Pull and Push'- Implementing the Complementarity Principle of the Rome Statute of the ICC within the AU: Opportunities and Challenges

Brooklyn Journal of International Law

Volume 43

Issue 2 Article 10

6-1-2018

Pull and Push'- Implementing the

Complementarity Principle of the Rome Statute of

the ICC within the AU: Opportunities and

Challenges

Sascha Dominik Dov Bachmann

Eda Luke Nwibo

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Recommended Citation

Sascha Dominik D. Bachmann & Eda L. Nwibo, Pull and Push'- Implementing the Complementarity Principle of the Rome Statute of the

ICC within the AU: Opportunities and Challenges, 43 Brook. J. Int'l L. 457 (2018).

Available at: h@ps://brooklynworks.brooklaw.edu/bjil/vol43/iss2/10

PULL AND PUSH—IMPLEM ENTING

THE COMPLEMENTARITY PRINCIPLE

OF THE ROME STATUTE OF THE ICC

WITHIN THE AFRICAN UNION:

OPPORTUNITIES AND CHALLENGES

Sascha Dominik Dov Bachmann

& Eda Luke Nwibo

INTRODUCTION ........................................................................ 459

I. THE ROME STATUTE’S COMPLEMENTARITY PRINCIPLE UNDER

ARTICLE 17 AND THE RELATIONSHIP BETWEEN INTERNATIONAL

CRIMINAL JUSTICE AND NATIONAL LEGAL ORDERS................ 467

A. The Relationship Between International and National

Systems of Criminal Justice and the ICC .......................... 468

B. The Rationale Behind Primacy and Complementarity

Regimes ............................................................................... 472

1. The Primacy Relationship of the ICTY and the ICTR 475

2. The Complementarity Relationship of the ICC .......... 477

C. Models of Complementarity............................................ 478

1. Passive Complementarity ........................................... 479

2. Positive Complementarity........................................... 480

3. Proactive Complementarity ........................................ 482

* State Exam (Ludwig Ma ximillians Universität, Germany), Ass. Juris,

Rechtsanwalt, (Barrister/Solicitor), Landgericht München I, High Court Mu-

nich, Germany, LLM (Stell, RSA), LLD (UJ, RSA) Attorney (Munich High

Court), Associate Professor in Law (Bournemouth University, UK), Associate

Professor in War Studies (Swedish Defence University Stockholm) and Profes-

sorial Research Fellow (CEMIS, Faculty of Military Science, Stellenbosch Uni-

versity).

‡ L.L.B (Ebonyi State University, Nigeria), B.L (Nigerian Law School, La-

gos), L.L.M (Bournemouth University, United Kingdom), Barrister and Solici-

tor of the Supreme Court of Nigeria, PhD Candidate, Bournemouth University

UK. The authors would like to thank the editors of the Brooklyn Journal of

International Law, particularly Ms. Jessica Martin and Michelle Lee for their

painstaking editing of this article. Any shortcomings in the article are all ours.

458 BROOK. J. INT’L L. [Vol. 43:2

D. Complementarity, Jurisdiction, and Admissibility Issues

Under Article 17 of the Statute: Analysis of its Elements and

Components......................................................................... 484

1. The Unwillingness Test............................................... 486

2. The Inability and Unavailability Test ................... ..... 487

3. The Sufficient Gravity Threshold Test ....................... 489

E. Interpretation of the Complementarity Principle ........... 490

F. Shortcomings of the Complementarity Regime .............. 493

II. NATIONAL IMPLEMENTATION OF THE COMPLEMENTARITY

REGIME WITHIN THE AFRICAN NATIONAL LEGAL ORDERS:

OPPORTUNITIES AND CHALLENGES......................................... 495

A. E;amining States’ Obligation to Implement the Rome

Statute................................................................................. 496

B. Legislative Steps Towards Implementation: The Need for

African States to Implement the Rome Statute Through the

Enactment of Complementarity Legislation....................... 502

1. The Minimalist Approach............................................ 504

2. The Express and Specific Criminalization Approach. 507

C. Challenges African States Face Implementing the Rome

Statute’s Complementarity Regime .................................... 510

D. The Pull and Push of Acceptance of International

Criminal Justice in Africa: Is States’ Mere Compliance with

International Legal Norms Enough Indication of Acceptance?

.................................................................................. ........... 514

III. THE AU VERSUS THE ICC: GROWING TENSION AND THE

FUTURE OF INTERNATIONAL CRIMINAL JUSTICE IN AFRICA ... 516

A. Addressing First Things First—The Politics of

International Criminal Justice........................................... 517

B. Africa’s Contributions to the ICC ................................... 523

C. Growing Tension between the AU and ICC: Analyzing the

Pull Factors and Prospects of Resolving the Impasse ........ 524

D. African vs. International Criminal Justice: The

Establishment of an Africa n Regional Criminal Court with

2018] The AU and the Complementarity Principle 459

Regional Complementarity Jurisdiction as a Challenge to the

ICC in Africa....................................................................... 531

E. The Future of International Criminal Justice and the ICC

in Africa .............................................................................. 533

IV. RECOMMENDATIONS .......................................................... 534

A. Policy-Oriented Approach to Implementation................ 535

B. Purposive Judicial Method of Interpreting the

Complementarity Regime.................................................... 538

C. Domestic Capacity Building and Institutional

Preparedness..................................................... ................. . 539

D. Legislative and Technical Assistance ........................... . 540

E. Improving Relations Between the AU and the ICC ....... 541

CONCLUSION ........................................................................ ... 541

INTRODUCTION

Je inte'nationaH Qomm&nith’s 'esoH%e to l'inL to I&stiQe tJe

perpetrators of serious international crimes, core crimes

respectively, climaxed in the creation of the International Crim-

inal Court (ICC)

in 2002. The WCC’s establishment brought to

conclusion a legal journey which had begun some eighty years

prior.

It started with the failed attempt to try German war crim-

inals before allied tribunals after World War I, which was re-

placed by a domestic judicial approach, whereas Germany was

1. The ICC was established under the Rome Statute of the International

C'iminaH Co&'t f7WCC 8tat&te 5d^ 9ome 8tat&te oM tJe Wnte'nationaH C'iminaH

Court, July 17, 1998, 2187 U.N.T.S. 3 [hereinafter Rome Statute].

2. Sascha Bachmann, Today’s )uest for International Criminal Justice—A

Short Overview of the Present State Of Criminal Prosecution of International

Crimes, in INTERNATIONAL LAW AND ARMED CONFLICT 289N90 (N. Quénivet &

S. Shah-Davis eds., 2010); ANTONIO CASSESE, INTERNATIONAL CRIMINAL LAW

317N30 (2008); Steven Ratner & Jason S. Abrams, ACCOUNTABILITY FOR

HUMAN RIGHTS ATROCITIES IN INTERNATIONAL LAW-BEYOND THE NUREMBERG

LEGACY 48N 49 (2001). Further information is found in the German fifteenth

century war trial, as described by Georg Schwarzenberger. See Georg

Schwarzenberger, The Problem of an International Criminal Law, 3 CURRENT

LEGAL PROBS. 263 (1950).

460 BROOK. J. INT’L L. [Vol. 43:2

responsible under the Treaty of Versailles

to try a number of its

alleged war criminals before the German Reichsgericht, located

in Leipzig.

This early attempt to establish criminal responsibil-

ity regained momentum when the allied victors established the

two ad hoc Nuremberg

and Tokyo Tribunals

post World War

II. In the early 1990s, more than fifty years after Nuremberg,

the creation of the International Criminal Tribunal for the For-

mer Yugoslavia (ICTY)

and the International Criminal Tribu-

nal for Rwanda (ICTR)

gave new impetus to the creation of an

effective system of international criminal justice. This process

was accompanied by the rather rapid development of interna-

tional criminal law (ICL)

since 1993. The notion of international

criminal responsibility had become a recognized international

law concept, as evident in the works of five ad hoc international

investigation commissions,

four ad hoc international criminal

3. Treaty of Peace with Germany (Treaty of Versailles) arts. 228 N 30, June

28, 1919, 225 Consol. T.S. 188 [hereinafter Treaty of Versailles].

4. CLAUDE MULLINS, THE LEIPZIG TRIAL S 6N7, 9 (1921).

5. See Nuremberg Trials, HISTORY, http://www.history.com/topics/world-

war-ii/nuremberg-trials (last visited June 27, 2017); The Nuremberg Trials,

U.S. HOLOCAUST MEMORIAL M USEUM, https://www.ushmm.org/outreach/en/ar-

ticle.php?ModuleId=10007722 (last visited June 27, 2017); see also Richard

Overy, Nuremberg: Nazis On Trial, World BBC, www.bbc.co.uk/his-

tory/worldwars/wwtwo/nuremberg_article_01.shtml (last visited June 27,

2017).

6. See International Military Tribunal for the Far East, Jan. 19, 1946,

T.I.A.S. No. 1586.

7. The ICTY was formally established by the U.N. Security Council in

1993. See S.C. Res. 827 (May 25, 1993).

8. The ICTR was formally established by the U.N. Security Council in

1994. See S.C. Res. 955 (Nov. 8, 1994).

9. See, e.g., Convention on the Prevention and Punishment of the Crime of

Genocide art. 6, 78 UNTS 277 [hereinafter Genocide Convention]; Convention

Against Torture and Other Crue l, Inhuman or Degrading Treatment or Pun-

ishment, Dec. 10, 1984, 1465 U.N.T.S. 85 [hereinafter UN Torture Conven-

tion].

10. The five ad hoc international investigation commissions are: The 1919

Commission on the Responsibilities of the Authors of War and on Enforcement

of Penalties (1919 Commission); The 1943 United Nations War Crimes Com-

mission (1943 UNWCC); The 1946 Far Eastern Commission (FEC); The 1992

Commission of Experts Established Pursuant to Security Council Resolution

780 (1992) to Investigate War Crimes and other Violations of International

Humanitarian Law in the Former Yu goslavia (1992 Yugoslavia Commission of

Experts); and the 1994 Independent Commission of Experts Established Pur-

suant to Security Co uncil Resolution 935 (1994) to Investigate Grave Viola-

tions of International Humanitarian Law in the Territo ry of Rwanda (1994

2018] The AU and the Complementarity Principle 461

tribunals,

and three internationally mandated national prose-

cutions,

all arising out of the horrors of World War I and II

respectively.

It seemed as if the international community had come to rec-

oLnige tJat s&QJ Qo'e Q'imesb jJiQJ 7Oee*Hh sJoQk tJe QonsQienQe

of humanity,5

7'e%eaH tJe %anith oM man anO jiQkeOness oM tJe

J&man Jea'tb5

anO 7tJ'eaten tJe *eaQe anO seQ&'ith oM tJe

jo'HOb5

had to be prevented by means of criminal prosecution.

And yet, such crimes continued to be committed with impunity,

as aptly highlighted by Kofi Anan, then U.N. Secretary General,

who summarized this failure of the international community to

act when stating:

For ne arly half a ce ntury—almost as long as the United Na-

tions has been in existence—the General Assembly has recog-

nized the need to establish such a court to prosecute and pun-

ish persons responsible for crimes such as genocide. Many

thought, no doubt, that the ho rrors of the Seco nd World War—

the camps, the crue lty, the exterminations, the Holocaust—

could ne ve r happen again. And ye t they have —in Cambodia, in

Rwanda Commission of Experts) and Commission on the Truth established

under the peace agreements between the government of El Salvador and the

Frente Farabundo Marti para la Liberacion Nacional (FMLN). See generally

M. Che rif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The

Need to Establish a Permanent International Criminal Court, 10 HARV. HUM.

RTS. J. 11 (1997).

11. The four-ad hoc international criminal tribunals are: The 1945 Interna-

tional Military Tribunal to Prosecute the Major War Criminals of the European

Theater (IMT); the 1946 International Military Tribunal to Prosecute the Ma-

jor War Criminals of the Far East (IMTFE); ICTY of 1993; and ICTR of 1994.

Cf. Bassiouni, supra note 10.

12. The three internationally mandated national prosecutions are: 1921N

1923 Prosecutions by the German Supreme Court Pursuant to Allied Requests

Based on the Treaty of Versailles (Leipzig Trials); 1946N1955 Prosecutions by

the Four Major Allies in the European Theater Pursuant to Control Council

Law No. 10 (CCL 10); and 1946N1951 Military Prosecutions by Allied Powers

in the Far East Pursuant to Directives of the FEC. Cf. Bassiouni, supra note

10.

13. See generally Bassiouni, supra no te 10, at 11.

14. See TRIAL OF THE MAJ OR WAR CRIMINALS BEFORE THE INTERNATIONAL

MILITARY TRIBUNAL: VOLUME II, INT’L MIL. TRIBUNAL 100 (1945)

www.loc.gov/rr/frd/Military_Law/pdf/NT_Vol-II.pdf [hereinafter Jackson

Opening Statement].

15. OSITA NNAMANI OGBU, HUMAN RIGHTS LAW AND PRACTICE IN NIGERIA: AN

INTRODUCTION 35 (1999).

16. Rome Statute, supra note 1, pmbl.

462 BROOK. J. INT’L L. [Vol. 43:2

Bosnia and Herze govina, in Rwanda. Our time—this decade

even—Jas sJoj n &s tJat man’s Qa*aQith Mo' e%iH knojs no Him`

its. Genocide—the destruction of an entire people on the basis

of ethnic or national origins—is now a word of our time, too, a

heinous reality that calls for a historic response.

6J&sb J&manith’s Jisto'h anO 'eQo'O oM s&QJ at' o Qities JiLJ`

lights the need to establish a permanent international criminal

court

for the prosecution of perpetrators of such core crimes as

the crimes of the most serious concern.

In response, the ICC

was established in 2002 under the Rome Statute, with jurisdic-

tion over the crimes of genocide, crimes against humanity, war

crimes, and crimes of aggression.

These are all considered the

so called core crimes.

They also constitute a violation of jus co-

gens

norms of international law, giving rise to so called erga

omnes (State) responsibility to either prosecute or extradite.

17. Kofi Annan, Former Secretary General of the UN, Address to the Inter-

national Bar Association in New Yo rk, Press Release SG/SM/ 625712 (June

1997), https://www.un.org/press/en/1997/19970612.sgsm6257.html.

18. Bassiouni, supra note 10.

19. See David Scheffer & Ashley Cox, The Constitutionality of the Rome

Statute of the International Criminal Court, 98 J. CRIM. L. & CRIMINOLOGY 983

(2008).

20. See Rome Statute, supra note 1, art. 5(1)(a)N5(1)(d); see also Leena

Grover, LCIL Friday Lecture: Interpreting Crimes in the Rome Statute of the

International Criminal Court, LAUTERPACHT CENTRE INT’L LAW (Ma y 8, 2015),

http://www.lcil.cam.ac.uk/events/lcil-friday-lecture-interpreting-crimes-rome-

statute-international-criminal-court-dr-leena-gr (lecture summary); LEENA

GROVER, INTERPRETING CRIMES IN THE ROME STATUTE OF THE INTERNATIONAL

CRIMINAL COURT (2014). Cf. Wnt’H Taj Comm’n, Report on the Work of its Fifty-

Third Session, Commentaries to the Draft Articles on Responsibility of States

for Internationally Wrongful Acts, Supplement No. 10 A/56/10, at 245 (2001).

21. John F. Murphy, Civil Liability for the Commission of International

Crimes as an Alternative to Criminal Prosecution, 12 HARV. HUM. RTS. J. 1, 6,

9 (1999).

22. See, e.g., M. Cherif Bassiouni, International Crimes: Jus Cogens and Ob-

ligatio Erga Omnes, 59 LAW & CONTEMP. PROBS. 63 (1996); Murphy, supra note

21; MALCOLM N. SHAW, INTERNATIONAL LAW 611 (8th ed. 2017). For examples

oM inOi%iO&aH Q'imesb see Wnt’H Taj Comm’nb r'aMt CoOe oM C'imes ALainst tJe

Peace and Security of Mankind, UN Doc. A/CN.4/L.532, corr. 1, corr. 3 (1996);

U.N. WAR CRIMES COMM’ N, LAW REPORTS OF TRIALS OF WAR CRIMINALS, VOLUME

X: THE I.G. FARBE N AND KRUPP TRIALS 130N59 (1948); see also Regina v. Bow

Street Metrop. Stipendiary Magistrate, ex parte Pinochet Ugart (No. 3) [1999]

2 ALL ER 97, 109 (defining the jus cogens nature of torture).

23. 3A&t Oe Oe'e a&t I&OiQa'eb’ estalHisJinL I&'isOiQtion &nOe' tJe &ni%e'saH

jurisdiction model; see, e.g., SHAW, supra note 22, at 612.

2018] The AU and the Complementarity Principle 463

6Je nej WCC is a Qo&'t tJat 7Qom*Hements anO s&**Hements5

national jurisdictions when prosecuting international crimes.

This means that unlike the ICTY, the ICTR, and other mixed

internationalized criminal Tribunals, the ICC wields no primary

jurisdiction over national courts.

Instead, States are vested

with the primary responsibility, or right, to prosecute such

crimes. The ICC can only assume jurisdiction if national systems

a'e 7&njiHHinL o' genuinely unable to carry out the investigation

o' *'oseQ&tion^5

Despite this, and against all initial expecta-

tionsb tJe WCC’s Qom*Hementa'ith I&'isOiQtion Jas leen MaQeO

24. S.E Mark, LCIL Friday Lecture: Balancing the Principl e of Complemen-

tarity between International and Domestic War Crimes Tribunal, LAUTERP ACHT

CENTRE INT’L LAW (May 8, 2015), http://www.lcil.cam.ac.uk/events/balancing-

principle-complementarity-between-international-and-domestic-war-crimes-

tribunals-d (lecture summary).

25. Enrique C. Rojo, The Role of Fair Trial Considerations in the Comple-

mentarity Regime of the International Criminal Court: From ‘No Peace without

Justice’ to ‘No Peace with &ictor’s Justice’!, 18 LEIDEN J. INT’L L. 829, 832N 33

(2005).

26. See Bachmann, supra note 2, at 306; Rome Statute, supra note 1, pmbl,

art. 17; see also JUSTICE FOR CRIMES AGAINST HUMANITY 413 (Mark Lattimer &

Philippe Sands eds., 2003).

27. Rome Statute, supra note 1, art. 17.

464 BROOK. J. INT’L L. [Vol. 43:2

with numerous legal,

political,

and institutional

problems.

Wn aOOitionb anO 7Oes*ite tJe manh enQo&'aLinL Oe%eHo*mentsb

in terms of implementation of the institution-building process,

the Court is facing many challenges to its jurisdiction linked to

28. ;ne eiam*He oM tJe HeLaH *'olHems is tJe 7same *e'son same QonO&Qt5

test, which has been applied in many cases by the ICC to reject State objections

to admissibility of cases before the ICC. See Charles Chernor Jolloh, Kenya v.

The ICC Prosecutor, 53 HARV. J. I NT’L L. 27 2 (2012); Rod Rastan, What is ‘Sub-

stantially the Same Conduct’!: (npacking the ICC’s ‘First Limb’ Complemen-

tarity Jurisprudence, 15 J. INT’L CRIM. JUST. 1, 1 (2017). See, e.g., Prosecutor v.

Katanga, ICC-01/04-01/07-1497, Decision of the Trial Chamber II on the Ad-

missibility of the Case, ¶¶ 81N82 (June 12, 2009); Prosecutor v. Ahmad Mu-

hammad Harun and Ali Muhammad Ali Abd-Al-Rahman, ICC-02/05-01/07-1-

Corr, Decision on the Prosecution Application under Article 58(7) of the Stat-

ute, ¶ 24 (Apr. 27, 2007); Prosecutor v. Mathieu Ngudjolo Chui, Decision on the

Evidence and Information Provided by the Prosecution for the Issuance of a

Warrant of Arrest for Mathieu Ngudjolo Chui, ICC-01/04-01/07-262, ¶ 21 (July

6, 2007); Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision on the Prose-

Q&tion’s A**HiQation Mo' a Wa''ant oM A''est ALainst ;ma' Xassan AJmaO AH

Bashir, ICC-02/05-01/09-2-Conf, ¶ 50 (Mar. 4, 2009) (public redacted version

in ICC-02/05-01/09-3); Prosecutor v. Kony et al., ICC-02/04-01/05-377, Decision

on the Admissibility of the Case under Article 19(1) of the Statute, ¶ 50 (Mar.

10, 2009); Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey & Joshua

Arap Sang, Decision on the Application by the Government of Kenya Challeng-

ing the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute,

ICC-01/09-01/11-101, ¶ 54 (May 30, 2011); Prosecutor v. Francis Kirimi

Muthaura, Uhuru Muigai Kenyatta & Mohammed Hussein Ali, Decision on

the Application by the Government of Kenya Challenging the Admissibility of

the Case Pursuant to Article 19(2)(b) of the Statute, ICC-01/09-02/11-96, ¶ 48

(May 30, 2011); Prosecutor v. Jean-Pierre Bemba Gombo, Decision on the Pros-

eQ&to'’s A**HiQation Mo' a Wa''ant oM A''est aLainst Vean-Pierre Bemba

Gombo, ICC-01/05-01/08-14, ¶ 16 (June 10, 2008).

29. A clear example of political challenges is the decision of the United

States to pull out of the ICC, expressing its unwillingness to surrender its na-

tionals to the ICC, as well as the bl atant refusal of Russia, China, and India to

join the ICC. See David Turns, Aspects of National Implementation of the Rome

Statute: The United Kingdom and Selected Other States, cited in THE

PERMANENT INTERNATIONAL CRIMINAL COURT: LEGAL AND POLICY ISSUES 337N38

(Dominic McGoldrick et al. eds., 2004); David Scheffer, The United States and

the International Criminal Court, 93 AM. J. INT’L L. 12 (1999); Michael Newton,

Should the United States Join the International Criminal Co urt?, 9 UC DAVIS

JIL & POL’Y 35 (2002); Mark S. Ellis, The International Criminal Court and Its

Implication for Domestic Law and National Capacity Building, 15 FLA. J. INT’L

L. 215, 224N25 (2003); Antonio Cassese, Is the ICC Still Having Teething Prob-

lems?, 4 J. INT’L CRIM. JUST 434, 436 (2006); Antonio Cassese, The International

Criminal Court Five Years On, in THE EMERGING PRACTICE OF THE

INTERNATIONAL CRIMINAL COURT 21N30 (Carsten Stahn & Goran Sluiter eds.,

2009).

2018] The AU and the Complementarity Principle 465

the application of the principles of universality, complementa-

'ithb Qoo*e'ationb as jeHH as eMMeQti%eness anO eMMiQienQh^5

Sub-

sequent years of preliminary inquiries into the potential war

crimes and crimes against humanity committed in Africa

seem

to have led to stiff opposition from African political elites accus-

ing the ICC of bias by selectively prosecuting Africans. Two ICC

cases highlight this situation, namely Al-!aJi'’s Qase in 8&Oan

anO Uenhatta’s Qase in Uenha^

This opposition culminated in

the African Union (AU) passing a resolution in 2017, calling on

all African States to stop cooperating with the ICC and to even

withdraw from it.

Opponents and critics fear that such steps

30. For example, institutional capacity to implement complementarity var-

ies from State to State, depending on local circumstances. The role of civil so-

ciety and the ICC in overcoming these institutional challenges in the context

of rule of law strengthening in Kenya has already been discussed extensively

in an article by Christine Bjork and Juanita Goebertus. See Christine Bjork &

Juanita Goebertus Complementarity in Action: The Role of Civil Society and

the ICC in the Rule of Law Strengthening in Kenya, 14 YALE HUM. RTS. & DEV.

L.J. 205 (2011).

31. Olympia Bekou, LCIL Friday Lecture: The ICC at 15: Prospects and

Challenges, LAUTERPACHT CENTRE INT’L LAW (Feb. 10, 2017),

http://www.lcil.cam.ac.uk/events/lcil-friday-lecture-icc-15-prospects-and-chal-

lenges-professor-olympia-bekou (lecture summary).

32. See ICC-OTP, Report on Preliminary Examination Activities 2015, ¶¶

195N214. See also ICC-OTP Report on Preliminary Examination Activities

2016, Nov. 14, 2016; ICC-OTP, Situation in Nigeria, art. 5, ¶ 12 8 (Aug. 5, 2013).

33. See generally Prosecutor v. Omar Hassan Ahmad Al-Bashir, Case No.

ICC-02/05-01/09, Warrant of Arrest (July 14, 2008); see also UN: Demand Al-

Bashir’s Surrender to the International Criminal Court, AMNESTY INT’L (Sept.

20, 2013), www.amnesty.org/en/news/un-demand-al-bashir-s-surrender-inter-

national-criminal-court-2013-09-20. The ICC had issued two arrest warrants

against President Omar Al-Bashir of Sudan in 2009 and 2010, but the Al-

Bashir Administration has rejected ICC jurisdiction over Darfur, calling it a

violation of its sovereignty and an instrument of Western pressure for regime

change. See Alexis Arieff et al., International Criminal Court Cas es in Africa:

Status and Po licy Issues, 11 CONGRESSIONAL RES. S ERV. (2010).

34. See Prosecutor v. Uhuru Muigai Kenyatta, Case No. ICC-01/09-02/11,

Withdrawal of Charges (Mar. 13, 2015); Prosecutor v. William Samoei Ruto

and Joshua Arap Sang, Case No. ICC-01/09-01/11, Termination of the Case

(Apr. 5, 2016). President Uhuru Kenyatta and Vice President William Ruto,

both of Kenya, are standing trial before the ICC for their alleged roles in the

2007 post-election violence in Kenya. Th e charges against Kenyatta, however,

have since been dropped by the ICC, while those against Ruto have not. See

ICC Drops Uhuru Kenyatta Charges for Kenya Ethnic Violence, BBC NEWS

(Dec. 5, 2014), http://www.bbc.co.uk/news/world-africa-30347019.

35. On February 1, 2017, the AU issued a resolution, based on a decision

made the day before, encouraging member nations to withdraw from the ICC.

466 BROOK. J. INT’L L. [Vol. 43:2

will lead to more human rights violations and atrocities commit-

ted in African States. The AU is calling for the domestic prose-

cution of international crimes

without interference by the ICC,

thus highlighting the often inadequate implementation of the

complementarity regime, both in principle and in actual appli-

cation.

The AU is currently taking steps to establish a regional

criminal court,

which could altogether keep the ICC out of Af-

rica.

Its opposition is as much a political problem as it is a legal

See African Union Backs Mass Withdrawal From ICC, BBC NEWS (Feb. 1,

2017), http://www.bbc.com/news/world-africa-38826073; see also Gwenyth

Gamble Jarvi, African Union Leaders Back Leaving ICC, J URIST (Feb. 1, 2017,

3:10 PM), http://www.jurist.org/paperchase/2017/02/african-union-leaders-

back-leaving-icc.php. The AU Resolution is non-binding, and Nigeria and Sen-

egal have stated that they oppose withdrawal from the ICC. See Constance

Johnson African Union: Resolution Urges States to Leave ICC, LIBRARY OF

CONGRESS (Feb. 10, 2017), http://www.loc.gov/law/foreign-news/article/african-

union-resolution-urges-states-to-leave-icc/. African voices are, however, quite

divided on whether or not African countries should keep fate with the ICC,

Oes*ite tJe A4’s 9esoH&tion &'LinL mass jitJO'ajaH^ Zo' eiam*Heb 7RiLe'ia is

not the only voice agitating against withdrawal; Senegal in fact is strongly

speaking against it; Cape Verde, and other countries a'e aHso aLainst it^5 [Hise

Keppler, A(’s ‘ICC Withdrawal Strategy’ Less than 1eets the Eye, HUM. RTS.

WATCH (Feb. 1, 2017), https://www.hrw.org/news/2017/02/01/aus-icc-with-

drawal-strategy-less-meets-eye. Gambia and Burundi have already withdrawn

from the ICC, but Gambia is now planning to rejoin. See Mark Kersten, What

the ICC Can Do to Improve Its Relationship with African States, JUST.

CONFLICT (Nov. 1, 2016), https://justiceinconflict.org/2016/11/01/what-the-icc-

can-do-to-improve-its-relationship-with-african-states/; Kaddijatou Jawo,

3Gambia to Return to ICC, Commonwealth, Says Barrow, POINT (Feb. 8, 2017),

http://thepoint.gm/africa/gambia/article/gambia-to-return-to-icc-common-

wealth-says-barrow^ 8o&tJ AM'iQa’s 'eQent attem*t to jitJO'aj M'om tJe WCCb

without approval from its Parliament, was held 7unconstitutional and invalid5

lh tJe Qo&nt'h’s XiLJ Co&'t^ See No rimitsu Onishi, South Africa Reverses

Withdrawal from International Criminal Court, N.Y. TIMES (Mar. 8, 2017), at

A9.

36. The AU reportedly supports a strategy of regionalization of interna-

tional law, under which there would be a special African war crimes court. See

Aaron Maasho, African Leaders Cautiously Back Strategy to Quit Global Court,

REUTERS AFR. (Feb. 1, 2017, 6:55 AM), https://af.reuters.com/arti-

cle/topNews/idAFKBN15G49S.

37. Rastan , supra note 28, at 1.

38. Firew Kebede Tiba, Regional International Criminal Courts: An Idea

Whose Time Has Come?, 17 CARDOZO J. CONFLICT. RESOL. 521, 521N22 (2016).

39. Adam Branch, LCIL Friday Lecture: After the ICC: The Politics and Pos-

sibilities of an African Criminal Court, LAUTERPACHT CENTRE INT’L LAW (Nov.

4, 2016), http://www.lcil.cam.ac.uk/events/lcil-friday-lecture-after-icc-politics-

and-possibilities-african-criminal-court-dr-adam-branc (lecture summary).

2018] The AU and the Complementarity Principle 467

one.

These problems are the backdrop to this article, which

aims to critic ally analyze the relationship between national and

international systems of criminal justice, as well as how the

9ome 8tat&te’s complementarity principle regulates the rela-

tionship between the ICC and national legal orders. Part I of this

article will seek to explain the relationship between national and

international criminal justice and how the 9ome 8tat&te’s com-

plementarity principle regulates the correlation between the

ICC and national legal orders. Part II will reflect on the overall

success of ICC justice beinL 7aQQe*teO5 anO]o' 'eIeQteO in an A4

context and will ascertain if mere compliance with international

legal norms by African States can be validly rated as an indica-

tion of acceptance. Part III will highlight some of the obligations

and challenges facing domestic implementation of the Rome

8tat&te’s Qom*Hementa'ith 'eLime jitJin AM'iQa’s nationaH HeLaH

orders. Finally, Part IV will provide concluding observations and

recommendations.

I. THE ROME STATUTE’S COMPLEMENTARITY PRINCIPLE UNDER

ARTICLE 17 AND THE RELATIONSHIP BETWEEN INTERNATIONAL

CRIMINAL JUSTICE AND NATIONAL LEGAL ORDERS

Article 17 of the Rome Statute enunciates substantive rules

that constitute the complementarity regime, which in turn de-

fines the relationship between the ICC and national jurisdic-

tions. In defining this relationship, the ICC honors the authority

of States to conduct their own trials with respect to the prosecu-

tion oM tJe 9ome 8tat&te’s Qo'e Q'imesb jitJ tJe inte'nationaH

community expected to provide all the necessary financial, tech-

nical, and professional resources to support any States wanting

resources in this regard. States must, on their own initiative,

ensure that their judicial systems and trial procedures comply

with the existing international standards of criminal procedure.

This Part of the article will discuss the nature of the WCC’s com-

plementarity relationship with national jurisdictions from the

perspective of international law. It will also discuss the rationale

of the (primary) jurisdiction of the two international tribunals—

the ICTY and the ICTR—in 'eHation to tJe WCC’s Qom*Hementa`

rity relationship, while considering emerging models of comple-

mentarity. In addition, it will reflect on the questions of jurisdic-

tion and admissibility of cases before the ICC, as well as the

40. Id.

468 BROOK. J. INT’L L. [Vol. 43:2

methods of interpreting the elements or thresholds of comple-

mentarity as a trigger to admissibility. Finally, it will highlight

some noticeable statutory and policy shortcomings of the princi-

ple.

A. The Relationship Between International and National

Systems of Criminal Justice and the ICC

The interplay between international and national criminal

justice in international law can offer opportunities for mutual

improvement and legal reflection. The international law ap-

proach is explored to scrutinize the relationship between inter-

national and national criminal justice, originating from the

wider general interface between national and international

law.

8&QJ 7inte'MaQes a'e tJe *oints jJe'e tJe aQto'sb no'ms

and procedures belonging to respective legal orders connect and

inte'aQt jitJ one anotJe'^5

International law prescribes stand-

ards that regulate different subject matters, such as human

rights, health and environmental protection, financial markets,

trade and investments, and the internet,

which are also regu-

lated by domestic laws. In broad terms, the interfaces between

the national and international legal rules can be appraised from

three different perspectives. The first perspective requires un-

derstanding how rule of law at the national level recognizes, re-

ceives, and resists the international rule of law.

The second re-

41. See Anne-Marie Slaughter & William Burke-White, The Future of Inter-

national Law is Domestic (or, The European Way of Law), 47 HARV. INT’L. J.

327 (2006).

42. Machiko Kanetake, The Interfaces between the National and Interna-

tional Rule of Law, 1N27 (Amsterdam Law School Research Paper No. 2014N

27, 2014).

43. On international law regulation of human rights, health, and environ-

mental protection, see, e.g., Dinah Shelton Human Rights, Health & Environ-

mental Protection: Linkages in Law & Practice (Health and Human Rights

Working Paper Series No. 1, 3, 2002). On regulation of the financial markets,

see Christian Tietje & Matthias Lehmann The Role and Prospects of Interna-

tional Law in Financial Regulation and Supervision, 13 JIEL 663N82 (2010).

On regulation of trade and investment, see Markus Wagner Regulatory Space

in International Trade Law and International Investment Law, 36 U. PA. J.

INT’L L. 4N87 (2014). On regulation of the internet, see Antonio Segura-Serrano

Internet Regulation and the Role of International Law, MAX PLANCK UNYB 10

(2006); Molly Land, Toward an International Law of the Internet, 54 HARV.

INT’L. L. J. 394N458 (2013).

44. Kanetake, supra note 42.

2018] The AU and the Complementarity Principle 469

quires examining how rule of law at the international level rec-

ognizes, receives, and resists the national rule of law.

The third

requires assessing how the correlation between them can be

comprehended and assessed from external perspectives.

While

legal scholarship has made giant strides in carrying out studies

on the domestic reception of international law,

there are fewer

studies on how the international rule of law recognizes, receives,

or resists the domestic legal rules.

Among the few present stud-

ies a'e q&%aH 8Janh’s tjo looks

on the jurisdictional relation-

ship between domestic and international courts, which empha-

size that both domestic and international courts circumvent or

resolve conflicts arising from a jurisdiction by highlighting the

dualism foundation between judicial decisions nationally and in-

ternationally. While the domestic and international legal sys-

tems are both crucial constituents of global governance, the over-

lap between them often gives rise to conflict in its relationship.

This overlap generated a series of avoidances and conflicts in the

interpretation of relevant domestic laws and the 1963 Vienna

Convention on Consular Relations in Breard v. Greene,

where

the U.S. Supreme Court held that the Vienna Convention did

not QHea'Hh 7*'o%iOe a M o'eiLn nation jitJ a *'i%ate 'iLJt oM aQtion

in 48 Qo&'ts^5

This interpretation was scrutinized by the In-

ternational Court of Justice (ICJ) in the cases of LaGrand

and

Avena,

as well as by the Inter-American Court of Human

45. Id.

46. Id.

47. See, e.g., David Sloss, Treaty Enforcement in Domestic Courts: A Com-

parative Analysis, in THE ROLE OF DOMESTIC COURTS IN TREATY E NFORCEMENT:

A COMPARATIVE STU DY 1 (David Sloss ed. 2009); see also David Sloss, Domestic

Application of Treaties, in THE OXFORD GUIDE TO TREATIES 367 (Duncan B. Hol-

lis ed. 2012); INTERNATIONAL LAW AND DOMESTIC LEGAL SYSTEMS:

INCORPORATION, TRANSFORMATION, AND PERSUASION (Dinah Shelton ed. 2011).

48. Mo re research in this area is highly recommended.

49. See generally YUVAL SHANY, REGULATING JURISDICTIONAL RELATIONS

BETWEEN NATIO NAL AND INTERNATIO NAL COURTS (2007); YUVAL S HANY, THE

COMPETING JURISDICTIONS OF INTERNATIONAL COURTS AND TRIBUNALS (2003).

50. See Breard v. Greene, 523 U.S. 371 (1998).

51. Id.

52. See LaGrand (Ger. v. U.S.), Judgment, 2001 I.C.J. Rep. 466 (June 27).

53. See Avena and Other Mexican Nationals (Mex. v. U.S.), Judgment, 2004

I.C.J. Rep. 12 (Mar. 31).

470 BROOK. J. INT’L L. [Vol. 43:2

Rights,

which created further domestic avoidance in Medellín

v. Texas

and Sanchez-Llamas v. Oregon.

A'L&alHhb OomestiQ Qo&'ts’ OhnamiQ a**HiQation oM inte'na`

tional law is a signal to 7inte'nationaH Qo&'ts tJat tJe nationaH

courts are no longer passive recipients of the decisions of the in-

te'nationaH Qo&'ts l&t 'atJe' e(&aH *a'tne's^5

This is a direct

response to the serious need for positioning the domestic legal

orders, not only as the scene for implementation,

but as the

7aLent Mo' tJe Q'itiQaH 'e%ision oM tJe inte'nationaH '&He oM Haj5

anO oM tJe 7&ni%e'saHith oM *oHiQies leJinO it^5

This revision,

however, has the capacity to create tension and conflict, espe-

cially in the context of the relationship between international

criminal justice under the auspices of the ICC and national legal

orders. This is the point where the 9ome 8tat&te’s complemen-

tarity principle comes in to regulate the relationship. It does so

with different approaches through defined rules of competence

over specific cases.

54. See The Right to Information on Consular Assistance in the Framework

of the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99, In-

ter-Am. Ct. H.R. (ser. A) No. 16 (Oct. 1, 1999).

55. See Medellín v. Texas, 552 U.S. 491 (2 008); see also Avena and Other

Mexican Nationals (Mex. v. U.S.), Request for Interpretation of the Judgment,

2009 I.C.J. Rep 3 (Mar. 31).

56. See Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006).

57. Eyal Benvenisti & George W. Downs, National Courts, Domestic Democ-

racy, and the Evolution of International Law, 20 EUR. J. INT’L L. 59, 59N68

(2009).

58. See Report of the Secretary-General, Delivering Justice: Programme of

Action to Strengthen the Rule of Law at the National and International Levels,

UN Doc. A/66/749 (Mar. 16, 2012).

59. Benvenisti & Downs, supra note 57, at 68.

60. See Mattias Kumm, International Law in National Courts: The Interna-

tional Rule of Law and the Limits of the Internationalist Model, 44 VA. J. INT’L

L. G= fE\\Dd# Vean r’As*'emontb The Systematic Integration of International

Law by Domestic Courts: Domestic Judges as Architects of the Consistency of

the International Legal Order, in THE PRACTICE OF INTERNATIONAL AND

NATIONAL COURTS AND THE (DE-)FRAGMENTATION OF INTERNATIONAL LAW 141

(2012); Armin von Bogdandy & Ingo Venzke, In Whose Name? An Investigation

of International Courts’ Public Authority and Its Aemocratic Justification, 23

EUR. J. INT’L L. 7 (2012).

61. Olympia Bekou, International Criminal Justice at the Interface: The Re-

lationship Between International Criminal Courts and National Legal Orders

1N6 (Oct. 2004) (unpublished Ph.D. thesis), http://eprints.notting-

ham.ac.uk/13411/1/416308.pdf.

2018] The AU and the Complementarity Principle 471

First, it cross-fertilizes the norms of both systems of justice

through the mutual exchange of ideas and working patterns, es-

pecially in the area of capacity building, which ensures that the

ICC and the international community give struggling States

technical and legislative support to meet their prosecutorial

needs. Second, it endows the national systems with primacy over

the ICC, in which control of criminal prosecutions is left with

national jurisdiction,

jJiQJ st'ikes a 7OeHiQate laHanQe letjeen

the competing interests of State sovereignty and judicial inde-

*enOenQe^5

6Je 'ationaHe Mo' tJis 3Q om*'omise’ is to *'ese'%e

8tates’ sovereignty and primary jurisdiction, while at the same

time aQknojHeOLinL tJe WCC’s Qom*Hementa'ith I&'isOiQtion as

an exception. This ensures the transformation or adaptation of

both systems, with a view towards creating flexible unity that is

able to address common problems and find widely acceptable so-

lutions.

Sost im* o'tantHhb tJe 74R Yene'aH AssemlHh 'esoH&`

tions have given recognition to the rule of law at both the na-

tionaH anO inte'nationaH He%eHsb5

with literature being replete

with scholarly debates

on how a mutual relationship between

national and intern ational criminal justice could be achieved.

62. JANN KLEFFNER, COMP LEMENTARITY IN THE ROME STATUTE AND NATIONAL

CRIMINAL JURISDICTIONS 99N162, 309N10 (2009); see also William Burke-White,

Proactive Complementarity: The International Criminal Court and National

Courts in the Rome System of International Justice, 49 HARV. INT’L L.J. 53

(2008).

63. See Morten Bergsmo et al., Complementarity After Kampala: Capacity

Building and the ICC’s Legal Tools, 2 GOET TI NGEN J. INT’L L. 794N95 (2010);

see also M. Bachrach, The Ro me Statute Ex plained, 12 INT’L L. PRACTICUM 1,

37, 40 (1999); Jelena Pejic, Creating a Permanent International Criminal

Court: The Obstacles to Independence and Effectiveness, 29 COLUM. HUM. RTS .

L. REV. 291, 309N11 (1998).

64. Bekou, supra note 61, at 2N6.

65. See, e.g., G.A. Res. 60/1, ¶ 134, 2005 World Summit Outcome (Oct. 24,

2005). In 2006, the General Assembly adopted a 'esoH&tion entitHeO 36Je 9&He

oM Taj at tJe RationaH anO Wnte'nationaH Te%eHs^’ See U.N. Doc. A/RES/61/39

(Dec. 18, 2006).

66. See, e.g., Darryl Robinson, Three Theories of Complementarity: Charge,

Sentence or Process?, 53 HARV. INT’L L.J. 165 (2012); Chandra Lekha Sriram &

Stephen Brown, Kenya in the Shadow of the ICC: Complementarity, Gravity

and Impact, 12 INT’L CRIM. L. REV. 219 (2012); THE INTERNATIONAL CRIMINAL

COURT AN D COMPLEMENTARITY: FROM THEORY TO PRACTICE, VOLUME 1 (Carsten

Stahn & Mohamed M. El Ziedy eds., 2011).

67. Luis Moreno-Ocampo, A Positive Approach to Complementarity: The Im-

pact of the Office of the Prosecutor, in THE INTERNATIONAL CRIMINAL COURT AND

COMPLEMENTARITY: FROM THEORY TO PRACTICE VOLUME 1, 21 (2011); Solomon

472 BROOK. J. INT’L L. [Vol. 43:2

This article contends that the 9ome 8tat&te’s principle of com-

plementarity conceives this relationship as one of complementa-

rity and interdependence, which presupposes that policy and/or

decision makers, at the national level, need to fully cooperate

with the ICC and the international community to end the egre-

gious perpetration of core crimes.

B. The Rationale Behind Primacy and Complementarity

Regimes

The various international criminal courts and/or tribunals,

most notably the ICC,

the ICTY,

and the ICTR,

as well as

other internationalized national courts/hybrid tribunals,

such

as the Special Court for Sierra Leone (SCSL),

the Extraordi-

nary Chambers in the Courts of Cambodia (ECCC),

the Iraqi

Ebobrah, Towards a Positive Application of Complementarity in the African

Human Rights System: Issues of Functions and Relations, 22 EUR. J. INT’L L.

663 (2011); Darryl Robinson, The Mysterious Mysteriousness of Complementa-

rity, 21 CRIM. L. REV. 67 (2010); William Schabas, Complementarity in Practice:

Some Uncomplementary Thoughts, 19 CRIM. L. REV. 5 (2008).

68. See Rome Statute, supra note 1.

69. See Statute of the International Criminal Tribunal for the Former Yu-

goslavia, S.C. Res. 827 (May 25, 1993) [hereinafter ICTY Statute]; see also U.N.

Secretary-General, Report of the Secretary-General Pursuant to Paragraph 2

of Security Council Resolution 808, U.N. Doc. S/25704 (May 3, 1993).

70. Statute of the International Criminal Tribunal for Rwanda, S.C. Res.

955 (Nov. 8, 1994) [hereinafter ICTR Statute].

71. 6Jese nationaH Qo&'ts a'e OesQ'ileO as 7internationalized national

courts5 because even though their subject-matter jurisdictions remain national

in character; their origins, outlooks, constitutions, and regulations wear inter-

national physiognomy and reference materials used during their proceedings,

which reflects the highest international standards of criminal procedure. See,

e.g., Report of the UN Secretary-General on the Establishment of the STL,

U.N. Doc. S/2006/893, ¶ 7 (Nov. 15, 2006) (noting that the rules of procedure

and evidence to be used in the STL (a good example of internationalized na-

tional tribunal) are to be inspired, in part, by reference materials reflecting the

highest standards of international criminal procedure).

72. See Statute of the Special Court for Sierra Leone, Jan. 16, 20 02, 2178

U.N.T.S. 145.

73. The ECCC was established in 2003 through the Bilateral Agree-

ment/Treaty between the General Assembly and Government of Cambodia and

endorsed by Security Council Resolution 57/228 on December 18, 2002. See

Agreement between the United Nations and the Royal Government of Cambo-

dia Concerning the Prosecution under Cambodian law of Crimes Committed

During the Period of Democratic Kampuchea (ECCC Agreement) (June 6,

2003), https://www.eccc.gov.kh/sites/default/files/legal-documents /Agree-

ment_between_UN_and_RGC.pdf. Commonly known as Cambodia Tribunal or

2018] The AU and the Complementarity Principle 473

High Tribunal (IHT),

the War Crimes Chamber of the Courts

of Bosnia and Herzegovina (WCC),

and the Special Tribunal

for Lebanon (STL),

have essentially different approaches re-

garding their relationship with domestic legal orders. Different,

but cogent and compelling reasons underscore each approach

aOo*teO lh tJe 'es*eQti%e Qo&'tsb Li%en tJe 7OiMMe'ent Qonteits in

which the courts were created, the different methods by which

tJeh je'e Q'eateOb anO tJe OiMMe'ent *&'*oses tJeh se'%e^5

From whichever angle the relationship is viewed, it can either

be primary or complementary in character. The primacy regime

essentially creates a hierarchy of jurisdiction, in which national

Khmer Rouge Tribunal, the ECCC was established to try the mo st senior re-

sponsible members of the Khmer Rouge regime for alleged violations of Cam-

bodian Penal Law, International Humanitarian Law and Customs arising from

war crimes, crime s against humanity, and genocide perpetrated during the pe-

riod of Democratic Kampuchea between April 17, 1975 and January 6, 1979,

which led to the death of more than 1.7 million people in three years, eight

months and twenty days. See Helen Jarvis, Trials and Tribulations: The Long

Quest for Justice for the Cambodian Genocide, in THE EXTRAORDINARY

CHAMBERS IN THE COURTS OF CAMBODIA: ASSESSING THEIR CONTRIBUTION TO

INTERNATIONAL CRIMINAL LAW (INTERNATIONAL CRIMINAL JUSTICE SERIES) 6, 14

(Simon M. Meisenberg & Ignaz Stegmiller eds. 2016).

74. The WX6b mo'e aQQ&'ateHh QaHHeO 78&*'eme W'a(i C'iminaH 6'il&naHb5

was established by Supreme Iraqi Criminal Tribunal Law Number 10 of 2005,

pursuant to Iraqi National Assembly approval, in accordance with Article

33(A) and (B), and Article 30 of the Law of Administration for the State of Iraq

for the Transitional Period. It was established to prosecute Saddam Hussein

and the leaders of his Ba’athist party regime for war crimes, crimes against

humanity, genocide, and other crimes committed in the territory of Iraq be-

tween 1968 and 2003. See Michael P. Scharf & Ahran Kang, Errors and Mis-

steps: Key Lessons the Iraqi Special Tribunal Can Learn from the ICTY, ICTR,

and SCSL, 38 CORNELL INT’L L.J. 911, 911N12 (2005).

75. The WCC of the Court of Bosnia-Herzegovina was established in 2005

to prosecute war crimes, crimes against humanity, and genocide perpetrated

during the conflict in Bosnia-Herzegovina in the early 1990s. It was estab-

HisJeO in QonI&nQtion jitJ tJe t'iaHs at tJe WC6q anO in !osnia’s Hoje' entith-

level courts. See ENCYCLOPEDIA OF TRANSITIONAL JUSTICE, VOLUME 3, 484N88

(Lavinia Stan & Nadya Nedelsky eds. 2012).

76. See Statute of the Special Tribunal for Lebanon, U.N. Doc. S/RES/1757

(May 30, 2007).

77. Jennifer Trahan, Is Complementarity the Right Approach for the Inter-

national Criminal Court’s Crime of Aggression: Co nsidering the Problem of

‘Over:ealous’ National Court Prosecutions, 45 CORNELL INT’L L. J. 573 (2012).

474 BROOK. J. INT’L L. [Vol. 43:2

jurisdictions retain the right to investigate and prosecute perpe-

trators of crimes,

but which nevertheless still preserves the in-

trinsic supremacy of the internationally constituted tribunals.

The rationale for according international courts primacy over

national courts is to ensure that the different courts do not exer-

cise concurrent jurisdiction over the same subject matter.

Pri-

macy in this context may be viewed in three ways. First, it may

be doctrinal primacy, whose theoretical underpinnings are

founded on the demand for justice at the international level, and

7Qonstit&te tJe Mi'st ste* towards implementation of interna-

tionaH I&OiQiaH Qom*etenQe^5

Second, it may be operational pri-

macy (deferral),

under which an international tribunal may, at

any stage of national cr iminal proceedings, order national courts

to defer to its competence and release a suspect to its custody for

trial, a practice which builds on the ICL principle of non bis in

idem.

Third, it may be pragmatic primacy, which, as an oppo-

site of the operational primacy, requires a doctrinal shift from

deferral to the internationaH t'il&naHs’ I&'isOiQtion to referral

78. COMPLEMENTARITY OF THE INTERNATIONAL CRIMINAL COURT: FROM

THEORY TO PRACTICE VOL UMES I & II 71N141 (Carsten Stahn & Mohammed El

Zeidy eds., 2011).

79. Mi chael A. Newton, Comparative Co mplementarity: Domestic Jurisdic-

tion Consistent with the Rome Statute of the International Criminal Court, 16

MIL. L. REV. 20, 42 (2001); see also John Holmes, The Principle of Complemen-

tarity, in THE INTERNATIONAL CRIMINAL COURT: THE MAKING OF THE ROME

STATUTE, ISSUES, NEGOTIATIONS AND RESULTS 41, 41N42 (1999).

80. Bartram S. Brown, Primacy or Complementarity: Reconciling the Juris-

diction of National Courts and International Criminal Tribunals, 23 YALE. J.

INT’L L. 383, 387 (1998).

81. :'oseQ&to' %^ 6aOi$b Case Ro^ W6-94-1-1, Separate Opinion of Judge

8iOJja on tJe reMense Sotion Mo' Wnte'HoQ&to'h A**eaH on V&'isOiQtion fWnt’H

Crim. Trib. for the Former Yugoslavia Oct. 2, 1995).

82. Bekou, supra note 61, at 38; see also W nt’H 6'il&naH Mo' tJe :'oseQ^ ;M

:e'sons 9es*onsilHe Mo' tJe 8e'io&s 1ioHations oM Wnt’H X&manita'ian T^ Com`

mitted in the Territory of the Former Yugoslavia Since 1991, Rules of Proce-

dure and Evidence, U.N. Doc. IT/32/Rev.50, r. 9(i), 9(ii), 9(iii), 10(a)N10(c) (July

8, 2015), http://www.icty.org/x/file/Legal%20Library/Rules_procedure_evi-

dence/IT032Rev50_en.pdf.

83. Non bis in idem derives from the Roman law maxim nemo bis vexari pro

una et eadam causa (a man shall not be twice vexed or tried for the same

cause). See Gerard Conway, Ne Bis in Idem in International Law, 3 INT’L CRIM.

L. REV. 217, 217 (2003).

84. See Rome Statute, supra note 1, art. 13(b) (providing that where a State

not party to the Rome Statute does not accept the WCC’s jurisdiction, the United

Nations Security Council may refer a situation to the ICC for investigation).

2018] The AU and the Complementarity Principle 475

of cases to national courts. Likewise, the complementarity re-

gime defines the relationship between the ICC and national

courts,

while also determining the judicial forum that should

have jurisdiction in any given case.

The overarching rationale of the complementarity principle is

that it protects the sovereignty of State Pa rties vi s a vis—both

the ICC and third States alike.

Under general international

law, States have territorial criminal jurisdiction over acts com-

mitted within their territory.

Such jurisdiction constitutes a

central aspect of State sovereignty itself,

highlighting the im-

portant role of national criminal jurisdictions as resembling the

7laQklone Mo' enMo'Qement oM inte'nationaH Q' iminaH Haj^5

1. The Primacy Relationship of the ICTY and the ICTR

Unlike the ICC, the ICTY

and the ICTR

did not promote

complementarity for a couple of reasons. Both tribunals were

created by binding U.N. Security Council resolutions as a re-

For example, the United Nations Security Council, for the first time, acted un-

der Chapter VII of the U.N. Charter 1945 to refer the situation in Darfur, Su-

dan to the ICC. See S.C. Res. 15 93 (2005). Again, in Resolution 1970 (2011),

the United Nations Security Council referred the situation in Libya to the ICC

for investigation of the crimes committed in the State. See generally Report of

the International Commission of Inquiry on Darfur to the UN Secretary-Gen-

eral pursuant to Security Council Resolution 1564 of 18 September 2004 (Jan.

25, 2005), ¶ 73.

85. See Linda E. Carter, The Future of the International Criminal Court:

Complementarity as Strength or a Weakness?, 2 WASH. U. GLOBAL STUD. L. REV.

451, 451N52 (2013).

86. See Markus Benzi ng, The Complementarity Regime of the International

Criminal Court: International Criminal Justice Between State Sovereignty and

the Fight Against Impunity, 7 MAX PLANCK UNYB 595 (2003) (citing R.E Fife,

The International Criminal Court—Whence It Came, Where It Goes, 69 NORD.

J. INT’L L. 63, 72 (2000).

87. See Article 3 of the Draft Co nvention on Jurisdiction with Respect to

Crime (annexed to 29 AM. J. INT’L L. 439N42 Supplement: Research in Interna-

tional Law (1935)).

88. See IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 289, 303

(5th ed. 1998).

89. ROBERT CRYER ET AL., AN INTRODUCTION TO INTERNATIONAL CRIMINAL

LAW AND PROCEDURE 88 (3d ed. 2014).

90. See ICTY Statute, supra note 69, art. 9 (giving the ICTY primacy over

national courts).

91. See ICTR Statute, supra note 70, art. 8 (giving the ICTR primacy over

national courts).

476 BROOK. J. INT’L L. [Vol. 43:2

sponse to situations deemed a threat to peace and security, in-

stead of by an international treaty requiring state accession. The

U.N. Security Council, acting under Chapter VII of the U.N.

Charter to maintain international peace and security,

estab-

lished the ICTY, addressing the reality that the newly created

States of the former Yugoslavia would not agree on the estab-

lishment of such a tribunal through multilateral treaty. There

was also the concern that such a treaty would take too long to

take effect, which was unacceptable given the extraordinary con-

flict prevalent in Yugoslavia at that time.

ICTY primacy also

ensured that national courts would not be able to defer prosecu-

tions at any stage of the proceedings.

Granting the ICTY pri-

macy was by all indications very reasonable, given the context

and situation under which the Tribunal was created. It occurred

O&'inL 7a'meO QonMHiQt in jJiQJ OiMMe'ent etJniQ L'o&*s je'e *it`

ted against each other including the Croats, Serbs, and Bosnian

Muslims, with the Serb and Kosovar-Albanian conflict erupting

in G===^5

Under these situations of ethnic hostilities, there

were no guarantees that national courts would not, on the basis

of ethnic bias,

conduct sham or façade prosecutions by shield-

ing key perpetrators from justice.

Similar considerations can

be applied for the creation of the ICTR as the judicial twin of the

ICTY. The existing distrust and disruption in the Balkans and

Rwanda created the same reality, where the judicial systems in

both countries at that time were incapable of conducting any

92. See U.N. Charter, ch. VII.

93. Bartram S. Brown, Primacy or Complementarity: Reconciling the Juris-

diction of National Courts and International Criminal Tribunals, 23 YALE J.

INT’L L. 383, 387 (1998)

94. Mi chael A. Newton, Comparative Co mplementarity: Domestic Jurisdic-

tion Consistent with the Rome Statute of the International Criminal Court, 167

MIL. L. REV. 20, 42 (2001); see also U.N. Secretary-General, Report of the Sec-

retary-General Pursuant to Paragraph 2 of Security Council Re solution 808,

U.N. Doc. S/25704, 64N65 (May 3, 1993).

95. GARY JONATHAN BASS, STAY THE HAND OF VENGEANCE: THE POLITICS OF

WAR CRIMES TRIBUNALS 206N75 (2002); see also DAVID SCHEFFER, ALL THE

MISSING SOULS: A PERSONAL HISTORY OF THE WAR CRIMES TRIBUNALS (2012)

(chronicling the history of the creation of the ICTY and ICTR).

96. See Jennifer Trahan & Bogdan Ivanisevic, Justice at Risk: War Crimes

Trials in Croatia, Bosnia and Herzegovina, and Serbia and Montenegro, HUM.

RTS. WATCH (2004), http://www.hrw.org/reports/2004/10/13/justice-risk.

97. Mo hamed M. El Zeidy, From Primacy to Complementarity and Back-

wards: (Re)-Visiting Rule 11 Bis of the Ad Hoc Tribunals, 57 INT’L & COMP. L.Q.

403, 403N406 (2008).

2018] The AU and the Complementarity Principle 477

genuine prosecutions.

In Rwanda specifically, there were un-

'esoH%eO QonQe'ns tJat tJe Qo&nt'h’s OeQimateO I&OiQia'h jo&HO

be unable to prosecute the key perpetrators of the horrendous

Rwandan genocide.

It seems as if primacy is unarguably a

product of its time. It represents a conscious and deliberate

choice by the U.N. Security Council to deal with a particular sit-

uation, such as in Yugoslavia and Rwanda. It was also thought

to be the only way that international criminal justice could be

met at the time,

100

prior to the existence of a permanent inter-

national criminal court.

2. The WCC’s Complementarity Relationship

The Rome Statute, in contrast to the ICTY and ICTR Statutes,

created a complementarity regime,

101

whereby national courts

conduct, investigate, and prosecute crimes to the exclusion of the

WCC’s I&'isOiQtionb eiQe*t anO in tJe e%ent tJatb tJe nationaH a&`

thorities are unwilling or genuinely unable to investigate or

prosecute crimes.

102

Thus, instead of replacing the ICTY and the

ICTR, the ICC complements and supplements national jurisdic-

tion, only acting when national authorities fail to take necessary

steps.

103

The rationale is that complementarity is designed to en-

courage national authorities to exercise jurisdiction to prosecute

ICC crimes.

104

It is a way of restoring trust in national institu-

tions.

105

Importantly, the proximity of national courts to the

scene of the crimes, as well as the availability of witnesses to be

called during trial, are also vital factors taken into consideration

when granting national courts primary jurisdiction to prosecute

98. Bekou, supra note 61, at 28N29.

99. Zo' tJe me aninL oM 3&nalHeb’ see Ue%in Von XeHHe'b A Sentence-Based

Theory of Complementarity, 53 HARV. INT’L L.J. 202, 208N209 (2011).

100. Bekou, supra note 61, at 30.

101. Markus Benzing, The Complementarity Regime of the International

Criminal Court: International Criminal Justice Between State Sovereignty and

the Fight Against Impunity, 7 MAX PLANCK Y.B. U.N. L. 591N92 (2003).

102. See Rome Statute, supra note 1, art. 17(1) (making provisions on condi-

tions oM 7aOmissiliHith5 oM Qases leMo'e tJe WCCd^

103. Id. at 592.

104. Id. at 596.

105. See Paul Seils, Handbook on Complementarity: An Introduction to the

Role of National Co urts and the ICC in Prosecuting International Crimes, INT’L

CENTER TRANS. JUST. 8 (2016), https://www.ictj.org/sites/de-

fault/files/ICTJ_Handbook_ICC_Co mplementarity_2016.pdf.

478 BROOK. J. INT’L L. [Vol. 43:2

international crimes. Ideally, the ICC cannot, in terms of capac-

ity and practicalities, prosecute all of the gravest and most egre-

gious crimes of genocide, war crimes, crimes against humanity,

and the post Kampala crime of aggression

106

without assistance

from national authorities. Again, complementarity serves to em-

loHOen tJe inte'nationaH Qomm&nith’s eMMo'ts toja'Os *'oseQ&`

tion of international crimes to deter future perpetrations of

atrocities.

107

Thus, by creating ICC complementarity jurisdic-

tion, a delicate balance is struck between the demands of State

so%e'eiLnth anO tJe inte'nationaH Qomm&nith’s olHiLation to eM`

fectively prevent grave international crimes and end impunity

of the most serious nature.

108

C. Models of Complementarity

Historically, different models of complementarity, dating back

to the Versailles peace treaty of World War I, the unconditional

surrender of Nazi Germany in 1945, and the charters of the Nu-

remberg and Tokyo Tribunals, emerged with the passage of

time. They have been adequately captured in literature. El

Zeidy,

109

in his seminal work, notes that complementarity is not

a novel idea, identifying four models of complementarity.

110

The

first model, referred to as optional complementarity, developed

from the enunciations of the League of Nations Convention

1937,

111

the London International Assembly 1941,

112

the U.N.

106. Sascha-Dominik Bachmann & Gerhard Kemp, Aggression as “Organi:ed

3ypocrisy!”—How the War on Terrorism and Hybrid Threats Challenge the

Nuremberg Legacy, 30 WINDSOR Y.B. ACCESS TO JUST. 246 (2012). The Kampala

Review conference successfully introduced crime of aggression as one of the

crimes under the WCC’s jurisdiction and expanded the coverage for war crimes.

See generally Claus Kre & Leonie von Holtzendorff, The Kampala Compromise

on the Crime of Aggression, 9 JICJ 1179 (2010). See also Rev. Conference of the

Rome Statute, Res. RC/Res.6 (June 11, 2010), https://trea-

ties.un.org/doc/source/docs/RC-Res.6-ENG.pdf; Rev. Conference of the Rome

Statute, Res. RC/Res.5 (June 11, 2010), https://trea-

ties.un.org/doc/source/docs/RC-Res.5-ENG.pdf.

107. Benzi ng, supra note 101, at 597.

108. Id. at 600.

109. Mo hamed M. El Zeidy, The Genesis of Complementarity, in THE

INTERNATIONAL CRIMINAL COURT AND COMPLEMENTARITY: FROM THEORY TO

PRACTICE, VOLUME 1, 71 (Carsten Stahn & Mohamed M. El Ziedy eds., 2011).

110. Id. at 71.

111. Id. at 91.

112. Id. at 100.

2018] The AU and the Complementarity Principle 479

War Crimes Commission 1943,

113

the Committees on Interna-

tional Criminal Jurisdiction 1951 and 1953,

114

and the 1990,

1992, and 1993 International Law Commission (ILC) Working

Groups Reports.

115

It is based on States voluntarily consenting

to surrender their jurisdiction. The second model, described as

the amicable model, is derived from the Charters of the Nurem-

berg International Military Tribunal

116

and the Tokyo Interna-

tional Military Tribunal for the Far East.

117

It focuses on the al-

location of responsibilities between international and national

jurisdictions. The third model, designated as the mandatory

model, is drawn M'om tJe WTC Wo'kinL Y'o&*’s 9e*o't

118

and the

1994 ILC Draft Statute of the International Criminal Court.

119

It represents a complementary blend of the first and second mod-

els. The fourth complementarity model, a policy-based model, is

drawn from a combination of other emerging models negotiated

under the Rome Statute.

120

!&iHOinL M'om Sa&'o :oHiti’s s&lmis`

sions,

121

tJe neit s&l*a'tb M'om tJe 8tat&te’s *e's*eQti%eb Ois`

cusses evolving models of complementarity, namely passive, pos-

itive, and proactive complementarity.

1. Passive Complementarity

6Je WCC’s 'oHe in *'oseQ&tinL inte'nationaH Q'imes is *assi%eb

whereby the ICC functions as a court of last resort.

122

As Ann-

Marie Slaughter puts it:

One of the most powerful arguments for the International

Criminal Court is not that it will be a global instrument of jus-

tice itself-arresting and trying tyrants and torturers world-

wide-but that it will be a backstop and trigger for domestic

113. Id. at 104.

114. Id. at 107.

115. Id. at 114.

116. Id. at 122.

117. Id. at 124.

118. Id. at 126.

119. Id. at 128.

120. Id. at 129.

121. Mauro Politi, Reflections on Complementarity at the Rome Conference

and Beyond, in THE INTERNATIONAL CRIMINAL COURT AND COMPLEMENTARITY:

FROM THEORY TO PRACTICE V OLUME 1, 142 (Carsten Stahn & Mohamed M. El

Zeidy eds., 2011).

122. Christopher Hall, Positive Complementarity in Action, in THE

INTERNATIONAL CRIMINAL COURT AND COMPLEMENTARITY: FROM THEORY TO

PRACTICE 1017 (Carsten Stahn & Mohamed M. El Zeidy eds., 2011).

480 BROOK. J. INT’L L. [Vol. 43:2

forces for justice and democracy. By posing a choice—either a

nation tries its own or they will be tried in The Hague—it

strengthens the hand of domestic parties seeking such trials,

allowing them to wrap themselves in a nationalist mantle. . .

123

The implication is that tJe WCC’s I&'isOiQtion 'emains Oo'mant

&ntiH t'iLLe'eO lh 8iLnato'h 8tates’ &njiHHinLness to aQtb o' in

cases of U.N. Security Council referrals. Consequently, the pas-

si%e moOeH &nOe'mineO tJe WCC *'oseQ&to'’s proprio-motu pow-

ers, whereby the prosecutor can initiate, investigate, and prose-

cute in the event that he receives information from States.

124

Be-

ing an initial model, and given that African States previously

lacked understanding of complementarity, resulting in rampant

State referrals to the ICC,

125

the passive model soon became un-

popular. As a result, it gave way to a more meaningful positive

complementarity.

2. Positive Complementarity

A conceptual understanding of positive complementarity is

aptly captured in the statement of the first Prosecutor of the

ICC, Luis Moreno-Ocampo, who posited that:

The Court is compleme ntary to national systems. This means

that whenever there is genuine State action, the court cannot

and will not intervene. But States not only have the right, but

also the primary responsibility to prevent, control and prose-

cute atrocities. Compleme ntarity protects national sovereignty

and at the same time promotes state actio n. The effectiveness

of the International Criminal Court should not be measured by

the number of cases that reach it. On the contrary, complemen-

tarity implies that the absence of trials before this Court, as a

123. Ann-Marie Slaughter, Not the Court of First Resort, WASH. POST (Dec.

21, 2003), https://www.washingtonpost.com/archive/opinions/2003/12/21/not-

the-court-of-first-resort/8f2e6532-eb23-4311-b077-

c6278115c542/?utm_term=.fe38a36854f6.

124. Rome Statute, supra note 1, art. 15.

125. Situations in Northern Uganda, Congo, and the Central African Repub-

lic were referred to the ICC through state referrals under Article 14 of the

Rome Statute. See S.M.H. Nouwen & W.G. Werner, Doing Justice to the Polit-

ical: The International Criminal Court in Uganda and Sudan, 21 EUR. J. INT’L

L. 942N65 (2011).

2018] The AU and the Complementarity Principle 481

consequence of the regular functioning of national institutions,

would be a major success.

126

Under the positive complementarity,

127

the utmost priority is

that rather than contending with domestic systems, the ICC

would embolden national proceedings by relying on domestic

and transnational networks, while also partaking in the trans-

national cooperation system.

128

Wt is in MaQt a 7*'olHem soH%inL

st'ateLh^5

129

The positive approach was further expounded in the

;MMiQe oM tJe :'oseQ&to'’s f;6:d E\\@ *oHiQh statement^

130

There

has, however, been a gradual shift from the present understand-

ing of positive complementarity following the Kampala Confer-

ence,

131

where three broad classes of assistance for national sys-

tems, namely technical and legislative assistance and building

of national capacity, were articulated to broaden the concept,

while emphasizing the WCC’s limited role in this regard.

132

particular reference is the fact that tJe 7Co&'t is not a re%eHo*`

ment ALenQh^5

133

If the argument that the ICC is not a develop-

ment agency is to be taken as anything logical at all, it can only

be more logical to argue that a more efficient approach that ac-

tively supports national legal orders is crucial. To this end, it is

submitted that the proactive complementarity approach, by

126. Luis Moreno-Ocampo, Prosecutor, International Criminal Court, State-

ment Made at the Ceremony for the Solemn Undertaking of the Chief Prose-

cutor of the International Criminal Court, at 3 (June 16, 2003), www.icc-

cpi.int/NR/rdonlyres/D75 72226-264A-4B6B-85E3

2673648B4896/143585/030616_moreno_ocampo_english.pdf.

127. Rome Statute, supra note 1, art. 93(10).

128. Luis Moreno-Ocampo, Prosecutor of the ICC, Statement of the Prosecu-

tor to the Diplomatic Co rps (Feb. 12, 2004), www.icc-

cpi.int/NR/rdonlyres/0F999F00-A609-4516-A91A-

80467BC432D3/143670/LOM_20040212_En.pdf.

129. See Carsten Stahn, The Future of International Criminal Justice, HAGUE

JUST. PORTAL, http://www.haguejusticeportal.net/; see also Carsten Stahn,

Complementarity: A Tale of Two Notions 19 CRIM. L. REV. 87 (2008) [hereinaf-

ter Stahn, Complementarity].

130. ICC-OFFICE OF THE PROSECUTOR, REPORT ON PROSECUTORIAL STRATEGY

(2006), www.icc-cpi.int/NR/rdonlyres/D673DD8C-D427-4547-

BC692D363E07274B/143708/ProsecutorialStrategy20060914_English.pdf.

131. See REPORT ON THE FIRST REVIEW CONFERENCE ON THE ROME STATUTE,

COALITION FOR THE INT’L CRIM CT. (2010), http://www.iccnow.org/docu-

ments/RC_Report_finalweb.pdf.

132. See Bergsmo et al., supra note 63, at 3N22.

133. See Res. ICC-ASP/8/Res.9, at 16N22 (Mar. 25, 2010), https://a sp.icc-

cpi.int/iccdocs/asp_docs/Resolutions/ICC-ASP-8-Res.9-ENG.pdf.

482 BROOK. J. INT’L L. [Vol. 43:2

which both the ICC and States are in active engagement at every

stage of proceedings at the domestic level, ensures this effi-

ciency.

3. Proactive Complementarity

Proactive complementarity entails a policy of formal requests

by States for assistance from the ICC, and a corresponding

agreement by the ICC to support national justice systems in

terms of capacity building to help them investigate and prose-

cute international crimes domestically.

134

The areas in which

8tates mah 'e(&est tJe WCC’s assistanQe inQH&Oeb l&t a'e not Him`

ited to, investigations into conducts that States believe consti-

tute international crimes or conducts that amount to serious

crimes under national law. In practice, this assistance may take

various forms, including the ICC transmitting documents relat-

ing to preliminary inquiries to national jurisdictions, analyzing

forensic evidence, and evaluating witness statements. The idea

is that the ICC will catalyze national prosecution by the sharing

of burdens and responsibilities.

135

This notwithstanding, it is ar-

gued that the WCC’s catalyst role in this regard, albeit commend-

able on its face, is coercive in application, potentially creating

friction between States and the ICC. This is because it carries

the misconceived belief that it yields good results, in the sense

that it motivates national jurisdictions to investigate and prose-

cute crimes and that States would want to avoid threats of po-

tential international intervention by the ICC in the event they

fail to investigate or prosecute crimes. This can frustrate State

cooperation. As long as ICC threats of potential intervention

against States when they fail to prosecute crimes continue,

States will contest an ICC prosecutorial system, as they will con-

sider it to be very unfair. For example, in the Kenyatta &

Muthaura et al. case, Kenya argued that it filed a request with

the ICC Pre-Trial Chamber for assistance from the ICC on be-

half of the government of the Republic of Kenya, pursuant to Ar-

ticle 93(10) of the Rome Statute.

136

Uenha’s 'e(&est 'eHates inter

134. Carsten Stahn, Taking Complementarity Seriously: On the Sense and

Sensibility of ‘Classical,’ ‘Positive’ and ‘Negative’ Complementarity, in THE

INTERNATIONAL CRIMINAL COURT AND COMPLEMENTARITY: FROM THEORY TO

PRACTICE, VOLUME I 233N82 (Carsten Stahn & Mohamed M. El Zeidy eds.,

2011).

135. KLEFFNER, supra note 62, at 309.

136. Prosecutor v. Uhuru Muigai Kenyatta, supra note 34, ¶ 114.

2018] The AU and the Complementarity Principle 483

alia to transmission of all statements, documents, and other

types of evidence obtained by the ICC and the Prosecutor in the

Qo&'se oM tJe WCC’s in%estiLation into tJe E\\? *ost-election vio-

lence in that country. The Pre-Trail Chamber refused Uenha’s

request for assistance. At the time Kenya filed the request for

assistance, the case was already pending before the ICC, with

Kenya simultaneously challenging the admissibility of the case

by the Court (i.e., three weeks post admissibility challenge by

Kenya).

137

Kenya had asked the Pre-Trial Chamber to determine

the request for assistance issue first, before resolving the ques-

tion of challenging admissibility. The Pre-Trial Chamber denied

the request. Dissatisfied with the decision, Kenya appealed to

tJe WCC’s A**eaHs CJamle'b QontenOinLb amongst other things,

that receiving assistance from the Prosecutor was directly rele-

vant and linked to the admissibility challenge. It also expressed

the belief that it would be very unfair to deny Kenya the oppor-

tunity of relying on evidence obtained by the ICC during its pros-

eQ&tion oM tJe Qase^ 6Je A**eaHs CJamle' OismisseO Uenha’s a*`

peal, finding the case admissible. It further stated that the Pre-

Trial Chamber did not commit any procedural error when it re-

fused to first determine the request for assistance before resolv-

ing the issue of admissibility. The decision of the Appeals Cham-

ber appears to suggest that requests for assistance by States

must be filed timely, not when the case is already before the ICC.

In essence, what the ICC is understood to be saying is that if a

State suddenly wakes up and decides to file a request for assis-

tance, when the case is already pending before it, it will amount

to notJinL mo'e tJan a *ostsQ'i*t^ WJiHe tJe WCC’s OeQision tJat

a request for assistance must be timely is highly commendable

and appreciated, the ICC should be more cooperative with States

who indeed are making genuine efforts to investigate and pros-

ecute crimes, regardless of whether the case is already pending

before it. This is so because, at the time Kenya requested assis-

tance, the matter had not proceeded to trial, but was still at the

stage of determining admissibility. The ICC could have comfort-

ably provided Kenya with the requested assistance and deferred

the case back to Kenya for trial. Otherwise, all efforts to imple-

ment proactive complementarity in this context would be frus-

trated by aggrieved States. This is more serious in the case of

Africa, where the ICC is currently facing tough times. Recall

137. Id. ¶ 118.

484 BROOK. J. INT’L L. [Vol. 43:2

that the ICC was later forced to drop the crimes against human-

ith QJa'Les aLainst Uenhatta aMte' tJe :'oseQ&to'’s oMMiQe toHO

the ICC that Kenya had refused to hand over evidence vital to

the case, and that available evidence at the WCC’s Ois*osaH 7JaO

not im*'o%eO to s&QJ an eitent tJat S'^ Uenhatta’s aHHeLed crim-

inal responsibility [could] be proven beyond reasonable

Oo&lt^5

138

It is argued that had the ICC given the requested as-

sistance to Kenya at the time the country asked for it, and the

case deferred back to the Kenya national court for trial, Ken-

yatta would have been prosecuted successfully back home, re-

gardless of whether or not he was convicted thereafter. It is

therefore submitted that the WCC’s catalyst role in this context

must be reconceptualized to reflect the true purport of proactive

complementarity, which is to ensure that national courts and the

ICC are actively engaged with one another at every stage at the

domestic level, instead of being engaged in power struggles that

breed tension. This is possible if both the ICC and States proac-

tively build on the 9ome 8tat&te’s reverse cooperation mecha-

nism

139

to establish a mutually reinforcing and synergetic rela-

tionship, whilst minimizing the chances of potential conflicts

that may arise from the exercise of jurisdiction and admissibility

of cases before the ICC.

D. Complementarity, Jurisdiction, and Admissibility Issues

Under Article 17 of the Statute: Analysis of its Elements and

Components

The provisions of Article 17 of the Rome Statute are deliber-

ately worded to capture the merits of deferring cases to national

courts for tr ial. It is considered a proactive way to implement the

WCC’s complementarity regime. It explicitly sets forth standards

for admissibility of cases before the ICC if States are unwilling,

or genuinely unable, to conduct any meaningful investigation or

prosecution, or where the 8tate’s decision not to prosecute stems

from unwillingness or inability to prosecute. Of particular im-

portance is that the ICC has no power to order the admission of

cases before it where a State with jurisdiction is already investi-

gating or prosecuting the case;

140

or has investigated and

138. ICC Drops Uhuru Kenyatta Charges for Kenya Ethnic Violence, supra

note 34.

139. Rome Statute, supra note 1, art. 93(10).

140. Id. art. 17(1 )(a).

2018] The AU and the Complementarity Principle 485

reached a decision not to pr osecute;

141

or has already tried the

individual for the conduct, in the event of which a retrial would

be barred under the statute;

142

or where the ICC reaches the con-

clusion that the case referred to it is not of sufficient gravity

143

to warrant prosecution. The effect of Article 17 of the Rome Stat-

ute is that it conceives complementarity as a question of admis-

sibility of cases, rather than as a question of the WCC’s jurisdic-

tion. In other words, the question of admissibility and jurisdic-

tion, in terms of exercising competences over specific cases, is

distinguishable. What this distinction means, in practice, is that

the complementarity principle does not ipso facto usurp the in-

herent jurisdiction of the ICC as such, but only defines special

circumstances when its jurisdiction may be invoked. Thus, the

ICC must, in all cases, first resolve the question of jurisdiction

before dealing with matters of admissibility.

144

To this end, re-

cent ICC decisions on jurisdiction and admissibility, particularly

in Katanga & Ngudjolo,

145

Kenyatta,

146

Saif Al-Islam Gaddafi &

Al-Senussi,

147

and the two Gbagbo cases—Laurent Gbagbo

148

and Simone Gbagbo

149

—have brought increased attention to the

modes of interpreting the elements or thresholds for admissibil-

ity of cases before the ICC, namely the unwillingness test, the

inability and unavailability test, and the sufficient gravity test.

141. Id. art. 17(1)(b).

142. Id. art. 17(1)(c), art. 20.

143. Id. art. 17(1 )(d).

144. Rules of Procedure and Evidence of the ICC, rule. 58(4)

145. See Prosecutor v. Katanga, supra note 28 (affirming the decision of the

6'iaH CJamle' aLainst UatanLa’s aOmissiliHith QJaHHenLeb Ja%inL Mo&nO a

7QHea' anO ei*HiQit ei*'ession of unwillingness of the DRC to prosecute th[e]

Qase^5d^

146. See Prosecutor v. Muthuara and Ors, Case No. ICC-01/09-02/11, Judg-

ment on the Appeal of the Republic of Kenya Against the Decision of Pre-Trial

Chamber II of 30 May 2011, Decision on the Application by the Government of

Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b)

of the Statute (Aug. 30, 2011).

147. See Prosecutor v. Saif Al-Islam Gaddafi & Al-Senussi, Case No. ICC-

01/11-01/11, Decision on the Admissibility of the Case Against Saif Al-Islam

Gaddafi (May 31, 2013); Prosecutor v. Saif Al-Islam Gaddafi & Al-Senussi,

Case No. ICC-01/11-01/11, Decision on the Admissibility of the Case Against

Abdullah Al-Senussi (Oct. 11, 2013).

148. See Prosecutor v. Laurent Gbagbo and Charles Blé Goudé, Case No.

ICC-02/11-01/15, Trial (Jan. 28, 2016).

149. See Prosecutor v. Simone Gbagbo, Case No, ICC-02/11-01/12, Admissi-

bility Challenge (Oct. 1, 2013).

486 BROOK. J. INT’L L. [Vol. 43:2

The following part analyzes these elements of complementarity

as a trigger of admissibility of cases within the WCC’s jurispru-

dence.

1. The Unwillingness Test

The unsettled parameters for measuring the admissibility of

cases before the ICC, as expressed in Article 17 of the Statute,

are embodied in a two-step process. First, any challenge by na-

tional authorities to admissibility must establish that there is

an ongoing genuine national investigation or prosecution relat-

ing to the same person and same conduct as the ICC case.

150

hypothetical or prospective investigation will fall short of this

requirement, and any ongoing investigation must sufficiently

touch and concern the same case as the ICC case. In other words,

if a State challenges the admissibility of a case, it must provide

the ICC with cogent, compelling, and unequivocal evidence that

has a plausible level of specificity and probative value to clearly

demonstrate that the State in question is indeed genuinely in-

vestigating the case, instead of merely asserting that investiga-

tions are ongoing. The point is that the investigation must not

be conducted for the sole sake of conducting it but must instead

be a genuine investigation. Second, if the first requirement is

satisfied, it may still be decided that the case is admissible on

grounds that the national judicial system is either unwilling or

genuinely unable to investigate or prosecute crimes.

151

The pa-

rameters for measuring the meaning of the word unwilling may

be understood as incorporating either or all of the following three

criteria: (1) that national procedures are being used to shield a

person from criminal responsibility; (2) that there has been an

unreasonable delay in the investigation, showing a lack of intent

to prosecute; and (3) that independence and impartiality of pros-

ecuting institutions cannot be guaranteed. Similarly, the word

7Len&ineHh5 *'es&**oses 8tates takinL aQtions tJat a'e 'eaHb sin`

cere, and devoid of any form of subterfuge. In the Kenyatta &

Muthaura et al. case,

152

the Appeals Chamber held that the re-

port of the investigations into the post-election violence in Kenya

150. Payam Akhavan, Complementarity Conundrums Debate, The ICC Clock

in Transitional Times, 14 J. INT’L CRIM. JUST. 1043 (2 016).

151. See John T. Holmes, Complementarity: National Courts Versus the ICC,

in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT 667 (Antonio

Cassese et al. eds., 2002).

152. Prosecutor v. Mu thuara and Ors, supra note 146.

2018] The AU and the Complementarity Principle 487

did not contain any reference to the suspects and did not reveal

any investigative step taken by the Kenyan authorities. The in-

vestigation was therefore considered not genuine and calculated

to shield the perpetrators from prosecution and justic e. Argua-

bly, what amounts to a genuine investigation in respect of na-

tional proceedings is a weighty matter. In the Ahmad Harun and

Ali Kushayb

153

case, for example, the Pre-Trial Chamber made

an initial finding of admissibility on the constricted ground that

specific events in Darfur that were under investigation in Sudan

did not comprise the same conduct as the ICC case.

154

In so hold-

ing, the Chamber technically circumvented the clearly meritori-

ous question as to whether the Sudanese judicial authorities

were unwilling to carry out a genuine investigation.

155

2. The Inability and Unavailability Test

The case of inability and unavailability presents a more com-

plex situation compared to the unwillingness question. For in-

stance, a national jurisdiction may be fully willing, yet unable,

to immediately investigate or prosecute crimes

156

in the immedi-

ate aftermath of mass atrocities, though it could potentially do

so at a later point in time.

157

Even if inability to arrest the ac-

cused or to obtain evidence is not an obstacle, the ability to carry

out timely investigations and fair trials remains a vital consid-

eration.

158

Despite their best efforts, post-conflict national judi-

cial systems lack investigative resources and the capacity for op-

timal compliance with due process standards.

159

The situation of

inability manifested in Rwanda following the horrendous geno-

cide that decimated the Rwandan judicial system, with few judi-

cial officers surviving the massacre.

160

In such extreme circum-

stances, national courts will invariably fall short of ideal expec-

tations of expeditious and fair trials. Justice therefore demands

153. See :'oseQ&to' %^ AJmaO S&JammaO Xa'&n f7AJmaO Xa'&n5d# AHi S&`

hammad Ali Abd-Al-9aJman f7AHi U&sJahl5db Case Ro WCC-02/05-01/07, Par-

ticipation of Victims (Apr. 27, 2007).

154. Id. ¶¶ 19N 25.

155. Akhavan, supra note 150.

156. See David Tolbert & Laura A. Smith, Complementarity and the Investi-

gation and Prosecution of Slavery Crimes, 14 J. INT’L CRIM. JUST. 429 (2016).

157. Akhavan, supra note 150, at 1044.

158. Id.

159. Id. at 1047.

160. Id. at 1051.

488 BROOK. J. INT’L L. [Vol. 43:2

that post-conflict societies be given more time and resources to

satisfy these admissibility conditions in terms of institutional

capacity building, as part of a wider post-conflict transformation

*'oQess^ AHsob 3inaliHith’ enQom*asses Qom*Hete o' QonsiOe'alHe

breakdown or non-availability of a national system, which re-

sults in one of three following situations: (1) 7the State is unable

to obtain the accused,5

161

(2) it is unable to obtain 7the necessary

evidence and testimony,5

162

or (3) it is 7otherwise unable to carry

out its proceedings.5

163

6Je &se oM tJe OisI&nQti%e jo'O 3o'’ in A'`

ticle 17 (1) of the Rome Statute indicates that these three situa-

tions need not coexist to sufficiently merit a finding of inabil-

ity.

164

Thus, if a State cannot apprehend the accused or gather

necessary evidence and testimony in good time, then the na-

tional proceeding is not genuine, regardless of whether the judi-

cial system uses its best efforts.

165

In Saif Al-Islam,

166

a Libyan

case which appears to be a partial victory for complementarity,

the Pre-Trial Chamber initially acknowledged Tilha’s enormous

efforts, under exceptionally tough circumstances, to boost secu-

rity situations through reestablishing institutions, including re-

storing the rule of law. Despite that, the Pre-Trial Chamber still

found that Libya continues to face manifold problems, including

its inability to retrieve Saif Al-Islam from a detention facility in

Zintan,

167

a situation showing that Libya is unable to exercise

its M&HH I&OiQiaH *oje's aQ'oss tJe Qo&nt'h’s enti'e te''ito'h^

168

tJis L'o&nO aHoneb tJe WCC mah Ja%e OeemeO Tilha’s nationaH

prosecution system unavailable in light of the 9ome 8tat&te’s

provisions.

169

Closely linked to the element of unavailability and

161. Id. at 1043; see also Valerie Freeland, Rebranding the State: (ganda’s

Strategic Use of the International Criminal Court, 46 DEV. & CHANGE 293

(2015).

162. Akhavan, supra note 150, at 10 43.

163. Id.

164. Id.

165. Id.

166. Saif Al-Islam Gaddafi & Al-Senussi, supra note 147.

167. Id. ¶¶ 206N207.

168. Id. ¶¶ 209.

169. Rome Statute, supra note 1, art. 17(3).

2018] The AU and the Complementarity Principle 489

inaliHith is tJe ;6:’s in%enteO eHement oM 7inaQti%ith^5

170

The sit-

uation of inactivity played out in Katanga & Ngudjolo,

171

where

the Pre-Trial Chamber held that inaction on the part of the

Ugandan government, which led to the self-referral of the case

to the ICC, rendered the cas e admissible before the ICC.

172

From

the facts and circumstances of the case, it appears that while

State self-referrals may indicate their willingness to uphold jus-

tice on the one hand, it also amounts to inability on the other

hand, which militates against the ends of justice.

3. The Sufficient Gravity Threshold Test

Another element of complementarity in the Rome Statute is

one of sufficient gravity. Sufficient gravity and complementarity

are the two-pronged elements for admissibility of cases before

the ICC. Apart from classifying crimes falling within the subject

matter jurisdiction of the ICC as the most serious,

173

the Rome

Statute requires proof of the additional element of sufficient

gravity for the case to be admissible.

174

Consequently, even

where subject matter jurisdiction is established, the Court must

still be satisfied that the case is serious enough before it takes

further action. Relevant factors in evaluating the gravity thresh-

old include qualitative and quantitative considerations, such as

the scale, nature, manner of commission, and impact of the

crimes.

175

It will not include isolated traces of criminal activity.

In determining prosecutorial priorities based on gravity, the

OTP relied on absolute numbers in at least one major case. The

case relates to the situation in Uganda, where the OTP stated

170. Ovo Catherine Imoedemhe, National Implementation of the Comple-

mentarity Re gime of the Rome Statute of the International Criminal Court:

Obligations and Challenges for Domestic Legislation with Nigeria as a Case

Study (Mar. 2014) (thesis Submitted for the Degree of Doctor of Philosophy at

the University of Leicester), https://lra.le.ac.uk/bit-

stream/2381/36077/1/2014ImoedemheOCPhD.pdf.

171. Prosecutor v. Katanga, supra note 28.

172. Rastan , supra note 28.

173. Bachmann & Kemp, supra note 106, at 246 (chronicling crimes of geno-

cide, war crimes, crimes against humanity, and the post Kampala crime of ag-

gression as the most serious crimes over which the ICC has jurisdiction).

174. See Rome Statute, supra note 1, art. 17(1)(d), 53(1)(b), 53(2)(b).

175. See Draft Policy Paper on Case Selection and Prioritisation, INT’L CRIM.

CT. 12N13 (Feb. 29, 2016), https://www.icc-cpi.int/ic-

cdocs/otp/29.02.16_Draft_Policy-Paper-on-Case-Selection-and-Prioritisa-

tion_ENG.pdf.

490 BROOK. J. INT’L L. [Vol. 43:2

that, after considering information relating to activities of all

groups in the regionb tJe Qase oM tJe To'O’s 9esistanQe A'mh

(LRA) was prioritized as being the most serious, having resulted

in at least 2,200 killings, 3,200 abductions, and over 850 at-

tacks.

176

It is argued that in analyzing the complementarity

thresholds for admissibility of cases before the ICC, a reexami-

nation of the interpretation of the actual purpose of the comple-

mentarity regime, as well as what the principle is actually de-

signed to achieve in practice, is necessary.

E. Interpretation of the Complementarity Principle

There have been contrasting interpretations of the comple-

mentarity principle, from the national and international judicial

fora and from highly qualified publicists in terms of the actual

purpose that the principle is designed to achieve in practice.

These Qont'astinL inte'*'etations Qont'il&te to tJe WCC’s soQio`

political amalgamation and involvement in national jurisdic-

tions, which in itself is a direct result of the failure to resolve the

many challenges associated with the theory and practice of com-

plementarity, both in national and in supranational terms.

Christoph Burchard,

177

for example, argues that the principle

ought to be interpreted and understood from the framework of

global governance, since the ICC, unlike ordinary criminal

courts, is not only an instrument to prosecute international

crimes, but also generally part of a more wide-ranging, multi-

leveled, polycentric, and actor-open implementation regime of

international criminal law.

178

Carsten Stahn

179

argues that even

though the complementarity regime is the cornerstone of the

ICC, problem-solving based on the understanding of complemen-

tarity requires greater attention to the substantive objectives of

the ICC, namely judicial independence,

180

effective justice,

181

176. See T&is So'eno ;Qam*ob :'oseQ&to'b Wnt’H C'im^ Ct^b 8tatement at tJe

Fourth Session of the Assembly of States Parties (Nov. 28, 2005),

https://www.icc-cpi.int/NR/rdonlyres/0CBFF4AC-1238-4DA1-9F4A-

70D763F90F91/278514/LMO_20051128_English.pdf.

177. Christoph Burchard, Complementarity as Global Governance, in THE

INTERNATIONAL CRIMINAL COURT AND COMPLEMENTARITY: FROM THEORY TO

PRACTICE, VOLUME I, 167 (Carsten Stahn & Mohamed M. El Zeidy eds., 2011).

178. Id. at 163.

179. Stahn, supra note 134, at 233.

180. Id. at 274.

181. Id. at 276.

2018] The AU and the Complementarity Principle 491

fairness,

182

and sustainability.

183

In addition, when interpreting

complementarity in the context of legality of self-referrals,

Payam Akhavan

184

sees notJinL j'onL in tJe M'aLiHe 8tate’s

practice of surrendering jurisdiction to the ICC, given the esca-

lation and privatization of violence by non-state actors, as well

as the inability of national and regional judicial bodies to bring

to justice the perpetrators of crimes.

185

Given the somewhat di-

vergent interpretation view s of complementarity, the question

then arises; how should the complementarity principle of the

Rome Statute ideally be interpreted? Should interpretive out-

comes be based on arguments about higher order organizational

justice in a criminal law context since the ICC may be likened to

an employer organization that utilizes higher organizational jus-

tice methods to seek to render justice to its employees or work-

ers? Or, should judges give primacy to the ordinary elements of

complementarity simpliciter without more? Alternatively, could

they reject it and instead align their reasoning with other inter-

pretive aids, such as custom or treaty law, or is it more desirable

for ICC judges to develop a more object driven and purposive

method of thinking through the interpretive glitches surround-

ing the complementarity principle in the Rome Statute? This ar-

ticle argues that a more tested and trusted purposive interpre-

tation of the complementarity principle, predicated on mutual

inclusivity, policy making, and higher order organizational jus-

tice should be the benchmark in trying to resolve the conflicts

arising from the theory and practice of the principle. Mutual in-

clusivity in this context entails legal interpretation that is mu-

tually reinforcing in the sense that the resulting interpretative

outcomes leave room for mutual respect, clear communication,

and for an effective relationship to exist between the ICC and

States. It also promotes understandings that are explicit about

real expectations and create critical self-assessments on the part

of judges. Similarly, policy-making is meant to cause rational in-

terpretative outcomes or decisions that result from the process

182. Id. at 278.

183. Id. at 280.

184. See Payam Akhavan, International Criminal Justice in the Era of Failed

States: The ICC and the Self-Referral Debate, in THE INTERNATIONAL CRIMINAL

COURT AND COMPLEMENTARITY: FROM THEORY TO PRACTICE, VOLUME I, 283 (Car-

sten Stahn & Mohamed M. El Zeidy eds., 2011).

185. Id. at 284, 289.

492 BROOK. J. INT’L L. [Vol. 43:2

oM makinLb inte'*'etinLb anO a**HhinL tJe 9ome 8tat&te’s *rovi-

sions by the ICC and how such decisions affect human beings.

Those include people like the accused standing trial before the

ICC, witnesses, victims of core crimes, their families, and other

informed participants, such as ICC prosecutors, defendant law-

yers, %iQtims’ representatives, NGO representatives, and the en-

tire civil society observers. In the same vein, situating higher

order organizational justice goals within the interstices of inter-

national criminal justice envisions the ICC as an organization or

institution seeking to render justice to all classes of people look-

ing up to it within the international community of States. There-

Mo'eb tJe WCC’s inte'*'etations oM tJe 9ome 8tat&te’s *'o%isions

must derive scores on the broader procedural, distributive, in-

terpersonal, and informational justice goals. In procedural and

distributive justice terms, the ICC should, for example, make its

decisions fairer by strictly limiting its applicable interpretative

rule to one of ethics, consistency, and predictability in the proce-

dures. For interpersonal and/or interactional justice, the ICC

should, for example, communicate its procedural details in an

open and transparent manner, while justifying its interpretive

decisions based on true, accurate, and complete information. It

is argued that adjusting the text, context, and purpose of Article

G? oM tJe 9ome 8tat&te to QonsiOe' aQQ&seO *e'sons’ lasiQ t'iaH

rights and mak e it part of the wider due process procedures

186

required for effective administration of criminal justice at the

international level is one good way to create room for ICC judges

to test the efficacy of this purposive interpretative model in prac-

tice. Had this been the case from the time the Rome Statute was

negotiated, it would have cushioned the effects of 8tates’ fre-

quent objections to the WCC’s complementarity jurisdiction. This

is not presently the case in ICC jurisprudence,

187

contributing to

the erroneous argument that the ICC is not a court of human

rights. Carsten Stahn, in fact, argues quite rightlh tJat 7e%en

alternative forms of justice must guarantee basic fair trial rights

186. Kevin Jon Heller, The Shadow Side of Complementarity: The Effect of

Article 17 of the Rome Statute on National Due Process, 17 CRIM. L. REV. 19

(2006) (explaining the due process thesis).

187. See, e.g., Kevin Jon Heller, Why the Failure to Provide Saif with Due

Process is Relevant to Libya’s Admissibility Challenge, OPINIO JURIS (Aug. 2,

2012), http://opiniojuris.org/2012/08/02/why-the-failure-to-provide-saif-with-

due-process-is-relevant-to-libyas-admissibility-challenge/.

2018] The AU and the Complementarity Principle 493

to tJe aQQ&seO in tJe *'oQeO&'e^5

188

As demonstrated in the con-

cluding part of this article, the purposive method of interpreta-

tion of the complementarity regime could empower both national

and ICC judges to develop more policy oriented interpretative

outcomes that allow judges to easily align their reasoning with

other interpretive aids, such as custom or treaty law, while inte-

grating the guidance enunciated under Articles 31N33 of the

1969 Vienna Convention on the Law of Treaties into the statu-

tory framework of the Rome Statute. It is believed that this

method of interpretation would strengthen the hands of ICC

judges to overcome, in practical terms, the statutory and policy

shortcomings of the complementarity regime discussed below.

F. Shortcomings of the Complementarity Regime

There are two major concerns with the complementarity re-

Lime^ ;ne is in tJe 7inJe'ent st'&Qt&'e oM tJe WCC anO tJe otJe'

is in the implementation of the stat&to'h manOate^5

189

With re-

spect to the inherent structure of the ICC, the problem lies in

the fact that its jurisdiction is secondary to national jurisdic-

tions, unlike the ICTY and the ICTR, which enjoy primacy juris-

diction over national courts.

190

Implicitly, the ICC is placed in a

disadvantaged position in its complementarity relationship with

national courts.

191

One major effect of this inherent weakness is

tJat jJene%e' tJe WCC’s :'oseQ&to' jants to aO%anQe a Qaseb he

may encounter legal obstacles from na tional jurisdictions. This

is already beginning to happen, following the admissibility chal-

lenges from Kenya

192

and the Saif Al-Islam and Al-Senussi cases

in Libya.

193

In fact, in Katanga and Ngud.olo’s case, the accused

himself challenged admissibility.

194

The Kenya and Libya cases

clearly show that the complementarity regime is replete with

188. Carsten Stahn, Complementarity, Amnesties, and Alternative Forms of

Justice: Some Interpretative Guidelines for the International Criminal Court, 3

INT’L J. CRIM. JUST. 695, 713 (2005).

189. Carter, supra note 85, at 455N57.

190. Bachmann, supra note 2, at 306.

191. Paolo Be nvenuti, Complementarity of the International Criminal Court

to National Criminal Jurisdictions, in ESSAYS ON THE ROME STATUTE OF THE

INTERNATIONAL CRIMINAL COURT 21N22 (Flavia La ttanzi & William Schabas

eds., 1999).

192. See Muthuara and Ors, supra note 146.

193. See Gaddafi & Al-Senussi, supra note 147.

194. See Prosecutor v. Katanga, supra note 28.

494 BROOK. J. INT’L L. [Vol. 43:2

many statutory and policy shortages.

195

This is reflected in the

inability of States to act in times of conflict, as was the case in

Libya, whose state of affairs was not envisaged when the com-

plementarity regime was negotiated. This is also linked to insti-

t&tionaH 7Qa*aQith iss&es in QonneQtion jitJ an alsent o' ineMMeQ`

tive legislative framework for implementation, limited expertise

on the part of investigators, prosecutors and judges, and the na-

tionaH I&OiQiaH shstem’s HaQk oM 'eso&'Qes^5

196

A more difficult im-

plementation problem to address than the legal issue of admis-

sibility is the political interference of States in national prosecu-

tion systems, which often erodes the independence of national

judiciaries. This is more serious where senior State officials are

believed to be liable for complicity in the perpetration of core

Q'imesb Qo&*HeO jitJ sit&ations jJe'e tJe 8tate mah le 7too jiHH`

inL5

197

to prosecute the members of a former regime who they

consider to be enemies of the State. This is further obfuscated by

the inherent face-off between the ICC and national systems,

arising from accusations that the ICC is concentrating on politi-

cally weak States, mostly African countries.

198

While discussing

this problem in the context of globalization, Paul Kagame, Pres-

ident of the Republic of Rwanda, stated the following:

If the increased interdependence is to achieve co nsistency, it

must be based on a level playing field, with some kind of stand-

ard applied to all, in light of the fact that the world is made up

of the powerful and the less powerful. Take for example the

1994 genocide in Rwanda. The global interdependence then,

was inadequate. It did not intervene to stop the genocide be-

cause powerful interests did not regard this important enough.

195. Nidal Nabil Jurdi, The Complementarity Regime of the International

Criminal Court in Practice: Is It Truly Serving the Purpo se? So me Lessons from

Libya, 30 LEIDEN J. INT’L L. 199 (2017).

196. OVO CATHERINE IMOEDEMHE, THE COMPLEMENTARITY REGIME OF THE

INTERNATIONAL CRIMINAL COURT: NATIONAL IMPLEMENTATION IN AFRICA 10N11

(2017).

197. Frédéric Mégret &Marika Giles Samson, Holding the Line on Comple-

mentarity in Libya Debate: The Case for Tolerating Flawed Domestic Trials, 11

J. INT’L CRIM. JUST. 571N73 (2013).

198. See generally Charles Chernor Jalloh, Africa and the International

Criminal Court: Collision Course or Cooperation?, N.C. Cent. L.J. 203, 209N11

(2012); William A. Schabas, &ictor’s Justice: Selecting “Situations” at the Inter-

national Criminal Court, 43 J. MARSHALL L. REV. 53, 549 (2010); Jeremy

Sarkin, Enhancing the Legitimacy, Status, and Role of the International Crim-

inal Court Globally by Using Transitional Justice and Restorative Justice

Strategies, 6 INTERDISC. J. HUM. RTS. L. 83N84 (2012).

2018] The AU and the Complementarity Principle 495

In fact, some even abetted it. As if that is not bad enough,

lately, some in the more powerful parts of the world have given

themselves the right to extend their national jurisdiction to in-

dict weaker nation s. This is total disregard of international jus-

tice and order. Where does this right come from? Would the

reverse apply—such that a judgment from less powerful na-

tions indicts those from the more powerful? This is mere arro-

gance which simply has to be resisted. Most certainly this is

not the tomorrow we should co ntinue to see in our globe, our

continent and my country. We envisage a world community in

which sovereign nations govern themselves, and where the dig-

nith oM a nation’s inJalitants is paramount whether a country

is powerful or no t. . . .

199

Thus, these perceived statutory shortages of the complemen-

tarity regime continue to raise doubts as to how best national

authorities, in conjunction with the ICC, may implement the

principle within national legal orders, particularly those in Af-

rica, where the ICC is currently witnessing stiff opposition from

tJe A4^ Wn manh 'es*eQtsb tJe o**osition oM tJe A4 to tJe WCC’s

jurisdiction in Africa presents many challenges for national im-

plementation of the complementarity regime. But, there are also

numerous political, institutional, and legal opportunities that

can be explored to ensure timely and proper implementation of

complementarity in the continent. These opportunities and chal-

lenges will be discussed below.

II. NATIONAL IMPLEMENTATION OF THE COMPLEMENTARITY

REGIME WITHIN THE AFRICAN NATIONAL LEGAL ORDERS:

OPPORTUNITIES AND CHALLENGES

The ultimate goal of the ICC—prosecuting those responsible

for committing horrendous cr imes of genocide, war crimes,

crimes against humanity, and crimes of aggression on African

soil—appears to be elusive, more than a decade after the Rome

Statute was successfully negotiated. The lack of political will on

the part of African governments, as well as the contemporary

politics of international criminal justice, influenced by geograph-

199. Paul Kagame, Rwanda President, Address at the ‘Facing Tomorrow Con-

ference’, Presidents Aiscussing Tomorrow (May 13, 2008), http://presi-

dency.gov.rw/in-

dex.php?id=23&tx_ttnews%5Btt_news%5D=10&cHash=950c52f08187b85fe4a

b857981ca4b73.

496 BROOK. J. INT’L L. [Vol. 43:2

ical factors and distrustful international relations, has contrib-

uted significantly to the lethargy dampening the timely realiza-

tion oM tJe WCC’s LoaH^ [MMo'ts to im*Hement tJe Qom*Hementa'ith

regime in Africa continue to be scuttled, with a renewed call

from different quarters within the continent for an independent

Afro-framed prosecutorial approach, free of any interference by

the ICC. This part will examine the opportunities and challenges

arising from the efforts to implement the complementarity re-

gime within African national legal orders. It will first examine

8tates’ olHiLations to im*Hement tJe 9ome 8tat&te’s Qom*Hemen`

tarity principle. It will then reflect on the legislative steps that

African States may take to implement the principle, namely the

minimalist approach and the express and specific criminaliza-

tion approach. Legal reflections on these legislative steps will

occur by drawing key lessons from other advanced jurisdictions

in the world, such as Germany, the United Kingdom, Canada,

Finland, New Zealand, and France. In these jurisdictions, imple-

menting legislation has either been successfully enacted or ex-

isting legislations have been adjusted to meet the Rome Stat-

&te’s implementation demands. This Part will also examine im-

plementation challenges facing African States in this regard. Fi-

nally, it will reflect on the overall success of ICC justice, and the

extent to which it has been accepted and/or rejected in an AU

context, while ascertaining whether mere compliance with inter-

national legal norms by African States can be validly rated as an

indication of acceptance.

A. E;amining States’ Obligations to Implement the Rome

Statute

The argument for domestic implementation of the Rome Stat-

&te’s Qom*Hementa'ith 'eLime is Mo&nOeO on tJe &nOe'stanOinL

that the ICC does not exercise universal jurisdiction over

crimes.

200

6Je WCC’s I&'isOiQtion is onHh aQti%ateO jJen Qo'e

crimes occur on the territory of a State Party that has accepted

the ICC’s jurisdiction (territorial jurisdiction), where the ac-

cused is a national of such a State (active nationality principle),

or where the case is referred to the ICC by State Parties or by

200. Max Du Plessis & Jolyon Ford, Overview of the General Nature of Rome

Statute Implementation Obligations, in UNABLE OR UNWILLING?: CASE STUDIES

ON DOMESTIC IMPL EMENTATION OF THE ICC STATUTE IN SELECTED AFRICAN

COUNTRIES 12 (Max Du Plessis & Jolyon Ford eds., 2008).

2018] The AU and the Complementarity Principle 497

the U.N. Security Council, acting under Chapter VII of the U.N.

Charter. The Rome Statute of the ICC requires States to cooper-

ate with the ICC,

201

especially as relating exclusively to matters

of investigation, execution, and trial procedures.

202

This is so,

given the fact that the ICC does not have its own police force to

enforce its judgment, and has no robust detention or pr ison fa-

cilities to hold suspects. The Statute, however, does not in strict

terms impose any specific duty on States to implement the pro-

visions of the Statute. 6Je 8tat&te’s MaiH&'e to s*eQiMiQaHHh im*ose

a O&th on 8tates to im*Hement tJe 8tat&te’s *'o%isions is most

regrettable, to say the least. That notwithstanding, it is argued

that tJe 9ome 8tat&te’s prohibition of core crimes of genocide,

war crimes, crimes against humanity, and crimes of aggression

is quite consistent with the demands of jus cogens peremptory

norms of international law. Therefore, erga omnes obligations

upon States to implement, and not derogate from these norms,

are intended. This argument is further reinforced by the fact

that the implementation of international law principles at the

domestic level is an age long practice of States arising from

opinio juris, since the acts of implementation are tak en by a sig-

nificant number of States and not rejected by a significant num-

ber of States.

203

With regards to the complementarity principle,

it is s&lmitteO tJat aHH oM tJe 9ome 8tat&te’s Q'imesb toLetJe'

with the applicable principles (whether general or jurisdictional)

and duties on States thereon, had long been recognized under

international law, even before the ICC Statute was adopted.

204

201. See Rome Statute, supra note 1, art. 86N102.

202. See id. art. 86N102, 103N11 (outlining the different forms of cooperation,

including general compliance with the ICC requests for cooperation (Article

87); surrender of persons to the Court (Article 89); provisional arrests pursuant

to ICC requests (Article 92); identification or location of persons or items, tak-

inL anO *'oO&Qtion oM e%iOenQeb se'%iQe oM OoQ&mentsb MaQiHitatinL jitnesses’

anO ei*e'ts’ attenOanQe leMo'e tJe WCCb tem*o'a'h transfer of persons, sites

examination, execution of search and seizure orders, protection of witnesses,

freezing and sequestration of property and assets (Article 93); enforcement of

sentences (Article 103N107); and fines and forfeiture orders (Article 109)).

203. See Statute of the International Court of Justice, art. 38(1), June 26,

1945, TS 993.

204. For example, see provisions contained in the Four Geneva Conventions

of 12 August 1949: Convention for the Amelioration of the Condition of the

Wounded and Sick in Armed Forces in the Field (First Geneva Convention),

Art. 49; Convention for the Amelioration of the Wounded, Sick and Ship-

wrecked Members of Armed Forces at Sea, (Second Geneva Convention), Arti-

498 BROOK. J. INT’L L. [Vol. 43:2

In many cases, the obligation incumbent on States to introduce

international crimes into national laws derive s from treaties

205

and/or customary international law. Consequently, as opposed

to the ad hoc international criminal Tribunals for former Yugo-

slavia and Rwanda, which by their respective primacy jurisdic-

tion and stronger constitutive basis do not necessarily require

any further implementation domestically, the ICC regime, given

its complementarity jurisdiction and weaker constitutive basis,

requires incorporation into domestic law. In addition, and given

the limited scope of the operational mandates of the ICTY and

the ICTR Tribunals, focusing on particular cases and not having,

like the ICC, universal implications, there was no immediate

need to incorporate certain aspects of their Statutes, particu-

Ha'Hh Q'imes jitJin tJe 6'il&naHs’ I&'isOiQtion^

206

As the Tribu-

nals were created by means of Security Council Resolutions,

207

the duty behooves on States, based on the U.N. Charter, the ob-

ligation to cooperate with the Tribunals.

208

In principle, as op-

posed to practical realities, such duty prevails, even if national

provisions are contradictory.

209

Thus, comparing the implemen-

tation efforts undertaken with regard to the Tribunals with

those of the ICC, it is crystal clear that their different constitu-

tive basis has an impact on the stages of incorporation.

210

The

ICC, being a creation of an international treaty, ascribes to

cle 50; Convention Relative to the Treatment of Prisoners of War, (Third Ge-

neva Convention), Article 129; Convention relative to the Protection of Civilian

Persons in time of War, (Fourth Geneva Convention), Art. 146. See also Addi-

tional Protocol I to the Geneva Conventions, 8 June 1977, Article 85; Conven-

tion on the Repression and Punishment of the Crime of Genocide, 9 December

1948, Articles 4 and 6; and the Convention against Torture and other Inhu-

mane or Degrading Treatment or Punishment, Article 7.

205. For example, see Article 6 of the Torture Convention (1984) (showing

how States undertook to enact necessary legislation to give effect to the pro vi-

sions of the Conventions).

206. Bekou, supra note 61, at 233.

207. The ICTY Tribunal and its Statute was established by Security Council

Resolution 827. See S.C. Res. 827 (May 25, 1993); see also U.N. Secretary-Gen-

eral, Report of the Secretary -General Pursuant to Paragraph 2 of Security

Council Resolution 808, U.N. Doc. S/25704 (May 3, 1993). Similarly, the ICTR

Tribunal and its Statute was established by Security Council Resolution 955.

See S.C. Res. 955 (Nov. 8, 1994).

208. Bekou, supra note 61, at 233.

209. Id.

210. Id.

2018] The AU and the Complementarity Principle 499

States obligations that need to be balanced against other inter-

national State obligations, as well as requirements of domestic

laws, especially national constitutions.

211

In many cases, it is na-

tional constitutions that determine the timing of implementa-

tion, before or after ratifying the Statute. Many States prefer to

enact implementing legislation before ratification, as it gives the

State concerned adequate time to review conflicting provisions

in order to make necessary amendments.

212

This tendency may

be explained by the fact that domestic implementation takes

timeb 'eLa'OHess oM Joj ei*eOitio&s anO aQQeHe'ateO tJe 8tate’s

efforts to quickly implement may be. It may also be that a State,

desirous of giving immediate support from the domestic front to

the ICC, wants to proceed with the ratification first, whereas

implementation, being a rigorous domestic affair, follows subse-

quently thereafter. Implementation, as envisaged here, there-

fore requires States to review and adjust their domestic criminal

laws to reflect, as closely as possible, the expressions of the Rome

Statute, including the meaning and gravity of substantive

crimes, penalties, and criminal defenses outlined under the Stat-

ute. Timely and proper implementation, however, depends on

what legal tradition a State follows in domesticating interna-

tional legislations or treaties. Starke maintains tJat 7notJinL is

more essential to a proper grasp of the subject of international

law than a clear understanOinL oM its 'eHation to 8tate Haj^5

213

The two most important theories that deal with the relationship

between international and municipal law, in terms of transcrip-

tion of international law into domestic law, are monism and du-

alism.

214

Whatever tradition a State follows, monism or dualism

becomes very important at the implementation stage. The mon-

ist theorists hold that both State and international law consti-

tute a single system of law,

215

and therefore the most important

211. Id.

212. Id.

213. J.G. STARKE, STARKE’S INTERNATIONAL LAW 71 (1989).

214. Id.; P. Dupuy, International Law and Domestic (Municipal) Law, in THE

MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 2 (2011).

215. See STARKE, supra note 213; see also J AMES CRAWFORD, BROWNLIE’S

PRINCIPLES OF PUBLIC INTERNATIONAL LAW 49 (8

ed. 2012); Curtis A. Bradley,

Our Dualist Constitution, and the Internationalist Conception, 51 STAN. L. REV.

529, 530N31 (1999); John H. Jackson, Status of Treaties in Domestic Legal Sys-

tems: A Policy An alysis, 86 AM. J. INT’L L. 310, 314 (1992); S.I. Strong, Beyond

500 BROOK. J. INT’L L. [Vol. 43:2

question relating to international law is whether it constitutes

actual law.

216

Monist thinkers, however, are quite divided on

which system of law, national or international, enjoys primacy.

Kelson,

217

for example, focused on the analysis and determina-

tion of the hierarchy of international and municipal legal norms,

on which laws and regulations are based, to reach the conclusion

tJat OomestiQ HeLaH o'Oe' enIohs s&*'emaQh^ UeHson’s anaHhsis

has been criticized by other thinkers

218

who argue that primacy

of State law over international law cannot account for the sus-

tained existence and stability of international law, contributing

to numerous changes in national constitutions, revolutions, and

similar developments. For Lauterpacht,

219

insofar as both State

and international law are concerned with individuals, specifi-

cally human rights protection, the very existence of State or mu-

nicipal law is dependent on international law. For that reason,

international law is supreme. Whatever reasons underline divi-

sion amongst the monist theorists, it does not militate against

the objectives of this article, as no legal taxonomy among the di-

vergent views is sought to be achieved. The fact remains that

under a monist system; international law applies directly into

domestic law, not requiring domestic implementation to take ef-

fect.

220

In dualist systems, however, national and international law

operate distinctly. Therefore, legal adaptation of the substances

of treaties is needed for their transcription into the national le-

gal system.

221

Most countries that follow the common law legal

system practice the dualist approach. In the United Kingdom,

for example, tr eaties to which the United Kingdom is a signatory

do not automatically become part of U.K. law. They only become

the Self-Execution Analysis: Rationalizing Constitutional, Treaty, and Statu-

tory Interpretation in International Commercial Arbitration, 53 VA. J. INT’L L.

499, 510 (2013).

216. See REBECCA M.M. WALLACE, INTERNATIONAL LAW 35 (2002).

217. See HANS KELSEN, PRINCIPLES OF INTERNATIONAL LAW 557N59 (1967); see

also HANS KELSE N, GENERAL THEORY OF LAW AND STATE 363N80 (1945).

218. See STARKE, supra note 213, at 71.

219. HERSCH LAUTERPACHT, INTERNATIONAL LAW AND HUMAN RIGHTS 61

(1950).

220. See, e.g., Shaw, supra note 22, at 131N33; see also L. OPPENHEIM,

INTERNATIONAL LAW: A TREATISE, VOLUME 1, 53 (2005); J.H. Jackson, Status of

Treaties in Domestic Legal Systems: A Policy Analysis, 86 AM. J. INT’L L. 310

(1992).

221. See ANTONIO CASSESE, INTERNATIONAL LAW 213N17 (2nd ed. 2005).

2018] The AU and the Complementarity Principle 501

part of U.K. law, with binding effect on the courts, after the Brit-

ish Parliament passes and enacts them into law.

222

Nigeria is

also a perfect example of a country that follows the dualist sys-

tem of incorporating international norms into domestic law.

223

This was confirmed by the Nigerian Supreme Court in Ibidapo

v. Lufthansa Ai rlines, where the Nigerian Supreme Court re-

marked that:

Nigeria like any other commonwealth country, inherited the

English Common Law rules governing municipal application of

international law. The practice of our courts on the subject

matter is still in the process of being developed and the courts

will continue to apply rules of intern ational law provided they

are found to be not overridden by clear rules of our domestic

law. Nigeria, as part of the international community, for the

sake of political and economic stability, cannot afford to live in

isolation. It shall continue to adhere to respect and enforce both

multilateral and bilateral agreements where their provisions

are not in conflict with our fundame ntal law.

224

This is reinforced by the Nigerian Constitution,

225

which pro-

vides that no treaty is enfor ceable in Nigeria unless the National

Assembly enacts it into domestic law. The African Charter on

X&man anO :eo*Hes 9iLJts f7!anI&H CJa'te'5db

226

is one interna-

tional Charter that Nigeria has domesticated through imple-

menting legislation,

227

pursuant to provisions of the 1999 Con-

stitution.

228

With respect to customary international law, how-

ever, Nigeria follows a monist approach, as customary interna-

222. See Roger P. Alfo rd, The Future of Human Rights Litigation After

KIOBEL, 89 NOTRE DAME L. REV. 1765 (2014).

223. See Babafemi Akinrinade, International Law and Domestic Legal Sys-

tems, in INTRODUCTIO N TO INTERNATIONAL LAW AND DOMESTIC LEGAL SYSTEMS

448, 457N58 (Dinah Shelton ed. 2011).

224. See Ibidapo v. Lufthansa Airlines, [1997] 4 NWLR (Pt. 419) 124, 150

(Nigeria), http://64.50.180.197/dbsight/search.do?indexName=lawpavil-

ion_ipad&q=court%3A%22Supreme+Court%22&start=10300.

225. See CONSTITUTION OF NIGERIA (1999), § 12 .1.

226. See AFRICAN C HARTER ON HUMAN AND PEOPLES RIGHTS, AFR. COMM’N

HUM. & PEOPLES’ RTS. (June 27, 1981), http://www.humanrights.se/wp-con-

tent/uploads/2012/01/African-Charter-on-Human-and-Peoples-Rights.pdf.

227. See AM'iQan CJa'te' on X&man anO :eo*Hes’ 9iLJts f9atiMiQation anO

Enforcement) Act, Cap A9 LFN 2004, http://www.nigeria-law.org/Afri-

can%20Charter%20on%20Human%20and%20Peoples%27%20Rights.htm.

228. See CONSTITUTION OF NIGERIA (1999), § 12(1).

502 BROOK. J. INT’L L. [Vol. 43:2

tional law is automatically incorporated into domestic law, re-

quiring no further legislation.

229

Regardless of any implementa-

tion tradition that States follow—monism or dualism—this arti-

cle argues that in the context of the WCC’s complementarity re-

gime, it is national constitutions that determine whether the

treaty establishing the ICC will be self-executing or require sep-

arate implementing legislation to be passed by domestic parlia-

ments to take effect in the concerned State. The expediency of

incorporation, therefore, dictates that, irrespective of whether a

State is monist or dualist in principle, a close examination of the

relevant State constitution is necessary to allow compliance with

the Statute.

230

This is particularly important given the ICC Stat-

&te’s very nature, which does not make it easily discernable as

to how this treaty could be applied without specific legislative

authority in the domestic sphere.

231

B. Legislative Steps Towards Implementation: The Need for

African States to Implement the Rome Statute Through the

Enactment of Complementarity Legislation

Different approaches govern the WCC 8tat&te’s a**HiQation

within the domestic legal orders. Complementarity legislation is

an instrument enacted by States designed to incorporate the

9ome 8tat&te’s provisions into their domestic laws, especially

the definition, elements, and penalties of substantive crimes.

232

The United Kingdom,

233

Kenya,

234

and Uganda,

235

are a few of

the many States that have already adopted complementarity

legislation to implement the Rome Statute. In Nigeria, a bill for

a law to implement the WCC 8tat&te’s provisions is currently be-

fore the Nigeria National Assembly.

236

These States have in com-

mon their status as Commonwealth States, their common law

system, and their dualist implementation approach.

229. See Akinrinade, supra note 223, at 461, 467.

230. Bekou, supra note 61, at 244.

231. Id.

232. Imoedemhe, supra note 170, at 84.

233. International Criminal Court Act, 2001, c. 17 (U.K.).

234. See International Crimes Act, No. 16 (2008) (Kenya).

235. The International Criminal Court Act 2010, Act 11 (June 25, 2010).

236. See Crimes Against Humanity, War Crimes, Genocide and Related Of-

fences Bill (2012) (Nigeria), http://www.pgaction.org/pdf/CRIMES-AGAINST-

HUMANITY-WAR-CRIMES-GENOCIDE-AND-RELATED-OFFENCES-

BILL-2012-Nigeria.pdf.

2018] The AU and the Complementarity Principle 503

According to S.J. Hankins,

237

the legislator needs to consider a

wide range of issues in enacting implementing legislation de-

signed to incorporate the 9ome 8tat&te’s crimes into domestic

laws. First, which definitions of the crimes should be adopted?

Should it come from reference to the 9ome 8tat&te’s definitions

and categorizations or by drafting specific definitions? Or,

should it come from restricting consideration to the stringent im-

plementation of Rome Statute cr imes, or by looking beyond that

to the other State obligations derived from other germane inter-

national instruments or international customary law?

238

Second,

how and where in domestic law should the crimes be stipulated?

Should it be within a stand-alone legislation or through amend-

ments to existing domestic penal codes?

239

Third, what penalties

should be prescribed?

240

Fourth, on what basis should the State

assert jurisdiction? Should it be based on territoriality and/or

nationality, or universal jurisdiction; whether to require the

presence of the alleged perpetrator on the national territory; and

whether jurisdiction should be asserted retrospectively or only

prospectively? Fifth, should the existing rules on criminal re-

sponsibility be amended considering the Rome Statute provi-

sions?

241

Finally, how should the Elements of Crimes document

be used?

242

To this end, States can adopt different approaches.

AmonL tJe OiMMe'ent a**'oaQJes a'e tJe 7minimaHist a**'oaQJb5

tJe 7ei*'ess anO s*eQiMiQ Q'iminaHigation a**'oaQJb5 anO tJe 7Jh`

l'iO metJoO^5 6Je otJe' is 7Oi'eQt anO]o' OhnamiQ 'eMe'enQe to

Q&stoma'h inte'nationaH Haj^5

243

These broad approaches are

discussed below in connection with discussing the WCC 8tat&te’s

status within the national legal systems.

237. S.J. HANKINS, OVERVIEW OF WAYS TO IMPORT CORE INTERNATION AL

CRIMES INTO NATIONAL CRIMINAL LAW, FICHL PUB. SERIES 6 (2010),

http://www.toaep.org/ps-pdf/1-bergsmo-hayashi-harlem-second.

238. Id.

239. Id.

240. Id. at 4.

241. Id.

242. Id. at 5.

243. On dynamic reference to customary international law, see Helmut

Kreicker, National Prosecution of International Crimes from a Comparative

Perspective: The Question of Genocide, MAX PLANCK INST. FOREIGN & INT’L

CRIM. L. 1, https:/ /www.mpicc.de/files/pdf1/natstraf_vortrag_nottingham.pdf.

504 BROOK. J. INT’L L. [Vol. 43:2

1. The Minimalist Approach

The traditional and/or minimalist approach is a method

whereby States simply rely on existing ordinary criminal or mil-

itary law, which is already in operation, and apply its provisions

to the international behavior in question.

244

This approach does

not permit the use of national criminal law to incorporate inter-

national crimes, but only applies its classifications to the con-

duct.

245

The main shortcoming of the minimalist approach is

that the offences concerned correspond only minimally with in-

ternational law requirements in defining offences.

246

This is in

addition to the fact that the penalties provided in domestic crim-

inal law may be incompatible with the gravity of international

crimes. In some cases, as in States for example, Germany has

adopted direct application of customary international law,

247

whereas Canada opted for dynamic reference to customary in-

ternational law into their national criminal laws.

248

Also with

respect to war crimes, States including Finland, Poland, Swe-

den, Russia, and the United States define the acts or conducts

which constitute crimes under national law by dynamically re-

ferring to customary international law.

249

These divergent ap-

proaches by States raise a big question as to what should be the

form and place of criminalization. Should the legislative author-

ity enact distinct legislations dealing with substantive issues on

the one hand and issues related to cooperation with the ICC on

the other? Or should the legislator address these matters in a

single legislation? Should the crimes be simply introduced into

existing penal and/or criminal codes, or stipulated separately in

a Statute of a special kind? According to Hankins,

250

enacting a

special stand-alone legislation may significantly permit all do-

mestic rules governing procedures for domestic implementation

of international treaties dealing with international crimes to be

244. See Goran Sluiter, Appearance of Witnesses and Unavailability of Sub-

poena Powers for the Court, in INTERNATIONAL CRIMINAL JUSTICE: LAW AND

PRACTICE FROM THE ROME STATUTE TO ITS REVIEW 459, 474 (Roberto Bellelli ed.

2010).

245. Imoedemhe, supra note 170, at 87N88.

246. Id.

247. See GRUNDGESETZ [GG] [BASIC LAW], art. 25, translation at

http://www.gesetze-im-internet.de/englisch_gg/index.html (Ger.).

248. See Crimes Against Humanity and War Crimes Act, sec. 4(1) (2000),

http://laws-lois.justice.gc.ca/eng/acts/C-45.9/ (Can.).

249. Kreicker, supra note 243, at 33.

250. HANKINS, supra note 237, at 9.

2018] The AU and the Complementarity Principle 505

contained in a single piece of legislation. This approach also af-

fords an opportunity to bring together, under one act, both the

definition of the crimes and the various general principles of

criminal law applicable thereto. In contrast, incorporating inter-

national crimes into existing legislation obligates the law maker

to determine the place (for example, in ordinary criminal codes,

military criminal codes, or both) and the form (for example, as a

special section or chapter) of their incorporation. Germany, the

Netherlands, and Canada are among those States which have

adopted the special stand-alone approach when implementing

the Rome Statute crimes. Germany adopted a complete stand-

alone international criminal code

251

dealing with the Rome Stat-

&te’s substantive part. It also adopted a separate cooperation

legislation to implement the cooperation regime. Under the UK

ICC Act 2001, its first four parts documenting cooperation pro-

visions precede the substantive part (part five) dealing with

Rome Statute crimes, thereby integrating the implementation

and cooperation regime into a single document. In the context of

Africa, however, a separate cooperation legislation to implement

the Rome Statute has been advocated by Imoedemhe

252

in her

thesis. This approach definitely presents many advantages, as it

is exhaustive in terms of traditions of codification and permits a

thorough assessment of the potential issues that may arise when

dealing with ICL provisions before national courts.

253

Some

other States, like France, have opted for an amendment to only

those provisions which are affected by the WCC 8tat&te’s provi-

sions by incorporating cooperation provisions into the body of its

criminal procedure code.

254

This approach has the separate ad-

vantage that applicable provisions can be found in a single piece

of a document, allowing for easier access and a better apprecia-

tion of the procedures and their interface with the rest of crimi-

nal law codes. Civil law countries particularly prefer this ap-

proach, as codes are the foundation of their legal system.

255

It is

251. See VÖLKERSTRAFGESETZBUCH [CODE OF CRIMES AGAINST INTERNATIONAL

LAW (CCAIL)], translation at http://www.iuscomp.org/wordpress/wp-con-

tent/uploads/2014/03/voestgb.pdf (Ger.).

252. Imoedemhe, supra note 170, at 77N84.

253. Bekou, supra note 61, at 236.

254. See CODE DE PROCÉDURE PÉNALE [C. PR. PÉN.] [CRIMINAL PROCEDURE

CODE] art. 1 (Fr.).

255. Bekou, supra note 61, at 236N38.

506 BROOK. J. INT’L L. [Vol. 43:2

submitted that enacting separate cooperation legislation, dis-

tinct from complementarity legislation, is still imperative in the

African context, notwithstanding which legal system African

countries follow—common law or civil law systems. The WCC’s

inability to arrest President Al-Bashir of Sudan demonstrates

that a separate cooperation legislation enabling all States to spe-

cifically implement the cooperation regime beyond the Rome

Statute is imperative. Otherwise, future State cooperation with

the ICC, especially regarding the arrest and surrender of sus-

pects,

256

will simply be an exercise in futility. This is because the

WCC’s actual life is preeminently dependent on domestic jurisdic-

tions complying with requests for surrender and/or arrest of sus-

pects, as it is the only way to guarantee their appearance in

court.

257

In addition to ensuring the appearance of defendants in per-

sona before the ICC under Article 63 (1) of its Statute,

258

the is-

sue as to whether the WCC 8tat&te’s requirements of cooperation

depend on current international law of extradition needs some

explication.

259

As extradition is the customary way of transfer-

ring crime perpetrators to attend trial and/or serve a sentence,

its consequences stem from bilateral agreement between

States.

260

Sanh 8tates’ domestic laws encompass requirements

on extradition, but their nature, character, and content vary

from State to State.

261

The bedrock of extradition law is the prin-

ciple of double criminality.

262

The principle of double criminality

256. See Rome Statute, supra note 1, art. 89(1).

257. See Olympia Bekou & Sangeeta Shah, Realising the Potential of the In-

ternational Criminal Court: The African Experience, 6 HUM. RTS. L. REV. 499,

523 (2006).

258. There exists however the possibility that the defendant requests to be

excused from the trial at the ICC while being represented by a legal counsel;

see e.g., Rule 134 under its Rules of Procedure and Evidence, Resolution ICC-

ASP/12/Res.7 (Nov. 27, 2013), https://asp.icc-cpi.int/iccdocs/asp_docs/Resolu-

tions/ASP12/ICC-ASP-12-Res7-ENG.pdf.

259. Imoedemhe, supra note 170, at 78.

260. See Anton Katz, An Act of Transformation: The Incorporation of the

Rome Statute of the ICC into National Law in South Africa, 12 AFR. SEC. REV.

25 (2003).

261. M. CHERIF BASSIOUNI, INTRODUCTION TO INTER NATIONAL CRIMINAL LAW

500N502 (2d ed. 2013).

262. Bert Swart, Arrest and Surrender, in THE ROME STATUTE OF THE

INTERNATIONAL CRIMINAL COURT 1639, 1652N54 (Antonio Cas se se et al. eds.,

2002).

2018] The AU and the Complementarity Principle 507

holds that the conduct, in respect of which extradition is re-

quested, amounts to a crime in both the law of the requested and

requesting State at the material time it was committed.

263

The

rationale is to ensure reciprocity and protection of the requested

individual against potential trial and punishment for conduct

that does not constitute a crime within the law of the requested

State.

264

Another aspect of extradition law is the principle of spe-

cialty, which requires that the State requesting extradition can-

not prosecute the extradited person for other offence(s) other

than that for which extradition was granted.

265

It is argued that

these procedural requirements, in addition to strains of statute

of limitations and immunities in national laws, constitute a lim-

itation to the process of bringing accused persons before the ICC.

These limitations in national procedures justify the argument

for separate cooperation legislation beyond the 9ome 8tat&te’s

cooperation provisions.

2. The Express and Specific Criminalization Approach

As an alternative to the minimalist approach, States are in-

creasingly adopting the express and specific incrimination ap-

proach into their domestic laws. Two methods of express and

specific criminalization may be adopted by the legislator here.

The first method is criminalization through a general and open-

ended reference to international treaties like the Rome Statute

and international law generally, or even to the customs and laws

of war, while stip ulating a range of punishments for the crimes

in question.

266

The major problem with the general and open-

ended reference method is that it does not conform adequately

to the principle of legality. The principle of legality presupposes

that no cr ime can be committed, nor punishment imposed, with-

263. Id. at 1653.

264. Id.

265. BASSIOUNI, supra note 261, at 501.

266. See Advisory Service on International Humanitarian Law, Methods of

Incorporating Punishment into Criminal Law, INT’L COMMITTEE RED CROSS 1N

3 (Mar. 2014),

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=

0ahUKEwjVod6ImJ_ZAhXKk1kKHe-

KiDPEQFgg2MAA&url=https%3A%2F%2Fwww.icrc.org%2Fen%2Fdownload

%2Ffile%2F1069%2Fmethods-of-incorporating-punishment-into-criminal-

law-icr-eng.pdf&usg=AOvVaw25oecQxlF1mRb-rZ8E-4CW.

508 BROOK. J. INT’L L. [Vol. 43:2

out a pre-existing penal law. The second method is express crim-

inalization of each and every crime outlined in relevant interna-

tional treaties, such as the Rome Statute and/or crimes recog-

nized under customary international law. Explicit criminaliza-

tion may take either of three forms, namely static or literal tran-

scription and dynamic transcription, or hybrid mixtures of both.

Static or literal transcription involves a transcription of the of-

fences into domestic law using an identical wording to that of

the international treaty, while setting out the penalties applica-

ble to the crimes in question. The main advantage of the static

transcription is that it is consistent with the legality principle,

insofar as it explicitly and predictably sets forth conduct that

will be considered criminal, as well as the envisaged punish-

ment.

267

The disadvantage, however, is that if the criminaliza-

tion is too exhaustive and definite, it may impede the national

Qo&'ts’ capacity to prosecute crimes in contemplation of new de-

velopments in international law. The static tr anscription

method is mostly practiced in common law States, notably in

England and Wales with the International Criminal Court Act,

2001;

268

Scotland with the Scottish International Criminal Court

Act, 2001;

269

and New Zealand with the International Crimes

and International Criminal Court Act, 2000.

270

There are two

variants of static transcription. The first variant is where States

do not necessarily reproduce the entire text of the applicable

Statute, but only make references to it.

271

The second variant is

where States not only adopt the entire text of the applicable

8tat&teb l&t aHso OetaiHs set o&t in tJe 8tat&te’s eHements oM

267. See Sluiter, supra note 244, at 476.

268. See International Criminal Court Act, 2001, art. 51(1), http://www.leg-

islation.gov.uk/ukpga (Eng.); see also Robert Cryer & Olympia Bekou, Interna-

tional Crimes and ICC Cooperation in England and Wales, 5 J. INT’L CRIM.

JUST. 441N59 (2007).

269. Scottish International Criminal Court Act, 2001, http://www.legisla-

tion.gov.uk/ (Scot.).

270. See International Crimes and International Criminal Court Act, 2000,

http://www.legislation.govt.nz/act/public/2000/0026/latest/DLM63091.html

(N.Z.).

271. Good examples of States that have adopted the first variant of the static

transcription method into their Rome Statute implementing legislation are

New Zealand, Uganda, and Kenya. See generally International Crimes and In-

ternational Criminal Court (Amendment) Act 2002, arts. 9, 10, 11 (N.Z.) (de-

fining international crimes with reference to the ICC Statute); International

Criminal Court Bill 2005 (Uganda); International Crimes Act 2008 (Kenya)

(making particular re ference to the ICC Statute).

2018] The AU and the Complementarity Principle 509

crimes document.

272

The dynamic transcription, on the other

hand, is a method whereby the categories of conduct amounting

to offences under the Rome Statute are redrafted, reformulated,

and redefined in domestic law.

273

This approach presumes that

the 9ome 8tat&te’s definitions and categorizations are not en-

tirely consistent with customary international law. Conse-

quently, dynamic transcription affords the draftsman the oppor-

tunity to complement the 9ome 8tat&te’s in such a way that it

reflects the list and classification crimes in related international

instruments. A final option of explicit criminalization is a hybrid

mixture or combination of static and dynamic criminalization

methods. A State utilizing the mixed approach may combine ex-

plicit and specific criminalization of certain transnational

crimes with a generic and covering residual clause, for example,

regarding crimes contained in other international treaties to

which the State is a party. Finnish criminal law

274

is a typical

example of a mixed approach, as it defines core international

crimes expressly, while incorporating others through an open-

enOeO 'eMe'enQe to ZinHanO’s 8tate olHiLations &nOe' inte'na`

tional law. While this article does not express particular prefer-

ence for any of the incorporation methods, it is, however, sub-

mitted that the duty behooves on States an obligation to exam-

ine the different approaches, with a view towards determining

which of them best suits their own domestic circumstances, al-

lowing them to maximize their benefit from the complementa-

rity regime. Whichever approach a State chooses, it must be

272. Good examples of States which adopted the second variant of the static

transcription method in their Rome Statute implementing legislations are

Australia, Argentina, the United Kingdom, Trinidad and Tobago, Samoa, and

Burundi. See generally International Criminal Court Act (Consequential

Amendment) 202, No. 42, sec. 268.4 (2002) (Aus.), http://www.ic-

cwomen.org/whatwedo/projects/docs/Overview_Implementing_Legislation.pdf;

International Criminal Court Act 2007 (Samoa), https://www.legal-

tools.org/doc/306cc9/pdf/; Burundi Law No. 1/004 (May 8, 2003); International

Criminal Court Act 2001 (U.K.); International Criminal Co urt Act 2006 (Trin-

idad & Tobago), http://www.ttparliament.org/legislations/a2006-04.pdf; Law

No. 26/200 on the Implementation of the ICC Statute (2007) (Argentina).

273. Sluiter, supra note 244, at 476.

274. See Finnish Criminal Code, ch. 13 (dealing with war crimes and crimes

against humanity); see also Act on the Implementation of the Provisions of a

Legislative Nature of the Rome Statute of the International Criminal Court

and on the Application of the Statute, No. 1284/2000, Issued in Helsinki on 28

December 2000, ¶ 2, http://www.finlex.fi/en/laki/kaan-

nokset/2000/en20001284.pdf.

510 BROOK. J. INT’L L. [Vol. 43:2

geared towards finding if not a total solution, a solution that at

least addresses inherent implementation challenges facing

States, especially struggling African States.

C. Challenges African States Face Implementing the Rome

Statute’s Complementarity Regime

It has already been established that States are under an obli-

gation to implement the Rome Statute. This finds solid anchor-

age in the fact that the Rome Statute governs core crimes that

violate jus cogens norms of international law, and all States owe

the international community erga omnes duties to put an end to

impunity crimes. Core crimes are intrinsically contrary to inter-

national law. Thus, States are either, by customary interna-

tional law or treaty law, obligated to try and punish guilty per-

sons, regardless of the territories where the offences are commit-

ted and irrespective of the nationality of the accused.

275

If the

essential values of a society demand the designation of certain

conducts as amounting to serious crimes and/or an affront to jus-

tice and disruption of the rule of law, then criminal law and its

implementation, both nationally and internationally, is the

yardstick by which those values are measured.

276

As the ICC

functions through a burden sharing arrangement,

277

in which

States take on the major responsibility of enforcing the Rome

Statute, the argument for domestic implementation is even more

meritorious. Domestic implementation is the metric for measur-

ing national capacity to investigate and prosecute core interna-

tional crimes. Although the obligation to implement the Rome

Statute may sometimes appear very burdensome on States be-

cause of conflicting demands of peculiar local circumstances, it

is argued that the benefits of proper implementation, including,

but not limited to, meeting the peace and justice needs of tran-

sitional societies, outweigh the burden to implement. These ben-

efits notwithstanding, immense challenges from the political, ju-

dicial, and institutional angles continue to face implementation

275. U.O UMO ZURIKE, INTRODUCTION TO INTERNATIONAL LAW 86 (2007).

276. Luz E. Nagle, Terrorism and Universal Jurisdiction: Opening a Pan-

dora’s Bo;, 27 GA. ST. U. L. REV. 3 (2010).

277. Adam Bower, Assessing the Diffusion of International Norms: Evidence

from State Incorporation of the Rome Statute of the International Criminal

Court 12 (Max Weber Programme, European University Institute (EUI) Work-

ing Papers MWP 2013/15).

2018] The AU and the Complementarity Principle 511

efforts in Africa. Politically, the major challenge has been con-

stitutional immunity

278

of African Heads of State and Govern-

ments. For example, under the Nigerian Constitution,

279

like in

many other national constitutions in Africa, the President and

Vice Pres ident are immune from any arrest, criminal liability,

or prosecution whatsoever, so long as they remain in office as

executive heads. This is in direct conflict with the Rome Statute

provisions, which remove immunity of Heads of State.

280

The di-

rect result is that States like Nigeria cannot afford to cooperate

with the ICC if the President or Vice President is indicted for

any core crimes. The Nigerian Constitution forbids any such co-

operation with the ICC. Such cooperation, if available at all, will

ultimately be subject to Nigeria’s *oHitiQaH inte'est jitJin tJe in`

ternational community. In fact, the 9ome 8tat&te’s implementa-

tion is not even currently prioritized by African States, contrib-

uting to the face-off between the AU and the ICC. This makes

outsourcing the technical aspects that would have ensured im-

plementation impossible. With respect to judicial challenges, the

major setback has been that there are no true independent and

credible judiciaries in Africa to prosecute core crimes. There is

still massive political interference in the judicial affairs of Afri-

can nations. This is especially the case given that the appoint-

ment of judges and prosecutors in many African countries are

politically determined, which results in the appointment of

judges and prosecutors with insufficient ICL expertise and expe-

rience. In addition, resources and expertise in the Chambers of

the Attorneys General of most African countries are grossly in-

sufficient. This is in addition to the fact that African States are

also part ies to other numerous international instruments and

are facing enormous capacity challenges with respect to imple-

menting them^ 6Jis is *a'tiQ&Ha'Hh tJe QJaHHenLe in 7YJanab

278. For a full discussion on Concept of Immunities, see Dapo Akande, Inter-

national Law, Immunities and the International Criminal Court, 98 AM. J.

INT’L L. 407N33 (2004).

279. See e.g., CONSTITUTION OF NIGERIA (1999), § 308 (immunizing the Presi-

dent, Vice President, Governors, and Deputy Governors from prosecution while

in office).

280. See Rome Statute, supra note 1, art. 27.

512 BROOK. J. INT’L L. [Vol. 43:2

Uenhab 6angania ^ ^ ^ 4LanOab5

281

and Botswana.

282

Also note-

worthy is the fact that corruption, including political and judicial

corruption ravaging African Countries, is a major set-back to the

9ome 8tat&te’s implementation. This argument is founded on

the premise that in a polity where judicial and political corr up-

tion is prevalent, States will be politically unwilling to imple-

ment any international criminal instrument that will indict

and/or accuse State officials of committing core crimes. After all,

States believe that core crimes of genocide, war crimes, and

crimes against humanity are already being treated as either

murder or torture in many national criminal laws. Therefore,

there is no need to implement the Rome Statute domestically.

6Jis is a QHea' siLn oM 7&n'es*onsi%eonessn to ei*e'ienQe oM mass

Q'iminaHith^5

283

This unresponsiveness is most evident in the de-

layed passage of implementing laws by national parliaments in

Africa. For example, a 2001 Bill to implement the Rome Statute

in Nigeria has not been signed into law for seventeen years

now.

284

There is definitely something wrong with a legal system

that takes such a long time to sign a legislative bill into law.

Corruption, it is argued, is the pr o blem. Generally, the negative

effects of corruption on societal values has already been given

281. See Sai O& :Hessis , VoHhon Zo'O eOs^b 3 Unable or Unwilling?, Case

Studies on Domestic Implementation of the ICC Statute in Selected African

Countries (Institute for Security Studies, Monograph No. 141, Mar. 2008).

282. See Lee Stone, Country Study 1: Botswana, in 3Unable or Unwilling?,

Case Studies on Domestic Implementation of the ICC Statute in Selected Afri-

can Coun tries (Institute for Security Studies, Monograph No. 141, Ma r. 2008).

283. See Gerry Simpson, The Death of Baha Mousa 8 MELB. J. INT’L L. 340,

349 (2007).

284. The Nigerian Federal Ministry of Justice se nt an executive bill, entitled

76Je 9ome 8tat&te oM tJe Wnte'nationaH C'iminaH Co&'t f9atiMiQation anO V&`

risdictiond !iHH E\\G5 to tJe RiLe'ian RationaH AssemlHh Mo' 'eaOinL anO aOo*`

tion, pursuant to Section 12 of the Constitution of the Federal Republic of Ni-

geria 1999, as amended. On June 1, 2004, the lower House of the Nigerian

Parliament (House of Representatives) passed its own version of the Bill. On

May 19, 2005, the Upper House of Parliament (the Senate) passed a Legislative

Bill to implement the Rome Statute. The Bill, however, was never signed into

law by the then President Olusegun Obasanjo. Cf. Tonye Jaja, Re-visiting the

Status of Nigeria’s 1embership of the International Criminal Court, FED. BAR

ASS’N (Winter 2017), http://www.fedbar.org/Sections/International-Law-Sec-

tion/Global-Pe rspectives/Winter-2017/Re-visiting-the-Status-of-Nigerias-

Membership-of-the-International-Criminal-Court.aspx (last visited Mar. 25,

2018).

2018] The AU and the Complementarity Principle 513

adequate attention in literature.

285

Legislative measures have

also been adopted nationally,

286

regionally,

287

and internation-

ally

288

to tackle the scourge. In the ICC’s ehes, the most culpable

corrupt States in Africa cannot claim to be able or willing to in-

vestigate and prosecute international crimes. Given this preva-

lence of corruption, the question is then asked—to what extent,

in terms of AM'iQan 8tates’ political willingness, has interna-

tional criminal justice, under the WCC’s auspices, been accepted

285. See, e.g., Nsongurua Udombana, Fighting Corruption Seriously: Africa’s

Anti-Corruption Convention, 7 SINGAPORE J. INT’L & COMP. L. 447 (2003); Klaus

Abbink, Staff Rotation as an Anticorruption Policy: An Experimental Study, 20

EUR. J. POLITICAL ECON. 887 (2004); Kenneth W. Abbott & Duncan Snidal, In-

ternational Action on Bribery and Corruption: Why the Aog Aidn’t Bark in the

WTO, in THE POLITICAL ECONOMY OF INTERNATIONAL TRADE LAW 177 (Daniel

M. Kennedy & James D. Southwich eds. 2002).

286. Nigeria, for example, has enacted several legislations to check corrup-

tion. See Udombana, supra note 285. They include the following: The Failed

Banks (Recovery of Debts) and Financial Malpractices in Banks Act, Cap F2,

Laws of Federation of Nigeria (2004), http://ndic.gov.ng/files/failedbk1.pdf;

Money Laundering Act, Cap M18, Laws of Federation of Nigeria (2004),

http://www.lawyard.ng/wp-content/uploads/2015/11/MONEY-LAUNDARY-

ACT-2004.pdf; Advanced Fee Fraud and Other Related Offences Act, Cap. A6,

Laws of Federation of Nigeria (2004), http://re-

sources.lawscopeonline.com/LFN/ADVANCE_FEE_FRAUD_AND_OTHER_F

RAUD_RELATED_OFFENCES_DECREE_NO.13_OF_1995_ACT_CAP._A_6

_L.F.N._2004.htm; Independent Corrupt Practices and Other Related Offences

Act (2000), http://www.nassnig.org/document/download/5792; Economic and

Financial Crimes Commission Act, Cap. E1, Laws of Federation of Nigeria

(2004), http://www.nassnig.org/document/download/5762.

287. See, e.g., African Union Convention on Preventing and Combating Cor-

ruption (2003), http://www.eods.eu/li-

brary/AU_Convention%20on%20Combating%20Corruption_2003_EN.pdf; In-

ter-American Convention against Corruption (1996) (Venezuela),

http://www.oas.org/juridico/english/corr_bg.htm; Arabic Convention for Com-

bating Corruption (2010), http://www.almeezan.qa/Agree-

mentsPage.aspx?id=1719&language=en. At EU level, see EU Convention

Against Corruption Invo lving Officials, Feb. 25, 2008, http://eur-lex.eu-

ropa.eu/legal-content/EN/TXT/?uri=URISERV:l33027. Within the Council of

Europe, see Council of Europe Civil Law Convention on Corruption, 2003,

Treaty No. 174, http://www.coe.int/en/web/conventions/full-list/-/conven-

tions/treaty/174; Council of Europe Criminal Law Convention on Corruption,

2002 Treaty No. 173., http://www.coe.int/en/web/conventions/full-list/-/conven-

tions/treaty/173.

288. See G.A. Res. 58/4 (2005); see also OECD Convention on Combating

Bribery of Foreign Public Officials in International Business Transactions

(1999), http://www.oecd.org/corruption/oecdantibriberyconvention.htm.

514 BROOK. J. INT’L L. [Vol. 43:2

and/or rejected in the continent? For instance, does mere com-

pliance by African States with international legal norms signify

enough indication of acceptance?

D. The Pull and Push of Acceptance of International Criminal

Justice in Africa: Is States’ Mere Compliance with International

Legal Norms Enough Indication of Acceptance?

Acceptance can be viewed from different angles, depending on

the parameters that one uses in analyzing the concept and the

very context it is analyzed. In the context of this analysis, ac-

ceptance is being seen as a convergence of legal and political in-

terests in the application of international criminal justice.

289

Thus, acceptance is deeply rooted not only in the decisions of Af-

rican governments to do so, but also in the resulting implement-

ing actions and inactions of State officials, such as judges, spe-

cial prosecutors, lawyers, victims and/or survivors, and the en-

tire civil society. It is argued that both the legal and political

acceptance of international criminal justice, offered by the ICC

jitJin tJe Qonteit oM AM'iQa’s nationaH HeLaH o'Oe'sb is s&lIeQt to

political interests of regional powers in Africa, such as Nigeria

anO 8o&tJ AM'iQa^ As *oje'M&H *Hahe's in AM'iQa’s aMMai'sb RiLe'ia

and South Africa must balance the competing, sometimes con-

flicting demands of their respective obligations to the interna-

tional community and their respective leadership statuses on

the continent. It is these pushes and pulls of continental leader-

ship that result in the vacillating acceptance of international

justice in Africa. Different events, including the Al-Bashir saga,

have demonstrated this dilemma. When the Sudanese Presi-

dent, Al-Bashir, attended the 25th Summit of the AU Assembly

of Heads of State and Government in South Africa in June 2015,

South African authorities declined to arrest Al-Bashir, implicitly

relying on the AU resolution not to cooperate with the ICC re-

garding the arrest warrant it issued for the apprehension of the

Sudanese President.

290

Nigeria also deployed similar tactics to

289. See, e.g., B.C. Olugbuo, Acceptance of International Criminal Justice in

Nigeria: Legal Compliance, Myth or Reality?, in AFTER NUREMBERG: EXPLORING

MULTIPLE DIMENSIONS OF THE ACCEPTANCE OF INTERNATIONAL CRIMINAL

JUSTICE, INTERNATIONAL NUREMBERG PRINCIPLES ACADEMY 2 (Sus anne Buckley

et al. eds., 2016).

290. Amanda Khoza, South Africa Failed in its Duty to Arrest Al-Bashir—

ICC, MAIL & GUARDIAN (J uly 6, 2017), https://mg.co.za/article/2017-07-06-

south-africa-failed-to-arrest-al-bashir-icc.

2018] The AU and the Complementarity Principle 515

protect Al-Bashir when he visited Nigeria as an attendee of th e

2013 AU Special Summit on HIV/AIDS in Abuja. When the ICC

prosecutor requested information on Al-!asJi'’s %isitb tJe RiLe`

rian government claimed that the event that brought the Suda-

nese President to Nigeria was organized by the AU, not Nigeria,

and therefore the country was not responsible for the attendees.

When pressed further by the ICC, the government claimed that

when it noticed the mistake in inviting Al-Bashir, the country

activated a legal process that remained inchoate until he left Ni-

geria.

291

Two years later, after the India-Africa Forum Summit

in October 2015, the Nigerian President, Buhari, flew Al-Bashir

out of India to Sudan with the Nigerian residential jet.

292

This

appears to be a clear message to not only Africa, but the whole

world in general, that solidarity among African leaders seems to

include the granting of impunity for international crimes.

293

These examples of disregard sJoj tJat AM'iQan 8tate’s aQ`

ceptance of the WCC’s jurisdiction and the AU as a regional body

is still lacking. The refusal of the AU to cooperate with the ICC

regarding the arrest of Bashir for his complicity in the Darfur

situation, even after the Darfur crisis was referred to the ICC by

the U.N. Security Council,

294

underscores this lack of acceptance.

Consequently, it is argued that mere compliance with interna-

tional legal norms in form, as opposed to substance, falls short

of the acceptance requirement. Regardless of the arguments sup-

porting ICC jurisdiction in Africa,

295

mere ratification of the

291. Nso ngurua Udombana, Can These Dry Bones Live? In Search of a Last-

ing Therapy for AU and ICC Toxic Relationship, 1 AFR. J. I NT’L CRIM. JUST. 57

(2014).

292. See How Buhari Smuggled Fugitive Omar Al-Bashir Out of India to Su-

dan, BREAKING TIMES (Nov. 2, 2015), http://www.thebreakingtimes.com/break-

ing-news-how-buhari-smuggled-fugitive-omar-al-bashir-out-of-india-to-su-

dan/.

293. See, e.g., Decision on the Progress Report of the Commission on the Im-

plementation of Decisio n Assembly/AU/Dec.270(XIV) on the Second Ministe-

rial Meeting on the Rome Statute of the International Criminal Court (ICC)

Doc. Assembly/AU/10(XV).

294. Press Release, Security Council, Security Council Refers Situation in

Darfur, Sudan to Prosecutor of International Criminal Court, U.N. Press Re-

lease SC/8351 (Mar. 31, 2005),

https://www.un.org/press/en/2005/sc8351.doc.htm. For details of the Security

Council Resolution 1593, adopted March 31, 2005, see S.C. Res. 1593 (Mar. 31,

2005).

295. See, e.g., KAMARI CLARKE, FICTIONS OF JUSTICE: THE ICC AND THE

CHALLENGE OF LEGAL PLURALISM IN SUB-SAHARAN AFRICA 237 (2009); Charles

516 BROOK. J. INT’L L. [Vol. 43:2

Rome Statute by African States, without further commitments

in terms of implementation to fully cooperate with the interna-

tional community in meeting the ends of criminal justice, is a

clear indication of rejection, rather than acceptance. The grow-

ing tension between the AU and the ICC, as well as its impact

on the future of international criminal justice in Africa, will be

discussed below to further underscore this point.

III. THE AU VERSUS THE ICC: GROWING TENSION AND THE

FUTURE OF INTERNATIONAL CRIMINAL JUSTICE IN AFRICA

The overall responsibility to implement legislation aimed at

the prosecution of grave violations of international humanitar-

ian law and international human rights law rests with the State.

This is fully recognized under international law. This duty ac-

counts for the *'inQi*He oM &*JoHOinL 8tates’ so%e'eiLnth regard-

ing the prosecution of certain individuals for international

crimes. Hence, it is no surprise that attempts to prosecute State

nationals at the supranational level have always been met with

stiff political resistance from concerned States. The United

States, for example, has always maintained that it would not

surrender its nationals, especially mem bers of its military, to the

ICC for trial. Thus, the United States did not ratify the Statute,

despite being one of its early supporters and signatories. An in-

creasing number of African countries, and the AU as a regional

body, are following the example of the United States and are

backing out of the ICC. Opponents of the ICC, within the AU

context, often cite the politics behind international criminal jus-

tice, which allow powerful (Western) nations to indict weaker

(developing) ones as a reason. This Part will first examine the

nature of these alleged politics and how this has impacted crim-

inal justice goals in Africa, given the growing tensions between

the AU and ICC. In assessing the pull factors fanning these po-

litical tensions and the prospects of resolving the impasse, Af-

'iQa’s Qont'il&tions to tJe WCC jiHH le QonsiOe'eO^ Wt jiHH tJen

explain how a planned establishment of an African regional

criminal court with regional complementarity jurisdiction is a

QJaHHenLe to im*Hementation oM tJe WCC’s Qom*Hementa'ith 'e`

gime in Africa. Against the background of the AU-ICC face-off,

this Part will conclude by looking at what the future has in store

Jalloh, Regionalising International Criminal Law?, 9 INT’L CRIM. L. REV. 445

(2009).

2018] The AU and the Complementarity Principle 517

for the ICC and international criminal justice, especially in a

continent where armed conflict, a polar opposite of justice and

peace, has been emblematic.

A. Addressing First Things First—The Politics of

International Criminal Justice

“If I may say so, this is not a court set up to bring to book Prime

Ministers of the United Kingdom or Presidents of the United

States.”

296

Wn HiLJt oM tJe 'eaHith oM 9olin Cook’s statement alo%eb tJe MoH`

lowing questions have been asked, and continue to be asked:

Whose interest does international criminal justice serve, and

who are the beneficiaries and/or heirs of its work?

297

Who are the

3je’ in inte'nationaH Q'iminaH I&stiQe"

298

These questions go to

the heart of more fundamental questions—whose imagery is pro-

jected as being the emblematic authority catalyzing the works of

the ICC? Is the authority backing the ICC the same as its recip-

ients, or are they in essence different? From whichever angle

these questions are addressed, the answers, it is submitted, are

inextricably interwoven with the politics of nations, given the

continued debate about the effectiveness of international crimi-

nal justice in a world controlled by sovereign States. It is either

that international criminal justice prevails with the backing of

a world sovereign, or the logic behind the argument to tame

State sovereignty in the interest of justice is allowed to prevail.

If international criminal justice is allowed to prevail with the

backing of a world sovereign, then the ICC may at least, in the

abstract sense, perceive itself, or be perceived by observers, as

working for justice and the interest of the whole international

296. Former British Foreign Secretary, Robin Cook, was on BBC News Night

to answer questions on whether the new ICC might one day indict Western

leaders for their decisions to go to war in Iraq. See Courtenay Griffiths QC,

Racism and the Criminal Justice System, Speech at Corruption, Spying, Rac-

ism and Accountability Conference at Conway Hall London (Feb. 7, 2015),

http://justyorkshire.org.uk/2015/02/18/racism-and-the-criminal-justice-sys-

tem/.

297. Frederic Megret, In Whose Name? The ICC and the Search for Constitu-

ency, in CONTESTED JUSTICE: THE POLITICS AND PRACTIC E OF INTERNATIONAL

CRIMINAL COURT INTERVENTIONS 26 (Stahn Carsten et al. eds., 2015).

298. Immi Tallgren, We Did It? The Vertigo of Law and Everyday Life at the

Diplomatic Conference on the Establishment of an International Criminal

Court, 12 LEIDEN J. INT’L L 683, 683 (2004).

518 BROOK. J. INT’L L. [Vol. 43:2

community. This is an equitable customary superiority, one that

forefronts the significance of a justice idea as a precursor of the

institutions seeking to inject life into it. The ICC and other in-

ternational criminal tribunals are hypothesized as the reposi-

tory of criminal justice ideas in the new world order. The politi-

cal dimension of the ICC’s jo'k is oMten Oojn*HaheO in tJe WCC’s

discourses and practices,

299

and many of its actions and policies

can be diagnosed from the way and manner it allocates discrete

forms of power. In certain circumstances, the ICC does exercise

what may be described as mandatory power

300

over individuals,

including the power to arrest persons and protect victims and

jitnesses^ Wn tJese Qontentio&s a'easb tJe WCC’s manOato'h

power appears to be tantamount to usurpation of State power,

and is most susceptible to criticisms that include, but are not

limited to, a lack of democratic answerability. These criticisms

appear to be justifiable in some ways. For example, application

of ICL is politicized when the WCC’s jurisdiction is triggered to

prosecute certain individuals for certain cr imes, and at the same

time, it is not invoked to prosecute some other individuals that

committed the same or similar crimes. Sometimes the justifica-

tion for select prosecution of individuals relates to those that

carry the highest liability for crimes. But certainly, prosecution

of a select few cannot, in all sense of reasonableness and logical-

ity, be seen as enough to serve the true purpose of eliminating

core crimes in all their ramifications. Instead, selectivity consti-

tutes a threat to the ICC’s legitimacy,

301

insofar as it gives rise

to sQa*eLoat 'Jeto'iQb as e%iOent O&'inL 6Jomas T&lanLa’s t'iaH

before the ICC. According to Kenneth Davis,

302

selectivity be-

speaks of a situation where a law enforcement officer or agency

exercises injudicious power of discretion to refuse to do anything

about a case, even when taking action is obviously justified and

expected. Such discretionary power plays out when certain par-

ties against whom the law is enforced are selected,

303

regardless

299. See Nouwen & Werner, supra note 125.

300. See CONTESTED JUSTICE: THE POLITICS AND PRACTICE OF INTERNATIONAL

CRIMINAL COURT INTERVENTIONS 5N6 (Stahn Carsten et al., eds., 2015).

301. See generally Margaret M. de Guzman, Choosing to Prosecute: Expres-

sive Selection at the International Criminal Court, 33 MICH. J. INT’L L. 271

(2012).

302. KENNETH C. DAVIS DAVIS, DISCRETIONARY JUSTICE: A PRELIMINARY

INQUIRY 163 (1969).

303. Id.

2018] The AU and the Complementarity Principle 519

of whether it is justifiable or not. New Magazine Africa, citing

Griffiths, posits that there is an undeclared truth about the way

and manner in which ICL is currently practiced.

304

Wt is tJat 7Qe'`

tain individuals, from certain countries of origin will never find

themselves indicted before an international criminal tribu-

naH^5

305

To this end, Courtenay Griffiths QC, who himself acted

as the lead counsel for Charles Taylor (Ex-President of Liberia)

during his trial at the SCSL, stated that:

There is an unspoken truth about inte rnational criminal law

as currently practiced. It is that certain individuals, from cer-

tain countries of origin will never find themselves indicted be-

fore an international criminal tribunal for: right, as the world

goes, is only in question between equals in power, while the

strong do what they can and the weak suffer what they must.

This is the fundamental operating principle of international

criminal law, rooted, not in their commitment to justice, but in

their vastly superior economic, military and political power,

and their control of the global opinion-forming agencies. The

fact is that ruling elites can violate laws with impunity, while

members of subject classes will be punished. Contrast the

treatment of bankers and rioters in contemporary Britain and

the US at a domestic level. Likewise contrast in the interna-

tional arena the treatment of crimes committed by Britain, the

48 anO Ws'aeHb anO tJose QommitteO in Tile'iab Cote r’W%oi'e

or Libya. Acts are defined as criminal because it is in the inter-

ests, or at least not against the interests, of a ruling class to

define them as such.

306

Against the backdrop of Griffiths’ argument above, selectivity

of prosecution may therefore be said to take either or all of the

following forms; namely selectivity of denunciation, selectivity of

investigation, selectivity of prosecution, and selectivity in terms

of impunity.

307

Selectivity, as it relates to suspects that the in-

ternational community is disposed to collectively prosecute, is

referred to as selectivity ratione personae.

308

The doctrine of ra-

tione personae presupposes that equal application of the law

304. The Politics of International Criminal Law, NEW MAG. AFR. (Mar. 1,

2012), http://newafricanmagazine.com/the-politics-of-international-criminal-

law/.

305. Id.

306. Griffiths QC, supra note 296 (emphasis added).

307. Id.

308. See Timothy L.H. McCormack, Selective Reaction to Atrocity, 60 ALB. L.

REV. 681, 683 (1996N97).

520 BROOK. J. INT’L L. [Vol. 43:2

should not be influenced by political considerations.

309

It is cru-

cial to note, however, that while it is desirable to prosecute all

crimes, in practice, no criminal justice system anywhere in the

world has the capacity to prosecute all crimes, regardless of how

serious they may be.

310

This justifies the argument that selective

law enforcement is not in and of itself inherently wrong, as al-

most all legal systems permit it.

311

Thus, selectivity ratione per-

sonae, whether legally-based or legitimacy-based, bespeaks of

the fact that all terrestrial justice is selective.

312

In the ICC con-

text, selective prosecution of individuals appears inevitable, as

the court is highly dependent on the cooperation of States and

associated institutions to assist it in carrying out its statutory

functions. To this end, it is believed that international courts,

like the ICC, maintain their power through formalized re-

sponses, practices, and policies of interaction,

313

while decisions

or claims to authority are then translated into technical legal

OoQ&ments to att'aQt aQQe*tanQe oM tJe WCC’s aQtions o' to miti`

gate criticisms against it.

314

While it could be argued that every

case before the ICC has its own political character and content,

it is not plausible to conclude that justice is a political tool. A

more logical argument may be that justice does not function in a

vacuum. In other words, justice cannot, in practical terms, be

completely isolated from the politics of those advancing its

cause. Considerations of this kind are particularly relevant in

international trials, where judgments against core crimes are

technically designed to distinguish between enemies and

friends, and between evil and good. By so doing, the ICC and

other international courts fail to disentangle their work from the

political realities of the cases they adjudicate upon and the

sways and limits wielded by the international community. Two

case studies, namely the Darfur and Northern Uganda crises,

will better highlight this point. Regarding the Darfur region of

309. ROBERT CRYER, PROSECUTING INTERNATIONAL CRIMES: SELECTIVITY AND

THE INTERNATIONAL CRI MI NAL LAW REGIME 192 (2005).

310. See Kai Ambos, Comparative Summary of the National Reports, in THE

PROSECUTOR OF A PERMANENT INTERNATIONAL CRIMINAL COURT 495, 525 (Ar-

bour et al. eds., 2000).

311. CRYER, supra no te 309.

312. Mi rjan Damaska, What is the Point of International Criminal Justice?,

83 CHI.-KENT L. REV. 347, 361 (2008).

313. See Jens Meierhenrich, The Practice of International Law: A Theoretical

Analysis, 76 L. & CONTEMP. PROBS. 1 (2014).

314. Me gret, supra note 297, at 26.

2018] The AU and the Complementarity Principle 521

Sudan, the United Nations passed a series of Resolutions in re-

sponse to the conflict, to no avail, after which the Security Coun-

cil finally referred the case to the ICC. It was the first time that

the Security Council would refer a case to the ICC and that the

ICC would exercise jurisdiction over a non-state Party to the

Rome Statute.

315

In many respects, this case demonstrates that

the ICC is inevitably trapped in the political dilemma of the Dar-

fur crisis by its mere decision to prosecute President Omar Al-

Bashir and top Sudanese government officials. The effect of this

is that it confers some degree of legitimacy on the Darfur rebel

group. In fact, the group capitalized on it to project themselves

as partners in progress with the ICC against the perpetrators of

the atrocious crimes committed in Darfur.

316

The political in-

volvement of the ICC is not that it is siding with one party per

se, but rather, by labelling Al-Bashir and his officials as hosti

humani generis—enemy of all mankind—it appears to be legiti-

mizing the activities of the rebels.

317

In the case of Northern

Uganda, the ICC played a similar, yet opposite, role in distin-

guishing enemies from friends. The LRA rebels were projected

as enemies, whereas the government of President Yoweri Muse-

veni was projected as an ally. This stems from the 2003 self-re-

ferral of the Ugandan situation to the ICC. It can logically be

argued that the ICC, in stepping into the Ugandan dilemma

upon request from the government, can only favor President Mu-

seveni.

318

The ICC’s inte'%ention, with active support from the

Ugandan government, along with the blacklisting of the LRA re-

bels as enemies of not only the Ugandan government, but also

the internationaH Qomm&nithb jiHH Ma%o' S&se%eni’s lHoQ^

319

This

is so because the LRA rebels had already been internationally

315. See Thomas Thompson-Flores, The International Criminal Court: Will

it Succeed or Fail—Determinative Factors and Case Study on This Question, 8

LOY. U. CHI. L.J. 57, 78 (2010).

316. Nouwen & Werner, supra note 125.

317. Id. at 957.

318. See COUNTRY SUMMARY REPORT: JANUARY 2005, HUM. RTS. WATCH,

http://pantheon.hrw.org/legacy/wr2k5/pdf/uganda.pdf.

319. Nouwen & Werner, supra note 125, at 949.

522 BROOK. J. INT’L L. [Vol. 43:2

ostracized

320

at the time, and were in fact on the list of U.S. ter-

rorist groups.

321

It is argued that the WCC’s legitimacy as an in-

ternational court cannot be validly discredited solely on the

grounds that at some point, in an attempt to render interna-

tional justice, it got caught up in the politics of the moment. Per-

haps, prior to the WCC’s establishment, international tribunals

were frequently criticized for being pure political manipulations,

insofar as the judges at Nuremberg (being loyal to the %iQto'’s

justice pursuits) were exercising jurisdiction in the absence of a

precise body of law to refer to. The case of the ICC is, however,

different. The Rome Statute grants the ICC legitimate jurisdic-

tion, thereby escaping any political bias against it. The ICC re-

gime solves two major problems that characterized the Nurem-

berg trials and subsequent ad-hoc tribunals. First, it resolves

the issue of the nullum crimen, nulla poena sine praevia lege

poenali

322

principle of international law concerning the absence

of a written law, from which the Nuremberg Tribunal could have

derived its jurisdiction, instead of relying on provisions of cus-

tomary international law to assume jurisdiction. Second, the

fears expressed during the Nuremberg Trials about how a lack

of penal law to guide the R&'emle'L 6'il&naH’s proceedings may

have shielded perpetrators of crimes amongst the allied powers

320. SARAH M.H. NOUWEN, COMPLEMENTARITY IN THE LINE OF FIRE: THE

CATALYSING EFFECT OF THE INTERNATIONAL CRIMINAL COURT IN UGANDA AND

SUDAN 119 (2013).

321. See LRA, ADF on American Terrorist List, IRIN NEWS (Dec. 7, 2001),

http://www.irinnews.org/news/2001/12/07/lra-adf-american-terrorist-list; The

Lord’s Resistance Army, OFF. SPOKESPERSON, U.S. DEP’T STATE (Mar. 23, 2012),

https://2009-2017.state.gov/r/pa/prs/ps/2012/03/186734.htm. GULU-UGANDA

has in fact appealed to President Trump to remove the LRA from the list of

U.S. terrorist o'Lanigations on L'o&nOs tJat T9A’s *oje' is noj OiminisJeO

and is no longer a threat to Uganda’s people. See John Muto-Ono, Why Trump

Should Remove the LRA From the List of Terrorist Organizations , BLACK STAR

NEWS (Feb. 15, 2017), http://www.blackstarnews.com/global-politics/af-

rica/why-trump-should-remove-the-lra-from-the-list-of-terrorist. See generally

U.S. DEP’T STATE, OFF. COUNTERTERRORISM , FOREIGN TERRORIST

ORGANIZATIONS: FACT SHEET (Oct. 11, 2005), https://2001-

2009.state.gov/s/ct/rls/fs/37191.htm; see also Kevin C. Dunn, Uganda: The

Lord’s Resistance Army, in AFRICAN GUERRILLAS: RAGING AGAINST THE

MACHINE 131, 148 (2007).

322. 7Nullum crimen, nulla poena sine praevia lege poenali” is a Latin phrase

meaninL 7onno Q'ime Qan le QommitteO anO no *&nisJment can be imposed

without a previous penal law.5 See James Popple, The Right to Protection from

Retroactive Criminal Law, 13 CRIM. L.J. 251N62 (1 989).

2018] The AU and the Complementarity Principle 523

are allayed in the ICC regime. Thus, politics are inextricably in-

terwoven with international criminal justice goals, especially in

the ICC context, given that the ICC largely depends on State

cooperation and contributions to discharge its statutory func-

tions.

B. Africa’s Contributions to the ICC

6o asse't tJat AM'iQa’s Qont'il&tions to the WCC’s establish-

ment is the cornerstone of its legitimacy today would simply be

setting the record straight. In February 1998, representatives of

twenty-five African States met in Dakar, Senegal and adopted a

OeQHa'ation ftJe 7raka' reQHa'ation5d QaHHinL Mo' tJe estalHisJ`

ment of an independent international criminal court

323

to pr ose-

cute perpetrators of grave crimes around the world, especially in

Africa. Later, the Organization of Africa Unity (now the AU),

during its 36th ordinary session of the Assembly of Heads of

State and Government, held in Lome, Togo, condemned, in

strong terms, the perpetration of war crimes, crimes against hu-

manity, and genocide in the African continent,

324

pledging to

fully cooperate with any institution established to prosecute per-

petrators.

325

Earlier in September 1997, fourteen Member States

of the Southern Africa Development Community met during its

regional conference in Pretoria, South Africa, outlining a pro-

posal of ten basic principles they suggested should be included

in the proposed ICC Statute.

326

In fact, many African countries,

notably Lesotho, Malawi, Senegal, South Africa, and Tanzania,

all played significant roles in the process leading up to the Stat-

&te’s actual drafting.

327

They all took part in a discussion leading

up to the WCC’s creation at a presentation of the Draft Statute of

323. See Dakar Declaration for the Establishment of the International Crim-

inal Court, Feb. 2, 1998, http://www.iccnow.org/documents/DakarDeclaration-

Feb98Eng.pdf.

324. See Declaration and Decisions Adopted by the 36th Ordinary Session of

the Assembly of Heads of State and Government of the OAU held in Lome,

Togo (2000), https://au.int/sites/default/files/decisions/9545-

2000_ahg_dec_143-159_xxxvi_e.pdf.

325. Id.

326. See J. Jele Khiphusizi, The Permanent Mission of South Africa to the

United Nations, Speech at the Sixth Committee of the 52nd General Assembly,

New York (Oct. 21, 1997), http://www.iccnow.org/documents/SouthAfri-

caSADC6Comm21Oct97.pdf.

327. See Rowland J. V. Cole, Africa’s Relationship with the International

Criminal Court: More Political than Legal, 14 MELB. J. INT’L L. 673N75 (2013).

524 BROOK. J. INT’L L. [Vol. 43:2

the ICC to the U.N. General Assembly in 1993.

328

During the

July 1998 Rome Conference on drafting the ICC Statute, forty-

seven African countries were present, with a vast majority of

them voting in favor of adopting the Statute at the Diplomatic

Conference Plenipotentiaries on the establishment of the ICC.

329

After the adoption of the Rome Statute, many African countries,

including South Africa, Kenya, Uganda, and Burkina Faso were

among the earliest to enact implementing legislations to domes-

ticate the Rome Statute.

330

Currently, of the 139 State Parties,

thirty-four of them are African countries. In addition, civil soci-

ety groups

331

and nongovernmental organizations

332

in Africa

also played crucial roles in building support, which culminated

in the WCC’s establishment. They have continued to encourage

African countries, in their large numbers, to implement the

Rome Statute. Given the African lHoQ’s enormous contributions

to the WCC’s success story, questions are now being asked as to

why the relationship between the ICC and the African bloc,

which once flourished, has so greatly deteriorated today. Fur-

ther questions are raised as to why the ICC is now seen as anti-

African by the AU and many other observers in the continent.

C. Growing Tension between the AU and ICC: Analyzing the

Pull Factors and Prospects of Resolving the Impasse

To posit that the AU and the ICC have been in a face-off with

each other for some years now is merely stat ing the obvious. The

328. See Wnt’H Taj Commissionb Report of the International Law Commission

on the Work of Its 46th Session , Draft Statute for an International Criminal

Court, U.N. Doc. A/49/10 (1994), ch. II (B)(f).

329. Id.

330. See e.g., Rome Statute of the International Criminal Court Act (2002)

(S. Afr.); International Crimes Act (2008) (Kenya); Rome Statute of the Inter-

national Criminal Court, Decree No 2009-894/PRES, 3 December (2009)

(Burkina Fa so ); International Criminal Court Act No. 18 of 2006 (Nov. 17,

2006).

331. See e.g., CENTRE FOR CITIZENS, PARTICIPATION IN THE AFRICAN UNION,

3COMMUNIQUÉ ON CSO CONSULTATION ON THE YEAR OF PEACE AND SECURITY IN

AFRICA 5 (Communiqué, January 2010), http://www.wanep.org/wanep/attach-

ments/article/128/final_communique_yps_jan_2010.pdf

332. See, e.g., William R. Pace & Mark Thieroff, Participation of Non-Govern-

mental Organizations, in THE INTERNATIO NAL CRIMINAL COURT: THE MAKING OF

THE ROME STATUTE — I SSUES, NEGOTIATIONS, RESULTS 391, 392N98 (Roy S. Lee

ed. 1999); see also Zoe Pearson, Non-Governmental Organizations and the In-

ternational Criminal Court: Changing Landscapes of International Law, 39

CORNELL INT’L L.J. 243 (2006).

2018] The AU and the Complementarity Principle 525

question remaining to ask, however, is why. What caused the rift

and sudden strain on the relationship between the AU and the

ICC, especially on the only continent where the ICC received its

widest support prior to its establishment in 2002? The turning

point in the eyes of many African politicians came in 2000, when

Belgium issued a warrant of arrest for the then Minister of For-

eign Affairs of the DRC, Abdoulaye Yerodia Ndom basi.

333

This

sparked diplomatic protests across Africa, labelling this incident

as an abuse of universal jurisdiction and a violation of sovereign

immunity by European States. Then, in 2008, the Chief of Pro-

tocol to President Paul Kagame of Rwanda, Rose Kabuye, was

arrested in Frankfurt, Germany, pursuant to a French arrest

warrant in connection with the shooting down of the plane that

killed the former Rwandan President, Juvenal Habyarimana,

and his Burundian counterpart, Cyprien Ntaryamira. This inci-

dent triggered the horrendous Rwandan genocid e

334

of 1994,

which resulted in the death of over 800,000 people (mostly Tut-

sisd^ AmonL tJe ea'Hh %iQtims je'e tJe Qo&nt'h’s :'ime Siniste'b

Agathe Uwilingiyimana, and her husband, the Minister of Agri-

culture, the Minister of Labor, the President of the Supreme

Court, Joseph Kavaruganda, and human rights activists, includ-

ing Charles Shamukiga , Fidele Kanyabugoyi, lgnace Ruhatana,

Patrick Gahizi, Father Chrysologue Mahame, S.J., and Abbé Au-

gustin Ntagara, all of whom died in 100 days.

335

President Ka-

game personally raised the issue at the United Nations, calling

it an abuse of universal jurisdiction by European States, as well

as a conspiracy aimed at intimidating African leaders. These are

but two instances in a series of cases in which European States

333. The case was brought to the ICJ. See Case Conce rning the Arrest War-

rant of 11 April 2000, Democratic Republic of the Congo v Belgium [2 002], ICJ

3, at 1N5, Judgment, Feb. 14, 2002, https://www.ilsa.org/jessup/jessup08/basic-

mats/icjcongo.pdf.

334. Mark Tran, Rwandan President Kagame Threatens French Nationals

with Arrest, GUARDIAN (Nov. 12, 2008), http://www.guard-

ian.co.uk/world/2008/nov/12/rwanda-france.

335. See Maria van Haperen, The Rwandan Genocide, 1994, in THE

HOLOCAUST AND OTHER GENOCIDES 98, 113 (Maria van Haperen et al. eds.,

2012); HUM RTS. WATCH AFR., 6 GENOCIDE IN RWANDA APRILNMAY 1994 (May

1994), https://www.hrw.org/sites/default/files/reports/RWANDA945.PDF.

526 BROOK. J. INT’L L. [Vol. 43:2

relied on universal jurisdiction to harass, in the eyes of some ob-

servers,

336

AM'iQan HeaOe's^ 6Je jate'sJeO moment Mo' tJe A4’s

relationship with the ICC came in March 2009, following the is-

suance of the first arrest warrant for President Omar Al Bashir

of Sudan.

337

The Al-Bashir arrest warrant further deteriorated

the relationship between the AU and the ICC for three main rea-

sons.

First, AU Member States treated the arrest warrant as an ob-

stacle to their efforts to foster the peace and reconciliation pro-

cesses in Darfur, thereby accusing the ICC of failure to appreci-

ate tJe eMMeQt tJat its inte'Me'enQe in AM'iQa’s inte'naH aMMai's jas

having on the peace building efforts in Sudan,

338

as well as in

Northern Uganda.

339

The AU insisted that the ICC was under-

mining the effectiveness of African solutions to African prob-

lems. Second, the ICC appears to be selectively prosecuting Af-

ricans. So far, almost all of the cases brought before the ICC are

from Africa, thereby raising suspicion among some African ob-

servers that the ICC is using Africa as a testing ground

340

for its

judicial power, with active support and encouragement of West-

ern States. Third, diplomatic controversies following Al-!asJi'’s

arrest warrant sparked a debate as to whether the Rome Statute

can legally terminate sovereign immunity of a Head of State not

privy to the Statute.

341

Generally, under customary interna-

tional law, senior State officials, like President Al-Bashir and

his Kenyan counterpart, Uhuru Kenyatta, have immunity, both

336. Zo' mo'e inMo'mation on 7&ni%e'saH I&'isOiQtionb5 see CJa'Hes CJe'nor

Jalloh, Universal Jurisdiction, Universal Prescription: A Preliminary Assess-

ment of the African Union Perspective on Universal Jurisdiction, 21 CRIM. L.

REV. 1, 2 (2010).

337. Prosecutor v. Omar Hassan Ahmad Al Bashir, supra note 28.

338. See Donn a E. Ar zt, Vi ews on the Ground: The Local Perception of Inter-

national Tribunals in the Former Yugoslavia and Sierra Leone, 603 THE

ANNALS OF THE AMERICAN ACADEMY 223, 234 (2006).

339. See M. Cherif Bassiouni, The ICC—Quo Vadis?, 4 J. INT’L CRIM. JUST.

421, 424 (2006).

340. See TERENCE MCNAMEE, BRENTHURST FOUNDATION & AFRICAN CENTER

FOR STRATEGIC STUDIES, The ICC and Africa: Between Aspirations and Reality:

Making International Justice Work Better for Africa, Reflections on a High-level

Roundtable 4N16 (Mar. 18N19, 2004) http://africanlegalcentre.org/down-

load/publications/International%20Criminal%20Justice/Brenthurst%20Foun-

dation%20%27Between%20Aspiration%20and%20Reality%20-%20Mak-

ing%20International%20Criminal%20Justice%20Work%20Bet-

ter%20in%20Africa%27%20Discussion%20Paper%202-2014.pdf.

341. See Rome Statute, supra note 1, art. 27(1), 27(2).

2018] The AU and the Complementarity Principle 527

functional and personal, from criminal prosecution as Heads of

State.

342

The question of immunities of African Heads of State is

very crucial to the AU, consequently leading to open political op-

position against the mandate of the ICC (as highlighted in the

ongoing discussion of South Africa leaving the ICC). Article 27(1)

of the Rome Statute abolishes official immunities as a bar to

prosecution, among these most notably Head of State immunity,

hence paving the way to prosecute Heads of State alongside

other senior State officials under the ICC Statute. This over-

comes any contradicting domestic and customary international

law granting immunity, as stipulated in Article 27(2) of the

Rome Statute. Exclusion of Head of State immunity in Article

27, however, seems to stand in direct conflict with Article 98 of

the Statute, which stipulates that:

The Court ma y not proceed with a request for surrender or as-

sistance which would require the requested State to act incon-

sistently with its obligations under international law with re-

spect to the State or diplomatic immunity of a person or prop-

erty of a third State, unl ess the Court can first obtai n the coop-

eration of that third State for the waiver of the immunity.

343

Using Article 98 of the Statute as an argument to find a way

of upholding Head of State immunity would ignore the actual

rationale behind this rule. The legislative drafters of the ICC

did Q'aMt A'tiQHe => jitJ a %iej 7not to inte'Me'e jitJ

States qua States and with the efficient performance of the func-

tions of dip lomatic missions, while retaining the capacity to hold

heads of State to aQQo&nt^5

344

Bearing this in mind, there is little

room to use the Article 98 exception as an argument for uphold-

ing the Head of State immunity as a bar to ICC jurisdiction in

exceptional circumstances. This is a lesson which the South Af-

rican government of former President Zuma should have learned

when the ICC accused Bashir was allowed to leave the Republic

342. MAX DU PLESSIS ET AL., AFRICA AND THE INTERNATIONAL CRIMINAL COURT

5 (July 2013), https:/ /www.cha thamhouse.org/sites/files/chathamhouse/pub-

lic/Research/International%20Law/0713pp_iccafrica.pdf.

343. See Rome Statute, supra note 1, art. 98(1), 98(2) (emphasis added).

344. Jens Iverson Head of State Immunity is not the same as State Immunity:

A Response to the African (nion’s position on Article 9* of the ICC Statute,

EJIL: TALK! https://www.ejiltalk.org/head-of-state-immunity-is-not-the-same-

as-state-immunity-a-response-to-the-african-unions-position-on-article-98-of-

the-icc-statute/.

528 BROOK. J. INT’L L. [Vol. 43:2

of South Africa in June 2015. Reflecting on the AU strained re-

lationship with the ICC, on grounds of the absence of Head of

State immunity, it may be argued that States Parties, by signing

the Rome Statute, have, by necessary implication, agreed to

waive the immunity of their own officials, given that the crimes

outlined under the Statute are crimes that violate jus cogens

norms of international law.

In light of the above discussion of the A4’s OiMMiQ&Hth to aQQe*t

Head of State criminal res ponsibility without immunity, can it

be validly argued that the relationship between the AU and the

ICC has been damaged beyond repair? An answer to this ques-

tion mah le Mo&nO in tJe sim*He *J'aseb 7WeHH AHmost25 6Je

choice of this phrase stems from the fact that criticisms of the

WCC’s *e'Qei%eO MoQ&s on AM'iQa a'e not to le taken as meaninL a

complete abandonment of the standards of international crimi-

nal justice in the continent. This is because recent developments

in different parts of Africa indicate that support for efforts to

ensure responsibility for international crimes is available. For

example, in January 2015, Dominic Ongwen, a senior leader of

the LRA, declared wanted since 2005 by the ICC, was surren-

dered to the ICC by joint efforts of the United States and the

AU,

345

both of which are very critical of the ICC.

346

It is also

widely believed that the ICC warrant of arrest against the main

leader of the LRA, Joseph Kony, his deputy, Vincent Otti (now

believed dead),

347

and other top commanders played a crucial

role in bringing the rebels to the negotiation table during the

failed Juba Peace Talks.

348

Similarly, in September 2015, Niger

345. Adam Branch, Aominic Ongwen on Trial: The ICC’s African Ailemmas,

11 INT’L J. TRANS. JUST. 30N49 (2017).

346. See H.J. van der Merwe, Introduction, in INTERNATIONAL CRIMINAL

JUSTICE IN AFRICA ISSUES, CHALLENGES AND PROSPECTS 1N4 (H.J. van der

Merwe & Gerhard Kemp eds., 2016).

347. Otti ‘E;ecuted by (ganda Rebelsb’ BBC NEWS (Dec. 21, 2007, 4:01 PM),

Jtt*<]]nejs^llQ^Qo^&k]E]Ji]aM'iQa]?GA@E>B^stm f'e*o'tinL on ;tti’s eieQ&tiond;

see also Noel Mwakugu, Obituary: LRA Deputy Vincent Otti, BBC NEWS (Jan.

23, 2008), http://news.bbc.co.uk/2/hi/africa/7083311.stm; Henry Mukasa, How

Vincent Otti was Killed, DIOCESE N. UGANDA (Dec. 10, 2007), http://dio-

ceseofnorthernuganda.blogspot.co.uk/2007/12/how-vincent-otti-was-

killed.html.

348. See Philomena Apiko & Faten Aggad, The International Criminal Court,

Africa and the African Union: What Way Forward? 3 (European Centre for De-

velopment Policy Management, Discussion Paper No. 201, Nov. 2016),

http://ecdpm.org/wp-content/uploads/DP201-ICC-Africa-AU-Apiko-Aggad-

November-2016.pdf. Cf. Patrick Wegner, Ambiguous Impacts: The Effects of

2018] The AU and the Complementarity Principle 529

Ahmad Al Faqi Al Mahdi was surrendered by Niger to the ICC,

becoming the first person charged for the war crime of directing

attacks against buildings dedicated to religion and historical

monuments (nine mausoleums and one mosque) in Timbuktu,

Mali.

349

The Al Mahdi case was in fact a landmark for the ICC,

leinL tJe Mi'st time tJat 7intentionaHHh Oi'eQtinL attaQks to Jis`

to'iQaHb 'eHiLio&s anO Q&Ht&'aH *'o*e'ties5 jas *'oseQ&teO as a

war crime before an international court, and the first time a

guilty plea was recorded for such a crime.

350

This is in addition

to the commencement of the trial of Congolese commander,

Bosco Ntaganda,

351

in September 2015 for war crimes and

crimes against humanity committed in the Bogoro Village in the

the International Criminal Court Investigations in Northern Uganda 2N22 (Ref-

ugee Law Project, Working Paper No. 22, Oct. 2016), http://www.ic-

cnow.org/documents/RLP_Working_Paper_22.pdf (suggesting that the Juba

peace talks had long be gun before the ICC intervened in Uganda and therefore

ICC’s inve stigations in Northern Uganda made only little impact).

349. See Sebastián A. Green Martínez, Destruction of Cultural Heritage in

Northern Mali, Cases Before International Courts and Tribunals: A Crime

against Humanity?, 13 J. INT’L CRIM. JUST. 1073 (2015); Juan-Pablo Pérez-

León-Acevedo, International Criminal Justice Rendered Concerning the Attack

Against Timbuktu Mausoleums and Mosque: Focus on Religion-Related Con-

siderations, 6 OXFORD J.L. & RELIGION 180N86 (2017); Federica Mucci, Short

and Quickly Delivered, Yet Quite Full of Meaning: the International Criminal

Court Judgment about the Intentional Destruction of Cultural Heritage in Tim-

buktu, 8 ITALIAN J. PUB. L. 415N23 (2016). For more information on destruction

of cultural properties, see C. EHLERT, PROSECUTING THE DESTRUCTION OF

CULTURAL PROPERTY IN INTERNATIONAL CRIMINAL LAW 158N59, 224 (2013); PAS

DE DEUX, INTERNATIONAL HUMANITARIAN LAW AND INTERNATIONAL HUMAN

RIGHTS LAW 168N92 (Orna Ben Naftali ed. 2011); Patty Gerstenblith, The De-

struction of Cultural Heritage: A Crime Against Property or a Crime Against

People?, 15 J. MARSHALL REV. INTELL. PROP. L. 336 (2016); I.L. Bostian, Cul-

tural Relativism in International War Crimes Prosecutions: The International

Criminal Tribunal for Rwanda, 12 ILSA J. INT’L & COMP. L. 12 (2005); Paige

Casaly, Cultural Property and World Heritage in International Criminal Law,

14 J. INT’L CRIM. JUST. 1199 (2016). For cases where destruction of cultural

properties was judicially discussed, see :'oseQ&to' %^ :'Hi$ et al., Case No. IT-

04-74-AR73.2, Judgment, ICTY Trial Chamber (May 29, 2013); Prosecutor v.

Blaskic, Case No. IT-95-14-T, Judgment, ICTY Trial Chamber (Mar. 3, 2000);

Prosecutor v. Kordic a nd Cerkez, Case No. IT-95-14/2-T, Judgment ICTY Trial

Chamber (Feb. 26, 2001); Prosecutor v. Miodrag Jokic Case No. IT-01-42/1-S,

Judgment, ICTY Trial Chamber I (Mar. 18, 2004).

350. Martínez, supra note 349.

351. See Prosecutor v. Bosco Ntaganda, Case No. ICC-01/04-02/06, Decision:

Charged Confirmed, Case Committed to Trial (June 9, 2014).

530 BROOK. J. INT’L L. [Vol. 43:2

Ituri district of the Eastern DRC between 2002 and 2003.

352

These examples underline the WCC’s important role with respect

to international criminal justice in Africa, despite tensions be-

tween the AU and the ICC. The important role of the ICC, with

respect to international criminal justice in Africa, is to pay more

attention to the peculiar domestic contexts of its interventions,

particularly its timing

353

and political expediency, in order to

align its work with local circumstances,

354

thereby striking a bal-

ance between the competing interests of justice and peace. To

this end, it is suggested that the ICC should continue combining

instruments of policy considerations with humanistic values

crucial for the realization of the ends of justice,

355

taking into

account threats of the persistent clash between the Western no-

tion of retributive justice and local tr aditional desire for restor-

ative justice. In so doing, the ICC will ensure that international

justice, under its auspices, contributes not only to retribution,

but also to the broader objectives of incapacitating the perpetra-

tors of grave crimes and the total removal of root causes of con-

flicts in Africa.

352. Please note that Mathieu Ngudjolo Chui was discharged and acquitted

by the ICC Trial Chamber II on December 18, 2012 for a lack of evidence. See

Prosecutor v. Mathieu Ngudjolo Chui, Case No. ICC-01/04-02/12, Verdict: Ac-

quittal (Dec. 18, 2012). Germain Katanga was found guilty and sentenced to

twelve years in prison as an accessory to one count of a crime against humanity

(murder) and four counts of war crimes (murder, attacking a civilian popula-

tion, destruction of property, and pillaging). See Prosecutor v. Katanga, supra

note 28.

353. See, e.g., Lydia A. Nkansah, The International Criminal Justice in Af-

rica: So me Emerging Dynamics, 4 J. POL’Y & L. 74 (2011); see also J. Geis & A.

Mundt, When to Indict? The Impact of Timing of International Criminal In-

dictment on Peace Processes and Humanitarian Action, (Brookings Institution-

University of Bern Project on Internal Displacement, Paper for the World Hu-

manitarian Studies Conference, Groningen, The Netherlands, Feb. 2009); H.

Cobban, Think Again: International Courts, FOREIGN POLICY 22N28 (2006).

354. See Lydia A. Nkansah, International Criminal Court in the Trenches of

Africa, 1 AFR. J. INT’L CRIM. JUST. 8, 10N12 (2014).

355. Cherif Bassiouni suggests that the ICC is already combining instru-

ments of policy considerations with humanistic values crucial for the realiza-

tion of the end of justice. See M. Cherif Bassiouni, The Universal Model: The

International Criminal Court, in POST-CONFLICT JUSTICE 819 (M. Cherif Bas-

siouni ed. 2002), cited in DAVID LANZ, THE WCC’S INTERVENTION IN NORTHERN

UGANDA: BEYOND THE SIMPLICITY OF PEACE VS. JUSTICE, FLETCHER SCHOOL OF

LAW AND DIPLOMACY 1 (May 2007), http://reliefweb.int/sites/re-

liefweb.int/files/resources/EC66215A0071F156C12573910051D06D-

Full_Report.pdf.

2018] The AU and the Complementarity Principle 531

D. African vs. International Criminal Justice: The

Establishment of an African Regional Criminal Court with

Regional Complementarity Jurisdiction as a Challenge to the

ICC in Africa

;ne oM tJe QJaHHenLes to tJe WCC’s aQQe*tanQe amonL AM'iQan

nations is directly linked to a growing consensus within the AU

tJat AM'iQa’s problems warrant an African approach.

356

This is

highlighted in the AU initiative to establish a regional criminal

court, which could altogether keep the ICC out of the African

continent.

357

An argument has been put forward that if an Afri-

can Criminal Court becomes operational, it may represent a de-

colonized form of international criminal justice with a reformed

jurisdiction for Africa, become an instrument in the hands of Af-

rican leaders to ensconce impunity, or perhaps end up becoming

a mere replication of tJe WCC’s *'aQtiQe anO *'oQeO&'es on a 'e`

gional basis.

358

Without prejudice to any position that one takes,

it is argued that the integrity of such efforts by African leaders

cannot be vouched for. This argument is founded upon the fact

that the main reason why the AU wants a regional criminal

court is to drive the ICC out of Africa. This stems from the con-

stant accusations from African leaders that the ICC is a selective

justice institution only desirous of prosecuting African leaders,

and that the ICC has turned from its original purpose to a neo-

colonialist court.

359

As plausible as this allegation may seem,

there is no empirical evidence to justify the argument that the

WCC’s MoQ&s on AM'iQa is a Qons*i'aQh anO]o' a maniMestation oM a

modern version of Western neo-colonialism

360

and/or imperial-

ism, or perhaps in essence a further expansion of the already

expanded expansionist policies of Western powers in the conti-

nent. It is argued instead that justice for the common good of

356. Branch, supra note 39.

357. Id.

358. Id.

359. See, e.g., Manisuli Ssenyonjo, The International Criminal Court and the

Warrant of Arrest for Sudan’s President Al-Bashir: A Crucial Step Towards

Challenging Impunity or a Po litical Decision, 78 NORDIC J. INT’L L. 397 (2009);

see also K.G. Adar, The International Criminal Court and the Indictment of

President Omar al-Bashir: Implications for Sudan and Africa, AISA Policy

Brief, No. 10 (Feb. 2010) (dealing with the accusation that the ICC is a new

form of neo-colonialism).

360. See Max Du Plessis, The International Criminal Court and its Work in

Africa: Confronting the Myths 3 (Institute for Security Studies (ISS) Paper 173,

Nov. 2008).

532 BROOK. J. INT’L L. [Vol. 43:2

Africans does not form part of the purpose why African leaders

want a regional criminal court. Instead, this is one singular fact

that makes this purpose an ill-fated one. The most disturbing

aspect of these accusations is that they find traction with dicta-

tors and their collaborators, who devise every tactic possible at

their disposal to delay or ward off their accountability for inter-

national crimes. The accusations are unsubstantiated by any co-

gent, compelling, and unequivocally true and positive evidence.

If any argument to the contrary is to be taken as anything near

the truth, as opposed to fakery and a distortion of the true facts,

it is that such accusations should at least, for the benefit of the

doubt, not be taken for granted. In the strongest terms, this ar-

ticle disputes the integrity of African leaders in this regard. For

example, President Yoweri Museveni of Uganda referred the

case of Joseph Kony and the LRA to the ICC as a way for him

and his (ganda People’s Aefence Force, formerly National Re-

sistance Army, to score a political advantage. In turn, he con-

OemneO tJe WCC O&'inL 4J&'& Uenhetta’s ina&L&'ationb Oe*iQt`

ing it as a neocolonial court.

361

It is this political dishonesty on

the part of African leaders that has put the ICC on the horns of

dilemma in the continent. It is on record that President Yoweri

Museveni and his Rwandan counterpart, President Paul Ka-

game, are both beneficiaries of nuanced selectivity justice within

AM'iQab in tJat 7lotJ Ja%e m&QJ lHooO on tJei' JanOsb l&t oa'en

immune from censure or prosecution because they are both

JiLJHh %aH&eO QHients oM tJe jest^5

362

Although establishing a

new regional criminal court with regional complementarity may

succeed in keeping the ICC out of Africa, at least in the interim

until tensions are calmed, such efforts, it is argued, are nothing

but a foreshadowing of an impending trend of a reformed version

of political chicanery and regional chauvinism designed by re-

pressive African leaders to further fortif y the kowtowing atti-

tude and nigh deification of themselves as though they ar e con-

querors of vassal lands poised to protect their suzerainty. By

s&QJ neeOHess tJeat'iQaHsb tJe Qontinent’s HeaOe's a'e onHh Oe`

signing a deliberate ploy to translate proceedings of the proposed

regional criminal court into a mere judicial vaudeville, wh ich is

361. See Vision Repo rter, 1useveni’s Speech at (huru’s Inauguration, NEW

VISION (Apr. 10, 2013), http://www.newvision.co.ug/new_vi-

sion/news/1317104/musevenis-speech-uhurus-inauguration.

362. Griffiths QC, supra note 296.

2018] The AU and the Complementarity Principle 533

definitely not in the best interest of criminal justice jurispru-

dence in Africa. There is no guarantee that the so-called regional

criminal court will be free of political interference by African

leaders, and that it will not end up being a mere replication of

tJe WCC’s *'aQtiQe anO *'oQeO&'es at a 'eLionaH He%eHb &nOe' tJe

thin guise of reformed criminal jurisdiction for Africa. This is

nothing but a needless duplication of judicial institutions serv-

ing the same purpose. It is submitted that the only way to end

impunity in Africa is for Africans to unite, with the rest of the

international community, to implement the Rome Statute and

st'enLtJen tJe WCC’s *osition in AM'iQa^

E. The Future of International Criminal Justice and the ICC in

Africa

This article has already highlighted the problems and criti-

Qisms jJiQJ aQQom*anieO tJe WCC’s in%oH%ement anO aQQe*tanQe

of its Rome Statute in Africa since 2002. Given these criticisms,

and the wide attention it has attracted over the last decade,

what does the future hold in store for international criminal jus-

tice and the ICC in Africa? In answering this question, it is sub-

mitted that the ICC, notwithstanding the harshness of the time,

remains an instrument for justice and a veritable tool of legal

and social enLinee'inL in a Qontinent jJe'e im*&nithb 7t Je *oHa'

o**osite oM I&stiQe Jas leen emlHematiQ^5

363

It is submitted that

despite the popularly held public misgivings and doubts from the

A4 anO otJe' AM'iQan olse'%e's alo&t tJe inteL'ith oM tJe WCC’s

criminal justice role in the continent, future generations of Afri-

cans will increasingly throw their weight behind the ICC as a

complementary global justice institution. According to Mehari

6aOOeHe Sa'&b 7there is no legal solution to conflicts in Africa,

but certainHh tJe'e Qan le no soH&tion jitJo&t I&stiQe^5

364

This

justice is what the ICC stands for. Although fears that the face-

off between the ICC and Africa may still tarry until such a time

when systems of responsive governance emerges in the conti-

nent, the fact remains that the AU cannot validly keep the ICC

out of Africa if African leaders do not on their own reject impu-

nity totally. Strengthening the apparatus of the ICC in Africa is

363. See Du Plessis, supra note 360, at 2.

364. MEHARI TADDELE MARU, THE INTERNATIONAL CRIMI NAL COURT AND

AFRICAN LEADERS: DETERRENCE AND GENERATIONAL SHIFT OF ATTITUDE, ISPI 8

(ISPS Analysis Paper No. 247, 2014).

534 BROOK. J. INT’L L. [Vol. 43:2

the only way African leaders can honestly pay tribute to the

judgment of reason over power. This submission finds solid an-

QJo'aLe on V&stiQe 9ole't X^ VaQkson’s o*eninL aOO'ess at tJe

Nuremberg Trials. In his words:

The privilege of opening the first trial in history for crimes

against the peace of the world imposes a grave responsibility.

The wrongs which we seek to conde mn and punish have been

so calculated, so malignant, and so devastating, that civiliza-

tion cannot tolerate their being ignored, because it cannot sur-

vive their being repeated. That four great nations flushed with

victory and stung with injury stay the hand of vengeance and

voluntarily submit their captive enemies to the judgment of the

law is one of the most significant tributes that Power has ever

paid to Reason. . . .

365

WM V&stiQe VaQkson’s statement alo%e is taken as very crucial to

the attainment of the goals of international criminal justice in

the twenty-first century, then the ICC is the most suitable jus-

tice institution to spearhead the judicial programs geared to-

wards attainment of these broad international justice goals. It

therefore follows that only proper and timely implementation of

the complementarity principle within the African national legal

orders can guarantee the future of the ICC in Africa—a conti-

nent where armed conflicts, engineered by repressive regimes

and a culture of impunity,

366

have voided the prosperity of our

common humanity.

IV. RECOMMENDATIONS

The challenges facing the domestic implementation of the com-

plementarity regime in Africa today highlight the continuing

challenges the ICC faces within the context of the African legal,

institutional, and political landscape. The political atmosphere

on the war-ravaged continent is harsh. Legal institutions are

weak, and the tirades of hate rhetoric are embedded in phrases

Hike 7is AM'iQa a testinL L'o&nO Mo' tJe WCC"5 8&QJ 'Jeto'iQ is noj

365. See Justice Robert H. Jackson, Opening Statement Before the Interna-

tional Military Tribunal (Nov. 21 , 1945), https://www.roberthjack-

son.org/speech-and-writing/opening-statement-before-the-international-mili-

tary-tribunal/.

366. P. Mochochoko, Africa and the International Criminal Court, in AFRICAN

PERSPECTIVES ON INTERNATIO NAL CRIMINAL JUSTI CE 249 (Evelyn A. Ankumah

& Edward K. Kwakwa eds., 2005).

2018] The AU and the Complementarity Principle 535

implanted in the public consciousness of ICC critics. The com-

*Hementa'ith *'inQi*Heb tJe'eMo'eb seems to Ja%e leQome a 3tee`

te'loa'O’ oM inte'nationaH Haj^ ;n tJe one JanOb it seeks to MinO

a realistic balance between somewhat contrasting notions in in-

ternational law, namely respect for sovereignty of States. On the

other hand, however, it seeks to account for the duty of the in-

ternational community to end impunity for international crimes.

Dithering like a pendulum is the fate of international criminal

justice, which is on the brink of collapsing. If the United Nations

and Member States signatory to the Rome Statute and the ICC

are able to strike a realistic balance between these two compet-

ing demands, there will be, at least in the abstract sense, a level

playing field. It is therefore evident that certain measures must

be put in place to restore confidence in the ICC and meet the

expectations of justice and peace, especially in Afric a. It is sug-

gested that the following measures can, to a reasonable extent,

bring us closer to these expectations, if implemented.

A. Policy-Oriented Approach to Implementation

A policy-oriented approach to domestic implementation of

complementarity presupposes that key decision-makers at the

national level, including executive and judicial officials and na-

tional parliaments as a legislative body, need to fully cooperate

with the rest of the international community to end impunity for

grave crimes by taking legislative steps to implement the com-

plementarity regime. This is the most potent way to ensure the

success of the common interests of the international community

regarding the maintenance of international peace and security,

as well as the eradication of impunity. Quite instructively, an

ICC implementing legislation of the United Kingdom

367

has al-

ready been relied upon to sustain a domestic complementarity-

based prosecution and conviction. This happened in the case of

R v. Donald Payne,

368

where Payne, a British soldier, became the

first British citizen to be convicted for war crimes in connection

with the presence of the British Armed Forces in Iraq post inva-

sion 2003. It is therefore suggested that to show willingness and

commitment to complementarity, African States should borrow

367. See International Criminal Court Act 2001 (U.K.), http://www.legisla-

tion.gov.uk/ukpga/Eliz2/3-4/18/contents.

368. See Gerry Simpson, The Death of Baha Mousa, 8 MELB. J. INT’L L. 340

(2007).

536 BROOK. J. INT’L L. [Vol. 43:2

from the highly effective criminal law practices and procedure

systems offered by advanced countries, like the United King-

dom, and take adequate steps to meet the threshold of comple-

mentarity, at least at a minimum level, which includes initial

transcription (dynamic or static) of core crimes of the Rome Stat-

ute into the corpus juris of their national criminal laws. Accord-

ingly, African States should carry out a far-reaching revision of

their criminal statutes, including where necessary, adjusting

national constitutions to allow for a smooth and timely imple-

mentation. This is very crucial because as observed in this arti-

cle, the very nature, character, content, definitions, scale, and

gravity of international and domestic crimes are manifestly dif-

ferent. Therefore, non-proscription in specific terms of the Rome

8tat&te’s inte'nationaH Q'imes in OomestiQ Q'iminaH Hajs jiHH le

incompatible with States’ obligations to implement the provi-

sions of the Statute. To this end, conflict ing immunity provisions

in national constitutions should be rec onciled, streamlined, and

harmonized with Article 27 of the Rome Statute, which extin-

guishes the immunity of Head of States and governments. In

other words, immunity clauses in national constitutions of Afri-

can States can be amended, for example, to create a chance for

the impeachment of Heads of States in the event that they are

indicted for any of the Rome Statute core crimes. Once im-

peached, the immunity of the executive head concerned stands

extinguished, and criminal proceedings can then be commenced

by the appropriate national prosecuting authorities or the ICC.

In addition, to ensure the timely enforcement and execution of

court sentences and judgments relating to the Rome Statute

crimes, national implementing legislations in Afri ca should con-

tain a provision establishing a special judicial enforcement insti-

tution. Its duty would be to enforce judgments of national courts

regarding convictions and imprisonments secured under the

Rome Statute. It could be called the judiciary police, or some-

thing to the effect. The recommended enforcement institution

must be independent from undue influence by those who wield

power, including both the executive and legislature. Its funding

must be guaranteed from a separate consolidated revenue fund

of the State concerned. It should also be fully equipped and tied

to doing the will of the judiciary only. A step in this direction will

complement the provisions of Part X

369

of the Rome Statute,

369. See Rome Statute, supra note 1, arts. 103N11.

2018] The AU and the Complementarity Principle 537

which deals with the enforcement of sentences and conditions of

imprisonment. In addition, national decisions to prosecute inter-

national crimes that violate jus cogens norms enunciated in the

Rome Statute should not be subject to any authority, no matter

how highly placed. This is the main problem with the amended

(2006 Nigeria ICC Bill) to implement the Rome Statute.

370

The

Bill provides that the consent of the Attorney General of the Ni-

gerian Federation is required for all prosecutions under the Bill,

whether in Nigeria or elsewhere, and that the Attorney General

wilH OisQJa'Le RiLe'ia’s olHiLations &nOe' tJe 9ome 8tat&te on

behalf of the government.

371

This is a matter of serious concern

because the Attorney General is a political appointee and may

be influenced by the Executive in the discharge of his functions

under the Rome Statute. Such consent, if at all necessary, should

be obtained from a High Court Judge or the Director of Public

Prosecutions. These are serious policy issues that States must

address with every sense of responsibility if national authorities

are actually serious about their commitment to implement the

Rome Statute. As the future of international criminal justice de-

pends largely on cooperation from national jurisdictions, it is

also suggested that at the regional level, the AU should adopt a

common policy document that clearly outlines regional strate-

gies for implementation of the complementarity regime in Af-

rica. This will ensure that noticeable impunity gaps in national

jurisdictions and policies are bridged. In addition, African lead-

ers have to reconsider their often-ambivalent stance towards im-

punity and political interference with the independence and in-

tegrity of the judiciary. To guarantee the tot al independence of

the judiciary, the present system of appointing judges in many

African States, notably Nigeria, with political and geographical

spread serving as part of the criteria taken into consideration,

should be scrapped. The overriding consideration in the appoint-

ment of judges and other quasi-judicial officers should be the in-

tellectual attainment and personal integrity, suitability, compe-

tence, learning, and incorruptibility of the appointees or candi-

dates concerned. The media too must be fully empowered to

meaningfully contribute to the fight against the perpetrators of

core crimes. This can le aQJie%eO iM AM'iQa’s meOia MoQ&s t&'ns

370. International Criminal Court (Ratification and Implementation) Bill

2001 (Amended version in 2006) (Nigeria).

371. See id. § 16.

538 BROOK. J. INT’L L. [Vol. 43:2

from propaganda to nation building, thus overcoming the pre-

sent post-colonial liberation mantra evident in many AU Mem-

ber States, such as Zimbabwe, South Africa, and Namibia. These

are the hallmarks of a sound democratic society with robust

criminal justice system, deemed necessary to guarantee imple-

mentation of the complementarity regime in Africa against oth-

erwise uncertain and conflicting political interests.

B. Purposive Judicial Method of Interpreting the

Complementarity Regime

To ensure proper and timely enforcement of the complementa-

rity principle, the adoption of a more tested and trusted purpos-

ive method of interpretation of the complementarity principle is

recommended. In such an interpretive method, the outcomes

from relevant leading adjudication across AU States serve as a

benchmark when resolving conflicts arising from theory and

practice of the complementarity principle. One good way to test

this purposive interpretative approach in practice is to adjust

the text, context, and purpose of Article 17 of the ICC Statute to

take into account accused persons’ basic trial rights and make it

part of the wider due proc ess procedures required for effective

administration of criminal justice at the international level. Had

this been the case from the time the ICC Statute was negotiated,

it would have cushioned the effects of frequent objections of

States to the complementarity jurisdiction of the ICC. The ICC,

on its own part, must look beyond the mere letters of Article 17,

encapsulating the elements of complementarity and venture into

the spirit of the overall requirement of justice in every case. This

is possible if the ICC adopts judicial interpretation that is pred-

icated on higher order organizational justice and on mutual in-

clusivity and policymaking, as opposed to mutual exclusivity

and policy dysfunction. By so doing, both national and ICC

judges would be able to align their reasoning with other inter-

pretive aids, such as custom or treaty law that integrates the

guidance enunciated under Articles 31N33 of the 1969 Vienna

Convention on the Law of Treaties

372

into the statutory frame-

work of the Rome Statute. To assist the ICC in achieving these

372. See Vienna Co nvention on the Law of Treaties art. 31N33, May 5, 1969,

1155 U.N.T.S. 331. Articles 31N33 of the Vienna Convention on the Law of

Treaties 1969 deals with General Rules of Interpretation of Treaties. Article

DG fGd em*Jasiges tJat 7a t'eaty shall be interpreted in good faith in accordance

2018] The AU and the Complementarity Principle 539

purposive interpretative outcomes, it is proposed that Article 17

of the Rome Statute should be amended to give the ICC primacy

jurisdiction in certain cases, such as when the commission of

crimes of aggression is at issue, since States are almost always

sponsors of crimes of aggression and will be reluctan t to indict

or prosecute themselves. This provision may be called the Pri-

macy RULES Complementarity

373

provision and should be intro-

duced into the first limb of Article 17 of the Statute. The reverse

provision may be called the Complementarity RULES Pri-

macy

374

provision. Although there are concerns that giving the

ICC primacy in certain cases may violate State sovereignty, this

article argues in favor of a doctrinal shift from the customary

conception of State sovereignty as absolute to a conditional sov-

ereignty,

375

in which sovereignty of States carry with it the re-

sponsibility to protect their own citizens from avoidable cata-

strophic crimes.

C. Domestic Capacity Building and Institutional Preparedness

Building institutional preparedness and national capacity by

States to prosecute the Rome Statute crimes domestically en-

tails that human capacities, as well as the material and infra-

structure necessary to carry out the relevant legal activities re-

quired for investigating and prosecuting crimes, be made avail-

able. To tJis enOb it is 'eQommenOeO tJat 8tates’ I&OiQia'iesb tJe

with the ordinary meaning to be given to the terms of the treaty in their con-

teitb anO in tJe HiLJt oM its olIeQt anO *&'*ose^5 Id. art. 31 (1). Article 32, on the

otJe' JanOb sti*&Hates 7tJat 'eQo&'se may be had to supplementary means of

interpretation, including preparatory work of the treaty and circumstances of

its conclusion, in order to confirm the meaning resulting from the application

oM A'tiQHe DG^5 Id. art. 32.

373. This is a phrase chosen and/or adopted in this article to highlight the

proposals for amendment.

374. This is another phrase chosen and/or adopted in this article to highlight

the propo sals for amendment.

375. See THE RESPONSIBILITY TO PROTECT: REPORT OF THE I NTERNATIONAL

COMMISSION ON INTERVENTION AND STATE SOVE REIGNTY, I NT’L COMM’N

INTERVENTIO N & ST. SOVEREIGNTY vii (Dec. 2001), http://responsibilitytopro-

tect.org/ICISS%20Report.pdf; see also 8anO'a ZaliIani$ YaL'ob The Responsi-

bility to Protect (R2P) Doctrine, 3 INT’L J. SOC. SCI. 61 (2014); Astha Pandey,

The Responsibility to Protect 9“R-P”8 in International Law: Protection of 3u-

man Rights or Destruction of State Sovereignty, 2 NLUJ L. REV. 115, 115N16

(2013); Ramesh Thakur, The Responsibility to Protect, in THE UNITED NATIONS,

PEACE AND SECURITY: FROM COLLECTIVE SECURITY TO THE RESPONSIBILITY TO

PROTECT 24 6 (2006).

540 BROOK. J. INT’L L. [Vol. 43:2

police, and prison services be reformed to ensure a better safe-

L&a'O oM Qitigens’ 'iLJts lh leinL M&HHh em*oje'eO to eieQ&te in`

vestigative and prosecutorial functions. To this end, judges and

special prosecutors with vast experience in ICL should be ap-

pointed to head national criminal courts. There should also be

training and retraining of judges, the police, prison workers, and

special prosecutors through the continuing legal education pro-

gram of national jurisdictions. This will ensure that judges and

prosecutors are well abreast of new developments regarding the

WCT’s technical rules and practices. Also, the government must,

as a matter of necessity, provide adequate security for judges,

especially judges serving in the criminal law division of national

judiciaries, to enable them to effectively discharge the responsi-

bilities of their office without any form of fear, favor, or intimi-

dation from any quarter. Adequate resources and expertise

should also be made available in the Chambers of the Attorneys

General of all African countries to be able to prosecute interna-

tionaH Q'imes^ AHsob %iQtims’ *a'tiQi*ation *'oQeO&'esb simiHa' to

that contained in the Statute establishing Special Tribunal for

Lebanon,

376

should be built into national implementing legisla-

tions in order to restore the confidence of the victims, accused

persons, and the society in the national judicial systems.

D. Legislative and Technical Assistance

As a corollary to national capacity building and institutional

preparedness to prosecute international crimes, legislative and

technical competence entails that the capacity of States to take

proactive legislative steps to empower national authorities to

prosecute international crimes is made available. Experience,

however, shows that weaker nations do not always have the req-

uisite legislative and technical proficiencies to meet this thresh-

old. It is therefore very necessary, and highly recommended, for

weaker States to ask for and get legislative and technical sup-

port from the ICC and other advanced national jurisdictions, like

376. See 8^C^ 9es^ G@ @Bb a't^ G? fSa'^ E=b E\\@d f*'o%iOinL tJat 7ojnJe'e tJe

personal interests of the victims are affected, the Special Tribunal shall permit

their views and concerns to be presented and considered at stages of the pro-

ceedings determined to be appropriate by the Pre-Trial Judge or the Chamber

and in a manner that is not prejudicial to or inconsistent with the rights of the

accused and a fair and impartial trial. Such views and concerns may be pre-

sented by the legal representatives of the victims where the Pre-Trial Judge or

tJe CJamle' QonsiOe's it a**'o*'iate^5d^

2018] The AU and the Complementarity Principle 541

the United Kingdom, to enable them to put into place effective

implementing legislations that ensure a complementarity-based

approach to the prosecution of international crimes.

E. Improving Relations Between the AU and the ICC

To break the present deadlock at the AU level, it is suggested

that both the ICC and the AU first shift grounds and pay more

attention to eaQJ otJe'’s QonQe'ns alo&t Q'iminaH I&stiQe OeHi%e'h

processes in the present complementarity regime. To this end,

the AU and the ICC must both redirect and revitalize their jus-

tice programs from propagandas of the past to justice and peace-

building in the present. Both institutions must join hands to im-

plement the complementarity regime, and the AU should sus-

pend plans to establish a regional criminal court to unseat the

ICC in Africa, as such efforts will not advance the course of in-

ternational criminal justice. To ensure that this is achieved, the

ICC must pay more attention to the peculiar domestic contexts

of its interventions, particularly its timing and political expedi-

ency, in order to harmonize its operations with local circum-

stances. This ensures that a mutually reinforcing balance is

struck between the competing interests of justice and peace in

the continent. The ICC should continue combining instruments

of policy considerations and humanistic values as crucial ele-

ments for the realization of the ends of justice, considering

threats of the persistent cl ash between the Western notion of re-

tributive justice and local traditional desire for restorative jus-

tice. In so doing, the ICC will ensure that international justice

contributes not only to retribution, but also to the broader objec-

tive of incapacitation of perpetrators of crimes and the total re-

moval of root causes of conflict in Africa.

CONCLUSION

The principle of complementarity of the Rome Stat ute is the

cornerstone and linchpin of the WCC’s legitimacy today. The cen-

tral focus of this article is the imperative role State Parties to

the Rome Statute must play in fulfilling their obligation to im-

plement the complementarity principle by investigating and

prosecuting international crimes, while also enacting imple-

menting legislations domestically. The central argument that

permeates the entire strata of the article is that States play a

crucially dominant role in the dialectic interaction between in-

542 BROOK. J. INT’L L. [Vol. 43:2

ternational and national courts in the field of international crim-

inal justice. As the future of international criminal justice is es-

sentially domestic,

377

it follows that States must necessarily pay

immense tribute to international crim inal justice by allowing

reason to prevail over politics and joining hands with the rest of

the international community to implement the complementarity

regime. It has been noted, however, that enormous challenges

continue to face domestic implementation of the complementa-

rity regime of the Rome Statute within the African national legal

orders today. Many aspects of these challenges relate to the lack

of institutional capacity and preparedness of States to imple-

ment tJe 8tat&te’s *'o%isions^ 6Je'e is 7alsenQe oM eMMeQti%e HeL`

islative framework for implementation; limited expertise on the

part of investigators, prosecutors and judges, and the national

I&OiQiaH s hstem’s HaQk oM 'eso&'Qes^5

378

Other challenges relate to

corruption, lack of political will by States to implement, the

WCC’s sometimes iHHoLiQaH 'eIeQtion oM Qase aOmissiliHith QJaH`

lenge/objections by States, and, of course, the WCC’s lack of pur-

posive judicial interpretation of the complementarity principle,

which currently appears to favor mutual exclusivity and policy

dysfunction over mutual inclusivity and policymaking. Such pol-

icy and statutory shortages are linked to the inherent difficulties

in judicially construing and understanding the breadth and

depth of the unwillingness test, inability test, and the sufficient

gravity test, which are conditions that must satisfactorily be es-

tablished before the WCC’s complementarity jurisdiction is trig-

gered.

379

Other challenges include accusations by politically

weak nations, mostly from Africa, contending that stronger na-

tions, with the combined influence of the ICC and the U.N. Se-

curity Council, are abusing the principle of universal jurisdiction

by extending their national jurisdiction to indict weaker nations.

These allegations constitute a fundamental threat to the future

relationship of the ICC with national legal orders. This article

has therefore stressed the need to conceive the relationship be-

tween the ICC and States as one of complementarity and inter-

dependence from the perspective of international law, as other-

wise all international and domestic efforts to implement the

Rome Statute will simply be an exercise in futility. This article

377. See Stahn, supra note 129; Stahn, Complementarity, supra note 129. See

also Slaughter & Burke-White, supra note 41, at 346N50.

378. IMOEDEMHE, supra note 196.

379. Rastan , supra note 28.

2018] The AU and the Complementarity Principle 543

has also stressed that States cannot validly prosecute interna-

tional crimes merely as ordinary domestic crimes without a for-

mal introduction and integration of international crimes into the

corpus juris of domestic criminal laws.

It is expected that the lapses or loopholes inherent in the pro-

cess of domestic implementation of the complementarity regime,

as exposed in this article, be noted and justice done to them by

all relevant national and international authorities, in line with

the recommendations outlined herein. This article strongly as-

serts that proper and timely implementation of the WCC’s com-

plementarity regime within national jurisdictions will end im-

punity for crimes and bring our common humanity closer to a

regime or scheme of things consistent with the much-cherished

principles of democratic governance and the rule of law. Africa

needs it now!