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THE APPLICATION OF THE PRINCIPLE OF COMPLEMENTARITY BY THE INTERNATIONAL CRIMINAL COURT ON AFRICAN STATES


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CHAPTER ONE

GENERAL INTRODUCTION

  • BACKGROUND TO THE STUDY

International criminal law is a body of international rules designed to proscribe certain categories of conduct which includes; war crimes, crimes against humanity, Genocide, torture, aggression and terrorism; and to make those persons who are involved in such conducts criminally responsible[1].Under classical customary international law, the rights to exercise criminal jurisdiction lie squarely within the realms of municipal laws of states. This underscores the doctrine of sovereign independence states; states were most unwilling to surrender their sovereignty under any guise, especially in jurisdictional matters.

However, with the changing times and passage of years, it is now possible for private individuals or nationals of states accused of crimes of grave international concern to be brought to face justice under international criminal jurisdiction. The coming into force of the Rome statute OF International Criminal Court (hereinafter referred to as ‘Rome Statute’) on 1st July, 2002 is widely acknowledged to be a great milestone achievement in international criminal law and international criminal justice [2].The statute which established the international criminal court seeks to ensure that perpetrators of international crimes do not go unpunished. The establishment of the international criminal court represents a bold step by the international community to institutionalize the process of holding individuals and groups accountable for their acts or omissions which amount to international crimes and crimes against humanity[3]. The court’s mandate is to try those responsible for war crimes, genocide, crimes against humanity and crimes of aggression[4].

Interestingly, as of 1st May, 2013, there were 122 state parties to the Rome Statute; out of this number, 34 are African nations, 18 are from Asia-Pacific, while Eastern Europe, Latin America and Western Europe have 18, 27 and 25 member representations respectively. The principle of Complementarity as provided for in Article 17 of the Rome Statute, is the decisive basis of the entire international criminal court system[5].The application of this fundamental principle is to the effect that national judicial systems of state parties will have the first opportunity in respect of any investigation and prosecution of crimes that affect  their territories or nationals; it is only where national courts fail to do so, that jurisdiction reverts to the court subject to the provisions of the statute[6]. The Rome statute recognizes the primacy of national prosecutions. It thus reaffirms state sovereignty and especially the sovereign and primary right of states to exercise criminal jurisdiction.

The international criminal court in applying the principle of Complementarity seeks to fulfill two objectives; which includes:

  1. Safeguarding higher values such as the protection of human rights, an obligation that transcends state border;
  2. And accountability for those responsible for the commission of these crimes, so as to put an end to the impunity that is often associated with those violations[7].

It is trite therefore, that the court will have jurisdiction over individuals, unlike the international court of justice which is only concerned with issues of state responsibility[8]. The regime of Complementarity ensures that national criminal justice systems play the important role of doing the international criminal court’s work by providing exemplary punishment which will serve to restore the international legal order. In this respect, Anne-Marie Slaughter succinctly points out that:

One of the most powerful arguments for the international criminal court is not that it will be a global instrument of justice itself -arresting and trying tyrants and torturers worldwide; but that it will a backstop and trigger for justice and democracy [9].

However, Africa has questioned the court’s focus on the continent; there is little evidence to show that Africa has not been at the center of the international criminal court’s activities. The fact that all accused persons presently before the court are Africans has raised the speculation that the international criminal court is targeting Africans. It is observed that the greatest source of Africa’s displeasure with the International criminal court is the fact that it has used the mechanism of Complementarity to be Afro-focused.  This perception was further exacerbated with the indictment of former president Omar Hassan Ahmad Al-Bashir of Sudan.

No African head of state or warlord can hide under the façade of state sovereignty and official immunity to wish away the possibility of being prosecuted on international crimes. It has been argued that the reasons for the recent opposition in some African quarters to the operation of the complementarity principle by the international criminal court appear to reflect an outdated and defensive view of sovereignty as a trump to human rights and justice[10].

  • STATEMENT OF PROBLEM

The Rome statute enjoins the international court to limit itself to the most serious crimes of concern to the international community as a whole. The principle of Complementarity ensures that the domestic judicial system exercises jurisdiction over it’s nationals and crimes committed within the confines of its jurisdiction. The international court is not expected to supersede national courts in the prosecution of persons guilty of international crimes.

Investigations and prosecutions under the Rome statute are premised on the principle of Complementarity. This principle stipulates that the court is required to rule a case inadmissible when it is being appropriately dealt with by a national justice system. State parties to the court therefore, retain the right and responsibility to investigate and prosecute crimes committed on their territories or where their nationals stand accused of committing international crimes anywhere else in the world.

As far as the Court’s relationship with African states through the instrumentality of the principle of Complementarity is concerned, 2009 was arguably the most tumultuous in the international criminal court’s short life span. The flashpoint was the arrest warrant issued by the Court for Sudanese former president Omar Hassan Ahmad al-Bashir of charges of crimes committed during the Darfur conflict.

Hence, the following research questions have been formulated for the furtherance of this research work, they include;

  • What is the rationale for the operation of the principle of complementality in the Rome Statute?
  • What are the responsibilities of states under the complementality principle?
  • What are the reasons for Africa’s recent disapproval of the application of the principle of complementarity?
  • What is the legal basis and rational for the removal of sovereign immunity by the Rome Statute?
  • Does the principle of Complementarity apply to non-state parties?

 

  • AIM AND OBJECTIVES OF THE RESEARCH

The paramount Aim and Objectives of this research is to critically examine the likely implications of the application of the principle of Complementarity by the international criminal court on African states especially in the light of the recent indictments of the former presidents of Sudan and Kenya respectively. However, the specific objectives of this research include:

  1. To justify the application of the principle of Complementarity by the international criminal court in punishing perpetrators of international crimes.
  2. To analyze the circumstances in which sovereign immunity will not be a bar the exercise of the international court’s jurisdiction.
  3. To consider the legal basis of its application on Non-state parties.
  4. To consider the spontaneous reactions of the African continent in the application of the principle of Complementarity by the international criminal court.
  5. To make practical recommendations that will ensure the smooth application of the principle of Complementarity in the African continent.

 

  • SCOPE AND LIMITATION

This research is designed basically to examine the extent of the international criminal court’s application of the principle of Complementarity in the exercise of its criminal jurisdiction and the implications on the African member states and their consequent reactions. The foreseeable constraints to the extensive appraisal of the research topic includes; Time Factor, and the scope of this research is particularly limited to the African continent

1.5       RESEARCH METHODOLOGY

The researcher has employed predominantly the doctrinal method of research. Hence, the information used is mainly from primary and secondary sources. Therefore, references shall made to literary materials Such as, journals, textbooks, articles and other necessary printed materials and also the internet will be extensively utilized for the success of this research work

  1.6     SIGNIFICANCE OF THE RESEARCH

This research is significant as it critically analyses the principle of Complementarity under the Rome statute and also considers the reactions from the African member states as a consequence of its application on the continent. It also highlights the legal basis upon which nationals of non-state parties will be subjected to the jurisdiction of the international criminal court. It also suggests practical ways of solving the challenges confronting the smooth application of the principle of Complementarity by the international criminal court in achieving it's mandate of punishing the perpetrators of international crimes anywhere in the world.

1.7       CHAPTER SYNOPSIS

This research work seeks to critically examine the operational scope of the principle of Complementarity as a major tool of the international criminal court in achieving its international mandate of punishing the perpetrators of the grave crimes of international concern.

This research work is meticulously structured into five chapters. Chapter one, deals with the general introduction which encapsulates the Background to the research, the statement of the research problem that has been identified, the Aims and Objectives which this work is targeted to achieve, the scope and limitations, the research methodology adopted for the research and the plausible significance of the entire research work.

The chapter two of this research seeks to trace the historical background of the international criminal court, its jurisdiction and some of the salient Features that make up the international criminal court. Chapter three on the other hand, critically examines the rationality of the principle of Complementarity in the Rome statute, the responsibility of state under the principle and even its application over nationals of Non-state parties. While chapter four X-rays the implications of the principle of Complementarity on African states and even their consequent reactions; and also the challenges militating against the smooth application of the principle in achieving the mandate of the court.

And finally, chapter five, considers the summary of findings, and draws conclusion from the entire findings and then makes recommendations that will enhance the viability of the complementarity principle by the international criminal court.

 [1] C Antonio, International Criminal Law, (2nd edn New York :Oxford University Press2008),3.

[2]E R Adigbuo, ‘International Criminal Court :The Calculating Eyes of Africa’, [2013],EBSU Journal of International Law and Juridical Review,.13.

[3]N Ojukwu-ogba,‘The Implications of the Jurisdiction of the International Criminal Court on African States’, [2011],NIALS Journal of Law and Development, 97.

[4]K B Betty-murungi, ‘Implementing the International Criminal statute in Africa’ (2001) 26 International Legal Practitioners 87.

[5]J T Holmes, ‘Complementarity: National Courts versus The International Criminal Court in the Rome Statute; A Commentary ‘ 607-616.

[6]J O Adedoyin &  L A Abdulrauf, ‘Revisiting The Complementarity Regime Of The ICC:The Role Of African States And Challenges, [2015], Joseph Ayo Babalola Law Journal,.226.

[7]NIALS Journal of Law and Development (supra).

[8] M D Plessis ‘The International Criminal Court That Africa Wants’,[2010] Institute For Security Studies.

[9] See Williams W. Burke-white ‘Proactive Complementarity :The ICC and National Courts in the Rome system of International Justice,[2008] Harvard International Law Journal 49.

[10]M T Ladan ‘An Overview Of The ROME Statute Of The ICC:Jurisdiction And Complementarity Principle And Issues In Domestic Implementation In Nigeria’, Afe Babalola University Journal.

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