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

252 Chapter 12
Apartheid, 20 and the Convention on the Prevention and Punishment of the
Crime of Genocide. 21
The current provision of the complementarity principle in the Rome
Statute has its origin in the 1994 International Law Commission (ILC)
Draft Statute, 22 generally seen as the cornerstone for the construction of
the notion of complementarity as currently provided in the Rome
Statute. 23 The 1994 ILC Draft provides in its preamble that the ‘[ICC] is
intended to be complementary to national criminal justice systems in cases
where such trial procedures may not be available or may be ineffective’. 24
The ILC Draft also proposed circumstances under which an ICC
investigation or prosecution may be inadmissible. 25 The complementarity
principle went through several changes during the Preparatory Committee
(PrepCom) meetings convened by the UN. 26 However, some of the thorny
issues surrounding the complementarity principle were agreed upon before
the Rome Conference. For example, states were interested in the
relationship between the proposed court and national courts and were
hesitant to accept any compromise proposal without knowing the legal
relationship between the two. 27 According to John Holmes, ‘[t]he
uniqueness of the legislative history concerning the complementarity
regime is that most of the issues were largely resolved in the Preparatory
Committee prior to the Rome Conference’. 28 This shows that states were
actually interested in how the ICC would affect their sovereignty and also
20 Art 4(b) International Convention on the Suppression and Punishment of the Crime of
Apartheid UN Doc A/9030 (1974) entered into force on 18 July 1976. The Apartheid
Convention was adopted by the General Assembly on 30 November 1973, by 91 votes
in favour, four against (Portugal, South Africa, the United Kingdom and the United
States) and 26 abstentions. It came into force on 18 July 1976. It has been ratified by
107 states; J Dugard ‘Convention on the Suppression and Punishment of the Crime of
Apartheid’ http://untreaty.un.org/cod/avl/pdf/ha/cspca/cspca_e.pdf (accessed 15
September 2010).
21 Arts 5 and 6 Convention on the Prevention and Punishment of the Crime of Genocide,
entered into force on 12 January 1951.
22 The Draft Statute for an International Criminal Court was adopted by the ILC at its
forty-sixth session in 1994, and was submitted to the General Assembly as a part of the
ILC’s Report covering the work of that session (1994 ILC Draft).
23 M El-Zeidy The principle of complementarity in international criminal law: Origin,
development and practice (2008) 126.
24 Para 3 1994 ILC Draft.
25 Art 35 1994 ILC Draft provides that ‘[t]he Court may, on application by the accused or
at the request of an interested State at any time prior to the commencement of the trial,
or of its own motion, decide, having regard to the purposes of this Statute set out in the
preamble, that a case before it is inadmissible on the ground that the crime in question:
(a) Has been duly investigated by a State with jurisdiction over it, and the
decision of that State not to proceed to a prosecution is apparently wellfounded;
(b) Is under investigation by a State which has or may have jurisdiction over it,
and there is no reason for the Court to take any further action for the time
being with respect to the crime; or
(c) Is not of such gravity to justify further action by the Court.’
26 The ad hoc Committee that drafted the ILC Draft in 1994 was replaced by the
Preparatory Committee in 1996.
27 El-Zeidy (n 23 above) 127.
28 J Holmes ‘Principle of complementarity’ in Lee (n 1 above) 43.