Prosecuting the three core crimes: Complementarity in light of Africa’s new international criminal Court.

Abstract

The principle of complementarity forms the basis upon which the International Criminal Court (ICC) exercises its jurisdiction. This principle of international law first appears in the Preamble to the Rome Statute and then the admissibility provisions under Article 17 of the Rome Statute, which outline that the Court will declare a case inadmissible where it is being investigated or prosecuted by a state which has jurisdiction over it; unless the state is unwilling or unable to genuinely carry out the investigation or prosecution. Alternatively where the case has been investigated by a state which has jurisdiction over it and the state has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the state to genuinely prosecute. This principle implies that the ICC is a court of last resort and will therefore not intervene in a case where the state of commission is either able or willing genuinely to investigate and prosecute perpetrators of grave crimes. It is common cause that Africa has been the staging area of mass atrocities for decades. The indictment of Kenyan president Uhuru Kenyatta’s’ and his deputy William Ruto, Hissene Habre case, and the indictment and issuance of an arrest warrant against the Sudanese President Omar El-Bashir are instructive in this regard. The ICC’S actions created the perception of bias, injustice and inequity. This prompted a sharp reaction from African states, which threated a mass withdrawal from the Rome Statute in 2013. The one positive spin off from the AU reaction was the expansion of the jurisdiction of the merged court to include a criminal chamber in 2014, thus creating Africa’s first international criminal court, the African Criminal Court (ACC). This development was the result of the discontent and frustration of the African continent towards the work of the ICC, which was perceived as focusing only on African cases, whilst ignoring the litany of cases coming from other regions of the world.