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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.
Implementation of the Rome Statute in Malawi and Zambia 287 and fully implement the Rome Statute. 51 State parties must endeavour to provide detail and specifics to the complementarity and co-operation that underlies the entire ICC regime. This can only be achieved by means of a domesticating statute as the Rome Statute itself merely presents the broad parameters within which complementarity and co-operation must be achieved. For African countries, the domestication of the Rome Statute acquires special significance as one of the principles on which the African Union functions is the right of the Union to intervene in a member state if crimes similar to those in article 5 of the Rome Statute are being committed. 52 The commitment to act against genocide, war crimes and crimes against humanity, arguably, is thus already present among African countries. This commitment must, however, be met with consistent action by African states. In the main, domestication of the Rome Statute provides a country with the means by which it can become a part of the broader international criminal justice project and to do so in an orderly fashion. 4 Malawi and the International Criminal Court Although Malawi has been a party to the Rome Statute since 2002, very little has been done towards the domestication of the Statute. In the following section, the chapter shall chart the progress, challenges and the way forward on the question of the domestication of the Rome Statute in Malawi. This shall be done by analysing the current framework for the prosecution and punishment of international crimes in Malawi. Admittedly, there are numerous issues over which the Malawian framework for prosecuting and punishing international crimes intersects with the Rome Statute’s framework. The discussion in this section, however, focuses on the following areas, by way of illustration: sources of law and the place of international law in Malawi; official immunities; the law on extradition and surrender of suspects; and the effect of the bilateral immunity agreement with the United States of America. 4.1 Current framework for prosecuting and punishing international crimes 4.1.1 Sources of criminal law and the place of international law in Malawi The principal source of criminal law in Malawi remains the Penal Code. 53 The Penal Code is Malawi’s most comprehensive catalogue of criminal 51 F Bensouda ‘Introduction to the Rome Statute and the role of African countries in the drafting process’ Presentation at Workshop on the International Criminal Court: A Rome Statute’s implementing legislation for Malawi, 26-27 February 2010, Lilongwe, Malawi. 52 See art 4(h) Constitutive Act of the African Union -http://www.au2002.gov.za/docs/ key_oau/au_act.htm (accessed 17 March 2010). 53 Ch 7:01 Laws of Malawi.
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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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Genocide as prosecuted by the ICTR
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8 Reparations Genocide as prosecute
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234 Chapter 11 losses in excess of
Page 248 and 249: 236 Chapter 11 piracy’. 14 In add
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Page 256 and 257: 244 Chapter 11 3.3 Capacity problem
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
Page 287: Positive complementarity and the fi
Page 290 and 291: 278 Chapter 13 international crimin
Page 292 and 293: 280 Chapter 13 Africa’s involveme
Page 294 and 295: 282 Chapter 13 countries has tended
Page 296 and 297: 284 Chapter 13 passed domesticating
Page 300 and 301: 288 Chapter 13 offences. Procedural
Page 302 and 303: 290 Chapter 13 Constitution, 62 thi
Page 304 and 305: 292 Chapter 13 4.1.3 The law regula
Page 306 and 307: 294 Chapter 13 either reciprocal or
Page 308 and 309: 296 Chapter 13 committed to fightin
Page 310 and 311: 298 Chapter 13 The procedure for th
Page 312 and 313: 300 Chapter 13 trial. While the Rom
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
Page 343 and 344: Books SELECTED BIBLIOGRAPHY Allen,
Page 345 and 346: Selected bibliography 333 Neier A (
Page 347 and 348: 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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