Critique of the International Criminal Court's Approach to International Criminal Justice in Selected African Jurisdictions
- Muringani, Tinotenda M (https://orcid.org/0000-0001-9758-1179)
- Authors: Muringani, Tinotenda M (https://orcid.org/0000-0001-9758-1179)
- Date: 2020-06
- Subjects: Justice , International criminal courts , Criminal Law
- Language: English
- Type: Master's/Doctoral theses , text
- Identifier: http://hdl.handle.net/11260/6445 , vital:46236
- Description: In 2002, the requisite number of ratifications to the Rome Statute was met, the International Criminal Court (ICC) was subsequently born. Just 16 years into its existence, the court finds itself under threat from the sovereign countries that at one stage, expressed their desire to improve the fight against impunity through a permanent international criminal court. But what has caused this shift? The ICC has been criticised for being a pro-African prosecution forum, this inference is drawn from the demographical distribution of the cases before the ICC that puts a significant majority of cases in Africa whereas other possible jurisdictions with similar cases have been left untouched by the ICC until recently. This study seeks to provide an analysis of the relationship between African states and the ICC. The study will provide a historical perspective on the development of International Criminal Law leading to the establishment of the International Criminal Court. This is followed by an analysis of the relations of the ICC and African states through three case studies of Kenya, South Africa and Sudan. The study will go further to provide an analysis of challenges that the ICC has faced with dealing with cases before and finally seek to explore the possibility of an alternative forum to prosecute perpetrators of international crimes centred in the African continent. , Thesis (MA) -- Faculty of Humanities, Social Sciences and Law, 2020
- Full Text:
- Date Issued: 2020-06
- Authors: Muringani, Tinotenda M (https://orcid.org/0000-0001-9758-1179)
- Date: 2020-06
- Subjects: Justice , International criminal courts , Criminal Law
- Language: English
- Type: Master's/Doctoral theses , text
- Identifier: http://hdl.handle.net/11260/6445 , vital:46236
- Description: In 2002, the requisite number of ratifications to the Rome Statute was met, the International Criminal Court (ICC) was subsequently born. Just 16 years into its existence, the court finds itself under threat from the sovereign countries that at one stage, expressed their desire to improve the fight against impunity through a permanent international criminal court. But what has caused this shift? The ICC has been criticised for being a pro-African prosecution forum, this inference is drawn from the demographical distribution of the cases before the ICC that puts a significant majority of cases in Africa whereas other possible jurisdictions with similar cases have been left untouched by the ICC until recently. This study seeks to provide an analysis of the relationship between African states and the ICC. The study will provide a historical perspective on the development of International Criminal Law leading to the establishment of the International Criminal Court. This is followed by an analysis of the relations of the ICC and African states through three case studies of Kenya, South Africa and Sudan. The study will go further to provide an analysis of challenges that the ICC has faced with dealing with cases before and finally seek to explore the possibility of an alternative forum to prosecute perpetrators of international crimes centred in the African continent. , Thesis (MA) -- Faculty of Humanities, Social Sciences and Law, 2020
- Full Text:
- Date Issued: 2020-06
South Africa and the International Criminal Court: investigating the link between complimentarity and implementation
- Authors: Kulundu, Kenneth Wanyama
- Date: 2006
- Subjects: International Criminal Court , International criminal courts , International crimes , International law -- South Africa , South Africa -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3679 , http://hdl.handle.net/10962/d1003194 , International Criminal Court , International criminal courts , International crimes , International law -- South Africa , South Africa -- Law and legislation
- Description: Complementarity, the organizing principle of the International Criminal Court (ICC), is a largely untested concept in terms of its ability to instigate State compliance with the Rome Statute of the International Criminal Court. The ICC made its debut at a time when States were routinely accused of non-compliance with international law, particularly international criminal law. Due to perennial concerns over the protection of State sovereignty, an ingenious system of allocation of competencies between States and the ICC was evolved. This is embodied by the principle of complementarity. At the heart of complementarity is an arrangement by which States Parties to the Rome Statute of the ICC are regarded as the prime fora for the prosecution of crimes of grave concern to the international community. In the event of inaction, however, the ICC is mandated to wrest specific cases from the jurisdiction of national courts and try them. In effect, a carrot-and-stick mechanism has been built into the Rome Statute to induce States to comply with the Statute. This thesis examines the principle of complementarity from a theoretical perspective, bearing in mind contemporary international law structures and institutions. A better understanding of the theoretical assumptions of complementarity, it is suggested, will foster a more effective application of the tenets of the Rome Statute within the municipal system. The thesis argues that complementarity is a catalyst for implementation of the Rome Statute only to the extent to which it alters or re-defines well established and encumbering procedures and norms within the municipal system. In this regard, although South Africa’s status of constitutional democracy may be reason to expect that the obligations imposed by the Rome Statute will be observed, that very fact may increase the inclination to preserve the “baseline of conduct” rather than be swayed by the Rome Statute. An illustrative excursion into South African rules and norms is undertaken, after which the argument is advanced that not much change has been effected to the South African legal landscape through implementation of the Rome Statute. The sole exception to this is the issue of prosecutorial discretion. On this, the South African legislature has uniquely crafted a mechanism for ensuring accountability, presumably with a view to ensuring that South Africa is always able to prosecute the crimes concerned. However, the thesis cautions against complacency, arguing that the tension between national law and international obligations may yet play itself out, owing to insufficient attention to the role of national courts in giving effect to the Rome Statute. The act of implementation may be a response to stimuli such as the perceived need to avoid civil liability for international crimes, or the general inertia of implementing human rights instruments. Therefore, the carrot-and-stick mechanism may be lacking in the compulsive qualities it is presumed to have. Through an exploratory survey of South African law, the thesis illustrates that prosecutorial accountability is the major factor in determining whether a State has fully complied with is obligations under the Rome Statute. However, it also points out that the way courts of law apply the new norms in municipal systems in the future will be crucial.
- Full Text:
- Date Issued: 2006
- Authors: Kulundu, Kenneth Wanyama
- Date: 2006
- Subjects: International Criminal Court , International criminal courts , International crimes , International law -- South Africa , South Africa -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3679 , http://hdl.handle.net/10962/d1003194 , International Criminal Court , International criminal courts , International crimes , International law -- South Africa , South Africa -- Law and legislation
- Description: Complementarity, the organizing principle of the International Criminal Court (ICC), is a largely untested concept in terms of its ability to instigate State compliance with the Rome Statute of the International Criminal Court. The ICC made its debut at a time when States were routinely accused of non-compliance with international law, particularly international criminal law. Due to perennial concerns over the protection of State sovereignty, an ingenious system of allocation of competencies between States and the ICC was evolved. This is embodied by the principle of complementarity. At the heart of complementarity is an arrangement by which States Parties to the Rome Statute of the ICC are regarded as the prime fora for the prosecution of crimes of grave concern to the international community. In the event of inaction, however, the ICC is mandated to wrest specific cases from the jurisdiction of national courts and try them. In effect, a carrot-and-stick mechanism has been built into the Rome Statute to induce States to comply with the Statute. This thesis examines the principle of complementarity from a theoretical perspective, bearing in mind contemporary international law structures and institutions. A better understanding of the theoretical assumptions of complementarity, it is suggested, will foster a more effective application of the tenets of the Rome Statute within the municipal system. The thesis argues that complementarity is a catalyst for implementation of the Rome Statute only to the extent to which it alters or re-defines well established and encumbering procedures and norms within the municipal system. In this regard, although South Africa’s status of constitutional democracy may be reason to expect that the obligations imposed by the Rome Statute will be observed, that very fact may increase the inclination to preserve the “baseline of conduct” rather than be swayed by the Rome Statute. An illustrative excursion into South African rules and norms is undertaken, after which the argument is advanced that not much change has been effected to the South African legal landscape through implementation of the Rome Statute. The sole exception to this is the issue of prosecutorial discretion. On this, the South African legislature has uniquely crafted a mechanism for ensuring accountability, presumably with a view to ensuring that South Africa is always able to prosecute the crimes concerned. However, the thesis cautions against complacency, arguing that the tension between national law and international obligations may yet play itself out, owing to insufficient attention to the role of national courts in giving effect to the Rome Statute. The act of implementation may be a response to stimuli such as the perceived need to avoid civil liability for international crimes, or the general inertia of implementing human rights instruments. Therefore, the carrot-and-stick mechanism may be lacking in the compulsive qualities it is presumed to have. Through an exploratory survey of South African law, the thesis illustrates that prosecutorial accountability is the major factor in determining whether a State has fully complied with is obligations under the Rome Statute. However, it also points out that the way courts of law apply the new norms in municipal systems in the future will be crucial.
- Full Text:
- Date Issued: 2006
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