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

Implementation of the Rome Statute in Malawi and Zambia 285
servanda 43 – offer persuasive reasons for states to adopt laws domesticating
the Rome Statute, the obligation to adopt implementing legislation
principally stems, as earlier pointed out, from the Rome Statute itself and
there are several reasons specific to the Rome Statute that make it
imperative for state parties to domesticate the Statute. Before delving into
the factors specific to the Rome Statute that require states to adopt
implementing legislation it is important to appreciate some general points
about the domestication of the Rome Statute.
Obviously, implementation strategies will vary from one legal system
to the other. 44 The big distinction here is between dualist and monist
states, but even within dualist states, for example, different strategies may
have to be adopted. Some states may decide to merely amend their existing
legislation while others may decide to adopt new legislation altogether.
Whatever the approach adopted, two points seem to be key to a successful
implementation strategy. Firstly, successful domesticating legislation must
address all the issues regarding implementation in a manner that deals with
the individual state’s concerns. 45 This requires that a state’s implementing
legislation must attempt to reconcile or resolve all the peculiarities of its
system with the edifice created by the Rome Statute. A conscious effort
must be undertaken to resolve all the existing and potential
incompatibilities between provisions of domestic statutes and the Rome
Statute. Secondly, the provisions in the Rome Statute provide an
indication about the basic requirements that all implementing legislation
must comply with. In devising implementing legislation, therefore, a state
cannot purport to detract from the standards that are embodied in the
Statute; if anything, the state can only attempt to enhance the vibrancy of
its implementing regime in line with the ideals of the Statute. The
minimum standards that implementing legislation must comply with are
those in the Statute itself.
The supervening justification for states to domesticate the Rome
Statute emerges from the nature of the system that the Statute creates. One
immediately notes that the criminal justice system that is set up by the
Rome Statute relies heavily on national legal systems. 46 States parties
retain the primary role of investigating and prosecuting all international
43 ‘Every treaty in force is binding upon the parties to it and must be performed by them in
good faith’ - art 26 Vienna Convention on the Law of Treaties, 1969, http://
untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf (accessed
17 March 2010).
44 Among the common approaches are: the amendment of constitutions and other laws,
the adoption of new legislation, the purposive interpretation of the Constitution and
other laws – BC Olugbuo ‘Domestic implementation of the Rome Statute of the
International Criminal Court: A comparative analysis of strategies in Africa’ LLM
Dissertation, University of Pretoria, https://repository.up.ac.za/upspace/bitstream/
2263/1069/1/olugbuo_bc_1.pdf (accessed 29 March 2010).
45 Bekou & Shah (n 36 above) 506.
46
JB Terracino ‘National implementation of ICC crimes: Impact on national jurisdictions
and the ICC’ (2007) 5 Journal of International Criminal Justice 421.