Prosecuting International Crimes in Africa - PULP - University of ...

4 Introduction
has added value to the existing jurisprudence on the subject and how the
jurisprudence could be of future use.
The African continent has been beset by armed conflicts. Most of the
conflicts are non-international in character. These have occurred, for
example, in the Democratic Republic of the Congo (DRC), the Central
African Republic, the Sudan and Uganda. It is inevitable that when armed
conflicts occur, international crimes, especially war crimes, crimes against
humanity or genocide are committed by individuals. International
criminal justice and humanitarian law require that perpetrators of
international crimes should be brought to justice. The international
community has agreed to put an end to impunity by, among other things,
establishing the ICC. The ICC was established by the Rome Statute of the
International Criminal Court of 1998 which entered into force on 1 July
2002. Following the establishment of the ICC, situations needing attention
were referred to the Prosecutor of the ICC. The DRC, Uganda and Central
African Republic did such referrals. The Darfur situation in Sudan was a
referral by the Security Council of the United Nations in 2005. Self
referrals, a referral by the Security Council and a proprio motu investigation
by the Prosecutor of the ICC in respect of crimes against humanity
committed in Kenya during the post-election violence between 2007 and
2008 triggered investigations and subsequent indictments against
individuals allegedly responsible for crimes committed in such states.
It is apparent that the indictment of the Sudanese head of state,
President Omar Hassan Al Bashir, has created tensions between the
African Union (AU) and the ICC. The AU contends that indicting
President Omar Al Bashir jeopardises the peace processes in Darfur. This
seems contrary to the duty to prosecute persons responsible for
international crimes, a duty imposed by customary international law, and
arising from obligations to cooperate with the ICC in arresting and
surrendering suspects of international crimes as envisaged under the Rome
Statute. Odero writes in chapter 6 about the politics of international
criminal justice in respect of the warrants of arrest issued by the ICC
against President Omar Al Bashir of Sudan. He emphasises the need for
lawyers and political scientists to make an attempt at synchronising their
work. The analysis is unusual, drawing from the disciplines of law and
political science and therefore is a challenge to lawyers, calling on them to
unpack controversial factual issues and in so doing, adding to their
understanding of the complex and non-legal factors that are at play in
international criminal justice. Likewise, it is a challenge to political
scientists to pay more attention to legal phenomena that are often at play
and likely to influence political processes. Odero argues that it is only
through a meeting of minds by scholars, practitioners and policy makers
from these two fields, that sound judgments grounded in law and political
reality may be reached and successfully implemented.