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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.
Positive complementarity and the fights against impunity in Africa 253 wanted to ensure that the ICC would not take over genuine efforts by national judicial institutions to make their citizens accountable for crimes committed in their jurisdiction. In furtherance of the complementarity principle, the Chief Prosecutor of the ICC stated that ‘[t]he effectiveness of the International Criminal Court should not be measured by the number of cases that reach it. On the contrary, complementarity implies that the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success’. 29 This is generally seen as a core activity of the ICC to ensure that states are able to hold their nationals accountable and to offer help and assistance where necessary to achieve the desired goal of complementarity and prosecutions at the national level. Furthermore, the Office of the Prosecutor (OTP) sees its engagement in the fight against impunity as not only the prosecution of mass atrocities but also encouraging and facilitating national judicial institutions to act effectively in cases of crimes within the jurisdiction of the ICC. This was clearly stated by the OTP: 30 A major part of the external relations and outreach strategy of the Office of the Prosecutor will be to encourage and facilitate States to carry out their primary responsibility of investigating and prosecuting crimes. In any assessment of these efforts, the Office will take into consideration the need to respect the diversity of legal systems, traditions and cultures. The Office will develop formal and informal networks of contacts to encourage States to undertake State action, using means appropriate in the particular circumstances of a given case. However, recent developments have shown that the OTP may have abandoned this approach and is pursuing the prosecution of crimes within the jurisdiction of the ICC. This has resulted in criticism of the OTP’s modus operandi, as it appears the court may have abandoned its complementary task of ensuring that states hold their nationals accountable. 31 Encouraging and facilitating states to carry out their responsibilities not only entail prosecution, but also involve other proactive activities involving both the ICC and national judicial institutions aimed at oiling the wheels of complementarity for the smooth 29 ICC ‘Statement made by Mr Luis Moreno-Ocampo during the ceremony for the solemn undertaking of the Chief Prosecutor of the International Criminal Court 16 June 2003’ http://www.icc-cpi.int/NR/rdonlyres/D7572226-264A-4B6B-85E3- 2673648B4896/143585/030616_moreno_ocampo_english.pdf (accessed 21 September 2010). 30 ICC ‘Paper on some policy issues before the Office of the Prosecutor’ September 2003, http://www.icc-cpi.int/NR/rdonlyres/1FA7C4C6-DE5F-42B7-8B25- 60AA962ED8B6/143594/030905_Policy_Paper.pdf (accessed 21 September 2010) (OTP Policy Paper). 31 W Burke-White ‘Proactive complementarity: The International Criminal Court and national courts in the Rome system of international justice’ (2008) 49 Harvard International Law Journal 53, 55.
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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,
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94 Chapter 3 international crimes.
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96 Chapter 3 advanced nor argued an
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98 Chapter 4 Unlike the Internation
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100 Chapter 4 years imprisonment wh
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102 Chapter 4 The Prosecutor’s de
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104 Chapter 4 2.3 SCSL and the Trut
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106 Chapter 4 who bear the greatest
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108 Chapter 4 responsibility for in
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110 Chapter 4 population’. 76 The
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112 Chapter 4 2.5.1 Acts of terrori
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114 Chapter 4 and Additional Protoc
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116 Chapter 4 Essentially, there mu
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118 Chapter 4 conscription of child
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120 Chapter 5 The United Nations Se
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122 Chapter 5 There are two main th
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124 Chapter 5 goal of rehabilitatio
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126 Chapter 5 that punitur quia pec
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128 Chapter 5 circumstances of the
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130 Chapter 5 retribution, deterren
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132 Chapter 5 Another argument in t
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134 Chapter 5 children. 111 Those o
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136 Chapter 5 assessed’. 119 In m
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138 Chapter 5 that there were no mi
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140 Chapter 5 Santigie Borbor Kanu
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142 Chapter 5 Chamber found no reas
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144 Chapter 5 has adopted a tone th
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146 Chapter 6 However, with the adv
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148 Chapter 6 2. 1 Africa-ICC relat
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150 Chapter 6 national elections, c
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152 Chapter 6 resolution may be ill
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154 Chapter 6 He has added that his
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156 Chapter 6 out of a desire to av
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158 Chapter 6 (b) US legislation to
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160 Chapter 6 encourage countries o
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CHAPTER 7 1 Introduction THE TRIAL
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The trial of Mengistu and other Der
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CHAPTER 8 1 Introduction THE TRIAL
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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
Page 213 and 214: Prosecuting international crimes by
Page 233 and 234: CHAPTER 10 1 Introduction GENOCIDE
Page 235 and 236: Genocide as prosecuted by the ICTR
Page 243: 8 Reparations Genocide as prosecute
Page 246 and 247: 234 Chapter 11 losses in excess of
Page 248 and 249: 236 Chapter 11 piracy’. 14 In add
Page 250 and 251: 238 Chapter 11 aircraft in accordan
Page 252 and 253: 240 Chapter 11 and it is easy to av
Page 254 and 255: 242 Chapter 11 phone. They took ove
Page 256 and 257: 244 Chapter 11 3.3 Capacity problem
Page 258 and 259: 246 Chapter 11 support us. They did
Page 261 and 262: CHAPTER 12 Benson 1 Introduction PO
Page 263: Positive complementarity and the fi
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Page 287: Positive complementarity and the fi
Page 290 and 291: 278 Chapter 13 international crimin
Page 292 and 293: 280 Chapter 13 Africa’s involveme
Page 294 and 295: 282 Chapter 13 countries has tended
Page 296 and 297: 284 Chapter 13 passed domesticating
Page 298 and 299: 286 Chapter 13 crimes within their
Page 300 and 301: 288 Chapter 13 offences. Procedural
Page 302 and 303: 290 Chapter 13 Constitution, 62 thi
Page 304 and 305: 292 Chapter 13 4.1.3 The law regula
Page 306 and 307: 294 Chapter 13 either reciprocal or
Page 308 and 309: 296 Chapter 13 committed to fightin
Page 310 and 311: 298 Chapter 13 The procedure for th
Page 312 and 313: 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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