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

Positive complementarity and the fights against impunity in Africa 255
In Prosecutor v Dyilo, 40 the Pre-Trial Chamber of the ICC stated that
because the DRC was not acting in relation to the specific charge of
conscription of child soldiers, it was not exercising its jurisdiction for the
purpose of complementarity and therefore held the case to be admissible.
The Chamber was of the view that national proceedings must encompass
both the person and the conduct which is the subject of the case before the
court. 41 The decision and its interpretation of article 17 of the Rome
Statute, adding a third prong test of ‘inactivity’ or ‘inaction’ beyond
‘unwilling and unable genuinely’, have been criticised by scholars. 42 It has
been argued that ‘inaction, while is in itself consistent with article 17, has
led to outcomes that are inconsistent with the intention of the drafters in
adopting the complementarity mechanism: [that is], keeping the ICC as a
court of last resort while encouraging national jurisdiction to exercise their
primary duty to prosecute’. 43
These criticisms notwithstanding, the decisions of the Pre-Trial
Chambers regarding the three prong test have recently been confirmed by
the Appeals Chamber that ‘inactivity’ is a basis for the intervention of the
court in the interpretation of article 17 of the Rome Statute. The Appeals
Chamber stated that the case of Germain Katanga was admissible as
Congolese courts had not filed any charges against Katanga relating to the
Bogoro massacre of February 2003. 44
Beyond the drafting inelegance or otherwise in article 17 is the
proposition that the OTP can achieve more through the promotion of
positive complementarity. The ICC should use positive complementarity
to leverage its activities in relation to obvious shortcomings in enforcing its
mandate and managing the huge expectations to deliver justice to those
who are victims and survivors of mass atrocities. It is obvious that the ICC
as presently constituted lacks the clout, resources, and the manpower to be
the world’s international criminal law enforcer. 45 This would be done
where possible, through collaboration and effective engagement with
national governments.
40 Prosecutor v Dyilo ICC-01/04-01/06 Decision on the Prosecutor’s Application for a
Warrant of Arrest, 10 June 2006.
41 As above, paras 37 – 39.
42 W Schabas ‘Prosecutorial discretion v Judicial activism’ (2008) 6 Journal of International
Criminal Justice 731, 757; A Sheng ‘Analyzing the International Criminal Court
complementarity principle through a Federal Court lens’ (2006) Berkeley Electronic Press
http://law.bepress.com/expresso/eps/1249 (accessed 15 September 2010) 5.
43 N Jurdi ‘Some lessons on complementarity for the International Criminal Court
Review Conference (2009) 34 South African Yearbook of International Law 28, 30.
44 Prosecutor v Katanga and Chui ICC-01/04-01/07 OA 8 Judgment on the Appeal of Mr
Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the
Admissibility of the Case, 25 September 2009.
45 Burke-White (n 31 above) 53 - 54.