On July 17th, 2015, The Hague Academy of International Law and the Peace Palace Library celebrated International Criminal Justice Day, the anniversary of the adoption of the Rome Statute. The highlight was a conversation with former International Criminal Court (ICC) Vice President Judge Sanji Mmasenono MONAGENG and Hague Academy of International Law students to discuss her work and thoughts on justice. At the beginning of her speech, Judge Monageng said International Criminal Justice Day “unites people like you and me who wish to support justice, who wish to promote human rights... and who wish to help prevent crimes that threaten the peace and security of this world.” After the session, attendees were photographed with signs for the #JusticeMatters campaign, and the day ended with a free showing of the documentary film 'Burden of Peace'.
Judge Monageng’s career is a testament to her own dedication to justice. After joining the Botswana judiciary, she created the Bar Association of Botswana to better procure justice in her country. It was through this work that she realized that justice is alive, remarking it was one of the best periods of her life. Incorporating human rights into her thoughts on justice, she also discussed her work for human rights in the continent of Africa via the African Commission on Human and Peoples’ Rights. She reflected that she “had been consumed by matters of justice, and the need to make a difference.”
Another facet of the conversation was her examination of the ICC, emphasizing its importance with acknowledgement of its imperfections. A key conclusion drawn by Judge Monageng is that the court needs the co-operation of state and non-state parties and that “co-operation obligations should be respected without political calculations.” State parties need to assist in arrests, to “domesticate the Rome Statute” and to improve domestic courts. Likewise, she affirmed the need for national judicial systems to prosecute crimes against humanity and war crimes because of perceived legitimacy of national courts, stretched resources of the ICC and benefits to matters of justice. She, also, noted that not all states have joined the Rome Statute. Additionally, she argued that the questioning of the ICC’s legitimacy, particularly in Africa, can be rooted in misinformation and, partly, the failure of the Security Council to refer situations like Syria to the court. The ICC innovations aimed at obtaining justice for victims were also discussed. The Trust Fund for Victims, victims’ legal representation and victim protection measures, have led to victim rehabilitation and victim involvement becoming important facets of the ICC.
The first question, which came from Fé de Jonge of the Peace Palace Library, concerned the importance of national courts in enforcing international arrest warrants given Al-Bashir’s time in South Africa without arrest or detainment, despite a warrant by the ICC and an accompanying order by the national judiciary. Judge Monageng said that the “South African courts should be applauded” for their order. While Bashir left without state interruption, and the government is appealing the judgement of the high court, the South African judiciary had acted in accordance with the ICC’s international legal integrity.
Hague Academy student Nicolas Cordoba asked about the ICC response if an individual was prosecuted in a national court for war crimes, crimes against humanity or genocide but, for political reasons, the state pardoned the convicted criminal or reduced their sentence. Judge Monageng responded that the ICC would not retry a case that had a legitimate trial due to double jeopardy. The ICC only intervenes at the beginning of a case.
Other questions about matters of justice also provoked interesting discussion. When asked about the jurisprudence of the ad hoc tribunals, Judge Monageng answered that the jurisprudence had been used and there is a lot of interaction, but that the tribunals are still ad hoc. When asked for her opinion of “fundamental rights of prosecution”, she spoke about how the ICC is bound by the Rome Statute. She also questioned the criticisms that the Rome Statute is too binding, and she said that she had not yet had a case dealing with prosecution. Another individual asked about the prospects of an African Court of Justice and Human Rights, Judge Monageng spoke of the potential merits of a regional court if it had the resources to function along with potential problems of immunity talks.
Of note, when asked if she ever received threats or faced danger due to her work for justice, Judge Monageng spoke about her time in Gambia. In Gambia she did not waiver on her dismissals of certain politicized cases despite pressures, adversity and public backlash as a result. She had stood firm in her dedication to the delivery of fair and true justice.
“I think she was a brilliant speaker and she was very courageous with the way she handled the situation of being threatened,” Hague Academy student Mrinal Virma said.
Overall, Judge Monageng’s insights on justice were greatly appreciated in the celebration of International Criminal Justice Day, and they contributed to the Academy students’ experiences and discussions of International Law in the Hague.