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

6 Introduction
countries face in trying to punish international crimes: dealing with
impunity and finding lasting peace in armed conflict situations. One of the
challenges is balancing traditional mechanisms of dispute resolution based
on restorative justice, on the one hand, and formal retributive and punitive
justice mechanisms, on the other.
In chapter 10, Garuka presents a discussion on the domestic criminal
prosecutions of the perpetrators of genocide in Rwanda. He discusses them
in comparison with the ICTR-based prosecutions. He analyses the
prosecution of genocide in ICTR and Gacaca courts. Both the ICTR and
Gacaca have jurisdiction on genocide but the main difference lies in the lack
of definition by the Gacaca law. He argues that the nature of the two
jurisdictions is more visible: judges from the ICTR are trained judges
whereas Gacaca judges do not have any formal legal training and therefore
they cannot develop jurisprudence in terms of genocide since their
understanding of genocide is limited as far as case law is concerned.
Furthermore, he argues that Gacaca courts provide for community service
as a sentence for some accused belonging to the second category whereas
the ICTR Statute has no such provision.
Although it is sometimes contested that piracy is not an international
crime, we nevertheless think that piracy deserves to be included in the
category of international crimes affecting the international community.
This crime has persisted in the Indian Ocean and the Coast of Somalia in
Africa. In chapter 11, Ambani deals with the prosecution of piracy in
Kenya. His chapter studies the international legal framework regulating
piracy and Kenya’s domestic system, which has been singularly entrusted
with the task of prosecuting pirate cases off the coast of Somalia. He
concludes that, although Kenya has prosecuted piracy, it has faced several
challenges including inadequate international and municipal legislative
frameworks, jurisdictional problems and a lack of capacity.
The final part of the book is devoted to the implementation of the
Rome Statute of the ICC in African jurisdictions. However, only selected
jurisdictions are presented. In chapter 12, Olugbuo presents a contribution
on positive complementarity and the fight against impunity in Africa, with
particular reference to Uganda and Sudan. The chapter echoes the
principle that the Rome Statute operates on complementarity. This
principle places the primacy of the investigation and prosecution of
international crimes in the domain of national jurisdictions. The Court is
meant to complement and not supplant national judicial systems. Olugbuo
argues that the effective application of the principle of positive
complementarity would ensure the development of synergies of
cooperation that would be mutually beneficial to states and the court in the
fight against impunity. It is argued that positive complementarity is
achievable. The ICC can support national jurisdictions in efforts aimed at
judicial reforms that will enable states to build capacities to prosecute
international crimes and ensure that the ICC plays its role as a court of last