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144 Chapter 5 has adopted a tone that reflects public sentiments. Accordingly, serious international crimes should not go unpunished. Sentencing before the SCSL has not escaped this anomaly as it has endorsed principles of sentencing as espoused by the decisions of the ICTY and the ICTR. To that end, and as evidenced by the preceding discussion, principles of national law have played a limited role in the sentencing of offenders by the SCSL.
CHAPTER 6 1 Introduction POLITICS OF INTERNATIONAL CRIMINAL JUSTICE: THE ICC’S ARREST WARRANT FOR AL BASHIR AND THE AFRICAN UNION’S NEO-COLONIAL CONSPIRATOR THESIS * LL.B (Nairobi); LL.M (Pretoria); PhD (Luiss, Italy). Lecturer in Law and Political Science, Africa Nazarene University, Kenya. 1 F Megret ‘The politics of international criminal justice’ (2002) 13 European Journal of International Law 1262. 145 Steve Odero* International criminal justice has for long been the jealous preserve of lawyers who in practice have always been reluctant to acknowledge that, more often than not, they operate in an environment that is profoundly imbued with politics. Likewise, political scientists have traditionally either seemed oblivious to the potentially challenging qualities of international criminal justice or have turned a blind eye to such possibility. 1 They have frequently reduced the entire legal enterprise to a more or less arbitrary exercise of power, and in so doing pledging allegiance to the realist school of international relations theory. These two professional trajectories can be explained as follows. For the lawyer, whereas legal phenomena and reality often mix, he has been preoccupied with the use of legal phenomena to influence the factual or political reality. In the lawyer’s world, law is sacrosanct and the reality on the ground ought to conform to it. In contrast, for the political scientist, legal phenomena are born of social science and ought to be reflective of it. Social patterns are attributable to calculated and overt human actions, seldom finding expression in law, aimed at influencing various behavioural patterns. Hence, political scientists are preoccupied with the political reality and what actions can influence it, sometimes to the extent of belittling the relevance of the law in this respect. With regards to international criminal justice in particular, political scientists have mostly been disparaging, considering it ornamental at best and relegated to some discrete sub-discipline, for example under the catchall expression ‘transitional justice’, somewhere in between public policy, history and ethical theory.
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Prosecuting International Crimes in
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1 2 TABLE OF CONTENTS FOREWORD ix C
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6 7 8 6 Relevance of the jurisprude
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12 13 14 4 Conclusion 246 PART IV:
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FOREWORD I write this foreword with
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CONTRIBUTORS Benson Olugbuo is a So
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1 INTRODUCTION Chacha Murungu* & Ja
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Introduction 3 The commission of in
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Introduction 5 Apart from internati
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Introduction 7 resort. The conclusi
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PART I: GENERAL ISSUES IN THE PROSE
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12 Chapter 1 oblige states to prose
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14 Chapter 1 3 The obligation to pr
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16 Chapter 1 perpetrators of these
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18 Chapter 1 namely, national, ethn
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20 Chapter 1 the International Crim
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22 Chapter 1 amnesties for serious
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24 Chapter 1 payment of compensatio
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26 Chapter 1 punish international c
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28 Chapter 1 notorious violations o
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30 Chapter 1 in the case of the cou
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CHAPTER 2 1 Introduction IMMUNITY O
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Immunity of state officials and pro
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PART II: INTERNATIONAL COURTS AND P
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64 Chapter 3 evidentiary areas of i
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66 Chapter 3 pioneering effort in a
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68 Chapter 3 particular group, the
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70 Chapter 3 Indisputably, the abse
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72 Chapter 3 The Akayesu judgment,
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74 Chapter 3 particularly in light
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76 Chapter 3 for the destruction of
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78 Chapter 3 being of persons, in p
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80 Chapter 3 conflict - the ‘war
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82 Chapter 3 Chamber had itself fou
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84 Chapter 3 found in the first pla
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86 Chapter 3 of the Statute than
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88 Chapter 3 The majority’s appro
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90 Chapter 3 duties as a superior e
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92 Chapter 3 present at the trial,
Page 106 and 107: 94 Chapter 3 international crimes.
Page 108 and 109: 96 Chapter 3 advanced nor argued an
Page 110 and 111: 98 Chapter 4 Unlike the Internation
Page 112 and 113: 100 Chapter 4 years imprisonment wh
Page 114 and 115: 102 Chapter 4 The Prosecutor’s de
Page 116 and 117: 104 Chapter 4 2.3 SCSL and the Trut
Page 118 and 119: 106 Chapter 4 who bear the greatest
Page 120 and 121: 108 Chapter 4 responsibility for in
Page 122 and 123: 110 Chapter 4 population’. 76 The
Page 124 and 125: 112 Chapter 4 2.5.1 Acts of terrori
Page 126 and 127: 114 Chapter 4 and Additional Protoc
Page 128 and 129: 116 Chapter 4 Essentially, there mu
Page 130 and 131: 118 Chapter 4 conscription of child
Page 132 and 133: 120 Chapter 5 The United Nations Se
Page 134 and 135: 122 Chapter 5 There are two main th
Page 136 and 137: 124 Chapter 5 goal of rehabilitatio
Page 138 and 139: 126 Chapter 5 that punitur quia pec
Page 140 and 141: 128 Chapter 5 circumstances of the
Page 142 and 143: 130 Chapter 5 retribution, deterren
Page 144 and 145: 132 Chapter 5 Another argument in t
Page 146 and 147: 134 Chapter 5 children. 111 Those o
Page 148 and 149: 136 Chapter 5 assessed’. 119 In m
Page 150 and 151: 138 Chapter 5 that there were no mi
Page 152 and 153: 140 Chapter 5 Santigie Borbor Kanu
Page 154 and 155: 142 Chapter 5 Chamber found no reas
Page 158 and 159: 146 Chapter 6 However, with the adv
Page 160 and 161: 148 Chapter 6 2. 1 Africa-ICC relat
Page 162 and 163: 150 Chapter 6 national elections, c
Page 164 and 165: 152 Chapter 6 resolution may be ill
Page 166 and 167: 154 Chapter 6 He has added that his
Page 168 and 169: 156 Chapter 6 out of a desire to av
Page 170 and 171: 158 Chapter 6 (b) US legislation to
Page 172 and 173: 160 Chapter 6 encourage countries o
Page 175 and 176: CHAPTER 7 1 Introduction THE TRIAL
Page 177 and 178: The trial of Mengistu and other Der
Page 197 and 198: CHAPTER 8 1 Introduction THE TRIAL
Page 199 and 200: The trial of Hissène Habré in Sen
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The trial of Hissène Habré in Sen
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CHAPTER 9 1 Introduction PROSECUTIN
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2 Genesis of the conflict Prosecuti
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Prosecuting international crimes by
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CHAPTER 10 1 Introduction GENOCIDE
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Genocide as prosecuted by the ICTR
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8 Reparations Genocide as prosecute
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234 Chapter 11 losses in excess of
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236 Chapter 11 piracy’. 14 In add
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238 Chapter 11 aircraft in accordan
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240 Chapter 11 and it is easy to av
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242 Chapter 11 phone. They took ove
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244 Chapter 11 3.3 Capacity problem
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246 Chapter 11 support us. They did
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CHAPTER 12 Benson 1 Introduction PO
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Positive complementarity and the fi
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278 Chapter 13 international crimin
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280 Chapter 13 Africa’s involveme
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282 Chapter 13 countries has tended
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284 Chapter 13 passed domesticating
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286 Chapter 13 crimes within their
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288 Chapter 13 offences. Procedural
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290 Chapter 13 Constitution, 62 thi
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292 Chapter 13 4.1.3 The law regula
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294 Chapter 13 either reciprocal or
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296 Chapter 13 committed to fightin
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298 Chapter 13 The procedure for th
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300 Chapter 13 trial. While the Rom
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302 Chapter 13 Having draft legisla
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CHAPTER 14 Lee 1 Introduction IMPLE
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Implementation of the Rome Statute
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Books SELECTED BIBLIOGRAPHY Allen,
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Selected bibliography 333 Neier A (
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Selected bibliography 335 Chitiyo,
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Selected bibliography 337 Jalloh, C
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Selected bibliography 339 Roht-Arri
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Selected bibliography 341 Report on
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Table of cases 343 Right of Passage
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Table of cases 345 Prosecutor v Vas
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Table of cases 347 Muhimana v Prose
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Table of cases 349 Prosecutor v Rut
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Table of cases 351 and the Governme
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Table of cases 353 Prosecutor v Ses
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Table of cases 355 GAOR, 45th Sess.
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Table of cases 357 R v Bow Street M
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360 Subject index Domestication ...
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362 Subject index S Selective justi
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