ICC Submissions and the “Continuing Violation” (Non-)Doctrine

I expect very little from the media in terms of legal accuracy, particularly concerning the ICC. But this article — reproduced in one form or another in dozens of newspapers — is still a doozy:

The International Criminal Court may try former Namibian president Sam Nujoma and three others in connection with the disappearance of hundreds of people.

A local newspaper reported on Monday that hundreds of Namibians under the care of the South West Africa People’s Organisation (Swapo) disappeared in exile just before and after the country’s independence in 1990, and it is believed that they were killed and their bodies dumped in a mountain crevasse near Lubango in Angola.

Most of the missing Swapo “detainees” were accused of spying for apartheid South Africa during the battle for independence.

The National Society for Human Rights (NSHR), which took the submission to the International Criminal Court (ICC), said it had obtained accounts from former Swapo combatants and members of Angola’s secret service of how the corpses of massacre victims were pushed down the crevasse, said to be 700 to 800m deep.

[snip]

The NSHR wants Nujoma – who is the current president of Swapo – and three others to be investigated for “instigation, planning, supervision, abetting, aiding, defending and/or perpetuating” the disappearances of the Namibians in exile.

Nujoma was commander-in-chief of the People’s Liberation Army of Namibia, Swapo’s military wing, during the liberation struggle and also assumed the responsibility of commander-in-chief of the Namibia Defence Force after independence.

[snip]

According to The Namibian newspaper, the ICC confirmed to the NSHR that it received the submission and was weighing the merits of the case.

In a dossier submitted to the ICC in November last year, the NSHR said Nujoma’s continued refusal to reveal the facts about the fate and whereabouts of about 4 200 missing people qualified him to be tried under the “continuous violation doctrine” of the international court.

The NSHR argues that Nujoma was head of Swapo at the time of the disappearances, and that he continues to scuttle any investigation into the April 1989 incident, where more than 370 Swapo fighters were mysteriously killed by South African forces, for fear that it might also shed light on the fate and whereabouts of the missing Swapo detainees.

The NSHR also wants Nujoma to be tried for gross violations in the Kavango region, which borders Angola, between 1994 and 1996. At the height of Unita’s attacks on northern Namibia, Nujoma imposed a state of emergency and ordered security forces to shoot on sight anyone crossing or found near the border.

The article betrays a complete failure to understand how the ICC operates. The fact that the Prosecutor is “weighing the merits” of NSHR’s submission quite literally means nothing — Article 15 of the Rome Statute requires the Prosecutor to “analyse the seriousness” of any communication he receives concerning a crime within the jurisdiction of the Court, no matter how frivolous that communication may be. To date, for example, the Prosecutor has received 1732 communications from 103 countries, 80% of which “were found to be manifestly outside jurisdiction after initial review.” Of the remaining 20% — approximately 340 communications — only 10 led to “intensive analysis” and only 3 proceeded to investigation (the Prosecutor is still analyzing 5). It is thus the height of journalistic irresponsibility to write that “[t]he International Criminal Court may try former Namibian president Sam Nujoma and three others in connection with the disappearance of hundreds of people,” at least without giving some context to the overwhelming likelihood that NSHR’s submission will go nowhere.

Nor is that all. The article also uncritically parrots NSHR’s claim that the ICC would have jurisdiction over the murders pursuant to its “continuing violation doctrine.” There is one significant problem with that argument: the ICC doesn’t have such a doctrine. There is no mention of the “continuing violation doctrine” in the Rome Statute or in any decision of the Court. Nor has the doctrine ever been used by either the ICTY or ICTR.

To be sure, the “continuing violation doctrine” does exist in international law. In Moiwana Village v. Suriname, for example, the Inter-American Court of Human Rights used it to assert jurisdiction over a massacre that took place before Suriname became a party to the American Convention on Human Rights. In the Court’s view, Suriname’s failure to investigate the massacre after ratifying the American Convention meant that the massacre was a “continuing violation” that fell within the Court’s temporal jurisdiction.

The fact that the doctrine exists, however, does not mean that the ICC will use it. Indeed, I would be shocked if it does. A significant number of States would not have ratified the Rome Statute if it gave the Court retroactive temporal jurisdiction (crimes committed before July 1, 2002), understandably — if regrettably — not wanting to expose their past behavior to judicial scrutiny. The continuing-violation doctrine would effectively erase that limitation, allowing the Court to prosecute any pre-2002 crime that a State failed to investigate after 2002. Such a dramatic expansion of the Court’s temporal jurisdiction would not only undermine the ICC’s ability to attract new members, it would almost certainly lead many current members to withdraw from the Court — a catastrophic result.

It is easy to feel tremendous sympathy for those who suffered at the hands of Swapo’s murderous regime. I wish the ICC could prosecute Nujoma and the others. Unfortunately, that is simply not the case — and the author of the article does Swapo’s victims and their families a grave disservice by implying otherwise.