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

254 Chapter 12
administration of international justice. This opportunity has to be fully
explored as the complementarity regime of the Rome Statute also serves as
a catalyst for domestic judicial reform . 32
The OTP stands to gain when it acts as a partner with state parties in
the prevention and prosecution of crimes, as it is obvious that it would
have to ride on the back of states to achieve its prosecutorial policies and
contribute to ending impunity for international crimes. This is because the
ICC does not have a police force or military firepower to ensure the arrest
and surrender of those it has indicted for international crimes and would
rely on states to achieve its objectives. 33 The OTP should be on the
forefront of contributing to the development of effective national justice
systems capable of trying those who commit mass atrocities at the national
level. 34 This process, coupled with OTP’s limited focus on prosecution,
will have far-reaching effects.
2.2 Divergent and convergent views on complementarity
It has been noted that the complementarity principle gives states primary
jurisdiction over crimes committed by their nationals or in their
territories. 35 However, there is currently controversy as to whether the
complementarity test in the Rome Statute is a two or three prong test. 36 It
has been argued that the ICC has jurisdiction over a case when there are
no national proceedings or a state is ‘unwilling or unable genuinely’ to
prosecute its nationals. 37 The argument is further reinforced by the OTP
where it supports the three-prong test by stating that prosecution can take
place when ‘[t]here is no impediment to the admissibility of a case before
the Court where no state has initiated any investigation. There may be
cases where inaction by states is the appropriate course of action’. 38 Some
scholars have also expressed their support for this legal position. 39
32 W Burke-White ‘Complementarity in practice: The International Criminal Court as
part of a system of multilevel global governance in the Democratic Republic of Congo’
(2005) 18 Leiden Journal of International Law 557, 568.
33 C Jalloh ‘Regionalizing international criminal law?’ (2009) 9 International Criminal Law
Review 445, 457.
34 J Turner ‘Nationalizing international criminal law’ (2005) 41 Stanford Journal of
International Law 1.
35 M du Plessis ‘Complementarity: a working relationship between African states and the
International Criminal Court’ in M du Plessis (ed) African guide to international criminal
justice (2008) 129.
36 Art 17 Rome Statute.
37 D Robinson ‘The mysterious mysteriousness of complementarity’ (2010) 21 Criminal
Law Forum 67, 68.
38 OTP Policy paper (n 30 above) 5.
39 J Stigen The relationship between the International Criminal Court and national jurisdiction
(2008) 199; J Kleffner Complementarity in the Rome Statute and national criminal jurisdiction
(2008) 104. For a review of books on the complementarity principle, see I Stegmiller
‘Complementarity thoughts’ (2010) 21 Criminal Law Forum 159 – 174.