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

278 Chapter 13
international criminal court, is based in The Hague and was established, as
the Preamble to the Rome Statute indicates, principally to bring an end to
impunity for the perpetrators of the most serious crimes of concern to the
international community. 4 As of 2010, 114 countries were state parties to
the Rome Statute and 31 of these states were African. 5 In light of the
preceding, it could be said that over half of the states on the African
continent have ‘endorsed’ the ICC.
A dominant theme that runs through the Rome Statute is that the ICC
is created as a court of last resort and will only act to complement domestic
jurisdictions. 6 The ICC regime was not designed to replace domestic legal
systems. 7 Basically, this means that the Court will not admit a case before
it if the matter is already under investigation or being prosecuted in a
national jurisdiction – except where the concerned state is unwilling or
unable to carry out genuine investigations or prosecutions. 8 This is known
as the complementarity principle. The complementarity principle is based
not just on the respect for the primary jurisdiction of states with regard to
international crimes but also on practical considerations of efficiency and
effectiveness. 9 It must be apparent that states will generally have the best
access to evidence, witnesses and the resources necessary for the
efficacious conduct of proceedings. 10
It must be noted that while the principle of complementarity allows the
ICC to function without unnecessarily antagonising states with respect to
the preservation of their sovereignty, it could also be, and arguably already
has been, a source of stress and strain between the ICC and state parties.
Complementarity requires that state parties properly delineate the
parameters within which the complementarity must be exercised. This also
means that apart from signing and ratifying the Rome Statute, state parties
must domestically determine the particular manner in which they would
want to give meaning to the Statute’s complementarity regime.
The discussion in this chapter focuses on two countries that are both
parties to the Rome Statute – Malawi 11 and Zambia 12 – and attempts to
4
5
6
7
As above.
See http://www.icc-cpi.int/Menus/ASP/states+parties/ (accessed 16 March 2010).
Para 10 Preamble; art 1 Rome Statute.
BC Olugbuo ‘Implementing the International Criminal Court Treaty in Africa: The
role of non-governmental organisations and government agencies in constitutional
reform’ in KM Clarke & M Goodale (eds) Mirrors of justice: Law and power in the post-cold
8
9
10
11
war era (2010) 106, 124-125.
See art 17 Rome Statute.
R Cryer et al An introduction to international criminal law and procedure (2007) 127.
As above.
Malawi signed the Rome Statute on 3 March 1999. It deposited its instrument of
ratification on 19 September 2002 – http://www.icc-cpi.int/Menus/ASP/
12
states+parties/African+States/Malawi.htm (accessed 16 March 2010).
Zambia signed the Rome Statute on 17 July 1998. It deposited its instrument of
ratification on 13 November 2002 – http://www.icc-cpi.int/Menus/ASP/
states+parties/African+States/Zambia.htm (accessed 16 March 2010).