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

250 Chapter 12
analysis by the ICC Prosecutor. 6
The ICC was called the ‘missing link’ in international justice by former
UN Secretary-General, Kofi Annan. 7 Supporters of the ICC have argued
that its presence alone serves as a deterrent to would-be dictators and their
collaborators and also helps to end impunity for gross human rights
violations. 8 However, the apparent attention to cases in Africa 9 has
resulted in negative sentiments regarding the court on the continent. It has
been argued by some African leaders that the ICC is a Western tool
deployed against African states, 10 while it has also been seen as a postcolonial
justice system targeting weak states in Africa. 11
This chapter examines the extent to which the ICC can ensure justice,
promote peace, and end ongoing conflict in Africa by employing positive
complementarity to further the work of the ICC in Africa. In the second
section of the discussion it introduces the principle of complementarity and
outlines its drafting history. The chapter looks at the current divergent and
convergent views on complementarity; the meaning of positive
complementarity; and the outcome of the Review Conference of the Rome
Statute on positive complementarity. The third section explores voices
from the field in relation to the events unfolding in the Democratic
Republic of the Congo (DRC), Sudan and Uganda. The benefits of
national prosecution of crimes using the complementarity principle are
discussed, and it is argued that positive complementarity offers an
opportunity for the ICC and national judicial institutions to hold
accountable those responsible for serious crimes of concern to the
international community.
6 The Office of the Prosecutor is currently conducting a preliminary analysis of the
situations in Afghanistan, Georgia, Guinea, Côte d’Ivoire, Colombia and Palestine. See
ICC ‘Office of the Prosecutor’ http://www.icc-cpi.int/Menus/ICC/
7
Structure+of+the+Court/Office+of+the+Prosecutor/ (accessed 15 September 2010).
Kofi Annan’s Press conference in Rome, Italy, following the 60 th ratification of the
Rome Statute on 11 April 2002 http://www.iccnow.org/documents/
8
KofiAnnanPressConf11April02.pdf (accessed 15 September 2010).
M Ellis ‘The International Criminal Court and its implication for domestic law and
9
national capacity building’ (2002) 15 Florida Journal of International Law 215, 223.
Of the five situations currently before the ICC, three (Uganda, DRC and CAR) were
through self-referrals under art 14 of the Rome Statute; the situation in Darfur was
through the UN Security Council (UNSC) acting under Chapter VII of the UN Charter
and under art 13 of the Rome Statute; Kenya is through the proprio motu powers of the
10
Prosecutor under art 15 of the Rome Statute.
D Kezio-Musoke ‘Kagame tells why he is against ICC charging Bashir’ Daily Nation 3
August 2008 http://allafrica.com/stories/200808120157.html (accessed 15 September
11
2010).
M Mamdani Saviours and Survivors: Darfur, politics, and the war on terror (2009) 284.