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274 Chapter 12 that Uganda can hold the LRA accountable for crimes committed in northern Uganda. The ratification and domestic implementation of the Rome Statute and the setting up of the WCD of the High Court of Uganda should be seen as part of fulfilling Uganda’s mandate under the complementarity principle and should be supported by the international community. Under positive complementarity, the OTP can help the WCD by sharing evidence it has on the LRA to help in prosecuting members of the LRA. The court may also adopt a hybrid model of adjudication where its judges and prosecutors collaborate with those at the national level in the adjudication of international crimes. 172 It is further suggested that the WCD should have international judges who should not necessarily be ICC judges. Judges of the WCD can also benefit from the experiences of the ICC as visiting professionals at the seat of the court in The Hague. 173 The Ugandan criminal justice system should make provisions for victims’ participation in its proceedings and accord them the same rights as provided under the Rome Statute. The Registrar of the ICC could be supportive in this regard by offering expertise on the experiences of the ICC in relation to the protection of witnesses and their participation in proceedings before the ICC. 174 4 Conclusion The ICC and African states need to do more to reassure each other that they are willing and able to work together to end impunity in Africa. The ICC cannot on its own ensure that those who are responsible for international crimes are held accountable. African leaders should know that an era of impunity without accountability is fast becoming a thing of the past. 175 Both the ICC and AU member states would gain form an effective international criminal justice system and national judicial systems capable of holding persons accountable for mass atrocities. 176 172 Turner (n 34 above) 2. 173 The ICC currently offers visiting professional placements to persons who have extensive academic and/or professional expertise in an area of work relevant to or related to the Court. See ‘Visiting Professional Placements’ http://www.icc-cpi.int/ Menus/ICC/Recruitment/Internships+and+Visiting+professionals/ The+Internships+and+Visiting+Professionals+Programme.htm (accessed 11 August 2010). 174 S Arbia ‘The Three Year Plans and Strategies of the Registry in respect of complementarity for an effective Rome statute system of international criminal justice’ prepared for the Consultative Conference on International Criminal Justice, 9 – 11 September 2009, UN Headquarters, New York, http:// www.internationalcriminaljustice.net/experience/papers/session2.pdf (accessed 12 August 2010). 175 O Oko ‘The challenges of international criminal prosecutions in Africa’ (2007-2008) 31 Fordham International Law Journal 343, 412. 176 Jalloh (n 33 above) 445, 452.
Positive complementarity and the fights against impunity in Africa 275 The 31 African states that have signed and ratified the Rome Statute did not do so under duress or compulsion but under what could be seen as a genuine effort to tackle human rights atrocities endemic in Africa. The current allegations by African leaders that the ICC prosecutions would destabilise the continent is one that needs to be discussed on its merits. In proposing positive complementarity in the fight against impunity, it should be noted that the principle of complementarity applies even when the case is before the ICC. There is no difference whether the case before the ICC is by self referral, proprio motu or through Security Council referral. 177 The OTP and states could therefore learn from each other in relation to mutual cooperation and assistance. The OTP should maximise the positive complementarity regime offered by both the Rome Statute and Resolution 1593 to co-operate with the AUHIP in its activities in Darfur. Likewise, developments in the DRC and Uganda offer synergies of cooperation that can be maximised by the OTP to ensure that states hold their nationals accountable. According to Judge Sang-Hyun Song, President of the ICC, 178 in a national setting, effective positive complementarity requires both a good legal framework and necessary capacity in terms of skills and resources for investigations, prosecutions and trials ... [t]he ICC itself is of course glad to support the strengthening of national capacity by acting as a catalyst and a facilitator where possible. Through positive complementarity, the OTP will be seen as having a broader role of ending impunity by encouraging national jurisdictions to undertake their own investigations and prosecutions of international crimes. 179 Encouraging states to undertake prosecutions at the national level should not be seen as the only goal or success of positive complementarity. Rather, it should be used primarily by the OTP as a policy tool to maximise the impact of the ICC and this remains subject to the overarching imperative of effective and expeditious justice. 180 177 R Cryer ‘Sudan, Resolution 1593, and international criminal justice’ (2006) 19 Leiden Journal of International Law 195, 220. 178 ICC ‘Keynote remarks by Judge Sang-Hyung Song, President of the International Criminal Court at the ICTJ retreat on complementarity’ Greentree Estate, New York, 28 October 2010, http://www.icc-cpi.int/NR/rdonlyres/01E1CD2E-8B10-4E67- 83E3-011C499B49B9/282629/101028PresidentSong.pdf (accessed 10 November 2010). 179 Burke-White (n 48 above) 59, 61. 180 Stahn (n 47 above) 87, 109.
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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
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Prosecuting international crimes by
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CHAPTER 10 1 Introduction GENOCIDE
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Page 258 and 259: 246 Chapter 11 support us. They did
Page 261 and 262: CHAPTER 12 Benson 1 Introduction PO
Page 263 and 264: Positive complementarity and the fi
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Page 290 and 291: 278 Chapter 13 international crimin
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Page 304 and 305: 292 Chapter 13 4.1.3 The law regula
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Page 308 and 309: 296 Chapter 13 committed to fightin
Page 310 and 311: 298 Chapter 13 The procedure for th
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Page 314 and 315: 302 Chapter 13 Having draft legisla
Page 317 and 318: CHAPTER 14 Lee 1 Introduction IMPLE
Page 319 and 320: Implementation of the Rome Statute
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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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