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

Implementation of the Rome Statute in Malawi and Zambia 293
Malawi could co-operate with the Court on requests for extradition and
surrender.
The discord between Malawi’s extradition law and its obligations
under the Rome Statute makes it imperative for the country not only to
domesticate the Statute but also to synchronise its law on extradition with
its obligations under the Statute. Such a deliberate act would harmonise
Malawi’s laws with its obligations under the Rome Statute and thus give
greater meaning to the complementarity and co-operation that underlie the
Statute. A ‘quick-fix’ solution to the problem would be to effect
amendments to the Extradition Act so that the ICC would be brought
within the aegis of the Act. However, having regard to the enormity of the
issues which the extradition arrangement with the ICC must cover it is
advisable that this issue be comprehensively addressed in domesticating
legislation. As matters stand, there is a chasm between Malawi’s
obligations under the Statute and the manner in which these ought to be
fulfilled in practice. 81 An innovative way to circumvent the problem is to
acknowledge the ‘qualitative difference’ between extradition and
‘surrender’. 82 The Rome Statute supports the concept of surrender and not
extradition. Technically, therefore, states that ‘surrender’ suspects to the
ICC may not be held to contravene their own domestic laws barring
extradition of suspects.
4.1.3 Effect of the bilateral immunity agreements with the USA
Although the United States of America (USA) signed the Rome Statute in
2000 it subsequently ‘unsigned’ the treaty. 83 This means that the USA is
not a party to the Rome Statute. In spite of this, the USA has been, since
the Rome Statute entered into force, actively courting state parties, and
even non-state parties, to the Rome Statute and negotiating bilateral
immunity agreements supposedly under the aegis of article 98 of the Rome
Statute. 84 The effect of these bilateral immunity agreements, which are
81 Complications that may arise as a result of such a gap have already been manifested in
Malawi. In 2003 Malawi arrested suspected Al Qaeda terrorists and surrendered them
to the USA without following proper procedures. The government proceeded to cooperate
with the Americans on the surrender of the suspects even though the suspects’
lawyers had applied for and been granted bail by the High Court. By the time the High
Court granted bail the suspects were already out of the country – see ‘Arrest of terror
suspects sparks religious animosity’ http://www.newsfromafrica.org/newsfromafrica/
articles/art_1036.html (accessed 29 March 2010) and ‘Malawi terror suspects in Sudan’
http://news.bbc.co.uk/2/hi/africa/3092973.stm (accessed 29 March 2010).
82 BC Olugbuo (n 19 above) 224.
83
http://www.iccnow.org/?mod=usaicc (accessed 22 March 2010).
84 For most developing countries aid incentives have been used by the USA to secure their
signatures for the bilateral immunity agreement. Strangely, the USA has threatened and
in some cases cancelled proposed aid because countries were slow to sign up to the
bilateral immunity agreements. This is strange because withholding aid actually
reduces the capacity of the concerned state to contribute in the global fight against
terror – DH Cotton & GO Odongo ‘The magnificent seven: Africa’s response to US
article 98’ (2007) 7 African Human Rights Law Journal 1 5-8.