Agencia de Informacao de Mocambique (Maputo)
30 June 2009
Maputo — Mozambican Justice Minister Benvinda Levy on Tuesday declared that preparations are under way for the country to ratify the Rome Statute setting up the International Criminal Court (ICC) - but she gave no timetable for when a resolution to ratify the treaty might be brought before the Mozambican parliament, the Assembly of the Republic.
Levy was speaking on the second day of a conference on "Prospects for International Criminal Justice in Mozambique", organised by the Mozambican Bar Association (OAM).
Nine years have passed since Mozambique signed the Rome Statute, and the country's lawyers are now asking why it is taking so long to ratify the document. To date, 108 countries have ratified, including 30 African countries, ten of whom are members of the Southern African Development Community (SADC).
Levy stressed that Mozambique participated actively in all the preparatory work involved in drafting the Rome Statute in 1998 and, although it has not yet ratified the Statute, it has attended general assemblies of the States Parties to the treaty, and meetings of working groups, such as one held earlier this month on the crime of aggression.
But she thought it essential that "aspects of a legal matter must be discussed internal in order to solve any eventual obstacles to ratifying the Rome Statute".
There are aspects of the Statute that might be regarded as contradicting the Mozambican constitution or the penal code. These included the constitutional power of the Assembly of the Republic to amnesty crimes, the delivery of Mozambican citizens to the ICC (regarded by some as the same thing as extradition, and thus against the constitution), and the type of penalties for crimes against humanity. The ICC can impose life sentences, but the Mozambican constitution bans life sentences.
Most of the countries that signed the Statute had discussed these issues, "and it could be no different in Mozambique", said Levy. Dealing with these issues first, perhaps by including reference to the ICC in the Constitution, was necessary "so that we can safely ratify the statute".
A series of technical meetings had been held between legal experts of the Justice and Foreign Affairs Ministries to reach a consensus on the position the government should take. All the advantages and disadvantages of ratification had been discussed.
Eventually the matter would have to be discussed by the full Cabinet, which would draw up a ratification resolution to be considered by parliament. Levy gave no indication as to when this might happen.
Lawyers and judges attending the conference were unanimous that Mozambique ought to ratify the Statute as soon as possible, but disagreed on whether it was necessary first to amend the Constitution or the Penal Code, to ensure that all the crimes covered by the Statute, and the jurisdiction of the ICC, are specifically included in the Mozambican domestic legal order.
Three positions were suggested. The constitution could be thoroughly amended, altering all the articles that are in apparent contradiction with the Rome Statute. Or there could be just one amendment inserting the ICC into the constitution - the solution chosen by Portugal.
A more radical proposal, from university law lecturer Paulo Comoane, was that, since the Constitution states that the defence of human rights is one of the fundamental goals of the Mozambican state, and since it also declares that international treaties, once validly ratified, are legally binding on the state, then the Constitution could be "interpreted" as being already in line with the Statute, and thus needed no amendment.
Speakers from the floor pointed out that Mozambique has acceded to other supra-national courts, such as the SADC Tribunal, without changing the Constitution.
Comoane thought that the advantages of ratifying the Statute far outweighed any disadvantages. Ratification would make clear Mozambique's commitment to human rights and to international peace and security.
He warned that in recent years refugees from the Great Lakes region have entered Mozambique - and the government has no idea whether any of them might be guilty of crimes against humanity. Unless Mozambique ratified the Rome Statute, the authorities might find it difficult to deal with such cases, and could be accused of favouring impunity.
Ratification would show the world that Mozambique is determining to fight against impunity, said Comoane, "but as long as the Statute is not ratified, the impression given is that of an accomplice".
Furthermore, if an indicted war criminal such as Sudanese President Omar al-Bashir were to visit Mozambique, he could only be turned over to the ICC if Mozambique first ratified the Statute.
Brazilian ICC judge Sylvia Steiner thought that some of the claims that the Statute contradicted the Mozambican constitution could be overcome quite easily. Like Mozambique, Brazil does not allow life imprisonment - but this had not prevented Brazil from Ratifying the Statute. For the Statute merely states that the ICC "may" hand down life sentences, and does not make it obligatory. Likewise, States Parties to the Statute in a position to prosecute war criminals are not obliged to impose life sentences.
The "delivery" to the ICC of nationals of Mozambique (or any other country) was not the same as extradition, Steiner argued. Extradition was an arrangement between two sovereign states, and was quite unlike the surrender of a suspect to an international court, whose Statute the country concerned has voluntarily approved.
Nicole Fritz, the Director of the Southern African Litigation Centre (SALC) in Johannesburg, said that when South Africa placed the Rome Statute into its domestic legal order, it went further than strictly necessary. South African courts can, in theory, deal not only with cases that occur on South African soil, or involve South African perpetrators or victims, but cases that occur outside the country, if the perpetrator visits South Africa.
SALC tried to use this to have Zimbabwean officials visiting South Africa arrested. But despite a bulging dossier on torture committed under President Robert Mugabe's regime, and a large number of witnesses willing to testify in court, the National Prosecuting Authority (NPA) has declined to act. SALC is not giving up and is considering challenging the NPA's position in court.
Pressure over Bashir was more successful. Sudan was invited to the inauguration of South African President Jacob Zuma, and there was speculation that Bashir would attend. SALC discovered that the South African Foreign Ministry advised the Sudanese government it could send whoever it likes, but the presence of Bashir "would create problems".
Bashir took the hint and stayed away. Fritz said lawyers had been ready to serve papers in court, if Bashir showed up, to demand that he be arrested.
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