ref} Through the efforts of the then UN secretary general, Kofi Anan, a commission of inquiry was established to investigate the situation. Upon being implored by the commission, the Security Council invoked Article VII of the UN Charter and, on March 31, 2005, referred the Darfur case to the ICC in Resolution 1593.[^6^](#fn6){#fnref6.footnote-ref} Owing to the similarity of facts to the Shakahola situation, it is much apparent that this court has the territorial jurisdiction to hear this matter. The same positions were equally noted in the 2011 Libya war crimes that the security council referred to the ICC under resolution 1970.[^7^](#fn7){#fnref7.footnote-ref} As werle and Jessberger observes, the security council reserves the right to specify the International Criminal Court's substantive and personal jurisdiction over non-state perties in detail.[^8^](#fn8){#fnref8.footnote-ref} As the fcts of this present, the UN security council has already made a move by referring the situation to the prosecutor. Top this extent, it is it is worth noting that the ICC has the territorial jurisdiction to determine the matter at hand. b. **[Temporal Jurisdiction]** Under this head, the big question would be whether or not the alleged genocidal crimes took places after the ICC statute came into force. According to Hans-Heinrich Jescheck, the Rome statute was adopted in Rome on 10 July 1998, during a diplomatic conference attended by most of the then 189 Member States of the United Nations. It was accepted by a large majority of the participating Member States and became effective following ratification by the 60th signatory state, on 1 July 2002.[^9^](#fn9){#fnref9.footnote-ref}our major focus is on the date the statute came into force, that is on 1^st^ July 2002. The events in Shakahola that are related to the crime of Genocide started in march 2019. This far much later after the ICC Statute came into force. It therefore flows from logic that the question of temporal jurisdiction is indisputable; that the court has the temporal jurisdiction over the shakahola matter. c. **[Personal Jurisdiction]** The history of the International Criminal Law is laudable under this head. It presents a significant departure from one of the hardest challenges had under International Criminal Law during the infancy era; the need for individual prosecution to hold them accountable for their crimes. As Werle and Jessberger note, it was the horror of Nazi tyranny that first brought about the acceptance of International criminal responsibility.[^10^](#fn10){#fnref10.footnote-ref} They further opine that International criminal law was further under jeopardy during the second world war, the genocide of the European Jews and later during the cold war.[^11^](#fn11){#fnref11.footnote-ref} Of significance to note is that the concept of individual criminal responsibility under international law can be found in the Versailles Treaty of 28^th^ June 1919.[^12^](#fn12){#fnref12.footnote-ref} This was however never implemented as no international tribunal was created. To sum up the history, the concept of individual criminal responsibility was first applied through the establishment of charter of the International Military Tribunal at Nuremberg. Here, individuals were actually held criminally accountable under international Law. Consequently, the current position is that only individuals get prosecuted for crimes under the ICC Statute. The facts of this case reveal that it is Mr. Mackenzie that has been brought before the ICC to answer the charges. This is plausible. As a former president and commander in chief of the Armed forces of Shakahola, it is indisputable that his actions and orders led to the death of the Wa Kahawa people, especially the men. Thus, the actions to prosecute Mr. Mackenzie falls under ICC's obligations to prosecute individuals and not states. This position is reinforced by article 1 of the Rome statute which states; *"An International Criminal Court (\"the Court\") is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction **over persons** for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute."* It suffices therefore that the ICC has personal jurisdiction to handle Mr. Mackenzie's matter. d. **[Material and Mental Elements of the Crime Of Genocide]** i. **[Material elements]** In the words of Lemkin R., genocide is defined as different actions aiming at the destruction of essential foundations of life of a group and guided by a plan to annihilate the group.[^13^](#fn13){#fnref13.footnote-ref} This therefore provokes the need to ascertain the existence of a "group," in this case whether the Wa Khawa are a distinctive group in Shakahola. Affirming this position, werle and Jessberger postulate that a conduct is punishable as genocide if it aims to destroy in whole or in part a national, ethnic, racial or religious group.[^14^](#fn14){#fnref14.footnote-ref} As the facts of this case present, "Shakahola is also home to Wa Kahawa, an ethnic minority who live predominantly in Kahawa, a province in the middle of Shakahola, together with other ethnic and religious groups. They speak a distinct language called Kikahawa and worship a god called Were..." it is indisputable, to this extent, that the Wa kahawa are an ethnic group within Shakahola. According to International Human Rights Defenders (IHRD), in the night of 15 July 2019, the NDS in coordination with SPG entered multiple houses to arrest Wa Kahawa for affiliations with the KNF. **Two hundred Wa Kahawa men**, including two KNF members, were shot dead when they resisted arrest. Again 86 male Wa kawawa were killed as they tried to cross the border between July and October 2019. Article 19 of the Rome Statute pertains the challenges to the jurisdiction of the Court or the admissibility of a case. To determine if the case against Mr. Mackenzie falls within the jurisdiction of the International Criminal Court (ICC) under Article 19 of the Rome Statute, the Court must examine if the allegations meet the jurisdictional requirements set forth by the Statute. Under Article 19, the ICC must confirm that it has jurisdiction over the case based on the following: \- The alleged crimes must have occurred after the Rome Statute's entry into force on July 1, 2002. \- The ICC has jurisdiction over genocide, crimes against humanity, war crimes, and the crime of aggression[^15^](#fn15){#fnref15.footnote-ref}. \- The accused or the alleged crime location falls under the Court's jurisdiction, either as part of a State Party or through a UN Security Council referral. In this case, Shakahola is not a State Party, so the jurisdictional basis relies on the UN Security Council referral (Resolution 2023) under Article 13(b) of the Rome Statute, which invites the Office of the Prosecutor to investigate international crimes in Shakahola as of March 1, 2019. The acts of alleged genocide, including killings and inflicting life-threatening conditions on the Wa Kahawa, are stated to have occurred between March 2019 and September 2022. Since these actions took place after the UN Security Council referral date (March 1, 2019) and the entry into force of the Rome Statute, the Court's temporal jurisdiction requirement is met. The Rome Statute defines genocide in Article 6, which includes actions taken with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group by means such as: i. Killing members of the group, ii. Causing serious bodily or mental harm to members of the group; iii. Deliberately inflicting conditions of life calculated to bring about the group's destruction, iv. Imposition of measures intended to prevent births within the group, and v. Forcibly transferring children from one group to another. From the above it is reasonable to believe that the acts Mr. Mackenzie allegedly committed meet the elements of genocide. i. **Target group** The acts must have been committed towards a national, ethnical, racial or religious group. Mr. Mackenzie's orders and actions allegedly targeted the Wa Kahawa population. The Wa Kahawa qualify since they are an ethnically distinct group with their own religious beliefs and a distinct language of communication. ii. **Prohibited acts** The alleged acts with evidence suggesting that military and police forces committed acts such as extrajudicial killings, sexual violence against the Wa Kahawa women, forced displacement, and deprivation of essential resources. iii. **Intent to destroy** The evidence indicates that the acts of violence were directed specifically at the Wa Kahawa ethnic group with potential intent to destroy this group in part, meeting the ICC's subject-matter jurisdiction for genocide. Additionally, statements made by Mr. Mackenzie upon his appearance on National TV referring to the Wa Kahawa as "lying rats" and a "cancerous people", vowing to eradicate them from the map of the country further support this conclusion. Shakahola is not a party to the Rome Statute; however, the UN Security Council's Resolution 2023 enables ICC jurisdiction over the alleged crimes under Article 13(b). This referral extends the Court's territorial and personal jurisdiction over crimes committed in Shakahola by non-Party nationals, including Mr. Mackenzie, who held significant power as the country's President and Commander-in-Chief.  The resolution, combined with the Pre-Trial Chamber's subsequent issuance of a warrant for Mr. Mackenzie's arrest, confirms that the Court holds both territorial and personal jurisdiction over this case. The Court finds reasonable grounds to believe that the case against Mr. Mackenzie concerning genocide falls within the jurisdiction of the ICC pursuant to Article 19 of the Rome Statute. The acts alleged against him meet the requirements for temporal, subject-matter, and territorial and personal jurisdiction as stipulated under the Rome Statute and the UN Security Council referral. The case thus satisfies the jurisdictional criteria for the ICC to proceed with further investigation and potential prosecution. ::: {.section.footnotes} ------------------------------------------------------------------------ 1. ::: {#fn1} ICC Statute, Article 19 (1)[↩](#fnref1){.footnote-back} ::: 2. ::: {#fn2} Ibid., Article 5 (1)[↩](#fnref2){.footnote-back} ::: 3. ::: {#fn3} Gerhard Werle and Florian Jessberger, Principles of International Criminal Law (3^rd^ edn, OUP 2014) 97 \[1\][↩](#fnref3){.footnote-back} ::: 4. ::: {#fn4} Saxum, Erica J. \"The ICC versus Sudan: How does the Darfur case impact the principle of complementarity?\" *Eyes on the ICC* (2009) vol. 6 (1) p.1.[↩](#fnref4){.footnote-back} ::: 5. ::: {#fn5} Ibid., p.6.[↩](#fnref5){.footnote-back} ::: 6. ::: {#fn6} Ibid., p.6 \[3\][↩](#fnref6){.footnote-back} ::: 7. ::: {#fn7} https://undocs.org/S/Res/1970(2011)[↩](#fnref7){.footnote-back} ::: 8. ::: {#fn8} Supra n.3 p. 97 \[3\][↩](#fnref8){.footnote-back} ::: 9. ::: {#fn9} Hans-Heinrich Jescheck, \"The General Principles of International Criminal Law Set Out in Nuremberg, as Mirrored in the ICC Statute\" (2004) 2:1 J Int\'l Crim Just 38.[↩](#fnref9){.footnote-back} ::: 10. ::: {#fn10} Gerhard Werle and Florian Jessberger, Principles of International Criminal Law (3^rd^ edn, OUP 2014) p. 1[↩](#fnref10){.footnote-back} ::: 11. ::: {#fn11} Ibid., p.2[↩](#fnref11){.footnote-back} ::: 12. ::: {#fn12} Ibid., p.2 \[4\][↩](#fnref12){.footnote-back} ::: 13. ::: {#fn13} Lemkin R., Axis Rule in Occupied Europe (1973) 79.[↩](#fnref13){.footnote-back} ::: 14. ::: {#fn14} Gerhard Werle and Florian Jessberger, Principles of International Criminal Law (3^rd^ edn, OUP 2014) p. 293.[↩](#fnref14){.footnote-back} ::: 15. ::: {#fn15} Article 5 of the Rome Statute of the International Criminal Court.[↩](#fnref15){.footnote-back} ::: :::