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

Implementation of the Rome Statute in Malawi and Zambia 283
3 Is there need for the domestication of the Rome
Statute?
Clearly, the crimes that the Rome Statute deals with can be dealt with in
any country, irrespective of either the nationality of the perpetrator or
where they were committed, under the principle of universal jurisdiction. 31
The framework created by the Rome Statute envisages that state parties
will, in the due course of events, domesticate the Statute. 32 The principle
of complementarity, which is one of the principles on which the Court’s
regime is founded, highlights the need for state parties to adopt measures
for the domestication of the Statute. At the core of the complementarity
principle is the requirement that state parties must, wherever possible, be
allowed to deal with all the international crimes within their domestic legal
systems. 33 Where the state is unable to deal with the offences within the
domestic legal system it must have in place mechanisms and processes that
would allow for the arrest and surrender of those suspected of having
committed international crimes to the Court. 34 The Court does not,
therefore, in any way attempt to usurp the jurisdiction of domestic courts
but merely aims to complement them and remains a court of last resort.
Domestication, evidently, is an obligation that all state parties assume
upon ratifying the Rome Statute. 35
While African states have been at the forefront in ratifying the Rome
Statute, the progress on domestic implementation of the Statute has been
rather slow. 36 The result is that while Africa has the highest number of
ratifications of the Rome Statue per continent, it also has the least
implementing legislation in place. 37 Concededly, draft implementing
legislation exists in several African countries but only a few countries have
31 The principle of universal jurisdiction allows a municipal court to exercise jurisdiction
over an international crime irrespective of the place where the crime was committed or
the nationality of the perpetrator. The national court thus acts as the agent of the
international community in the prosecution of an enemy of all mankind in whose
punishment all states have an equal interest – Attorney General of the Government of Israel v
Eichmann 36 ILR 277 298-304. True universal jurisdiction, however, applies only in the
case of crimes under customary international law i.e. piracy, slave-trading, war crimes,
crimes against humanity, genocide and torture – J Dugard International law: A South
African perspective (2005)156-157.
32 This understanding clearly informs the entire cooperation regime that the Statute
establishes under its Chapter IX.
33 R Cryer et al (n 9 above) 127-128.
34 M du Plessis & J Ford ‘Overview of the general nature of Rome Statute implementation
obligations’ in M du Plessis & J Ford (eds) Unable or unwilling: Case studies on domestic
implementation of the ICC Statute in selected African countries (2008) ISS Monograph Series
141 11.
35 Murungi argues that the obligations that state parties assume under the Rome Statute
necessarily require that they adopt implementing legislation in order to fulfil the
obligations – BK Murungi (n 2 above) 137.
36 O Bekou & S Shah ‘Realising the potential of the International Criminal Court: The
African experience’ (2006) Human Rights Law Review 499 501.
37 BC Olugbuo (n 7 above) 127.