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

286 Chapter 13
crimes within their jurisdiction and the presence of national laws that are
adequate both in substance and procedure is crucial to a functional
international criminal justice system. To properly achieve this, it is argued,
states need to domesticate the Rome Statute. 47 The complementarity that
informs almost every aspect of the Court’s work cannot be properly
achieved if state parties do not domesticate the Rome Statute.
The necessity of domestication can be fully appreciated by analysing a
few issues that may arise in the interaction between a state party and the
Court. Firstly, since the Court is designed as a court of last resort, most
prosecutions must, ideally, still take place in the domestic legal system.
The Court, however, only assumes relevance with respect to the crimes
listed in article 5 of the Rome Statute and generally only with regard to
those that bear the greatest responsibility for the commission of the crimes
in issue. This means that the domestic jurisdiction must inevitably deal
with all the other perpetrators of crimes whose involvement in the criminal
enterprise is not very grave. The domestic jurisdiction, however, cannot
properly deal with the matter unless its legal system either already contains
definitions about the crimes in article 5 of the Statute or where it has
incorporated these offences into its domestic law. Secondly, to apprehend
persons for the commission of the offences under the Rome Statute, the
offences themselves must be fully recognised in the particular country.
Needless to repeat that the Court does not possess a police force and will
inevitably rely on its members to effect the arrests; however, these arrests
can only be achieved if the offences are recognised in the laws of the state
party. 48 Thirdly, and related to the second reason, the entire co-operation
regime that the Court so desperately needs to succeed will be emptied of
meaning if state parties do not proceed to domesticate the Statute. This is
because the domestic framework for co-operation with the ICC in the
various states, though building on the provisions in the Statute, must,
principally, be constructed by domestic legislation.
In spite of the legal obligations that ratification of a treaty connotes, 49
domestication is critical for complementarity and co-operation between
the Court and the state party concerned. 50 To achieve meaningful
cooperation under the Statute state parties must, necessarily, domesticate
47 As above, 422.
48 This is also true of the regime for the enforcement and execution of the Court’s
judgments under Part X of the Statute. The success of the entire regime is dependent on
state co-operation and state co-operation will be enhanced with domestication of the
Rome Statute.
49 Under art 18 of the Vienna Convention on the Law of Treaties a state must refrain from
acts that may defeat the object and purpose of the treaty where it has expressed its
consent to be bound by the treaty.
50 See especially arts 86 & 88 Rome Statute.